The uneven scales of justice

Section 76 (1b) allows employers to respond to a strike by locking out the workforce and then — and this was the nub of the “scab charter” claim — to employ “replacement labour”. Such labour can be sourced from “a temporary employment service or an independent contractor”, what the unions refer to as “labour brokers”.

In the years since then, employers have not used this section, perhaps aware that it would exacerbate tensions at the time of strikes. It would also set worker against worker, with potentially dangerous consequences.

Now it appears that at least some members of the National Employers‘ Association (Neasa) see this as a way forward to perhaps weaken the metalworkers’ union, Numsa and to allow members to hire a lower cost workforce. Part of the Neasa propaganda has been that the unions are to blame for rising joblessness and the economic crisis faced by business.

Such claims are clearly nonsense. As are the claims that the unions have been “taken over by the looney Left”. There has been no significant change in union leaderships in recent times; what has changed is the circumstances in which workers find themselves. And these are not of their making.

As I have stressed before: workers and their unions react to the environment imposed on them. And that environment is largely decided by the policies and actions of corporations, companies and governments. What workers do to protect themselves is to organise into unions and use, ultimately, their threat of witholding labour to gain a measure of fairness — of justice — in a grossly unequal society.

This right to strike, to withold labour, is now enshrined in the South African Constitution, but it was a right that had to be fought for. And it remains the only weapon workers have in their struggle to maintain, let alone improve, their standards of living.

The labour movement is also aware that the old trade union dictum that there is one law for the rich and one for the poor, still holds true: those with deeper pockets can afford the time and hire the expertise to tip the already uneven scales of justice. And so it was that the unions pressed for labour laws that might at least introduce more of an element of justice into the work environment.

But employers also exerted pressure and this is evident in Section 76 (1b) of the LRA. However, this legislation, along with, in particular, the Basic Conditions of Employment Act, was a major move away from the old, almost feudal, masters and servants approach of the apartheid past.

And individual workers, generally lacking the resources to hire lawyers and pay to hefty court costs, also won the right to free access to conciliation and arbitration through the establishment of the Commission for Conciliation, Mediation and Arbitration(CCMA). This was designed to provide speedy resolutions to disputes between employees and employers.

But the scales of justice remained — and remain — uneven: any employer having refused conciliation and mediation and having lost in the arbitration process, can take the matter on review to the labour court. This process, almost inevitably, requires the services of lawyers, and can drag on for months and even years.

A classic case of this kind concerned Virginia Swart who, in 1997, became the first person in the country to pursue an age discrimination case — at the age of 29. She represented herself through court postponements for more than a year. Then, with her husband having lost his job, this young mother of three was offered R1 500 to drop the case, and she took the money.

But now even that small element of fairness enjoyed by Virginia Swart in the CCMA is gone. In September last year, in a little publicised move, the Law Society of the Northern Provinces won a judgment allowing lawyers, by right, to appear in CCMA hearings.

The argument was that the prohibition of lawyers in such hearings amounted to unfair discrimination, that it was contrary to clauses in the Constitution and the Equality Act. The justice department and the CCMA now intend challenging the judgment.

What workers can hope for is that justice and the public interest will trump the narrow, sectoral interests of the legal profession.