The Legislative Framework of CollectiveBargaining in South Africa

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The Legislative Framework of Collective Bargaining in South Africa

Alternative title Notes and Documents - United Nations Centre AgainstApartheidNo. 8/78

Author/Creator United Nations Centre against Apartheid; Bloch, Jonathan

Publisher United Nations, New York

Date 1978-05-00

Resource type Reports

Language English

Subject

Coverage (spatial) South Africa

Coverage (temporal) 1950 - 1978

Source Northwestern University Libraries

Description A. Introduction: 1. The setting. 2. Trade unions: legislation.3. The right to strike. 4. Other forms of wage regulation. 5.South Africa's labour legislation and ILO. 6. Summary.Tables. B. Strikes and lock-outs: 1. General. 2. Absoluteprohibition. 3. Qualified prohibition. 4. Other provisions. 5.African workers. 6. Security legislation. (a) The RiotousAssemblies Act No. 17 of 1956. (b) The InternationalSecurity Act No. 44 of 1950. (c) The General LawAmendment Act No. 76 of 1962 (The Sabotage Act). (d) TheTerrorism Act No. 83 of 1967. C. Conclusion.

Format extent(length/size)

29 page(s)

http://www.aluka.org/action/showMetadata?doi=10.5555/AL.SFF.DOCUMENT.nuun1978_08

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NOTES AND DOCUMENTS*

NOTES AND DOCUMENTS*THE LEGISLATIVE FRAMEWORKOF COLLECTIVE BARGAININGIN SOUTH AFRICAbyJONATHAN BLOCUMay 1978LNote: This paper contains excerpts from an essay submitted by Mr.Bloch inpartial fulfilment of the requirements for the degree of LL.M of the University ofLondon.The views expressed in this paper are those of the author-7* All material in these notes and documents may be freely reprinted. 78-11759Acknowledgement, together with a copy of the publication containing the reprint,would be appreciated.No. 8/78

CONTENTSA. Introduction ..............1. The setting .............2. Trade unions: legislation ........3. The right to strike .........4. Other forms of wage regulation-. . . .5. South Africa's labour legislation and 6. Sumuary ...............Tables . . . . . . . . . . . . . .B. Strikes and lock-outs . .1. General .......2. Absolute prohibition 3. Qualified prohibition 4. Other provisions . ..5. African workers . . .6. Security legislation .(a) The Riotous Assemblies Act No. 17 of 1956 *(b) The International Security Act No. 44of 1950 . . . . . . . . . . . . . .(c) The General Law Amendment Act No. 76of 1962 (The Sabotage Act).....(d) The Terrorism Act No. 83 of 1967C. Conclusion . . .. . . . . .. . .. . ... . ..* i 1 1* 2* 4

.6

.8* 10* 12ILO

-1-A. Introduction1. The settingOriginally South Africa's economy was based on agriculture but with thediscovering of diamonds and gold it acquired a mining basis. Subsequentlymanufacturing, i.e., the secondary industries, began to play an ever-increasingrole in the economy. LSee Table 1 for changes in sectoral shares ofthe grossdomestic product.7 South Africa today is an advanced capitalist State.With industrialization and the broadening of the economic basis a heterogenousworking class. 1/ was forced into being, 2/ the latter a necessary element for anysystem of collective bargaining. The legislation which existed at theturn of thecentury in the various colonies, namely, the Master and ServantsActs which wereapplied mainly to nonwhites 3/ in agriculture and domestic service, could notcope with this phenomenon as it lacked the machinery to resolve the inherentconflicts between capital and labour.Strikes by white workers mainly on the Mines in 1907, 1913 and1922 and its effect or possible effect on African workers 4/ led to the proposing /or enactment 6/ of legislation which sought for the first time to establish aframework for collective bargaining albeit only for whites, Coloureds and Indians.The use of race as a functional tool in the hands of both employers (todivide theworking class and to increase profits) and white workers (to obtain and maintainmaterial privileges, status, etc.) has resulted in discriminatory labourlegislationbeing enacted and differential access to the negotiating table beingaccorded, if atall to African workers.I/ See table 2 for population by racial group 1974; table 3 for numbers ofemployees in different sectors by racial group 1970.2/ Poll taxes were imposed and land laws were passed depriving peasants oftheir lands thus forcing them to become workers in order to be able to pay theformer./ Where the term "non-white" is used it should be read as including Africans,Coloureds and Indians._/ It was feared that the African workers would follow theirfellow white workers and take industrial action. This in fact happened on severaloccasions./ The Industrial Disputes and Trade Union Bill of 1914, which passedthroughthe House of Assembly but was withdrawn in the Senate.6/ Transvaal Industrial Disputes Prevention Act of 1909; Industrial ConciliationAct No. 11 of 1924.

-2-The foundations of early South African trade unionism wereBritish in origin. In Britain unskilled workers were not included in trade unionsuntil the London Strike of 1899. The roots of SouthAfrican tradeunionism weretherefore manifested in the pre1899 British system which aimed at thecontrol andmaintenance of the position of skilled workers who tried to advance andprotecttheir position in a capitalist society. The unskilled workers, the vast majority ofwhom just happened to be Africans, were excluded from membership of skilled(white) unions. However, trade unionism in South Africa acquired animplicitracial basis when Chinese workers were introduced into the gold mining industryduring 1904-1909 and were prohibited, as a result of the pressure of white minerswho united to protect their positions as skilled workers, from doing skilled work(thus excluding them from membership) of the trade unions.2. Trade unions: legislationIt was not without a battle that white workers had legal recognition accorded totheir unions, 7/ the latter being yet another element for a system of collectivebargaining to exist. Although the Transvaal Industrial Disputes Prevention Act1909 made some concession to the right of employees to apply for conciliationthrough a trade union, it was only in 1924 8_/ that they were accordedlegislativeprotection. However, this recognition has not as yet been accorded to Africanunions which, although not illegal, remain unrecognized and harassed. 9/_/ The Webbs defined trade unions as "a continuous association of wage earnersfor the purpose of maintaining and improving the condition of their workinglives" (quoted in K.W. Wedderburn, The Worker and the Law, Penguin 1965) p.295. The Industrial Conciliation Act No. 28 of 1956 defines a trade union as "anynumber of employees in any particular undertaking, industry, trade or occupationassociated together primarily for the purpose of regulating relations in thatundertaking, industry, trade or occupation between themselves or some of themand their employers or some of their employers" (section 1).8/ Industrial Conciliation Act No. 11 of 1924.2/ See Financial Mail, January - November 1976, for incidents of harassments,e.g., action taken by the Minister of Justice under the provisions of the InternalSecurity Act No. 44 of 1950 against 13 trade union organizers of African unionsprecluding them, inter alia, from participating in trade union matters;FinancialMail, 19 November 1976, p. 707: "all the unionists were involved solely inattempts to give African workers an opportunity to express their demandspeacefully and legitimately." Approximately 200 union organizers and officialshave been "banned" and prohibited from taking part in union activities, since theSuppression of Communism Act (now the Internal Security Act) was passed in1950, (United Nations 0PI/404 Infringement of Trade Union Rights inSouthernAfrica, 1970, p. 52-54 and author's own calculations).

