Rapport définitif - Rapport No. 15, 1955

A. A. The complainants' allegations

• Complaint Presented by the World Federation of Trade Unions
  75. 75 The complaint presented by the World Federation of Trade Unions is contained in a communication addressed on 20 March 1954 to the Secretary-General of the United Nations and transmitted by him to the Director-General of the I.L.O, and in a communication addressed to the Director-General on 24 July 1954 in further substantiation of the original complaint. The complainant makes the following allegations.
• Allegations regarding the Suppression of Communism Act, 1950, as Amended in 1951
  76. 76 The complainant declares that 53 trade union officers have so far been removed from their offices by the administrative authorities, 39 of them having been prohibited from attending public meetings or performing any office whatsoever in a trade union organisation. In particular, according to the complainant, seven trade union officers-Messrs. I. Wolfsen, R. Fleet, J. D. du Plessis, J. J. Marks, M. T. Gwala, I. E. Bhoola and M. A. Müller-have been the subject of orders similar to that made in the case of Mr. E. S. Sachs, General Secretary of the Garment Workers' Union, concerning whom the complainant has already protested on an earlier occasion, calling upon them to resign from their trade unions within 30 days, prohibiting them from attending any meetings other than religious, social or recreational assemblies, placing travel restrictions upon them and calling on them to resign from other organisations to which they belonged. The names are also given of 16 other trade union officials alleged to have been ordered to resign from their offices and to have been prohibited from attending any meeting for a period of two years. The South African Trades and Labour Council, especially, has suffered as a result of these measures.
• Allegations regarding the Position of African Trade Unions and the Rights of African Workers under the Native Labour (Settlement of Disputes) Act, 1953
  77. 77 The 1953 Act deprives African workers, under pain of severe penalties, of the right to strike or to participate in sympathetic strikes. The machinery for settling disputes set up under the Act excludes African trade unions established under the Act from all instances dealing with disputes and will aggravate disputes and cause hardship to African workers. This exclusion means the non-recognition of the legal status of the African trade unions and a deliberate abrogation of the right of association-a purpose alleged to have been confirmed in a speech made by the Minister of Labour, in which he is reported to have stated that " if direct official recognition were to be accorded to Native unions, this would be regarded as a powerful encouragement...". In addition, African workers cannot bargain collectively. They were already excluded from deliberations held pursuant to the Industrial Conciliation Act, 1937, and under the 1953 Act, the Central Native Labour Board is created with power to recommend the revocation of industrial agreements and to fix rates of wages lower than those agreed between employers and workers. Native labour boards have to be convened by the industrial councils, which can therefore intervene in the negotiations, from which the African workers are excluded.
• Allegations relating to the Infringement of the Rights of Workers Other than Africans by the Native Labour (Settlement of Disputes) Act, 1953
  78. 78 The powers of the Minister under this Act enable him to apply orders made under it in the case of workers other than Africans. The Act, therefore, not only constitutes a refusal of the right of African workers to organise and to bargain, but legalises attacks on the trade union rights of other workers who enjoy certain freedoms under the Industrial Conciliation Act, 1937.
• Allegations concerning Proposed Amendments to the Industrial Conciliation Act, 1937
  79. 79 A proposed amendment to the Act will legalise trade union segregation and give the Minister of Labour the fullest powers to decide which occupations shall be followed by the different races inhabiting the Union of South Africa. The W.F.T.U states that section 77 of the Bill provides:
• 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.
• This provision, in conjunction with the powers to extend the application of orders made under the Native Labour (Settlement of Disputes) Act, 1953, would enable the Minister to dictate the wages and conditions of employment of all workers.
• Allegations regarding the South African Railways Administration
  80. 80 It is alleged that the Railways Administration has established a trade union under its domination, has imposed a compulsory check-off in favour of this organisation, has punished workers who have protested and has refused to have any dealings with the older South African Railways and Harbours (Non-European) Workers' Union. It is stated that several leaders and members of the latter union, including its National President and Vice-President and members of its national executive, were summarily dismissed during 1953, although some of them had worked on the railways for a great many years. In every case the dismissal was ordered by the Office of the Director-General in Johannesburg, the local directors never having recommended a dismissal or complained about the work of the persons concerned. It is contended that they were dismissed because of their trade union activities and in order to impede the functioning of their trade union organisation.
• Allegations concerning the Wolseley Fruit Canning Factory
  81. 81 Since 1951 the employers had dismissed workers who had tried to set up a trade union in the factory. In August 1953, however, a union was set up which sought to ensure the application in the undertaking of the collective agreement adopted for the industry as a whole. On 22 December 1953, the employers locked out the workers and dismissed three - Margreta Bastiaan, Rachel Williams and Anne McKenzie - who were active trade unionists. Over 300 workers, in protest, stopped work in January 1954. Three hundred and eighty workers, including women and children under 16 years of age, were arrested by the police, 284 still being in prison when the complaint was presented. It is contended that the Government, by police repression, helped the employers to destroy any trade union in the undertaking.
• Allegations concerning the Natal Spinners (Pty.), Ltd.
  82. 82 Detailed wage statistics are given with respect to workers employed by the Natal Spinners (Pty.), Ltd., showing, it is alleged, that the Minister has already used his powers under the 1953 Act to reduce the wages of the African workers and to imprison those who went on strike in protest. It is alleged that workers were deported from Ladysmith, where their families lived, to a point close to the factory.
• Complaint Presented by the International Confederation of Free Trade Unions
  83. 83 The complaint presented by the International Confederation of Free Trade Unions is contained in a communication addressed to the Director-General on 1 June 1954. The complainant makes the following allegations.
• Allegations regarding the Suppression of Communism Act, 1950, as Amended in 1951
  84. 84 Under this Act, more than 50 trade union leaders or officers have been banned from all trade union activity for having been, at some time or other, members of a " Communist organisation " or for having advocated, advised, defended or encouraged the achievement of any of the objects of communism or for having committed any act or omission calculated to further the achievement of any such object. The Minister of Justice alone is competent to determine whether a person is a Communist or not. No regular legal proceedings are provided for. Even if the Act can be considered a political measure, it allows the Government to interfere directly in the activities of trade unions, thus endangering their very existence. Provisions in the Act authorising the Government to declare trade union organisations unlawful and to deprive individuals of their right to become members of a trade union are contrary to the Freedom of Association and Protection of the Right to Organise Convention (No. 87), 1948, and, in particular, to Articles 2, 3 and 4 thereof. The fact that such decisions are taken by an arbitrary act of authority, without recourse to regular legal proceedings, constitutes an aggravating circumstance. The complainant asks the Governing Body to recommend the Government to amend the Act in conformity with Convention No. 87, in particular, so that the Government can no longer declare any trade union organisation unlawful or order any trade union office-bearer or officer to resign his trade union office.
• Allegations regarding the Position of African Trade Unions and the Rights of African Workers under the Native Labour (Settlement of Disputes) Act, 1953
  85. 85 African workers are excluded from the scope of the Industrial Conciliation Act, 1937, which means that they cannot form and register unions under that Act so that they become legally recognised as agents for collective bargaining, and that they cannot become members of unions legally recognised under the Act. The industrial relations of African workers are governed by the Native Labour (Settlement of Disputes) Act, 1953. The procedure laid down in this Act for the settlement of disputes ignores the trade union rights of African workers. The fact that the 1937 Act does not apply to African workers is contrary to the I.L.O Constitution and the Declaration of Philadelphia. All the provisions of the Native Labour (Settlement of Disputes) Act are contrary to the Freedom of Association and Protection of the Right to Organise Convention (No. 87), 1948, and especially to Articles 2, 3 and 4 thereof, and to the Right to Organise and Collective Bargaining Convention (No. 98), 1949, and especially to Article 4 thereof. The complainant asks the Governing Body to request the Government to consent to the case being referred to the Fact-Finding and Conciliation Commission and, as a secondary consideration, to recommend the Government to amend the Industrial Conciliation Act, 1937, so that its scope may extend to African workers, and to repeal in toto the Native Labour (Settlement of Disputes) Act, 1953.
• Allegations relating to the Infringement of the Rights of Workers Other than Africans by the Native Labour (Settlement of Disputes) Act, 1953
  86. 86 Orders made under this Act setting out working conditions for African workers can be extended to other workers covered by the Industrial Conciliation Act, 1937, and, in this way, can supersede the collective agreements negotiated by such other workers, thus constituting a clear violation of their collective bargaining rights.
• ANALYSIS OF THE REPLY
  87. 87 In its reply dated 17 December 1954, the Government of the Union of South Africa presents the following observations.
