“The most historic and progressive changes to South Africa’s labour legislation were adopted overwhelmingly by the National Assembly on Tuesday [29 May 2018]. They were the most significant and progressive amendments to our labour laws since the end of apartheid and the dawn of our new democracy in 1994.” Matthew Parks (COSATU Parliamentary Coordinator)
The amendments that Parks refers to are now expected to be officially written into law by the end of the year. Far from being progressive, they constitute an attempt by capital and the state to drive the final nail into the coffin of the democratic trade union movement. This article explains why COSATU, FEDUSA and NACTU agreed to changes that will fundamentally undermine workers’ capacities for struggle and complete the process of turning unions from fighting structures into lapdog ones. If the union federations in NEDLAC provided the tools for this project, then the hot air from SAFTU leaders unfortunately only contributed to the smokescreen.
Ramaphosa’s game of smoke and mirrors
Of all the legislative changes the NMW Bill has attracted the most heated debate. This has diverted attention away from the amendments to the LRA and BCEA. The changes to the LRA in particular form the most serious attack on worker rights since the document was launched in 1995.
This case of smoke and mirrors was part of Cyril Ramaphosa’s game plan all along. Ramaphosa, whose name became a veritable swear-word amongst ordinary workers in the aftermath of the Marikana Massacre, intended to deliver the NMW on May Day to celebrate a victory for workers and attempt to repair relations. But this peace offering formed part of a more cynical plan to quietly sneak through a far-reaching attack on workers’ rights to strike and picket.
A spanner was thrown in the works early this year when the #ScrapNewLabourLaws Campaign was built by over 30 pro-working class organisations, including unions, NGOs and community structures. This threatened to expose Ramaphosa’s plan for what it was. Unfortunately, SAFTU, who emerged as the loudest voice in the campaign, fell for Ramaphosa’s ploy hook, line and sinker. Their media drive focussed primarily on rejecting the hourly rate of R20 as a slave wage, putting the LRA and BCEA amendments on the backburner.
Although the NMW Bill has a range of problems, there is no space to address them sufficiently here. We believe it is important to emphasise the calamity that awaits with the incoming changes to the LRA. These changes will strip workers of their weapons to negotiate higher wages, effectively rendering the minimum wage meaningless in the long run.
What are the LRA amendments?
Parks’ article surprisingly chooses to redirect us towards a discussion on the LRA amendments. But he begins with a blatant lie. He says that “the provision for [strike] ballots to be conducted in secrecy has been in the act since 1995”, thus there is “no fundamental change”. Let us start here.
Section 95 of the LRA currently requires registered trade unions to include in their constitution a provision on balloting members before a strike. This definition of balloting allows for an informal raise of hands to reflect a majority decision. It is precisely the new amendments which will force balloting to take place in secret.
Contrary to what Parks imagines, secret ballots are not “in line with South African voting traditions” in the union movement, and will not “reinforce worker control of unions”. One wonders if Parks is aware of the history of his own federation or has any real experience in worker struggles? Anyone who has been involved in a strike will understand that the decision to strike must be a collective one if it is to be democratic and the strike is to succeed.
In order to convince us that there really is no major issue, he notes: “The LRA further states in section 67 (7) that no employer may litigate against a strike in court upon the basis of how workers conducted their balloting”. Here he is correct, yet intentionally deceptive.
The amendments stipulate that a registered union must keep evidence of secret ballots for a period of three years from each strike. Records of secret ballots must also be annually turned over to the Registrar of Labour Relations. These provisions mean that workers must adhere to the secret ballot provision or face the risk of their trade union being deregistered. This places yet another administrative hurdle for workers to gain protection for a strike. The secret ballot provision does not apply to non-unionised workers or non-registered unions, meaning that they can continue to decide on strike action democratically.
