Definitive Report - Report No 24, 1956

A. A. The complainants' allegations

• Allegations relating to the General Situation with regard to Freedom of Association
  187. 187 The complaining organisation, in its complaint dated 26 May 1956, refers to a complaint which it presented against the Government of the Union of South Africa in June 1954 and to the report made by the Committee on Freedom of Association to the Governing Body, after it had examined the complaint together with the observations made thereon by the Government, which was adopted by the Governing Body at its 128th Session (March 1955). The complainant states that the Governing Body then confirmed the existence of provisions restricting freedom of association in the legislation of the Union of South Africa-in particular, in the Industrial Conciliation Act, 1937, the Native Labour (Settlement of Disputes) Act, 1953, and the Suppression of Communism Act, 1950, as amended-and that, in communicating the conclusions contained in that report to the Government, the Governing Body expressed the hope that a new policy would be instituted as soon as possible and, more specifically, expressed the hope that African workers might be accorded the right to organise and to bargain collectively in full freedom. Despite the recommendations made on that occasion, declares the complainant, no steps have been taken to amend the legislation in question. The complainant now calls upon the Governing Body to remind the Government that no action has been taken on those recommendations and to reaffirm its hope that African workers may as soon as possible be enabled to exercise in full freedom the right to organise and to bargain collectively.
• Allegations relating to the Industrial Conciliation Bill
  188. 188 The complaining organisation declares that, by its various racial stipulations, the Industrial Conciliation Bill abolishes the collaboration of the different races in the trade union movement. In particular, the complainant alleges that : (1) the Bill empowers the Minister of Labour to decide that certain kinds of employment shall be reserved exclusively to workers of one race or particular races ; (2) the Bill provides for sections and meetings for the different racial groups in the existing mixed trade unions and reserves to Europeans alone the right of access to the executive committees of such unions ; (3) the Bill promotes the establishment of trade unions organised on a separate racial basis by providing that when more than half of the workers belonging to the same race and employed in the same industry abandon their trade union to form a new one all the members of the same race in the old mixed organisation must join the secessionary union, which is entitled to a part of the funds of the original organisation ; (4) the Bill provides for cessation in the future of registration of mixed trade unions. The complainant considers that these various provisions are contrary to the principles enunciated in the I.L.O Constitution and in the Declaration of Philadelphia and to the principles contained in Articles 2, 3 (1) and (2), 7, 8 (2) and 11 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and asks the Governing Body to recommend the Government to amend-if not annul-the Industrial Conciliation Bill.
• ANALYSIS OF THE REPLY
• Question as to Competence
  189. 189 In its reply dated 16 October 1956 the Government of the Union of South Africa recalls and reaffirms its previous expression of its view that, in setting up the Fact-Finding and Conciliation Commission on Freedom of Association to consider allegations of infringements of trade union rights, the Governing Body and the International Labour Conference exceeded their competence, and that it does not, therefore, consider itself under any obligation to comply with the procedure laid down. However, without prejudice to the foregoing, and in order to avoid misunderstanding, it submits comments on those aspects of the allegations now made which have not been dealt with previously.
• Allegations relating to the General Situation with regard to Freedom of Association
  190. 190 The Government does not refer to the recommendations previously made to it by the Governing Body, and its observations on its policy in trade union matters are related to the provisions of the new Industrial Conciliation Act.
• Allegations relating to the Industrial Conciliation Bill
  191. 191 The Government declares that the purpose of the new Act is to strengthen, and not to weaken, trade unionism, having regard to the wishes of all sections of the population, the Government being in favour of the encouragement and promotion of sound trade unionism. The enactment is intended, among other things, to preserve industrial peace, to do justice to both employer and employee, to maintain and improve the standard of living of employees and to protect them against exploitation and to allow the economic progress of the various races to take place on a sound basis. Accordingly, states the Government, the new enactment embodies the basic principles of the Industrial Conciliation Act, 1937, which met with general approval, and brings in a number of improvements which should assist in maintaining good employment relations.
  192. 192 The Government points out that the membership of all registered trade unions in the Union of South Africa amounts to a total of 365,000 and states that only one trade union federation, with a membership of 150,000, has opposed the new enactment ; some members of affiliates of this federation have expressed support for the enactment. Also, adds the Government, only one-third of the workers covered by the new enactment belong to registered unions and no opposition to the measure came from the remaining two-thirds. In the Government's view, this shows that the legislation is supported by the majority of workers in registered trade unions and also by the non-members of such unions.