-3-South Africa has a highly developed legal system. The Industrial ConciliationAct, now Act 28 of 1956, which set up Industrial Council consisting of employersand employees, allows only "employees" as defined in Section 1 to form such

unions as can be registered and thereby be entitled to participate in theworkingsof Industrial Councils. Africans are excluded from the definition of employees. Inseveral cases, the registered trade union movement more or less arbitrarilyrepresents African workers in different negotiations. At times they acquireknowledge of the views of theAfrican workers concerned but as a rule large groups of Africans workers havetheir conditions fixed without being part of the process in any way.The ultimate effect of the non-recognition and harassment of African unions isthat the overall trade union participation rates are extremely low.In 1968 only 7.7per cent of the total labour force were members of trade unions as compared with39 per cent in Great Britain for the same period. 1_J On a racial basis, whites havethe highest percentage namely 30.3 while in 1968 only .3 per cent ofeconomically active Africans were organized in unions. 11/ The Government hasprovided a factory committee system which Africans may use but which providesthem with few if any meaningful rights of collective bargaining.A wave of African industrial militancy in 1973 led to the enactment of the BantuLabour Relations Regulation Act No. 70 of 1973, which, inter alia, provided forthe maintenance and extension of the committee system first introduced in1953.Its aim was to fragment worker organization by factory but it was not whollysuccessful and in 1976 the Government proposed an amendment bill which wouldhave further extended the committee system and provided for industrialcommittees, clearly intending the latter to be counterposed to trade unions. 1/ Itmust be remember that12/ W. Thomas, "Labour perspectives in South Africa", Proceedings of aworkshop on organized labour in South African society; Cape Town, 1974, p.238. On 31 December 1972 there were 88 whites-only registeredtrade unions (368,236 members), 48 Coloured and Asian-only registered tradeunions (71,613 members), 42 mixed (i.e., whites, Coloureds and Asians)registered trade unions (52,781 white and 133,225 Colouredmembers). See also House of Assembly Debates' 1973, question,col. 621.i/ This figure is probably still valid as the African unions have lost ahugepercentage of their members due to unemployment.L/ This bill was withdrawn from the Order Paper due to pressureof parliamentary time; it was reintroduced in 1977 in amended form,unfortunately too late for inclusion in this essay.

- 4the original Act, The Native Settlement of Disputes Act No. 48 of 1953was toparaphrase the Minister of Labour" s words "introduced to bleed the Native(African) unions to death". All subsequent amendments and proposedamendments have kept this as their prime goal, despite countless Governmentreports recommending that legal recognition, albeit in some caseslimitedrecognition, be accorded to African unions. JThe freedom to organize which has been described by Otte Kahn Freund as "theconditio sine qua non of industrial relations in all except totalitarian societies" i4/has also been severely limited in respect of white, Coloured and Indian

employees. Legally, it is impossible (presuming, of course, thatthere is the will)for them to combine with Africans in legally recognized trade unions. Theadvantages of registration are manifold; only registered unions can sit onindustrial councils and statutory force might and is usually given to agreementsooncluded under their auspices. /Even the ability to combine among themselves(i.e. whites, Coloureds and Indians) has been circumscribed andno more mixedunions can be registered and existing mixed unions have had to segregate andwhere this has been impossible because there are either too few whites or too fewColoureds and Indian members, various restrictions are placed on the unionswhich prevent them operating democratically, for example, it is laiddown that theexecutive committee of a mixed union is to consist only of whites. i2/3. The right to strikeThe right to strike, which Lord Wright described as "an essential element in theprinciple of collective bargaining", 16/ is severely circumscribed and in somecases totally prohibited i/. Lengthy cool-off periods are stipulated and retaliatorymeasures, such as the13/ (a) Addendum by E.A. Lucas to the report of the NativeEconomic Commission 1930-1932 (UG 22/1932); (b) Inter-DepartmentalCommittee on the Local Health and Economic Conditions of Urban Natives 1-42-1943; (c) The Witwatersrand Mine Native Wages Commission (UG 21/1944); (d)the Industrial Legislation Commission (UG 62/1951).LJ Otte Kahn-Freund, Labour and The Law, (London, Stevens andSons,1972) p. 166.15 8(3)(a) of the Industrial Conciliation Act No. 28 of 1956.L/ Crofter Harris Tweed vS. Veithh L1914? AG 435 - 463.17/ S6 of Act 28 of 1956 and S18 of Act 48 of 1953.