• Question as to Competence
  88. 88 The Government refers to its earlier statements' to the effect 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. The Government maintains that the I.L.O has set up machinery for the implementation of obligations which do not legally exist. Such obligations could only come into being by means of an international Convention, and even then the obligations would be limited to those States which ratified such a Convention. If additional machinery for the protection of trade union rights is considered essential, such machinery should be established by a Constitution ally adopted amendment to the Constitution of the I.L.O. The Government then recalls that it has already referred to the support given to its contention by the Permanent Court of International Justice and the Working Group of the Commission on the Implementation of the Human Rights Covenant.,
  89. 89 The Government declares that a new Constitutional aspect has been introduced by the fact that the International Confederation of Free Trade Unions alleges that all the provisions of the Native Labour (Settlement of Disputes) Act, 1953, are contrary to the principles contained in the Freedom of Association and Protection of the Right to Organise Convention (No. 87), 1948 (in particular, Articles 2, 3 and 4) and the Right to Organise and Collective Bargaining Convention (No. 98), 1949 (in particular, Article 4). Under the I.L.O Constitution, states the Government, member States are entirely free to ratify or not to ratify Conventions. If a member State has ratified a Convention and fails to carry out the obligations undertaken, the situation is to be dealt with according to Articles 23 to 34 of the Constitution, but a member State which has not ratified a particular Convention is free to decide for itself whether it would be in the interests of its peoples to bring its legislation into line with the provisions of the Convention. As the Union of South Africa has not ratified Conventions Nos. 87 and 98, the Government regards allegations made against it on the basis of the provisions of those Conventions as irrelevant.
  90. 90 Although it does not consider itself under any obligation to comply with the fact-finding and conciliation procedure, the Government, without deviating from the attitude which it has adopted, desires, in the interests of clarity, to record certain observations on the allegations made.
• Allegations regarding the Suppression of Communism Act, 1950, as Amended in 1951
  91. 91 The Government states that it has already commented on the scope and operation of this Act in a previous case, that the question has already been dealt with by the Committee in its Twelfth Report and that it therefore considers it unnecessary to make further comments.
• Position of African Trade Unions
  92. 92 Legislation in the Union does not bar the formation of trade unions by Native workers, nor are Native workers barred from negotiating private agreements with their employers. Experience has shown, however, that Native trade unions do not operate satisfactorily. Other means had therefore to be devised to ensure fair wages and conditions of employment to Native workers, and this led to the passing of the Native Labour (Settlement of Disputes) Act, 1953.
• Native Labour (Settlement of Disputes) Act, 1953
  93. 93 The Industrial Conciliation Act, 1937, provided for the formation of industrial councils to negotiate agreements for a given undertaking, industry, trade or occupation. An employer or group of employers, a registered employers' organisation, a group of one or more employers and one or more registered employers' organisations could, together with any registered trade union or a group of registered trade unions, form an industrial council.
  94. 94 The purpose of the above-mentioned provisions of the Industrial Conciliation Act, 1937, was to permit of one agreement being negotiated to cover all the workers in an industry, even if some of them were not directly represented on the industrial council. In practice, the workers belonging to trade unions therefore negotiated (through their trade unions on the council) conditions of employment applicable also to other workers (including Native workers) not belonging to trade unions.
  95. 95 In order to ensure that the interests of these " non-represented " workers were not overlooked, section 27 (9) of the Act provided that an inspector (a government official) could attend the meetings of an industrial council and take part in the proceedings whenever the interests of workers not directly represented were discussed.
  96. 96 The system outlined above was not considered entirely satisfactory. The inspector could, for example, be regarded as merely a mouthpiece of the Government. Furthermore, he could not, apart from representations, influence the final decision. If the agreement finally negotiated did not, in the opinion of the authorities, give reasonable protection to the unrepresented workers, the only action that could be taken was to decline to give the force of law to the negotiated agreement.
  97. 97 It will be seen from the above that the trade unions which negotiated these agreements firstly negotiated on behalf of their own members (European, Coloured and Asiatic) and, secondly, included in their collective agreements conditions for workers not represented, save through a government inspector.
  98. 98 In order to improve the position of the non-represented workers, the Native Labour (Settlement of Disputes) Act was passed in 1953.
  99. 99 The passing of this Act did not change the primary function of the trade unions, i.e. the negotiation of collective agreements on behalf of their own members. It did, however, change the position regarding negotiation on behalf of non-represented members, i.e. Native workers.
  100. 100 Section 7 of the Act requires the employer to notify the labour officer -a government official-should his Native workers wish to form a works committee. The labour officer then assists the Native workers in the calling and holding of a meeting to elect a works committee from the ranks of these workers. The works committee, through its office-bearers, who are all Natives, manages its own affairs and becomes the mouthpiece of the workers. It is through this committee that the other organs set up under the Act, and to which reference is made in the succeeding paragraphs, ascertain the wishes of the Native workers.
  101. 101 The Act further provides for the appointment of regional committees, each consisting of a European chairman and not less than three Natives appointed by the Minister of Labour to represent the interests of Native workers.
  102. 102 The Act also provides for the establishment of a Central Native Labour Board under a chairman appointed by the Minister. The remaining members are appointed by the Minister after consultation with the regional committees. These persons must, in the opinion of the Minister, be competent to represent the interests of the employees.
  103. 103 The purpose of the regional committees is to assist in solving disputes. A regional committee is required to consult any works committee that may be involved in such a dispute. If the regional committee fails to settle the dispute, the matter is referred to the Central Native Labour Board.
  104. 104 If the Central Native Labour Board also fails to find a solution, the dispute may be referred to the Wage Board, a standing body representing neither employers nor employees. The Minister is obliged, under the Act, to make an order in terms of the Wage Board's recommendation.
  105. 105 The Native Labour (Settlement of Disputes) Act does not interfere with the right of industrial councils to negotiate agreements covering all workers in a particular industry. It does, however, improve the position as far as non-represented workers (Native workers) are concerned.
  106. 106 Under the existing arrangements, the Central Native Labour Board (which keeps in touch with the regional committees concerned) may attend meetings of an industrial council and take part in the proceedings in so far as they affect Native workers. If, in the opinion of the Board, an agreement negotiated for an entire industry contains satisfactory conditions for the non-represented workers, the agreement is published and is given the force of law as heretofore. If the Board is not satisfied with the conditions, the agreement can still be published, but the conditions affecting the non-represented workers are referred to the Wage Board, which can recommend to the Minister fair and reasonable conditions, which would then be applied to the non-represented workers. The Wage Board cannot, however, alter the conditions which the industrial council has negotiated on behalf of the members of the trade unions. It must be emphasised, therefore, that the Native Labour (Settlement of Disputes) Act, 1953, does not in any way affect the right of trade unions to bargain in respect of their own members. The Act merely introduces a safeguard as to what conditions the industrial council can include in respect of workers who are not members of trade unions.
  107. 107 Through the new machinery provided by the Act it has become possible to ascertain with a greater degree of accuracy the wishes of the Native workers.
  108. 108 In the foregoing paragraphs, the scope and operation of the Native Labour (Settlement of Disputes) Act have been outlined. The W.F.T.U appears, however, to have based some of its allegations on the wording of a draft Bill, which differs in some instances from the Act as finally passed.
  109. 109 As regards the general nature of the Act, the W.F.T.U alleges that it discriminates against Native workers in so far as the right to strike is concerned. It should be emphasised, however, that strikes have for many years been prohibited in certain essential services, and this prohibition applies to all employees, Europeans and non-Europeans alike. In lieu thereof, these workers enjoy the benefits of compulsory arbitration. Since Native workers, especially the lower-paid categories, could readily be replaced from the large reservoir of available Native labour, it is unlikely that any real benefit would accrue to these workers from the right to strike.
  110. 110 It has been publicly stated that the Native Labour (Settlement of Disputes) Act is in the nature of an experiment. Experience may show that it requires some revision. It has only recently come into operation, and the Central Native Labour Board has dealt with the first dispute involving a large number of Native workers. Its intervention has resulted in an agreement being reached between the large body of Native workers and the employers concerned with benefit to the workers involved.
  111. 111 It is quite possible that unscrupulous agitators will endeavour to cause unrest by attacking and misrepresenting this legislation, but it is hoped that responsible persons will view it objectively and realise its true merit.
• Allegations concerning Proposed Amendments to the Industrial Conciliation Act, 1937
  112. 112 The proposed amendments are still the subject of consideration and, until they become law in their present or a revised form, the Government considers that no comments can be offered.
