On this day 25 April 2018, SAFTU, its affiliates, our allies in civil society, workers who are members of other unions including those affiliated to COSATU, FEDUSA and NACTU, workers who are not members of any union, the unemployed, students and members of the public are marching in several city centres of South Africa in protest against the biggest attacks on working-class people, the trade unions and the poor majority of South Africans since the end of apartheid.
Workers in particular are campaigning against a ferocius declaration of war by the ruling class of white monopoly capitalists, who are trying to get Parliament to pass new laws, which will entrench poverty and threaten workers’ constitutional right to withdraw their labour.
Already the government has increased VAT from 14% to 15% which amounts to a 7% increase. They increased a fuel levy which as you know will impact on those staying far from their places of work. They have increased the so-called sin taxes on such things used more by the frustrated working class, cigarettes and liquor. They have introduced a suger tax despite protests from FAWU that this will lead to more job losses.
The government is trying to resolve a crisis created by them and a capitalist crisis workers did not create but are victims of.
The poverty national minimum wage of R20 an hour
In 2015, 30.4 million South Africans, 55,5% of the population, lived below the upper-bound poverty line of R992 a month, an increase of 2.3% from 53,2% in 2011. 40% lived below the lower bound poverty line of R544 and 25.2% had to live below the food poverty line of R441.
According to Oxfam, 26% of South Africa’s population is hungry on a daily basis; and half of all South Africans do not have sufficient access to affordable, nutritious and safe food to meet the basic health requirements.
In addition, malnutrition is the major underlying cause of death in 64% of deaths of children under the age of five; one in five children are stunted because of malnutrition and many more are deficient in the minerals and vitamins necessary for optimal development.
These hunger-related indicators of extreme poverty exist despite the fact that South Africa is officially food secure, i.e. it produces enough food to feed the entire population. But every year R61.5bn worth of food is wasted along the production-to-consumption chain.
Given that 47% of all workers earn below the proposed national hourly minimum wage of R20, it is hardly surprising that so many are going hungry.
We have reached these levels of hunger and food insecurity despite the very important growth in spending in social grants. In 1994 less than 2% of government spending was allocated to social grants, and it has now reached around 9% of government spending.
There is no doubt that poverty has been alleviated for many. 17 million people currently receive social grants of between R360 and R1600 a month. Social grants are the largest source of income for one in five households. But most unemployed people of working age are left out of the grant system and depend on others who are grant recipients.
It is therefore no surprise that the poorest 20% of households is now largely made up of young unemployed couples with one or two children and no grandparents. This serious gap is what has driven the demand for a universal Basic Income Grant, for which all adults would be eligible.
SAFTU fully supports the calls for a comprehensive social security system including for the introduction of the Basic Income Grant.
It is an indictment on our democracy that we have so much poverty. Workers should not be made to pay for this crisis nor should they be made to resolve a capitalist crisis.
By far the biggest cause of these appalling levels of poverty is the high level of unemployment. In the fourth quarter of 2017, 9.2 million people were unemployed, 36.6% of the working population by the more realistic expanded definition, which includes people who are unemployed but have stopped looking for work.
Even by the ‘official’ definition of unemployment, which includes only those who are not employed, but actively looking for jobs, 27.7% – 5.9 million people – are unemployed.
According to reports compiled by the International Labour Organisation (ILO) only six countries in the world have higher levels of unemployment than South Africa. They all either have very small and dependent economies such as Lesotho and Mauritania, or have been ravaged by war and/or occupation such as the West Bank and Gaza Strip of Palestine, and Macedonia.
Why does a country with massive natural resources, a well established manufacturing base, a solid banking system, a functional agricultural sector and a large government bureaucracy find itself in this position?
Why has unemployment risen from 1994, when one out of every five adults of working age and actively seeking work did not have a job, to 2017 when this figure had risen to more than more than one out of every four?
The rising levels of unemployment in general are made even worse by declining numbers of jobs in the crucial areas of mining, manufacturing, agriculture and construction. Although there has been growth in the total number of jobs in the trade, financial, transport and communications and public sectors, this growth has not kept up with the growth in population, and so these jobs have not dented the ever-rising rate of unemployment. Increasingly young people entering the job market have found it very difficult to find a job.
Youth and women’s unemployment
There are now fewer young people between the ages of 15 and 24 in work or studying than there are unemployed youth of the same age range. The expanded unemployment rate for this age group is a staggering 63.8%, meaning almost two out of every three. And for the age group 25 to 34 years, the expanded unemployment rate is 40.6% and 39.9% for women.
Workers have not created this problem. Workers should not be made a scapegoat of problems they have not created.
