- Created: Sunday, 11 November 2012 22:00
- Written by Leonard Gentle
After the Marikana massacre President Jacob Zuma appointed the Farlam Commission and also convened an emergency Social Dialogue meeting of Business, Labour and Government in October. The partners released a statement calling on strikers to return to work and for the police to defend law and order and noted that “the wave of unprotected strikes…[could]…undermine the legal framework of bargaining.”
So far the Farlam Commission has heard evidence of a police conspiracy, intimidation of witnesses, and a hotline line between Cyril Ramaphosa, Lonmin and the police. But with the strike wave continuing is it not also time to ask: Where did this much-vaunted “legal framework of bargaining” come from? And how virtuous, from the perspective of democracy and social justice, has that system been?
South Africa’s Labour Relations Act (LRA), Basic Conditions of Employment Act (BCEA) and their associated institutions of the Commission for Conciliation, Mediation and Arbitration (CCMA), the Sector Education Training Authorities (SETAs) and National Economic, Development and Labour Council (NEDLAC) came out of a series of engagements around the National Economic Forum, the Labour Market Commission and the National Training Board between 1990 and 1995. Like the World Trade Centre negotiations at Kempton Park, which shaped South African political compromises, there was a similar set of trade-offs being enacted within the labour market sphere between Labour (essentially COSATU) and Big Business.
Under apartheid industrial relations legislation had been based on the racial alliance between Big Business and white workers, and the suppression of black workers. White workers could form trade unions and use their muscle to establish minimum wages, industrial councils to have industry negotiations and have systems of labour protection and training through apprenticeship and training boards.
For black workers, however, strikes were illegal and they were excluded from labour protection and industrial councils.
However the illegal strike wave amongst black workers outside Durban in 1973 saw black workers defy the labour laws and eventually set up strong unions and forge Recognition Agreements with large employers. New unions, like the Metal and Allied Workers’ Union, even broke into the Industrial Council system, eventually forcing the apartheid state, in 1979, to amend the LRA to grant African workers the right to form trade unions and to compel employers to deduct membership dues.
By the time the labour market negotiations began in the early 1990’s, COSATU wanted the state to legislate a legal duty to bargain on the part of employers, impose centralised bargaining and demanded that the new democratic state should provide a high degree of social protection for workers. Big Business, in turn, wanted maximum labour flexibility, little state intervention and little social protection.
These opposing views appeared irreconcilable.
The deal breaker was to take labour legislation out of the sphere of criminal sanction and state enforceability completely. Instead the state, and Big Business and Big Labour agreed to a system of what came to be called “voice regulation” and “social partnership”.
So strikes and employer lockouts, unfair labour practices, unfair dismissals and incorrect wages, etc. would no longer be illegal but subject to discussion and rational persuasion through institutions like the CCMA. If your employer summarily sacked you or underpaid you, you couldn’t get a labour inspector to reinstate you or have your employer compelled by law to honour a contract, you went to the CCMA where you could get a mediator to try and reach a compromise solution.
Similarly, while there was no compulsion on the part of an employer to negotiate, you could invoke the power of your strong union to make life difficult in time for such a recalcitrant employer. And you could strike, albeit only on what was deemed to be a matter of interest (as opposed to unfair dismissal, which is deemed to be a conflict of right, over which you couldn’t strike but had to refer to the CCMA for mediation and/or arbitration). So the labour movement got its plethora of rights, but which were dependent on their real organised power to exercise, because the state was not going to be involved. But Big Business got its demands for labour flexibility because there were no laws involving the state imposing any kind of criminal sanction or legal enforceability.
The whole system presumed a scenario whereby Big Business would get the benefits of labour flexibility, industrial peace and skilled labour and Big Labour would get skills, job security, higher wages and a seat at the table of all labour market institutions.