-5-non-payment of unemployment insurance fund, 18/ may be taken,even in caseswhere the strike is legal. Successive Governments have paid particular attention to"the need to maintain industrial peace". D_ This has usually been done at theoost of severely limiting the right to strike either by means of Labour legislationor more commonly by means of the all-embracing security legislation which hasplaced South Africa, according to one legal commentator, in "a state of permanentemergency". Africans were prohibited from striking in all circumstances until1973 when the Bantu Labour Relations Regulations Amendment Act accordedthem the same limited right to strike as that enjoyed by workers of otherracialgroups. 20/White workers have hardly engaged in any sustained industrial militancy for thelast 30 years. 21/ This may be partly due to the efficacy of the IndustrialConciliation Act in promoting industrial peace but more importantly it is due tothe fact that the governing party respects large sectors of white workers and hasgiven recognition to their demands and, where necessary, has intervened in thelabour market to promote and maintain white workers' interests.On the otherhand, Africans and to a lesser extent Indians and Coloureds haveincreasingly

become more militant and in recent years have repeatedly gone onstrike forhigher wages, recognition of unions, etc.i/ S41(f) of Act 30 of 1966. While it could be argued that "strikers" aretheoretically still employed, the author feels that in the light of the workersdesperate economic conditions the non-payment of these funds amounts to aretaliatory effect.DJ Minister of Labour in House of Assembly Debates, 1972, column 6647.0/ S18 of Act 48 of 1953.Li/ During the period 1965-1975 in no single year were more than 3,000 whiteson strike and the percentage of the white trade union members involved in strikesnever exceeded one per cent. Prof. P. J. van der Morwe, "Manpower Policy" inSouth Africa Finance and Trade, vol. X, No. 2 and 3 December, 1972/June 1973Tables 5 and 6-pp. 88-9.

-6-While in the period 1965-1971 never more than 5,000 Africans were onstrikeduring any particular year, in 1973 and 19T4 there were 98,029 and58,975,respectively, Africans on strike.4. Other forms of wage regulationLarge sectors of the labour force are totally excluded from any system ofcollective bargaining* There are nolegislative provisions affecting agricultural workers or domestic servants. Africanmineworkers are not at present accorded any rights of negotiation, although forwhat it is worth, the State President has the power to extend to them theprovisions of the Bantu Labour Relations Regulation Act No. 48 of 1953. L/ Theprovisions of many of the labour laws have been suspended in the reserves inrespect of Africans in order to encourage investment there L/ andexemptionsfrom agreements and determinations have been made in favour of industries in theborder areas (i.e., those areas in which decentralization is encouraged usually forideological reasons).Provision is made by means of the Wage Act No. 5 of 1957 forthe laying down of minimum wages and minimum standards of conditions ofwork for those sectors of the economy other than those excluded bySection 2 ofthe Act, in which either the employers or employees or both are not organized ornot sufficiently organized to engage in collective bargaining. The Wage Act wasfirst introduced in 1918 as the Regulation of Wages, Apprentices andImproversAct No. 29 of 1918 which applied only to the employment of women and youngerpersons in certain specified trades and occupations. In 1925 itsscope wassubstantially broadened. For 33 years the Act granted workers the right to requestthe Wage Boards, a government-appointed body, to investigate their wages andconditions and began increasingly to apply to African workers whomade use ofthis right and in 1957 it was abolished, the Wage Board being confinedtoinvestigations ordered by the Minister of Labour.For years African unions, although not recognized, wereaccorded the right by the Chairman of the Wage Board to make representations asto wage levels, poverty, etc., this being in his-discretion. Recently this right has

been withdrawn leaving African workers at the mercy of Government-appointedspokesman for their interests and?J2 S2(3) of Act 48 of 1953.?J Proclamations 84 of 1970, 71 of 1971 and 94 of 1972.

-7-registered trade unions. L/ The Industrial Conciliation Act No. 28 of1956 alsomakes provision for the establishment of Conciliation Boards to consider and, ifpossible, settle disputes which arise where there are no industrial councils. It is anad hoc body which is appointed by the Minister of Labour for the specificpurposeof settling a dispute and is comprised of an independent chairman and an equalnumber of employers and "employee" representatives.There are three major statutes 25/ within the field which Otte KahnFreund calls"regulatory legislation", i.e., legislation directly laying down rules ofemployment. They seek to regulate conditions in those industries where there isno collective bargaining by laying down minimum standards as regards health,safety, overtime, public holidays, etc. These provisions also provide a base abovewhich any collective bargaining takes place. 26/ There are several otherlegislative measures which impinge on the question of collective bargaining eitherby denying it or modifying it. Employment in the public service, which is one ofthe largest employers in the country, is regulated by Public ServiceAct No. 54 of1957. 2L/ Separate Acts govern employment in the Post Office 28/ and theRailway and Harbours Administration.24/ House of Assembly Debates, 1976, column, 9143.?/ (a) Shops and Offices Act No. 75 of 1964; (b) Factories, Machinery andBuilding Works Act No. 22 of 1941; (c) Mines and Works Act No. 27 of1956.26/ "The maxima and minima prescribed by the Factories Act on suchmatters ashours of work, overtime, sick leave, holidays, etc., have becomevirtually nationalstandards (excluding agriculture, domestic service and mining -JB). This isbecause other determinations, agreements and orders are notallowed to be putinto force unless they prescribe conditions which are not less favourable to theemployees than the provisions of these statutes." H.G. Ringress, TheLaw andPractice of Employment, Cape Town, Jute, 1976, p. 14.L7 The Central Government alone employed 295,927 employees inDecember 1976 (House of Assembly Debate, 1977, question, column, 217/8).J Post Office Service Act No. 66 of 1974 and Railway and Harbour Service ActNo. 22 of 1960.

