Freedom of association collective bargaining and nonstandard workers

Freedom of association, collective bargaining and non-standard workers in Africa: Reflections from South Africa, Tanzania and Zambia

Overview • Non-standard workers: what are the associational and collective bargaining issues? • International law on freedom of association and collective bargaining: does it protect non-standard workers? • What has happened on the ground? : Case studies from South Africa, Tanzania and Zambia • Reflecting on lessons learned from the case studies • What should laws regulating collective rights look like?

What are the issues for nonstandard workers? • Associational and collective bargaining rights premised on the standard employment relationship (SER) • Assumptions • full-time, permanent • bilateral employment relationship • employees working in the same workplace

What are the issues for non-standard workers • Non-standard work disrupts this paradigm • Casual, fixed-term and part-time work: defy the temporal dimensions of SER • Multilateral employment relationships defy the assumption of bilateral employment relationship • Some contracting arrangements exclude the notion of employment relationship • Disruption of notion of a workplace controlled by the employer, e. g. home work, multilateral employment relationship

Non-standard work as precarious work

What are the issues for non-standard workers? • Multilateral relationship: de jure employer vs. de facto control? • Multiple contractors/agencies in the same workplace: multiple negotiations • Itinerant, unstable employment: hard to remain a member in good standing • Can trade unions effectively represent non-standard workers? • Establishing recognition and claiming trade union rights in the workplace • Defining bargaining units • Mutual suspicion and resentment: insiders and outsiders

What are the issues for non-standard workers? • Employer/client hostility towards unionization: • Use of non-standard work to diminish unionization and collective action • discrimination and reprisals against members • Precarity of employment and ‘dispensability’ of workers: fear of joining unions and participating in collective action: “And our contracts make it more difficult. It’s one year, two years, even for those of us that have been here sinception. Management says that it’s not ready to give us permanent employment. As a result, we are all worried that our contracts will not be renewed, so we can’t strike, we can’t complain, we can’t anything to show our displeasure with the conditions. ” (Zambian mine worker, 2011) do

International labour law instruments • ILO Convention concerning Freedom of Association and the Right to Organize, 1948 (No. 87): right to establish and to join organizations of their own choosing without prior authorization. • ILO Convention concerning the Right to Organize and Collective Bargaining, 1949 (No. 98) prohibits anti-union discrimination in respect of their employment; member states to promote collective bargaining to determine terms and conditions of employment • ILO CFA and CEACR: rights regardless of status, include non-standard workers • CFA: recommends the adaptation of these rights to the circumstances of non-standard workers • NB: South Africa, Tanzania and Zambia had not developed special measures at the time when the following events took place

What is happening? : South African Post Office Workers • Big turnaround between 1990 s and 2000 s: from major losses to big profits • How? Engaging one-third of employees as ‘casuals’ through labour broker • Casuals were earning 25 per cent of permanent employees’ salaries, no bonuses, no pensions, inferior sick leave benefits • Casuals: ‘slaves’; ‘used by everybody and owned by nobody’ • Casuals feared joining union, failed to form own union, formed independent worker committees in 2005 • Union: secured a collective agreement, but did not enforce it

SA Post Office

South African Post Office Workers (ctd. ) • Casuals were unsuccessful with SAPO management, labour brokers, government, politicians, and in CCMA and Labour Court • 2011/2: unprotected strike action “we are the union ourselves” • After being dismissed, they continued to disrupt SAPO operations and used other strategies • Secured agreement: workers re-engaged directly by SAPO, salaries doubled, with commitment that they would be converted to permanent employees with better working conditions

SA Post Office strike

What is happening: Daladala drivers in Tanzania • Daladalas: privately owned buses that provide public transport in Tanzania • Middle class owners rent dalas to drivers in exchange for nonnegotiable daily fee (hesabu) “Many things usually happen to him, such as to be attacked by thieves, and escaping that, there is no escaping from being stopped by Traffic Police at least three times a day. But the owner does not want to know all these things. He only cares that his daily sum (hesabu) does not decrease. There are days in which it rains a lot, and there is no business. But the owner does not want to know this; if he gets a flat tyre, the owner does not want to know the hours that he struggled to fix the tyre. ” (Daladala driver)

Daladalas

Tanzania dala drivers (ctd) • 1997: Formed Association of Daladala Drivers and Conductors in Dr es Salaam • 2000: association formally registered and affiliated to the Transport Workers Union • 2005: negotiations with association of bus owners, series of strikes and walkouts • Government intervened to persuade owners to conclude agreement: minimum wages, working hours, holidays (2004) • After non-implementation, workers negotiated for Maritime Transport Regulating Authority to require bus owners to submit individual workers’ contracts before issuing them with transport licenses (2009)

What is happening? : Zambian mine workers • From 1997, reduction of permanent employees, and engagement on casual and fixed-term basis, subcontracting certain functions • Chambishi mine: 56 permanent out of total of 2, 063 employees • Fixed-term and casual employees: lower wages, inferior housing, medical and other benefits “Most of us are not happy because why should my friends with similar qualifications and doing the same job get double my salary” • Two unions organized permanent, fixed-term and casual workers

Zambia mine workers

Zambian mine workers (ctd. ) • 2007: unprotected strike to demand better wages and more secure employment “After we heard that the management had refused to give in to our demands, we didn’t even wait for a report from the union representatives. We started the strike right away. The corrupt union [Mineworkers’ Union of Zambia] was able to convince us to go back to work and I guessed they were just bought off by management. ” (Zambian mine worker, ) • the mine and the union concluded an agreement in terms of which the mine agreed to gradually convert all casual and contract jobs into permanent jobs

What are we learning? • Specific regulation not indispensable to the exercise of the associational and collective bargaining rights • Workers relied on their power • South Africa: violence intimidation of replacement workers and management; shaming the employer • Tanzania: structural economic power as the main transport providers • Zambia: territorial specificity of capital-intensive extractive project, information about market prices and working conditions in other mines, resource nationalism

What are we learning? • Relationship with and role of traditional trade unions • South Africa: workers did not join the main union, suspicious of the trade union, forming independent worker committees, later forming own union • Tanzania: workers formed own association, collaborated with the trade union for registration, affiliation, collective action and negotiations • Zambia: workers were members of trade union, but suspicious of leaders and embarked on strike independently, but agreement concluded with union

What are we learning? • Trade unions can organize non-standard workers • However, hard to effectively represent their interests • Trade unions can be a good ally and provide strategic advice and solidarity and support • Trade union may not be the best entity for representing nonstandard workers: implications for claiming statutory rights • No duty to recognize non-union organizations for collective bargaining • Representing the workers e. g. in disciplinary proceedings or formal dispute resolution • No strike protection for non-union workers

What are we learning? • Pursuing legal remedies vs. exercising worker power: • South Africa: strike action after exhausting CCMA and Labour Court • Tanzania: workers did not approach courts or use the presumption of employment • Zambia: unclear that workers used the legal remedies • Legal remedies and exercise of power need not be mutually exclusive • Limited demands for laws that specifically provide for nonstandard workers’ collective rights

How best to promote the collective rights of non-standard workers? • WORK IN PROGRESS…………………………… • • • FOLLOW UP PAPER AT Third African Labour Law Society Conference 26 and 27 March 2019 Gaborone, Botswana For more, see www. africanlabourlawsociety. org