Contracting out of the Constitution: Post Office Causal Workers and the Failure of South Africa's Industrial Relations Framework

 
DRAFT PAPER: 7th May 2015

Contracting out of the Constitution: Post Office Causal Workers
and the Failure of South Africa’s Industrial Relations Framework

David Dickinson
Department of Sociology
Wits University

Abstract

Loopholes in South Africa’s post-1994 labour legislation permitted the re-creation of
a cheap labour regime based on precariousness. Precarious workers, including those
employed by labour brokers, are, in practice, outside of South Africa’s industrial
relations framework and constitute second class citizens.

Using the case study of labour broker employees, or causal workers, in the South
African Post Office (SAPO), employed for a quarter of the salary of permanent
employees doing the same work, the paper examines workers’ attempts to organize
within constitutional parameters. These attempts were frustrated by labour broker
companies, SAPO management and established unions representing permanent
workers. They were also frustrated by the industrial relations system, the
institutions of which only reinforced the causal workers’ marginality. The paper
contrasts these unsuccessful attempts to have their grievances addressed with the
development of alternative, non-constitutional, strategies that successfully brought
about the end of labour broking in SAPO.

The paper draws on interviews, ethnographic research and court papers to illustrate
the process in which a precarious labour regime, created and maintained through
contractual power, buttressed by a range of ‘long tactics’ used by labour brokers,
was responded to by workers using sub-rosa and extra-legal strategies. This conflict
represents another axis of social conflict contributing to South Africa’s increasingly
fragile stability.

Introduction: Fragile Stability, Industrial Relations and Labour Brokers

Reviewing 10 years of South African democracy, Beal, Gelb, and Hassim (2005)
argued that the country was in a state of ‘fragile stability.’ Using a ‘state-in-
society’(Migdal, 2001) approach, they pointed to the uneven ties and linkages
between state and society and suggested that the persistence of social fractures
provided the potential for increasing fragility. More than twenty years into South
Africa’s constitutional-based democracy, there is increasing evident of social
fracturing. One key area is that of industrial relations. Webster (2015, p. 28) outlines
how; ‘One of the most worrying trends has been the rise in strike activity…with a
dramatic increase in the levels of violence during protests.’ Protracted and violent
strikes on the Platinum Belt (Chinguno, 2013) and by farm workers in the Western
Cape (Wilderman, 2015) provides dramatic evidence of challenges to the post-1994
industrial relations framework, an important linkage between state and society.

The South African Constitution of 1996, pre-figured by the Interim Constitution of
1994, provides a legal framework governing social order. Chapter 2 of the
Constitution, the Bill of Rights, lays the foundation for this order. Several sections
have bearing on workplace relations. Slavery, servitude and forced labour are
banned. Rights to expressions, assembly and association, of general applicability
but of relevance to workplace relationships, are affirmed. Labour relations are dealt
with specifically in Section 23 which outlines the right of everybody to fair labour
practices and the rights of workers to form, join and participate in the activities of
trade unions, to strike and to engage in collective bargaining.i

South Africa’s post-1994 labour legislation is nested within the Constitution. The
Labour Relations Act (1995) outlines the rules for collective bargaining and aims to
institutionalize conflict by providing a framework in which the competing interests
of employers and employees can be contained. In guaranteeing organizational
rights, regulating strikes and lockouts, and providing a framework for dispute
management and resolution, the system is designed to enable the two sides to
reach mutual agreement through collective bargaining. A system of institutions: the
CCMA, Labour Court and Labour Appeal Court, facilitates and regulates these
process of collective bargaining.

Strikes constitute the withdrawal of labour. In a protected strike,ii one which takes
place within the LRA’s framework, workers forfeit their wages for the duration of the
strike (‘no work no pay’) and replacement workers can be employed. However,
workers jobs are protected and once the strike is over they can return to work. The
pressure a strike applies on the employer is the loss of production given the
inconvenience of employing, and likely inefficiency of, replacement workers.
Picketing is limited to the persuasion of other workers to join a strike. Of course, in
reality, things are often more complex, but as long as the rules largely hold then a
strike is concluded with an agreement which reflects the balance of power between
the two side and the extent to which they can withstand the penalties of lost
income on the one side and lost production on the other.

For collective bargaining to function effectively there has to be organisation,
particularly on the workers sides. Unions constitute a critical component of enabling
this system to work. However, only 30 percent of the formal workforce is unionized.
Given the existence of Bargaining Councils which can extend negotiated
agreements, some 32 percent of formal workers’ salary increases are negotiated
between organized labour and employer (Statistics South Africa, 2015). Sectoral
determinations are an alternative mechanism by which minimum terms and
conditions of employment can be established if collective negotiations are not
feasible, for example, the domestic sector where there are millions of separate
employers, employees and workplaces.iii Sectoral determinations are set by a

                                                                                         2
Ministerial-appointed panel, rather than through an institutionalized trial of strength
between organized parties.

Von Holdt and Webster (2008) outline how different forms precarious work
constitute increasing levels of insecurity radiating out from the relative secure core
workforce of employees with standard employment relationships or contracts:
permanent, full-time work on premises controlled by the employer (from here on;
‘permanents’). Non-standard work deviates from these features in one or more
ways, including part-time, temporary, home and informal work along with short-
term contracts, subcontracting and labour broking (Theron, 2003). While there is
always non-standard work in any economy, in South Africa (and elsewhere)
processes of casualisation and externalisation (Theron, 2003) has created
precarious work forms from what were previous standard employment situations.