• Allegations regarding the South African Railways Administration
  113. 113 Prior to 1944 there existed a number of bodies purporting to represent the same groups of non-European staff of the Railways Administration. This resulted in overlapping and in divergent representations being received by the Administration from the various unions and organisations. In order to overcome this unsatisfactory position, an investigator was appointed to inquire into and report upon the best form of staff representation for the non-European employees of the Administration. After consideration of the report of the investigator, meetings were arranged between the Minister of Transport and representatives of non-European railway workers throughout the Union and South-West Africa. The outcome was that the existing organisations grouped themselves into associations, which were then recognised as the only bodies competent to negotiate with the Administration on behalf of the respective groups which they represented. There are at present ten staff associations, representative of each of the nine railway system areas in the Union and South-West Africa and of the catering department. These associations can freely submit grievances and put forward claims on behalf of the staff.
  114. 114 Each association drew up its own Constitution, which was subsequently accepted by the Railways Administration.
  115. 115 Each Constitution provides for the establishment of branch committees at centres where there are more than 25 members. Each committee elects a chairman, vice-chairman, honorary secretary and six other members. Each association has a congress, consisting of delegates sent by the branch committees. The congress is the supreme authority of the association, and decides what action should be taken in pursuit of the aims and purposes set out in the association's Constitution. When congress is not in session, an executive committee, elected by congress, sits on its behalf. The executive committee appoints a full-time general secretary and organiser, who is directly responsible to the committee.
  116. 116 The activities of the different associations are co-ordinated by a joint committee, on which each association is represented by two delegates and its secretary-general. This joint committee meets once a year, when matters of general interest are discussed.
  117. 117 In order to assist staff associations in the collection of monthly subscriptions, stop-order facilities, through pay-sheets, are granted. No subscriptions are deducted from workers' wages unless such workers have voluntarily signed stop orders indicating that they have applied for membership of one of the staff associations. The general secretary of each staff association is responsible for the enrolment of new members and the stop orders signed by members are countersigned by two witnesses. The Administration is not aware of any dissatisfaction on the part of the staff with this system of collecting the monthly subscriptions.
  118. 118 As the staff associations are the only bodies recognised as competent to negotiate on behalf of the personnel, the Administration cannot consider representations made by any other body. Consistent with this policy, the Administration refuses to have any dealings with the South African Railways and Harbours (Non-European) Workers' Union.
  119. 119 In regard to the representations in connection with the dismissal of certain leaders and members of the South African Railway and Harbours (Non-European) Workers' Union, it was established that the non-Europeans concerned took active part in undesirable activities. The Administration, as their employer, was not prepared to countenance their action, and their services were therefore terminated after they had been given the legal notice of such termination of services.
• Allegations concerning the Wolseley Fruit Canning Factory
  120. 120 The facts in this case, states the Government, are completely at variance with the impression which the allegations seek to convey.
  121. 121 In terms of the industrial Conciliation Act, all strikes are prohibited until the conciliation machinery provided for in the Act has first been used in an attempt to settle whatever dispute has arisen between workers and employers. The workers at this factory were well aware of the position. Their trade union had for some time been negotiating with their employer and, on reaching a deadlock, had applied to the Minister of Labour for the appointment of a conciliation board to consider and, if possible, to settle the matters in dispute. This is the normal procedure for negotiating a collective agreement with a view to its ultimate publication and enforcement by the Department of Labour, and had frequently been used by this trade union in the past with very satisfactory results.
  122. 122 On 16 October 1953, the Minister approved the appointment of a conciliation board. The negotiations subsequently initiated by the board resulted in the conclusion of an agreement between the trade union and the employer on 19 February 1954. On 14 December 1953, while the board was in session and the negotiations still proceeding, approximately 442 of the 860 employees in the factory staged a strike. Some of their trade union officials, however, arrived at the factory and persuaded the employees to return to work. The trade union made some vague allegation that this occurrence constituted a lockout, but never attempted to substantiate this allegation. As nothing unusual happened at the factory on 22 December 1953, it is assumed that the allegation about a lockout on 22 December refers to the incident which occurred on 14 December.
  123. 123 The canning industry is a seasonal one, and the canning of apricots came to an end shortly after the incident referred to above. As a seasonal measure, the services of a substantial proportion of the workers had to be terminated. Together with those of a large number of other workers, Margreta Bastiaan's services were terminated on 27 December 1953, and Rachel Williams' employment ceased on 5 January 1954. On 8 January 1954, Anne McKenzie was dismissed with a week's notice for neglect of duty.
  124. 124 At the commencement of the peach-canning season shortly afterwards, the employer refused to re-engage the first two named workers. This refusal and the dismissal of Anne McKenzie apparently caused the strike on 19 January 1954. On this occasion, 265 employees stayed away, while 386 remained at work. Although it was pointed out to the strikers that their action was illegal, they persisted in their refusal to return to work, and on 20 January 1954 the employer exercised his legal rights and formally dismissed all the strikers. On 21 January, in spite of warnings, they returned to the employer's premises in company with other persons, refused to leave when called upon to do so, and were eventually arrested and charged with trespassing. The number arrested was 380, as stated in the Federation's complaint, but it is not known how many of the original 265 strikers were included in this number. It is clear, however, that many of those arrested and charged with trespassing were sympathisers and not employees of the Wolseley Fruit Canning Factory. No children under 16 years of age were arrested, and by 4.30 p.m. on the same afternoon 96 females, the majority of whom were under 19 years of age, had been released on bail. The remaining 284 were detained at Kluitjeskraal, but by 7 p.m. on the following day, i.e. 22 January 1954, they had all been released. Any action subsequently taken against these persons for trespassing was in the ordinary course of law.
• Allegations concerning the Natal Spinners (Pty.), Ltd.
  125. 125 The present proprietor of this concern only acquired the business on 1 February 1954, and as the whereabouts of the previous proprietor are not known, it is impossible to obtain full particulars about the conditions of employment which were in force before this date. It has, however, been ascertained that there is no truth in the allegation that workers were deported from Ladysmith and put to work at the factory in Pinetown.
  126. 126 The present employer found it economically impossible to continue paying the same wages as his predecessor, and eventually terminated the services of all the employees in the spinning department. The discharged employees were offered new contracts, which were accepted by the majority. The re-engaged employees, however, soon demanded wage increases. Some of these demands were acceded to, with a resulting increase in the cost structure. As the factory was again running at a loss, the owner informed the employees that he would not be able to grant any further increases in wages unless there was an increase in production. The employees thereupon went on strike in contravention of the law. Legal action was therefore taken against them. On the day appointed for the trial, the attorney for the defence failed to appear and, as a result, the defendants had to find bail. Those who could not offer bail had to be detained. Six were detained for one day, ten for two days and 22 for three days. It must be emphasised, however, that the inconvenience caused to the defendants was a direct result of the failure of their attorney to appear in court on the appointed day.
  127. 127 It will be seen from the foregoing that only the employer and his employees were involved in the dispute. The workers placed themselves in the wrong by not availing themselves of the machinery for the settlement of disputes provided under the Native Labour (Settlement of Disputes) Act, 1953. By making use of the established machinery, they have every chance of obtaining conditions of service which are fair and equitable to all concerned.

Question as to Competence

1. 128. 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 the previous case relating to the Union of South Africa (Case No. 63) 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. 129. The Government contends that a new Constitutional issue is raised by the fact that the I.C.F.T.U bases certain of its allegations on a number of the provisions of Conventions Nos. 87 and 98, the Government not having ratified these Conventions and not therefore being legally bound by their provisions. For these reasons the Government considers the allegations to be irrelevant.
3. 130. The Committee considers it appropriate to point out that the Declaration of Philadelphia, which now constitutes an integral part of the Constitution of the International Labour Organisation and in which the aims and purposes set forth are among those for the promotion of which the Organisation exists in virtue of Article 1 of the Constitution, as amended in 1946, recognises " the solemn obligation of the International Labour Organisation to further among the nations of the world programmes which will achieve ... the effective recognition of the right of collective bargaining, the co-operation of management and labour in the continuous improvement of productive efficiency, and the collaboration of workers and employers in the preparation and application of social and economic measures ". The Declaration affirms that the principles set forth therein " are fully applicable to all peoples everywhere and that, while the manner of their application must be determined with due regard to the stage of social and economic development reached by each people, their progressive application to peoples which are still dependent, as well as to those who have already achieved self-government, is a matter of concern to the whole civilised world ".
