Contracting out of the Constitution: Post Office Causal Workers and the Failure of South Africa's Industrial Relations Framework
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DRAFT PAPER: 7th May 2015 Contracting out of the Constitution: Post Office Causal Workers and the Failure of South Africa’s Industrial Relations Framework David Dickinson Department of Sociology Wits University Abstract Loopholes in South Africa’s post-1994 labour legislation permitted the re-creation of a cheap labour regime based on precariousness. Precarious workers, including those employed by labour brokers, are, in practice, outside of South Africa’s industrial relations framework and constitute second class citizens. Using the case study of labour broker employees, or causal workers, in the South African Post Office (SAPO), employed for a quarter of the salary of permanent employees doing the same work, the paper examines workers’ attempts to organize within constitutional parameters. These attempts were frustrated by labour broker companies, SAPO management and established unions representing permanent workers. They were also frustrated by the industrial relations system, the institutions of which only reinforced the causal workers’ marginality. The paper contrasts these unsuccessful attempts to have their grievances addressed with the development of alternative, non-constitutional, strategies that successfully brought about the end of labour broking in SAPO. The paper draws on interviews, ethnographic research and court papers to illustrate the process in which a precarious labour regime, created and maintained through contractual power, buttressed by a range of ‘long tactics’ used by labour brokers, was responded to by workers using sub-rosa and extra-legal strategies. This conflict represents another axis of social conflict contributing to South Africa’s increasingly fragile stability. Introduction: Fragile Stability, Industrial Relations and Labour Brokers Reviewing 10 years of South African democracy, Beal, Gelb, and Hassim (2005) argued that the country was in a state of ‘fragile stability.’ Using a ‘state-in- society’(Migdal, 2001) approach, they pointed to the uneven ties and linkages between state and society and suggested that the persistence of social fractures provided the potential for increasing fragility. More than twenty years into South Africa’s constitutional-based democracy, there is increasing evident of social fracturing. One key area is that of industrial relations. Webster (2015, p. 28) outlines how; ‘One of the most worrying trends has been the rise in strike activity…with a dramatic increase in the levels of violence during protests.’ Protracted and violent strikes on the Platinum Belt (Chinguno, 2013) and by farm workers in the Western
Cape (Wilderman, 2015) provides dramatic evidence of challenges to the post-1994 industrial relations framework, an important linkage between state and society. The South African Constitution of 1996, pre-figured by the Interim Constitution of 1994, provides a legal framework governing social order. Chapter 2 of the Constitution, the Bill of Rights, lays the foundation for this order. Several sections have bearing on workplace relations. Slavery, servitude and forced labour are banned. Rights to expressions, assembly and association, of general applicability but of relevance to workplace relationships, are affirmed. Labour relations are dealt with specifically in Section 23 which outlines the right of everybody to fair labour practices and the rights of workers to form, join and participate in the activities of trade unions, to strike and to engage in collective bargaining.i South Africa’s post-1994 labour legislation is nested within the Constitution. The Labour Relations Act (1995) outlines the rules for collective bargaining and aims to institutionalize conflict by providing a framework in which the competing interests of employers and employees can be contained. In guaranteeing organizational rights, regulating strikes and lockouts, and providing a framework for dispute management and resolution, the system is designed to enable the two sides to reach mutual agreement through collective bargaining. A system of institutions: the CCMA, Labour Court and Labour Appeal Court, facilitates and regulates these process of collective bargaining. Strikes constitute the withdrawal of labour. In a protected strike,ii one which takes place within the LRA’s framework, workers forfeit their wages for the duration of the strike (‘no work no pay’) and replacement workers can be employed. However, workers jobs are protected and once the strike is over they can return to work. The pressure a strike applies on the employer is the loss of production given the inconvenience of employing, and likely inefficiency of, replacement workers. Picketing is limited to the persuasion of other workers to join a strike. Of course, in reality, things are often more complex, but as long as the rules largely hold then a strike is concluded with an agreement which reflects the balance of power between the two side and the extent to which they can withstand the penalties of lost income on the one side and lost production on the other. For collective bargaining to function effectively there has to be organisation, particularly on the workers sides. Unions constitute a critical component of enabling this system to work. However, only 30 percent of the formal workforce is unionized. Given the existence of Bargaining Councils which can extend negotiated agreements, some 32 percent of formal workers’ salary increases are negotiated between organized labour and employer (Statistics South Africa, 2015). Sectoral determinations are an alternative mechanism by which minimum terms and conditions of employment can be established if collective negotiations are not feasible, for example, the domestic sector where there are millions of separate employers, employees and workplaces.iii Sectoral determinations are set by a 2
