Volume 9, No.4 - October 2000

United and Strong

WORKER NEWS

 

By Anna Weekes, (SAMWU Media Spokesperson)

In a landmark judgement the Labour Court has ruled that the enticement of workers to commit a crime is unfair. This could mean that all evidence gained through 'entrapment' will become legally inadmissible,

"Employers all over the country are pursuing dismissals on disciplinary grounds, especially entrapment, as a way to downsize and avoid retrenchment negotiations and paying out retrenchment packages," said SAMWU General Secretary Roger Ronnie.

He slated this "disgusting way of further reducing workforces", and said council managers refused to tighten up stock control measures yet were prepared to spend tens of thousands on hiring investigators and installing surveillance equipment in municipalities.

SAMWU waged a two-year legal battle to secure the reinstatement of two members dismissed on the basis of secretly filmed video evidence by two private investigators employed by Cape Town City Council.

The investigators, from the SA Management company, used false names and pestered the two workers relentlessly to provide electric cable for "charity work" they were involved in. After relenting, the workers were paid a sum of R300. The transaction was filmed by a video camera hidden on one of the investigators.

The two workers had unblemished records and 20 years of service. SAMWU finds it reprehensible that the council exploited the emotions and economic circumstances of its employees in enticing them to commit offences they would not otherwise have committed.

The Labour Court judge, AJ Stelzner, ruled that in terms of provisions of Section 252A of the Criminal Procedures Act, which deals with the admissibility of evidence obtained through entrapment, the council had acted in an improper and unfair manner.

He took the council to task over the manner in which the private investigators were appointed, saying that the council could be liable for prosecution for incitement. The judge also said that the mandate the council gave to this company may have led to crimes being committed by the investigators which could now also render the council open to prosecution.

In a dramatic twist, it was revealed during the case that the council had completely lost control of the investigators, who extorted more money out of the council after claiming they had paid the workers far more than R300. The judgement said the investigators were "clearly themselves guilty of an offence" and that they were "additionally dishonest in enriching themselves at the expense of the council".

SAMWU is currently challenging similar dismissals of over 40 members in the CCMA. Their cases had been held in abeyance while awaiting an authoritative ruling from the Labour Court on this test case. "From the outset," said Roger Ronnie, "we must indicate that the union in no way condones the theft of council property.

We have consistently called on our members to desist from involving themselves in matters of this nature. What we have a major problem with are the methods employed by the council in addressing the loss of council property.

" SAMWU believes that entrapment is nothing but random targeting of persons with no indication that they were engaged in wrongful activities. The union has always argued, and this is supported in the judgement, that the council did not do enough to prevent the loss of property by other means. Rather than randomly picking on workers, they should be reviewing their stock control systems.

The two workers, dismissed in April 1997, have now finally been re-instated. SAMWU is now demanding that the City Council immediately re-instate all other workers similarly dismissed. They have wasted enough of the city's money already on underhand surveillance measures and high-cost lawyers over the past two years.

Cape Town City Council has dismissed over 40 workers on entrapment charges, between November 1996 and November 1997. 15 of them met in the SAMWU Cape Metro branch offices a few days after the successful Labour Court judgement.

The mood was positive and comrades were hopeful that all their dismissals would be overturned now that there was a legal precedent against entrapment.But they also told stories of three years of pain, suffering and even imprisonment.

These are some of the workers' tories

"The family life of all these comrades has been busted," said shop steward Kevin April. "We went through hell - I wouldn't wish this on my worst enemy," said another comrade.

One of the 40 is definitely in jail, forced into a life of petty crime after losing everything he ever had when he was dismissed. The others still need to be located as they have either lost their jobs or have gone back to their rural. Some are living on the streets as homeless people.

Mr Dollie, who is 57 years old, says: "I am glad now that I have my dignity back. I lost my house. I still live in it but I am now a rent-paying boarder there. I want payment also for the stress I suffered. That compensation must have a lot of 000's! I drink now - I never drank before."

He says he will take his compensation for his retirement as he lost a lot of his pension money when he was dismissed.The council took 25% off all the pensions, telling the workers that you lose 25% if you are dismissed for stealing. One comrade who had worked 17 years was only paid out R28 000 from his pension. That money has long been used up on day-to-day survival.

Anthony Daniels knows he would have been promoted higher in the council if this hadn't happened. "I lost everything - my wife and kids and house. Now I've been in jail. This would never have happened if I was still working for the council. I've even lost my self-respect. The employer doesn't understand what they did to us. It was wrong because even the chairman who dismissed me was afterwards dismissed for stealing!"

What makes these cases much worse is that the City of Cape Town is targeting lower paid, blue-collar workers. Kenny Fortune says: "The council does nothing to the white collar workers who commit fraud using pen and paper on a massive scale and then go on to get big golden handshakes.

