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

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comments

Trade union rights and civil liberties. Allegations of violent repression of strike actions and arrests of striking workers. The Committee notes with deep regret that the Government provides no information on the findings of the investigation into the arrest of 100 community health striking workers in July 2014 and the killing of a union steward of the Association of Mineworkers and Construction Union (AMCU) in January 2014. The Committee recalls the requirement of independent judicial investigations to be conducted rapidly in the case of allegations of violations of the rights and principles guaranteed by the Convention with a view to establishing the facts, violations and determining responsibilities, punishing the perpetrators and instigators and preventing the recurrence of such acts. In this regard, the Committee recalls that excessive delays in the procedures set in motion in response to such allegations create, in practice, a situation of impunity, which reinforces the existing climate of violence and insecurity (see the 2012 General Survey on the fundamental Conventions, paragraph 60). The Committee once again firmly urges the Government to take all necessary measures with a view to expediting the process of investigation and requests the Government to inform it of the findings.

In its previous observation, the Committee had requested the Government to provide detailed comments on the serious allegations of violations of trade union rights and civil liberties contained in the 2022 observations of the International Trade Union Confederation (ITUC). The Committee recalls that the ITUC alleged that strike actions in South Africa were often met with intimidation and anti-union dismissals, violence and arrests and referred in this respect to: (i) the assassination of a campaigner and organizer for the National Union of Metalworkers of South Africa (NUMSA) in August 2021; (ii) the killing of a member of the NUMSA in October 2021, during a protest march for a salary increase in the metal and engineering sector; (iii) the NUMSA allegation that some of its members have been attacked by the police and private security companies, and in some instances, have even been shot at, causing injuries; (iv) the alleged intimidation of South African Commercial Catering and Allied Workers Union (SACCAWU) members by employers during protests, in particular through the use of legal notices, unpaid leaves to self-isolate for allegedly violating COVID-19 safety rules, and text messages telling workers they had been replaced; (v) the alleged violence, such as threats, the use of rubber bullets and petrol bomb attacks against striking dairy workers, members of the General Industries Workers Union of South Africa (GIWUSA); and (vi) the alleged suspension of four members of the National Emancipated and Allied Workers Union of South Africa (NEAWUSA) following a month-long strike. The Committee notes the Government’s indication that freedom of association is a fundamental right enshrined in the Constitution of South Africa, and that the laws support the right to strike when industrial action is peaceful. The Government adds that the laws do not support the use of violence and destruction of property; when the law is violated and the intervention of police is solicited, their intervention must be within the ambit of the law. The Government further indicates that in instances where the police or private security agents violate the law, the trade unions or aggrieved individuals have the right to approach the courts. The Government emphasizes that all industrial actions are required to operate within the parameters of the law for them to be protected. The Government indicates that it is important that the allegations and complaints against the Government are supported by evidence. While noting the general explanation provided by the Government, the Committee notes with deep regret that there appears to be no investigation conducted into the ITUC serious allegations involving a number of national trade unions. The Committee emphasizes the importance of properly investigating all alleged instances of violence against trade union members and recalls that the authorities, when informed of such matters, should systematically request information from the unions involved and carry out an immediate investigation to determine who is responsible and punish the guilty parties. The Committee urges the Government to conduct a thorough investigation into the alleged instances of violation of civil liberties and trade union rights and requests the Government to provide information on the outcome.

The Committee further notes with regret that the Government did not provide detailed information on the implementation of 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 reiterates its previous request and expects the Government to transmit full particulars with its next report.

The Committee takes note of the Accord on Collective Bargaining and Industrial Action, the Code of Good Practice on Collective Bargaining, Industrial Action and Picketing, and Picketing Regulations and the Government’s indication that the Accord is the product of social dialogue and consensus between the State, Organized Business, Organized Labour and Community Constituency under the auspices of the National Economic Development and Labour Council (NEDLAC).