Ministerial-appointed panel, rather than through an institutionalized trial of strength between organized parties. Von Holdt and Webster (2008) outline how different forms precarious work constitute increasing levels of insecurity radiating out from the relative secure core workforce of employees with standard employment relationships or contracts: permanent, full-time work on premises controlled by the employer (from here on; ‘permanents’). Non-standard work deviates from these features in one or more ways, including part-time, temporary, home and informal work along with short- term contracts, subcontracting and labour broking (Theron, 2003). While there is always non-standard work in any economy, in South Africa (and elsewhere) processes of casualisation and externalisation (Theron, 2003) has created precarious work forms from what were previous standard employment situations. Labour broking, or temporary employment services, is non standard in that the worker is employed by one company, the labour broker, but works on premises controlled by another. This creates a triangular employment relationship. The labour broking company employs the individual and then, via a commercial contract, supplies these workers to the client company. The worker does the work of the client, but is employed by the labour broker. Labour brokers were regulated by the LRA as placement agencies, to provide companies with short-term placements. The dramatic increase in use of labour brokers exploited a critical loophole in the 1995 LRA: the absence of joint and several liability, of the labour broker and client, for unfair dismissal. This meant that dismissal, based on the client’s instructions, was all but impossible to challenge. As Benjamin (2014, p. 124) points out, when applied to long-term situations, the triangular employment relationship ‘gives to rise to immense scope for abuse.’ In the context of mass unemployment, the creation of long-term ‘casuals,’ employed by labour brokers but working for client companies, provides cheap labour without the hassle of having to manage people. This all rested on a ‘contractual move:’ The assignment of workers’ de jure employer (to the labour broker) means that workers’ bargaining power can no longer be mobilized against their de facto employer (the client company) (Chung, 2009). Since the labour broker is a service provider to the client company, its resources are limited to the financial arrangements specified in its commercial contract with the client. Company generated wealth is now shielded from demands made by its workforce employed by labour brokers. Of course, the provisions of the LRA (and the Constitution) remain. In theory, labour broker employees can form and join unions and negotiate with the labour brokers. How effective this would be is questionable since the client company could always contract with a different, un-unionized, labour broker. In any case, attempts to organize by labour broker employees can be resisted though a range of informal mechanisms much more easily employed by labour brokers than client companies. These include: maintaining workers’ hope that they will be appointed as 3
permanents; confusion over the workers’ real employer; the use of multiple labour brokers which divides workers within one client company between a number of de jure employers; a ‘pillar to post’ strategy in which worker representatives are bounced between their de facto and de jure employers when raising grievances; direct bluffing over workers rights; and, a militant anti-union stand. These practices can be challenged within the industrial court system, but their effect is to prevent matters ever getting to this point. They constitute a grey zone of practice shields the contractual move from disruption. In 1998, Guy Mhone, then Chief Director of Labour Market Policy at the Department of Labour, outlined how ‘atypical forms of employment raise a number of policy concerns that need to be addressed.... (p. 210)’ In 2003, COSATU’s 8th Congress raised concerns over the ‘casualisation of quality jobs.’ In subsequent congresses, resolutions deepened criticism of labour broking and cumulated in calls for its banning. Despite COSATU’s alliance with the ANC, which promised to regulate labour broking in its 2009 election manifesto, legislation was only promulgated on the 1st January 2015. Despite COSATU high-profile national stance against labour broking,iv the response of individual unions was often ambiguous. Processes of casualisation were accommodated and attention was focused on the unions’ core membership of permanent employees. The LRA-conferred organisation rights for majority unions were not threatened since casualised workers were not included in bargaining unit calculations.v Casual workers were on their own, even as they laboured alongside permanent, better paid unionized employees. The practice of labour broking left casual workers without effective means to enforce the rights given to them in the LRA and the Constitution. This paper uses the case of labour broking in SAPO to illustrate how casual workers working for labour brokers were excluded from the industrial relations system and their subsequent response. The existence of several workers committees, the organizational form adopted by causal workers, resulted in a complex matrix of initiatives being attempted. However, a simplified four-stage chronology of this response can be drawn up: First a realization that the Communications Workers Union (CWU), the dominant union in the Post Office, was not going to help; second, attempts to resolve their situation within the industrial relations framework; third, unprotected strikes that relied primarily on the withdrawal of labour; and, fourth, a protracted strike that involved the application of labour in covert and violent ways. It was this fourth stage that resulted in an agreement to end labour broking in the organisation. Methodology This article is based on research conducted between 2009 and 2015. Initially, I came to understand the situation of labour broker employees in SAPO as a result of 4
friendships with postmen in East Rand townships where I have been a regular visitor for over a decade. In late 2013 this research was formalized when I conducted a series of interviews with the leaders of worker committees, by then largely merged into the Democratic Postal and Communications Union (DEPACU). Additionally, I conducted interviews with a number of individuals outside of DEPACU who could provide different perspectives on events. Two worker leaders provided me with their hand-written minutes of worker committee meetings. Other sources included the Labour Court papers for four interdicts requested by SAPO along with the Vaal Workers Committee’s own application to the court in 2011. Ethnographic research with DEPACU during industrial disputes in 2014 provided me with an opportunity to talk to rank-and-file members of the workers committees as well as deepen my understanding of events described in interviews. Ethical permission for the research project was granted by the Wits Human Research Ethics Committee. I avoided explicit discussions in