Labour broking, or temporary employment services, is non standard in that the
worker is employed by one company, the labour broker, but works on premises
controlled by another. This creates a triangular employment relationship. The labour
broking company employs the individual and then, via a commercial contract,
supplies these workers to the client company. The worker does the work of the
client, but is employed by the labour broker. Labour brokers were regulated by the
LRA as placement agencies, to provide companies with short-term placements. The
dramatic increase in use of labour brokers exploited a critical loophole in the 1995
LRA: the absence of joint and several liability, of the labour broker and client, for
unfair dismissal. This meant that dismissal, based on the client’s instructions, was
all but impossible to challenge. As Benjamin (2014, p. 124) points out, when applied
to long-term situations, the triangular employment relationship ‘gives to rise to
immense scope for abuse.’ In the context of mass unemployment, the creation of
long-term ‘casuals,’ employed by labour brokers but working for client companies,
provides cheap labour without the hassle of having to manage people.

This all rested on a ‘contractual move:’ The assignment of workers’ de jure
employer (to the labour broker) means that workers’ bargaining power can no
longer be mobilized against their de facto employer (the client company) (Chung,
2009). Since the labour broker is a service provider to the client company, its
resources are limited to the financial arrangements specified in its commercial
contract with the client. Company generated wealth is now shielded from demands
made by its workforce employed by labour brokers.

Of course, the provisions of the LRA (and the Constitution) remain. In theory, labour
broker employees can form and join unions and negotiate with the labour brokers.
How effective this would be is questionable since the client company could always
contract with a different, un-unionized, labour broker. In any case, attempts to
organize by labour broker employees can be resisted though a range of informal
mechanisms much more easily employed by labour brokers than client companies.
These include: maintaining workers’ hope that they will be appointed as

                                                                                         3
permanents; confusion over the workers’ real employer; the use of multiple labour
brokers which divides workers within one client company between a number of de
jure employers; a ‘pillar to post’ strategy in which worker representatives are
bounced between their de facto and de jure employers when raising grievances;
direct bluffing over workers rights; and, a militant anti-union stand. These practices
can be challenged within the industrial court system, but their effect is to prevent
matters ever getting to this point. They constitute a grey zone of practice shields
the contractual move from disruption.

In 1998, Guy Mhone, then Chief Director of Labour Market Policy at the Department
of Labour, outlined how ‘atypical forms of employment raise a number of policy
concerns that need to be addressed.... (p. 210)’ In 2003, COSATU’s 8th Congress
raised concerns over the ‘casualisation of quality jobs.’ In subsequent congresses,
resolutions deepened criticism of labour broking and cumulated in calls for its
banning. Despite COSATU’s alliance with the ANC, which promised to regulate
labour broking in its 2009 election manifesto, legislation was only promulgated on
the 1st January 2015.

Despite COSATU high-profile national stance against labour broking,iv the response
of individual unions was often ambiguous. Processes of casualisation were
accommodated and attention was focused on the unions’ core membership of
permanent employees. The LRA-conferred organisation rights for majority unions
were not threatened since casualised workers were not included in bargaining unit
calculations.v Casual workers were on their own, even as they laboured alongside
permanent, better paid unionized employees. The practice of labour broking left
casual workers without effective means to enforce the rights given to them in the
LRA and the Constitution.

This paper uses the case of labour broking in SAPO to illustrate how casual workers
working for labour brokers were excluded from the industrial relations system and
their subsequent response. The existence of several workers committees, the
organizational form adopted by causal workers, resulted in a complex matrix of
initiatives being attempted. However, a simplified four-stage chronology of this
response can be drawn up: First a realization that the Communications Workers
Union (CWU), the dominant union in the Post Office, was not going to help; second,
attempts to resolve their situation within the industrial relations framework; third,
unprotected strikes that relied primarily on the withdrawal of labour; and, fourth, a
protracted strike that involved the application of labour in covert and violent ways.
It was this fourth stage that resulted in an agreement to end labour broking in the
organisation.

Methodology

This article is based on research conducted between 2009 and 2015. Initially, I
came to understand the situation of labour broker employees in SAPO as a result of

                                                                                         4
friendships with postmen in East Rand townships where I have been a regular visitor
for over a decade. In late 2013 this research was formalized when I conducted a
series of interviews with the leaders of worker committees, by then largely merged
into the Democratic Postal and Communications Union (DEPACU). Additionally, I
conducted interviews with a number of individuals outside of DEPACU who could
provide different perspectives on events. Two worker leaders provided me with their
hand-written minutes of worker committee meetings. Other sources included the
Labour Court papers for four interdicts requested by SAPO along with the Vaal
Workers Committee’s own application to the court in 2011. Ethnographic research
with DEPACU during industrial disputes in 2014 provided me with an opportunity to
talk to rank-and-file members of the workers committees as well as deepen my
understanding of events described in interviews. Ethical permission for the research
project was granted by the Wits Human Research Ethics Committee. I avoided
explicit discussions in which interviewees might render themselves, or others,
vulnerable to legal action. Such practices are extensively documented in the various
Labour Court cases.

Labour broking in the South African Post Office

The post-apartheid government charged state-owned enterprises, including SAPO,
with a duel mandate: to roll out infrastructure that would support development
goals and to do this without burdening state finances. The Post Office’s key role in
development was its Universal Service Obligation (USO) to provide postal and
communication services to all South Africans at affordable prices.vi In particular this
involves the establishment of ‘points of service’ (retail post office facilities) and the
provision physical addresses,vii to which mail can be delivered.

