Attempts at putting on trial the most notably capitalist elements of the fourth industrial revolution suffered a major blow at the Labour Court of South Africa in Johannesburg last week. Restructuring and retrenchments because of digitisation in the banking sector prompted labour movements and workers to call a strike but their action was stymied by an interdict granted by the Labour Court.
On Thursday 27 September 2019, judge Hilary Rabkin-Naicker ruled in favour of Business Unity South Africa (Busa) to interdict a national banking strike that had been called by the Congress of South African Trade Unions (Cosatu) and its affiliate, the South African Society of Bank Officials (Sasbo). The strike had been due to take place on Friday 28 September.
Rabkin-Naicker said Cosatu and Sasbo had failed to comply with section 77(1) of the Labour Relations Act 66 of 1995 and as such any person taking part in such protest action would be engaging in an unlawful act without the benefit of the law. Cosatu and Sasbo were ordered to spread the word about the ruling and to advise their members that the intended protest action was unlawful and in breach of the Labour Relations Act (LRA).
The protest action was intended to make clear that through retrenchments and by restructuring, banks are prioritising profits over the interests of their workers. The protest would also have raised the issue of the bonus structure of executives, who, amid restructuring and contemplating future job losses, continue to receive bonuses and huge salaries compared to the average worker.
Specifically, at the intended strike workers had planned to call for a just transition to digital banking in which, instead of being retrenched, they would be up-skilled. For their part, the unions would have called for policy reform to make it difficult for companies to retrench and replace workers with automated systems. The quality of human life rather than profits was one of the unions’ demands.
How the strike was interdicted
In the absence of written reasons for the judgment – the judge will provide them at a later date – this adverse ruling against workers affirms what Ighsaan Schroeder and Ronald Wesso of the Casual Workers Advice Office noted in the Mail & Guardian last year.
They argued that the Labour Court judges were blocking workers from striking “without checking whether the employer has satisfied the legal requirements for a court order to be granted”. It has, they argued, become easy for the Labour Court to grant interdicts against workers even when workers have complied with procedure.
Closer to the planned national protest action in the banking sector, Busa conveniently went to the Labour Court to interdict the protest action on the basis that Cosatu and its affiliate had not complied with labour laws. Busa argued that Cosatu and Sasbo had not engaged banks and all other stakeholders at the National Economic Development and Labour Council (Nedlac) level as per the Act to air issues before going into the strike, which meant the strike action had to be interdicted as it was unlawful and would have a negative impact on the economy.
Armed with a two-year-old notice from Nedlac, Cosatu and Sasbo told the court that they had complied with section 77 of the LRA and that the strike should go as planned. Section 77 of the Act regulates protest action that advances the socio-economic interests of workers. Nedlac is the body that helps engagement on these issues through a standing committee.
Cosatu had issued a section 77(1)(b) notice on Nedlac, outlining the nature of the socio-economic problems facing workers, such as mass retrenchments and high levels of unemployment. Cosatu implored business and government to commit on a certain number of resolutions, including that “private companies should be prohibited from retrenching employees with a view of maximising profits” and that government must bail out insolvent companies to avoid retrenchments. Also, that government and business must commit to a jobs summit, and that there must be a move away from government’s neoliberal trickle-down economic policy that has entrenched inequality.
In terms of a Nedlac notice dated 7 November 2017, government and business undertook to revert back within a month to Nedlac. But this seems to not have materialised, as “the standing committee resolved that the respondents appeared no longer committed to engage on the notice. The standing committee subsequently deemed this section 77(1)(b) notice filed by Cosatu as having been considered in terms of section 77(1)(c) of the LRA”.
What this meant is that Cosatu, having engaged and with negotiations at deadlock, could give notice in terms of section 77(1)(d) to embark on protest action. From this premise, Cosatu argued that there was nothing in the law that prevented it from using the Nedlac notice of 2017 to call for protest action.
The issues for Cosatu remained the same, hence the union felt that it could issue the notice in terms of 77(1)(d). Busa, however, held that the two-year period was too lengthy and that Cosatu could not rely on that earlier notice. The result was that Sasbo and Cosatu had to go back to Nedlac and initiate a new process. But Cosatu told the court that what Busa wanted was unfair – to expect the congress to go back to Nedlac and in so doing effectively to allow Busa and the government to play the same games as in 2017.
Precarity in the workplace
For unions and workers, conditions and issues have not changed from 2017. Busa and its affiliate banks have done little to assure labour that there won’t be mass retrenchments as traditional banking makes the transition to digital banking.
Though banks have come out strongly to contradict the retrenchments statistics reported in their sector, what they cannot refute, given the transition to digital banking, is the uncertain future that workers face amid retrenchments talks. Standard Bank is reported to be in the process of closing 91 branches across the country. Nedbank is in talks with 1 500 workers, 100 of whom will be without jobs because they will not be redeployed. The Absa banking group is going through a restructuring process.
Unions are raising legitimate concerns when they advocate for a more human-centred approach in which workers are up-skilled in the transition to digitisation. But this conversation should not be focused on just the banking sector. Across industries, workers are being replaced by automation processes, and the rise of the gig economy has rendered work more precarious. All sectors across the Global North and South must commit themselves to a just transition in which jobs will be created to address unemployment and working conditions will improve the well-being of workers.
Protecting the right to strike
Organised labour played an important role in the demise of apartheid. Stay-aways and protest were central for workers in demonstrating their anger, expressing their desire for freedom and liberation and forcing the state and capital to make significant concessions. It is no wonder that after apartheid the right to strike was enshrined in our Constitution.
Until written reasons are provided, we cannot tell whether the judgement was made solely on a technical point of law. But what can be said is that the Labour Court gave little regard to the facts of the case in granting the interdict. Given that much planning and organising goes into preparing a strike or a protest, it should not be quite so easy for our courts to grant interdicts against protest action, and even more so without written reasons accompanying the judgment when it is given.
Considering that the major instrument workers have in raising their demands and bargaining with employers is their ability to strike, it is good that Cosatu is taking the matter on appeal.
With South Africa’s executive and parliament making it more difficult for workers to go on strike and with labour law reforms forcing workers to ballot before calling a strike, judicial decisions such as this condemn workers, already facing uncertain futures, to a permanent state of hopelessness.