-8-The training of African building workers is governed by the provisions of theBantu Building Workers Act No. 27 of 1951 which also contains provisionsrelating to the regulation of conditions of employment. The training ofapprenticesand adult artisans is governed by the provisions of the Apprenticeship Act No. 31of 1944 and the Training of Artisans Act No. 38 of 1951, respectively, which bothcnntain provisions relating to the regulation of conditions of employment.A large number of African workers particularly on the mines

came from neighbouring States. 2/ South Africa had concluded treaties with thePortuguese Government with respect to workers from Mozambique30/ and withMalawi. These agreements regulated the recruitment of workers butdid not laydown any wage rates or provide machinery to regulate same. The South AfricanGovernment had also concluded a "treaty" with what it (the only Government inthe world) regards as the independent State of the Transkei.5. South Africa's labour legislation and the International Labour OrganisationSouth African labour legislation, particularly its system ofcollective bargaining, has attracted international attention and concern. SouthAfrica was a member of the International Labour Organisation (ILO) from 1919,the year of its foundation, until 11 March 1966. With the adoption of theDeclaration of Philadelphia in 1944, the constitution of the ILO acquired a newemphasis. Article II (a) stated "all human beings, irrespective ofrace, creed orsex, have the rights to pursue both their material well-being and their spiritualdevelopment in conditions of freedom and dignity, of economic security andequal opportunity". j/ As Alex Hepple, an ex-South Africann Member ofParliament, commented, "This struck at the entire labour system inSouth Africawhich constituted a complete denial of the principle". 1.29/ In February 1977 there were 382,848 foreign Africans (according tobirthplace) in South Africa (House of Assembly Debates, 1977, question, column259/60).j0/ This treaty is still adhered to by the People's Republic of Mozambique./ Quoted in Brownlie (first edition), Basic Documents on Human Rights, (Oxford,Clarendon Press, 1971), pp.259-260./ A. Hepple, South Africa Workers under Apartheid,(London, InternationalDefence and Aid Fund, 1971), p. 77.

-9-In 1948 when the ILO considered a draft convention on freedom of association,the South African delegation tried to get support for an amendmentwhich wouldhave sanctioned discrimination against Africans in any guaranteeof freedom ofassociation and labour organization. When their attempt failed theSouth Africansrefused to vote for the draft convention.After many years of fierce attacks on South Africa's racist laws, the South AfricanGovernment announced its withdrawal from the ILO. On 8 July 1964, theInternational Labour Conference unanimously adopted a Declaration Concerningthe Policy of Apartheid of the Republic of South Africa. On the same day theconference unanimously approved recommendations made by the GoverningBody in its ILO Programme for the Elimination of Apartheid in Labour Matters inthe Republic of South Africa.The Declaration, while reaffirming the ILO's "condemnation of the Governmentof South Africa" called upon South Africa to, inter alia, "repeal, without delay,the statutory discrimination on grounds of race in respect of the rightto organizeand to bargain collectively, and the statutory prohibitions and restrictions uponmixed trade unions including persons of more than one race, and so toamend the

Industrial Conciliation Act that all workers, without discrimination ofrace, enjoythe right to organize and may participate in collective bargaining".3/An Ad Hoc Working Group of Experts, which had been established by the UnitedNations Commission on Human Rights after considering the question offreedomof association in South Africa, stated that although South Africa has either failedto accede to 14/ or withdraw from the international conventions relating to tradeunion rights, there is no question that the rules laid down in these Conventionsand other international instruments are so general in nature that no State can,without rejecting the common heritage of civilized nations, contend that they arenot relevant to its attitude with regard to trade union rights.13 A. Hepple, ibid., p. 79.J South Africa has ratified neither the Freedom of Association and Protection ofthe Right to Organize Convention, 1948, nor the Right to Organize andCollectiveBargaining Convention, 1949.

- 10 -6. SumaryThe effect of the almost monopolization of skilled jobs by whites, theforcedlabour system brought about indirectly by various laws, 2/ massiveunemployment of unskilled workers 136/ and the denial of effective collectivebargaining rights to Africans has led to huge wage differentials as can be seenfromTable 4. It should be noted that the wage gap has widened since 1970. Almost allAfricans earn wages below the Poverty Datum Line which is regarded as theminimum subsistence level. In 1975 a countrywide survey showed that 63.5 percent of African households had less than R80 per month on which to live; 25.4 percent between R8O-R149, and only 11.1 per cent more than R150. 2/ As can beD/ "Industry and agriculture in the Union (now Republic) depend to alarge extenton the existence of (the) indigenous labour force whose members are obliged tolive under the strict supervision and control of the State authorities. The ultimateconsequences of the system is to compel the Native population to contribute bytheir labour to the implementation of the economic policies of the country but thecompulsory and involuntary nature of the contribution results from the particularstatus and situation created by special legislation applicable to the indigenousinhabitants alone, rather than from direct coercive measures designed to compelthem to work, although such measures which are the inevitable consequence ofthis status were also found to exist." (ILO Ad Hoc Committee on Forced Labour,1953 quoted in United Nations, OPI/335, Apartheid and Racial Discrimination inSouthern Africa, 1968), p. 22.6/ One economist (subsequntly banned) has estimated that in 1976 there was anunemployment rate of 20.5 per cent with2.1 million of all races unemployed, the vast majority of whomare African and unskilled. See C. Simkins, Employment, Unemployment andGrowth in South Africa, 1961-1979, Cape Town, Saldru), p. 19.3/ Financial Mail, 19 November 1976, p. 714.

- 11 -seen from the Table, average white salaries in 1970 were much abovethis figure.The International Labour Office, Geneva, succinctly summed up the situation:"the distribution of income in South Africa is highly unequal. There is probablyno other country in the world where it is quite so unequal. It is a distinctly unusualcase. Africans constitute 68 per cent of the population and receiveless than 20 percent of all income. Whites account for less than 19 per cent of the population andreceive 74 per cent of the total income." 38/3§/ Eighth special report of the Director-General of theInternational Labour Office on the application of the Declaration Concerning thePolicy of Apartheid in South Africa, p. 15.

- 12 -Table 1Industrial Origin of the GDP 1911-1970 PercentagesSector 1911 1920 1930 1940 1950 1960 1970Agriculture 21 22 14 12 18 12 9Mining 27 18 16 19 13 14 11Secondary industry a/ 6 10 13 17 23 26 31Services 46 50 57 52 46 48 49Total 100 100 100 00 100 100 100a/ includes manufacturing, construction, electricity, gas and water. Source:Republic of South Africa Department of Statistics, South AfricanStatistics, (Pretoria, Government Printer, 1972) pp. V-11 and V-13.Table 2Population by racial group 1974Whites 4 160 000 16.7%Coloureds 2 306 000 9.3%Asians 709 000 2.8%Africans 17 745 000 71.2%24 920 000 100 %Sourcej C.M.E. Leistner and W. J. Breytenback, The Black Workers of SouthAfrica, (Pretoria, Africa Institute, 1975, Table 2.2), p. 10.