The Committee recalls that in its previous comments it had noted the Government’s indication that the social partners have deliberated under the auspices of the NEDLAC during 2015 and 2016 and have established amendments to the Labour Relations Act (LRA) with regards to picketing, secret ballots and the establishment of an advisory arbitration panel. The Committee once again requests the Government to indicate the status of the amendments and to provide a copy thereof once adopted.

Articles 2 and 3 of the Convention. Rights of vulnerable workers to be effectively represented by their organizations. The Committee had previously requested the Government to provide a copy of the research report on the impact of the amendments of the Labour Relations Act on trade unionization of temporary employees, and information on any developments regarding the Government’s interventions to address difficulties in the exercise of the right to organize by farmworkers, including on the ITUC’s 2015 observations alleging difficulties for farmworkers to engage in legally protected industrial action. The Committee notes the Government’s reply that it has not conducted any research, because there is nothing in the legislation that impedes trade unions from organizing in any sector irrespective of the workers’ status. The Government points out that while it is its responsibility to create a conducive environment for organizations and workers to exercise their rights, it is not the Government’s responsibility to organize on behalf of workers. The Committee refers to its 2019 observation wherein it took note of the Government’s various initiatives aimed at addressing difficulties encountered by temporary workers and farmworkers, which included, among others, a commissioning of the above-mentioned research. The Committee reiterates its previous requests and expects the Government to transmit full details with its next report. In particular, the Committee expects clarification as to whether the research report that was announced in the past will be produced after all, or how else the Government intends to create a framework within which vulnerable workers can engage in legally protected industrial action.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee takes note of the observations of the International Trade Union Confederation (ITUC), received on 1 September 2022, referring to the matters addressed below.

Trade union rights and civil liberties. Allegations of violent repression of strike actions and arrests of striking workers.The Committee had previously requested the Government to reply to the 2015 ITUC observations, pertaining to the arrest of 100 community health striking workers in July 2014 and the killing, in January 2014, of a union steward of the Association of Mineworkers and Construction Union (AMCU) and to communicate the results of the investigation regarding the death of that union steward. The Committee notes the Government’s indication that the observation has been communicated to the Independent Police Investigative Directorate (IPID), which has yet to respond to the denunciations. The Government indicates that it will submit the IPID report as soon as it becomes available. Considering the years that have passed since the submission of the ITUC observations, the Committee firmly urges the Government to take all necessary measures with a view to expediting the process of investigation and requests the Government to inform it of the findings.

The Committee notes that in its most recent observations, the ITUC alleges that strike actions in South Africa are often met with intimidation and anti-union dismissals with violence and arrests and refers in this respect to the assassination of a campaigner and organizer for the National Union of Metalworkers of South Africa (NUMSA), in August 2021 whilst NUMSA officials were engaging in conciliation at the Commission for Conciliation, Mediation and Arbitration (CCMA), and the killing of a member of the NUMSA in October 2021, during a protest march for a salary increase in the metal and engineering sector. According to the ITUC, the NUMSA alleges that some of its members have been attacked by the police and private security companies, and in some instances, have even been shot at, causing injuries. The ITUC further alleges that members of the South African Commercial Catering and Allied Workers Union (SACCAWU) were facing increased intimidation by their employer during protests, in particular through the use of legal notices, unpaid leaves to self-isolate for allegedly violating COVID-19 safety rules, and text messages telling workers they had been replaced. The Committee also takes note of the alleged violence, such as threats, the use of rubber bullets and petrol bomb attacks against striking dairy workers, members of the General Industries Workers Union of South Africa (GIWUSA). The Committee also notes the alleged suspension of four members of the National Emancipated and Allied Workers Union of South Africa (NEAWUSA) following a month-long strike. The Committee requests the Government to provide detailed comments on these serious allegations of violation of trade union rights and civil liberties.

The Committee notes with regret that the Government did not reply to its previous request to send copies of the Accord on Collective Bargaining and Industrial Action, the Code of Good Practice on Collective Bargaining, Industrial Action and Picketing, and Picketing Regulations, and the Labour Relations Act, as amended, and to provide detailed information on the implementation of the recommendations of the Judicial Commission of Inquiry into the events at Marikana Mine in Rustenburg. The Committee reiterates its previous request and expects the Government to transmit full particulars with its next report.