which interviewees might render themselves, or others, vulnerable to legal action. Such practices are extensively documented in the various Labour Court cases. Labour broking in the South African Post Office The post-apartheid government charged state-owned enterprises, including SAPO, with a duel mandate: to roll out infrastructure that would support development goals and to do this without burdening state finances. The Post Office’s key role in development was its Universal Service Obligation (USO) to provide postal and communication services to all South Africans at affordable prices.vi In particular this involves the establishment of ‘points of service’ (retail post office facilities) and the provision physical addresses,vii to which mail can be delivered. Mail delivery systems work on a hub-and-spoke principle. Mail is sorted by postal codes in mail centers and sent to postal depots which service a defined area divided into ‘walks’ served by postmen (and sometimes postwomen). Postmen sort the mail by street addresses using a ‘press’ and then deliver it, most commonly by bicycle. Mail remains important given the still low penetration of alternative means for banks, municipalities, stores selling on credit, and other companies providing paid for services to provide statements and invoices. Large urban townships, in particular, provide profitable areas for postal delivery. The Post Office made extensive progress in fulfilling its USO, resulting in an expansion of its mail delivery workforce, particularly postmen and women, and it turned around its finances from an approximate R1bn annual loss in the late 1990s to profits between 2005 and 2010.viii This was a considerable, but short-lived achievement. The financial viability of the organization was accomplished, in significant part, through cutting costs. A major mechanism in which expenses were contained was the use of labour brokers. 5
Labour brokers were present in SAPO prior to 2000, largely as placement agencies across the organization when there was a need for short term cover. This situation changed in 2000 when newly appointed management imposed a moratorium on entry level positions in the organization. That moratorium was not lifted for more than a decade and casual workers placed by labour brokers came to outnumber permanent workers in business units such as mail delivery. The only real requirement imposed by SAPO when contracting for labour was that the labour broker be BEE compliant. The result was a swarm of BEE companies, and some BEE fronts, many startup businesses, vying for business.ix Despite working alongside permanently employed postal workers, and doing exactly the same job, labour broker employees had very different terms and conditions of employment. They were not provided with uniforms, but the most visible difference between casual and SAPO permanent employees was salaries. Monthly payments to casual postmen varied, however in rounded terms, by 2011 a permanent postal worker’s salary was R8,000 a month, but a labour broker would be paid R4,000 a month to supply a worker, who would be paid R2,000. The combined effect of savings on salaries, benefits and uniforms dramatically reduced SAPO’s wage bill. As one SAPO manager explained, ‘It was three for the price of one!’ This situation was maintained through the hopes and vulnerability of the casual workforce. When the former ran out, the latter kicked in. Initially, workers were summarily dismissed by labour brokers without hearings, later the Post Office insisted on a tightening up of procedures. By and large, disciplinary hearings were, however, formalities, as one interviewee explained, ‘it was just to… satisfy what the [LRA] Act [procedurally] requires, but once the Post Office [supervisor] said that they no longer want you, you are done.’ Attempts to organize unions were directly blocked. Workers were told to their face that if they joined a union they would be fired. The nature of the employment relationship meant that a supervisor could have an employee dismissed by simply picking up the phone and asking the labour broker for a replacement worker. In additional to outright anti-union stance, the multiple companies operating within single depots raised the bar to union organization since negotiations would have to be held with each labour broker separately. The widespread establishment of labour brokers within SAPO created two parallel workforces. By 2011 approximately one third of the organization’s workers were casuals; 8,000 out of 23,000. One workforce was relatively privileged and unionized, the other was precarious and without representation. SAPOs industrial relations environment was dominated by CWU between 1996 and 2012 when SAPWU (later SAPAWU), formed by a breakaway from CWU in 2009, was also recognized by SAPO. Excluding the efforts of a handful of individuals, CWU made little efforts to prevent the increasing use of labour brokers. 6
On the ground, two unequal workforces labouring side by side resulted in toxic workplace relationships. While there were exceptions, the general experience of casual workers was one of discrimination at the hands of supervisors and permanent co-workers. A tea allowance given to permanent workers, while objectively a small thing, had enormous psychological impact. Casual workers did not have this allowance. In a few depots supervisors insisted that the purchased beverages be shared by all, but this was rarely the case. Generally, tea and coffee was for permanents only. The resentment generated by this petty, intra-worker, discrimination was frequently bitterly recounted by interviewees as an example of what they had been fighting against. Nobody sat down and designed the labour broking system in the SAPO. Rather, it evolved from attempts to meet contradictory imperatives, a sustained failure of governance, incompetent management, sclerotic unions, rapacious entrepreneurs, and an almost inexhaustible supply of people desperate for employment. Yet, what was created dramatically changed the composition of SAPO’s workforce. Unions and Workers Committees The organisation of casual workers within SAPO’s Wits Region (approximately Gauteng Province excluding Pretoria) was long and complex. Despite CWU’s failure to respond to the introduction of labour brokers, casual workers, including leaders within the workers committees, looked to CWU, as the only unions in the organisation, to address their concerns. Because CWU did not have a recognition agreement with the labour brokers, despite causal workers filling in CWU membership forms neither