2012 Annual Survey of Violations of Trade Union Rights - South Africa

Population: 50,133,000
Capital: Pretoria

ILO Core Conventions Ratified:

29 (Forced Labour (1930))
87 (Freedom of Association and Protection of the Right to Organise (1948))
98 (Right to Organise and Collective Bargaining (1949))
100 (Equal Remuneration for Work of Equal Value (1951))
105 (Abolition of Forced Labour (1957))
111 (Discrimination in Employment and Occupation (1958))
138 (Minimum Age for Employment (1973))
182 (Worst Forms of Child Labour Convention (1999))

Reported Violations – 2012

Murders: 1
Injuries: 15
Arrests: 46
Dismissals: 92

Documented violations – actual number of cases may be higher

Introduction

Excessive violence was again used against striking workers, leading to the death of a municipal worker in clashes with police in March, and injuries to four engineering workers when rubber bullets were fired against strikers in July. There were also two cases of mass dismissals of striking municipal workers in Metsimaholo and Ekurhuleni, while seven union leaders were dismissed for whistle-blowing. Bridgestone SA persistently refused to recognise a collective agreement while the National Employers Association sought, unsuccessfully, to nullify a collective agreement in the engineering industry. The unions expressed concern about the high levels of casual labour and its effect on union rights, and called for a ban on the labour brokerage system.

Background

Unemployment remained high despite ten years of economic growth. More than one in five South Africans were unemployed at the beginning of the year and more than half of those under 24 were jobless. In February President Jacob Zuma used his annual State of the Nation address to announce the establishment of a $1.2bn fund for a three-year job-creation initiative. The report of the Commission for Employment Equity revealed that whites – who make up only 12.1% of the economically active population – still occupy 73.1% of 'top management' positions. The government continued its campaign against the HIV/AIDS pandemic, although the education message was clearly missed by Xstrata coal which dismissed 12 HIV-positive miners.

Trade union rights in law

While the Constitution and the Labour Relations Act provide a strong legal foundation for trade unions to exercise their rights, some issues exist. All workers – with the exception of members of the National Intelligence Agency and the Secret Service – are allowed to join unions and are protected against unfair dismissal, and unions can seek redress in court for such dismissals.

The Labour Relations Act favours centralised collective bargaining at the sectoral level but does not prohibit bargaining at other levels. Bargaining normally takes place in bargaining councils or in statutory councils. However, in order establish a bargaining council a trade union must be "sufficiently representative", but there is no definition in the Act of the term.

The right to strike is explicitly guaranteed and is broadly construed to include pickets, secondary strikes and socio-economic protest actions. Nevertheless, the right is curtailed by the fact that employers are permitted to hire replacement workers during defensive lock-outs, i.e. lock-outs called in response to a strike.

Link to additional detailed information regarding the legislation on the ITUC website here

In practice

Labour brokerage denies workers their rights: The Congress of South African Trade Unions (Cosatu) has called for a ban on labour broking practices in South Africa, explaining that "the system of labour broking guarantees employers an abundant supply of cheap labour that does not enjoy the benefits accorded to other workers and thus perpetuates the exploitation of our people and the negation of their living standards". Other unions support the call for the ban. Christina Oliver, Vice President of the National Union of Metalworkers of South Africa (NUMSA) described labour brokerage as "a form of modern day slavery", because workers have no job security, often don't dare join the union for fear of being rejected by the broker, and earn only the minimum wage while permanent workers doing the same job earn more.

High levels of casual labour undermining union rights: The situation of workers at a poultry factory highlighted the plight of casual workers. The factory, owned by Early Bird Farm, a division of Astral Foods, claimed in January to employ a total of 1,100 workers, of whom 600 were casual workers. The workers themselves claimed that the number of casual employees was much higher. The casual workers said they were brought into the company by labour consultant agencies, or brokers. Most "casual" workers had been working on a "permanent basis" for several years but were not receiving any benefits. They were not affiliated to any labour union and the unions were not allowed to intervene in the event of a dispute. The issue of contract labour, or labour brokerage as it is called in South Africa, was under review as part of the government's consultation process on the proposed new labour laws – the Labour Relations Amendment Bill, the Employment Equity Amendment Bill, the Basic Conditions of Employment Amendment Bill and the Employment Services Amendment Bill.