Articles 2 and 3 of the Convention. Rights of vulnerable workers to be effectively represented by their organizations. The Committee regrets that the Government did not provide a copy of the research report on the impact of the amendments of the Labour Relations Act on trade unionization of temporary employees, and also did not provide information on any developments regarding the Government’s interventions to address difficulties in the exercise of the right to organize by farmworkers, including on the ITUC’s 2015 observations alleging difficulties for farmworkers to engage in legally protected industrial action. The Committee reiterates its previous request and expects the Government to transmit full particulars in this respect with its next report.

[The Government is asked to reply in full to the present comments in 2023].

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

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.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments initially made in 2015.

Repetition

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2015. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2015, which are of a general nature.

Trade union rights and civil liberties. Allegations of violent repression of strike actions and arrests of striking workers. The Committee notes the Government replies to the 2008, 2010, 2011 and 2012 ITUC observations denouncing, in different sectors, many instances of violent repression of strike actions, leading to injuries and death, as well as the arrest of striking workers by the public authorities. The Committee notes that the Government states that: (i) the incidents pointed out by the ITUC, although regrettable, do not reflect the overall situation of crowd management by the Public Order Police; (ii) the Public Order Police takes action only in cases of extreme provocation and misconduct by the crowd during the strikes; (iii) in such cases, only non-lethal measures are used such as rubber rounds (consisting of rubber balls not bullets), stun grenades, tear gas and water canon; (iv) as from 1 April 2012, all firearms discharged by police are investigated by the Independent Police Investigative Directorate; and (v) violent behaviour during strike action is unacceptable and undermines the system of collective bargaining in the country. While taking due note of the Government replies, the Committee observes that in its 2015 observations, the ITUC denounces the arrest of 100 community health striking workers in June 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).

The Committee expresses its concern about the persistence, on the one hand, of violent incidents, leading to injuries and death, resulting from police intervention during strike actions and, on the other hand, of allegations of arrests of peaceful striking workers. The Committee recalls that, while strike actions shall be carried out in a peaceful manner, the authorities should only resort to the use of force in exceptional circumstances and in situations of gravity where there is a serious threat of public disorder, and that such use of force must be proportionate to the circumstances. Furthermore, the Committee recalls that the arrest, even if only briefly, of trade union leaders and trade unionists, and of the leaders of employers’ organizations, for exercising legitimate activities in relation to their right of association constitutes a violation of the rights enshrined in the Convention.

The Committee has also taken note of the release, on 25 June 2015, of the report of the Judicial Commission of Inquiry into the Events at Marikana Mine in Rustenburg, regarding the violent death of numerous workers during a strike action in August 2012. The Committee observes that the report contains general recommendations addressing, among other elements, the use of firearms by the police during violent strike actions, the public accountability of the South African Police Service in case of similar events as well as the effective functioning of the Independent Police Investigative Directorate. The Committee therefore requests the Government to provide information on the action taken to implement the recommendations of the mentioned Judicial Commission of Inquiry and trusts that the social partners will be consulted in this respect. The Committee requests additionally the Government to reply to the 2015 ITUC observations and to communicate the results of the investigation regarding the death of the AMCU union steward.

Articles 2 and 3 of the Convention. Rights of vulnerable workers to be effectively represented by their organizations. In previous comments, the Committee had noted the ITUC allegations regarding the difficulties faced by casual workers to enjoy the rights of the Convention. The Committee notes with interest that the Labour Relations Amendment Act adopted in August 2014 contains provisions aimed at facilitating the representation by trade unions of employees of temporary employment services or labour brokers (that is, employees made available to a client which assigns their tasks and supervises the execution of these tasks). The Committee notes especially that: (i) by virtue of the Labour Relations Amendment Act, trade unions representing the employees of temporary employment services or of a labour broker are now in a position to 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 invites the Government to provide information on the application and impact of these provisions.

