Ebrahim Harvey writes that it is interesting and intriguing why the media has paid relatively little attention to the new amendments to the Labour Relations Act and the Basic Conditions of Employment Act, and the passage of the National Minimum Wage Bill.  These amendments are being considered in Parliament, especially since these bills, if passed into law, will have severely negative implications for both organised and unorganised workers in South Africa.

The amendments are rightly regarded as the biggest threat to the huge achievements in labour laws trade unions made in earlier years. But before exploring the new Labour Relations Act provisions, we need to look at the provisions of the new Minimum Wage Bill.

In this regard, there is deep concern, which is probably why the labour ministry announced a decision to delay implementation of the miserably inadequate R20 per hour new minimum wage, which was meant to coincide with Labour Day, May 1, the very day that workers globally resolve to continue the struggle for higher wages and a decent standard of living. Was it therefore not a cynical contradiction and provocation to have in the first place scheduled the introduction of this poor minimum wage to coincide with that day?

However, if we regard the R20 per hour national minimum wage as paltry, it is even worse for the lowest paid workers – namely domestic and farmworkers and those employed in the Expanded Public Works Programmes (EPWP).

They are all excluded from that minimum wage and were instead scheduled to be given even lower new hourly minimum wages of R18 for domestic workers, R15 for farmworkers and R11 for EPWP workers from May 1.

Does President Cyril Ramaphosa expect these workers to celebrate these pitiably poor minimum wages, especially given the very low wage base that they began with? These wage minimums are in fact the antithesis of a living wage, which was always understood to be a decent and liveable one that would enable those workers to live much better lives and regain some of the lost dignity that very low wages imposed on them for many years.

These paltry minimum wages for the poorest workers are nothing less than adding insult to the centuries old low wage injury black workers and their families have suffered since diamonds and gold were discovered in this country in the 19th century, which continued after 1994. R50 an hour would arguably be a decent hourly national minimum wage, especially when the lowest-paid workers are today struggling more than they ever did in post-apartheid South Africa to make ends meet.

Ramaphosa is where he is today as a result of the power ordinary mineworkers gave him when he led for many years the National Union of Mineworkers in the 1980s and early 1990s. It is from that base that he has ascended to various senior posts and now to the highest office in the land. That he had better not forget. Furthermore, in the light of the Marikana tragedy, in which he was implicated, one would have expected him to want to make amends by adopting a more approachable attitude towards the basic wage. These wage minimums are nothing less than an assault on and belittling of the meaning of the living wage campaign which Cosatu launched in the 1980s.

But what is reprehensible is that the leadership of the three trade union federations, Cosatu, the Federation of Unions of South Africa (Fedusa) and the National Council of Trade Unions (Nactu) had earlier at the National Economic Development and Labour Council (Nedlac) entered into negotiations which culminated in these amendments.

For these unions to have done so because their members might be unaffected by the minimum wage is the most revealing indictment of the leadership of these unions.

They lost an opportunity to demonstrate solidarity with these low-wage and most vulnerable workers. Besides, the enforcement of the of new minimum wages will now fall to the Commission for Conciliation, Mediation and Arbitration (CCMA), and no longer with the Department of Labour. There are several negative implications this will have in the cumbersome and potentially lengthy procedure to be followed in referring wage disputes to the CCMA, including cases where employers have not complied with wage orders. In the light of the known capacity constraints the CCMA has had, this will become more onerous.

The next big labour law amendments are to the Basic Conditions of Employment Act (BCEA). The new minimum wage determinations will have a negative impact on this Act since it plans to scrap sectoral wage determinations, which will be replaced with the prescriptions of the new national minimum wage legislation. These are bureaucratic machinations which are going to create many problems for unions once implemented. This brings me to the amendments to the Labour Relations Act, which I regard as the most draconian piece of proposed legislation in post-apartheid South Africa, but which does not seem to have bothered these same union leaders. At the heart of these amendments is the severe curtailment of the right to strike, which in fact contradicts the relevant provisions in the Constitution. I argue therefore that these amendments are in the final analysis unconstitutional.

The ANC government, the labour ministry and Ramaphosa, in particular, have no right to impose on workers such amendments.

But this subversion of the right to strike will not go unchallenged, from what I can gather. It appears that the ANC government and Ramaphosa are going to face protracted mass opposition to these amendments in the coming weeks.

On April 25, the National Union of Metalworkers of South Africa has planned a general strike and has called on all workers to support it. This will also be an important test of the strength of the new South African Federation of Trade Unions, to which Numsa belongs. The deafening silence of that supposed leader and defender of the working class, the SACP, has been conspicuous.

Another serious infringement is an amendment which imposes secret ballots before a strike can take place. What this does is to transform what was a democratic, open and collective decision to strike into an individual and privatised one, which will by its nature create tensions among workers and between them and management.

The amendments also provide a mechanism whereby strikes can only be bureaucratically resolved through arbitration panels led by senior CCMA commissioners.

Employers will also be able to request the intervention of the CCMA and place pressure on striking workers to resolve or end strikes without necessarily having to properly, fairly and directly negotiate with unions. Besides, the decisions reached through the CCMA will be binding on all parties and unions can also be interdicted during this process. If passed this would make protected strikes a thing of the past.

If they succeed in forcing these amendments through in Parliament, it will be the severest setback for the labour movement in the post-apartheid period.

The original of this opinion piece by political writer and former Cosatu trade unionist Ebrahim Harvey appeared on page 17 of The Sunday Independent of 1 April 2018

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