" Abubakar Brazer described the humiliation of having to scrape together leftover fish guts from the market to feed his children. "I also lost my house and my kids really suffered. I lost all my policies. I live now in a 'hok'. My former neighbours look upon me as a skelm. I really want the council to suffer for what they did to me.

" Keith Mitchell was working for the council for 17 years when he was dismissed. "I almost lost my wife but she was understanding and supported me. But when I applied for other jobs and they found out I had been fired for stealing, a blank look came over the interviewers' faces. They kept saying they would get back to me but they never did.

"It was so hard that I started work as a casual security guard. To make ends meet I worked night shift and day shift and all the holidays. I never saw my kids at Christmas. I was so lucky that my wife got a job with a housing subsidy, otherwise I would have lost my house. What I have lost is respect. My wider family rejected me, whereas I used to be a respected guy. I suppose I am lucky now that I have a driver's job, but the pay is much worse than my council job.

" Gavin Winnaar says: "The council never took the workers' situation to their hearts. They wanted to downsize the workforce. They just picked on any of us, especially those with long service, so they wouldn't have to fight the union and pay out big retrenchment packages. Just after we were dismissed, other workers took packages. We are the assets of the council but they didn't see it that way.

" Jonathan Forward says: "I was at home after my dismissal and a truck came along suddenly to take away my furniture and evict me. I begged the bank for two weeks extra but I couldn't come up with enough money to keep my house. I now live in a gang infested area. Every day when I leave I hear gunshots and when I return home I hear more gunshots.

"I pay R600 for a place where the walls aren't even plastered. I was so demoralised, I started drinking. My wife also lost her job and she was fed up with me. Both of us were sitting at home all day for two years and three months.

"Luckily, we both found some kind of work. But because our house was repossessed we can't buy another.

" Mr Beukes, 67 years old, says he was the very first, along with Cde Dollie, to be dismissed. "This entrapment really did hurt. I worked for so many years in the community as a respected person, doing charity work, soccer coaching and refereeing. But since I was labelled a thief, I tried to avoid my community work out of shame. For the past three years I just stepped aside from all my activities.

"I even used to mediate between the gangsters and the community. All this stopped. I can't believe the council would go out of their way to break a person down like this. I suffered 18 months of extreme stress until I went to a doctor. That helped a bit but the pain was still there in the back of my mind.

"I had 33 years of service with the council and begged them for leniency but to no avail." Because he is a religious man, he believes that at the end of the day if you make a hole for someone else to fall into, you will fall into it yourself one day. That is what will happen to council bosses, although he says that because he is a religious man, he forgives them for what they have done.

Colin Hendricks says he wants to thank God for the court ruling. "Also, I want to thank my wife, kids, the shop stewards and the union for all the support over the past three years. I had so many painful, sleepless nights. The council thought they saw the last of us but they didn't count on the man above," he said.

Mr Paulse is still shocked the council could do such a thing to human beings. "I'm still unemployed and my family life has never been the same. I pleaded with the council for my job. If it wasn't for my wife I would have been homeless by now. I'm still in big debt with my rates. I hope the council learns something from this labour court ruling!

" Eugene Jackson is the unluckiest of all. "The moment my wife heard I was charged with theft, she filed for divorce. The day after the divorce came through, I was dismissed. Not even seven months later, I lost my house. My ex-wife then brought a case for maintenance. All this time I was looking desperately for another job but with no luck.

"The judge in the maintenance case said it was clear I was lazy and did not want work. I got one year in jail. I was only out of prison for one year and I got a jail term for nine months. I got a contract job 300 km away for four months and I gave that R9000 to my wife and kids. That work is finished and I'm sitting with nothing. I want re-instatement and also to be paid out for all that happened to me.

" Jacob Goliath thanks the Moslem community for all their help and prayers. He now has a casual job that pays only R350 per week. He needs to pay R1200 for his house, which leaves only R200 for food, clothes, school fees and everything else. "I thank my wife who stood with me and the union which fought for us and didn't throw us away." He urged the other comrades to stick together and face the future. The stress of this case didn't only affect the dismissed workers. A few shop stewards also suffered from slight strokes and mild heart attacks. "There were many times when council bosses threatened me over the phone," said Leon Johannes.

All comrades agree that the demand for compensation must include a calculation of what position they would have had by now if this had not happened. They have all agreed the council must formally apologise. "An apology will not give us back our families and our houses but it will clear our names, and we will no longer be labelled as thieves," said the comrades unanimously.

 

 

By Charley Lewis, COSATU Information Technology Unit

In response to the rapid spread of information and communications technologies - the supposed emergence of an 'Information Society' - business management either dismisses trade unions as irrelevant or is actively hostile towards our right to be involved in this new economic world.

