THE government on Wednesday announced an immediate review of minimum
wages for all farm workers as part of a deal in which trade unions
representing striking Western Cape farm workers agreed to return to work
on Thursday.
The development came after a day of unprecedented
and frequently violent protest action by farm workers in the Western
Cape, in which one worker was confirmed dead as a result of police
action in Wolseley. Other towns in which protesters clashed with
police and public roads were barricaded included: De Doorns, Ceres,
Prince Alfred Hamlet, Robertson, Ashton, Bonnievale, Villiersdorp and
Piketberg. Amid the chaos, Western Cape Premier Helen Zille warned
that the province was "heading for anarchy", and that thousands of jobs
could be on the line.
The promised wage review will have profound
implications for the agricultural sector, for which the labour minister
has set a minimum wage of R70 a day. It could also push up food prices
and inflation, and have a knock-on effect on other minimum wages. Western
Cape farm workers are demanding R150 a day. If they find the new
minimum wage, expected to be announced within two weeks, unacceptable,
they will resume striking on December 4. At a press briefing in
Cape Town on Wednesday, acting labour minister Angie Motshekga — Labour
Minister Mildred Oliphant is out of the country — said a notice will be
published in the Government Gazette within a week "indicating the
intention to call all interested parties to comment on the possibility
to review the sectoral determination". A notice will also be
published announcing the cancellation of the existing wage
determination, affecting all agricultural workers.
The Employment
Conditions Commission, the statutory body which advises the labour
minister on minimum wages, was meeting from Wednesday to begin
determining a new minimum wage. Employer and worker representatives will
have an opportunity to make representations to the commission on
appropriate wage levels. There was some uncertainty over whether a
single minimum wage for all agricultural sectors will again be set, or
whether there will be differentiation according to different province’s
products.
Congress of South African Trade Unions (Cosatu) Western
Cape secretary Tony Ehrenreich is advocating that there should be
differentiation within the sector as some products — such as the table
grapes grown in the De Doorns area where the strike began — are more
profitable than others.
Agriculture, Forestry and Fisheries
Minister Tina Joemat-Pettersson said on Wednesday that the commission
would have to make recommendations on whether new minimum wages should
be set for all provinces, or whether the higher wages would apply only
in the Western Cape. However, the cancellation of the existing determination necessarily implies that wages in all provinces be reviewed.
Cosatu,
which led the brokering of the deal between the government and the
strikers, was confident on Wednesday that workers would return to work,
despite the strike spreading across towns and farms in the Western Cape
over the past two days. Although not initially involved in the
labour action, Cosatu and a coalition of independent unions and
nongovernmental organisations active on the farms were "invited" by
strikers to represent them in the negotiations. Cosatu subsequently
assumed a leading role in the action among workers, of whom only 6% are
unionised. Co-ordination of the strike across the towns was
achieved largely through the relatively small networks of organisations,
which spread word by SMS.
Mr Ehrenreich said the agreement
contained three key elements: an urgent review of the national minimum
wage; that no disciplinary action be taken against strikers; and that an
interim minimum of R80 apply until the new wage is agreed.
Wednesday
was the second day of unprecedented and frequently violent protest
action by farm workers in the Western Cape. One worker was confirmed
dead as a result of police action in incident in the town of Wolseley.
Other towns in which protesters clashed with police and public roads
were barricaded yesterday included: De Doorns, Ceres, Prince Alfred
Hamlet, Robertson, Ashton, Bonnievale, Villiersdorp and Piketberg.
Premier
of the Western Cape Premier Helen Ms Zille wrote to President Jacob
Zuma on Tuesday, asking him and Ms Oliphant to set a new minimum wage
for farm workers. On Wednesday, Ms Zille made a desperate appeal
for co-operation to Western Cape African National Congress leader Marius
Fransman. "We are heading towards anarchy. Thousands of jobs will
be lost and an industry potentially destroyed," she said in an SMS to
Mr Fransman. "I am receiving horrific reports of farm worker
intimidation. It is essential that we remove politics from this matter
and stabilise the situation. I am extremely worried that lives are in
danger and that people will retaliate."