the Post Office, nor the labour brokers, deducted their union subscriptions.x Individual regional CWU office bearers who were sympathetic to the casual workers had agreed to demands for representation at shop steward council meetings and from 2009 depots in Wits Region would send two representatives: the official CWU shop steward and a ‘member not in good standing’ representing casual workers. CWU didn’t, however, negotiate wages or conditions of employment,xi the casuals’ chief concern. What CWU did do, however, was to promise that labour broking would be ended in SAPO. Agreement to this effect was first included in collective bargaining agreements with SAPO in 2005. The clause was repeated annually in subsequent agreements, the only significant difference being that the deadline for completion was postponed. In fact, far from implementing this agreement, the number of labour broker employees in the organisation continued to grow. CWU’s repeated promises were eventually ridiculed by casual workers as ‘Come September.’ Come September (approximately when negotiations were concluded), permanent employees would get a salary increase and, despite promises, casual workers remained casual workers. 7
The establishment of what were initially called casuals committees or workers committees, beginning as early as 2005, was a response to CWU’s failure to address the concerns of labour broking. This process of disillusionment with the union was accelerated by the 2009 strike in which the end of labour broking had been a central demand. Workers committees were fragmented and often fractious. A committee emerged on the West Rand which was strongly linked to a group in the Vaal area. A particularly cohesive committee was established in the Tembisa area and another committee covered other parts of the East Rand.xii Exploring Every Avenue What is striking is just how many attempts worker committees made to resolve their problems within the South African constitutional framework. The number of organizations approached and strategies attempted, summarized in Box 1, was multiplied because different casuals committees ran through a range of initiatives, sometimes in parallel. 8
Box 2: Organizations Approached and Strategies Attempted by Casual Workers Committees in Gauteng Attempts to negotiate as Workers Committees Attempts to negotiate directly with the Post Office Attempts to negotiate with labour brokers, particularly TAS Appointments (2009 and 2010) as the largest labour broking company in Gauteng Attempts to get official bodies to intervene/adjudicate Department of Labour/Minister, resulted in a Ministerial enquiry in 2007 Department of Labour public hearings on labour broking: SAPO casual workers imputed into hearings held in Germiston and Sebokeng in October 2009 CCMA Gauteng Premier Labour Court Minister of Communications The Public Protector Attempts to get help from trade unions COSATU COSAWU (now de-registered, was linked to DSM) LEWUSA (Labour Equity General Workers Union of South Africa) CWU SAGWUTI (South African General Workers Union & Textile Industries) SAPWUxiii (South African Postal Workers Union, later SAPAWU) Attempts by unions to get recognition with labour brokers Individual CWU office bearers in the Wits Region COSAWU SAGWUTI Attempt to establish their own union National Communications and Allied Workers Union (NACAWU) was an initiative by the Vaal Committee. Registration was declined by the Department of Labour. Protected Strikes One protected strike took place in the Vaal area in early 2009.xiv It was unsuccessful. Political parties/organizations asked for assistance ANC ANCYL SACP YCL African Peoples’ Congress (APC)xv Democratic Socialist Movement (DSM)xvi 9
Private Legal Assistance The Vaal Committee engaged a private lawyer without success before receiving assistance from a VUT lecturer. Advice Centers The Germiston-based Casual Workers Advice Office (CWAO) provided office facilities and research assistance from late 2011 Given the number of avenues explored it is not possible to explore all in detail. However, of note was that attempts to enlist COSATU’s help were perhaps the most frustrating. A march to COSATU House was organized without the knowledge of CWU in May 2011 by the West Rand Committee. The COSATU officials that they met were sympathetic, but did little other than outline COSATU’s national campaign and refer them back to CWU, along with advice to follow ‘proper channels.’ In the words one worker leader, ‘COSATU was USELESS in capital letters.’ The casual workers had, in fact, explored and exhausted ‘proper channels.' Initial attempts to raise the issues of salaries, benefits, uniforms and other concerns with the Post Office were initially diverted to the labour brokers as the causal workers employees. The response from labour brokers was that they were constrained by the terms of their contracts with SAPO. This established a ‘pillar to post’ strategy in which responsibility for casuals’ grievances was denied. In March 2007 the Vaal Workers Committee pestered the Department of Labour which conducted a Ministerial Enquiryxvii that dealt with the complaints raised by the committee against TAS Appointments, the largest labour broker in the Post Office. TAS was found guilty of only one of the ten complaints; that it had not provided employees with contracts. It was ordered to do so. On the central issue of different terms and conditions of employment the report simply explained the status quo: ‘this issue was clarified… the Post Office did not employ them [the casual workers] but rather outsourced its services to TAS…better benefits should be negotiated with the agent [TAS] as their employer.’ In other words, the Department of Labour perpetuated the pillar to post situation. Eventually, talks took place with TAS. They were a one-sided affair that resulted in a 50 cent an hour pay increase being granted. Assisted by lectures and students from Vaal University of Technology (VUT) they successfully applied for a strike certificate. However, the protected strike, in early 2009, failed to achieve any further increase. In 2010 there were again talks but they quickly stalled. Now it was explained by TAS management that the workers committee was not a recognized ‘as per collective bargaining’ and that salaries could not be increased because of the ‘laws of labour broking.’ 10