4. 131. In these circumstances, the Committee considers it appropriate that it should, in discharging the responsibility to promote these principles which has been entrusted to it, be guided in its task, among other things, by the provisions relating thereto approved by the Conference and embodied in the Freedom of Association and Protection of the Right to Organise Convention (No. 87), 1948, and the Right to Organise and Collective Bargaining Convention (No. 98), 1949, which afford a standard of comparison when examining particular allegations, more particularly as Members of the Organisation have an obligation under Article 19 (5) (e) of the Constitution to report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of its law and practice in regard to the matters dealt with in unratified Conventions, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Conventions. The Government of the Union of South Africa is one of the governments which have complied with this obligation at the request of the Governing Body in respect of the Freedom of Association and Protection of the Right to Organise Convention (No. 87), 1948. The Committee therefore considers that, while recognising that the provisions of the Conventions are not binding upon the Union of South Africa, it should examine the allegations relating to these Conventions made in the present case with a view to ascertaining the facts and reporting them to the Governing Body.
5. 132. 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 the complaints.
6. Allegations relating to the Suppression of Communism Act, 1950, as Amended in 1951
7. 133. Both complainants declare that over 50 trade union leaders have been banned from all trade union activity. The I.C.F.T.U refers to the fact that such decisions are taken by administrative authority without due process of law and states that, even if the Act can be regarded as a political measure, it allows the Government to interfere directly in the activities of trade unions. In particular, the I.C.F.T.U criticises the provisions allowing the Government to declare trade union organisations unlawful and to deprive individuals of their membership rights as being contrary, especially, to Articles 2, 3 and 4 of the Freedom of Association and Protection of the Right to Organise Convention (No. 87), 1948, and asks the Governing Body to recommend the Government to delete these provisions. The W.F.T.U, in its complaint, names various persons among those alleged to have been called upon to resign from their trade union offices. These include Messrs. J. J. Marks, I. Wolfsen, R. Fleet and J. D. du Plessis, whose names were also quoted in the previous case (Case No. 63) presented by the W.F.T.U against the Government of the Union of South Africa
8. 134. The Government states that it has nothing to add to the comments which it made when the question of the operation of the Suppression of Communism Act was previously considered by the Committee.
9. 135. The Committee considers that, while the complaint of the W.F.T.U, in particular, gives the names of further persons affected by the exercise of the Government's powers under the Suppression of Communism Act, the allegations now made are substantially similar to those considered in Case No. 63.
10. 136. In that case, recalling the principles which it had expressed in two earlier cases in connection with the application of measures which, though of a political nature and not intended to restrict trade union rights as such, might nevertheless affect the exercise of trade union rights, the Committee concluded:
11. In so far as the South African Act of 1950 was enacted, as the Government contends, purely for a political reason, namely that of barring Communists in general, as citizens, from all public life, the Committee considers that the matter is one of internal national policy with which it is not competent to deal and on which it should therefore refrain from expressing any view. However, in view of the fact that measures of a political nature may have an indirect effect on the exercise of trade union rights, the Committee wishes to draw the attention of the South African Government to the views which it has expressed in the above cases with regard, first, to the principle that workers, without distinction whatsoever, should have the right to join organisations of their own choosing and, secondly, to the importance of due process in cases in which measures of a political nature may indirectly affect the exercise of trade union rights. Consequently, the Committee recommends the Governing Body to communicate the above conclusions to the Government of the Union of South Africa.
12. 137. In these circumstances the Committee reaffirms in the present case the conclusions which it reached in connection with similar allegations in Case No. 63 and recommends the Governing Body once again to draw the attention of the Government of the Union of South Africa to those conclusions.
13. Allegations regarding the Position of African Trade Unions and the Rights of African Workers under the Native Labour (Settlement of Disputes) Act, 1953
14. 138. The complainants contend in the first place that African workers are denied the right to form and register trade unions under the Industrial Conciliation Act, 1937, so that they may be legally recognised as collective bargaining agents, and that they cannot join unions registered under that Act. This should be remedied, in the view of the I.C.F.T.U, by amending the 1937 Act to extend its coverage to African workers.
15. 139. The Government states that legislation does not prohibit Africans from forming trade unions or negotiating private agreements with employers, but that, in practice, such unions have not operated well. The position under the 1937 Act, according to the Government, is that registered organisations of employers and employees can form industrial councils to negotiate agreements, which might cover a whole industry, trade, occupation or undertaking and so apply not only to their own members but to non-represented workers, including Africans. The Government considers that the provision in the Act enabling a government inspector to attend meetings of an industrial council when the interests of non-represented workers were discussed did not, in practice, afford them sufficient protection ; this provision ceased to be valid after the adoption of the Native Labour (Settlement of Disputes) Act, 1953, which brought new arrangements into effect (see below).
16. 140. The definition of an " employee " contained in section 1 of the Industrial Conciliation Act, 1937, as amended by section 36 of the Native Labour (Settlement of Disputes) Act, 1953, is as follows:
17. " Employee " means any person employed by, or working for any employer and receiving, or being entitled to receive, any remuneration, and any other person whatsoever who in any manner assists in the carrying on or conducting of the business of an employer, but does not include a person who in fact is or is generally accepted as a member of any aboriginal race or tribe of Africa ; and " employed " and " employment " have corresponding meanings.
18. The definition of " trade union " in section 1 of the Industrial Conciliation Act, 1937, is as follows:
19. " Trade union " means any number of employees in any particular undertaking, industry, trade or occupation associated together primarily for the purpose of:
20. (a) regulating relations between themselves or some of them and their respective employers ; or
21. (b) protecting or furthering the interests of the employees or some of the employees,
22. in that undertaking, industry, trade or occupation.
23. Section 4 (1) of the above Act provides:
24. Every trade union or employers' organisation which has been established before the commencement of this Act but which at that commencement is not registered under the Industrial Conciliation Act, 1924 (Act No. 11 of 1924), as amended, and which the registrar has not refused to register under that Act shall, within three months from the commencement of this Act, and every trade union or employers' organisation which is established after the commencement of this Act shall, within three months from the date on which it is established, apply to the registrar, in the form prescribed by regulation, for registration and transmit to him three copies of its Constitution, duly authenticated by signature of the chairman and secretary, and shall also furnish him with any further information which he may require.
25. Section 8 (1) provides:
26. No trade union or employers' organisation shall be registered otherwise than under this Act.
27. Section 18 (1) provides:
28. Any:
29. (a) employer (if the Minister approves); or
30. (b) group of employers (if the Minister approves); or
31. (c) registered employers' organisation; or
32. (d) group of registered employers' organisations; or
33. (e) group of one employer and one or more registered employers' organisations (if the Minister approves); or
34. (f) group of employers and one or more registered employers' organisations (if the Minister approves),
35. together with any:
36. (i) registered trade union; or
37. (ii) group of registered trade unions,
38. may form an industrial council by signing the Constitution agreed to by them for the government of the council, or causing it to be signed on their behalf, and obtaining the registration of the council under this Act : Provided that the Minister shall not approve under paragraphs (a), (b), (e) or (f) if the employer or the individual employers comprising the group of employers concerned are eligible for membership of an employers' organisation which is a party to the council.
39. Section 23 provides:
40. An industrial council shall, within the undertaking, industry, trade or occupation, and in the area, in respect of which it has been registered, endeavour by the negotiation of agreements or otherwise to prevent disputes from arising, and to settle disputes that have arisen or may arise between employers or employers' organisations and employees or trade unions or between employers or employers' organisations and persons upon whom all or any of the provisions of any agreement or award have been made binding under subsection (4) of section forty-eight or under that subsection read with subsection (3) of section forty-nine, and take such steps as it may think expedient to bring about the regulation or settlement of matters of mutual interest to employers or employers' organisations and employees or trade unions.
41. 141. It therefore appears that Africans are excluded from the operation of the Industrial Conciliation Act, 1937, by reason of the definition of an "employee" contained in section 1 thereof, and that, as a result, although the Government states that they are not barred from forming trade unions or from negotiating private agreements, they cannot form trade unions which can register under section 4 and participate in the industrial councils which may be set under section 18 (1) for the purpose of negotiating agreements and settling disputes as provided in section 23. In these respects there appears to be discrimination with regard to the rights of African workers which is inconsistent with the principle accepted in the majority of countries and embodied in the Convention adopted by the International Labour Conference 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 the principle that all workers' organisations should enjoy the right of collective bargaining.