Presidency spokesman Mac
Maharaj said yesterday that Ms Zille could ask for the South African
National Defence Force’s assistance to quell the violence as Mr Zuma had
already authorised its deployment until January to assist with public
violence nationwide after the Marikana tragedy in September. Mr
Maharaj said Ms Zille had to engage with Ms Oliphant and Defence
Minister Nosiviwe Mapisa-Nqakula. "There is no need for the president to
micromanage everything. Ms Zille should approach the channels
available," he said.
Employer body Agri SA said the setting of
minimum wages was the sole preserve of government. Agri SA president
Johannes Möller said farmers were free to negotiate with workers on pay.
"Agri SA has encouraged farmers, where possible, to pay above the
minimum wage."
Cape Chamber of Commerce president Fred Jacobs said
the government should return to "an empirical methodology" rather than
"sucking a number out of the sky to determine what should be paid".
Source: Mail & Guardian
Showing posts with label Labour Legislation. Show all posts
Showing posts with label Labour Legislation. Show all posts
Thursday, November 15, 2012
Tuesday, September 25, 2012
Sharp divisions on the Constitutional Court about the right to strike
In the aftermath of the Marikana massacre, the rights of striking workers and the unions they might belong to have once again come under the spotlight. Judging from the letters pages of middle brow newspapers, blog comments and callers to phone-in programmes, many middle class South Africans are about just as sympathetic to strikers and their constitutionally protected rights as they are to Julius Malema. Many middle class South Africans of whatever race seem to view striking workers as something of a menace, people who make unreasonable demands which – if agreed to – would threaten the comfortable existence of affluent members of society.
Luckily for striking workers, the majority of judges of the Constitutional Court do not seem to share this view. Last week, in the judgment of South African Transport and Allied Workers Union (SATAWU) and Others v Moloto N.O and Another the majority (in a judgment co-authored by Justice Yacoob, Froneman and Nkabinde, with Cameron and Van der Westhuizen concurring) rejected the argument of the minority (in a judgment authored by Acting Justice Maya, with Chief Justice Mogoeng, and Justice Jafta and Skweyiya concurring) that section 64(1)(b) of the Labour Relations Act obliged every employee who intends to embark on a strike to notify his or her employer of that intention personally or through a representative for the strike action to be protected.
In this case SATAWU members went on a strike and provided the employer with the requisite notice (as required by section 64(1)(b) of the Act) that its members would embark on a strike. Employees who were not SATAWU members joined the strike without individually giving notice to the employer that they would do so. These employees were subsequently dismissed because of their failure to notify the employer that they would join the strike.
Section 64(1)(b) states that striking employers are protected and cannot be fired if certain procedural requirements are met, including the requirement that “at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer”.
For the majority the starting point of the inquiry was the Constitution, which protects the right to strike as a fundamental right without expressly limiting this right. The majority affirmed that constitutional rights conferred without express limitation should not be cut down by interpreting ambiguous legislative provisions as imposing implicit limitations on them.
As section 64(1)(b) contains no express requirement that every employee who intends to participate in a protected strike must personally or through a representative give notice of the commencement of the intended strike, nor that the notice must indicate who will take part in the strike, it was sufficient that SATAWU had given notice that it would strike. As the majority stated:
It is an accepted interpretative principle in our constitutional jurisprudence that if there is more than one interpretation of a statutory provision that is constitutionally compliant, the interpretation that best conforms with the spirit, purport and objects of the Bill of Rights should be preferred. In this case the interpretation not requiring every non-unionised member to give notice of their intention to take part in a strike organised by a union best conforms to the spirit, purport and object of the Bill of Rights.
This becomes even more evident if one recalls that the right to strike is protected in the Constitution at least partly in recognition of the fact that there are disparities in the social and economic power held by employers and employees. Employers have far more power than individual employees and in order to redress the inequality in social and economic power in employer/employee relations, employees are granted the right to strike to even out the playing field. To require individual employees to give detailed information of not only when they will strike but how many of them will strike, “would run counter to the underlying purpose of the right to strike in our Constitution – to level the playing fields of economic and social power already generally tilted in favour of employers”. As the majority pointed out:
The minority took a more restrictive view of the rights of strikers and is more closely aligned with the interests of employers than with those of employees. Focusing on the objects of the Labour Relations Act (instead of on the relevant section in the Bill of Rights which guarantees for employees the right to strike), the minority found that employers would be negatively affected if employees were not all required (either individually or through their representatives) to give notice to employers that would embark on a strike.
