National Legislation on Labour and Social Rights
Global database on occupational safety and health legislation
Employment protection legislation database
Display in: French - Spanish
Previous comments
Repetition The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2015. The Committee also notes the observations of the International Organisation of Employers (IOE), received on 1 September 2015, which are of a general nature. Trade union rights and civil liberties. Allegations of violent repression of strike actions and arrests of striking workers. The Committee notes the Government replies to the 2008, 2010, 2011 and 2012 ITUC observations denouncing, in different sectors, many instances of violent repression of strike actions, leading to injuries and death, as well as the arrest of striking workers by the public authorities. The Committee notes that the Government states that: (i) the incidents pointed out by the ITUC, although regrettable, do not reflect the overall situation of crowd management by the Public Order Police; (ii) the Public Order Police takes action only in cases of extreme provocation and misconduct by the crowd during the strikes; (iii) in such cases, only non-lethal measures are used such as rubber rounds (consisting of rubber balls not bullets), stun grenades, tear gas and water canon; (iv) as from 1 April 2012, all firearms discharged by police are investigated by the Independent Police Investigative Directorate; and (v) violent behaviour during strike action is unacceptable and undermines the system of collective bargaining in the country. While taking due note of the Government replies, the Committee observes that in its 2015 observations, the ITUC denounces the arrest of 100 community health striking workers in June 2014 and the killing, in January 2014, during a clash with the Police that took place in the context of a strike, of a union steward of the Association of Mineworkers and Construction Union (AMCU). The Committee expresses its concern about the persistence, on the one hand, of violent incidents, leading to injuries and death, resulting from police intervention during strike actions and, on the other hand, of allegations of arrests of peaceful striking workers. The Committee recalls that, while strike actions shall be carried out in a peaceful manner, the authorities should only resort to the use of force in exceptional circumstances and in situations of gravity where there is a serious threat of public disorder, and that such use of force must be proportionate to the circumstances. Furthermore, the Committee recalls that the arrest, even if only briefly, of trade union leaders and trade unionists, and of the leaders of employers’ organizations, for exercising legitimate activities in relation to their right of association constitutes a violation of the rights enshrined in the Convention. The Committee has also taken note of the release, on 25 June 2015, of the report of the Judicial Commission of Inquiry into the Events at Marikana Mine in Rustenburg, regarding the violent death of numerous workers during a strike action in August 2012. The Committee observes that the report contains general recommendations addressing, among other elements, the use of firearms by the police during violent strike actions, the public accountability of the South African Police Service in case of similar events as well as the effective functioning of the Independent Police Investigative Directorate. The Committee therefore requests the Government to provide information on the action taken to implement the recommendations of the mentioned Judicial Commission of Inquiry and trusts that the social partners will be consulted in this respect. The Committee requests additionally the Government to reply to the 2015 ITUC observations and to communicate the results of the investigation regarding the death of the AMCU union steward. Articles 2 and 3 of the Convention. Rights of vulnerable workers to be effectively represented by their organizations. In previous comments, the Committee had noted the ITUC allegations regarding the difficulties faced by casual workers to enjoy the rights of the Convention. The Committee notes with interest that the Labour Relations Amendment Act adopted in August 2014 contains provisions aimed at facilitating the representation by trade unions of employees of temporary employment services or labour brokers (that is, employees made available to a client which assigns their tasks and supervises the execution of these tasks). The Committee notes especially that: (i) by virtue of the Labour Relations Amendment Act, trade unions representing the employees of temporary employment services or of a labour broker are now in a position to exercise their organizational rights not only at the workplace of the employer, but also at the client’s workplace; and (ii) employees of temporary employment services or of a labour broker who participate in a legally protected strike action are entitled to picket at the client’s premises. The Committee invites the Government to provide information on the application and impact of these provisions. The Committee additionally notes that, in its 2015 observations, the ITUC alleges that farmworkers are not in a position to meet the requirements to engage in legally protected industrial action. The Committee notes that the Government communicates the conclusions of the 2011 report on Identifying obstacles to unions organizing in farms: Towards a decent work strategy in the farming sector. The Committee requests the Government to provide information on any measures taken or planned to be taken to implement the conclusions of the abovementioned report and to reply to the ITUC observations.
The Committee notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010, reporting in particular acts of violence and arrests of workers – including trade union leaders – during the course of demonstrations and strikes in various sectors (municipal workers, communication workers, paper workers, clothing workers, parking attendants, hotel workers, etc.), as well as the dismissal of strikers, in 2009. The Committee wishes to recall as a general principle that trade union rights include the right to organize and participate in public demonstrations and the authorities should resort to the use of force only in situations where law and order is seriously threatened. The Committee further notes that, according to the ITUC, although the right to strike is recognized for all workers including in the public sector, it is undermined by the legal right of employers to hire replacement workers during a strike. The Committee recalls that in 2008 the ITUC had sent comments on serious infringement of trade union rights including attempts to obstruct unionization in the agricultural and communication sectors, police repression during a general strike and, in the mine sector, intimidation and mass dismissals following strikes. While taking due note of the Government’s report on the implementation of the Convention, the Committee requests the Government to provide its observations to the ITUC’s comments of 2008 and 2010.
The Committee notes the Government’s reply to the comments previously sent by the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation).
The Committee recalls that the ICFTU comments referred to acts of violence and arrests during the course of strikes and demonstrations, as well as massive dismissals of strikers in various sectors (truck drivers, toll operators, metalworkers, teachers, rural workers, public sector, etc.) in 2005.
