Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - South Africa (Ratification: 1996)

Other comments on C087

Observation

Direct Request

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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.