In contrast to the majority view, which focused on the imbalances in power between striking workers and their employers, the minority seemed to assume that employers were pretty powerless in the face of a strike. Accordingly, they claimed:
The minority would therefore have re-interpreted the relevant section of the Labour Relations Act so as to require that employees provide an employer with a notice “that makes it possible for the employer to reasonably identify the employees that may strike. And whilst this requirement may well place a burden on the exercise of the right to strike, the constitutionality of the provisions is not in the balance and it is therefore unnecessary to resolve the question.”
The two judgments therefore seem to reflect rather stark ideological differences between the judges on the Constitutional Court as well as differences in how to view the relationship between the provisions of the Bill of Rights, on the one hand, and provisions of legislation giving effect to those rights on the other.
The majority seem to be decidedly more progressive by assuming that the right to strike contained in the Bill of Rights should be limited as little as possible in order to ensure the levelling of the playing field between employers and employees. They would therefore oppose an interpretation of the legislation that would impose limitations on this right unless such limitations are expressly stated in the Labour Relations Act itself.
The minority seems to be rather more sympathetic to employers and big business and less enthusiastic about protecting the rights of striking workers. They are also more eager to interfere in the work of the democratically elected Parliament by re-interpreting legislation passed by that Parliament in such a manner that it would limit the rights of workers – even if that was perhaps not what the democratically elected Parliament intended to do.
Wonder whether the Cosatu representative on the Judicial Service Commission (JSC) is regretting his support for the appointment of some of the Constitutional Court justices who joined this minority decision. But I guess that is what you get when you remain loyal to an Alliance in which your own class interests will ultimately almost always be trumped by the class interests of those pro-business and pro-tender elites who currently dominate the leadership of the ANC.
Source: Constitutionally Speaking
Luckily for striking workers, the majority of judges of the Constitutional Court do not seem to share this view. Last week, in the judgment of South African Transport and Allied Workers Union (SATAWU) and Others v Moloto N.O and Another the majority (in a judgment co-authored by Justice Yacoob, Froneman and Nkabinde, with Cameron and Van der Westhuizen concurring) rejected the argument of the minority (in a judgment authored by Acting Justice Maya, with Chief Justice Mogoeng, and Justice Jafta and Skweyiya concurring) that section 64(1)(b) of the Labour Relations Act obliged every employee who intends to embark on a strike to notify his or her employer of that intention personally or through a representative for the strike action to be protected.
In this case SATAWU members went on a strike and provided the employer with the requisite notice (as required by section 64(1)(b) of the Act) that its members would embark on a strike. Employees who were not SATAWU members joined the strike without individually giving notice to the employer that they would do so. These employees were subsequently dismissed because of their failure to notify the employer that they would join the strike.
Section 64(1)(b) states that striking employers are protected and cannot be fired if certain procedural requirements are met, including the requirement that “at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer”.
For the majority the starting point of the inquiry was the Constitution, which protects the right to strike as a fundamental right without expressly limiting this right. The majority affirmed that constitutional rights conferred without express limitation should not be cut down by interpreting ambiguous legislative provisions as imposing implicit limitations on them.
As section 64(1)(b) contains no express requirement that every employee who intends to participate in a protected strike must personally or through a representative give notice of the commencement of the intended strike, nor that the notice must indicate who will take part in the strike, it was sufficient that SATAWU had given notice that it would strike. As the majority stated:
The point of departure in interpreting section 64(1)(a) [and, one assumes, section 64(1)(b)] is that we should not restrict the right to strike more than is expressly required by the language of the provision, unless the purposes of the Act and the section on “a proper interpretation of the statute … imports them.” The relevance of a restrictive approach is to raise a cautionary flag against restricting the right more than is expressly provided for. Intrusion into the right should only be as much as is necessary to achieve the purpose of the provision and this requires sensitivity to the constraints of the language used.