42. 142. The I.C.F.T.U further states that the procedure for the settlement of disputes laid down in the Native Labour (Settlement of Disputes) Act, 1953, ignores the trade union rights of the African workers and asks the Governing Body to recommend the Government to repeal this Act in toto, because all its provisions are contrary to the Freedom of Association and Protection of the Right to Organise Convention (No. 87), 1948 (especially Articles 2, 3 and 4) and the Right to Organise and Collective Bargaining Convention (No. 98), 1949 (especially Article 4). The W.F.T.U states that African trade unions are excluded from all instances dealing with disputes under the Act-this non-recognition of the legal status of such unions constituting an abrogation of the right of association-that their right to bargain is also refused, the Central Native Labour Board set up under this Act having power to recommend the revocation of industrial agreements and to fix rates of wages lower than those agreed between employers and workers, and the Native labour boards having the right to take part in deliberations of industrial councils (under the 1937 Act), where African workers' conditions are affected although these workers are excluded from such deliberations, and, finally, that African workers are denied the right to strike.
43. 143. As already mentioned, the Government states that the fact that Native unions have not operated well and the fact that the interests of Native workers were not adequately safeguarded by the provision (now repealed) enabling government inspectors to attend meetings of industrial councils when matters affecting Native workers were discussed, were the main considerations which led to the enactment of the Native Labour (Settlement of Disputes) Act, 1953.
44. 144. The main purpose and effect of the Native Labour (Settlement of Disputes) Act, 1953, states the Government, was therefore to improve the position regarding negotiation on behalf of non-represented workers, including Africans. Native workers have the right under this Act to set up works committees, whose function it is to make the wishes of these workers known to the regional committees set up under this Act for the purpose of settling disputes. Disputes which are not settled by the regional committee concerned are referred to a Central Native Labour Board (whose members representing employees are appointed after consultation with the regional committees) and then, if necessary, to a neutral Wage Board, on whose recommendation the Minister must make an order.
45. 145. So far as negotiations affecting non-represented workers under the Industrial Conciliation Act, 1937, are concerned, states the Government, their interests are represented at the meetings of the industrial council by the Central Native Labour Board. An agreement negotiated in the industrial council may be allowed to apply to the Native workers in the industry concerned, or they may be excluded from it where this Board refers the question to the Wage Board and the latter makes recommendations for separate conditions to be applied to the Native workers.
46. 146. In the view of the Government, all this makes it possible to ascertain more accurately the wishes of the Native workers.
47. 147. Section 1 of the Native Labour (Settlement of Disputes) Act, 1953, contains the following definitions for the purposes of that Act:
48. "Employee" means an employee who is a Native;
49. " Native " means a person who in fact is or is generally accepted as a member of any aboriginal race or tribe of Africa.
50. Section 3 of the Act deals with the establishment of a Central Native Labour Board. Sections 3 (1) and (2) read as follows:
51. (1) As from a date to be fixed by the Governor-General by proclamation in the Gazette, there shall be established a body to be known as the Central Native Labour Board to perform the duties and functions assigned to it under this Act and to advise the Minister on any matter which the Minister may refer to it or on which, in the opinion of the board, advice should be submitted to the Minister in the interests of Natives employed in any trade.
52. (2) The board shall consist of so many members as the Minister may determine from time to time, of whom:
53. (a) one shall be a European appointed by the Minister to be chairman of the board ; and
54. (b) the remaining members shall be appointed by the Minister after consultation with the regional committees and shall be Europeans who, in the opinion of the Minister, are competent to represent the interests of employees.
55. Section 4 of the Act, dealing with the establishment of regional Native labour committees, reads as follows:
56. (1) The Minister may by notice in the Gazette establish a regional Native labour committee in respect of any area, and may in like manner withdraw or amend any such notice.
57. (2) A regional committee shall consist of so many members, not being less than four, as the Minister may from time to time determine, of whom:
58. (a) one shall be a Native labour officer appointed by the Minister to be chairman of the committee ; and
59. (b) the remaining members shall be Natives appointed by the Minister to represent the interests of employees in the area in respect of which the committee has been established.
60. ......................................................................................................................................................
61. (4) A regional committee may for the purpose of dealing with any matter affecting employees in any trade, co-opt as members of such committee one or more Natives to represent the interests of employees in such trade at meetings of the committee at which such matter is to be considered, and any member so co-opted shall for the purpose of such meetings be deemed to be a member of the committee.
62. Section 6 of the Act defines the duties and functions of regional committees as follows:
63. (1) A regional committee shall, in the area in respect of which it has been established, endeavour to further the interests of Natives in relation to their employment, and for that purpose shall:
64. (a) maintain contact with employees with a view to keeping itself informed as to the conditions of employment of employees in its area generally and in particular trades;
65. (b) from time to time submit reports to the inspector defined by regulation in regard to any labour disputes which may exist or are in the opinion of the committee likely to arise ;
66. (c) in accordance with the provisions of subsection (2) of section ten, assist in the settlement of labour disputes ; and
67. (d) from time to time submit to the board reports in regard to such matters as may be referred to it by the board.
68. (2) Any such committee may for the purpose of carrying out its functions receive such representations from employers and employees and make such inquiries in regard to any matter within its purview as it may deem necessary.
69. (3) Whenever in respect of any area no regional committee is in existence or any such committee established in respect of any area is for any reason unable to carry out its functions, the functions of a regional committee in that area shall be performed by the inspector defined by regulation.
70. Section 7 of the Act deals with the election and functions of works committees and reads as follows:
71. (1) Whenever in any establishment there are employed not less than twenty employees and such employees advise their employer that they are desirous of electing a works committee, the employer shall forthwith notify the inspector defined by regulation accordingly and such inspector shall thereupon direct the Native labour officer for the area in which the establishment is situated to convene as soon as practicable a meeting of the employees concerned to be held under the chairmanship of that officer.
72. (2) At any meeting convened in terms of subsection (1) the employees concerned may elect from amongst their number a works committee consisting of not less than three and not more than five members.
73. (3) A works committee so elected may in the presence of the Native labour officer concerned appoint one of its members (hereinafter referred to as a " liaison member ") to maintain contact with any regional committee established for the area in question or where no such regional committee is in existence, with the inspector defined by regulation.
74. (4) If a vacancy occurs on a works committee or any liaison member ceases to act as such, the vacancy shall be filled in the manner prescribed in subsection (2) or (3) whichever may be applicable.
75. (5) The Native labour officer shall notify the regional committee for the area affected of the election of any such works committee and of any liaison member and any change in the membership of such committee and any new appointment of a liaison member.
76. (6) Whenever a labour dispute occurs in any establishment in respect of which a works committee has been elected, the regional committee, or the inspector defined by regulation, as the case may be, shall consult such works committee in regard to such dispute.
77. (7) Any employer who fails to comply with the requirements of subsection (1) shall be guilty of an offence.
78. Section 8 of the Act deals with the appointment and duties of Native labour officers and reads as follows:
79. (1) The Minister may appoint any European officer as a Native labour officer in respect of any area.
80. (2) Any such officer shall:
81. (a) acquaint himself with the wishes, aspirations and requirements of employees in the area in respect of which he has been appointed ;
82. (b) maintain close contact with Native commissioners and the inspector defined by regulation and keep them advised of any developments in that area in regard to Native labour matters ;
83. (c) in collaboration with Native commissioners, act as an intermediary between employees in that area and their employers ;
84. (d) keep the inspector defined by regulation and the regional committee concerned informed of any labour dispute which exists or may arise in that area and in collaboration with the said inspector endeavour to settle any such dispute ;
85. (e) act as chairman of a regional committee if so appointed in terms of this Act ; and
86. (f) perform such other functions as the Minister may from time to time assign to him.
87. Section 9 of the Act deals with the question of the participation of a representative of the Central Native Labour Board in meetings of industrial councils when the interests of Native workers may be affected, and reads as follows:
88. (1) Whenever any industrial council proposes to determine conditions of employment to be incorporated in any agreement under the Industrial Conciliation Act in respect of an undertaking, industry, trade or occupation in which Natives are employed in the area in which such agreement is intended to apply, the secretary of that council shall send to the board and any regional committee established in respect of the area or any portion of the area in which the agreement in question is intended to apply, a notice in the prescribed form of every meeting of the industrial council at which the matter is to be considered.
89. (2) The board may nominate one or more of its members, and the Secretary for Labour may at the request of the board designate an officer, to attend any meeting of an industrial council of which notice is required to be given in terms of subsection (1), and the chairman of any regional committee established in respect of the area or any portion of the area in which the agreement in question is intended to apply, or, if there is more than one committee, the chairmen of such of those committees as may be designated by the board, may likewise attend any such meeting.
