Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - South Africa (Ratification: 1996)

Trade union rights and civil liberties. Allegations of violent repression of strike actions and arrests of striking workers. The Committee had requested the Government to provide information on the action taken to implement the recommendations of the Judicial Commission of Inquiry into the Events at Marikana Mine in Rustenburg, regarding the violent death of 34 workers during a strike action in August 2012. The Committee had noted that these recommendations addressed, among other elements, the use of firearms by the police during violent strike actions, the public accountability of the South African Police Service (SAPS) in case of similar events as well as the effective functioning of the Independent Police Investigative Directorate (IPID). The Committee notes that with regard to the investigation of the case in question, the Government indicates that it is being investigated by the IPID, and that the matter is now in the hands of the National Prosecuting Authority (NPA), which will decide whether or not anyone should be charged and if so, what charges should be brought against those implicated. The Committee further notes that, in its report, the Government indicates that the burden of protracted strikes and strike violence have triggered an agreement by the Government, organized business and organized labour to work together to consider options to address violence and prolonged strikes. The Government explains that the social partners have deliberated under the auspices of the National Economic Development and Advisory Council (NEDLAC) during 2015 and 2016 and have established amendments to the Labour Relations Act (LRA) with regards to picketing, secret ballot and the establishment of an advisory arbitration panel, the Code of Good Practice on Collective Bargaining, Industrial Action and Picketing, and Picketing Regulations. The Committee notes that the Government further indicates that it consulted with NEDLAC constituencies, trade union parties, employer parties, agencies, the SAPS, and NPA on signing the Accord on Collective Bargaining and Industrial Action, agreeing that: (i) the constitutional right to strike and the statutory right to lockout must be peaceful, free of intimidation and violence, including violence and intimidation that may be associated with police action; (ii) strike action by workers and trade unions is a legitimate exercise of power to pursue demands; and (iii) prolonged strike action has the potential to cause serious harm not only to strikers and their employers but also to others inside and outside the workplace. Having noted the adoption of the Accord and the Code of Good Practice on Collective Bargaining, Industrial Action and Picketing, and Picketing Regulations, and also the proposed amendments to the LRA, the Committee requests the Government to send copies of the Accord, the Code of Good Practice, and also of the amended legislation once adopted, and to provide detailed information on any other developments in this regard, including on the implementation of the recommendations of the Judicial Commission of Inquiry into the Events at Marikana Mine in Rustenburg.

The Committee had noted that in its observations of 2015, ITUC denounced the arrest of 100 community health striking workers in July 2014 and the killing, in January 2014, during a clash with the Police that took place in the context of a strike, of a union steward of the Association of Mineworkers and Construction Union (AMCU), and had therefore requested the Government to reply to these observations and to communicate the results of the investigation regarding the death of the union steward. In the absence of information in this regard, the Committee reiterates its requests.

Articles 2 and 3 of the Convention. Rights of vulnerable workers to be effectively represented by their organizations. The Committee had requested the Government to provide information on the application and impact of the provisions of the Labour Relations Amendment Act, adopted in August 2014, aimed at facilitating the representation by trade unions of employees of temporary employment services or labour brokers. The Committee had noted that: (i) by virtue of the Labour Relations Amendment Act, trade unions representing the employees of temporary employment services or of a labour broker may exercise their organizational rights not only at the workplace of the employer, but also at the client’s workplace; and (ii) employees of temporary employment services or of a labour broker who participate in a legally protected strike action are entitled to picket at the client’s premises. The Committee notes that the Government indicates that it has been party to commissioning research on the extent to which trade unions are making use of the new rights in the LRA and that the draft research reports indicate that the impact of the amendments on trade unionization of temporary employees is limited. The Government states that once the report has been finalized, it can be made available to the Committee. The Committee requests the Government to provide a copy of the research reports, as well as information on any other developments in this regard.

In its previous comment, the Committee had also requested the Government to provide information on any measures taken or planned to be taken to implement the conclusions of the 2011 report on Identifying obstacles to unions organizing in farms: Towards a decent work strategy in the farming sector, and to reply to the ITUC’s 2015 observations which alleged that farmworkers are not in a position to meet the requirements to engage in legally protected industrial action. The Committee notes that the Government provides information on its interventions to deal with the difficulties in the farming sector through: (i) a centralized bargaining forum in the farming sector, explaining that centralized collective bargaining remains the main form of fixing minimum wages in South Africa apart from sectorial determinations; (ii) considering the establishment of a national minimum wage that will increase wages of all workers irrespective of a sector or geographical location where the employee works, while still allowing for sectoral determination; (iii) a training provided by the Department of Labour through Inspection and Enforcement Service’s advocacy campaigns to workers, employers and workers’ representatives and empowering workers in the farming sector where union levels are low; (iv) a plan currently under way to enhance the capacity of the labour inspectorate and create more posts in different provinces to inspect, advocate and initiate enforcement on the employment laws to cover all the sectors; (v) availability of funds to unions for advocating workers’ rights; and (vi) a collaboration between the Department of Labour, the government departments and other relevant stakeholders in the farming sector on various policy issues such as labour legislation affecting the farming sector and occupational health and safety on farms. The Committee welcomes the Government’s interventions to address difficulties in the exercise of the right to organize by farmworkers and requests the Government to provide information on any further developments in this regard, including as to ITUC’s 2015 observations alleging difficulties for farmworkers to engage in legally protected industrial action.