  193. 193 With regard to the more specific allegations relating to the different provisions of the enactment, the Government states that already " white ", " coloured " and " mixed " unions exist and function satisfactorily. As far as existing mixed unions are concerned, all that the new enactment does is to provide that where more than 50 per cent of the employees of the race concerned in the whole of the industry and area for which the mixed union is registered decide to form a separate union, they shall, subject to certain stipulated conditions, be entitled to receive a share of the assets of the existing union. The question of the division of the assets is, in the first place, left to the parties to settle voluntarily. The Government considers that this is especially democratic and states that, without this provision, a majority of persons of a particular race might be compelled, for financial reasons, to remain members of a union which no longer satisfies their aspirations and ideals. The Government also stresses that, where a separate union is desired by the requisite number of a particular race and such union is duly registered, it does not compel the remaining number of that race to join the new union. The Government admits that, under the new enactment, new unions catering for both whites and coloureds are not registrable and also that existing mixed unions must provide in their Constitutions for white executives and for the establishment of separate branches, but states that there can still be close consultation between separate branches on matters of mutual interest.

Question as to Competence

1. 194. With respect to the issue raised on the question of the competence of the I.L.O to establish the fact-finding and conciliation procedure, the Committee reaffirms the statement it made in an earlier case relating to the Argentine Republic (Case No. 12) and repeated in previous cases relating to the Union of South Africa (Cases Nos. 632 and 1023) and Poland (Case No. 148) that, in view of the decision taken on this matter by the International Labour Conference at its 33rd Session in 1950, it considers that it is not called upon to examine further the question of the competence of the I.L.O to establish this procedure.
2. 195. The Committee notes with satisfaction that the Government, while maintaining its express reservations as to the competence of the Committee, has nevertheless seen fit to present its observations on the substance of those of the allegations contained in the present complaint which it does not regard as having already been dealt with in previous cases relating to the Union of South Africa that have been examined by the Committee.
3. Allegations relating to the General Situation with regard to Freedom of Association
4. 196. The complainant refers to the legislation with regard to the application of which recommendations were addressed to the Government of the Union of South Africa by the Governing Body when it adopted the 15th Report of the Committee and, in particular, to the fact that on that occasion the Governing Body expressed the hope that a new policy would be instituted as soon as possible and that African workers might be awarded the right to organise and to bargain collectively in full freedom. The complainant asks that the Governing Body should now remind the Government that it has taken no action to give effect to those recommendations and to reaffirm its hope that African workers may as soon as possible be enabled to exercise in full freedom the right to organise and to bargain collectively.
5. 197. In these circumstances, and having regard to the fact that it has no evidence before it to show that the general trade union situation in the Union of South Africa has changed, in so far as the application of the Suppression of Communism Act, 1950, as amended in 1951, is concerned, and in so far as the situation of the African worker under the Native Labour (Settlement of Disputes) Act, 1953 and the Industrial Conciliation Act is concerned, the Committee recommends the Governing Body to reaffirm the conclusions formulated with respect to the application of that legislation in paragraph 185 of the Committee's 15th Report and to express again its hope that African workers may as soon as possible be enabled to exercise in full freedom the right to organise and to bargain collectively.
6. Allegations relating to the Industrial Conciliation Bill
7. 198. With respect to the Government's statement that only one trade union federation, with a membership of 150,000 out of a total membership of all registered unions of 365,000, has opposed the new Industrial Conciliation Act, the Committee considers that it is not in a position to draw either positive or negative conclusions from this fact and that its examination of the allegations relating to the Act in question should be conducted having regard to what the Act provides.
8. Allegations relating to the Reservation of Particular Work to Particular Races or Classes of Persons.
9. 199. The first point made by the complainant is that the Bill (now the Industrial Conciliation Act, 1956) empowers the Minister of Labour to decide that certain kinds of employment shall be reserved exclusively to workers of one race or particular races. This particular allegation was examined by the Committee in Case No. 102 relating to the Union of South Africa. The precise wording of the relevant section of the Bill as then cited by the complainant was as follows:
10. S.77. Whenever it appears to the Minister that measures should be taken in order to safeguard the economic welfare of employees of any race, he may, by notice in the Government Gazette, make a determination that, as from a given date and in any area specified by him, employment in any undertaking, industry, trade or occupation shall be reserved for persons of a specified race. In defining the nature of the work to be performed by employees of a specified race, the Minister may have recourse to any method of differentiation or discrimination as may seem to him desirable.
11. The Committee then recommended the Governing Body to note that the enactment of the relevant section of the Bill in the terms cited by the complainant " would tend to prevent the negotiation by collective agreement of better terms and conditions, including terms and conditions governing access to particular employments, and thereby to infringe the rights of the workers concerned to bargain collectively and to promote and improve their living and working conditions, which are generally regarded as essential elements of freedom of association ".
