COSATU General Secretary Zwelinzima Vavi's address to the SA Society of Labour Lawyers, Johannesburg, October 18 2012
LEGAL IMPLICATIONS OF LONMIN/MARIKANA
INTRODUCTION
On 16 August 2012, 34 mine workers in Marikana who were engaged in a wildcat strike against the Lonmin mining company were shot and killed by a special forces unit deployed by the SAPS, whilst many others were injured. In the days preceding this at least 10 others were killed it appears at the hands of the striking workers, with the targets being NUM members and two SAPS members.
Subsequently after initially holding out against workers' demands Lonmin reached a settlement with the striking workers. This has been widely reported as constituting a 22% increase, despite this not being entirely accurate upon analysis of all relevant details of the package and specifically in relation to its application between different grades. In the intervening period unprotected strike action has moved onto other platinum mining companies as well as the gold and coal mining industries.
The unprecedented levels of unprotected strike action, associated acts of violence, as well as the profound impact on the economy (both in the mining industry and more generally) has sharply divided sections of society and stakeholders on the appropriate response. Even within COSATU we have grappled with the complexity of the matter and not least of all because it has been some of our members and leaders (through our affiliate, the NUM) who have experienced loss of life, injuries and intimidation.
At the same time we are unequivocally convinced that we have reached this state of affairs as a result of an accumulation of social and economic factors, particularly the existing and worsening triple crisis of mass poverty, widespread unemployment and extreme inequalities in South Africa. Related to this the inherited labour market from apartheid that was based on the super-exploitation of black labour has continued to define industrial relations with marked patterns in specific sectors such as mining.
The mining industry directly employs around half a million workers, with another 400,000 employed indirectly by suppliers of goods and services. The combined direct and indirect contribution of the industry to our gross domestic product is around 18% [1]. Mining also accounts for over half South Africa's foreign exchange earnings. These are seemingly "neutral" statistics. But the industry has what the NUM has described as a "killing face", reflected in ongoing fatalities, rapidly growing occupational diseases, unchecked environmental degradation, and squalid living conditions for many mine workers. Between 1900 and 1994, 69,000 mine workers died as result accidents and over a million were seriously injured. While the rate of fatalities and injuries has declined, it is still totally unacceptable, and has given reason for the NUM to call regular strikes on safety. In the 10-year period between 2001 and 2011 2301 workers lost their lives and nearly 43,000 were seriously injured.
Whilst we will not promote the reliance on unprotected industrial, mindful of the context and our historical mandate, COSATU remains steadfastly committed to advancing and uniting behind the cause of our constituency and the broader working class, notwithstanding the recent divisions that have arisen amongst workers and unions.
We are aware that against the background of violence associated with protest and industrial action there have been increased calls for legal intervention from some quarters to counter the current wave of wildcat strikes currently sweeping through the mining industries. More specifically, for the purposes of today's presentation I have been asked to comment on the legal implications of Lonmin/Marikana. It should be noted that there have as yet been no actual amendments proposed to laws regulating protest and industrial action as a consequence or court judgments that have impacted on our current legal regime.
While it is relevant to consider relevant legal implications, we must avoid construing singular mechanisms as a panacea to what is essentially a complex socio-economic issue. This is notwithstanding the fact that COSATU has waged many battles for legislative reforms to advance working class interests, and will continue to do so in the future.
COLLECTIVE AND ORGANISATIONAL RIGHTS
The balance of power in industrial relations, especially economically, inherently and disproportionately favours employers over workers. At the most fundamental level the only real tool an individual worker has is the provision or withdrawing his/her labour, which has limited bargaining power on its own. Acting within a collective and more specifically as part of a union has the potential to substantially level this power imbalance to bargain more effectively not only for better wages but overall employment conditions and employment security. The fundamental need to ensure protection of these rights is contained in various provisions of the Labour Relations Act and sections 18 and 23 of our Bill of Rights on the respective rights to "freedom of association" and "to engage in collective bargaining". It also finds expression in ILO instruments such as "ILO Declaration on Fundamental Principles and Rights at Work" of 1998.
Historically under apartheid the labour movement employed collective bargaining, and more specifically centralised bargaining, to counter institutional structures (such as the wage boards) that sought to tame wage demands of black workers.
The common legal construction of industrial relations tends to narrowly emphasise the individual contractual relationship between a worker and the employer, similar to commercial contracts. Consequently the collective nature associated with the employment relationship is all too often treated as a nuisance by employers and employer organisations, with there being increasing calls to decentralise collective bargaining. At a company level legal strategies are employed to avoid centralised bargaining by fragmenting workplaces and industries through such mechanisms as outsourcing, labour broking, subcontracting and commercial restructuring.
Quite opportunistically the events associated with Marikana have renewed pressure from specific quarters for decentralised bargaining. This is in direct contrast to calls for centralisation by COSATU, NUM and the Department of Labour.
In the platinum mining sector collective bargaining is decentralised to a company level. Unlike the gold and coal sectors where bargaining is undertaken on a centralised basis under the auspices of the Chamber of Mines of South Africa, there is no bargaining council although discussions are underway to establish one. Centralised bargaining, if employed optimally, has the potential to lay out a minimum AND acceptable floor of employment standards that is sector-wide, which is compelling taking into account the appalling living and working conditions that are prevalent. This would counter the illogical inequality between workers who do essentially the same work and could yet allow for differentiation between different skills and occupation levels.