The Committee additionally notes that, in its 2015 observations, the ITUC alleges that farmworkers are not in a position to meet the requirements to engage in legally protected industrial action. The Committee notes that the Government communicates the conclusions of the 2011 report on Identifying obstacles to unions organizing in farms: Towards a decent work strategy in the farming sector. The Committee requests the Government to provide information on any measures taken or planned to be taken to implement the conclusions of the abovementioned report and to reply to the ITUC observations.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2015. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2015, which are of a general nature.

Trade union rights and civil liberties. Allegations of violent repression of strike actions and arrests of striking workers. The Committee notes the Government replies to the 2008, 2010, 2011 and 2012 ITUC observations denouncing, in different sectors, many instances of violent repression of strike actions, leading to injuries and death, as well as the arrest of striking workers by the public authorities. The Committee notes that the Government states that: (i) the incidents pointed out by the ITUC, although regrettable, do not reflect the overall situation of crowd management by the Public Order Police; (ii) the Public Order Police takes action only in cases of extreme provocation and misconduct by the crowd during the strikes; (iii) in such cases, only non-lethal measures are used such as rubber rounds (consisting of rubber balls not bullets), stun grenades, tear gas and water canon; (iv) as from 1 April 2012, all firearms discharged by police are investigated by the Independent Police Investigative Directorate; and (v) violent behaviour during strike action is unacceptable and undermines the system of collective bargaining in the country. While taking due note of the Government replies, the Committee observes that in its 2015 observations, the ITUC denounces the arrest of 100 community health striking workers in June 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).

The Committee expresses its concern about the persistence, on the one hand, of violent incidents, leading to injuries and death, resulting from police intervention during strike actions and, on the other hand, of allegations of arrests of peaceful striking workers. The Committee recalls that, while strike actions shall be carried out in a peaceful manner, the authorities should only resort to the use of force in exceptional circumstances and in situations of gravity where there is a serious threat of public disorder, and that such use of force must be proportionate to the circumstances. Furthermore, the Committee recalls that the arrest, even if only briefly, of trade union leaders and trade unionists, and of the leaders of employers’ organizations, for exercising legitimate activities in relation to their right of association constitutes a violation of the rights enshrined in the Convention.

The Committee has also taken note of the release, on 25 June 2015, of the report of the Judicial Commission of Inquiry into the Events at Marikana Mine in Rustenburg, regarding the violent death of numerous workers during a strike action in August 2012. The Committee observes that the report contains general recommendations addressing, among other elements, the use of firearms by the police during violent strike actions, the public accountability of the South African Police Service in case of similar events as well as the effective functioning of the Independent Police Investigative Directorate. The Committee therefore requests the Government to provide information on the action taken to implement the recommendations of the mentioned Judicial Commission of Inquiry and trusts that the social partners will be consulted in this respect. The Committee requests additionally the Government to reply to the 2015 ITUC observations and to communicate the results of the investigation regarding the death of the AMCU union steward.

Articles 2 and 3 of the Convention. Rights of vulnerable workers to be effectively represented by their organizations. In previous comments, the Committee had noted the ITUC allegations regarding the difficulties faced by casual workers to enjoy the rights of the Convention. The Committee notes with interest that the Labour Relations Amendment Act adopted in August 2014 contains provisions aimed at facilitating the representation by trade unions of employees of temporary employment services or labour brokers (that is, employees made available to a client which assigns their tasks and supervises the execution of these tasks). The Committee notes especially that: (i) by virtue of the Labour Relations Amendment Act, trade unions representing the employees of temporary employment services or of a labour broker are now in a position to 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 invites the Government to provide information on the application and impact of these provisions.