- 13 -01+0 co. 000U %0.00wH0H0% ~4IH Ca'41

0%0 '4'-40 %.11-40H0% 0ON 04: --~ 0HLii-4 ~0-4 w-N - 0 zo Z40 ha) %n -WIH NOHOH.I41 H 0 OD 4r- 0 i14 H wo w.. w H 0 ' 0 0o 0 0 0 0-W, -P14 " .g00t 0OH gt+NAd %AW 0 W % - 0 A %0Pd aga0 H* 0Pd a~a ~d.0 0 a ce*~

- 14 -Table 4in same industries, 1969-1970(Average wages for different ethnic each branch. Absolute figures in Rgroups within per month).Whites Col(R) oureds

(R)ManufacturingMiningAsians Afri(R) cans(R)80 5293 19Africans I wages in per centofwhitesWage differential1969-1970(White/ African)6.1:16 17.9:1ConstructionPublic service (Central Government)326 110293 1456.7:152 18 5.6:154 52 18Source: I. Homer, BlackPay and Productivity in South Africa,p. 3 quoted in IO/TLO, South Africa: Black Labour Swedish Capital,(Stockholm,1975), P. 51.IndustryRailways2955.7:1in some industries. 1969-19TOQ+ 2^+11" ~r W me

- 15 Table 5 Differences in wages on the South African labour market 19T3(Average wages, R per month)Montt Whites Colouredsly wages AfricanstAsians Afri- wagescas in percans cn-- centofwhitesWage differential 1973(White/ Africans)

Metal production 407 134 108 73 18 5.6:1Engineering industry 395 126 203 76 19 5.2:1Electric machines 370 115 124 83 22 4.5:1Transport equipment 377 126 145 82 22 4.6:1Source: "Employment and Earnings in some Economic Sectors, 1973",SAIRR' 28 May 1973; quoted in IO/TLO, op. cit., p. 51.Sector

- 16 -B. Strikes and lock-outs1. General"In a free society the right to strike is regardedas the ultimate social sanction that can be applied byorganized (andunorganized- J.B.) labour in disputes withemployers. The right of workers to strike and ofemployers to lock workers out are widely regarded, subjectto certain restrictions, as essential safeguards forfreedom of collective bargaining." 39Like most other rights, this right is severely circumscribed in South Africa and incertain significant sectors does not exist at all. Strikes and lock-outs involvingwhite, Coloured and Asian workers are governed by the Industrial ConciliationAct No. 28 of 1956 and those involving African workers by the provisions of theBantu Labour Relations Regulation Act No. 48 of 1953. Furthermore, there isoverriding security legislation which governs workers of all racial groups.Both Acts define a "strike" as meaning one or more of certain actsor omissionsby a body or number of persons who are or have been employed either by thesame employer or by different employers. L/ These are, namely, the refusal orfailure to continue work whether the discontinuance is complete or partial or toresume work or to accept re-employment or to comply with the terms andconditicns of employment or the retardation of progress of work orthe obstructionby them of work or the breach or termination of contracts of employment.These acts or omissions do not, by themselves amount to a strike. Theremust bein addition, a combination, agreement, or understanding betweenthe employeesconcerned and furthermore there must be an intention to compel or induce theemployer to improve, or refrain from making changes in the conditions ofemployment, or to refrain from discharging one or more persons fromemployment 141i2/ "Transport", Official Journal of the South African TransportWorkers,January/February 1963, p. 12, quoted in M. A. du Toit, South African TradeUnions (Johannesburg, McGraw Hill, 1976), p. 97.42 SI(XxXVI) of the Industrial Conciliation Act; S18(5) of Cf. Act 48of 1953.j/ As du Toit, 2p. cit., comments, "The scope of this definition forbids practicallyall forms of strikes."

- 17 -

In the case of lock-outs the discontinuance of work is originated by the employer -e.g., he shuts his factory or discharges his employees. To be a lock-out, theactions must be motivated by a desire to obtain agreement from the employees ora change in working conditions. The provisions of the two Acts on the legality oflock-outs are the same as those relating to strikes and where the word "strike" isused the word"lock-out" may be understood. Whether an incident isa strike or alock-out is determined by asking who created the dispute which resultedin thecessation of work. 2/2. Absolute prohibitionStrikes are prohibited absolutely j in certain circumstances by the IndustrialConciliation Act. L_/ Employees covered by any agreement or award, which islegally binding in terms of the Industrial Conciliation Act and which covers thematter in dispute, may not strike during the currency of such agreement or award.Employees who are covered by a wage determination which has been published interms of the Wage Act or who are covered by any other order or wage regulatingmeasure which deals with the matter in dispute may not strike if these have beenin operation for less than a year. 45/The employees of a local authority or of an employer who provides essentialservices may not strike at any time. Section 70 of the Industrial Conciliation Actprovides that if there is a strike of local authority employees, the Minister ofLabour or any person authorized by him may intercede and carry on certainfunctions of the local authority at the expense of the local authority. The Act alsoprohibits strikes whose object/ De Beer vs. Walker NO 1948(1) SA 34O(T); 1948(4) SA 708(AD)./ The prohibition is against instigation, incitement to take part in or tocontinue astrike and actually to take part in the strike.$/ S65 of the Industrial Conciliation Act; cf. also S26(2) of Act 30 of 1945.!/ Wage determinations remain in operation indefinitely until cancelled orsuspended. Sometimes determinations have been known to stay in existence forup to six years. In 1972 a work to rule by stevedores in Cape Town had the effectof expediting the coming into operation of a new determination (Author'sobservantion).