Anti-union employers in the wine industry: A 96-page report, "Ripe with Abuse: Human Rights Conditions in South Africa's Fruit and Wine Industries", issued in August by Human Rights Watch (HRW) disclosed on-site housing unfit for habitation, exposure to pesticides without proper safety equipment, lack of access to toilets or drinking water while working and barriers to union representation. The report went on to say that farm workers are some of the most poorly organised in South Africa. It estimated the percentage of workers represented by trade unions in the Western Cape agricultural sector was just 3%, compared with 30% among those with formal employment nationally. HRW found some farmers try to prevent workers from forming unions, in spite of the country's laws. Proof that unions can help, in the rare cases where workers succeed in organising, is Sikhula Sonke, a women-led union of farm workers, which says its members now earn the minimum wage of 1,375 rand a month, unlike many in this poorly monitored industry.

Violations

Municipal workers' union leaders dismissed: The Ekurhuleni Municipality dismissed seven leaders of the South African Municipal Workers Union (SAMWU) in February after they blew the whistle on illegal activity. They were Kwena Ramotlou, Thabile Malindi, Steven Ntuli, Willy Kekana, Winnie Skhosana, Takalani Nkhumeleni and Jeanette Mokone. The seven were dismissed on charges of "misconduct" for revealing that senior municipal officials had been issuing huge tenders without following the proper procedures. SAMWU was concerned that the tenders that did not follow the Municipal Systems Act, Organisational Rights Agreement and the Strike Agreement of 2008, undermining workers' hard won gains.

In addition to being fired the union leaders were also arrested on 11 February, after SAMWU brought charges against the Municipality and the South African Police Services for shooting at protestors during strike action. The SAMWU leaders were arrested while in a hearing with the Municipality to try and resolve the dispute. Further hearings into their case dragged on for months.

Bridgestone persistent in refusing to recognise collective agreement: Bridgestone South Africa locked out 1,200 members of the National Union of Metalworkers' of South Africa (NUMSA) at two former Firestone tyre producing plants, Brits and Port Elizabeth, on 22 March. At issue was Bridgestone South Africa's refusal to accept a three-year collective agreement that was negotiated between NUMSA and the New Tyre Industry Employers Association (NMIEA) in September 2010 after a month long strike. All employers agreed to the terms with the exception of Bridgestone South Africa who insisted on implementing a lower wage increase for workers that are 'red circled' (those who earn above the minimums in the industry). The matter was taken to arbitration and on 22 February the arbitrator found in favour of NUMSA. Bridgestone responded with a lockout at its plants affecting 1,200 'red circled' and 'non-red circled' workers in an attempt to force workers to sign acceptance letters of wage offers far lower than the increase agreed to at the industry level. As a result, hundreds of workers who were not red circled and had no direct relation to the dispute were also affected. During the lockout Bridgestone SA refused to engage NUMSA, and instead told workers that if they wished to return to work they would be expected to individually sign acceptance of their wage offer, effectively shutting out the union and undermining the right to collective bargaining.

NUMSA applied to the labour court for an urgent interdict to have the lockout declared illegal as the union was pursuing negotiations and there was no strike in action but the court ruled on a technicality that the lockout was legal because of the suspended strike. The workers finally returned to work on 19 May, in recognition of the hardship suffered during two months without pay. NUMSA said it would continue to pursue the matter and seek an appeal.

78 SAMWU members dismissed: The Ekurhuleni Municipality fired 78 South African Municipal Workers' Union (SAMWU) workers on 8 June for "ill-discipline" displayed during a strike in February. They had initially been suspended pending consideration of their case. The strike took place in protest at the council's dismissal of seven shop stewards (see previous article). All 78 were reinstated in July however, after the authorities accepted they had not followed due process in terminating the contracts of the workers, who were dismissed without a hearing.

Clothing industry bargaining council members violate collective agreement: The clothing industry's National Bargaining Council members have been ignoring their own standards. The bargaining council issued writs of execution to companies that failed to comply with the industry-agreed minimum wage. Clothing factories signed a memorandum with the union and agreed to raise their wages in three steps until they are fully paid up and compliant by April 2012 but by mid-2011 252 had already fallen behind the 70% (of the minimum wage) due in April 2011. "We will have to act against those companies," said a spokesperson for the Council . Yet at the same time it was found that some of the council's own members were outsourcing their manufacturing to other factories that did not apply with the minimum wage, or to factories in Lesotho and Swaziland which pay lower wages than those in South Africa. The bargaining council is a 50/50 partnership between the South African Clothing and Textile Workers' Union (SACTWU) and the formal manufacturing sector, represented by the Apparel Manufacturers of SA (AMSA), which collectively sets wages and other terms of employment which are then applied across the rest of the industry. AMSA blamed the problem on the number of new, non-compliant, companies springing up in the industry.