Unemployment by racial group
There are also quite stark differences in the rates of unemployment according to racial group. The overall rate of unemployment (expanded definition) amongst African people is 40%, compared 27.3% for so-called Coloured people, 14.7% for Indian people, and 9.1% for white people. So even among white people, nearly one out of every ten is unemployed. This in itself would be regarded as something of a state of emergency in most countries, let alone a situation of 35.6% overall unemployment! The skewed racial breakdown of unemployment continues to reflect unequal access to decent education and training. We appeal to MPs to recognise that the majority of their constituents are indeed living in a state of emergency.
Rise of precarious and informal work
Of crucial importance to the debate in parliament is the growth of precarious employment. All workers with an employer are vulnerable to dismissal, which is why workers join unions to protect them against this. But some workers are more vulnerable than others. More and more workers are in jobs that even less secure than the jobs of permanent full-time workers.
Precarious employment includes short-term contracts, seasonal work, piecework, casual day-labour, and zero hour contracts (where the contract does not guarantee any hours of work). Work in the informal sector is usually also precarious, as income is generally very low and unpredictable. Today in South Africa one in seven workers has a fixed term limited duration contract.
Even many permanent full-time workers can also find themselves in a precarious position when they are extremely low paid, or have no employment benefits. They constantly feel as if they are falling off a cliff – anxious about where the next rand is going to come from and what will happen if they lose their job.
Evidence of this kind of precarious work is that: –
Workers who report more than two of the above conditions are defined as being “informal”. Agricultural and private household (domestic) workers are counted separately. In addition, own account workers and workers in places of employment with less than five workers are also counted as informal.
When all these categories of informal workers were added up in the 2016 Quarterly Labour Force Survey, in the last quarter of the year, 2.6 million workers (excluding agricultural and domestic workers) were counted as informal. Adding an estimated half of agricultural workers who are informal i.e. 450,000, plus almost all of the 1.3 million workers who work in private households, there are at least 4.35m workers who can be classified as informal. This amounts to at least 27.5% of all workers.
Most of those in manufacturing are in very small companies; most of those in construction are day labourers and short-term contract workers, and most of those in transport work in the taxi industry.
The majority of those in the trade sector are either working in very small restaurants and shops, or are own-account workers in the informal economy without an employer. In community and social services EPWP and “volunteer” workers in NGOs make up a big chunk.
Right at the centre of the debates in parliament, particularly on the national minimum age, are South Africa’s levels of inequality.
We live in the world’s most unequal country, with the highest Gini coefficient, which measures inequality, at about 0.68.
In 2014, the median salary in South Africa is R3400, which means that 50% of workers earn below this R3400. It is an indictment on our democracy that we have sidelined millions of workers in the farms, security, domestic, cleaning services, and informal sectors to continue facing this kind and extent of humiliation at the hands of those who humiliated and exploited them during the apartheid and colonial era.
Meanwhile Deloitte accountants revealed that the average pay of executives in the country’s top 100 companies is now R17.97 million a year, which amounts to R69 000 a day and R8 625 an hour!
If that is the average, there must be many who receive even more! Executives’ salaries have risen from 50 times to 500 times bigger than workers’ wages.
Many of the companies who are paying these grotesque amounts to their executives support the R20 an hour poverty wage and are demanding that the unions should agree to lower wages for their workers.
The total net wealth of 3 South African billionaires is the equivalent of the total combined wealth of 50% of the population; the richest 1% of the population has 42% of the country’s wealth; and the wealth of South Africa’s top 10% grew 64% in first 17 years after 1994, whereas the wealth of the poorest 10% did not grow at all. (Economy for the 99%, Oxfam Report, January 2017)
According to the Quartz, a British think tank, in its CEO Worst Fact Cats report, South African CEOs topped the list of fastest earners in the world. It shows that it takes CEOs in South African just seven hours to make R180 252, which is the country’s average yearly wage.
Bloomberg’s Global CEO Pay Index, which calculate the comparative index, says that “South Africa’s CEOs earn far less on average than their American counterparts but their salaries are 541 times more than the average income in their own country”.
10% of the population earns more than 90% of the household incomes while 20% earn less than 1.5%. Deloitte accountants have calculated that the average pay of executives in the country’s top 100 companies is now R17.97 million a year, which amounts to R69 000 a day and R8 625 an hour!
Yet these grossly overpaid tycoons, together with their new champion in Union Buildings, multi-billionaire President Cyril Ramaphosa, want workers and their families to survive on just R20 an hour, something they would never dream of accepting for themselves.