- 18 -is to achieve some purpose which is unrelated to terms or conditions ofemployment. _/ This provision was introduced to prevent rank and file proteststrikes against the conduct of union officials or union policy but its ambit seemsto be far wider. 3Ji If an Industrial Council's constitution provides for thecompulsory reference of disputes to arbitration, striking by membersof a party tothe council remains illegal indefinitely. 8/3. Qualified prohibition !/Striking remains illegal if there is an Industrial Council having jurisdiction andthe dispute has been considered by the council until the council hasreported to theMinister in writing or a period of 30 days from the date of the submission to thecouncil of the dispute or such longer period as the council may fix hasexpired,whichever happens first. Where there is no Industrial Council, if application has

been made for the establishment of a Conciliation Board for consideration of thematter and such board has reported thereon to the Minister in writingor a periodof 30 days from the date of the approval of such establishment by the Minister ofLabour or such longer period as the Conciliation Board may fix,has expired, onlythen does striking become legal.If the Minister of Labour has refused to approve the establishment of a board or30 days have elapsed since application was made for a board and theMinister hasnot taken a decision then striking becomes legal. If it has been decided torefer thematter to voluntary arbitration, the prohibition will continue to operatependingthe settlement of the dispute or the cessation of the arbitration proceedingswhichever occurs first. 501 Even if allL/ S65(lA)(lB) of Industrial Conciliation Act./ These provisions were introduced after strikes against the White Mine WorkersUnion Executive in 1966 had brought a large number of gold mines to astandstill.Broadly speaking, an action committee disagreed with the Union'sexecutivedecision to support the easing of the underground colour bar (Du Toil, M. cit., pp.67-71).$J§ s65(2)(a) of the Industrial Conciliation Act./ Generally lengthy "cooling off" periods are provided for in the hope that thedispute can be settled by negotiation. It also has the effect usually of deflatingworker militancy or else making them liable to penal sanctions should they strikebefore the expiry of the cooling period.5/ S65(l)(d)(iii) of Industrial Conciliation Act.

- 19 -these conditions have been complied with a strike cannot be legally declared by aregistered trade union unless a majority of the paidmembers of the union workingfor the undertaking concerned have indicated that they are in favour of a strike. a/4. Other provisionsAn employer may obtain a temporary interdict pending an actionto be instituted, to restrain those who take part in an illegal strike. 52 Even wherean employee takes part in a strike which is not unlawful in terms of the Act andrefuses to work for the employer the latter is not thereby deprived ofhis commonlaw right to dismiss the employee concerned. 2/ Benefits under theUnemployment Act No. 30 of 1966 are not paid to workers who have gone onstrike. 54/ In the general absence of strike funds this serves as afinancialdeterrent. Picketing is governed by the provisions of the Riotous Assemblies ActNo. 17 of 1956 and the by-laws of the municipality having jurisdiction. 5/Registered trade unions, officials, office bearers and members thereof are givenprotection against civil proceedings for damages in certain limited circumstances.No civil proceedings may be brought against these persons or bodies in respect ofany wrongful act committed by or on behalf of any such body in furtherance of astrike. This protectionisa limited one and will not apply where the strike isprohibited under the Act. Nor will the protection apply where the wrongful actconstitutes a criminal offence. But for the statutory51/ s65(2)(b) of Industrial Conciliation Act. This

provision does not apply to unregistered unions.12/ Freinkel vs. Garment Workers Union 1961(1) SA507 W.53/ R. vs. Smit 1955(1) SA 239(C).S4i s1l(f) of Act 30 of 1966.O/ SlO of Act 17 of 1956 cf. Rand Daily Mail, 5 October 1976; twenty-sevenstrikers were fined R50 each for displaying placards near a factory.

- 20 -protection, a registered trade union may have been liable for damages sustainedby others in their trade or calling. Such liability remains in the caseofunregistered unions and in the case of registered unions in the circumstancesmentioned above; In the latter instances a combination of two or more personswhose activities result in injury to others in their trade or calling will be liable ifsuch activities are done for the purpose of injuring the party concerned. If the realpurpose is not to injure another but to forward or defend the trade or calling ofthose who enter into the combination no action will lie provided the purpose is noteffected by illegal means. 56/5. African workersThe original Bantu Labour Settlement of Disputes Act No. 48of 1953 prohibited all strikes and lock-outs of African employees.57/Amendments introduced in 1973 were intended to put Africans in the sameposition as that of other racial groups. The definition of "strike" is the same as thatcontained in the Industrial Conciliation Act. Strikes are prohibited absolutely inthe same circumstances as those contained in the Industrial Conciliation Actexcepting that the Act does not prohibit strikes whose object is to achieve somepurpose which is unrelated to terms or conditions of employment although it doesprohibit sympathy strikes Lwhich are not explicitly prohibited by the IndustrialConciliation Act but which would probably fall within the ambit of $65(lA)Where the Central Bantu Labour Board has referred a proposed Industrial CouncilAgreement, which it finds unsatisfactory, to the Minister of Labour for a WageBoard recommendation, striking is illegal while the Wage Board is considering itand for one year thereafter. Unless the dispute has first been referred to one of thecommittees provided for by Act 48 of 1953, striking is illegal. If either such acommittee does not exist or the committee has not been able to arriveat asettlement, striking remains illegal until a report has been submitted by theemployees to the Bantu Labour Officer for the area and 30 days have lapsed sincethe report was submitted. 58/56/ Fraenkel vs. Garment Workers Union 1961(1) SA 507(W).57/ Various Master and Servants Acts, the Native Labour Regulation Act No. 12of 1911, War Measure 145 of 1942 had all made strikes by African workersillegal.58/ S18(l) of Act 48 of 1953.

