Freedom Denied for South African Workers
Freedom Denied for South African Workers

Freedom Denied for South African Workers

June 1 st 1997

Is South Africa's new Labour Relations Act a blueprint for a future socialistic society? Previously, we published a two-part series on the economic and industrial relations scene in South Africa which was fairly positive in its outlook. But Johann P. van Niekerk offers an alternative, critical view. His criticism deals specifically with the denial of freedom and the squeezing of the "little guy" by the ANC and the powerful Congress of South African Trade Unions. Van Niekerk echoes our own situation in Canada where compulsory unionism is all too common. Recently, the New Democratic government of B.C. introduced legislation—withdrawn for now after widespread public protest—that would have given unions even more control over jobs in that province's construction industry.

The future of South Africa (and perhaps all of southern Africa) depends to a significant degree on the manner in which its labour market is managed by the new Government of National Unity.The debilitating shackles of apartheid having been thrown off; the exhilarating potential changes to bring about the far-reaching development of a truly free, and in situ, a vibrantly boundless economy appear to be quite awesome.

Regarding labour law itself in South Africa, we now have the new Labour Relations Act, 1995 (LRA), a proposed new Minimum Condition of Employment Act (MCEA), and an official Green Paper dealing with various aspects pertaining to affirmative action. But in order to begin to understand the labour set-up in South Africa, one must first and foremost identify the major players and their respective roles.

Uneasy alliance

South Africa is governed, for practical purposes, not only by the African National Congress (ANC), the biggest political party, but by an alliance that also includes the South African Communist Party (SACP) and the Congress of South African Trade Unions (COSATU).

The SACP, for the moment, has conveniently kept a low profile. They are well entrenched in the upper echelons of the ANC and things are going very much their way. They are disproportionately represented in the cabinet and in Parliament, and claim that they have recently increased their membership among members of Parliament from 30 to 50. It is well known that they, almost on their own, still closely support the old-fashioned brand of Moscow communism.

COSATU, on the other hand, is not a political party but nonetheless supplies heavy and invaluable election support to the ANC. Their leadership is militantly socialist, and they constitute by far the biggest federation of labour unions in the country. They claim a national membership of 43 per cent of all employees. Although they have no representatives in Parliament, they regularly meet with the ANC and the SACP to debate and decide matters of policy.

Forced membership

COSATU'S power and influence cannot be overestimated. They have, for example, succeeded by sheer force to keep the employers' right to lockout from the National Constitution while retaining the employees' right to strike. Vehement objections by organized business was of no avail. COSATU similarly succeeded in putting a closed shop clause in the LRA, despite strongly-worded advice that the inclusion of such a clause would be unconstitutional, which it clearly is.

The quintessence of the philosophy underlying the new LRA is to be found in the simple proposition that the very basic personal rights and liberties of the individual are negated by design—as if such values never existed. It unabashedly espouses all the damaging aspects of a system of "majoritarianism." But there is much worse to come.

The new LRA provides for the institution of the closed shop, a situation where the very existence of the employees'job is dependent on their forced membership of the "majority" union. Basic personal liberties such as freedom of association, the freedom to contract, and so forth, are simply and effortlessly wiped off the slate.

If one further considers that it is the mighty COSATU's publicly declared aim to ensure that there will be only one union per industry (a COSATU affiliate no doubt), then the whole thing clearly assumes alarming proportions.

It is clear that the lawmakers knowingly intended to destroy the influence of the small union (if not its very existence) as well as that of the individual. Nothing could be more plain. Insofar as small business is concerned, the approach is the same. The all-powerful monolithic unions simply impose their collectivistic will on the small business community inter alia by means of the machinery created by the Bargaining Councils.

Squeezing the "little guy"

It is, moreover, an unfortunate fact that on many occasions big business has turned a blind eye and a deaf ear toward the very real needs and hardships of the small business man. It is a cold, hard world out there for small business, and the truism that a viable economy cannot survive without vibrant small business support is too often and too easily forgotten.

Small business and the individual is in practice denied the "luxury" of having legal representation in the vast majority of issues (the every day dismissal, for example) in the new "judicial" system. The small union, it is planned, shall and will in any event not even be there in the first place.

The new LRA pays lip service to the interests of small business. In truth, it appears to be calculated only to do harm. Small wonder that the LRA is generally abhorred by small business throughout the country. There is every indication that the LRA is nothing more than a blueprint for a future socialistic society.

The various suggestions in the "Explanatory Memorandum" (a supplement to the LRA) to the effect that the LRA has rendered the nature of the employer/employee relationship less adversarial has little validity. The new "judicial" procedures are in nature largely the same, the main difference being that thousands of piffling little disputes have been injected into the system, which in the end are proudly presented as matters having been settled.

