Workers’ Right matter: Here is why

By: Nneka Akwu

For decades, workers in South Africa have been exploited at different levels. During the Apartheid period, employers thrived on cheap labour. Most workers had to struggle with many unfriendly scenarios such as oppressive laws, poverty, an influx of migrants, job reservations and low wages. The Native Labour Regulations Act 1911, which was operational then, introduced a fixed wage system and forbade any trade union that existed from embarking on strike even in the face of oppression. For instance, still in the Apartheid regime, more than 70,000 Chinese labourers were brought in to be used by landowners and undercut the wage bill of locals and other workers. Even though the Blacks could not embark on strike, the Whites were not satisfied with such a decision and had to embark on major strikes in 1907, 1913, 1914 and 1922. Several developmental changes occurred in the field of labour law in South Africa between 1979 and 1995, culminating in radical changes that birthed the sitting of the first Commission of Enquiry. This sitting led to the establishment of an Industrial Court to develop, mould, and sharpen the law. The Commission for Conciliation, Mediation and Arbitration (CCMA) was introduced in 1995 as an administrative tribunal. The CCMA is there to conciliate between parties and moves the matter to arbitration if unsuccessful. All the processes are informal without charge, making them accessible to all workers. Reports showed that about 300 new cases were brought before the CCMA every day. The Labour Relations Act 1995 also regulated the issue of fairness, not only in termination but during employment, too. In 1998, however, most of the law on unfair labour practices was removed from the Labour Relations Act 1995 and put into the Employment Equity Act (EEA). The EEA also deals with issues such as fairness regarding a worker’s human immunodeficiency virus (HIV) status or disability and the issue of affirmative action. The Basic Conditions of Employment Act (BCEA), the Health and Safety Acts and the Skills Development Act must be read with the Employment Equity Act.

Since 1995, most the labour law has been based on statute. It must be noted that prior to this time, labour relations were based on contracts. South Africa’s Constitution now guarantees workers’ rights, such as the right to strike. The South African constitution now protects workers’ rights, and this is enshrined in Section 23, which deals with labour relations. This section gives the workers the same privilege as citizens regarding dignity, equality and privacy. The section reads, according to the Constitutional Court of South Africa:

• “Everyone has the right to fair labour practices;
• Every worker has the right to form and join a trade union; to participate in the activities and programmes of a trade union; and to strike;
• Every employer has the right to form and join an employers’ organisation; and to participate in the activities and programmes of an employers’ organisation;
• Every trade union and every employers’ organisation has the right to determine its own administration, programmes and activities; to organise; and to form and join a federation;
• Every trade union, employers’ organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1);
• National legislation may recognise union security arrangements contained in collective agreements. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1);
• This section guarantees workers the right to fair labour practices, to form and join trade unions, and to participate in union activities and strikes;
• South Africa’s Constitution now goes far in guaranteeing workers’ rights, such as the right to strike.”

Section 23 also allows employers to join an affiliated organisation and engage in collective bargaining. The constitution did not expressly state the employer’s right to prevent their worker from performing their duty but gave some rights to the employers in certain situations. The unfair labour practices were removed from the Labour Relations Act of 1995 in 1998 to form what was known as the Employment Equity Act, which deals with workers’ peculiar situations, such as their status regarding human immunodeficiency virus (HIV) or disability. Parliament has passed a lot of new law since 1994 that involves labour issues. Some of these actions by the parliament gave rise to the Basic Conditions of Employment Act of 1997, the Health and Safety Acts and the Skills Development Act.

With all these laws that confer protection on workers’ rights, many benefits accrue from its enforcement. These benefits include but are not limited to:

• It will boost the workers’ morale: In any organisation, productivity is the watchword. For workers to put in their best and be productive, the law should protect their rights. The law may also outline some special allowances for those on special or essential duties. Part of the pact may include getting a better welfare package and a good working environment for the employees.
• It will prevent undue suspension or harassment of workers: A secured job is what every worker needs as it will give them some semblance of self-confidence. Workers must be aware of the Basic Conditions of Employment Act. Any time they are unduly harassed or intimidated, they can seek help from the appropriate authority, such as Commission for Conciliation, Mediation and Arbitration. Workers must be aware that Commission can handle not all disputes for Conciliation, Mediation and Arbitration when it involves independent contractor and does not deal with an issue in the Labour Relations Act or Employment Equity Act, where a bargaining council or statutory council exists for that sector and where a private agreement exists for resolving disputes. The Employment Equity Act provides that harassment amounts to “a form of unfair discrimination” and as such, is prohibited. The various forms of harassment that exist in the workplace include: sexual harassment, racial harassment, sexual-orientation harassment, and religious harassment.
• It abolishes any form of discrimination: The Labour Relations Act 1995 deals with discrimination in the workplace. Section 6 of the Employment Equity Act contains the main thrust of the Act’s prohibition against unfair discrimination. It provides that “no person may unfairly discriminate, directly or indirectly, against an employee, in any employment policy or practice, on one or more grounds, including race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language and birth.”
• Unfair dismissal: In other words, workers cannot be fired indiscriminately without a fair hearing. If there are any dispute between the employer and employee over any matter that has to do with conditions of service, the Commission for Conciliation, Mediation and Arbitration can be consulted to conciliate or even arbitrate on the dispute. Any employer or the employee (it can be through a union) can initiate this action if one party does not need the other party’s consent to initiate the matter at Commission for Conciliation, Mediation and Arbitration.

In conclusion, it is the right of workers to live a dignified life. For better productivity and undue harassment, workers’ rights must be protected under the law for the reasons outlined above. There must be dignity in labour.

 Dr. Nneka Akwu is a researcher at the University of KwaZulu-Natal. She writes in her personal capacity