12. 200. Section 77 of the Industrial Conciliation Act, 1956, reads as follows:
13. (1) Subject to the provisions of this section, whenever it appears to the Minister that measures should be taken in order to safeguard the economic welfare of employees of any race in any undertaking, industry, trade or occupation, he may direct the tribunal to make an investigation into the desirability of making a determination under this section.
14. (2) An investigation referred to in subsection (1) shall be conducted in respect of the undertaking, industry, trade or occupation and in respect of the area specified in the direction.
15. (3) The Minister shall appoint assessors in accordance with the provisions of subsection (14) of section seventeen in respect of every investigation undertaken by the tribunal under this section : Provided that this subsection shall not apply if after consultation with the parties who in his opinion are principally concerned the Minister is satisfied that it is not practicable to appoint assessors in accordance with the said provisions, or that the appointment of assessors is not desired by the said parties.
16. (4) The terms of a direction under subsection (1) shall as soon as possible after the issue thereof be published in the Gazette, together with a notice inviting interested persons to submit representations to the tribunal within a period specified in the notice, not being less than fourteen days from the date thereof.
17. (5) After consideration of any representations submitted in terms of subsection (4) and after consultation with:
18. (a) any industrial council which in its opinion is concerned in the matter ; and
19. (b) any registered employers' organisation or registered trade union which in its opinion is concerned in the matter and which is not a party to any industrial council consulted under paragraph (a) ; and
20. (c) the Central Native Labour Board established under section three of the Native Labour (Settlement of Disputes) Act, 1953 (Act No. 48 of 1953),
21. and after such other investigation as it deems necessary, the tribunal shall submit a report to the Minister setting out the results of its investigations. In submitting its report the tribunal shall recommend either that no further action be taken or that a determination be made under this section.
22. (6) A recommendation that a determination be made under this section shall set forth the terms of the proposed determination which may include provisions relating to all or any of the following matters:
23. (a) the reservation either wholly or to the extent set out in the recommendation of work or any specified class of work or work other than a specified class of work in the undertaking, industry, trade or occupation concerned, in the specified area or any portion thereof or on or in any specified type or class of premises in the specified area, for persons of a specified race or for persons belonging to a specified class of such persons or for such persons other than a specified class of persons, and the prohibition of the performance of such work by any other person ;
24. (b) any matter necessary for or incidental to the carrying out of the provisions of the determination.
25. (7) (a) After the receipt by him of a recommendation by the tribunal under subsection (5) that a determination be made, the Minister may, if after consultation with the Minister of Economic Affairs, he deems it expedient to do so, by notice in the Gazette make a determination in accordance with the said recommendation.
26. (b) Any determination made under paragraph (a) shall be binding from a date and for a period specified in the said notice.
27. (8) On the recommendation of the tribunal the Minister may correct any error or omission or clarify any provision in a determination, if he considers such correction or clarification to be necessary, and shall cause a notice setting forth the terms of such correction or clarification to be published in the Gazette. The determination as corrected or clarified shall be deemed to be the determination made under subsection (7).
28. (9) The Minister may, if he deems it expedient to do so, on the recommendation of the tribunal, cancel or suspend from time to time all or any of the provisions of a determination in the whole or any portion of the area in which it is binding, and shall cause to be published in the Gazette a notice of every such cancellation or suspension and the date from which any such cancellation or suspension shall take effect and the period of any such suspension.
29. (10) (a) The Minister may grant exemption from all or any of the provisions of a determination to or in respect of any person or class of persons upon whom the determination is binding, for such period and subject to such terms and conditions as he may determine ; and he may at any time in his discretion withdraw any such exemption.
30. (b) The terms and conditions of an exemption granted under paragraph (a) shall be incorporated in a certificate of exemption signed by an officer and a copy thereof shall be transmitted to such person or persons as the officer considers necessary Provided that in lieu of such certificate the Minister may authorise the publication in the Gazette of a notice incorporating the terms and conditions of the exemption ; and in that event the person or class of persons to or in respect of whom the period for and the date from which the exemption is granted shall be specified in such notice.
31. (11) No determination made under subsection (7) shall be binding in any undertaking, industry, trade or occupation in any area while an agreement entered into by the parties to an industrial council is binding in that undertaking, industry, trade or occupation and area, unless the council consents thereto.
