Continuity Through Change?

CONTENTS

1. INTRODUCTION

2. THE DUALISTIC LABOUR RELATIONS SYSTEM

3. BIG RIPPLES IN A SMALL POND

4. THE POST APARTHEID ERA

5. CONCLUSION

INTRODUCTION

Any discussion of industrial citizenship in South Africa is one which requires not only a focus on the current labour relations dispensation, but which tracks the development of labour relations in South Africa as it progressed along a winding path, beginning with the import of trade unionism from Britain in the latter stages of the nineteenth century.^[1] From the outset industrial citizenship was not extended to all workers, with race providing the basis for inclusion and exclusion, and the dual labour relations system was formally crystallized in 1953.^[2] Under the apartheid regime, labour relations created pattern of inclusion and exclusion on a racial basis which was swept away in 1979 with the state’s acceptance and implementation of the recommendations made by the Wiehahn Commission.^[3] South Africa’s triple transition has been “accompanied by a process of corporate and workplace restructuring,”^[4] engendering new patterns of inclusion and exclusion as South Africa has entered a globally integrated economy where exclusion is justified on the grounds of cost reduction and increasing competitiveness.^[5]

This essay aims to make the argument that a large (and growing) portion of the South African workforce has roughly gone full circle in terms of industrial citizenship – where under apartheid they were denied labour rights and access to the industrial relations machinery, they are currently in a situation where the gains won throughout the liberation struggle and cemented in post-apartheid labour legislation are increasingly being eroded as they are shifted to a section of the workforce which finds itself beyond the scope of labour legislation. This paper is divided into four sections, the first providing a discussion of the dualistic labour relations system. The second section discusses the immediate legislative reforms effected in the wake of the 1973 Durban strikes, the establishment of the Wiehahn Commission, its recommendations and the effect thereof on labour relations in South Africa. The third section focuses on the post-apartheid era, and the final section concludes

THE DUALISTIC LABOUR RELATIONS SYSTEM

The reach of the apartheid system was not confined to the socio-political realm, but extended to the industrial relations system and found itself reflected in, as well as shaping, the occupational and social structure of the workplace.^[6] Where white and black workers initially “worked side by side” and shared mutual interests, cheaper black labour presented a threat to white job security and this, coupled with the emergence of Afrikaner nationalism slowly gave rise to widening “divisions in the sphere of labour relations.”^[7] Industrial unrest resulting from employer attempts at introducing “black labour into jobs reserved for white union members only” culminated in the 1922 Rand Rebellion, when violence broke out between white miners and the armed forces, resulting in a death toll exceeding 200.^[8] Lacking formal legislative framework governing dispute-settling and negotiation between employers and their workers, the government responded to this incident by introducing the Industrial Conciliation Act (ICA) of 1924.^[9] Representing the first comprehensive piece of “labour legislation to be introduced,”^[10] the ICA was the first step towards a dualistic labour relations system as the omission of ‘pass-bearing natives’ from the definition of ‘employee’ effectively excluded this category of workers from the Act’s provisions.^[11] Based on the belief that “black employees were not sufficiently responsible to engage in collective bargaining,”^[12] the ICA prevented black workers from joining registered trade unions, thus precluding them from the official dispute resolution and negotiation machinery,^[13] a process whereby the state effectively created one system of industrial relations for white, coloured and Indian workers, and another for black workers.^[14]

The primary objective towards which the ICA was directed was the prevention of industrial unrest, a goal to be obtained via provision for “the machinery for collective bargaining and for conciliation in the event of dispute.”^[15] The Act and subsequent amendments to it provided for the creation of industrial councils and conciliation boards, and made any strike action that occurred in the absence of prior negotiation in either of these forums illegal, thus placing a criminal sanction on it.^[16] The ICA also provided for mediation and arbitration, with the latter being statutory in essential services, and the Act further allowed for the voluntary establishment employer’s associations and trade unions.^[17] These organisations could register under the Act, “and together establish and register industrial councils,”^[18] which then became the formally and legally recognized bargaining structures. Agreements reached at industrial councils became legally enforceable once/if gazetted.^[19] The ICA provided a stable basis for the conduct of industrial relations, however, and as has been mentioned above, because black workers we excluded from the definition of ‘employee’, trade unions representing black workers were prohibited from registering under the Act.^[20] The effect of excluding black trade unions from registering under the Act meant that they were also prohibited from joining industrial councils or applying for conciliation boards, and as a result, “could not...institute legal strike action.”^[21]