The Vaal Committee again went to the CCMA for a strike certificate. They drew on TAS’s failure to provide them with their contracts as instructed three years early and the deadlock in negotiations. However, this time around the CCMA Commissionerxviii said that the case was complex and instead told them to approach the Labour Court.xix Despite the difficulties of such an undertaking, the committee, assisted by VUT students, filed papers and the case was heard on 2nd February 2011 in Johannesburg.xx The judge seemed to have had little patience with the workers’ amateur approach to the bench and poorly constructed prayers (requests). The matter was postponed sine die (indefinitely) and the applicants had a month to re- file papers if the case was not to be closed. Doggedly, the committee persevered. With assistance from the court’s pro bono office, they submitted a revised application.xxi A second court date was set for August. But by the time August came things were different. The strike wave of mid-2011, described in the following section, had despite its defeat, contrasted the long, frustrating and one-sided route of ‘proper procedures’ to the power of taking to the streets. Turning to the Streets Between June and August 2011 a series of unprotected strikes by SAPO casual workers erupted across Gauteng. The most significant of these originated in the Tembisa area and spread across the East Rand, Vaal, and isolated depots in the West Rand. This was the first sustained casual workers’ strike. Empowered by their own success they adopted the slogan, ‘We are the union ourselves!’ The strike, however, crumbled, without a single concession. Labour Court interdicts brought by the Post Office were key to this conclusion.xxii Initially, SAPO cited the labour broking companies, since its contract with them for labour was not being honoured. When the labour brokers proved that it was impossible to recruit replacement workers because of intimidation, SAPO lawyers focused on the strikers. Among the strike committee there was confusion; some thought the case was the one brought by the Vaal Committee and that the Post Office that would be ‘on trial.’ Striking workers turned up on the appointed day en mass. When they arrived at the Labour Court the Post Office lawyers obtained the details of six strike leaders. These six now became the primary respondents for a second interdict. By the time they realized their mistake it was too late; they were facing jail for contempt of court. Their initial defiance, recorded verbatim in the second interdict by the Post Office lawyers, now evaporated. In a humiliating climb-down they turned to CWU, with the help of the West Rand Committee who still remained in contact with the union, for representation in the court. On the 27th July, they apologized to the court and were bound over for six months. The strike collapsed.xxiii Turning from the Constitution 11
Although the strike ended in defeat, what the workers committees had gained were lessons that would be taken, by a minority of causal workers, into the next strike. The first was the realization that they needed to focus on the Post Office, and not the labour brokers, if they wanted to achieve their objectives. The court cases had made it clear that, in local idiom, if they beat the dog [mail delivery] hard enough the real owner would emerge. In other words, if they applied enough pressure they could counter the contractual move of labour broking which blocked them from negotiating directly with their de facto employer. The second lesson was how to apply that pressure. During the strike they had piloted techniques to prevent mail delivery, particularly in townships. These techniques were less about the withdrawal of their labour, but rather the application of labour. They not only prevented the use of replacement labour, but also prevented non-striking worker, such as permanent employees, from delivering mail. The third lesson followed from the second; they needed to stay away from the courts. They had seen what happened when the lawyers got their names; in future the leadership would remain hidden. Different Kinds of Prayers The collapse of the mid-2011 strike routed and demoralized the worker committees. While there was a tacit agreement among the leaders of the causal workers that they should see out the Labour Court six month suspended sentence before returning to the fray, the West Rand workers committee jumped the gun commencing another unprotected strike in December 2011.xxiv It was to last until April 2012. The timing of the strike played into the rivalry between committees and drove a wedge between those who had wanted to continue the previous strike in defiance of the Labour Court and those who had been cowed by the interdict. The strike failed to match the scale of the previous one. As the strike dragged on, divisions hardened and with the exception of a couple of East Rand depots that joined the strike long after it was underway casual workers across Gauteng divided into two hostile camps. In the end a few hundred strikers, down at one point to just 294, a figure that attained mythological status, remained out. The structure of the workers committees was adapted. The only leaders with any visibility were protected by ‘Chinese walls,’ that provided them with plausible deniability over actions that might take place the ground. But overwhelmingly the strike leaders were simply invisible. SAPO tried again to interdict the strike,xxv but was now unable to pin down individuals; court interdicts were ignored and attempts by the Sherriff to serve summonses were met with denials that the individual lived at the address. On the ground, a process of trial and error created a flexible field structure in which a myriad of roles emerged around personal character, local knowledge, and street savvy. At some point the name Mabarete (The Berets) stuck. There are different accounts as to how this came about, but there is agreement that it was a reference to the then Minister of Police, Bheki Cele’s paramilitary Tactical Response Team, 12