- 21 -Even then the strike may be illegal, if the Minister of Labour pre-empts thisbyreferring the dispute to the Wage Board for consideration (strikesare prohibited

indefinitely while a dispute is under ansideration by the Wage Board). As theFinancial Mail commented:"The Bill (the amendment Bill - J.B.) does notmake wildcat strikes any more illegal than they werewhen African strikes were prohibited altogether. Butthe fact that it provides compulsory conciliation procedures and legalises strikesin certain cases could be used as an excuse to hammer workers who decide togo on strike without first cooling off." 59/The "cooling off" provisions, are however, unlikely to preventwild-cat, illegalstrikes because, while conciliation machinery has been set up, Africans have nofaith in it. 60/ There is every chance therefore that African dissatisfaction withconditions will continue to be expressed immediately by strikes instead of the"strike" being reserved as the ultimate weapon should negotiation fail. 61/Extremely repressive measures are taken against African strikersboth by the State and/or employers. 62/ Workers participating in illegal strikes areliable to a fine not exceeding RI,00 or imprisonment for a period not exceedingthree years, or imprisonment without the option of a fine or both suchimprisonment and fine. 63/2/ Financial Mail, 15 June 1973, p. 1000.j/ In 1974 there were 374 stoppages involving 57,656 African workers. In 1975there were 119 strikes involving African workers. (International LabourOrganization, Twelfth Special Report on Apartheid, 1976, p. 15). Since 1973,there has been only one such legal strike, namely that at Pilkington's(Armourplate Safety Glass in Springs), where after 30 days' notice had expired,the strike began. (Financial Mail, 10 September 1976, p. 908/9.)L_/ Negotiations at any rate are unlikely to take place,§/ In September 1976 African bus drivers were threatened witharrest when they went on strike over the issue of equal pay with whites. "TheDurban bus drivers quickly called off their strike and returned towork saying 1atthey were frightened of the policemen's guns... We were told to gointo a bigworkshop, and when we got in we were surrounded by policemen with guns ...We were told we could choose to go to work or go to jail for five years. Therewas no negotiation. It is a sad day for us. We have no union to fight for us. Whatcan we do" (Financial Mail, 10 September 1976, p. 909). Between 1962 and 1971,1,281 Africans were charged with illegal striking and related conduct; 987 ofthese were convicted in 1972 (House of Assembly Debates, question col. 1137)./ S18(2) of Act 48 of 1953.

- 22 -These penalties are considerably higher than those contained in the IndustrialConciliation Act. 6 According to information released by the Minister of Labour,police intervention was sought in the case of 69 of the strikes that took place in1974 and 841 people were arrested. OIn 1976 a ship repair companyin Durbandismissed its entire workforce of 800 because a "sizeable number" went on strikefor more pay. L6_ This is not an uncommon occurrence. Employers have beenactively encouraged to adopt this policy by the Department of Labour. A one-time

Minister of Labour Marais Viljoen told employers that they should show thecourage of their convictions "by not retaining in employment personswho haveno respect for law and order". 67/ Africans who are dismissed forstriking arelikely to be endorsed out of the urban areas to the reserves wheremaking a livingis at best precarious. 6/ It is very rare that employers try and settle disputes bynegotiating with African unions; on the contrary many of the mostdrawn out andbitter disputes have been over union recognition. 69/ Instead, the Departmentand/or police are called in at once.6 / S82(l)(a) of Industrial Conciliation Act.65/ House of Assembly Debates, 1975, question, column, 304/5.6L/ The Times, 9 March 1976, p. 5./ Quoted in Study Project on External Investment in South Africa andNamibia -The Conditions of the Black Worker,(Africa Publications Trust, London, 1975),p. 1149.j/ In terms of S29 of the Bantu Urban Areas ConsolidationAct. No. 25 of 1945. An "undesirable Bantu" may be endorsed out of an urbanarea. Included within the definition of "undesirables" is "(any) Bantu who hasbeen convicted of any offence under S10, 11, 12 or 13 of the RiotousAssembliesAct No. 17 of 1965" (these are the provisions which deal with picketing, strikes,etc.) (S29(h)). In April 1969, after a strike for higher wages,1,100 Durbandockworkers were discharged and given four hours to leave Durban. M. Horrell,South Africa's Workers, p. 77.6_ Leyland, Pilkington, Heineman Electric (SA).

- 23 -6. Security legislation(a) The Riotous Assemblies Act No. 17 of 1965This Act was originally enacted in 1914 to prevent white workers from pressuringblacklegs and scabs in strikes on the goldmines and railways. It provided for thebanning of meetings, etc., and made it a crime to picket the homes or workplacesof blacklegs or scabs or to annoy them or their families. This Act was amended in1954 and consolidated in 1956. Any person commits an offence who trespassesonto property in order to induce any worker thereon to unlawfully cease work orto refrain from returning to work. 70/Any person employed in an essential service commits an offence if he wilfullyand maliciously breaks his contract of employment knowing or having reasonablecause to believe that the probable consequences of this would beto deprive thecommunity of these services. 71/ Similarly, an offence is committed where "any"employee breaks his contract of employment knowing or having reasonable causeto believe that the probable consequences of this would be to endangerhuman lifeor cause serious injury to the health of any person or expose valuable property todestruction or serious injury. LJ/ The ambit of this is very wide and would includeaction taken by doctors and nursing staff.(b) The Internal Security Act No. 44 of 1950The extremely broad definition of communism includes, inter alia anydoctrine orscheme which aims at bringing about any political, industrial, social oreconomic

change by unlawful acts or omissions. 73/ If workers by striking contravene theterms of labour legislation they lay themselves open to prosecution under theInternal Security Act. In 1961, 194 African bus drivers in Port Elizabeth went onstrike over the12/ S12 of Act 17 of 1956.L/ Ibid., s14(1), s65 of Industrial Conciliation Act 48 of 1953.In R vs. Segaleand Others (1960(1) SA 721 AD, it was held that an incitement to breaka contractof employment is contravention of S14(1). In the last six months of 1974, 307African workers were charged with "breach of contract by persons employed inpublic utility services" (House of Assembly Debates, 1975, question, column,214/10). Arrests of transport workers under the Riotous Assemblies Act No. 17 of1956 are fairly common (Args, 30 July 1974). See also International LabourOffice, Fifth Special Report, pp. 18-19.Jg/ s14(2) of Act 17 of 1956.yJ3 Si(i)(II) of Act 44 of 1950.