Any trade unionist should know that the law cannot be read in isolation from the historical context of worker-employer relations. For over a decade employers have embarked on an outright offensive, attempting to demolish what is left of the workers’ movement. Legal riddles like secret balloting will be used as yet another club to beat workers with, whether they are unionised or not and whether or not bosses can interdict strikes over it.
It must be noted that it was COSATU who first rejected proposed amendments to balloting in 2012. In their submission to parliament at the time they said: “balloting requirements were a distinct feature of the apartheid labour legislative regime […] Its reintroduction reflects a fundamental attack not only on the right to strike but also on collective bargaining. This amendment imposes an ADDITIONAL hurdle.”
Parks and COSATU must explain why their approach to the question of balloting has changed since then.
Section 69 of the LRA currently gives unions the right to organise a picket of its members and supporters in support of a protected strike. This picket can take place in “any place to which the public has access”. The CCMA can negotiate or determine picketing rules if requested to do so by the employer or union.
The new amendments effectively outlaw pickets, unless picketing rules are agreed to in conciliation. Forcing unions to agree to picketing rules before going on strike undermines the tactical weapons available to workers. If unions do not agree to the picketing rules proposed in conciliation, the new amendments say that the commissioner must “determine” the rules by taking into account “any representations made by the parties to the dispute”. Since workers have no reason to limit where or how they should picket, this change simply means that the employer’s concerns over picketing “must” be taken into consideration.
The CCMA have already developed a reputation for imposing harsh picketing rules that ensure the smooth functioning of business and restrict worker militancy. But two further change to section 69 have been included to discipline the handful of commissioners who remain committed to fair industrial relations: 1) The Labour Court has been granted the power to overturn the rules set up by a commissioner in order to suspend a picket, and 2) the Labour Court has now also been given the express power to interdict a picket in which the picketing agreement or picketing rules have been breached.
On what planet do the above changes “protect the right to picket by workers”, as Parks claims?
Longer conciliation period
Parks conveniently forgets the fact that the NEDLAC unions have agreed to extend the 30-day period of conciliation by an extra five days (under section 135 of the LRA). One wonders how he could possibly spin this one. This is five extra days for employers to stockpile products, reorganise production and secure scab labour to undermine the effectiveness of a strike.
Amendments to LRA section 150 allow for an advisory arbitration panel to be set up if the minister of labour or the director of the CCMA thinks it is in the “public interest” or if it is asked for by any party to the dispute.
Parks argues that this change “will assist workers facing intransigent employers who refuse to talk”. He blatantly chooses to ignore two of the three conditions under which advisory arbitration panel can now be set up. The amendments stipulate that a panel can be set up when: 1) a strike is protracted with no imminent resolution, or 2) there is a threat of violence or potential breach of constitutional rights, or 3) the strike has the potential to affect the social or economic functioning of society.
Parks hides the last two conditions because they so obviously favour employers. These amendments mean that any strike is open to advisory arbitration even before it starts. The employer just has to apply to the CCMA citing a threat of violence or potential economic turmoil.
If the CCMA director chooses not to set up the panel, a party to the dispute can apply to the Labour Court to order the director to reverse the decision, but only if their concern is in line with conditions 2 and 3. The amendments do no not allow the Labour Court to order the CCMA to set up a panel to arbitrate on the first condition — when a strike is protracted. If nothing else, this highlights the extreme anti-worker bias of the entire package of legislative changes.
Although the advisory panel does not have the power to decide if a strike can continue, trade unions must say if they agree with the panel’s award or not. If trade unions do not agree they must give reasons and show they have acted within their constitution by coming to this decision. These awards can and will be used as an ideological weapon by bosses to petition the public to condemn the strike. In the past public opinion has been used as an excuse by the state to violently smash strikes. This is clearly the plan for the future.
If unions do not reply to the advisory arbitration award, they must accept the award as a decision. For example, if the advisory award says the strike must stop, the union will be forced to comply. What is worse it that an advisory arbitration award can act as a collective agreement and bind workers who are not members of the union that signs or is forced to comply with the award. These awards can be extended to entire sectors!