The Committee takes due note of the detailed information provided by the Government according to which, the issue of massive dismissals was related to restructuring operations, which do not constitute an exclusively South African phenomenon and were carried out within a legal framework which provides for consultations with employees as well as conciliation/mediation facilities and the possibility to refer the matter to the Labour Court for adjudication or the Commission for Conciliation, Mediation and Arbitration (CCMA) for arbitration. Furthermore, with regard to the intervention of the police in various incidents the Government indicates that this was prompted by the commission of violent and criminal acts. The Committee takes due note of the detailed information provided by the Government on each incident mentioned by the ICFTU which indicates that police intervention was not prompted by a motive to intimidate workers but rather to uphold the law and protect property and lives. Finally, the Committee notes that the Government emphasizes that the Bill of Rights enshrined in the Constitution of the country provides that although everyone has a right to assemble, demonstrate and picket, these actions must be peaceful and unarmed; everyone has the right to life and to be free from all forms of violence from either public or private sources.
The Committee notes the Government’s report.
The Committee also notes the comments of the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006, which refer in particular to acts of violence and arrests during the course of strikes and demonstrations, as well as massive dismissals of strikers in various sectors (truckers, toll operators, metalworkers, teachers, rural workers, public sector, etc.) in 2005. The Committee expresses concern at the gravity of the allegations and requests the Government to provide its observations thereon.
The Committee notes the information provided in the Government’s report in reply to its previous comments.
Article 2 of the Convention. In its previous comments, the Committee requested the Government to indicate whether independent contractors, who are not covered by the Labour Relations Act, could otherwise associate to further and defend their occupational interests. In its latest report, the Government states that employment legislation in South Africa is primarily aimed at protecting and securing rights of vulnerable members of the working group, in particular those who are primarily uneducated, less skilled or non-skilled and have no bargaining power relative to employers or potential employers. Independent contractors, while excluded from relying on the Labour Relations Act in respect of their labour rights, are nonetheless guaranteed the freedom to associate and further their occupational interests under the Constitution. While independent contractors cannot redress their claims in labour courts, the ordinary courts of the land are available to them, as well as to associations acting in their interest, to seek enforcement of their rights. The Government therefore considers that the spirit of Article 2 is complied with in respect of independent contractors. The Government adds however that proposed amendments to employment legislation may result in the inclusion of independent contractors and other persons involved in atypical employment relationships within the ambit of legislation such as the Labour Relations Act and the Basic Conditions of Employment Act.
The Committee notes this information with interest and requests the Government to keep it informed of the progress made in including independent contractors and other persons in atypical employment relationships within the ambit of the labour legislation.
The Committee notes the Government's first report, including the Constitution of the Republic of South Africa, Act 108 of 1996, and the Labour Relations Act No. 66 of 1995 attached thereto.
Article 2. The Committee notes that article 18 of the Constitution, 1996 provides that everyone has the right to freedom of association, and article 23 gives every worker the right to form and join a trade union. Slightly different wording is found in the Labour Relations Act, 1995 ("the Act"), which provides in section 4 that every "employee" has the right to form and join a trade union. Independent contractors (due to the definition of "employee" in section 213), however, are not entitled to exercise the rights under the Act. In its report, the Government states that the Act applies to civil servants and rural workers. Section 209 provides that the Act binds the State. While welcoming that the scope of the Act is much broader than under the previous legislation, the Committee requests the Government to indicate in its next report whether independent contractors can otherwise associate to further and defend their occupational interests.
The Committee further notes that the Act provides a system whereby "representative" trade unions are entitled to exercise a number of rights. For access to some of the organizational rights under Chapter III of the Act, to be considered "representative", a trade union (or two or more acting jointly) must have as members the majority of the employees employed by an employer in the workplace (section 14). One of the rights given to such trade unions is to assist and represent employees in grievance and disciplinary proceedings (section 14(4)(a)).While noting that the definition of "representative trade union" in section 14(1) permits unions to act jointly to gain a majority, the Committee requests the Government to inform it in its next report as to whether minority unions acting independently can represent their members in the case of individual grievances.
Articles 3 and 10 (Right to organize activities to further and defend interests). With respect to the right to strike, the Committee notes that the right is guaranteed under the Constitution (article 23(2)(c)), and that detailed provisions on strikes are found in Chapter IV of the Act. The Committee notes that pursuant to section 65, strikes are prohibited in a "maintenance service", which is narrowly defined (section 75). The Committee notes further that pursuant to section 75, where there is no collective agreement governing the matter, the Essential Services Committee as part of its determination of what is to be included in a particular situation as a maintenance service "may" decide that disputes in that service be referred to arbitration. The Committee requests the Government to indicate the avenues open for settling a dispute in a maintenance service where the Essential Services Committee does not refer the matter to arbitration.
Concerning essential services, which are defined in the Act in conformity with freedom of association standards and principles, the Committee requests the Government to inform it whether there is an appeal from the decision of the Essential Services Committee.
Finally, the Committee requests the Government to include with its next report a copy of the legislation currently in force governing criminal law, and to supply information on any measures taken or contemplated to bring the legislation into fuller conformity with the Convention.
The Committee notes the Government's first report, including the Constitution of the Republic of South Africa, Act 108 of 1996, and the Labour Relations Act, Act No. 66 of 1995 attached thereto.
The Committee notes with satisfaction that further to the recommendations made by the Fact-finding and Conciliation Commission on Freedom of Association (see "Prelude to change: Industrial relations reform in South Africa", Official Bulletin, Special Supplement, 1992), the Labour Relations Act, 1995 constitutes a considerable improvement over the previous legislation. In particular, the Committee welcomes that the Labour Relations Act, 1995 has broad coverage, including civil servants and rural workers within its scope, and that it permits union pluralism and the right to strike. It also removes administrative interference in the internal affairs of trade unions, and provides for the simplification of the registration process.
The Committee is also addressing a request directly to the Government.