It is an accepted interpretative principle in our constitutional jurisprudence that if there is more than one interpretation of a statutory provision that is constitutionally compliant, the interpretation that best conforms with the spirit, purport and objects of the Bill of Rights should be preferred. In this case the interpretation not requiring every non-unionised member to give notice of their intention to take part in a strike organised by a union best conforms to the spirit, purport and object of the Bill of Rights.
This becomes even more evident if one recalls that the right to strike is protected in the Constitution at least partly in recognition of the fact that there are disparities in the social and economic power held by employers and employees. Employers have far more power than individual employees and in order to redress the inequality in social and economic power in employer/employee relations, employees are granted the right to strike to even out the playing field. To require individual employees to give detailed information of not only when they will strike but how many of them will strike, “would run counter to the underlying purpose of the right to strike in our Constitution – to level the playing fields of economic and social power already generally tilted in favour of employers”. As the majority pointed out:
to hold otherwise would place a greater restriction on the right to strike of non-unionised employees and minority union employees than on majority union employees. It is these employees, much more than those who are unionised or represented by a majority union, who will feel the lash of a more onerous requirement. There is no warrant for that where they were already denied the right to bargain collectively on their own behalf in the preceding process.
The minority took a more restrictive view of the rights of strikers and is more closely aligned with the interests of employers than with those of employees. Focusing on the objects of the Labour Relations Act (instead of on the relevant section in the Bill of Rights which guarantees for employees the right to strike), the minority found that employers would be negatively affected if employees were not all required (either individually or through their representatives) to give notice to employers that would embark on a strike.
In contrast to the majority view, which focused on the imbalances in power between striking workers and their employers, the minority seemed to assume that employers were pretty powerless in the face of a strike. Accordingly, they claimed:
if a notice gives an employer no indication of which of its employees might strike, it is nigh impossible to conceive how the employer will prepare properly for the impending power play. How will it make an informed decision as to whether or not to yield to the employees’ demands? And, if it resists, how will it take proper steps to protect its business, the employees and the public and engage meaningfully in pre-strike regulatory discussions regarding issues such as picketing rules?
The minority would therefore have re-interpreted the relevant section of the Labour Relations Act so as to require that employees provide an employer with a notice “that makes it possible for the employer to reasonably identify the employees that may strike. And whilst this requirement may well place a burden on the exercise of the right to strike, the constitutionality of the provisions is not in the balance and it is therefore unnecessary to resolve the question.”
The two judgments therefore seem to reflect rather stark ideological differences between the judges on the Constitutional Court as well as differences in how to view the relationship between the provisions of the Bill of Rights, on the one hand, and provisions of legislation giving effect to those rights on the other.
The majority seem to be decidedly more progressive by assuming that the right to strike contained in the Bill of Rights should be limited as little as possible in order to ensure the levelling of the playing field between employers and employees. They would therefore oppose an interpretation of the legislation that would impose limitations on this right unless such limitations are expressly stated in the Labour Relations Act itself.
The minority seems to be rather more sympathetic to employers and big business and less enthusiastic about protecting the rights of striking workers. They are also more eager to interfere in the work of the democratically elected Parliament by re-interpreting legislation passed by that Parliament in such a manner that it would limit the rights of workers – even if that was perhaps not what the democratically elected Parliament intended to do.
Wonder whether the Cosatu representative on the Judicial Service Commission (JSC) is regretting his support for the appointment of some of the Constitutional Court justices who joined this minority decision. But I guess that is what you get when you remain loyal to an Alliance in which your own class interests will ultimately almost always be trumped by the class interests of those pro-business and pro-tender elites who currently dominate the leadership of the ANC.
Source: Constitutionally Speaking
Friday, February 16, 2001
PROTECTED DISCLOSURES ACT 26 OF 2000
The purpose of the Protected Disclosures Act is to make provision for procedures in terms of which employees in both the private and the public sector may disclose information regarding unlawful or irregular conduct by their employers or other employees in the employ of their employers; to provide for the protection of employees who make a disclosure which is protected in terms of this Act; and to provide for matters connected therewith.