COSATU has in fact issued a public plea to its members and others to desist from this practice because it is literally choking up the system. The fact that joint decision making (in part disguised as "consultation") is enforced as stipulated in the LRA simply amounts to a judicial emasculation of the employer in the exercise of some of his basic and fundamental management functions.

It speaks for itself that it is highly desirable to achieve a situation in the workplace where employer and employee look upon one another as partners striving towards a common goal, namely, the well-being of the business. It similarly follows that it would be only right and proper that employees have some say in all this, but this can and should never lead to such an insupportable state of affairs as the LRA provides for. Labour and management each have basic rights and freedoms; when seen in unbiased philosophical context, these appear to be complementary to each other in nature, not mutually destructive.

Contradictory policies

A further deeply disturbing aspect is the advent of the proposed Minimum Condition of Employment Act, the second in a portfolio of statutes that Labour Minister Tito Mboweni ("on the left in the ANC where they are soft on unions; hard on the unemployed," according to the Financial Mail) means to leave behind as his personal legacy to society. This act seeks to regulate a host of more-or-less socio-labour related issues (much similar to the "Social Chapter" of the Maastricht Convention and equally deserving of John Major's comment that "this is the sort of thing that brought Britain to its knees in the seventies").

MCEA comes on the heels of the Growth, Empowerment, and Redistribution program (GEAR), designed to allay the fears of overseas investors and foreign governments regarding the stability and prospects of the South African economy. Since the introduction of GEAR, the government has on the one hand, with much publicity, embraced GEAR without any qualification, while on the other hand doing quite little about it.

According to official statistics, notorious for its substantial understatement of the unpalatable, 71,000 jobs were lost last year. This is with more than 1,000 people joining the search for work in the formal economy every day. Moreover, it is authoritatively stated that more than 30 per cent of jobs were lost in the agricultural sector since the advent of the new labour dispensation. Besides, informed sources estimate that the current overall employment figures are in excess of 45 per cent.

The cornerstone of GEAR is the establishment of a more flexible labour market, thereby creating employment as well as economic growth. Everybody was delighted with the program except COSATU and its supporters, who solemnly swore not to have anything to do with GEAR in any conceivable way. In some strange manner, deregulation of the labour market is perceived by COSATU not only to have the opposite effect to what is claimed, but on top of it to sabotage the existing rights of workers and trade unions.

MCEA has already been approved by the cabinet. Some of Mboweni's fellow cabinet ministers are reputed to have said that it will "break the budget" since the state will clearly not be able to afford the increased cost of wages and benefits expected in the public sector. Mboweni disagrees on the peculiar basis that the state will be able to negotiate with its employees to forego the additional benefits.

In approving MCEA, the cabinet has already conceded to many COSATU demands. And they have conceded to such an extent that the business community, to the last man, claims this statute will destroy the introduction of GEAR and spell the end of job creation and economic growth. In this, they have the support of just about every economist of note. Even the most august and austere Reserve Bank broke its customary silence when Governor Chris Stals criticized the bevy of labour legislation and unequivocally lashed out at the inflexible labour position as being a main barrier to job creation.

Ongoing power struggle

COSATU, however, wants even more concessions from the government. They engaged in a completely sterile, but most damaging, one day nation-wide strike, which was not even meant to achieve anything, except to flex their muscles to the rank and file. COSATU has further decided to ignore the legally-prescribed avenues for consultation with a view to resolution by agreement.

Instead, COSATU has, at the time of this writing, "officially declared war" on business at large, to the horror of responsible society. They will now await the introduction of the MCEA bill in Parliament by the ANC, confident that they will be victorious with their envisaged amendments no matter what the official ANC line is.

The other side of their strategy will be the "war," and that will mean country-wide industrial action calculated to cause as much hurt and damage as possible. The position of the ANC clearly becomes intolerable as it will be taking the chance of suffering incalculable political harm if it loses the parliamentary vote against COSATU. The position of COSATU will be somewhat better, but they also stand to lose face heavily.

A COSATU-versus-ANC showdown has been looming on the horizon for a long time. The government has on many occasions been called upon to accept that the time has inexorably come to stare down COSATU for the sake of the economy and the country.

In this instance, time will tell. But Tito Mboweni is already on record as saying that there is nothing in this dispute that cannot be negotiated. However, it would appear that this time there might not be any escape. If the ANC does not produce, the result will surely be an accumulation of irreparable harm to all.

Johann P. van Niekerk
Johann P. van Niekerk

Johann P. van Niekerk is a South African lawyer who served as Head of the Cape Industrial Court. He is currently Executive Director of the Small Business Employers' Organization.


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