nicknamed for their berets, that operated in the townships meting out corporal punishment. Nobody had a problem in seeing a parallel between the two groups. Drawing on lessons from the mid-2011 strike the Mabarete now began to ho tsoma (hunt) in the townships. In essence this involved groups of varying size patrolling townships to confront anybody delivering mail. Such confrontations ranged, depending on circumstances, from warnings, to forced stripping, to beatings. The use of violence was justified in a number of ways by the Mabarete. It was also euphemized. This helped to disguise their actions, but it was also part of a justification narrative that relied on familiar religious motifs: they were removing demons from the amagundwane (strike breakers) through prayers. Such prayers would they hoped be heard. The ho tsoma tactic multiplied the impact of a few hundred strikers. Though a combination of changing formats, mobility and secrecy it was all but impossible to know where the Mabarete were operating on any particular day, or if, indeed, they were operating in several locations. Over large parts of Gauteng deliveries stopped with non-strikers turning up for work, but unable to deliver mail. The Post Office initially refused to acknowledge that a strike was occurring. Rather, SAPO minimized the scale of disruption and denied that this was industrial action but, rather, the criminal acts of a handful of former workers.xxvi Despite disrupting mail delivery, the Mabarete’s message, primarily delivered though punishment beatings of amagundwane, was not getting through. The stark reality was that the Post Office put little value on its labour broker staff; whether working, striking, or in ICU wards. SAPO’s strategy appeared to be to ride out the problem. A change of tactics from ho tsoma to ‘home visits’ then emerged. The first home visit was spontaneous. A group of strikers were passing the Tembisa house where the mother of TAS’s owner lived. In an act of bravado they made a phone call to the labour broker telling her where they were and that if she didn’t drop her contract with the Post Office they would be back. The second target for a home visit was CWU. The visit to Clyde Mervin’s house, then the Chair of CWU’s Gauteng Region, was planned. Several hundred strikers arrived. Mervin wasn’t in, but members of his family were and they were traumatized by the experience. The message was that he should stay out of their strike; casual workers were now fighting their own battles. The third home visit was to SAPO’s Wits Region mail manager, who lived in a gated complex on the East Rand. Some strikers thought that he had the power to hire, as they knew he had to fire. On arrival at the complex’s security boom they posed as employees who had come for unpaid wages. After a delay, and despite police being called, the security guards had little option to allow them past. The manager was not in, but as with the visit to Mervin’s house, family members were. The thinly disguised message was that they were hungry and would be coming back ‘to eat’ with the manager. By chance, a working postman was delivering in the complex that 13
would normally have been seen as safe territory. The strikers left his bike on the gate and took the unfortunate man with them to reinforce their message. The results were beyond the Mabarete’s wildest expectations. As interviewee after interviewee explained, the visit ‘changed everything.’ They had not even reached the Metrorail station before a call, brokered via an intermediatory, came through; the manager wanted to meet. The End Labour Broking The Regional manager could no longer go along with the organization’s denial over labour broking; his family was now on the front line of an industrial war. He confronted senior management and talks started. The initial challenge was management’s need to know that they were, in fact, talking to the strikers. The Mabarete had covered their tracks well. None of the leadership knew anything about the home visit. Even the person who had taken the call was unknown to them. To resolve this problem it was agreed that the group’s credentials would be tested. The Mabarete marshaled their members to sit in Germiston’s Golden Walk car park for a week. No incidents were reported and the management knew they were talking to the right people. After that agreement came quickly. Nothing however was put on paper. Both sides faced the problem of provoking CWU, still the only recognized union in SAPO at the time, given that the deal breached existing collective bargaining agreements as well as company recruitment procedures There were two, verbal, clauses. The first was that the Mabarete, all long since fired from employment by the labour brokers, would be employed directly by the Post Office. They would be paid at a rate equal what the labour brokers had been paid. This was, more or less, cost neutral for SAPO, but it meant an approximate doubling of the Mabarete’s salary to some R4,000 a month. It was also agreed that they would be converted to permanent positions within three months. The Mabarete returned victorious to their depots.xxvii The second clause was that all labour brokers employees in SAPO would follow a similar process to that outlined for the Mabarete. It was hoped to manage the process discretely and quietly; a hope that immediately evaporated when many of the casual who had remained at work launched their own strike, demanding that they be employed immediately as permanents. The ‘Second Strikers’ adopted and developed the tactics pioneered by the Mabarete. They returned to work in early June with a written agreement essentially in line with that reached by the Mabarete. By July 2012 the use of labour brokers in the Post Office had ended.xxviii Discussion and Conclusion 14
This section attempts to do two things. The first is to frame the Mabarete’s struggle against labour broking, one axis of social conflict, within the wider framework of South Africa’s, increasingly fragile stability. In particular, I seek to summarize how this conflict can be framed as a contracting out of the Constitution, by both the labour brokers, and therefore also by SAPO, and the Mabarete, while other actors, including the established union and the industrial judiciary stood on the sidelines. The second objective is to assess what impact of amendments to the LRA, aimed at regulating labour broking, which came into effect in 2015, might have The mandate given to SAPO, in line with that of other state owned enterprises, was developmental. However, in line with increased concerns over fiscal discipline, brought to the fore with the introduction of the GEAR strategy in 1996, this was to be achieved without burdening the public purse. While considerable progress has been made in regard to its USO, its industrial relations practice, especially the use of labour brokers, has been a spectacular failure, a failure that undermines the value of its USO successes. The growing use of labour brokers was never planned or thought through at a strategic level. Indeed, it was largely invisible to senior management or the board until 2011 when, alerted by the rising expenditure on labour brokers, an investigation was ordered. By then the industrial relations situation was out of