SINCE August, South Africa has witnessed the most violent strikes in its history.
What started out as unprotected strike action limited to certain platinum mines in North West has spread to other mines in Gauteng and the Free State. The Congress of South African Trade Unions reports that 100,000 employees have embarked on the various wildcat strikes. With a reported 13,000 workers already dismissed, billions of rand lost in production and the deaths of almost 50 people, the mining sector faces one of its greatest challenges. The threat has already extended to other sectors of the economy. Ominously, an ordered society is also at risk if there is a meltdown of the regulated system of law that interplays with industrial relations.
The workplace has always been a platform for political expression. During apartheid, unions used it as a battleground from which to launch and contest the tyrannical laws of the National Party regime. However, unlike the wildcat strikes of yesteryear, the recent violent strikes occur under the banner of a labour relations system and a constitution put in place as part of the negotiated political transition of the early 1990s.
As a starting point, it is worth remembering that South Africa’s constitution not only guarantees protection of the workers’ right to strike, but that our system is grounded on the rule of law. This means that our ordered society is premised on a reliance on the institutions of law and the integrity of the entire legal system.
The post-democratic Labour Relations Act was the product of negotiations between organised labour, the government and business representatives. It is an act that sees workers’ rights entrenched in significant terms, with many critics arguing it remains an obstacle to investment. Coupled with the act, and in an attempt to remedy the devastation of apartheid, we saw the introduction of broad-based black economic empowerment legislation and sector-based charters focused on the transformation of business and progressive employment equity legislation.
It is against this backdrop and the election of a democratic government in which organised labour participates that we must deconstruct the wave of wildcat strikes. In short, the protests have created long-term issues, namely the erosion of employer-employee relations and a general undermining of the rule of law and the edifice of collective bargaining.
Collective bargaining, which allows employees to negotiate conditions of service with employers, is a cornerstone of South Africa’s labour relations and legal system. However, this well-established and matured system is now under threat.
The demand for double-digit wage hikes outside the framework of existing agreements should be a concern for employers, the government and unions alike. It creates uncertainty about investments when agreements with recognised unions are ignored by workers. This current reality is unsustainable and ultimately not in the interest of employees or business. Inexperienced employees facing the negotiating table will quickly learn about the sophistication of the collective bargaining regime and why unions with trained negotiators serve their interests better.
In addition, we must appreciate the implications of workers ignoring organised collective bargaining structures and rules of engagement. Where employers negotiate through worker committees or unrecognised unions, the terms and conditions of such negotiated agreements are not legally binding on all employees and could be open to challenge. More significantly, employees’ failure to respect court orders — to return to work upon the declaration of unprotected strike action — or to desist from misconduct on the picket line or in full view of the police, places at risk in the long term our social security and, ultimately, the rule of law. When the police and the judicial system are not respected or jail time is not feared, we are well advanced on a slippery slope.
Positively, lawmakers are not ignoring the risk of widespread lawlessness these strikes have raised. Proposed amendments to the Labour Relations Act, which are before Parliament, will allow the Labour Court to suspend a strike/picket when violence has occurred. Where the picket becomes unruly or violent, it will see striking workers lose their power to strike. However, these amendments will only be effective where there is respect for the law and its institutions. In the absence of these ingredients and a proper recognition that these are indeed essential ingredients, the proposed amendments will have little practical effect.
• Mahomed is head of employment law at Routledge Modise.