Despite the prohibition on joining registered trade unions, and the resultant exclusion from the industrial relations machinery, there was no provision preventing black workers from establishing and joining unregistered trade unions.^[22] However, these unions faced a considerable challenge in that they were not recognised in the official dispute resolution and negotiation machinery, and the only means through which recognition could be gained was through direct second-tier negotiation with individual employers for substantive and procedural agreements, although these agreements were not criminally binding.^[23] In passing the ICA, the state aimed to offset black workers from establishing and joining trade unions, and as a result, incorporated white, coloured and Indian trade unions into machinery that allowed for effective state control over them.^[24] With regards to the unregistered black unions, the state, not at ease with their development, perceived them as sleeping giants with the potential to cause industrial instability and unrest as well as to call for political and social change.^[25] As a result, the state reverted to a reliance on a heavy arsenal of repressive and coercive security legislation to outlaw organisations and band union leaders, and furthermore, the state employed its repressive machinery to avert marches, prevent meetings, picketing and demonstrations.^[26] An increase in militancy of multiracial and non-racial unions, as well as those representing black workers continued in the face of heavy state repression and employer attempts to further erode their working conditions to the extent that it focused the state’s attention on the issue of continuing unrest amongst black workers.^[27] In response a number of government officials pointed to the wage board system – set up under the 1925 Wage Act – to be used to advance the interests and conditions of these unions’ members, others called for the development of collective bargaining machinery for black workers.^[28] A recommendation came from the Under Secretary of Labour as early as 1928 for the establishment of legitimate channels by which grievances can be voiced and the resolution of disputes by conciliatory means similar to the State approved methods for other workers.^[29] The ICA was amended in 1930 to provide “for the extension of industrial council agreements to Blacks,” and the amendment to the Act in 1937 “added to this provision allowing for representation of black employee interests on industrial councils by representatives of the Department of Labour.”^[30]

Black worker militancy continued unabated throughout the 1930s and 1940s, and when the Nationalist Party came to power late in the 1940s, Ben Schoeman, the new minister of labour, established the Botha Commission in 1949, with the objective of examining the existing labour legislation and industrial relations system in South Africa.^[31] The mandate afforded to the Commission by its terms of reference allowed it address what was seen as the “persistent problem of mixed trade unionism, as well as the pressing question of incorporating African workers into the ICA as ‘employees’.”^[32] Recognising that union enfranchisement as well as parity participation in industrial relations and recognition under labour legislation might very well be perceived as precursor for wider socio-political enfranchisement, resulting in racial equality and ultimately putting white supremacy at risk, the Commission opposed this.^[33] The Botha Commission did however recommend the establishment of separate bargaining structures for black unions and workers but “emphasised that recognition of black unions should be subject to stringent conditions and that strike action should be outlawed.”^[34] The government did not share the Commission’s view regarding the encouragement of black trade unions, and accepted some, but not all – most notably, a total refusal of recognition to any kind form of black trade union – of the Commission’s recommendations and passed the Bantu Labour (Settlement of Disputes) Act (BLA) in 1953, which later became known as the Black Labour Relations Regulation Act.^[35]

Recognised as the “single piece of legislation that established industrial relations machinery for proletarianized Africans,”^[36] the BLA formally crystallized the dualistic labour relations system. The primary aim of this Act was to counter and avert the development of black trade unions by providing for the establishment of an alternative means of consultation, namely in-plant workers’ committees.^[37] The BLA “established an elaborate, hierarchical and highly paternalistic structure of industrial legislation for Africans...that allowed for the Department of Labour to ‘look after’ their interests without any input from workers themselves.”^[38] The provisions of the Act provided not only for consultation via the workers’ committees, but also for a “convoluted dispute-settling procedure which still out-lawed legal strike action.”^[39] Three years after the enactment of the BLA, the state passed the Industrial Conciliation Act of 1956 – which later became known as the Labour relations Act of 1956,^[40] which became the new cornerstone “for labour legislation relating to collective bargaining.”^[41] It resulted in continued and increased polarisation as it “excluded all ‘Bantu’ (including black African women),” placed a prohibition on continued registration of multiracial unions, unless by approval of the minister, and “placed restrictions on the registration of already mixed race unions and provided that such unions could not have mixed executives.”^[42] Furthermore, the ICA “introduced a system of job reservation whereby a particular occupation could be legally reserved for a certain race group.”^[43]

