Proposed amendments to the Labour Relations Act of 1995, presented to the Portfolio Committee by the Democratic Alliance, were rejected outright by Members of the ANC.
The Committee was informed the purpose of the Bill was to protect the general public from violence and intimidation during strike action, and to protect them from any associated malicious destruction of private property. The Bill also sought to allow workers who were not striking the freedom to go to work without intimidation or threats, and to impose penalties against unions for violence where prescribed good practices were not adhered to during legitimate strike action.
The Bill aimed to encourage registered unions to take reasonable steps to avoid violence, intimidation or threats and damage to property during strike action. Registered unions would be expected to remedy an injury to a person and repair damage to property caused by the strike action. The Committee was told that the proposed amendments to the Labour Relations Act would have no constitutional or financial implications for the government.
It was pointed out that the Congress of South African Trade Unions (Cosatu) and its affiliates was the only federation that had objected to the Bill. It had objected on the grounds that it was unconstitutional, it went against the International Labour Organisation (ILO) resolutions on the right to strike, it was in conflict with the Gatherings Act of 1993, and was aimed at bankrupting trade unions. The DA submitted that such objections were vague, absurd and generalised complaints with no legal basis.
Members argued for and against the proposals. It was contended that the Bill did not take away the right to strike, but that the right had to be exercised carefully and judiciously. The proposed amendments were reversing the achievements of the country, because blacks were not allowed to join unions before 1994. The notion that registered unions should take responsibility for strike actions was not acceptable, because not all members who participated in strike action belonged to a registered union.
The Office of the Director-General indicated the Bill was pre-empting the outcome of the discussions taking place at Nedlac. Furthermore, it was felt it contained provisions that were covered in the Gatherings Act of 1993. The proposal was defeated by four ANC votes to the DA’s three, with the IFP Member reserving his vote, saying he still had to discuss it with his party.
Briefing on proposed amendments to Labour Relations Act
Mr Ian Ollis (DA) informed the Committee that the proposed amendments to the Labour Relations Act would have no constitutional and financial implications for the government. The Bill had been a labour of love for five years in Parliament. The purpose of the Bill was to protect the general public from violence and intimidation during strike action and to protect public and private property from malicious destruction during strikes. It sought to impose penalties on unions for violence during strike actions if prescribed good practices were not followed during legitimate strikes. The Bill also protected workers who were not striking, allowing them the freedom to go to work without intimidation or threats. The Bill could have saved many lives at Marikana if it had been implemented, because the judge could have declared the strikes at Marikana unprotected and forced all parties to arbitration. He emphasized that the right to strike was enshrined in the constitution, but it was important that the rights of those who wished to work should also be protected.
The Bill sought to amend the Labour Relations Act of 1995. It encouraged registered unions to take reasonable steps to avoid violence, intimidation or threats, and damage to property during strike action. Registered unions would be expected to remedy an injury to a person and repair damage to property caused during a strike. It also aimed to incentivise trade unions for taking reasonable steps to avoid violence during strikes. The Bill sought to give courts the power to issue orders, award damages and refer a dispute to arbitration.
He suggested a balance must be struck between the right of workers to strike legally, and avoiding or minimising incidents of violence that damaged property or injured other people. COSATU and its affiliates was the only federation that objected to the Bill. They felt the Bill:
was against International Labour Organisation (ILO) resolutions on the right to strike;
was in conflict with the Gatherings Act of 1993;
was aimed at bankrupting trade unions.
Mr Ollis stressed that the Bill was not in conflict with the Gatherings Act of 1993, but it was complementing it, and the objection had no legal basis. The Bill was in no way bankrupting trade unions, but was instead protecting union members from being bankrupted by the trade unions, because when the trade unions were sued, a certain percentage would be taken from the salaries of the union members. To drive his point home, he made an analogy by saying speeding fines were not bankrupting motorists, but served to penalise motorists for not observing the rules of the road and to prevent the loss of lives. This was what the proposed amendments were about -- to penalise registered trade unions for not taking reasonable steps to avoid violence and damage to property during a strike.
Lastly, he said he had tried all available means to distribute the proposal to as many relevant stakeholders as possible. It had been was gazetted in the Government Gazette on 5 November 2014. The only thing he could not afford to do, due to financial reasons, was to publish it in national and regional newspapers.
