Parliament has recently voted to structurally limit workers’ right to strike, while the latest Quarterly Labour Force Survey shows that 8,434 million (60.8%) of workers have their salaries determined by their bosses without any negotiations. The experiences of workers at Heineken Sedibeng illustrate how labour broker workers are excluded from collective bargaining and that going on a protected strike is already very difficult. Especially for precarious workers employed through labour brokers or as casual employees.

A Labour Court order by Judge Andre van Niekerk dated 4 September 2018 interdicted any kind of strike until 25 October 2018. The order declares any and all strike action unlawful, without making it conditional on specific procedural or substantive issues. Essentially, the judge removed the right to strike altogether. This is part of a tendency in South Africa’s labour courts, which coupled with Parliament’s attack on the right to strike raises the question: What does this mean for the state of South Africa’s constitutional democracy and the constitutional right to strike?

Precarious workers face enormous legal and technical obstacles when they engage formal institutions that govern South Africa’s industrial relations. The Commission for Conciliation, Mediation and Arbitration (CCMA), bargaining councils and the labour courts are supposed to make the process of seeking workplace justice accessible and fair. However, lawyers and legalistic documents increasingly dominate negotiation and dispute processes. Especially big companies with ample resources are able to remove the engagement process completely from vulnerable workers who might not even be able to afford transport to any of these institutions.

At Heineken Sedibeng, workers are employed by Imperial Managed Solutions (a division of Imperial Logistics) and LSC Masakhe (member of Imperial Logistics). Workers attempted to negotiate working conditions at Sedibeng with Heineken directly but the Dutch beer brewer refused, while Imperial responded to the demands of the workers by saying they are bound by their contractual agreement with Heineken.

Due to this triangular employment relationship, workers have no formal negotiating power to address workplace issues. On top of this systematic exclusion, Imperial simply refuses to recognise the Heineken Workers Council as a legitimate body representing the interests of employees.

The present Food and Allied Workers Union (FAWU) never represented the interests of the labour broker workers so they resigned from the union and formed their own council, which they called the Heineken Workers Council. The Casual Workers Advice Office has assisted the workers in accessing and understanding institutional processes to access their rights.

The main struggle of workers at Heineken Sedibeng Breweries is that the bottle sorters, over packers, forklift drivers and bottle crushers want to be employed directly by the giant Dutch beer brewer. They argue that Imperial is a labour broker whereas Imperial claims to be a third-party service provider.

This dispute is in process at the CCMA where workers aim to access deeming and equalisation rights under section 198A of the Labour Relations Act (LRA) amendment of 2014. This section of the LRA determines that certain sections of the working class who work for temporary employment services (usually referred to as labour brokers) have to be made permanent with the client company after three months.

Workers have expressed their frustrations with Imperial to Heineken. They sent Heineken a petition with the message that they don’t want to work for Imperial any more. The Heineken Workers Council also referred a dispute of mutual interest with the national bargaining council for road freight and logistics industry. Their demands included wage increases, reinstatement of dismissed worker leaders and consistent work for casual bottle sorters and over packers under better conditions.

However, at the Bargaining Council only disputes over non-substantive issues (like shifts and incentives) are considered legitimate demands of mutual interest that enable workers access to their right to strike. Substantial issues such as wages are negotiated at sector level between employers and unions. As a result, workers who do not participate in the decision-making about their working conditions, because they are not members of these unions, are still subjected to these collective agreements. In the end, the workers at Heineken Sedibeng received a strike certificate in relation to their demand for a shelter for sorters and packers who work outside.

Bottle sorters and over packers work outside in 12-hour shifts. They want a shelter because sorting bottles outside in day and night shifts exposes them to Johannesburg’s harsh climate conditions including thunderstorms, cold nights and hot days. The physically exhausting work has a bad impact on workers’ health. Women workers experience abnormal menstruation cycles with periods of non-stop or irregular bleeding. Other common ailments are back and shoulder pains or constant headaches.

“If you want to lose weight, go there [bottle sorting]”. Under these conditions, a shelter seems the least an employer could provide.

When Imperial received the workers’ strike notice saying they would start their strike in 48 hours, the company immediately applied for an interdict at the Labour Court. Affording the assistance of a top law firm, Imperial argued the workers’ strike notice was defective and that the workers have no legitimate demands because in the meantime Heineken provided a shelter for the bottle sorters. Workers describe this shelter as a “party tent” that cannot be used during night shifts, only accommodates a few sorters and in fact makes the sorting conditions worse as there is no temperature regulation or light.

On Tuesday 18 September the workers went to the Labour Court to tell their side of the story and reclaim the right to strike. Lawyers associated with the Casual Workers’ Advice Office represented their case because the process and vocabulary required to engage meaningfully in these spaces requires expert support often inaccessible to the working class.

Therefore, the experiences of the Heineken Workers Council are one example of workers’ systematic difficulties in navigating the industrial labour relations institutional framework governed by the state, employers and trade unions. It shows how the current balance of powers can reduce everyday abusive power relations to a legal dispute over a tent. DM

Dr Femke Brandt is a postdoctoral fellow at the University of Johannesburg. She provides research support to the #BigNewRights Campaign of the Casual Workers Advice Office and the Simunye Workers Forum.