So, what are the issues being raised by COSATU? They include the following:
- a lack of Personal Protective Equipment for frontline workers;
- an emphasis on the failure of the public transport system;
- the undermining of collective bargaining in the public service by the state;
- the general inefficiency of the state;
- the scourge of corruption in South Africa;
- the loss of some ZAR80 billion annually through transfer pricing manipulation;
- the looting of the COVID-19 UIF TERS Fund by employers;
- mismanaged and now cash strapped or bankrupt SOE’s;
- the maximum penalty threshold which can be imposed by the Competition Commission is inadequate;
- Continued cartel conduct;
- the amendment to the Competition Act 89 of 1998 was meant to provide for directors and managers to be criminally prosecuted, but thus far there have been no prosecutions; and
- families of politicians should be barred from doing business with the state.
The issues raised by COSATU are broad and for the most part the majority of South Africans already support action to rid the state of inefficacies and corruption and seek to hold criminals within government and the private sector accountable. What is interesting to note is the emphasis on fraud in relation to TERS as well as the focus on commercial issues like transfer pricing and anti-competitive conduct. Like in other parts of the world, fraud perpetrated against the state in the provision of COVID-19 employee benefits has attracted civil and criminal liability. This is also the case in South Africa. Companies which received TERS benefits are well advised to conduct proper audits on the receipt and disbursement of benefits. Also, companies should be alive to transfer pricing manipulation and anti-competitive conduct and guard against such conduct which is not only unlawful but appears, in time, that it will also be attracting a lot more public scrutiny.
Significant about the nationwide protest called by COSATU is that this constitutes protest action in terms of section 77 of the Labour Relations Act 66 of 1995 (LRA) which section affords employees the right to engage in “protest action to promote or defend socio-economic interests of workers”. Section 77(1) of the LRA provides for procedural requirements that must be adhered to by trade unions when embarking on a protest in terms of the section. These requirements are: (i) the protest must be called by a registered trade union or federation of trade unions; (ii) the National Economic Development and Labour Council (NEDLAC) must be provided with a notice of the proposed protest stating the nature and purpose thereof; (iii) the matter giving rise to the proposed protest must then be considered by NEDLAC or an appropriate forum and (iv) the trade union must provide NEDLAC with a notice of its intention to proceed with the proposed protest action 14 days prior to the commencement of same.
Whilst the protest action was called for by COSATU, it is also endorsed by the Federation of Unions of South Africa (FEDUSA) and the National Council of Trade Unions (NACTU), which are all represented at NEDLAC. Breakaway federation SAFTU (the South African Federation of Trade Unions) is not part of NEDLAC, but will also participate in the 7 October 2020 stayaway. COSATU and SAFTU make strange bedfellows for a number of historic reasons.
As the protest action is authorised in terms of section 77(2) of the LRA, persons who engage in the protest action are afforded protection under the LRA, including the protection against dismissal for participating in the protest action.
The procedural requirements set out in section 77(1) of the LRA must be complied with and the courts take a dim view on trade unions who fail to do so. In the recent Labour Court judgment of Business Unity SA v Congress of South African Trade Unions & others (2020) 41 ILJ 174 (LC), a nationwide protest was called by COSATU and other trade unions against a draft Employment Standards Bill. Business Unity SA obtained an interdict in the Labour Court against the proposed protest action on the basis that the respective trade unions had not complied with the procedural requirements of the LRA. COSATU argued that the right to protest is a manifestation of the right to strike.
The Labour Court disagreed with COSATU and emphasised that there is a clear distinction between the right to strike and the right to protest action. Hence, the LRA provides for different procedural requirements for the right to protest and the right to strike. This distinction is one which finds support in international law where a differentiation is made between industrial action underpinning the collective bargaining process and a work stoppage for “political” purposes (such as the broad socio-economic interests of workers).
The practical effect of the nationwide protest action on employers is that their workforce may participate in the protest action or employees may be unable to attend work due to the non-availability of public transport.
All this at a time where many businesses have only recently recommenced operations after the national state of disaster was announced in March 2020 and which continues. Businesses are therefore in a precarious position as they cannot prevent employees from participating in the protest action but also cannot afford to have their employees away from work whilst seeking to at least recover some of the financial losses suffered as a result of the pandemic.
The law establishes that the purpose of informing NEDLAC of the proposed protest is to allow for government, labour, business and community organisations to cooperate, through problem-solving and negotiation on economic, labour and development issues as well as related challenges facing the country. Only time will tell what impact this stay away will have on the course of history, as the country must navigate through the continued uncertainty of COVID-19 as well as the already failing economy which South Africa was faced with before the pandemic, all against the backdrop of a global recession.
Does trading under the African Continental Free Trade Agreement (ACFTA), which becomes operational in January 2020, at least create a green shoot which COSATU should be focussing on like many innovative businesses? Will the ACFTA bring the necessary economic growth?