Reinforcing the ANC’s neoliberal regime
The LRA changes to balloting, picketing rules, conciliation period and advisory arbitration will work in tandem to restrict workers’ capacities for struggle and further undermine the ability of trade unions to function as fighting formations.
The state has sought to justify these attacks by arguing that there have been too many violent strikes in recent years. The Memorandum on Objects of the Bill noted that “the levels of picket line violence that has come to characterise strike in the last few years requires more stringent regulation”. However, researchers at the University of Johannesburg rejected the idea that strike and protest violence has been on the rise, saying that the statistics available do not reflect this. They also indicate that the instigators of strike and protest violence are often police and private security.
If anything, restricting the right to strike will only lead workers to address their concerns outside of the official industrial relations framework. These laws might well curb protected strikes but in doing so will only promote unprotected wildcat strikes. And recent history suggests these are most prone to state repression and violence.
Thus, it is clear that these changes were not introduced as a result of a researched response to combat a social problem, but rather an ideological response to combat an economic one. This neoliberal approach of disciplining workers and hamstringing trade unions has been used the world over, since the 1960s, to address falling rates of profits.
Why the NEDLAC federations sold out
So, why did COSATU, FEDUSA and NACTU agree to these changes at NEDLAC, even though it is a clear attack on workers and will weaken unions? Some commentators suggest that Ramaphosa, by sheer force of personality, managed to convince these federations that the changes were a victory for them and their members. A deeper analysis of the actual amendments reveals a different story: These federations traded off the right to strike and other weapons of worker militancy in exchange for keeping themselves alive in the bargaining councils.
Section 32 of the LRA currently says that when a collective agreements is made in a bargaining council it can be extended to cover the rest of the sector’s non-union members if two conditions are met. The first condition is that the employer organisations must employ the majority of workers in the sector. The second condition is that unions must have the majority of employees in the sector as their members. The new amendments say that unions will no longer have to represent a majority of workers in a sector, as long as the employer organisations employ the majority of workers the sector.
This is important because trade union membership has been falling for well over a decade, especially in the private sector. Only about a quarter of the workforce is unionised and most unionised workers are in full time, permanent, professional or skilled employment. This layer of the workforce is shrinking and unions have not found a way to organise the growing masses of outsourced, labour broker and other “externalised” workers. As a result, under the current LRA, many trade unions have lost the power to sit in bargaining councils. The amendments will allow the Minister of Labour to extend bargaining council agreements made by minority unions to cover non-party workers in the rest of the sector.
Parks, the COSATU spokesperson, says that this change “will see millions of outsourced, subcontracted or labour broker-employed workers enjoying the benefits and cover of agreements won by trade unions”. In theory this sounds plausible. The reality is a different story. In recent years, unions have already made bargaining council agreements which have taken away rights of their own members in exchange for nominal wage increases. Some of these agreements have even resulted in workers’ rights being driven below the floors set in the BCEA. These defeats registered by weak and corrupt unions are then extended to non-unionised and precarious workers in the sector. This is fast becoming the rule, not the exception to it.
Furthermore, the amendments to section 32 take away the legislative pressures that previously encouraged unions to recruit and organise workers. This means that in the long term unions are likely to continue to decrease in size and strength. The amendments also mean that while unions weaken they will continue to lose their power to bargain effectively, and yet will more easily be able to extend bad agreements to other, more precarious workers.
Parks’ argument here sums up the arrogant approach that COSATU has taken towards these workers over the last two decades. Instead of viewing them as agents engaged in struggle, they view them as being impossible to organise and in need of handouts. What the NEDLAC federations have done in making this deal is not only sell off the powers of unions to act as fighting structures, but they have also shackled the rights of non-unionised and precarious workers to this sinking ship.
More than anything else, it is trade unions’ attitude to these workers that has led to their catastrophic collapse and will be the reason for their impending death.