Mail delivery systems work on a hub-and-spoke principle. Mail is sorted by postal
codes in mail centers and sent to postal depots which service a defined area divided
into ‘walks’ served by postmen (and sometimes postwomen). Postmen sort the mail
by street addresses using a ‘press’ and then deliver it, most commonly by bicycle.
Mail remains important given the still low penetration of alternative means for
banks, municipalities, stores selling on credit, and other companies providing paid
for services to provide statements and invoices. Large urban townships, in
particular, provide profitable areas for postal delivery.

The Post Office made extensive progress in fulfilling its USO, resulting in an
expansion of its mail delivery workforce, particularly postmen and women, and it
turned around its finances from an approximate R1bn annual loss in the late 1990s
to profits between 2005 and 2010.viii This was a considerable, but short-lived
achievement. The financial viability of the organization was accomplished, in
significant part, through cutting costs. A major mechanism in which expenses were
contained was the use of labour brokers.

                                                                                            5
Labour brokers were present in SAPO prior to 2000, largely as placement agencies
across the organization when there was a need for short term cover. This situation
changed in 2000 when newly appointed management imposed a moratorium on
entry level positions in the organization. That moratorium was not lifted for more
than a decade and casual workers placed by labour brokers came to outnumber
permanent workers in business units such as mail delivery. The only real
requirement imposed by SAPO when contracting for labour was that the labour
broker be BEE compliant. The result was a swarm of BEE companies, and some BEE
fronts, many startup businesses, vying for business.ix

Despite working alongside permanently employed postal workers, and doing exactly
the same job, labour broker employees had very different terms and conditions of
employment. They were not provided with uniforms, but the most visible difference
between casual and SAPO permanent employees was salaries. Monthly payments to
casual postmen varied, however in rounded terms, by 2011 a permanent postal
worker’s salary was R8,000 a month, but a labour broker would be paid R4,000 a
month to supply a worker, who would be paid R2,000. The combined effect of
savings on salaries, benefits and uniforms dramatically reduced SAPO’s wage bill.
As one SAPO manager explained, ‘It was three for the price of one!’

This situation was maintained through the hopes and vulnerability of the casual
workforce. When the former ran out, the latter kicked in. Initially, workers were
summarily dismissed by labour brokers without hearings, later the Post Office
insisted on a tightening up of procedures. By and large, disciplinary hearings were,
however, formalities, as one interviewee explained, ‘it was just to… satisfy what the
[LRA] Act [procedurally] requires, but once the Post Office [supervisor] said that
they no longer want you, you are done.’

Attempts to organize unions were directly blocked. Workers were told to their face
that if they joined a union they would be fired. The nature of the employment
relationship meant that a supervisor could have an employee dismissed by simply
picking up the phone and asking the labour broker for a replacement worker. In
additional to outright anti-union stance, the multiple companies operating within
single depots raised the bar to union organization since negotiations would have to
be held with each labour broker separately.

The widespread establishment of labour brokers within SAPO created two parallel
workforces. By 2011 approximately one third of the organization’s workers were
casuals; 8,000 out of 23,000. One workforce was relatively privileged and unionized,
the other was precarious and without representation. SAPOs industrial relations
environment was dominated by CWU between 1996 and 2012 when SAPWU (later
SAPAWU), formed by a breakaway from CWU in 2009, was also recognized by SAPO.
Excluding the efforts of a handful of individuals, CWU made little efforts to prevent
the increasing use of labour brokers.

                                                                                      6
On the ground, two unequal workforces labouring side by side resulted in toxic
workplace relationships. While there were exceptions, the general experience of
casual workers was one of discrimination at the hands of supervisors and
permanent co-workers. A tea allowance given to permanent workers, while
objectively a small thing, had enormous psychological impact. Casual workers did
not have this allowance. In a few depots supervisors insisted that the purchased
beverages be shared by all, but this was rarely the case. Generally, tea and coffee
was for permanents only. The resentment generated by this petty, intra-worker,
discrimination was frequently bitterly recounted by interviewees as an example of
what they had been fighting against.

Nobody sat down and designed the labour broking system in the SAPO. Rather, it
evolved from attempts to meet contradictory imperatives, a sustained failure of
governance, incompetent management, sclerotic unions, rapacious entrepreneurs,
and an almost inexhaustible supply of people desperate for employment. Yet, what
was created dramatically changed the composition of SAPO’s workforce.

Unions and Workers Committees

The organisation of casual workers within SAPO’s Wits Region (approximately
Gauteng Province excluding Pretoria) was long and complex. Despite CWU’s failure
to respond to the introduction of labour brokers, casual workers, including leaders
within the workers committees, looked to CWU, as the only unions in the
organisation, to address their concerns. Because CWU did not have a recognition
agreement with the labour brokers, despite causal workers filling in CWU
membership forms neither the Post Office, nor the labour brokers, deducted their
union subscriptions.x Individual regional CWU office bearers who were sympathetic
to the casual workers had agreed to demands for representation at shop steward
council meetings and from 2009 depots in Wits Region would send two
representatives: the official CWU shop steward and a ‘member not in good standing’
representing casual workers.

CWU didn’t, however, negotiate wages or conditions of employment,xi the casuals’
chief concern. What CWU did do, however, was to promise that labour broking
would be ended in SAPO. Agreement to this effect was first included in collective
bargaining agreements with SAPO in 2005. The clause was repeated annually in
subsequent agreements, the only significant difference being that the deadline for
completion was postponed. In fact, far from implementing this agreement, the
number of labour broker employees in the organisation continued to grow. CWU’s
repeated promises were eventually ridiculed by casual workers as ‘Come
September.’ Come September (approximately when negotiations were concluded),
permanent employees would get a salary increase and, despite promises, casual
workers remained casual workers.