Mr Graham Giles, Director: Work Science Institute of SA, said the labour laws of South Africa were there for the benefit of the employers, not the worker. It had been proved by many case studies that employers won the cases. He said the Bill sought to advise on how to behave during strike action, and to penalise those who damaged property while they were striking. The Bill did not prohibit striking, but it advocated that people should be responsible and not damage property or harm other people during strikes. It sought to avoid settling disputes in court, as that resulted in the loss of a lot of money that had to be paid by trade unions for legal fees.
Ms Noluthando Mpikashe, Parliamentary Legal Advisor, said that the Bill was not unconstitutional. It contained no provisions that would render it unconstitutional. The Bill did not conflict with the Gatherings Act. It contained what was provided in the Gatherings Act.
Mr Thobile Lamati, Director-General: Department of Labour, stated that what Mr Ollis had raised was an issue that was still being discussed at the National Economic Development and Labour Council (Nedlac). The Labour Relations Act made the provisions that Mr Ollis was talking about, but the Parliament rejected them. The Department was of the view that the proposal was already covered by the provisions of the Gatherings Act of 1993. The Bill pre-empted the outcome of the Nedlac process.
Mr M Bagraim (DA) commented that the Bill provided an opportunity to take the trade unions to court and force them to pay the legal costs. It did not take away the right to strike, but stated that that right had to be exercised carefully and judiciously. The Bill also sought to protect the workers from being dismissed by employers when they misbehaved during a legal strike, because in many cases employers would film those who misbehaved and dismiss them. The Act currently bankrupts the members of a union, because when the trade union was sued, the members had to fork out money to help the union pay for the damages.
Ms P Mantashe (ANC) said that for some people, it was a pleasure to table the Bill before the Committee. She pointed out that the proposed amendments were reversing the achievements of the country, because blacks were not allowed to join unions before 1994. She said there must be consultation with Nedlac and other stakeholders on the matter, because the Gatherings Act of 1993 covered what the DA was proposing.
Mr Ollis stated that the precepts of the Bill were not contained in the Gatherings Act of 1993. The Gatherings Act referred to gatherings. The amendment dealt with the behaviour of participants during a strike. There was a difference between a gathering and a strike action. Further, the Bill allowed the Labour Court to enforce arbitration if a person was harmed or murdered during a strike action.
Ms F Loliwe (ANC) said she disagreed with the notion that registered unions should take responsibility for strike actions, because not all members who participated in a strike action belonged to a registered union. She supported the assertion of Mr Giles that there was nothing wrong with South African labour laws, and felt there was no need to make the amendments. The Committee should wait for Nedlac to arrive at its conclusion regarding the matter.
Mr Ollis said that the Opposition did not have a voice in Nedlac -- it was only the ruling party and its partners. The proposal had been sent to Nedlac, but it had never acknowledged receipt of the proposal. The Opposition was excluded from Nedlac. It could not give any input. The duty of the Opposition was to propose new ideas with regard to legislation, and the only way to reach Nedlac was through the Committee.
Mr D America (DA) disagreed with the view of Ms Mantashe that blacks could not join unions before 1994. He added that if the Bill was supported, this would bring about a radical shift in the Labour Relations Act, because it would protect the worker against the violent actions of fellow members, and would bring stability to the economy.
Ms S van Schalkwyk (ANC) remarked that most people who participated in strikes did not have access to the Government Gazettes. It was clear most strikers had not made any proposals regarding the Bill. It was only a few who had made comments, and it had not been indicated where the contributors were from, so this was not a majority view proposal. She voiced her support for the views of Ms Mantashe and Ms Loliwe that the proposals were not different from the provisions of the Gatherings Act of 1993 and that the Committee should wait for the outcome of the Nedlac discussions.
Mr Ollis stated it was not true that everyone did not have access to the Gazette regarding the Bill. All the trade unions had been forwarded the proposals, so if ordinary members of the unions had not received it, it was the unions that had failed them. The proposal had been submitted to all relevant stakeholders, and it had taken five years for it to reach the Committee.
The Chairperson told Mr Ollis to be sensitive and careful about what he said. She said it was not true that the Committee could not call Nedlac to account to Parliament. The ANC was governing, and it must not be made to feel apologetic about that.
Mr Ollis insisted that the only way for the Opposition to communicate with Nedlac was through the Committee.
Mr Bagraim said that the Gatherings Act of 1993 did not apply to circumstances of this nature. There were many opinions about the Gatherings Act.
Ms Loliwe told the Committee that the ANC was rejecting the Bill because its provisions were contained in the Gatherings Act.
Three Members from the DA voted for the Bill, while four from the ANC voted against.
Mr M Mncwango (IFP) reserved his vote, saying he still had to discuss it with his party.
Meeting was adjourned.
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