We utterly reject the argument that this bill should be supported because R20 an hour is “better than nothing”. The scandalous fact that so many employers currently pay employees even less than this poverty wage in no way justifies the government agreeing to a statutory minimum which will still leave workers trapped in poverty, entrench the apartheid wage structure, and widen income inequalities even further.
And not all workers now earning less than R20 an hour will get an increase. The minimum wage for farmworkers will only be R18 an hour, R15 an hour for domestic workers and as low as R11 an hour for those on Extended Public Works Programmes.
And some employers have already said that they will keep their monthly wage bill the same as before by employing workers for fewer hours.
The workers most affected are those who are already the most vulnerable, the unemployed, those in atypical forms of casual employment, part-timers and temporary workers who could be blackmailed by employers, who – following the lead of their political party, the DA, and scandalously COSATU leaders – want to be able to apply for an exemption from the NMW, so that they can ‘persuade’ desperate unemployed workers to ‘agree’ to accept below-minimum wages so as to get at least some money for food.
This will in turn threaten the jobs of existing employees, who will live with the constant fear that their jobs could be lost, or their wages cut, by employers, who remind them that “there is always someone out there who will take your job for less than I pay you”!
Another huge problem is enforcement. A shocking report by Statistics SA revealed that 577 000 children in South Africa, some as young as seven, are being used for child labour. If the Department of Labour cannot stop such blatantly illegal and immoral exploitation of children, what chance is there that this understaffed and under-resourced department can force all employers to pay the minimum wage to all their employees?
The National Minimum Wage Bill has now been sent back to the Department of Labour to redraft the Bill to take account of the submissions made to the Parliamentary Portfolio Committee on Labour. One of these submissions was made by SAFTU on 17 April, and we demand that the Department responds positively to it and will not just tinker with the details of the Bill but make fundamental changes so that the minimum wage becomes a living wage.
Labour Law amendments
The Parliamentary Portfolio Committee on Labour has also been considering amendments to labour laws that we believe represent a frontal assault on the constitutionally guaranteed right to strike and to bargain collectively.
These rights are enshrined in the Bill of Rights. All parties in parliament played an important role in negotiating our constitution.
We believe that the Bills upset the delicate balance that was struck between workers and employers’ rights in the constitution. They represent the most glaring attack on workers since the dawn of democracy and are no different to those introduced in Britain by the late Prime Minister Margaret Thatcher and Ronald Reagan in the United States. Their project, just like these Bills, was designed to disarm and emasculate workers.
Class peace cannot be imposed by diktat.
Before we consider the specific issues we wish to raise it is important to look at what the constitution says about the workers rights.
23. (1) everyone has the right to fair labour practices. (2) Every worker has the right—
(a) to form and join a trade union;
(b) to participate in the activities and programmes of a trade union; and
(c) to strike.
(3) Every employer has the right—
(a) to form and join an employers’ organisation; and
(b) o participate in the activities and programmes of an employers’ organisation.
(4) Every trade union and every employers’ organisation has the right—
(a) to determine its own administration, programmes and activities;
(b) to organise; and
(c) to form and join a federation.
(5) Every trade union, employers’ organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).
(6) National legislation may recognised union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).
Limitation of rights
The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
At this time in our history it is clear that workers need more and not less protection from unions. Already the Labour Relations Act (LRA) favours employers in strikes. They have been given a right to employ scab labour that makes the strike irrelevant to them.
Since the dawn of democracy workers and unions have had to jump through hoops to attain a certificate to strike even after what is often a long and protracted negotiation process.
That of course is where there are negotiations. Many workers in South Africa do not even get to negotiate wages or conditions. The employer simply decides if and when workers will get increases.
Employers acting alone without any negotiations with any union or workers set a staggering 62% of all wages. Between 5% to 10% of workers do not receive any kind of an increase.
Only 23% of workers receive wages through collective bargaining. This means 77% of workers do not receive any wages increase as a result of collective bargaining. Only 9% of wages are set through centralised bargaining structures.
It is estimated that some 76% of employees are non-unionized. Some will of course be covered by Main Agreements, which are extended but many are not.
Given that it is already difficult for unionised employees to go on strike, which will be worsened by these amendments, then what chance to the majority of non-unionised workers have of ever exercising their power?
The Bills are also a product of an undemocratic process. They were agreed to behind workers backs at Nedlac, a forum where SAFTU, which is the second largest Federation that now represents 30 unions with nearly 800 000 workers, remains locked out. There was no consultation with workers who are going to be negatively affected by these draconian Bills.