                                                                                      7
The establishment of what were initially called casuals committees or workers
committees, beginning as early as 2005, was a response to CWU’s failure to address
the concerns of labour broking. This process of disillusionment with the union was
accelerated by the 2009 strike in which the end of labour broking had been a
central demand. Workers committees were fragmented and often fractious. A
committee emerged on the West Rand which was strongly linked to a group in the
Vaal area. A particularly cohesive committee was established in the Tembisa area
and another committee covered other parts of the East Rand.xii

Exploring Every Avenue

What is striking is just how many attempts worker committees made to resolve their
problems within the South African constitutional framework. The number of
organizations approached and strategies attempted, summarized in Box 1, was
multiplied because different casuals committees ran through a range of initiatives,
sometimes in parallel.

                                                                                  8
Box 2: Organizations Approached and Strategies Attempted by Casual
Workers Committees in Gauteng
Attempts to negotiate as Workers Committees
 Attempts to negotiate directly with the Post Office
 Attempts to negotiate with labour brokers, particularly TAS Appointments (2009
   and 2010) as the largest labour broking company in Gauteng

Attempts to get official bodies to intervene/adjudicate
 Department of Labour/Minister, resulted in a Ministerial enquiry in 2007
 Department of Labour public hearings on labour broking: SAPO casual workers
   imputed into hearings held in Germiston and Sebokeng in October 2009
 CCMA
 Gauteng Premier
 Labour Court
 Minister of Communications
 The Public Protector

Attempts to get help from trade unions
 COSATU
 COSAWU (now de-registered, was linked to DSM)
 LEWUSA (Labour Equity General Workers Union of South Africa)
 CWU
 SAGWUTI (South African General Workers Union & Textile Industries)
 SAPWUxiii (South African Postal Workers Union, later SAPAWU)

Attempts by unions to get recognition with labour brokers
 Individual CWU office bearers in the Wits Region
 COSAWU
 SAGWUTI

Attempt to establish their own union
 National Communications and Allied Workers Union (NACAWU) was an initiative by
   the Vaal Committee. Registration was declined by the Department of Labour.

Protected Strikes
 One protected strike took place in the Vaal area in early 2009.xiv It was
  unsuccessful.

Political parties/organizations asked for assistance
 ANC
 ANCYL
 SACP
 YCL
 African Peoples’ Congress (APC)xv
 Democratic Socialist Movement (DSM)xvi
                                                                                   9
Private Legal Assistance
 The Vaal Committee engaged a private lawyer without success before receiving
   assistance from a VUT lecturer.

Advice Centers
 The Germiston-based Casual Workers Advice Office (CWAO) provided office
  facilities and research assistance from late 2011

Given the number of avenues explored it is not possible to explore all in detail.
However, of note was that attempts to enlist COSATU’s help were perhaps the most
frustrating. A march to COSATU House was organized without the knowledge of
CWU in May 2011 by the West Rand Committee. The COSATU officials that they met
were sympathetic, but did little other than outline COSATU’s national campaign and
refer them back to CWU, along with advice to follow ‘proper channels.’ In the words
one worker leader, ‘COSATU was USELESS in capital letters.’

The casual workers had, in fact, explored and exhausted ‘proper channels.' Initial
attempts to raise the issues of salaries, benefits, uniforms and other concerns with
the Post Office were initially diverted to the labour brokers as the causal workers
employees. The response from labour brokers was that they were constrained by
the terms of their contracts with SAPO. This established a ‘pillar to post’ strategy in
which responsibility for casuals’ grievances was denied.

In March 2007 the Vaal Workers Committee pestered the Department of Labour
which conducted a Ministerial Enquiryxvii that dealt with the complaints raised by the
committee against TAS Appointments, the largest labour broker in the Post Office.
TAS was found guilty of only one of the ten complaints; that it had not provided
employees with contracts. It was ordered to do so. On the central issue of different
terms and conditions of employment the report simply explained the status quo:
‘this issue was clarified… the Post Office did not employ them [the casual workers]
but rather outsourced its services to TAS…better benefits should be negotiated with
the agent [TAS] as their employer.’ In other words, the Department of Labour
perpetuated the pillar to post situation.

Eventually, talks took place with TAS. They were a one-sided affair that resulted in a
50 cent an hour pay increase being granted. Assisted by lectures and students from
Vaal University of Technology (VUT) they successfully applied for a strike certificate.
However, the protected strike, in early 2009, failed to achieve any further increase.
In 2010 there were again talks but they quickly stalled. Now it was explained by TAS
management that the workers committee was not a recognized ‘as per collective
bargaining’ and that salaries could not be increased because of the ‘laws of labour
broking.’

                                                                                      10
The Vaal Committee again went to the CCMA for a strike certificate. They drew on
TAS’s failure to provide them with their contracts as instructed three years early and
the deadlock in negotiations. However, this time around the CCMA Commissionerxviii
said that the case was complex and instead told them to approach the Labour
Court.xix Despite the difficulties of such an undertaking, the committee, assisted by
VUT students, filed papers and the case was heard on 2nd February 2011 in
Johannesburg.xx The judge seemed to have had little patience with the workers’
amateur approach to the bench and poorly constructed prayers (requests). The
matter was postponed sine die (indefinitely) and the applicants had a month to re-
file papers if the case was not to be closed. Doggedly, the committee persevered.
With assistance from the court’s pro bono office, they submitted a revised
application.xxi A second court date was set for August. But by the time August came
things were different. The strike wave of mid-2011, described in the following
section, had despite its defeat, contrasted the long, frustrating and one-sided route
of ‘proper procedures’ to the power of taking to the streets.