- 24 -question of minimum wages and equal wages. They were arrested and fined. Fouryears later ten of the strikers were charged with furthering the aims ofcommunism by taking part in the strike. In September 1965 they were convictedof belonging to a banned organization and of furthering its aims by taking strikeaction in 1961. They were sentenced to four and a half years imprisonment,subsequently reduced on appeal to one year.(c) The General Law Amendment Act No. 76 of 1962 (The Sabotage Act) 12The offence of sabotage 76 as defined includes any wrongfuland wilful act which inter alia, injures, puts out of action, obstructs, tampers with,etc., any of the following, among other things: the supply of distributionof light,power, fuel, foodstuffs or water, postal, telephone or telegraph services; freemovement of traffic; any movable or immovable property of a person or of theState. It includes also any attempt, instigation or encouragement to commit suchan act. The penalties range from a minimum of five years imprisonment to deathpenalty. It is difficult to imagine a strike in the public services or public utilitysector which did not injure, put out of action or obstruct either the supply ordistribution of light, power, etc. It is even more difficult to imagine a strike in anysector which did not injure, put out of action or obstruct the property of anyperson' or of the State.It is a defence to the charge of sabotage to prove that thealleged offence in question, objectively regarded, was not calculated to and wasnot intended to produce any one of a number of effects which includeto cause orpromote general dislocation; to cripple or seriously prejudice any industry,undertake to seriously interrupt the supply or distribution in any place of light,power, fuel or water; to cause substantial financial loss to any person or to theState or to embarrass the Administration of affairs of the State.7/Any serious strike of State-employed persons to be successful mustseek to cause "dislocation" or "embarrass the administration of the affairs ofState"; almost no strike in the private sector can visualise successunless it

"cripples or seriously prejudices" the "undertaking" or causes substantial financialloss" to the employer. The Governing Body of theL/ A. Hepple, op. cit., pp. 29-30.U/ It should be noted that during 1960 there were large stay-aways,individual acts of sabotage, and that a state of emerency was declared.Thepassing of this Act is linked to the upheaval at the time.L6 S21(1) of Act 16 of 1962.YVIbid., S22(2).

- 25 -Internationaltabour Organisation decided in the light of the above "to draw theattention of the Government (of South Africa) to its view that the provisions ofS21(2) of "the Sabotage Act" are inconsistent with generally-accepted principlesrelating to freedom of association." L8/The Act does, however, contain a provision introduced afterrepresentations by the registered trade union movement to the effectthat "nothingin S21 shall render unlawful any action relating to a matter dealt with under theIndustrial Conciliation Act or S28 of the Railway and Harbour Services Act 1960which could prior tothe commencement of "the Sabotage Act" have been lawfully taken". 79/ If theIndustrial Conciliation Act is contravened the strikers would not only faceprosecution under that Act but also in appropriate cases under the Sabotage Act.African strikes when legal under S18 of Act 48 of 1953 would not bea "wrongfulact". But as shown earlier, given the present situation with regard to"cooling off"periods mostAfrican strikes are likely to be illegal and therefore the strikers may in appropriatecases be prosecuted under both that Act and the Sabotage Act.d) The Terrorism Act No. 83 of 1967It is a criminal offence to do any act or to conspire, etc., to do so withtheintention to endanger the maintenance of law and order, if the act had or waslikely to have had one of a number of results, such as the crippling of any industryor undertaking or industries orundertakings generally or the production or distribution of commodities orfoodstuffs or the causing of substantial financial loss to any person or the State.LO/ This Act has been used in the prosecution of militants involved in theorganization of the general strikes which took place during 1976. Penalties for itscontravention are a minimum of five years imprisonment and a maximum of thedeath penalty.C. ConclusionThe 1977 parliamentary session has seen the enactment orintended enactment of legislation to extend the prohibition against strikes and toamend the Bantu Labour Relations Regulations Act No. 48 of 1953. 81/78/ "International Labour Office Program for the Elimination of Apartheid inlabour matters in the Republic of South Africa" (Geneva, 1964), p. 39.72 S21(5).§/ S2(2) of Act 83 of 1967.

1/ Times, (Londwn), 1 April 1977, "Pretoria Bill denies strike right".

- 26 -What the author has attempted to show in the substantive part of this essay is thatlabour law in South Africa cannot be divorced from security legislation. To study"labour laws" in isolation would be to distort the reality which is that overridingsecurity legislation. The latter has at times immobilized militant sections of thework force and thus substantially weakened their bargaining powers.But neither can security legislation or both these branchesof the law be seen in isolation. They form part of a legal frameworkwhichsanctions the exploitation of the labour force and then attempts to reduce toimportance those organizations and individuals who seek to counterand changethis situation. While a partial solution lies in the reforming of the variouslabourlaws (e.g., abolition of discriminatory measures) and the repealing of securitylegislation, the ultimate solution to the workers' lack of rights and exploitation isstructural. The outlook for worker organizations in the next few years is that ofincreasing struggles to stay in existence. Unemployment has already robbed someunions of up to 15 per cent of their members, L2/ companies are consideringintroducing all race works committees, as a substitute for unions §/ and furtherlegislation is contemplated to remove what little rights workers have, e.g., socalled "independence" for the reserves.But it must not be forgotten that only 18 per cent of the work force is governed byany labour laws whatsoever. 814/ For the vast majority of workers, then, thestruggle is to secure very basic rights, while other sectors try andmaintain andextend their present limited rights. Given that the cause for their denial arestructural it is in the political arena that the right to organize and to bargaincollectively will be won. That day is still a long way off, but the "Children ofSoweto" will sometime in the future be South Africa's goldminers, buildingworkers, metal workers, etc.§2 Rand Daily Mail, 15 February 1977.3/ Star, "The Next best thing to all-race trade Union", 11 December 1976. Str8p See P. J. Van der Merwe, Manpower Policy in South Africa, pp. 98-99. Itmust be remembered that while African workers might be covered by IndustrialCouncil agreements they have little, if any, say in their formulation.

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