But neither the state nor Big Business kept their side of the bargain. Whereas the LRA, the SETAs and NEDLAC were unveiled during the period of the RDP, the government unveiled GEAR and its neo-liberal prescriptions without any consideration of its Big Labour “partner”. And Big Business, instead of seeking beneficiation and skilled labour, took the gap. At least the biggest South African monopolies did -- unbundled, financialised and then jumped ship to London, New York and Melbourne. Making money via releasing “share holder value” on global stock markets was so much more profitable than extending employment and promoting skills, let alone hanging out with its “social partners” in NEDLAC.
That left COSATU with nowhere else to go. After responding with anger in the early days of GEAR, the federation has more recently been happy to slag off the betrayals of its tripartite partner, the ANC, while its leaders, organisers and even shop stewards rake in the money involved in attending NEDLAC, SETAs and the myriad other tripartite and centralised bargaining fora.
And how did the institutions of South Africa’s industrial relations perform?
Well, from the viewpoint of peace and productivity they certainly did their job. Strikes have shown a steady decline since 1995 with only 2010, the year of public sector strikes showing an increase in the number of strikes and days lost, as unions and state departments found themselves at the end of a 3-year agreement in that year. The CCMA in the meantime has increased its case handling exponentially and has become an established part of the industrial relations landscape.
But from the side of ordinary working class people the system has been a disaster on every score.
Firstly, at the macro level, inequality is increasing and all the indicators show increased unemployment - now peaking at 40% - according to Census 2012; and the increased informalisation and casualisation of workers. The labour peace has come at the cost of the restructuring of the working class towards the very flexible labour demanded by Big Business.
But what about the layer of full-time workers who have permanent jobs and are the backbone of the trade unions today? It turns out that, apart from those who benefit from the perks of sitting on the various negotiating fora, it didn’t work for them either.
In the main, company-level wage negotiations have settled on and around the annual inflation rate. And seeing that this is a figure roughly representing cost of living increases over the year past, this means that real wage levels have been eroded.
And what about the achievements of the Bargaining Councils?
Well, the statistics on centralised bargaining are revealing. In the history of the labour movement this was supposed to be a powerful means to even things upwards - to win victories in enterprises or sectors where the workers were strong, and then have that victory extended to companies where the union was weak via the ministerial signature extending the agreement to non-parties. So for years employers resisted centralised bargaining or Industrial Councils (as they were called then) fearing that it would push wage costs up.
In 1995’s LRA the industrial councils were rechristened Bargaining Councils and the compulsion on the part of the minister weakened so that s/he had some discretion in this matter and only if there were thresholds reached in terms of employer and union representativity.
So what has been their performance? In cases of holidays, working hours, maternity benefits, etc., Bargaining Councils have either settled on the minima already enshrined in the Basic Conditions of Employment Act (meaning no protracted negotiations and strikes were needed when workers already had these rights established in law) or, shockingly, have reached settlements where these are actually below the minima set in the Act.
The average weekly working hours have gone up from 44 hours to 45 -- a mass increase in the working year without a commensurate increase in pay.
In other words, far from Bargaining Councils being instruments used by the unions to level conditions upwards they have become instruments for the employers to level conditions downwards!
Cape Town’s Labour Research Service’s 2011-2012 Bargaining Indicators had this to say: “The BCEA looks more like a ceiling than a floor of minimum conditions. Put another way, actual conditions of employment tend to cluster around the legislated minimums. We see few significant upward variations.”
In COSATU’s internal review tabled at its recent Congress, some 60% of members express dissatisfaction with wage increases negotiated.
Overall workers’ wages and salaries as a percentage of national income have been dropping every year and were overtaken in 1999 by profits. In other words there has been a massive transfer of wealth from the poor to the rich in the era of the current industrial relations system.
If the striking workers of the last three months are - horrors of horrors - challenging this system of industrial relations, then they are doing us all a service for which they should be applauded and not condemned.