Turning to the Streets

Between June and August 2011 a series of unprotected strikes by SAPO casual
workers erupted across Gauteng. The most significant of these originated in the
Tembisa area and spread across the East Rand, Vaal, and isolated depots in the
West Rand. This was the first sustained casual workers’ strike. Empowered by their
own success they adopted the slogan, ‘We are the union ourselves!’

The strike, however, crumbled, without a single concession. Labour Court interdicts
brought by the Post Office were key to this conclusion.xxii Initially, SAPO cited the
labour broking companies, since its contract with them for labour was not being
honoured. When the labour brokers proved that it was impossible to recruit
replacement workers because of intimidation, SAPO lawyers focused on the strikers.
Among the strike committee there was confusion; some thought the case was the
one brought by the Vaal Committee and that the Post Office that would be ‘on trial.’
Striking workers turned up on the appointed day en mass.

When they arrived at the Labour Court the Post Office lawyers obtained the details
of six strike leaders. These six now became the primary respondents for a second
interdict. By the time they realized their mistake it was too late; they were facing
jail for contempt of court. Their initial defiance, recorded verbatim in the second
interdict by the Post Office lawyers, now evaporated. In a humiliating climb-down
they turned to CWU, with the help of the West Rand Committee who still remained
in contact with the union, for representation in the court. On the 27th July, they
apologized to the court and were bound over for six months. The strike collapsed.xxiii

Turning from the Constitution

                                                                                    11
Although the strike ended in defeat, what the workers committees had gained were
lessons that would be taken, by a minority of causal workers, into the next strike.
The first was the realization that they needed to focus on the Post Office, and not
the labour brokers, if they wanted to achieve their objectives. The court cases had
made it clear that, in local idiom, if they beat the dog [mail delivery] hard enough
the real owner would emerge. In other words, if they applied enough pressure they
could counter the contractual move of labour broking which blocked them from
negotiating directly with their de facto employer. The second lesson was how to
apply that pressure. During the strike they had piloted techniques to prevent mail
delivery, particularly in townships. These techniques were less about the withdrawal
of their labour, but rather the application of labour. They not only prevented the use
of replacement labour, but also prevented non-striking worker, such as permanent
employees, from delivering mail. The third lesson followed from the second; they
needed to stay away from the courts. They had seen what happened when the
lawyers got their names; in future the leadership would remain hidden.

Different Kinds of Prayers

The collapse of the mid-2011 strike routed and demoralized the worker committees.
While there was a tacit agreement among the leaders of the causal workers that
they should see out the Labour Court six month suspended sentence before
returning to the fray, the West Rand workers committee jumped the gun
commencing another unprotected strike in December 2011.xxiv It was to last until
April 2012. The timing of the strike played into the rivalry between committees and
drove a wedge between those who had wanted to continue the previous strike in
defiance of the Labour Court and those who had been cowed by the interdict. The
strike failed to match the scale of the previous one. As the strike dragged on,
divisions hardened and with the exception of a couple of East Rand depots that
joined the strike long after it was underway casual workers across Gauteng divided
into two hostile camps. In the end a few hundred strikers, down at one point to just
294, a figure that attained mythological status, remained out.

The structure of the workers committees was adapted. The only leaders with any
visibility were protected by ‘Chinese walls,’ that provided them with plausible
deniability over actions that might take place the ground. But overwhelmingly the
strike leaders were simply invisible. SAPO tried again to interdict the strike,xxv but
was now unable to pin down individuals; court interdicts were ignored and attempts
by the Sherriff to serve summonses were met with denials that the individual lived
at the address.

On the ground, a process of trial and error created a flexible field structure in which
a myriad of roles emerged around personal character, local knowledge, and street
savvy. At some point the name Mabarete (The Berets) stuck. There are different
accounts as to how this came about, but there is agreement that it was a reference
to the then Minister of Police, Bheki Cele’s paramilitary Tactical Response Team,

                                                                                     12
nicknamed for their berets, that operated in the townships meting out corporal
punishment. Nobody had a problem in seeing a parallel between the two groups.

Drawing on lessons from the mid-2011 strike the Mabarete now began to ho tsoma
(hunt) in the townships. In essence this involved groups of varying size patrolling
townships to confront anybody delivering mail. Such confrontations ranged,
depending on circumstances, from warnings, to forced stripping, to beatings. The
use of violence was justified in a number of ways by the Mabarete. It was also
euphemized. This helped to disguise their actions, but it was also part of a
justification narrative that relied on familiar religious motifs: they were removing
demons from the amagundwane (strike breakers) through prayers. Such prayers
would they hoped be heard.

The ho tsoma tactic multiplied the impact of a few hundred strikers. Though a
combination of changing formats, mobility and secrecy it was all but impossible to
know where the Mabarete were operating on any particular day, or if, indeed, they
were operating in several locations. Over large parts of Gauteng deliveries stopped
with non-strikers turning up for work, but unable to deliver mail.

