A labour law battle looms

Posted on June 10, 2018

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First published in City Press (Sunday, June 10)

A curate’s egg. That is the best way to describe the amendments to the South African labour laws now passed by the National Assembly.

The modern version of this expression means that while it is good in parts, overall, it is unpalatable. The one major good part, rightly hailed last week by Cosatu, is paternity leave that also includes adoptive parents.

But this scarcely compensates for the overall thrust of the changes that will probably come into force by next year. Because the changes undermine the sole weapon workers have in their battle for improved wages and conditions: the strike.

Possibly emboldened by the rapid advance of automation and the growing number of desperate unemployed workers, business has seized the opportunity to try to bring labour under a social compact umbrella. This is seen as essential in the face of the ongoing global economic crisis.

Industrial disputes are seen by business and by government, itself the largest employer in the land, as an impediment to economic growth and stability. This is the logic of a mad, and competition powered, profit motive merry-go-round. It is now spinning out of control, spewing surplus production while destroying livelihoods and the environment.

But workers have the constitutional right to strike that is also upheld by International Labour Organisation conventions. So strikes cannot be banned. Workers cannot be sacked or otherwise victimised for going on a legally protected strike.

And herein lies the catch: there are provisions that have to be met before legal protection is granted. Legislation, passed by government, can therefore make it easier or harder for workers to exercise their right to withhold labour.

There also exists a myth, apparently widespread in business and government, that workers impulsively go on strike, often for no good reason. But strikes are almost invariably an action of last resort because, while business is affected, workers usually suffer much more through loss of wages.

But the withholding of labour can be a very powerful instrument. As has been pointed out, if every worker, everywhere, suddenly stopped work, the world as we know it, would stop. But, if every company director spent a whole day — or even a week — playing golf, the only problem might be congestion on the golf courses.

This point highlights the fact that the interests of bosses and workers are not the same and never can be. Yet, perhaps in desperation triggered by the economic crisis, government and business persist in trying to foster the myth that employers and employees share common goals and interests. This is the rationale for the “social compact”.

The same “we are all in the same boat” argument was made in Britain 40 years ago and failed dismally, as it has wherever else it has been tried. The lesson should have been learned: there are only three ways within our economic system that government can deal with trade unions: either crush them by banning and so on, incorporate them as conveyor belts for the ruling party, or accept the reality of having to manage inevitable tension, hopefully as fairly as possible.

It has been argued with considerable justification that the present government has always tended to favour the employer position. This even dates back to the introduction in 1995 of the LRA. It incorporates a clause allowing for “replacement labour” when workers are on strike. This was the unpalatable “scab charter” part of generally sound and sensible legislation.

Now, along with the latest proposals, some unions have rediscovered the existence of the “scab” clause. It will doubtless become part of what promises to be a bitter labour law battle.