ATTEMPTS to put on trial the most notably capitalist elements of the ‘fourth industrial revolution’ suffered a major blow at the Labour Court of South Africa in Johannesburg last week.
Restructuring and retrenchments because of digitisation in the banking sector prompted labour movements and workers to call a strike – but their action was stymied by an interdict granted by the Labour Court.
On Thursday 27th September 2019, judge Hilary Rabkin-Naicker ruled in favour of Business Unity South Africa (Busa) to interdict a national banking strike that had been called by the Congress of South African Trade Unions (Cosatu) and its affiliate, the South African Society of Bank Officials (Sasbo). The strike was set to take place on Friday 28th September.
Rabkin-Naicker said Cosatu and Sasbo had failed to comply with section 77(1) of the Labour Relations Act 66 of 1995, and as such any person taking part in such protest action would be engaging in an unlawful act without the benefit of the law. Cosatu and Sasbo were ordered to spread the word about the ruling and to advise members the intended protest action was unlawful and in breach of the Labour Relations Act (LRA).
The protest action was intended to make clear that through retrenchments and by restructuring, banks are prioritising profits over the interests of their workers. The protest would also have raised the issue of the bonus structure of executives, who, amid restructuring and contemplating future job losses, continue to receive bonuses and huge salaries compared to the average worker.
Specifically, at the intended strike workers had planned to call for a just transition to digital banking in which, instead of being retrenched, they would be up-skilled. For their part, the unions would have called for policy reform to make it difficult for companies to retrench and replace workers with automated systems. The quality of human life rather than profits was one of the unions’ demands.
How the strike was interdicted
In the absence of written reasons for the judgment – the judge will provide them at a later date – this adverse ruling against workers affirms what Ighsaan Schroeder and Ronald Wesso of the Casual Workers Advice Office noted in the Mail & Guardian.
They argued that the Labour Court judges were blocking workers from striking ‘without checking whether the employer has satisfied the legal requirements for a court order to be granted’. It has, they argued, become easy for the Labour Court to grant interdicts against workers even when workers have complied with procedure.
Closer to the planned national protest action in the banking sector, Busa conveniently went to the Labour Court to interdict the protest action on the basis that Cosatu and its affiliate had not complied with labour laws.
Busa argued that Cosatu and Sasbo had not engaged banks and all other stakeholders at the National Economic Development and Labour Council (Nedlac) level as per the Act to air issues before going into the strike, which meant the strike action had to be interdicted as it was unlawful and would have a negative impact on the economy.
Armed with a two-year-old notice from Nedlac, Cosatu and Sasbo told the court that they had complied with section 77 of the LRA and that the strike should go on as planned. Section 77 of the Act regulates protest action that advances the socio-economic interests of workers. Nedlac is the body that helps engagement on these issues through a standing committee.
Cosatu had issued a section 77(1)(b) notice on Nedlac, outlining the nature of the socio-economic problems facing workers, such as mass retrenchments and high levels of unemployment.
Cosatu implored business and government to commit on a certain number of resolutions, including that ‘private companies should be prohibited from retrenching employees with a view of maximising profits’ and that government must bail out insolvent companies to avoid retrenchments.
Also, that government and business must commit to a jobs summit, and that there must be a move away from the government’s neoliberal trickle-down economic policy that has entrenched inequality.
In terms of a Nedlac notice dated 7th November 2017, government and business undertook to revert back within a month to Nedlac. But this seems not to have materialised, as ‘the standing committee resolved that the respondents appeared no longer committed to engage on the notice.
The standing committee subsequently deemed this section 77(1)(b) notice filed by Cosatu as having been considered in terms of section 77(1)(c) of the LRA.’
What this meant is that Cosatu, having engaged and with negotiations at deadlock, could give notice in terms of section 77(1)(d) to embark on protest action. From this premise, Cosatu argued that there was nothing in the law that prevented it from using the Nedlac notice of 2017 to call for protest action.
The issues for Cosatu remained the same, hence the union felt that it could issue the notice in terms of 77(1)(d). Busa, however, held that the two-year period was too lengthy and that Cosatu could not rely on that earlier notice.
The result was that Sasbo and Cosatu had to go back to Nedlac and initiate a new process. But Cosatu told the court that what Busa wanted was unfair – to expect the congress to go back to Nedlac and in so doing effectively to allow Busa and the government to play the same games as in 2017.
Precarity in the workplace
For unions and workers, conditions and issues have not changed from 2017. Busa and its affiliate banks have done little to assure labour that there won’t be mass retrenchments as traditional banking makes the transition to digital banking.
Though banks have come out strongly to contradict the retrenchments statistics reported in their sector, what they cannot refute, given the transition to digital banking, is the uncertain future that workers face amid retrenchments talks.
Standard Bank is reported to be in the process of closing 91 branches across the country. Nedbank is in talks with 1,500 workers, 100 of whom will be without jobs because they will not be redeployed. The Absa banking group is going through a restructuring process.
Unions are raising legitimate concerns when they advocate for a more human-centred approach in which workers are up-skilled in the transition to digitisation.
But this conversation should not be focused on just the banking sector. Across industries, workers are being replaced by automation processes, and the rise of the gig economy has rendered work more precarious.
