Share

Inside Labour: The uneven scales of justice

“A SCAB’S charter.” This was one published description of the Labour Relations Act (LRA) when it came into being 19 years ago. Because, although the bulk of the act was warmly accepted by the labour movement, it contained a clause that seemed to undermine its basic precept.

Section 76 (1b) allows employers to respond to a strike by locking out the workforce and then - and this was the nub of the “scab charter” claim - to employ “replacement labour”. Such labour can be sourced from “a temporary employment service or an independent contractor”, what the unions refer to as “labour brokers”.

In the years since then, employers have not used this section, perhaps aware that it would exacerbate tensions at the time of strikes. It would also set worker against worker, with potentially dangerous consequences.

Now it appears that at least some members of the National Employers‘ Association (Neasa) see this as a way forward to perhaps weaken metalworkers’ union Numsa and to allow members to hire a lower-cost workforce.

Part of the Neasa propaganda has been that the unions are to blame for rising joblessness and the economic crisis faced by business.

'Looney Left' claims untrue

Such claims are clearly nonsense - as are the claims that the unions have been “taken over by the looney Left”. There has been no significant change in union leaderships in recent times; what has changed is the circumstances in which workers find themselves. And these are not of their making.

As I have stressed before: workers and their unions react to the environment imposed on them. And that environment is largely decided by the policies and actions of corporations, companies and governments.  What workers do to protect themselves is to organise into unions and use, ultimately, their threat of withholding labour to gain a measure of fairness - of justice - in a grossly unequal society.

This right to strike, to withhold labour, is now enshrined in the South African constitution, but it was a right that had to be fought for. And it remains the only weapon workers have in their struggle to maintain, let alone improve, their standards of living.

The labour movement is also aware that the old trade union dictum that there is one law for the rich and one for the poor, still holds true: those with deeper pockets can afford the time and hire the expertise to tip the already uneven scales of justice.

And so it was that the unions pressed for labour laws that might at least introduce more of an element of justice into the work environment.

But employers also exerted pressure and this is evident in Section 76 (1b) of the LRA. However, this legislation along with, in particular, the Basic Conditions of Employment Act, was a major move away from the old, almost feudal, masters and servants approach of the apartheid past.

And individual workers, generally lacking the resources to hire lawyers and pay hefty court costs, also won the right to free access to conciliation and arbitration through the establishment of the Commission for Conciliation, Mediation and Arbitration (CCMA). This was designed to provide speedy resolutions to disputes between employees and employers.

But the scales of justice remained - and remain - uneven:  any employer having refused conciliation and mediation and having lost in the arbitration process, can take the matter on review to the labour court. This process, almost inevitably, requires the services of lawyers, and can drag on for months and even years.

A classic case of this kind concerned Virginia Swart who, in 1997, became the first person in the country to pursue an age discrimination case - at the age of 29.  She represented herself through court postponements for more than a year. Then, with her husband having lost his job, this young mother of three was offered R1 500 to drop the case, and she took the money.

But now even that small element of fairness enjoyed by Virginia Swart in the CCMA is gone. In September last year, in a little publicised move, the Law Society of the Northern Provinces won a judgment allowing lawyers, by right, to appear in CCMA hearings.

The argument was that the prohibition of lawyers in such hearings amounted to unfair discrimination, that it was contrary to clauses in the constitution and the Equality Act. The justice department and the CCMA now intend challenging the judgment.

What workers can hope for is that justice and the public interest will trump the narrow, sectoral interests of the legal profession.

* What's your take? Add your voice to the ongoing labour debate or ask Terry any labour-related questions.

 - Fin24

* Terry Bell is an independent political, economic and labour analyst. Views expressed are his own. Follow him on twitter @telbelsa.

We live in a world where facts and fiction get blurred
Who we choose to trust can have a profound impact on our lives. Join thousands of devoted South Africans who look to News24 to bring them news they can trust every day. As we celebrate 25 years, become a News24 subscriber as we strive to keep you informed, inspired and empowered.
Join News24 today
heading
description
username
Show Comments ()
Voting Booth
Do you think corruption-accused National Assembly Speaker Nosiviwe Mapisa-Nqakula will survive a motion of no confidence against her?
Please select an option Oops! Something went wrong, please try again later.
Results
No, her days are numbered
41% - 474 votes
Yes, the ANC caucus will protect her
59% - 680 votes
Vote
Rand - Dollar
18.94
-0.0%
Rand - Pound
23.91
-0.0%
Rand - Euro
20.41
+0.1%
Rand - Aus dollar
12.33
+0.1%
Rand - Yen
0.13
-0.0%
Platinum
908.05
+1.2%
Palladium
1,014.94
0.0%
Gold
2,232.75
-0.0%
Silver
24.95
-0.1%
Brent Crude
87.00
+1.8%
Top 40
68,346
0.0%
All Share
74,536
0.0%
Resource 10
57,251
0.0%
Industrial 25
103,936
0.0%
Financial 15
16,502
0.0%
All JSE data delayed by at least 15 minutes Iress logo
Editorial feedback and complaints

Contact the public editor with feedback for our journalists, complaints, queries or suggestions about articles on News24.

LEARN MORE