Recognising that-
- the Bill of Rights in the Constitution of the Republic of South Africa, 1996, enshrines the rights of all people in the Republic and affirms the democratic values of human dignity, equality and freedom;
- section 8 of the Bill of Rights provides for the horizontal application of the rights in the Bill of Rights, taking into account the nature of the right and the nature of any duty imposed by the right;
- criminal and other irregular conduct in organs of state and private bodies are detrimental to good, effective, accountable and transparent governance in organs of state and open and good corporate governance in private bodies and can endanger the economic stability of the Republic and have the potential to cause social damage;
And bearing in mind that-
- neither the South African common law nor statutory law makes provision for mechanisms or procedures in terms of which employees may, without fear of reprisals, disclose information relating to suspected or alleged criminal or other irregular conduct by their employers, whether in the private or the public sector;
- every employer and employee has a responsibility to disclose criminal and any other irregular conduct in the workplace;
- every employer has a responsibility to take all necessary steps to ensure that employees who disclose such information are protected from any reprisals as a result of such disclosure;
And in order to-
- create a culture which will facilitate the disclosure of information by employees relating to criminal and other irregular conduct in the workplace in a responsible manner by providing comprehensive statutory guidelines for the disclosure of such information and protection against any reprisals as a result of such disclosures;
- promote the eradication of criminal and other irregular conduct in organs of state and private bodies
Source: SABINET
Recognising that-
- the Bill of Rights in the Constitution of the Republic of South Africa, 1996, enshrines the rights of all people in the Republic and affirms the democratic values of human dignity, equality and freedom;
- section 8 of the Bill of Rights provides for the horizontal application of the rights in the Bill of Rights, taking into account the nature of the right and the nature of any duty imposed by the right;
- criminal and other irregular conduct in organs of state and private bodies are detrimental to good, effective, accountable and transparent governance in organs of state and open and good corporate governance in private bodies and can endanger the economic stability of the Republic and have the potential to cause social damage;
And bearing in mind that-
- neither the South African common law nor statutory law makes provision for mechanisms or procedures in terms of which employees may, without fear of reprisals, disclose information relating to suspected or alleged criminal or other irregular conduct by their employers, whether in the private or the public sector;
- every employer and employee has a responsibility to disclose criminal and any other irregular conduct in the workplace;
- every employer has a responsibility to take all necessary steps to ensure that employees who disclose such information are protected from any reprisals as a result of such disclosure;
And in order to-
- create a culture which will facilitate the disclosure of information by employees relating to criminal and other irregular conduct in the workplace in a responsible manner by providing comprehensive statutory guidelines for the disclosure of such information and protection against any reprisals as a result of such disclosures;
- promote the eradication of criminal and other irregular conduct in organs of state and private bodies
Source: SABINET
Saturday, May 6, 1995
NATIONAL ECONOMIC, DEVELOPMENT AND LABOUR COUNCIL ACT 35 OF 1994
The purpose of the National Economic, Development and Labour Council Act is to provide for the establishment of a national economic, development and labour council; to repeal certain provisions of the Labour Relations Act, 1956; and to provide for matters connected therewith.
Establishment of National Economic, Development and Labour Council
(1) There is hereby established a council to be known as the National Economic, Development and Labour Council.
(2) The Council shall be governed by an executive council and shall in addition consist of four chambers, namely -
(a) a public finance and monetary policy chamber;
(b) a trade and industry chamber;
(c) a labour market chamber; and
(d) a development chamber.
(3) The Council shall be a juristic person.
Source: SABINET
Establishment of National Economic, Development and Labour Council
(1) There is hereby established a council to be known as the National Economic, Development and Labour Council.
(2) The Council shall be governed by an executive council and shall in addition consist of four chambers, namely -
(a) a public finance and monetary policy chamber;
(b) a trade and industry chamber;
(c) a labour market chamber; and
(d) a development chamber.
(3) The Council shall be a juristic person.
Source: SABINET
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