90. (3) Any person who attends a meeting by virtue of the provisions of subsection (2) may take part in the proceedings at that meeting in so far as those proceedings may affect the interests of employees to whom the provisions of this Act apply, but shall not have the right to vote at any such meeting.
91. (4) As soon as possible after the industrial council has reached a decision on conditions of employment such as are referred to in subsection (1) which are to be applied to persons engaged in occupations in which Natives are employed, the chairman of the board shall submit to the Minister a report stating whether the board is in agreement with the industrial council's decision or whether, in its opinion, a recommendation should be obtained from the Wage Board in connection with any of the matters which formed the subject of the industrial council's decision.
92. ......................................................................................................................................................
93. Section 10 of this Act deals with the question of the settlement of disputes and reads as follows:
94. (1) Whenever a Native labour officer has reason to believe that in the area in respect of which he has been appointed or any portion of that area a labour dispute exists or may arise in any trade, he shall forthwith report thereon to the regional committee concerned, to the inspector defined by regulation and, where an industrial council has been registered under the Industrial Conciliation Act in respect of that trade and that area or any portion of that area, also to such industrial council.
95. (2) The Native labour officer shall, with the assistance of the regional committee and in collaboration with the inspector referred to in subsection (1), endeavour to effect a settlement of the matters which form or might form the subject of any such labour dispute, and shall, failing such a settlement, refer the matter to the board, which shall thereupon endeavour in collaboration with such officer and such inspector to effect a settlement.
96. (3) Whenever a settlement cannot be effected under subsection (2), the board shall report accordingly to the Minister and indicate whether in its opinion the matter should be referred to the Wage Board for a recommendation as to the conditions in accordance with which a settlement should be effected.
97. Section 11 of the Act deals with references to the Wage Board and the making of Ministerial orders and reads as follows:
98. (1) Upon the receipt of a report from the board in terms of subsection (4) of section nine or subsection (3) of section ten, the Minister shall, if the board so recommends, request the Wage Board to submit to him a recommendation, in the case of a report under subsection (4) of section nine, on such matters as in the opinion of the board should be determined, and, in the case of a report under subsection (3) of section ten, on all matters which form or might form the subject matter of the labour dispute referred to in that report ; Provided that any request made to the Wage Board in pursuance of a report under subsection (4) of section nine may be withdrawn by the Minister if, before the Wage Board has submitted to him a recommendation in connection with any matter forming the subject of that request, he is advised in writing by the chairman of the board that it agrees with any revised decision arrived at by the industrial council concerned in regard to that matter after the date of the decision to which the report relates.
99. (2) Every request to the Wage Board for a recommendation under this section and every withdrawal of such a request, either wholly or in part, shall be notified in the Gazette by the Secretary for Labour.
100. (3) The Wage Board shall, as soon as possible after the receipt of a request under subsection (1), and after consultation with such persons or bodies, including employers or employees or representatives of any regional committee or the board, as in its opinion ought to be consulted and, where an industrial council has been registered under the Industrial Conciliation Act in respect of the trade and area or any portion of the trade or area to which such request relates, also with that industrial council, submit to the Minister a recommendation.
101. (4) The Minister may after consideration of any such recommendation make an order in accordance therewith or refer it back to the Wage Board for reconsideration in such respects as he may indicate.
102. (5) The Wage Board shall after reconsideration of any recommendation which has been referred back to it under subsection (4), reaffirm and resubmit that recommendation to the Minister or amend it in such respects as the Wage Board may deem fit and submit it to the Minister as so amended, and the Minister shall thereupon make an order in accordance with the reaffirmed or amended recommendation.
103. (6) After making an order under subsection (4) or (5), the Minister shall cause to be published in the Gazette a notice setting forth the provisions of that order and specifying the area in which it shall apply, as determined by the Minister, and the period, as so determined, but not exceeding a period of three years, for which those provisions shall be binding upon the persons affected thereby, and the said provisions shall thereupon be binding upon those persons within that area for the period so specified.
104. 148. It would appear from these provisions that, by virtue of section 1 of the Native Labour (Settlement of Disputes) Act, 1953, the Act applies exclusively to African workers ; that, while section 7 provides for the appointment of works committees, it does not make provision for the recognition of African trade unions; that, while section 4 of the Act provides for the establishment of regional committees, the function of which is to further the interests of Africans in relation to their employment and also, by virtue of section 10, to assist in the conciliation of disputes, the African members of such committees are appointed by the competent Minister and that no provision is made for consultation with respect to such appointment either of works committees or of any African trade unions which may exist ; that with respect to the conciliation of disputes, no African organisation has any participation in the procedure outlined in section 10 for the conciliation of disputes other than what may result from the provision in section 6 (2), under which regional committees, for the purpose of carrying out their functions, may receive such representations from employers and employees as it deems necessary, and from the provision in section 6 (1) (a), under which the committees are to maintain contact with employees with a view to keeping themselves informed as to the conditions of employment of employees in their areas ; that with respect to the further conciliation of disputes by the Central Native Labour Board under section 10 (2) and the final settlement of unresolved disputes by recommendation of the Wage Board and Ministerial order under section 10 (3) and section 11, no provision is made for the participation or consultation of works committees or any African trade unions which may exist ; that section 9 of the Act provides for the representation of African interests by a representative of the Central Native Labour Board, who may be accompanied by a representative, but not an African representative, of a regional committee when an industrial council is negotiating an agreement affecting African interests, but that no provision is made for the representation of African interests before industrial councils by any Africans or African trade unions or works committees, or for consultation of Africans with respect to the negotiation of agreements beyond what may result from the contact between regional committees and works committees referred to above ; and that, while provision is made for the determination of conditions of employment either through conciliation agreements reached in regional committees or before the Central Native Labour Board, or through Ministerial orders made on the recommendations of the Wage Board, or through an industrial council agreement being applied in the case of Africans, no provision is made for the negotiation of wages and conditions by works committees or such African trade unions as may exist.
105. 149. Finally, it is alleged that African workers are denied the right to strike. The Government states that, in view of the large reservoir of Native labour, it is unlikely that the right to strike would be of benefit to African workers, and replies to the allegation that they are discriminated against in this respect by referring to the fact that workers of all races are already prohibited from striking in essential services, their disputes being subject to compulsory arbitration.
106. 150. With respect to the question of the right to strike of African workers, section 18 (1) of the Native Labour (Settlement of Disputes) Act, 1953, provides:
107. 18. (1) No employee or other person shall instigate or take part in a strike or in the continuation of a strike and no employer or other person shall instigate or take part in a lockout of employees or in the continuation of any such lockout.
108. 151. With respect to the question of the right to strike of employees covered by the Industrial Conciliation Act, 1937, section 65 of that Act provides:
109. (1) No employee or other person shall take part in a strike or in the continuation of a strike, and no employer or other person shall take part in a lockout or in the continuation of a lockout:
110. (a) during the period of the currency of any agreement or award which, in terms of section forty-eight or forty-nine, is binding upon the employee, employer or other person concerned, and any provision of which deals with the matter giving occasion for the strike or lockout ; or
111. (b) if the employees concerned are engaged upon the services referred to in section forty-six or are employees in respect of whom the Minister has in terms of subsection (10) of that section applied the provisions of subsections (1) to (6) of that section; or
112. (c) when neither paragraph (a) nor paragraph (b) applies:
113. (i) if there is an industrial council having jurisdiction, unless the matter giving occasion for the strike or lockout has been considered by that council and until:
114. (aa) the council has reported thereon to the Minister in writing; or
115. (bb) a period of 30 days reckoned from the date on which the matter was submitted to the council, or such longer period as the council may fix has expired,
116. whichever event occurs first ; or
117. (ii) if there is no such council, unless application has been made under section thirty-five or sixty-four for the establishment of a conciliation board for the consideration of the said matter, and until:
118. (aa) any board that may be established has reported thereon to the Minister in writing; or
119. (bb) the period of 30 days reckoned from the date on which the Minister has approved of the establishment of a board or such longer period as the board may fix has expired ; or
120. (cc) the Minister has refused to approve of the establishment of a board; or
121. (dd) if the Minister has not within a period of 21 days reckoned from the date on which the application was lodged, approved or refused to approve of the establishment of a board, the expiration of that period,
122. whichever event occurs first; or
123. (iii) if it has been decided in terms of section forty-five to refer the matter to arbitration, pending the making of an award.
124. (2) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence.