control. Labour broking exploited a loophole in the 1995 LRA. On the ground, this loophole that allowed the reaction of ‘permanent casuals’ was defended by a grey zone of practice that played on workers hopes, limited knowledge of the law, their resources, a lack of representation and their fear of dismissal. The tactics employed, predominantly by Black entrepreneurs, shielded the contractual move, and SAPO’s cost savings, from challenge for a considerable time; a testament to how effective combinations of hope, mystification and fear can be in maintaining domination. A string of institutions stood by and watched as these ‘long tactics’ of domination were played out for over a decade. The COSATU-affiliated trade union CWU, despite playing a high-profile role in the national campaign to ban labour brokers did nothing (excepting a handful of individual office bearers). COSATU’s principle of ‘one industry one union’ was interpreted in practice as meaning the exclusion of rival unions, not the organisation of all those working in the industry.xxix The institutions responsible for the countries industrial relations framework also failed to act. Indeed, with a few exceptions, the actions of the Department of Labour, the CCMA and the Labour Court frustrated casual workers’ attempts to find redress within the law. The high-point of the causal workers efforts in this regard was their appeal to the Labour Court. Their amateur approach was clearly looked upon as an irritation. As with the other institutions of the industrial relations system, it didn’t seek to know, or to resolve, the real problem. By contrast, when the Post Office sought relief against the same casual workers, who had now lost patience 15
and were on an unprotected strike, it swiftly granted an interdict that brought the strike to an end. This strike, however, indicated that the labour brokers’ long tactics of domination were coming to an end. What was erupting, largely on township streets, was a struggle that bypassed the contractual move as workers targeted the operations of their de facto employer with the objective of defeating their enemy; the labour brokers. This conflict was entirely outside of the industrial relations framework and sub-rosa. The Labour Court’s interdict in mid 2011 aimed at six key individuals, confirmed an increasing realization among causal workers leaders that they needed to steer clear of the legal system. SAPO obtained a Labour Court injunction against the Mabarete strike in February 2012 but it was unenforceable against the organizational form that they then adopted. Although the Mabarete employed a range of tactics what was most prominent was their willingness to hunt amagundwane in the townships, while avoiding arrest. The number of beatings administered was not the key criteria, the effect of the technique rested on the fear it installed. This applied to the large number of casuals and permanent workers who were not part of the strike but were kept idle, and for the impact that home visits would have. Despite the high ideals of the Constitution, and the specific attempt of labour legislation to institutionalize conflict, the case of SAPO illustrates how first labour brokers and then their employees contracted out of the Constitution. The first move can be framed as structural violence and the Mabarete’s response, an illicit and violent campaign indicating another axis of social conflict, and increased fragility. On the 1st of January 2015, the LRA Amendment Act designed to restrict the use of labour broking to genuine and relevant temporary workxxx was promulgated. The reforms’ key features are, first, that labour broker and client company are jointly and severally liable for contraventions of employment laws, including dismissal, something that should end the ‘pillar to post’ strategy that has frustrated casual workers. Second, workers are to be treated as employees of the client if they work for a period in excess of three months (with permitted exceptions). Termination of employment to avoid this will be considered unfair dismissal. This should prevent evasion based on rolled-over, three-month contracts. Third, after three months, there must be equal pay for equal value work, something that should prevent the maintenance of a two-tier workforce post labour brokers. Should these reforms be enforced, labour brokers would be reduced to assisting companies with short-term placements.xxxi The important question, however, is whether this legislation can and will be enforced. Enforcement of any labour regulation depends primarily on three agencies: companies regulating their own activity, inspection by the Department of Labour, and the watchdog function of trade unions. 16
The case of casual workers in SAPO, and experience elsewhere, makes for pessimism over the actual impact of these labour law amendments. The Post Office, a state owned entity, professes among it values that, ‘we treat each other with respect, dignity, honesty and integrity’ and that ‘we recognise and reward individual contributions.’xxxii Clearly, none of this actually meant anything; when it came to employment practices. The Department of Labour failed the SAPO casual workers when approached, and it is common cause that the Department’s inspectorate is inadequate and unable to enforce existing legislation. Finally, CWU, a COSATU affiliate, was at best slumbering while casual labour entered the Post Office. At worst, it was implicit in maintaining the two-tier labour system. The slowness with which abuse of labour broking was closed down is instructive; a source of cheap, hassle free, labour made life easy for some while effectively shutting others out of the industrial relations system. Those responsible for the system chose, by and large, not to trouble themselves too much over what was happening. It will take some time before it is clear that the labour law amendments will achieve its objectives. The underlying problem, a quest for cheap labour, one with a long history in South African, will, in all likelihood, remain. References Beal, J., Gelb, S., & Hassim, S. (2005). Fragile Stability: State and Society in Democratic South Africa. Journal of Southern African Studies, 31(4), 681-700. Benjamin, P. (2014). The Persistence of Unfree Labour: The Rise of Temporary Employment Agencies in South Africa and Namibia. In J. Fudge & K. Strauss (Eds.), Temporary Work Agencies and Unfree Labour: Insecurity in the New World of Work. New York: Routledge. Chinguno, C. (2013). Marikana and the Post-apartheid Workplace Order (Vol. 1). Johannesburg: Society