32. (12) For the purposes of this section:
33. (a) " employee " includes a native ;
34. (b) " race " means white persons or coloured persons or natives ;
35. (c) " class of persons " means a class of persons within the meaning of that expression in subsection (9) of section fifty-one and the provisions of that subsection shall mutatis mutandis apply to the making of any specification or definition of the class of persons concerned in a recommendation under subsection (6) or in a certificate or notice of exemption.
36. ......................................................................................................................................................
37. Section 51 (9) referred to in S. 77 reads as follows:
38. (9) For the purposes of this section, " class of persons " includes such group or section or type of person as may be specified or defined in the licence of exemption, and in the making of any such specification or definition any method of differentiation or discrimination based on age, sex, experience, length of employment or type of work or type or class of premises or the area on or in which work is performed, or any other method which is deemed to be advisable may be applied.
39. 201. The Committee observes that the legal background against which this particular allegation requires to be examined is no longer quite the same as it appeared to be when the Committee examined Case No. 102. The first step in the procedure appears to be that the Minister must direct the tribunal appointed under the Act of 1956 to inquire into the desirability of making a determination, with or without assessors as the case may be ; interested persons may submit representations to this tribunal, which must consult any industrial council or registered employers' organisation or registered trade union concerned, and also the Central Native Labour Board established under the Native Labour (Settlement of Disputes) Act, 1953, before it makes its recommendation. The Minister still has discretion whether or not to make a determination in accordance with the recommendation (S.77 (7) (a)) but, under S.77 (11) the determination cannot override a collective agreement negotiated by an industrial council without the consent of the council.
40. 202. The Committee considers that, as compared with S.77 of the original Bill as cited by the complainant in Case No. 102, the requirement as to consultation with industrial councils or registered employers' organisations or registered trade unions and, especially, the proviso in S.77 (11) that a determination cannot override an agreement negotiated by an industrial council without the consent of the council, provide reason for it to modify its previous recommendation on this matter in Case No. 102 so far as workers whose organisations can be registered and represented on industrial councils are concerned-that is to say, white workers, together with such " coloured " workers as belong and may continue to belong to a registered organisation, but, with respect to the workers to whom the above safeguards do not apply, i.e. Africans, together with such " coloured " workers as may not benefit from the safeguards by virtue of the legal provisions examined below in connection with the remaining allegations before the Committee, reaffirms the conclusion reached in Case No. 102 and cited in paragraph 199 above.
41. Allegations relating to " Mixed " Unions
42. 203. The remaining allegations with respect to the Industrial Conciliation Act relate to those of its provisions which concern mixed unions (i.e., unions whose membership consists partly of white workers and partly of workers of mixed blood, referred to in the legislation as " coloureds ", but excluding Africans). It is alleged that segregation of the different races is enforced by the provisions to the effect that there shall henceforth be separate sections and meetings in the existing mixed unions and that only Europeans shall be members of their executives, and is promoted by provisions as to division of union assets which facilitate the breaking up of a mixed union into separate unions catering for different races and the further provision that in the future there will be no registration of new mixed unions under the Industrial Conciliation Act. The Government admits that the Act contains these provisions but states that there will still be scope for consultation between the different sections or unions on matters of mutual interest and that the arrangements for dividing union assets when a mixed union is split up are conceived on a fully democratic basis, while workers of the race forming the new union are not obliged to join it.
43. 204. Section 8 (3) (a) of the Industrial Conciliation Act, 1956, reads as follows:
44. If membership of a registered trade union is open to both white persons and coloured persons:
45. (i) the Constitution of such union shall as from a date not later than twelve months from the commencement of this Act provide:
46. (aa) for the establishment of separate branches for white persons and coloured persons, respectively ;
47. (bb) for the holding of separate meetings by the separate branches ; and
48. (cc) that its executive body shall consist only of white persons ;
49. (ii) no member of such union, not being an official or office-bearer of the union, shall after the expiry of a period of twelve months from the commencement of this Act attend or take part in any meeting of a branch other than a branch established for him in terms of the Constitution of such union in accordance with the provisions ;
50. (iii) no member of such union who is a coloured person shall after the expiry of a period of twelve months from the commencement of this Act attend or take part in any meeting of the executive body of such union except for the purpose of interrogation by such executive body or, with the consent of such body, of furnishing any explanation or making representations in regard to any allegation against him which is being investigated by such body in terms of the union's Constitution.
51. 205. The Committee considers that the provisions contained in S. 8 (3) (a) (i) (aa) and (bb) and (ii) above are not compatible with the principle that workers' organisations should have the right to draw up their Constitutions and rules and to organise their administration and activities, and that the provisions contained in S. 8 (3) (a) (i) (cc) and (iii) are not compatible with the principle that workers' organisations should have the right to elect their representatives in full freedom, although these principles are generally accepted as essential elements in trade union rights.