125. 152. The services referred to in section 65 (1) (b) above are those mentioned in section 46 (1) of the Act, that is those of employees of local authorities engaged in " work connected with the supply of light, power or water or with sanitation, passenger transportation or with the extinguishing of fires ". The reference in section 65 (1) (b) to subsection (10) of section 46 is to the provision in section 46 (10) to the effect that the Minister may place other categories of employees of local authorities on the same basis as those concerned in section 46 (1) " whenever any registered trade union, in which membership is by its Constitution restricted to employees of any local authority or local authorities, " requests the Minister so to act.
126. 153. It would appear that, while temporary restrictions are placed on the right to strike of employees covered by the Industrial Conciliation Act, 1937, i.e. during the currency of a binding agreement or award or pending the utilisation of the procedures for settlement laid down in section 65 (c) of the Act, and a complete prohibition is placed on strikes by local government employees within that Act who are engaged in certain essential services or who apply to be treated in the same manner, section 18 (1) of the Native Labour (Settlement of Disputes) Act, 1953, places a total prohibition on strikes by, or lockouts of, African workers, irrespective of the nature of their occupation.
127. 154. While considering that it is not called upon to give an opinion on the question as to how far the right to strike in general-a right which is not specifically dealt with in the Freedom of Association and Protection of the Right to Organise Convention (No. 87), 1948, or in the Right to Organise and Collective Bargaining Convention (No. 98), 1949-should be regarded as constituting a trade union right, the Committee has observed that the right to strike is generally accorded to workers and their organisations as an integral part of their right to defend their collective interests. The Committee considers that, where the right to strike is thus accorded to workers and their organisations, there should be no racial discrimination with respect to those to whom it is accorded.
128. 155. In these circumstances, the Committee, while noting that the Government has stated that the labour supply is such that no benefit would accrue to African workers from the right to strike and that the Native Labour (Settlement of Disputes) Act, 1953, does provide procedures whereby all disputes affecting Africans are settled by conciliation or, in the last result, by the making of a binding order, considers that it is its duty to draw attention to the existence of discrimination as between African workers and other workers with respect to the prohibitions placed on the right to strike.
129. Allegations relating to the Infringement of the Rights of Workers Other than Africans by the Native Labour (Settlement of Disputes) Act, 1953
130. 156. The complainants contend that this Act allows the Minister to attack the trade union rights of other workers (apart from African workers) at present covered by the Industrial Conciliation Act, 1937, by giving him power to apply orders made under the 1953 Act to such other workers also. The Government makes no comment on this contention.
131. 157. Ministerial orders fixing terms of employment for African workers are provided for in section 11 of the Native Labour (Settlement of Disputes) Act, 1953 (see paragraph 147 above).
132. 158. The question of the extension of the application of orders is dealt with in section 14 of the Act, which reads as follows:
133. (1) If, in the opinion of the Minister, any object of an order is likely to be defeated by the employment in occupations in which Natives are employed in the undertaking, industry, trade or occupation to which the order relates at rates of remuneration and under conditions of employment other than those specified in the order of persons not included in the definition of "employee" contained in section one, he may in any notice published by him under subsection (6) of section eleven or by a further notice in the Gazette, declare that as from a date and for a period specified in the notice, all the provisions of the order or such provisions thereof as he may specify, shall mutatis mutandis apply in respect of persons who are employees as defined in the Industrial Conciliation Act, and thereupon the provisions of the order or the provisions so specified shall be binding upon every employer (as so defined) of any such person and upon all such persons.
134. (2) Whenever any of the provisions of a wage regulating measure are inconsistent with any provision of an order, or any provision thereof which has by notice under subsection (1) been declared to be applicable to persons who are employees as defined in the Industrial Conciliation Act, that wage regulating measure shall, in so far as it is in operation in the area or any portion of the area in which such order applies, and so long as such order or such notice, as the case may be, remains in operation, be applied as if the said provision of the order had been inserted in that wage regulating measure in the stead of such inconsistent provision thereof.
135. (3) The Minister may, by notice in the Gazette, from time to time suspend the application of any order or of any specified provisions thereof to persons bound by a specified wage regulating measure which the Minister considers to be not less favourable to the employees concerned than the said order or the said provisions, as the case may be.
136. 159. The Committee therefore considers that, under section 14, orders made with respect to African workers under section 11 may, in certain circumstances, be extended so as to apply to employees as defined in the Industrial Conciliation Act, 1937, i.e. any employees other than Africans (see paragraph 140 above), and, if so extended to apply to workers other than Africans in such circumstances as to supersede conditions which they have laid down in collective agreements or as to prevent them from negotiating such conditions as they wish in future collective agreements, would infringe the right of the persons concerned to bargain collectively through their trade unions.
137. Allegations concerning Proposed Amendments to the Industrial Conciliation Act, 1937
138. 160. The W.F.T.U contends that under section 77 of the proposed amendment to the Industrial Conciliation Act, 1937, the Minister of Labour will have power to decide which occupations shall be followed by the different races inhabiting the Union of South Africa and that this power, in conjunction with the power under section 14 of the Native Labour (Settlement of Disputes) Act, 1953 (see paragraph 158 above) would enable the Minister to dictate the wages and conditions of employment of all workers. The Government does not wish to comment on the Bill, as it is still under consideration, until it becomes law either in its present form or in a revised form.
139. 161. Section 77 of the Bill to amend the 1937 Act is cited by the complainant as follows:
140. 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.
141. 162. In Case No. 105 (Greece), the Committee considered that, when it has before it precise and detailed allegations concerning a proposed enactment submitted to the Legislature by the Government, the fact that the allegations relate to a text which does not have the force of law should not of itself prevent the Committee from expressing its opinion on the merits of the allegations made. The Committee then expressed the opinion that in such circumstances it is desirable that the Government and the complainant should be made aware of its point of view with regard to a proposed Bill before it is enacted, in view of the fact that it is open to the Government, on whose initiative such a matter depends, to make any amendments which may seem desirable. In the present case, although the Government declines to comment at this stage, the complainant quotes the alleged text of section 77 of the Bill in question as introduced to Parliament. In these circumstances, the Committee considers that it is desirable for its point of view to be made known before the Bill becomes law.
142. 163. The text as quoted would empower the Minister to make determinations that employment in any undertaking, industry, trade or occupation, in any specified area, shall be reserved for persons of a specified race.
143. 164. The Committee, while recognising that it is not called upon to consider the question of access to particular employments except in so far as the determination of such access may affect the exercise of trade union rights, may consider that it is a generally accepted principle in the majority of countries that trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.
144. 165. While it is still uncertain whether the Bill will be enacted in its present form or in a revised form, the Committee considers that, if section 77 were to be enacted in the terms cited by the complainant and to be applied in such a way as to prevent the negotiation by collective agreement of better terms and conditions, including terms and conditions governing access to particular employments, it would tend, in the case of the trade unions of workers affected, to infringe the right to bargain collectively and to promote and improve the living and working conditions and defend the social interests of their members.
145. Allegations regarding the South African Railways Administration
146. 166. The W.F.T.U maintains that a compulsory cheek-off, contrary to the wishes of the workers, has been instituted in favour of a railway union established by the Railways Administration under its own domination, that workers who have objected to this have been punished, that the Administration refuses to recognise or bargain with the older South African Railways and Harbours (Non-European) Workers' Union and that various leaders and members of the latter organisation have been dismissed on the ground of their trade union activities and in order to impede the functioning of their trade union organisation.
147. 167. The Government states that prior to 1944 not one but many organisations represented the railway workers, and that confusion arose as to the groups of persons represented. From the details given, it would appear that the Government intervened to have the situation investigated and then to arrange meetings between the Minister of Transport and representatives of non-European railway workers, following which the existing organisations grouped themselves into a number of staff associations, each exclusively competent to present demands on behalf of one section of the industry. An account is given as to the provisions of the Constitutions of these associations, which, the Government states, were drawn up freely by the associations themselves and accepted by the Railways Administration. The Government states that union contributions are deducted from wages only where the worker has voluntarily signed a stop order indicating that he has applied for membership of one of the new associations. The Administration recognises only these associations and therefore refuses to bargain with the South African Railways and Harbours (Non-European) Workers' Union. The Government adds that certain persons belonging to the latter union were dismissed because they " took active part in undesirable activities ".
148. 168. It would appear from the Government's reply that there are now representative staff associations in each section of the railways, to which employees can belong, and that it was owing to an initiative taken by the Government that meetings were held between the Minister of Transport and representatives of non-European railway workers, which led to " the existing organisations " grouping themselves into associations, with Constitutions which they themselves drew up, but which were " accepted " by the Railways Administration. It is alleged that these associations were set up by and are dominated by the Railways Administration.