Work and Development Institute. Chung, J. (2009). Organizing At The Margins: The Symbolic Politics of Labour in South Korea and the United States. Ithaca: Cornell University Press. COSATU, & NACTU. (2012). COSATU and NACTU Memorandum on Labour Broking. Retrieved 14/11/2014, from www.cosatu.org.za Dickinson, D. (2015). Fighting Their Own Battles: The Mabarete and the End of Labour Broking in the South African Post Office: Society, Work and Development Institute. Mhone, G. C. Z. (1998). Atypical Forms of Work and Employment and Their Policy Implications. Industrial Law Journal, 19(2), 197-213. Migdal, J. (2001). State in Society: Studying How States and Societies Transform and Constitute One Another. Cambridge: Cambridge University Press. SAPO. (2013). Post Office Integrated Annual Report 2013. SAPO. (2014). Post Office Integrated Annual Report 2014. Statistics South Africa. (2015). Quarterly Labour Force Survey Q4 2014. Theron, J. (2003). Employment Is Not What It Used To Be. Industrial Law Journal, 24, 1247-1282. Von Holdt, K., & Webster, E. (2008). Organising on the Periphery: New Sources of Power in the South African Workplace. Employee Relations, 30(4), 333-354. 17
Webster, E. (2015). The Shifting Boundaries of Industrial Relations: Insights from South Africa. International Labour Review, 154(1), 27-36. Wilderman, J. (2015). From Flexible Work to Mass Uprising: The Western Cape Farm Workers' Struggle: Society Work & Development Institute (SWOP). 18
i Employers have the rights to form and join employer organizations and to participate in their activities. The right to lock out, the mirror right of workers’ right to strike was not included in the constitution, though it is outlined in the Labour Relations Act (1995 Amended). ii Unprotected, or ‘wildcat,’ strikes, take place outside of the legal framework and workers jobs are not protected. These are often referred to as illegal strikes. This is not correct. A strike can only be considered illegal should a wildcat strike be successfully interdicted by the employer in the Labour Court. At this stage, if strikers continue they are in contempt of court. iii There are approximately ten sectoral determinations including: security, farming and retail. Some of these sectoral determinations operate alongside collective bargaining for some workers in the industry. iv And NACTU (COSATU & NACTU, 2012) v Organising causal workers by major unions was rarely attempted for a number of reasons, including the difficulty of having to negotiate recognition agreements with different labour brokers that might, in any case, be replaced at the end of their contract. vi SAPO (2014) vii The provision of physical addresses is important not only for the delivery of mail, but also to access a range of other services, such as banking, and technologies such as cell phones. viii Excluding once-off income and government subsidy. ix At least 11 labour brokers provided labour to SAPO: TAS Appointment & Management Services, ITP, Autenmas Placements (ATM), Vulavulani Technologies (VVT), T&T Appointments, T&L (which split to form TAS and T&T), Workforce Management, Quest Staffing Solutions (a BEE subsidiary company of Adcorp), Interim Consulting, N.T. Ngidi Consulting and Marula Staffing (the latter two being joint BEE ventures of the Kelly Group). x With the exception of one of the smaller labour brokers, ITP, which did agree to allow stop orders. xi CWU did put casuals’ wages on the negotiating table on a number of occasions (in the form of what SAPO would instruct labour brokers to pay). However, this demand would off the agenda which proceeded to hammer out increases in salaries and benefits for permanent workers. CWU did not have a legal mandate to negotiate on behalf of labour broker employees and to do so in earnest would have been to limit what it could achieve for its membership. xii See Dickinson (2015) for a more detailed account of the evolution of the workers committees in SAPO. xiii SAPWU was initially viewed with suspicion by casual workers. Later officials within SAPWU played a critical role in negotiations between the Mabarete and SAPO in March 2012. xiv The strike certificate was issued by the Johannesburg CCMA office. xv The APC assisted, inter alia, with the 2012 approach to the Minister of Communications. xvi The DSM made considerable, unsuccessful, efforts to unify workers committees. xvii Employees vs. Post Office G/S 8141. xviii At the Vereeniging, rather than Johannesburg office where they had applied for the first strike certificate. xix GA JB 28361-10. CCMA Vereeniging Office.
xx J 1048/10 Workers Committee obo Members vs. TAS Appointment and Management Services. Labour Court. xxi This was, in legal terms, only a marginal improvement on the first attempt. xxii J 1208/11, J 1355/11 and J 1493/11. Labour Court xxiii Though a strike in the Pretoria region, beginning in late July continued into August and was subject to a third interdict (J 1493/11) xxiv The committee’s timing was driven by internal dynamics. Although they had largely stayed aloof from the Tembisa initiated strike, they had in May 2011 mounted their own one-day demonstration-cum-stayaway at COSATU House. TAS had implemented disciplinary action against those who had participated for absconding. A handful of workers stood their ground and refused to apologize for their absence from work. They were dismissed. With their backs against the wall they had launched the strike. xxv J112/12 Labour Court xxvi Technically this was correct: the strikers had all been fired by the labour brokers. xxvii SAPO had no information of the number of strikers they were dealing with. Although the Mabarete core had dwindled to 294 they submitted a list of 411 strikers for direct employment in SAPO. This included those who were considered amaqabane (comrades) but had for one reason or another drifted away from the strike. Not all of these 411 individuals took up the offer of employment. xxviii Nevertheless, this was not on equal pay to permanent employees. Much of the industrial unrest in SAPO that has followed is a result of the still incomplete conversion of former casual workers to permanent employee status. xxix One of many reasons given for CWU’s failure to deal with labour broking in SAPO was its focus, from 2009, on its SAPWU rival. xxx Memorandum of Objective on Labour Relations Amendment Bill, 2012: 30 xxxi And in providing companies with a three month ‘probation period’ for prospective employees. xxxii SAPO’s Vision, Mission & Values statement (SAPO, 2013).
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