However, going beyond this it would be important for centralised bargaining to be formalised under a bargaining council (namely beyond the existing arrangements under the Chamber of Mines. In particular section 32 of the Labour Relations Act allows the Labour Minister to extend bargaining council agreements to employers who are NOT parties to a bargaining council. There is an increasing reliance on labour brokers and subcontracting in mining even for daily standard operational activities, with living and working standards being much worse for affected workers even when working alongside other workers who are directly employed by a mining company. This inequality between workers is an added recipe for disaster, especially considering that it is more difficult to recruit workers employed through labour brokers and subcontractors.
In relation to Marikana specifically the problematic dynamic was illustrated when considering that many of the striking workers also included those employed through subcontracting arrangements. The difficulty that this presents is that any settlement with Lonmin would not extend to them.
In relation to the ongoing conflicts between our affiliate the NUM and AMCU there have been opportunistic calls to review the principle of "majoritarianism", which enables unions to access certain organisational rights upon reaching the stipulated relevant threshold of representation, which may include increased union access to a the workplace premises and the deduction of union subscription fees directly from members' wages.
Notwithstanding the current difficulties we face in organising in the mining sector, especially platinum, we retain the view that the principle of majoritarianism remains absolutely relevant. Collective power is most effective when unions are strong and would counter divisions amongst workers, which can only be to the benefit and interest of employers. Minority unions have always retained their rights to organise and recruit at a workplace regardless.
UNPROTECTED VS ILLEGAL STRIKES
There is significant confusion about the understanding of constitutes "protected" as compared to "unprotected" strikes, with the latter often being incorrectly referred to as being "illegal" or "unlawful". However, the normal meaning of the words "illegal" or "unlawful" relates to an action that are contrary to a law to such an extent that it would constitute a criminal offence, and would be punishable as such. While this would have been correct during Apartheid South Africa when strikes were illegal, there was an explicit departure from this approach under our current Constitution and the Labour Relations Act (LRA) that was enacted in 1995.
Section 23 of our Bill of Rights entrenches the right of every worker to engage in strike action and intentionally excludes any reference to lawfulness. Section 64 of the LRA sets out the procedures to be followed when engaging in protected strike action or employing the recourse to a lock out. Workers accordingly merely lose their protection from disciplinary action if they do not follow the stipulated procedural steps prior to engaging in strike action but cannot be charged for committing a criminal offence.
As strike action merely involves work stoppage or the withdrawal of a worker's services in breach of an employment contract, it would be fundamentally repressive to construe it as a criminal offence and would be tantamount to entrenching forced labour. Therefore to continue referring to unprocedural or unprotected strikes as "illegal" is to construe workers as criminals effectively denying them recognition of their right to engage in protest action as protected by the Constitution. It also implies a moral judgement against workers who do so.
None of this means that unlawful acts that may occur in the course of industrial action (whether protected or unprotected), such as acts of violence or damage to property, are similarly immune from criminal prosecution. Neither would COSATU argue for such immunity.
Taking all of this into account, it would be fundamentally incorrect to emphasise the legal implications of unprotected industrial action over and abovethe political, social, economic and organisational consequences. In other words, the fact that workers have chosen to exercise their constitutional rights to down tools does not negate the devastating impact it will likely have on their lives when jobs are lost, a probability that increases the longer a strike continues.
Workers are not strangers to the rule of "no work, no pay" when they withdraw their labour, which is a sacrifice they must bear irrespective of whether a strike is protected or not. The fundamental difference in relation to dismissals is that wage loss is permanent, which is a harsh reality in our economy that is plagued with high structural unemployment.
Unprotected strikes, and in particular wildcat strikes, by their nature operate outside defined rules (whether organisational or by law). This may in part be the reason why they have a tendency to become more violent. However, with increased violence there is often the hardening of attitudes on both sides of the employment relationship and decreased public sympathy, and often workers begin to lose their bargaining power as a result.
Further within this context it becomes more difficult to make an assessment of the economic climate as a measure of the attainability of the workers' demands. The right to strike is always a double-edged weapon and its target is primarily economic in hardship. Put simply it is meant to hurt the employer where it matters the most, namely its profits, in order to compel agreement to worker demands. However, if renders a company or sector completely unviable it may have precisely the opposite effect of negating the demands being fought for. This does not mean that we should tend towards being overly cautious but that rather there is a compelling reason to analyse the environment more carefully.
One of the most difficult challenges that the wildcat strikes have presented organisationally has related to the levels of violence and intimidation that NUM office bearers and officials have had to bear. This has facilitated an increasing wedge between members and the union in such a manner, preventing both communication and a meaningful space that would enable the resolution of the problems that have arisen in the mining sector. It is admitted that NUM has been experiencing serious difficulty in the platinum sector in particular. However, preventing them from accessing members to address their concerns is not in the interest of workers, and neither is playing musical chairs between different unions.
CONCLUSION
We have reached a turning point in the history of industrial relations in South Africa, and probably more generally too. The levels of unprotected strike action has been unprecedented in post-Apartheid South Africa and arguably is comparable to the wave of strikes during the 1970s, beginning with the dockworkers in Durban in 1973.
While it is a time for deep analysis and introspection, we should caution against resorting in a knee jerk fashion to singular and simplistic instruments that masquerade as panacea what is essentially extremely complex social problem. In particular this would apply to quick-fix legal instruments supported by opportunistic sections of society.
As COSATU we remain committed to our constituency, the working class, and in particular in advancing their interests. This means in to large extent in ensuring that as an organisation we remain a strong and dominant force, which we will do by remaining relevant to the working class.
Issued by COSATU, October 20 2012
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