Internationally, the trade union movement has often gone through periods of stagnation and co-option only to be revived by internal rebellions against the established industrial order. Trade unions originated in Britain as “trades unions” – where the older term, “trades”, referred to the skilled trades of craftsmen. The movement arose from two sources: one conservative and protective of the old guilds and craftsmen resisting the hordes of newly proletarianised, deskilled workers; the other a militant offshoot of the 19th century radical Chartist movement. The first shop stewards were factory (or “shop”)-based representatives who led a radical democratic movement against the craft unions in the late 19th century and established the modern labour movement.
Similarly in the USA, the older craft-based American Federation of Labour (AFL) experienced a revolt by industrial workers in the 1920s against the sweetheart nature of the AFL and its protection of skilled white workers. These militant industrial workers, newer immigrants and many Blacks – grouped under the Congress of Industrial Organisations - fought the labour elite and forced it into an amalgam, the AFL-CIO, which is still America’s trade union centre today.
So worker rebellions against “their own unions” and against the “legal framework” for collective bargaining have a distinguished history.
Since Marikana there has been a strike wave of some 100 000 workers across the country – from the platinum province, to the coal and gold mines of the North West, Gauteng and the Free State, and from the workers at Kumba in the Northern Cape; to Toyota in KZN; and even home-based textiles workers in Cape Town. And now farm workers in De Doorns.
A common feature of these strikes has been that they were led and driven by self-organised workers’ committees in defiance of the existing unions and of signed collective agreements made with these unions. This exercise in self-organisation was even to impact on existing procedural wage negotiations – notably the transport sector, where employers and unions were about to reach an agreed wage settlement only to find that membership on the ground rejecting the proposed agreement and forcing through a protected strike.
The appellation, wildcat, may invoke images of an unruly mob. The appearance of a Julius Malema at Marikana may play to perceptions that striking workers are easily swayed bumpkins willing to believe any snake-oil salesman. And the demand for R12 500 may appear unreasonable and outrageous to commentators who can’t credit workers with any power to think for themselves. But what has been the most striking feature of the strike wave – particularly in the mining sector - has been the level of sophistication displayed, with no full-time organisers, no back up offices and no administrators; and against all the whole gamut of the state and civil society - from the mine owners media, to the political parties and the trade unions themselves.
For example AngloPlat declares, a month ago, that it has dismissed 12 000 workers. Then it says that they can return but by their imposed deadline. Then it meets with NUM and Solidarity, where they sign an agreement for a return to work. But still they can’t get back to full production and they can’t bring in scabs. The workers simply say “the Strike Committee speaks for us” and defy AngloPlat.
With each back down by management the strength of the Committee is enhanced until, against all the procedures enshrined in the LRA and the collective agreements with NUM, they are forced to sit down with the Strike Committee and recognise its de facto power. As at Lonmin – where the company was forced by the power of its strike committee to pay a 22% wage increase – the workers at Lonmin and AngloPlat have changed the face of industrial relations in South Africa. And this has been repeated at AngloGold and across the mining sector.
As ever there are no guarantees and the best efforts of the striking workers may be defeated by the sheer range of forces lined up against them. But for now the Strike Committees across the mining industry have formed their own structure, the National Strike Committee, and within this there is lively debate about where this initiative will go and what its strategic orientation will be -- whether a broad labour front or a new union or a mass enlistment in one of the existing registered unions.
The strike wave has been greeted only with doom and gloom in the mainstream media. Strangely enough, the same media and many commentators have also lined up to speak to the threat to democracy posed by an increasingly authoritarian and beleaguered ANC leadership. Business figures such as Nedbank Chairman Reuel Khoza were lauded for having the “courage” to speak up, while World Bank luminaries like Mamphela Ramphela are celebrated for “speaking the truth to power”.
So why when striking workers challenge this self-same intolerant government and the whole cosy edifice of the current order they are treated to this discourse of fear and loathing? Surely it is time to celebrate the possibilities for an expansion of democracy represented by the current strike wave? Or is democracy only an effete experience for the well to do?
Gentle is the director of the International Labour Research and Information Group (ILRIG), an NGO that produces educational materials for activists in social movements and trade unions.
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