Workers rights under attack

The Casual Workers Advice Office (CWAO) based in Germiston argues that if the proposed amendments to the LRA and BCEA become law, it will be a big defeat for workers and the working class as a whole.

Germiston, South Africa

On 17 November 2017 the state said it wants to make big changes to the rights of workers by changing the Labour Relations Act (LRA) and the Basic Conditions of Employment Act (BCEA). It also brought in the National Minimum Wages (NMW) Bill. These changes will roll back the hard-won rights of workers.

Your right to strike will be even more limited

 The right to strike is one of the most important rights for workers and is protected in the Constitution. The proposed changes to the LRA add many new procedures that have to be followed before workers can strike, which will make it much more difficult to strike.

  • A secret ballot. One of the proposed changes is that trade unions will have to hold a secret ballot to decide on strike action. A secret ballot means each worker will have to decide for themselves whether they will strike or not. But a strike is always about workers acting together. It will be more difficult for workers to unite if they don’t know what their comrades are thinking about the strike. This change does not apply to unregistered trade unions or worker committees.
  • A longer conciliation period. The LRA amendments also say the conciliation period of 30 days before a strike can now be stretched to 35 days. This will give bosses more time to fill up their warehouses, victimise workers and plan to bring in scabs.
  • ‘Advisory arbitration’ to settle or prevent strikes. An advisory arbitration panel can 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, including the bosses. This means any strike is open to advisory arbitration, even before it starts. On top of this, bosses will be able to take trade unions to the Labour Court with interdicts if, for example, they think the secret ballot was not conducted properly, or if the union did not follow its constitution when not agreeing with the advisory award.

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 don’t agree they must give reasons and show they have acted within their constitution by coming to this decision. If unions don’t reply to the advisory arbitration award, they must accept the award as a decision.For example, if the advisory award says the strike cannot take place or must stop, the union will be forced to comply.

Strikes are the strongest weapon workers have to fight for a living wage and a better life in an exploitative system. All these changes are meant to make workers think it is too difficult to strike. By making it more difficult for workers to strike the state is showing it is on the side of the bosses.

The national minimum wage will be only R20 per hour

Many workers laughed when a national minimum wage of R3,500 was first proposed because they know they cannot live off this little money. They also remember the Marikana workers who died for a living wage of R12,500. The NMW Bill says there will be no monthly minimum wage, only a minimum wage of R20 per hour.

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This means workers who work flexible hours or part time may not even get the R3,500 if they work for less than 40 hours a week. For domestic workers and farm workers the news is worse: farm workers will get R18 per hour, while domestic workers will receive only R15 per hour. These workers will have to wait until 2020 to get the full minimum wage of R3,500.

It will be impossible to implement the NMW and bosses can still apply to pay workers less than R20 per hour

In some sectors, like domestic work and farm work, workers already have minimum wages set out in sectoral determinations.

But as many as 50% of the bosses in those sectors pay less than these minimums because the Department of Labour does not enforce these rights. Will all bosses comply with the NMW BillIt will be much harder for workers to get justice. If the amendments are passed, it will be the job of the CCMA – not the Department of Labour – to make sure bosses pay the national minimum wage.

The CCMA is already struggling to cope with a very heavy caseload and this will make it heavier, on top of the new responsibilities for the advisory arbitration panels and picketing rules. The proposed amendments say that the Department of Labour or the workers themselves must refer underpayments to the CCMA for conciliation and arbitration. The average time for a case to reach arbitration is about 90 days. In that time the boss could victimise or even dismiss the worker. Even if a worker is successful and gets an arbitration award, many bosses ignore these awards. The worker must then have the award certified by the CCMA.

If the boss still ignores the award the worker has to get a writ of execution, which is then served by a sheriff but often only after the demand for a deposit has been met. Workers will face many legal and practical difficulties trying to win the national minimum wage and the process of policing and enforcing it will be unworkable.

Your sectoral determination rights will be taken away

The proposed amendments to the Basic Conditions of Employment Act (BCEA) will do away with important rights for some workers. Amendments say sectoral determinations will be replaced by the NMW Bill after three years. The NMW Bill is only about a minimum wage whereas sectoral determinations set minimum wages and provide other important protections for workers. An example of this is the Domestic Worker sectoral determination which says a boss cannot charge more than 10% of the worker’s wages for accommodation, on condition the accommodation is of a good standard.

At present, there are sectoral determinations for the Contract Cleaning, Domestic Work, Farm Work, Forestry, Hospitality, Private Security, Taxi and Wholesale & Retail sectors.

A sectoral determination sets minimum wages and conditions of employment in a particular sector. It is made by the Minister of Labour and all bosses must implement it. Bosses can pay workers higher wages and give them better conditions than the sectoral determination but may not give them lower wages or poorer conditions. It is the job of the Department of Labour to make sure bosses implement the determination.

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Unrepresentative trade unions that give away worker rights will be even more protected inside bargaining councils

The new amendments will allow this in two ways.  Firstly for trade unions in bargaining councils to be ‘sufficiently representative’ the registrar of trade unions will no longer have to count labour broker, contract and other vulnerable workers in the sector. Even though in some sectors these workers account for the majority of the workforce, unions that only organise permanent workers will still be regarded as ‘sufficiently representative’ of the whole sector! This change to the law will give minority unions control of entire sectors, with no need to organise the other workers in the sector.

Secondly 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. This amendment will allow the minister of labour to say that bargaining council agreements made by minority unions can also cover non-party workers.

These amendments take away the need for unions to recruit and organise members. This means that in the long term unions are likely to decrease in size and strength. The amendments also mean that while unions continue to weaken they will lose their power to bargain effectively, and yet will still be able to extend bad agreements to other workers. In recent years weak unions have already made bargaining council agreements that have taken away worker rights! With the new amendments this trend will get worse.

Why did the trade unions agree to these amendments in NEDLAC?

Why did the three trade union federations – Cosatu, Fedusa and Nactu – agree to these changes at Nedlac, even though it is a clear attack on workers and their communities and also weakens the unions? Trade union membership has been dropping, 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. Because unions no longer organise the workers who will benefit from a fair national minimum wage, they are not concerned about how it is enforced.

In exchange for keeping themselves alive through the bargaining councils, the unions have agreed to make it difficult for workers to strike. Many of the trade unions that belong to the three federations would collapse very quickly if they were not part of these councils.

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