The main driving force behind this hollowing-out of the collective bargaining framework has been the organisational restructuring to which many companies have resorted. The increase in the contracting-out of core and non-core activities in many sectors has resulted in the growing casualisation of jobs discussed in Section 1. The resulting precariousness in which many workers find themselves has negatively affected their ability to join unions and engage employers in the many forums established by the LRA. Crucially, it has allowed employers to replace ‘extra-economic’ coercion with economic coercion (Pons-Vignon, forthcoming); this is a stark reminder that relations between labour and capital are more often characterised by conflict than by collaboration.
One of the more surprising outcomes of the failure of collective bargaining to protect workers in post-apartheid South Africa has been its inefficiency in promoting employment equity. Given that most low-skilled workers are black, the increase in within-wage earners inequality has been associated with increasing racial inequality. There have been exceptions, however, not least in the one sector which, according to Budlender (2009), corresponds, to some extent, to the intent of the post-apartheid labour law: the public service. Improved representation (trade unions were hardly tolerated before 1994 in the state) and the hiring and promotion of black professionals (Von Holdt 2010) have allowed state employment to play a classic role of class formation. As a result, the state seems to be the only ‘sector’ where the objectives of employment equity of the broad-based black economic empowerment (BB-BEE) policy have been met. Elsewhere in the labour market, BB-BEE has been primarily geared towards the creation of a black bourgeoisie, rather than towards undoing the racialised (and racist) wage structure prevalent in South Africa. This is reflected in the division of tasks between the ECC and the Commission on Employment Equity (CEE); while the latter is in charge of monitoring progress in terms of (racial) employment equity, the former is supposed to monitor wage differentials. But because the ECC has been absorbed by its advisory work related to sectoral determinations (see below), while the CEE has ‘focused primarily on advancement into the top levels of the hierarchy’ there has been ‘serious neglect of monitoring of wage differentials’ (Budlender 2009).
Ineffective direct state intervention in the labour market
Although collective bargaining is the cornerstone of the South African system of labour law, there are residual provisions for direct state intervention, in particular in relation to ‘vulnerable’ workers. This sub-section focuses on sectoral determinations, which offer very limited protection to workers, and on the weak enforcement capacity of the Department of Labour. Not only is protection minimal, it is often elusive.
Sectoral determinations set minimum conditions of work and pay for sectors where there are no bargaining councils, usually reflecting the weakness of unions, as well as documented exploitation; they have concerned sectors such as forestry, agriculture, domestic work and security.8 The establishment of minimum wages seems to have helped increase sometimes extremely low nominal wages, but case studies suggest that employers have found ways to counter wage increases by shifting to hourly or task payment, or reducing other benefits (Murray and Van Walbeek 2007). Sectoral determinations have thus resulted in increased casualisation because they are not monitored by trade unions, and also because of poor enforcement mechanisms (see below).
As Coleman (fortcoming) puts it: ‘(t)he system of sectoral determinations … is both partial (only covering some low paid sectors), uncoordinated, with big variations in the minima, and without any coherent rationale in terms of the basic subsistence needs of workers.’ Indeed, as illustrated in Figure 2 below, the minimum wages set in this way tend to be very low, with an average of just above R2 000 per month. Increasingly, the minimum becomes the benchmark, with wages hoarding around the regulated minimum wage. In other words, even if it was implemented rigorously, direct state intervention in the labour market would hardly manage to uplift poor workers.
There is, moreover, a severe lack of enforcement of labour regulations. It is striking that in 2007, four years after the adoption of a sectoral determination for agriculture, 28 per cent of workers were paid below the minimum wage, and that 36 per cent still did not have written contracts (Bhorat et al. 2012). In a recent study of Gauteng horticulture, Nkosi (2013) finds that most workers are unregistered immigrants who ‘do not have rights’. This poor compliance on the part of employers is related to the weak enforcement (inspection) capacity of the Department of Labour. As Stanwix (2013) argues: ‘[in] agriculture, the risks [associated with non-compliance] have been low and the penalties light.’ Inspectors are tasked with monitoring and enforcing compliance with the Basic Conditions of Employment Act and sectoral determinations, as the state does not monitor agreements emerging from collective bargaining (which are supposedly monitored by BCs themselves). While the violence inherent in some sectors probably deters inspections (as in the collective taxi sector), there are many suggestions that the South African labour inspectorate is slow and ineffective. Research into why this is the case, and how the deficiencies of such an essential function can be fixed, is urgently warranted, for many South African and foreign workers have no one else (hence, often, no one) to turn to in case of abuse.
Figure 2: Minimum wage levels in sectoral determinations in rands per month, 2013-14
Source: Department of Labour, various documents available at http://www.labour.gov.za/DOL/legislation/sectoral-determinations.
Note: Domestic A & B correspond to different geographical areas; Hospitality >10 & <10 refer to enterprise size. For Security, the minimum wage indicated is for the category ‘general worker’, applicable after six months of service; for Wholesale it is for a ‘general assistant’; and for Taxi it is for ‘workers not elsewhere specified’.
As a result of the limited scope of bargaining councils, as well as the limited coverage of sectoral determinations, the extent to which minimum conditions are in fact regulated is at best uneven. Combined with poor enforcement capacity, this produces a striking picture of an inefficient legal framework at odds with the widespread perception. Overall, state intervention in the labour market mirrors the inefficiency of collective bargaining in defending workers against employers.
The new labour law regime in South Africa was inspired by ‘corporatism’. The central idea was that it was going to protect workers thanks to strong trade unions negotiating conditions in centralised bargaining councils. This was consistent with demands by Cosatu unions dreaming of a ‘mixed’ economy based on co-determination – but capital wanted none of it. The pervasive increase in atypical employment has entailed an erosion of trade union ability to protect workers and take advantage of many of the provisions of the new legal framework.9 The workplace strength of unions has been seriously dented with the transition to democracy, with many union cadres taking up jobs in government and the private sector, thus enhancing unions’ political influence – what Buhlungu (2010) calls the ‘paradox of victory’. This happened at the very moment when workers needed to be defended in the context of widespread restructuring; thus, while unions retain power in certain sectors, they have not prevented widespread casualisation, even in the public service (