The Post Office initially refused to acknowledge that a strike was occurring. Rather,
SAPO minimized the scale of disruption and denied that this was industrial action
but, rather, the criminal acts of a handful of former workers.xxvi Despite disrupting
mail delivery, the Mabarete’s message, primarily delivered though punishment
beatings of amagundwane, was not getting through. The stark reality was that the
Post Office put little value on its labour broker staff; whether working, striking, or in
ICU wards. SAPO’s strategy appeared to be to ride out the problem. A change of
tactics from ho tsoma to ‘home visits’ then emerged. The first home visit was
spontaneous. A group of strikers were passing the Tembisa house where the mother
of TAS’s owner lived. In an act of bravado they made a phone call to the labour
broker telling her where they were and that if she didn’t drop her contract with the
Post Office they would be back. The second target for a home visit was CWU. The
visit to Clyde Mervin’s house, then the Chair of CWU’s Gauteng Region, was
planned. Several hundred strikers arrived. Mervin wasn’t in, but members of his
family were and they were traumatized by the experience. The message was that
he should stay out of their strike; casual workers were now fighting their own
battles.

The third home visit was to SAPO’s Wits Region mail manager, who lived in a gated
complex on the East Rand. Some strikers thought that he had the power to hire, as
they knew he had to fire. On arrival at the complex’s security boom they posed as
employees who had come for unpaid wages. After a delay, and despite police being
called, the security guards had little option to allow them past. The manager was
not in, but as with the visit to Mervin’s house, family members were. The thinly
disguised message was that they were hungry and would be coming back ‘to eat’
with the manager. By chance, a working postman was delivering in the complex that

                                                                                       13
would normally have been seen as safe territory. The strikers left his bike on the
gate and took the unfortunate man with them to reinforce their message.

The results were beyond the Mabarete’s wildest expectations. As interviewee after
interviewee explained, the visit ‘changed everything.’ They had not even reached
the Metrorail station before a call, brokered via an intermediatory, came through;
the manager wanted to meet.

The End Labour Broking

The Regional manager could no longer go along with the organization’s denial over
labour broking; his family was now on the front line of an industrial war. He
confronted senior management and talks started. The initial challenge was
management’s need to know that they were, in fact, talking to the strikers. The
Mabarete had covered their tracks well. None of the leadership knew anything
about the home visit. Even the person who had taken the call was unknown to
them. To resolve this problem it was agreed that the group’s credentials would be
tested. The Mabarete marshaled their members to sit in Germiston’s Golden Walk
car park for a week. No incidents were reported and the management knew they
were talking to the right people.

After that agreement came quickly. Nothing however was put on paper. Both sides
faced the problem of provoking CWU, still the only recognized union in SAPO at the
time, given that the deal breached existing collective bargaining agreements as well
as company recruitment procedures

There were two, verbal, clauses. The first was that the Mabarete, all long since fired
from employment by the labour brokers, would be employed directly by the Post
Office. They would be paid at a rate equal what the labour brokers had been paid.
This was, more or less, cost neutral for SAPO, but it meant an approximate doubling
of the Mabarete’s salary to some R4,000 a month. It was also agreed that they
would be converted to permanent positions within three months. The Mabarete
returned victorious to their depots.xxvii

The second clause was that all labour brokers employees in SAPO would follow a
similar process to that outlined for the Mabarete. It was hoped to manage the
process discretely and quietly; a hope that immediately evaporated when many of
the casual who had remained at work launched their own strike, demanding that
they be employed immediately as permanents. The ‘Second Strikers’ adopted and
developed the tactics pioneered by the Mabarete. They returned to work in early
June with a written agreement essentially in line with that reached by the Mabarete.
By July 2012 the use of labour brokers in the Post Office had ended.xxviii

Discussion and Conclusion

                                                                                     14
This section attempts to do two things. The first is to frame the Mabarete’s struggle
against labour broking, one axis of social conflict, within the wider framework of
South Africa’s, increasingly fragile stability. In particular, I seek to summarize how
this conflict can be framed as a contracting out of the Constitution, by both the
labour brokers, and therefore also by SAPO, and the Mabarete, while other actors,
including the established union and the industrial judiciary stood on the sidelines.
The second objective is to assess what impact of amendments to the LRA, aimed at
regulating labour broking, which came into effect in 2015, might have

 The mandate given to SAPO, in line with that of other state owned enterprises, was
developmental. However, in line with increased concerns over fiscal discipline,
brought to the fore with the introduction of the GEAR strategy in 1996, this was to
be achieved without burdening the public purse. While considerable progress has
been made in regard to its USO, its industrial relations practice, especially the use
of labour brokers, has been a spectacular failure, a failure that undermines the
value of its USO successes. The growing use of labour brokers was never planned or
thought through at a strategic level. Indeed, it was largely invisible to senior
management or the board until 2011 when, alerted by the rising expenditure on
labour brokers, an investigation was ordered. By then the industrial relations
situation was out of control.

Labour broking exploited a loophole in the 1995 LRA. On the ground, this loophole
that allowed the reaction of ‘permanent casuals’ was defended by a grey zone of
practice that played on workers hopes, limited knowledge of the law, their
resources, a lack of representation and their fear of dismissal. The tactics employed,
predominantly by Black entrepreneurs, shielded the contractual move, and SAPO’s
cost savings, from challenge for a considerable time; a testament to how effective
combinations of hope, mystification and fear can be in maintaining domination.