The worst attack on workers is on their constitutional right to strike, not by an explicit ban, but a mass of legal obstacles and lengthy processes for trade unions, which are going on a lawful, protected strike almost impossible. The most worrying areas are:
This amendment seems innocuous at first glance. The only change to the existing act is that the ballot is defined and there are changes to the requirements on record keeping.
The provision of the existing Section 95(5)(p) states, “that the trade union or employers’ organisation, before calling a strike or lock-out, must conduct a ballot of those of its members in respect of whom it intends to call the strike or lock-out”.
This is to be amended to cover “any system of voting by members that is recorded and in secret”. It further will compel union to keep ballot papers and “any documentary or electronic record of the ballot” for three year from the date of the ballot.
It is however a back-door infringement on the right to strike, another hoop to be jumped through by a trade union, that will be used by employers to try to influence the outcome of a secret ballot. Threats to jobs etc. will become the order of the day.
What of non-unionized workers? Most of them would decide to strike with a show of hands; must they now hold a ballot? How would they possibly be able to do so?
Even unionized employees, after months of negotiations, CCMA processes must then organise a secret ballot.
Who organizes the ballot? Many small unions would simply not have the capacity to organize such a ballot or the financial wherewithal to pay for an independent body.
Whilst not organizing a ballot will not render the strike unprotected it could open up the trade union to attack from the Department of Labour in relation to its registration.
Even the inclusion of the present section in the LRA is an insult to workers. One of the intentions of the Department of Labour is to ensure that unions are controlled by their members and not by outside bodies. Section 95 however shows that such a prohibition does not to apply to them. They are allowed to instruct a union what to do if it wishes to be registered, even if the members disagree.
Instead of tinkering with what is already an infringement on the rights of members to determine the content of their union’s constitution, SAFTU demands the repeal of the entire section 95 of the Act. Power to run and control their own organizations must be given back into the hands of members.
Trade unions which do not represent their members or whose leadership abuse their positions will soon be brought to book by those members.
The amendments include new rules for strike notices, which place more obstacles in the path of workers in dispute.
SAFTU contends that the current requirement to give notice is an infringement on the right to strike. Employers simply prepare to sit out a strike.
There can be no requirement on a trade union to agree a notice period. A strike is the last resort of workers. The exercise of their power to their benefit not for the benefit of their employer!
The notice must include the date and time when the strike is to commence and the demands that the other party is required to meet, which must not be different from those upon which the parties deadlocked”.
This is a nightmare scenario. Most unions and employers go into negotiations with a list of demands. Some are more important than others and will be prioritized. The fact that there is no official deadlock on some issues does not make them go away.
If everything has to be deadlocked on the negotiations will become more and more protracted, accompanied by an increasing and mounting anger on the shop floor.
Shop stewards are not lawyers; they are worker leaders but every action they take in a strike notice will be seen by the employers’ lawyers and there will be an increasing number of court cases, most of which many unions will not be able to defend because of financial constraints.
An amendment will ban picketing unless a union’s picketing rules have been agreed, preferably prior to the conclusion of the CCMA process. If they are not agreed then rules can be decided by the Commissioner and imposed.
This is one of the biggest infringements on the right to strike in the current amendments.
Picketing during strikes has always been a contentious issue. Employers have been able to run to the court, with little or no evidence, on an urgent basis.
This has often resulted in interim orders pending return dates, which have brought strikes to an end for no good reason. This change is open hunting season for employers!
The onus to oversee the rules lies with the commissioner, whether agreed or imposed. But if a strike commences without he or she having done this, then the sanction is on the striking workers and the trade union.
This is an open invitation to employers not to agree on the basis that they know that the imposed rules will always work in their favour. That is the experience of the past.
Workers are told to stand 100 or 500 metres away from gates, with no access to toilets etc. That is not a picket. This is disarmament!
Workers must have the right to stop and talk to anyone entering the employer’s premises and ask them not to do so.
That is a picket!
In fact government is handing over the conduct of strikes to people who in the main will never have worked on a shop floor, never had to suffer the racism and sexism that workers suffer daily and never had to live on poverty wages.
Together with the arbitration amendment this is supposedly in response to increasingly “violent” pickets and strikes.
The amendments are silent however on the main reason why strikes, and a minority at that, become violent, that of replacement labour.
One of the reasons given by the Department of Labour for these amendments is to bring us into line with the ILO. We set out what the ILO Principles on the right to strike have to say on this issue, that “the hiring of workers to replace strikers seriously impairs the right to strike an is acceptable only in strikes in an essential service or in situations of acute national crisis”.
In general the ILO says the following on picketing: “Restrictions on picketing should be confined to cases in which such actions ceases to be peaceful and picketing should not interfere with the freedom to work of non-strikers”.
