New amendments to labour legislation are likely to increase unprotected strikes
Parliament is currently considering amendments to the Labour Relations Act (LRA), which, if passed, will dramatically alter the constitutional right to strike. The justification the Department of Labour provides in the impact assessment for the amendments is that strike action and, particularly, violent and protracted strike action is at an all-time high.
However, this assertion is not borne out by the department’s own data on strikes. In fact, the impact of these amendments is likely to increase, rather than decrease unprocedural strike action.
While it is true that the number of work stoppages has increased over the past decade, the increase has not been dramatic (see Figure 1).
But using the number of work stoppages as an indicator of industrial action is a very imprecise measure. More commonly, the number of working days lost is used as a more accurate measure of industrial action.
Figures from the department’s annual industrial action report show that, over a 10-year period, there has been a decline in the number of working days lost, even including the number of working days lost during the 2010 public sector strike and the 2014 platinum strike (see Figure 2).
The assertion that strikes are increasingly protracted is, again, not supported by the evidence. According to the department’s 2016 industrial action report, the quarterly analysis shows that more than two thirds of strikes lasted between one and five days. Only a very small number of strikes lasted more than 30 days. Based on the data supplied by the department there is no evidence that protracted strikes are a particularly prominent phenomenon within the South African industrial relations landscape.
What of the question of strike violence? Again, there is no clear evidence to support the claim that violent strikes are a particularly prominent or increasing phenomenon. The evidence presented by the department to substantiate increasing strike violence is based on secondary data compiled from media reports from the South African Institute of Race Relations (SAIRR), which look at the number of fatalities that have occurred through strikes. Media data is predisposed to reporting violent incidents and thus provides a flawed and inherently biased source of data.
There is no evidence that protracted strikes are a particularly prominent phenomenon within the South African industrial relations landscape
A much more reliable source of data, although not without its limitations, would be the number of incidents recorded within SA’s Incident Registration Information System (Iris) compiled by public order police within the South African Police Service. Myself and a team of researchers at the University of Johannesburg have worked extensively with this data and found that, between 1997 and 2013, 86% of all labour-related protests were orderly. Based on our understanding of more recent data there is no indication to suggest that the number of disorderly labour-related protests has significantly increased.
The evidence marshalled by the department can be described as weak, at best. What’s worse is that the amendments are likely to increase the problems they seek to solve.
The amendments introduce a raft of measures that will delay and inhibit the rights of workers to embark on protected strike action, through increasing the number of days for conciliation from 30 to 35 days, the introduction of secret ballots, and advisory arbitration. Each of these changes provide employers with more tools to disrupt strike action without engaging with the substantive issues raised by workers.
The compulsory introduction of secret ballots individualises an otherwise collective decision, but more fundamentally it takes away the ability of workers and unions to determine their own, internal, democratic processes. Furthermore, it provides employers with the opportunity to interdict strikes before they have even begun, based on legal challenges to the reason for which the secret ballot was conducted.
Advisory arbitration presents a number of additional challenges as unions would now be expected to involve experts in the deliberations of the advisory arbitration panel. This means that collective bargaining will become more technical in character and far removed from the control and direction of workers. Though the advisory arbitration process does not automatically interrupt or suspend the strike, workers and their unions will nevertheless have to contend with another bureaucratic procedure when exercising the right to strike. Unions are forced to take account of the advisory arbitration and its deliberation, even when they do not support it.
There is no indication to suggest that the number of disorderly labour-related protests has significantly increased
The introduction of new procedural and technical hurdles in exercising the democratic right to strike may, as experience from the implementation of the Regulations of Gatherings Act shows, actually increase the number of unprotected strikes. Evidence shows that when the constitutional rights to protest are frustrated by onerous administrative requirements, the likelihood is that citizens will disengage from the formal process and head to the streets anyway. The amendments to the LRA are likely to end up with the same result.
If the amendments were serious about tackling strike violence they should have addressed the cause: the use of scab labour. None of the proposed amendments will solve this problem, instead they will only frustrate workers through increasingly bureaucratic processes that can be endlessly subjected to legal challenges from employers.
Even the International Monetary Fund recognises that suppressing the right to strike leads to declining wages and increasing inequality. Given that SA is the most unequal country in the world, law makers should be giving serious thought as to how they can protect the rights of workers.
• Runciman is a senior researcher at the University of Johannesburg and a management committee member of the Casual Workers Advice Office