Strike and strife

Workers expressing their displeasure: South Africa is no stranger to strike action, but history has shown that there is a dark, destructive side to this practice, which South Africa has been experiencing for the past few years. GAVIN MYERS asks if we are managing the scourge correctly.

“Sixty-one Xhosa-speaking workers, under the leadership of their headman, known as One O’clock, went on strike at the Brakpan Electric Works. The workers marched to Boksburg, where they demanded to air their grievances before the magistrate. The workers complained about their poor living conditions in compounds and the harsh conditions under which they had to work.”

Sound familiar? It’s an extract taken from Essays in Southern Labour History. This particular strike action took place in September 1902. While the basis for strike action hasn’t changed too much in 112 years, at least the rights of the workers have …

The right for South African workers to strike (as well as the employers’ rights in such circumstances) is clearly defined in the Labour Relations Act (LRA), no 66 of 1995, as amended. Jan du Toit, of the South African Labour Guide, paints a rather bleak picture of current industrial action trends: “Traditionally, in the recent past, employers referred to a certain time of the year as the ‘strike season’ during which strikes peaked. Since August 2012, however, this drastically changed and protests against poor service delivery or low wages seem to be the order of the day.”

In a review of the 2012 strike season, Du Toit notes that, at the time, the impact of industrial action in the mining sector cost the economy R400 million a day and that, across all economic sectors, 57,5 percent of the total workers involved in labour unrest during that year were from the mining sector.

Top spot for working days lost was also held by the mining sector (82,4 percent), followed by the manufacturing (5,7 percent), community (4,1 percent) and agricultural (3,7 percent) sectors.

In total, the country’s total working days lost in 2012 were estimated at 3 309 884. The monetary impact totalled about R6,6 billion … Somewhat expectedly, Du Toit notes that wages, bonuses and other compensation are the main reasons for work stoppages in South Africa, accounting for 81,5 percent.

It’s also apparent that around half of the strikes in South Africa are unprotected, and thus illegal – they do not comply with the requirements of the LRA. This is opposed to protected strike action, which does not constitute a breach of their employment contracts, and therefore, prevents employees from being dismissed because of their participation in the strike.

Protected or not, Du Toit asks whether we can afford further prolonged industrial action in South Africa. “Trade Unions will argue that employees have a constitutional right to participate in protected industrial action, whilst employers and economists will warn about the dire consequences,” he says.

So what should South African business, labour and government organisations be aiming for to curb the impact of strikes on our increasingly fragile economy (and for the employees, who lost about R6,7 billion in wages during the 2012 review year)?

The Department of Labour says that the South African Government should develop an appropriate response, and it is expected that the Judicial Commission of Inquiry into the Marikana tragedy will provide some perspective on how to overcome an environment that is conducive to the creation of tension, disunity among employees and labour unrest.

“In addition,” says Du Toit, “the National Development Plan (NDP) recommended that the Centre for Conciliation, Mediation and Arbitration (CCMA) and the Labour Court be strengthened in dispute resolution and should support trade unions and employers in managing shop-floor relations.”

It has also been suggested, over the years, that the right to strike be limited. The Labour Relations Amendment Bill 2012 proposed that trade unions conduct a strike ballot among members, as a fourth procedural requirement, to verify that the members themselves are in support of the strike.

An amendment to section 65(1)(c) of the LRA seeks to address the increasing levels of unprotected (and violent) strikes by further prohibiting the circumstances under which employees may strike, by further limiting the right to strike or lock-out, in circumstances where the issue in dispute could be referred to arbitration or the Labour Court, thus making it unprotected.

Naturally, there has been resistance to this amendment. But Aadil Patel, director and national practice head, and Katlego Letlonkane, candidate attorney, Employment, at Cliffe Dekker Hofmeyr, question if – accounting for the often violent nature of strikes and the intimidation of non-striking workers – these limitations are unreasonable.

“Furthermore, the proposed amendment will have the effect of decreasing the number of unprotected strikes and forcing employees and trade unions to establish a proper purpose for the strike, and to execute the strike as the last possible resort to resolving a dispute,” they add.

In the most recent attempt to calm the violent nature of many strikers, the Democratic Alliance (DA) has announced that it intends to submit a Private Member’s Bill that will seek to create legislation requiring unions to comply with a list of practical measures aimed at limiting or preventing violence before it occurs.

“A balance must be struck between workers’ rights and the rule of law,” says the party. “The wanton destruction of private property, intimidation of business owners, fellow workers and members of the public, must be condemned in the strongest possible terms.”

This will entail educating workers, the provision of marshals, riot and crowd-control training for the South African Police as well as empowering the courts to stop excessively violent strikes, declare them unprotected and award damages against unions that do not comply.

“They complained about beatings that they received at the hands of the resident engineer, who regularly sjambokked workers,” continues the extract about One O’clock and his 61 followers. “The magistrate responded by accusing the workers of falsely accusing their employers of ill-treatment in order to get a discharge and find employment elsewhere. They were sentenced to one month’s imprisonment with hard labour for falsely accusing their employer and engaging in strike action …”

Measures used to deal with strike action needn’t be as harsh as they were a century ago, but, it would seem, at the rate negotiations break down and the impact of strike action on all parties involved (and the country at large), whatever measures can be taken to avert the onset of a strike should be a serious priority.