The Committee additionally notes that, in its 2015 observations, the ITUC alleges that farmworkers are not in a position to meet the requirements to engage in legally protected industrial action. The Committee notes that the Government communicates the conclusions of the 2011 report on Identifying obstacles to unions organizing in farms. Towards a decent work strategy in the farming sector. The Committee requests the Government to provide information on any measures taken or planned to be taken to implement the conclusions of the abovementioned report and to reply to the ITUC observations.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in communications dated 4 August 2011 and 31 July 2012, alleging in particular, in different sectors, several instances of acts of violence, leading to injuries and death, arrests of striking workers as well as the dismissal of strikers (communication, pharmaceutical, retail chain, poultry, public and municipal sectors). The Committee recalls that it considers that in the event of assaults on the physical or moral integrity of individuals, an independent judicial inquiry should be instituted immediately with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. Furthermore, the Committee recalls that the arrest, even if only briefly, of trade union leaders and trade unionists, and of the leaders of employers’ organizations, for exercising legitimate activities in relation with their right of association constitutes a violation of the principles of freedom of association. The Committee also notes from the ITUC’s communication the difficulties faced by casual workers to join a trade union. While taking due note of the Government’s report on the implementation of the Convention, the Committee requests the Government to provide its observations to the ITUC’s serious comments, as well as the ITUC’s 2008 and 2010 comments. Finally, the Committee notes from the ITUC’s communication that a Labour Relations Amendment Bill has been finalized in 2012 and requests the Government to provide information on any developments in this regard.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010, reporting in particular acts of violence and arrests of workers – including trade union leaders – during the course of demonstrations and strikes in various sectors (municipal workers, communication workers, paper workers, clothing workers, parking attendants, hotel workers, etc.), as well as the dismissal of strikers, in 2009. The Committee wishes to recall as a general principle that trade union rights include the right to organize and participate in public demonstrations and the authorities should resort to the use of force only in situations where law and order is seriously threatened. The Committee further notes that, according to the ITUC, although the right to strike is recognized for all workers including in the public sector, it is undermined by the legal right of employers to hire replacement workers during a strike. The Committee recalls that in 2008 the ITUC had sent comments on serious infringement of trade union rights including attempts to obstruct unionization in the agricultural and communication sectors, police repression during a general strike and, in the mine sector, intimidation and mass dismissals following strikes. While taking due note of the Government’s report on the implementation of the Convention, the Committee requests the Government to provide its observations to the ITUC’s comments of 2008 and 2010.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s reply to the comments previously sent by the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation).

The Committee recalls that the ICFTU comments referred to acts of violence and arrests during the course of strikes and demonstrations, as well as massive dismissals of strikers in various sectors (truck drivers, toll operators, metalworkers, teachers, rural workers, public sector, etc.) in 2005.

The Committee takes due note of the detailed information provided by the Government according to which, the issue of massive dismissals was related to restructuring operations, which do not constitute an exclusively South African phenomenon and were carried out within a legal framework which provides for consultations with employees as well as conciliation/mediation facilities and the possibility to refer the matter to the Labour Court for adjudication or the Commission for Conciliation, Mediation and Arbitration (CCMA) for arbitration. Furthermore, with regard to the intervention of the police in various incidents the Government indicates that this was prompted by the commission of violent and criminal acts. The Committee takes due note of the detailed information provided by the Government on each incident mentioned by the ICFTU which indicates that police intervention was not prompted by a motive to intimidate workers but rather to uphold the law and protect property and lives. Finally, the Committee notes that the Government emphasizes that the Bill of Rights enshrined in the Constitution of the country provides that although everyone has a right to assemble, demonstrate and picket, these actions must be peaceful and unarmed; everyone has the right to life and to be free from all forms of violence from either public or private sources.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report.

The Committee also notes the comments of the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006, which refer in particular to acts of violence and arrests during the course of strikes and demonstrations, as well as massive dismissals of strikers in various sectors (truckers, toll operators, metalworkers, teachers, rural workers, public sector, etc.) in 2005. The Committee expresses concern at the gravity of the allegations and requests the Government to provide its observations thereon.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information provided in the Government’s report in reply to its previous comments.