All sectors across the Global North and South must commit themselves to a just transition in which jobs will be created to address unemployment and working conditions will improve the well-being of workers.
Protecting the right to strike
Organised labour played an important role in the demise of apartheid. Stay-aways and protest were central for workers in demonstrating their anger, expressing their desire for freedom and liberation and forcing the state and capital to make significant concessions. It is no wonder that after apartheid the right to strike was enshrined in our Constitution.
Until written reasons are provided, we cannot tell whether the judgment was made solely on a technical point of law. But what can be said is that the Labour Court gave little regard to the facts of the case in granting the interdict.
Given that much planning and organising goes into preparing a strike or a protest, it should not be quite so easy for our courts to grant interdicts against protest action, and even more so without written reasons accompanying the judgment when it is given.
Considering that the major instrument workers have in raising their demands and bargaining with employers is their ability to strike, it is good that Cosatu is taking the matter on appeal.
With South Africa’s executive and parliament making it more difficult for workers to go on strike, and with labour law reforms forcing workers to ballot before calling a strike, judicial decisions such as this condemn workers, already facing uncertain futures, to a permanent state of hopelessness.
- 150,000 South African security guards set to go strike if minimum wage demands are not met
Nine South African unions, representing around 150,000 security guards, have termed the employers’ offer of a 1.1% hike an insult. Security guards can barely afford the basic necessities for a single adult, with hardly any means left to support dependents.
Nine unions representing South Africa security guards will hold talks with employers on October 1 and 2. Nearly 150,000 security guards in South Africa may go on strike unless employers accept their demands during meetings with nine unions on October 1 and 2. The security guards have been demanding a hike in the minimum wage.
This meeting is part of a compulsory mediation process mandated by the Industry Protocol on negotiations, in which the aggrieved unions must participate before giving a strike notice. If no resolution is reached, the unions may thereafter refer the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).
If the CCMA also fails to bring the parties to a settlement, it can then provide a certificate which clears the way for the unions to serve the employers with a strike notice.
‘As it is, we are preparing to lead workers to the mother of all strikes if bosses don’t put a reasonable offer on the table,’ Zanele Sabela, spokesperson of South African Transport and Allied Workers Union (SATAWU), told Peoples Dispatch.
A total of nine unions in the sector have come together, demanding a minimum pay of R7,500 ($494) for Grade C security officers, and R8,000 ($527) and R8,500 ($560 for those in Grade B and A) respectively.
Security officers currently earn R4,377 ($228), R4,891 ($322) and R5,557 ($366) in Grades C, B and A, respectively. These numbers only represent the wages before deductions have been made from them.
After deductions, a Grade C worker might take home pay as low as R3,800 ($250), Sabela said: ‘It is hard to survive on that especially when one has children. What it means is that the circle of poverty is passed down from one generation to the next. Some take up loans to supplement their income and end up heavily indebted.’
These wages are lower than the living wage required by a single adult, estimated to be R6,340 ($418). Similarly, the living wage required to ensure the basic requirements of food, housing, transport, education and healthcare for a typical family last year was estimated to be R11,300 ($745) per month.
The unions have said in a joint statement that: ‘We are even prepared to consider any progressive offer that can ensure that such a minimum salary could be realised within a three-year period at least.’
Since the current wages are ‘extremely insufficient even to cover the basic daily needs’, the unions are also raising the ‘demand for a hospital cover where employers will be compelled to make at least 60% contribution towards hospital benefits, which will enable Security Officers to have direct access to better health care facilities.’
Meanwhile, the employers’ offer for a hike has been as low as 1.1%. They have also not committed to the provisions for healthcare, as demanded by the unions.
With an unemployment rate as high as almost 30%, the crime rate in South Africa is also very high, and multiple surveys indicate that crime is often cited by South Africans as their second biggest concern after unemployment itself.
‘Statistics show that the security industry employs twice as many officers than the police and national defence force combined. Security officers definitely assist in combating crime through technology, guarding, response etc.
‘This industry is highly regulated, with more than one government department overseeing it. The work of security officers is often dangerous and that is why we find employers’ latest offer of a 1.1% increase an insult,’ Sabela explained.
‘Labour has outrightly rejected this offer which equates to a hike of a mere R0.23 per hour for a Grade C Security officer,’ the joint statement by the nine unions read, adding that, ‘this can be nothing other than an unfortunate insult to workers’.
The unions had officially put forth their demands on July 23, following which negotiations with the employers, under the auspices of Industry Bargaining Council, started from August 15.
‘Since then, we have had at least four rounds of negotiations, wherein it became absolutely clear that from the beginning that employers were not prepared to participate and play a meaningful role in substantial improvement of the living standard of a life of a Security Officer,’ the unions have complained.
However, they hope that the meeting on October 1 and 2, will see the employers ‘come well prepared, with a senior delegation’, unlike the previous unfruitful rounds of negotiations held over the past month, where those in ‘very junior positions in their companies with no executive authority whatsoever’ were sent as the employers’ representatives.
Should the current ‘posture and attitude displayed by employers’ persist, the unions warn, ‘the battle is on the horizon and we can call upon each Security Officer in the country, in every shop, mine-shaft, power station, mall, factory, bank, building etc to be combat-ready for a protracted battle that lies ahead.’