Police and supervisor shoot striking workers:

Four striking workers from the Bolt Corporation Company in Krugersdorp were shot and injured by police using rubber bullets on 6 July. The National Union of Metalworkers of South Africa (NUMSA) protested that the police response was excessive. Although their members were angry, they had been behaving in an orderly manner since the beginning of the strike.

In another incident, two workers were injured when a supervisor at Lockers Engineering Company owner based in Krugersdorp opened fire at striking protestors outside the company premises. Both injured workers were taken to hospital where one was reported to be in a critical condition and the other stable. The supervisor was arrested. There were also claims that police had harassed, intimidated, and shot at strikers in Bellville and Germiston. The strike claimed the lives of two people, one hit by car in Germiston and another in Kwazulu-Natal, although there were no suggestions that the police response was the cause of these tragic incidents.

The incidents took place during country-wide strikes in the first week of July by workers in the engineering, gold, chemicals, and coal sectors who were negotiating with employers for higher wages. NUMSA was joined by five other trade unions – the Chemical, Energy, Paper, Printing, Wood, and Allied Workers' Union (Ceppwawu), the Metal and Electrical Workers' Union (Mewusa), United Association of South Africa (Uasa), Solidarity, and the South African Equity Workers' Association (Saewa). The unions were calling for wage increases of 10% to 13%, while employers were offering 7%. NUMSA said some senior managers were earning 20 times more than union members. The strike ended after two weeks, with an agreement on pay rises of between 8% and 10%.

39 strikers arrested: The nationwide strike by metal and engineering workers to press for better pay and working conditions continued into a second week and on 13 July, police arrested 39 members of the National Union of Metalworkers of South Africa (NUMSA) in Deal Party industrial area outside Port Elizabeth. The workers were briefly detained at the Mount Road police station, Port Elizabeth.

Police intimidate striking engineering workers: Engineering workers who faced a hostile police reaction during strikes in support of a pay rise at the beginning of July (see two previous articles) attempted to open a criminal case against police in Gauteng. They were unable to because of police intervention and intimidation however, reported the National Union of Metalworkers of South Africa (NUMSA).

Employers association seeks to nullify engineering collective bargaining agreement: The National Employers Association of South Africa (NEASA) went to court in October an attempt to nullify the collective bargaining Main Agreement signed in July by engineering industry employers and the National Union of Metalworkers of South Africa (NUMSA). The NEASA had earlier tried to ban a strike by NUMSA and had petitioned the Labour Ministry not to officially publish the collective bargaining agreement. In November, however, the Labour Court dismissed the application brought by NEASA.

Security guards attack union officials: Security guards working for the poultry producer County Fair sprayed tear gas in the face of an official from the Food and Agricultural Workers' Union (FAWU). The incident happened on 6 December when FAWU officials went to see striking County Fair Workers in Klipheuwel, Durbanville. Two officials, Mlungilisele Ndongeni and Gafieldien Benjamin, asked to speak to management for further talks about workers' demands over bonuses. When they commented that it seemed inappropriate for the security guards to be having a barbecue during the strike, one of the guards suddenly sprayed tear gas in an official's face. Another security guard kicked Gafieldien Benjamin in the face and started to beat him up. Striking workers came to assist their union officials and the guards responded by firing rubber bullets. Several workers were injured as a result. The FAWU lodged a complaint about the assault with the local police.

Meter reader company tries to block union formation: When 150 workers at the African Meter Reading Company voted for permanent employment, after being employed on six-month contracts for ten years, the employer, Khurishi Mphahlele, put ghost workers on the pay roll in an attempt to ensure that the workers did not meet the 50-plus-1% required for union recognition. Mphahlele claimed the company, which does water and electricity meter reading for the Johannesburg and Ekurhuleni metropolitan councils, was not his but his brother's, despite having signed letters naming himself as managing director. With the support of the South African Transport and Allied Workers Union (SATAWU) the workers went on strike at the end of the year.