Article 2 of the Convention.  In its previous comments, the Committee requested the Government to indicate whether independent contractors, who are not covered by the Labour Relations Act, could otherwise associate to further and defend their occupational interests. In its latest report, the Government states that employment legislation in South Africa is primarily aimed at protecting and securing rights of vulnerable members of the working group, in particular those who are primarily uneducated, less skilled or non-skilled and have no bargaining power relative to employers or potential employers. Independent contractors, while excluded from relying on the Labour Relations Act in respect of their labour rights, are nonetheless guaranteed the freedom to associate and further their occupational interests under the Constitution. While independent contractors cannot redress their claims in labour courts, the ordinary courts of the land are available to them, as well as to associations acting in their interest, to seek enforcement of their rights. The Government therefore considers that the spirit of Article 2 is complied with in respect of independent contractors. The Government adds however that proposed amendments to employment legislation may result in the inclusion of independent contractors and other persons involved in atypical employment relationships within the ambit of legislation such as the Labour Relations Act and the Basic Conditions of Employment Act.

The Committee notes this information with interest and requests the Government to keep it informed of the progress made in including independent contractors and other persons in atypical employment relationships within the ambit of the labour legislation.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's first report, including the Constitution of the Republic of South Africa, Act 108 of 1996, and the Labour Relations Act No. 66 of 1995 attached thereto.

Article 2. The Committee notes that article 18 of the Constitution, 1996 provides that everyone has the right to freedom of association, and article 23 gives every worker the right to form and join a trade union. Slightly different wording is found in the Labour Relations Act, 1995 ("the Act"), which provides in section 4 that every "employee" has the right to form and join a trade union. Independent contractors (due to the definition of "employee" in section 213), however, are not entitled to exercise the rights under the Act. In its report, the Government states that the Act applies to civil servants and rural workers. Section 209 provides that the Act binds the State. While welcoming that the scope of the Act is much broader than under the previous legislation, the Committee requests the Government to indicate in its next report whether independent contractors can otherwise associate to further and defend their occupational interests.

The Committee further notes that the Act provides a system whereby "representative" trade unions are entitled to exercise a number of rights. For access to some of the organizational rights under Chapter III of the Act, to be considered "representative", a trade union (or two or more acting jointly) must have as members the majority of the employees employed by an employer in the workplace (section 14). One of the rights given to such trade unions is to assist and represent employees in grievance and disciplinary proceedings (section 14(4)(a)).While noting that the definition of "representative trade union" in section 14(1) permits unions to act jointly to gain a majority, the Committee requests the Government to inform it in its next report as to whether minority unions acting independently can represent their members in the case of individual grievances.

Articles 3 and 10 (Right to organize activities to further and defend interests). With respect to the right to strike, the Committee notes that the right is guaranteed under the Constitution (article 23(2)(c)), and that detailed provisions on strikes are found in Chapter IV of the Act. The Committee notes that pursuant to section 65, strikes are prohibited in a "maintenance service", which is narrowly defined (section 75). The Committee notes further that pursuant to section 75, where there is no collective agreement governing the matter, the Essential Services Committee as part of its determination of what is to be included in a particular situation as a maintenance service "may" decide that disputes in that service be referred to arbitration. The Committee requests the Government to indicate the avenues open for settling a dispute in a maintenance service where the Essential Services Committee does not refer the matter to arbitration.

Concerning essential services, which are defined in the Act in conformity with freedom of association standards and principles, the Committee requests the Government to inform it whether there is an appeal from the decision of the Essential Services Committee.

Finally, the Committee requests the Government to include with its next report a copy of the legislation currently in force governing criminal law, and to supply information on any measures taken or contemplated to bring the legislation into fuller conformity with the Convention.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the Government's first report, including the Constitution of the Republic of South Africa, Act 108 of 1996, and the Labour Relations Act, Act No. 66 of 1995 attached thereto.

The Committee notes with satisfaction that further to the recommendations made by the Fact-finding and Conciliation Commission on Freedom of Association (see "Prelude to change: Industrial relations reform in South Africa", Official Bulletin, Special Supplement, 1992), the Labour Relations Act, 1995 constitutes a considerable improvement over the previous legislation. In particular, the Committee welcomes that the Labour Relations Act, 1995 has broad coverage, including civil servants and rural workers within its scope, and that it permits union pluralism and the right to strike. It also removes administrative interference in the internal affairs of trade unions, and provides for the simplification of the registration process.

The Committee is also addressing a request directly to the Government.