149. 169. The Committee considers that the principle is accepted in the majority of countries that workers' and employees' organisations should have the right to draw up their Constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and that the steps taken by the authorities in this particular case require to be considered in the light of this established principle. In a previous case of alleged government intervention with respect, in particular, to the exercise of the right to elect representatives, the Committee took the view that the crux of the matter would appear to be whether the intervention was or could reasonably have been regarded by the workers concerned as being a threat to their freedom in exercising their rights, which, in turn, would appear to depend on the circumstances and traditions of the country concerned and upon the safeguards which exist there for civic liberties and political freedom. In the present case, it appears to the Committee, having regard to the ill-defined demarcation lines between the representational spheres of the previously existing trade unions, that no sufficient evidence has been offered to show that the initiative taken by the Government in arranging meetings led to the organisations concerned being coerced into grouping in associations, that their freedom to draw up their Constitutions was restrained or that they operate under the domination of the Railways Administration.
150. 170. The present situation is that the Railways Administration recognises only the new staff associations and refuses to bargain or have dealings with the South African Railways and Harbours (Non-European) Workers' Union. In fact, it would seem that a system of union security has been established, operating in favour of the new associations. As part of this development, a check-off has been instituted-a check-off, according to the Government, which operates only when a worker has voluntarily signed a stop order indicating that he has applied for membership of one of the associations.
151. 171. The Committee decided in a previous case that it was not called upon to express an opinion on union security arrangements. The Committee was guided, in reaching this conclusion, by the fact that the International Labour Conference Committee on Industrial Relations in 1949 expressed in its report to the 32nd Session of the Conference the view-accepted by the International Labour Conference when it adopted that report-that the Right to Organise and Collective Bargaining Convention (No. 98), 1949, " could in no way be interpreted as authorising or prohibiting union security arrangements, such questions being matters for regulation in accordance with national practice".
152. 172. The Committee considers that the arrangement complained of falls under the definition of union security arrangements and, for the reasons mentioned in the preceding paragraph, has not thought it appropriate to deal with this question in the present case.
153. 173. It is also alleged that a number of the principal officers and members of the union and of its branches have been dismissed because of their trade union activities and in order to impede the functioning of their trade union organisation. The Government confines itself to a statement that certain persons belonging to this union were dismissed because they " took active part in undesirable activities ".
154. 174. The Committee considers that there might be an infringement of freedom of association if the persons in question were, in fact, made subject to an act of anti-union discrimination in respect of their employment by reason of having been dismissed because of their union membership or because of their participation in trade union activities, but that, on the evidence before it, it is not in a position to conclude whether or not the persons referred to by the complainant were dismissed on these grounds.
155. Allegations concerning the Wolseley Fruit Canning Factory
156. 175. The W.F.T.U declares that, because a union was set up in this undertaking and sought to ensure the application therein of an agreement adopted for the industry concerned as a whole, the employer locked out the workers and dismissed three active trade unionists among their members, that later, when a strike was called, a considerable number of workers were arrested in January 1954, and that 284 of them were still in prison when the complaint was presented (20 March 1954).
157. 176. From the account given by the Government, it would appear that what the W.F.T.U refers to as a lockout and what the Government refers to as a strike took place on 14 December 1953 while an agreement for the undertaking was being negotiated. In any event, this particular incident appears to have lasted less than one day. It is common ground that a strike took place in January 1954, while negotiations were still in progress which resulted in the signing of an agreement on 19 February 1954, and that a considerable number of persons were arrested. While the complainant declares that the police acted in order to help the employers to destroy the trade union, the Government states that, while the strike itself was illegal because conciliation under the Industrial Conciliation Act, 1937, was pending, the arrests were actually made on the ground of criminal trespass when workers refused to leave the factory premises.
158. 177. Sections 35 ff of the Industrial Conciliation Act, 1937, provide that where no industrial council is registered in respect of an undertaking in which a dispute arises, application may be made for the establishment of a conciliation board, which must endeavour to bring about an agreed settlement. In certain cases the board may refer a dispute which it cannot settle to arbitration. Under section 65, strikes are illegal if called without application for a conciliation board having been made or within 30 days from the date on which application for a board has been made or such longer period as may be fixed by the board (see paragraph 151 above).
159. 178. In the present case a lockout, according to the complainants, or a strike, according to the Government, took place on 14 December 1953, when a conciliation board was sitting. This incident appears to have terminated on the same day. The more serious incident arose on 19 January 1954. A large number of workers, including two active trade unionists, were laid off at the end of the apricot canning season, shortly after the incident of 14 December, and the refusal of the employer to re-engage these two persons, together with the dismissal of a third trade unionist, caused a strike to be called on 19 January 1954. As the conciliation board was still sitting (it brought about an agreement on 19 February 1954), this strike would appear to have been illegal under the Industrial Conciliation Act. According to the Government, however, the arrests made on 21 January 1954 were not made because of participation in an illegal strike but for trespass committed during that strike.
160. 179. The two charges made by the complainant, therefore, are that persons were arrested for striking and that three persons were subjected to acts of anti-union discrimination with respect to their employment.
161. 180. The Committee has considered the question of strikes in a number of previous cases. In Case No. 5 (India) the Committee thought it appropriate to point out that " in most countries strikes are recognised as a legitimate weapon of trade unions in furtherance of their members' interests so long as they are exercised peacefully and with due regard to temporary restrictions placed thereon (for example, cessation of strikes during conciliation and arbitration procedures, refraining from strikes in breach of collective agreement) ". In Case No. 50 (Turkey) the Committee expressed a similar reservation recognising that partial and temporary restrictions are frequently placed on strikes " pending recourse to established conciliation and arbitration procedures ". In the present case, it would appear that the strike was illegal, in that it contravened the provisions of the Industrial Conciliation Act, 1937, placing temporary restrictions on strikes pending the utilisation of the conciliation procedure, although the actual arrests would seem to have been made on the ground of trespass during the strike rather than for the act of striking itself. In these circumstances, the Committee considers that the complainant has not offered sufficient evidence to show that the incidents which took place in connection with the strike in this case constituted an infringement of trade union rights and therefore recommends the Governing Body to decide that this aspect of the matter does not call for further examination.
162. 181. While the complainant contends that three trade unionists lost their employment because of their trade union activities, the Government declares that one was dismissed for neglect of duty and that the employer refused to engage the other two for the new canning season. The Committee considers that in the absence of further details the complainant has not offered sufficient evidence to show that the dismissal and failure to re-engage were in fact occasioned by the trade union activities of the three persons concerned and, therefore, while emphasising the importance which it attaches to the principle that workers should enjoy adequate protection against acts calculated to cause their dismissal or otherwise prejudice them with respect to their employment by reason of union membership or because of participation in union activities, recommends the Governing Body to decide that this allegation does not call for further examination.
163. Allegations concerning the Natal Spinners (Pty.), Ltd.
164. 182. The complainant gives detailed wage statistics with respect to workers employed by this company, showing, it is alleged, that the Minister has already used his powers under the Native Labour (Settlement of Disputes) Act, 1953, to reduce the wages of the African workers and to imprison those who went on strike in protest. It is alleged that workers were deported from Ladysmith, where their families lived, to a point close to the factory.
165. 183. The Government states that the business in question changed hands on 1 February 1954. The new employer could not maintain existing wage rates, terminated the contracts of all the employees of the spinning department and then offered them new contracts, which the majority accepted. Further demands were made, some of which were conceded. The factory then ran at a loss once more and the employer stated that any further wage increases would depend on increased production. The employees called an illegal strike and legal proceedings ware instituted against them. The attorney for the defence failed to appear at the court, and those who could not find bail were detained-six for one day, ten for two days and 22 for three days. The workers placed themselves in the wrong by not availing themselves of the machinery for the settlement of disputes provided under the Native Labour (Settlement of Disputes) Act, 1953, by the use of which they have every chance of obtaining fair and equitable conditions of service. The Government denies that any persons were deported from Ladysmith.
166. 184. These allegations, in fact, refer to the application, in a particular case, of two legal provisions which the Committee has examined above the regulation of conditions of employment of African workers by means of Ministerial orders (see paragraph 147 above) and the prohibition of strikes of African workers (see paragraphs 149-154 above). In view of the conclusion which it has already reached on these matters, the Committee considers that it is not called upon to re-examine the application of the legal provisions concerned with respect to this particular aspect of the case.