A string of institutions stood by and watched as these ‘long tactics’ of domination
were played out for over a decade. The COSATU-affiliated trade union CWU, despite
playing a high-profile role in the national campaign to ban labour brokers did
nothing (excepting a handful of individual office bearers). COSATU’s principle of ‘one
industry one union’ was interpreted in practice as meaning the exclusion of rival
unions, not the organisation of all those working in the industry.xxix

The institutions responsible for the countries industrial relations framework also
failed to act. Indeed, with a few exceptions, the actions of the Department of
Labour, the CCMA and the Labour Court frustrated casual workers’ attempts to find
redress within the law. The high-point of the causal workers efforts in this regard
was their appeal to the Labour Court. Their amateur approach was clearly looked
upon as an irritation. As with the other institutions of the industrial relations system,
it didn’t seek to know, or to resolve, the real problem. By contrast, when the Post
Office sought relief against the same casual workers, who had now lost patience

                                                                                      15
and were on an unprotected strike, it swiftly granted an interdict that brought the
strike to an end.

This strike, however, indicated that the labour brokers’ long tactics of domination
were coming to an end. What was erupting, largely on township streets, was a
struggle that bypassed the contractual move as workers targeted the operations of
their de facto employer with the objective of defeating their enemy; the labour
brokers. This conflict was entirely outside of the industrial relations framework and
sub-rosa. The Labour Court’s interdict in mid 2011 aimed at six key individuals,
confirmed an increasing realization among causal workers leaders that they needed
to steer clear of the legal system. SAPO obtained a Labour Court injunction against
the Mabarete strike in February 2012 but it was unenforceable against the
organizational form that they then adopted.

Although the Mabarete employed a range of tactics what was most prominent was
their willingness to hunt amagundwane in the townships, while avoiding arrest. The
number of beatings administered was not the key criteria, the effect of the
technique rested on the fear it installed. This applied to the large number of casuals
and permanent workers who were not part of the strike but were kept idle, and for
the impact that home visits would have.

Despite the high ideals of the Constitution, and the specific attempt of labour
legislation to institutionalize conflict, the case of SAPO illustrates how first labour
brokers and then their employees contracted out of the Constitution. The first move
can be framed as structural violence and the Mabarete’s response, an illicit and
violent campaign indicating another axis of social conflict, and increased fragility.

On the 1st of January 2015, the LRA Amendment Act designed to restrict the use of
labour broking to genuine and relevant temporary workxxx was promulgated. The
reforms’ key features are, first, that labour broker and client company are jointly
and severally liable for contraventions of employment laws, including dismissal,
something that should end the ‘pillar to post’ strategy that has frustrated casual
workers. Second, workers are to be treated as employees of the client if they work
for a period in excess of three months (with permitted exceptions). Termination of
employment to avoid this will be considered unfair dismissal. This should prevent
evasion based on rolled-over, three-month contracts. Third, after three months,
there must be equal pay for equal value work, something that should prevent the
maintenance of a two-tier workforce post labour brokers.

Should these reforms be enforced, labour brokers would be reduced to assisting
companies with short-term placements.xxxi The important question, however, is
whether this legislation can and will be enforced. Enforcement of any labour
regulation depends primarily on three agencies: companies regulating their own
activity, inspection by the Department of Labour, and the watchdog function of
trade unions.

                                                                                      16
The case of casual workers in SAPO, and experience elsewhere, makes for
pessimism over the actual impact of these labour law amendments. The Post Office,
a state owned entity, professes among it values that, ‘we treat each other with
respect, dignity, honesty and integrity’ and that ‘we recognise and reward individual
contributions.’xxxii Clearly, none of this actually meant anything; when it came to
employment practices. The Department of Labour failed the SAPO casual workers
when approached, and it is common cause that the Department’s inspectorate is
inadequate and unable to enforce existing legislation. Finally, CWU, a COSATU
affiliate, was at best slumbering while casual labour entered the Post Office. At
worst, it was implicit in maintaining the two-tier labour system.

The slowness with which abuse of labour broking was closed down is instructive; a
source of cheap, hassle free, labour made life easy for some while effectively
shutting others out of the industrial relations system. Those responsible for the
system chose, by and large, not to trouble themselves too much over what was
happening. It will take some time before it is clear that the labour law amendments
will achieve its objectives. The underlying problem, a quest for cheap labour, one
with a long history in South African, will, in all likelihood, remain.

References

Beal, J., Gelb, S., & Hassim, S. (2005). Fragile Stability: State and Society in
       Democratic South Africa. Journal of Southern African Studies, 31(4), 681-700.
Benjamin, P. (2014). The Persistence of Unfree Labour: The Rise of Temporary
       Employment Agencies in South Africa and Namibia. In J. Fudge & K. Strauss
       (Eds.), Temporary Work Agencies and Unfree Labour: Insecurity in the New
       World of Work. New York: Routledge.
Chinguno, C. (2013). Marikana and the Post-apartheid Workplace Order (Vol. 1).
       Johannesburg: Society Work and Development Institute.
Chung, J. (2009). Organizing At The Margins: The Symbolic Politics of Labour in
       South Korea and the United States. Ithaca: Cornell University Press.
COSATU, & NACTU. (2012). COSATU and NACTU Memorandum on Labour Broking.
       Retrieved 14/11/2014, from www.cosatu.org.za
Dickinson, D. (2015). Fighting Their Own Battles: The Mabarete and the End of
       Labour Broking in the South African Post Office: Society, Work and
       Development Institute.
Mhone, G. C. Z. (1998). Atypical Forms of Work and Employment and Their Policy
       Implications. Industrial Law Journal, 19(2), 197-213.
Migdal, J. (2001). State in Society: Studying How States and Societies Transform and
       Constitute One Another. Cambridge: Cambridge University Press.
SAPO. (2013). Post Office Integrated Annual Report 2013.
SAPO. (2014). Post Office Integrated Annual Report 2014.
Statistics South Africa. (2015). Quarterly Labour Force Survey Q4 2014.
Theron, J. (2003). Employment Is Not What It Used To Be. Industrial Law Journal, 24,
       1247-1282.
Von Holdt, K., & Webster, E. (2008). Organising on the Periphery: New Sources of
       Power in the South African Workplace. Employee Relations, 30(4), 333-354.