The abovementioned legislation served, more effectively than in any prior period, to entrench “racial division in the conduct of the labour relationship.”^[44] The discussion of these acts, and broadly their provisions, was aimed towards providing a description of the labour relations system prevalent in South Africa since the introduction of labour legislation in that country. That South Africa had a dualistic labour relations system formally sanctioned and legitimised by the state, is without question. Where one set of industrial relations machinery was developed and established for white, coloured and Indian workers, another set was developed for black workers, the only difference being that black workers and the trade unions representing these workers were excluded from the official industrial relations system.^[45] Excluded from the formal definition of ‘employee’, and prohibited from registering under the legislation, black workers and the trade unions representing them were not only denied parity participation and representation,^[46] but legislation creating an industrial relations system for them, was primarily aimed towards averting the development of black trade unions and ensure continued control and dominance over black labour.^[47]

[...]

^[1] Robert A. Jones, “The emergence of Shop-floor Trade Union Power in South Africa,” Managerial and Decision Economics 6 (1985): 160.

^[2] Sonia Bendix, Industrial Relations in South Africa, 4th ed., (Lansdowne: Juta and Co, 2000), 52, 55; Martheanne Finnemore, Introduction to Industrial Relations in South Africa, 9th ed., (Durban: LexisNexis Butterworths, 2006), 25-26; Jones, 160; Francine de Clercq, “Apartheid and the Organised Labour Movement,” Review of African Political Economy 14 (1979): 69.

^[3] Finnemore, 29; Bendix, 74-6.

^[4] Karl Von Holdt and Edward Webster, “Work Restructuring and the Crisis of Social Reproduction: A Southern Perspective,” in Beyond the Apartheid Workplace: Studies in Transition, eds., Edward Webster and Karl Von Holdt (Scottsville: University of KwaZulu-Natal Press, 2005), 4.

^[5] Von Holdt and Webster, 19.

^[6] Bendix, 55; Edward Webster, “Making a Living, Earning a Living: Work and Employment in Southern Africa,” International Political Science Review 26 (2005): 56.

^[7] Bendix, 55.

^[8] Jones, 160.

^[9] Jones, 160; Finnemore, 25.

^[10] Bendix, 55.

^[11] Bendix, 55; Finnemore, 26; Jones, 160.

^[12] Bendix, 55.

^[13] Jones, 160.

^[14] de Clercq, 69; Johann Maree, “The Emergence, Struggles and Achievements of Black trade Unions in South Africa from 1973 to 1984,” Labour, Capital and Society 18 (1985):286.

^[15] Bendix, 61.

^[16] Ibid.

^[17] Ibid.

^[18] Ibid.

^[19] Ibid.

^[20] Ibid.

^[21] Ibid.

^[22] Jones, 160.

^[23] Ibid.

^[24] de Clercq, 70; Maree, 286.

^[25] Jones, 161.

^[26] Ibid.

^[27] Bendix, 65; de Clercq 71.

^[28] Bendix, 61-2, 65.

^[29] Ibid, 65.

^[30] Ibid, 65.

^[31] Bendix, 66; de Clercq, 72; Alex Lichtenstein, “Making Apartheid Work: African Trade Unions and the 1953 Native Labour (Settlement of Disputes) Act in South Africa,” Journal of African History 46 (2005): 299.

^[32] Lichtenstein, 299.

^[33] Bendix, 66; Lichtenstein, 299.

^[34] Bendix, 66.

^[35] Bendix, 66; de Clercq, 72.

^[36] Lichtenstein, 296.

^[37] Bendix, 66; de Clercq, 72; Jones, 161.

^[38] Lichtenstein, 300.

^[39] Jones, 161.

^[40] Bendix, 67.

^[41] Bendix, 67.

^[42] Ibid.

^[43] Ibid.

^[44] Ibid.

^[45] Bendix, 55; de Clercq, 70; Jones, 160.

^[46] Lichtenstein, 300.

^[47] Jones, 161; Lichtenstein, 300.