Tinkering with the law will not prevent strikes by Steven Friedman, 18 June 2014, 05:20 IT WAS perhaps inevitable that mining’s longest strike would prompt some to insist that the freedom they demand for themselves should be denied to strikers. And so it is no surprise that we are again being told that the law is a solution to problems that it cannot fix. In the last days of the platinum strike, Mineral Resources Minister Ngoako Ramatlhodi warned that he would support a change to the law that would make it possible for the government to intervene in work stoppages. The South African Chamber of Commerce and Industry (Sacci) urged a law that would place a time limit on strikes (oddly, it insisted that it wanted to negotiate this with trade unions — it did not say why it thought they would agree to accept the restriction). Both seem to think that workers are the only culprits in strikes. This ignores the obvious point that it takes two to make a fight. Strikes happen — and continue — when the relationship between employers and workers breaks down. What, besides prejudice, assumes that the fault is always that of workers and unions? Nor is it clear why union members should have their freedoms removed while others retain theirs. Business lobbyists who want strikes curbed are usually vocal in their opposition to curbs on business. To demand freedom for one interest while denying it to another is to discredit freedom. But a key problem with these calls is their faith in the law’s power to force workers not to strike — or to do so for shorter periods. The evidence suggests otherwise. Until the 1980s, strikes by black workers were illegal — and yet workers repeatedly went on strike. In the past few years, the fact that some government functions are an essential service in which workers are not meant to strike has not prevented strikes. In other countries, too, workers have tended to defy prohibitions on strikes. If the curbs succeed at all, it is only because the police or the army are enabled to use huge force to control strikers: the only way in which the restriction might work is if we are open to another Marikana. And even then, strikes might not be curbed: the Marikana shootings did not get the strikers back to work. Ramatlhodi and Sacci are not the only ones who believe that the solution to strikes is changing the law: many voices are trying to convince us that all we need to do to ensure labour peace is to change laws. As we may be headed for a difficult bargaining round this year, it seems likely that we will hear more voices insisting that we can change the law to fix the problem. Some proposals for change are simply attempts to curb worker and union rights. Others are motivated by a genuine wish to improve bargaining. Some of these suggestions make sense in principle. Unions should, for example, hold strike ballots before they down tools (although it appears there are, in fact, rules that should make strike ballots routine: unions are meant to include a clause in their constitution providing for strike ballots if they want to register with the government and so, where ballots are not held, unions could be ignoring their own rules). Some of the other changes suggested by labour lawyers are reasonable contributions to the debate on how to improve the law. But most of these changes would also cause new conflict because they are sure to be resisted by unions. That might not matter if we accept the claim usually made by those who argue for such changes — that they will reduce strikes: a labour lawyer recently claimed that changing one clause in one law would bring peace to the workplace. This is, however, a costly illusion. It is an illusion because, if curbing strikes doesn’t change what happens in workplaces, neither does tinkering with the law. Those who wish to tinker assume that workers and unions will act in the way the law tells them to — but if they feel that the law does not work for them, they are likely to ignore it or bypass it. The law does less to influence behaviour than the tinkerers claim: strike ballots are again an example. They may be fairer in principle. But, if workers do not want to strike, they won’t and so whether a vote is taken makes much less difference than we are told. The illusion is costly because it diverts our attention from the problems that cause lengthy or violent strikes. As previous columns have pointed out, conflict in the workplace happens not because the law allows or encourages it, but because factors rooted in our past ensure that relations between workers and employers are often no less hostile than they were 20 years ago. If we want fewer strikes, we need to examine why this is so and what can be done to change it. The more we are told that the problem can be solved by tweaking the law, the more we are likely to be distracted from tackling the real problems. • Friedman is director of the Centre for the Study of Democracy.
Posted on: Thu, 19 Jun 2014 09:49:19 +0000
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