                                                                                  17
Webster, E. (2015). The Shifting Boundaries of Industrial Relations: Insights from
      South Africa. International Labour Review, 154(1), 27-36.
Wilderman, J. (2015). From Flexible Work to Mass Uprising: The Western Cape Farm
      Workers' Struggle: Society Work & Development Institute (SWOP).

                                                                                 18
i Employers have the rights to form and join employer organizations and to participate
in their activities. The right to lock out, the mirror right of workers’ right to strike was
not included in the constitution, though it is outlined in the Labour Relations Act (1995
Amended).
ii Unprotected, or ‘wildcat,’ strikes, take place outside of the legal framework and
workers jobs are not protected. These are often referred to as illegal strikes. This is not
correct. A strike can only be considered illegal should a wildcat strike be successfully
interdicted by the employer in the Labour Court. At this stage, if strikers continue they
are in contempt of court.
iii There are approximately ten sectoral determinations including: security, farming
and retail. Some of these sectoral determinations operate alongside collective
bargaining for some workers in the industry.
iv And NACTU (COSATU & NACTU, 2012)
v Organising causal workers by major unions was rarely attempted for a number of
reasons, including the difficulty of having to negotiate recognition agreements with
different labour brokers that might, in any case, be replaced at the end of their
contract.
vi SAPO (2014)
vii The provision of physical addresses is important not only for the delivery of mail,
but also to access a range of other services, such as banking, and technologies such
as cell phones.
viii Excluding once-off income and government subsidy.
ix At least 11 labour brokers provided labour to SAPO: TAS Appointment &
Management Services, ITP, Autenmas Placements (ATM), Vulavulani Technologies
(VVT), T&T Appointments, T&L (which split to form TAS and T&T), Workforce
Management, Quest Staffing Solutions (a BEE subsidiary company of Adcorp), Interim
Consulting, N.T. Ngidi Consulting and Marula Staffing (the latter two being joint BEE
ventures of the Kelly Group).
x With the exception of one of the smaller labour brokers, ITP, which did agree to allow
stop orders.
xi CWU did put casuals’ wages on the negotiating table on a number of occasions (in
the form of what SAPO would instruct labour brokers to pay). However, this demand
would off the agenda which proceeded to hammer out increases in salaries and
benefits for permanent workers. CWU did not have a legal mandate to negotiate on
behalf of labour broker employees and to do so in earnest would have been to limit
what it could achieve for its membership.
xii See Dickinson (2015) for a more detailed account of the evolution of the workers
committees in SAPO.
xiii SAPWU was initially viewed with suspicion by casual workers. Later officials within
SAPWU played a critical role in negotiations between the Mabarete and SAPO in March
2012.
xiv The strike certificate was issued by the Johannesburg CCMA office.
xv The APC assisted, inter alia, with the 2012 approach to the Minister of
Communications.
xvi The DSM made considerable, unsuccessful, efforts to unify workers committees.
xvii Employees vs. Post Office G/S 8141.
xviii At the Vereeniging, rather than Johannesburg office where they had applied for
the first strike certificate.
xix GA JB 28361-10. CCMA Vereeniging Office.
xx J 1048/10 Workers Committee obo Members vs. TAS Appointment and Management
Services. Labour Court.
xxi This was, in legal terms, only a marginal improvement on the first attempt.
xxii J 1208/11, J 1355/11 and J 1493/11. Labour Court
xxiii Though a strike in the Pretoria region, beginning in late July continued into August
and was subject to a third interdict (J 1493/11)
xxiv The committee’s timing was driven by internal dynamics. Although they had
largely stayed aloof from the Tembisa initiated strike, they had in May 2011 mounted
their own one-day demonstration-cum-stayaway at COSATU House. TAS had
implemented disciplinary action against those who had participated for absconding. A
handful of workers stood their ground and refused to apologize for their absence from
work. They were dismissed. With their backs against the wall they had launched the
strike.
xxv J112/12 Labour Court
xxvi Technically this was correct: the strikers had all been fired by the labour brokers.
xxvii SAPO had no information of the number of strikers they were dealing with.
Although the Mabarete core had dwindled to 294 they submitted a list of 411 strikers
for direct employment in SAPO. This included those who were considered amaqabane
(comrades) but had for one reason or another drifted away from the strike. Not all of
these 411 individuals took up the offer of employment.
xxviii Nevertheless, this was not on equal pay to permanent employees. Much of the
industrial unrest in SAPO that has followed is a result of the still incomplete conversion
of former casual workers to permanent employee status.
xxix One of many reasons given for CWU’s failure to deal with labour broking in SAPO
was its focus, from 2009, on its SAPWU rival.
xxx Memorandum of Objective on Labour Relations Amendment Bill, 2012: 30
xxxi And in providing companies with a three month ‘probation period’ for prospective
employees.
xxxii SAPO’s Vision, Mission & Values statement (SAPO, 2013).
You can also read
NEXT SLIDES ... Cancel