52. 206. Section 4 (6) of the Industrial Conciliation Act, 1956, reads as follows:
53. After the commencement of this Act no trade union shall be registered under this section:
54. (a) in respect of both white persons and coloured persons; or
55. (b) if membership of such union is open to both white persons and coloured persons.
56. Provided that the Minister may on the application of a union referred to in paragraph (b) and if he is satisfied that the number of white persons or coloured persons eligible for membership thereof is too small to enable them to form an effective separate union, authorise the registrar to register the said union in respect of both white persons and coloured persons, subject to the other provisions of this section.
57. 207. The Committee considers that the limitations imposed by the above provision are not compatible with the generally accepted principle that workers, without distinction whatsoever, should have the right to establish and, subject only to the rules of the organisations concerned, to join organisations of their own choosing without previous authorisation. In view of the fact that the denial of registration to an organisation means that it is excluded from the machinery for the negotiation of collective agreements and the settlement of disputes and, in particular, from participation in industrial councils and their negotiation of agreements which may be binding, the Committee considers, also, that the provisions in question are not compatible with the generally accepted principle that all workers' organisations should enjoy the right of collective bargaining.
58. 208. With regard to the final point alleged-the question of the splitting up of registered mixed trade unions-section 7 (2) of the Industrial Conciliation Act, 1956, reads as follows:
59. (a) If at any time the registrar is satisfied:
60. (i) that the scope of registration of a trade union, the membership of which is open to both white persons and coloured persons, is the same as or includes the scope of registration of a trade union, the membership of which is in terms of its Constitution limited to white persons ; and
61. (ii) that the number of members in good standing of the last-mentioned union, who are employed in the undertaking, industry, trade or occupation and area for which the last-mentioned union is registered, exceeds one-half of the number of white persons employed in such undertaking, industry, trade or occupation and area,
62. he shall subject to the provisions of section fourteen, of his own motion, after consultation with the first-mentioned union, or at the request of either union, vary the scope of registration of the first-mentioned union by the exclusion therefrom of white persons who are so employed, and shall in that event make the necessary alterations in his register.
63. (b) The provisions of paragraph (a) shall mutatis mutandis apply if the scope of registration of a trade union, the membership of which is open to both white persons and coloured persons, is the same as or includes the scope of registration of a trade union, the membership of which is in terms of its Constitution limited to coloured persons.
64. While it would appear from the various provisions contained in section 6 of the Act that, in such cases, the division of the assets of the former union takes place according to the procedure outlined by the Government in its reply, and while it would also appear, as the Government states, that the Act contains no provision imposing on any members of the original union the obligation to join the union newly formed, it is necessary, in order fully to appreciate the scope of section 7 (2) above, to refer to S. 14 of the Act which is mentioned in the said section 7 (2). Section 14 (1) reads as follows:
65. Whenever the registrar has reason to believe that a registered trade union or employers' organisation has been wound up or is not functioning as a trade union or employers' organisation, or that a trade union has not complied with the requirements of subparagraph (i) of paragraph (a) of subsection (3) of section eight, or whenever the registrar proposes in terms of subsection (2) of section seven to vary the scope of registration of a trade union which is registered for white persons, or coloured persons only by the exclusion therefrom of white persons or coloured persons, as the case may be, in the whole of the undertaking, industry, trade or occupation and area in respect of which such union is registered, he shall publish in the Gazette and send to the union or organisation by registered post a notice that at the expiry of the period mentioned in that notice, not being less than thirty days from the date of that notice, the registration of the trade union or employers' organisation mentioned therein will, unless cause be shown to the contrary, be cancelled.
66. It appears to the Committee, therefore, that, if the requisite number of members of a particular race proceed in accordance with S. 7 (2) to form a new union, the registration of what was previously a registered mixed trade union will be cancelled by the Registrar " whenever he proposes in terms of subsection (2) of section 7 to vary the scope of registration of a trade union which is registered for white persons or coloured persons only by the exclusion therefrom of white persons or coloured persons ", and that the rights of the organisation as a registered organisation will cease. The Committee is of the opinion, therefore, that the cumulative effect of sections 7 (2) and 14 (1) of the Act places the persons who remain members of the original registered union in the same position as the members of mixed organisations which may not, in the future, become registered, and that these provisions also, therefore, following the reasoning in paragraph 206 above, are incompatible with the generally accepted principles that workers, without distinction whatsoever, should have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation and that all workers' organisations should enjoy the right of collective bargaining.