The new amendments demand that restrictions on picketing be “agreed” prior to the end of the conciliation and if they are not, they will be imposed. The ILO indicates that in normal circumstances that there should be no restrictions.
It would appear that some ILO principles are more important than others.
Parliament should not accept the same flimsy evidence provided by employers to the courts to curtail the right to picket.
Conciliations and arbitrations
The length of the conciliation process is at present 30 days but an amendment allows the CCMA to extend this period by up to 5 days.
A new section deals with the circumstances under which a process of an “advisory arbitration panel” should be convened.
The panel can be convened by the Director of the CCMA, if the Minister of Labour so directs or by one of the parties to the dispute.
The amendment also directs the CCMA Director to propose alternative means to reach a settlement, such as an “advisory arbitration”, under which a panel is convened to recommend an “advisory ruling” to both parties to the dispute. It is pretty clear that the CCMA will be inundated with such requests from employers in future.
The Labour Court can also hear an application from an interested party to convene the panel.
One can almost see the various employer bodies in the country already queuing on the court steps!
The Director had to satisfy herself of the following before convening the panel:
1 the strike is not longer functional to collective bargaining;
2 there is an imminent threat or use of violence or damage to property; or
3 the strike may or is causing an acute national or local crisis affecting the normal, social and economic functioning of the community or society”.
What is the evidence that the Director would require to make any such findings?
The system is an open door for abuse by employers and employer organizations who no doubt will attend any such arbitration with a herd of attorneys and counsel.
The most chilling however is number 3. A strike is the worker’s side of power, and the lockout is the option of the employer.
The point of a strike is that it causes harm to the employer and through the non-production of goods affect his business and that of those who trade or deal with him. There is no other purpose to a strike and it is a legitimate purpose. It is intended to force an employer back to negotiations and to settlement.
Where can it be the role of government, parliament or the Department of Labour to protect business against the legitimate rights of workers to withdraw their labour?
In effect if your strike is effective and your employer is adversely affected then he can run to the CCMA who will intervene on his behalf. The worker becomes a slave!
Those in favour will say well it is only advisory and doesn’t affect the strike, but it does. It says to the workers: you have no right to be on strike because of one of the issues set out above.
We return to our question as to what evidence will someone not involved in the strike use to make such a determination. The hearsay of the employer that we see in strike interdicts? The self-interest of employer organizations that can approach the court?
The parties are then told they have seven days to accept or reject the determination and they must consult their members. If it is not rejected in the time then it becomes binding.
How does a union of 400,000 members do that in the time given?
In fact this is not voluntary arbitration as set out in the ILO principles on the right to strike. If the Director of the CCMA or the Minister or one of the parties or even, through the court, an interested party, decide on arbitration then it is in effect compulsory. You have to attend and then unless you opt out, the award becomes binding.
This is far removed from the voluntary arbitration approved by the ILO.
All these amendments, when seen together, seek to place even more obstacles for trade unions than those already in existing laws. They open up the likelihood of even more and longer court battles around laws, procedures and codes of conduct.
They take no account of the way strikes frequently erupt when workers are confronted with unfair dismissals, racist abuse, and health and safety violations. They quite justifiably want to respond immediately and effectively, by walking out of the workplace there and then. But under these laws, their union will often be unable to support them without going through long and difficult legal battles with the employers.
It thus seriously weakens the unions and rather than ending potentially long or violent strikes is if anything likely to cause more, as workers lose patience not only with the employers but also with their unions whose hands are tied behind their backs by these laws.
We demand that the Bill be scrapped and that the process returns to Nedlac but a Nedlac that will not lock out important constituencies such as SAFTU. We request that the portfolio committee allows SAFTU and others to make oral and written submissions so that we can expose our MPs to the real meaning of this attack on hard-won worker rights of workers and to the lived lives of the working class in South Africa of 2018.
We have demonstrated that the Labour Amendments Bill represents a savage attack on the right of workers to strike. We have likened these Bill to the era of Margaret Thatcher of Britain. The sole intention is to defeat the workers and hand them over to their class enemy as a defeated class.
We appeal to members of parliament not to agree to the emasculation of the working class at the time when you should intervene to stop the workers falling onto deepening poverty, inequality and unemployment. A debate instead must be how should we strengthen the weak and the vulnerable in the face of the increasing power of the ruling class.
In our view this debate should be based on the following key points that have been debated in the past without any concrete steps. We demand:
The National Minimum Wage Bill and the Labour Amendments Bills are taking us to the opposite direction of a better life for all or radical economic transformation. They will not only maintain the current status quo but worsen it including actually permanently postpone the dreams of the many.