It is essential for both business and government to recognise the key role unions have to play as legitimate stakeholders in this area. Our members are the call centre agents or the java programmers, whose labour power drives the information revolution. Our members are the shop assistants and cashiers whose jobs are being changed forever by the e-commerce revolution.

But don't expect our interests and viewpoints to coincide with theirs. Unlike business, our core function is not to make profits, but to advance the needs and protect the rights of our members, to deal with wages, working conditions, jobs, benefits and skills. Our role is different from theirs but just as legitimate.

It is essential that unions recognise and engage with the realities of the emerging e-commerce information economy. We can either make a last stand, spanners raised, as the digital avalanche engulfs us - or we can engage actively, strategically, politically and organisationally with the unfolding changes.

Unions and their structures, in South Africa and internationally, are already active in this regard. Witness the online rights campaign of Union Network International (UNI) - (see www.union-network.org) and the role of the ICFTU (see www.icftu.org).

COSATU too, through its Information Technology Unit, has been part of the ICT Foresight Project, the SA IT Industry Strategy (see www.saitis.co.za), and the Department of Communications' Electronic Commerce policy process (see http://www.ecomm-debate.co.za/docs/discuss-contents.html).

Job losses and job creation

The evidence available suggests that overall e-commerce will result in job losses through the process often described as "creative destruction". New technologies take away jobs in traditional sectors of the economy, while creating jobs in new economic sectors. The impact is likely to affect process intermediaries - clerks, salespeople etc - the most and to impact hardest on the industrial sectors of the economy.

New jobs tend to be created only after some time and more old jobs are usually lost than new ones created. Given these trends, unions need to respond both defensively, to save existing employment, and proactively with regard to future trends. This should include measures to:

Skills Development

E-commerce forms a major component of the new, high-skill information economy. One of the structural features of this new economy is the "skills gap" - high numbers of unemployed workers with very limited sets of skills, alongside many persistent vacancies at the upper end of the skills spectrum.

For many historical reasons, most COSATU members (indeed most South Africans) lack the necessary skills for employment in these new sectors. We should therefore ensure that:

Labour Standards

E-commerce makes it easier for employers to outsource or casualise. This leads to a shrinking core of permanent, quality jobs and the creation of poorly paid jobs and marginalised, contingent and insecure workers, (including tele-workers, tele-commuters and home-workers), without proper benefits or protections. Unions therefore need to call for:

Access

On the one hand there is a danger that e-commerce will simply add a digital divide to the existing social deficit in our society. On the other, access to information and communications technology infrastructure holds benefits useful to unions. We should therefore:

Equity

Access to the information society remains strongly skewed in terms of gender, race and disability. We should demand measures to promote equity and redress historical imbalances, from the workplace to the whole of society.

Taxation

The OECD strongly supports e-commerce transactions remaining untaxed. Through the World Trade Organisation there is a moratorium on such taxation, which legislation currently before the US Senate seeks to reinforce. We should:

Intellectual Property Rights

There is strong pressure from business and the OECD to strengthen intellectual property rights in favour of companies and the developed world. COSATU should therefore call for:

Consumer Protection

We need to ensure our members enjoy proper protections under an information economy, both as citizens and as workers. We therefore need to call for:

Unionisation

Unions must develop a strategic and proactive approach around the transition to a new information economy. But further research is necessary, together with the development of new collective bargaining, organising, education and membership service strategies appropriate to the changing conditions of the information economy.

Further Information

Unions internationally have not yet developed much in the way of strong policy interventions on e-commerce. An initial selection of useful documents is:

  1. The Question Marks: Privacy, Regulation and Jobs - Marc Belanger, PSI http://world-psi.org/english/focus/articles/oecde-commerce.html
  2. Electronic Commerce: Developments and Challenges - Roland Schneider, TUAC http://www.tuac.org/statement/communiq/eleccomm.htm
  3. Submission by the OECD Committee for Consumer Policy to the Ottawa OECD E-commerce Conference http://www.ottawaoecdconference.org/english/announcements/e_tuac.pdf
  4. Notes from OECD E-commerce Conference in Ottawa - James Love, CPT http://www.netnexus.org/mail_archive/global/0078.html
  5. Speech - Philip Jennings, FIET General Secretary, 12 October 1999

 

 

Trade unions, employers and government have been locked in dispute at Nedlac about pension fund surpluses. The Shopsteward asked Jan Mahlangu, COSATU's Retirement Funds Policy Co-ordinator, to answer a worker's questions about these funds and gives the federation's view on the argument.

What happens to the money deducted from my wages for the pension or provident fund?

It gets paid into the account of your fund. Its trustees then have to appoint a fund manager, normally a professional administrator, recognized by the Financial Services Board. He/she has to invest it, in accordance with the terms of Regulation 28 of the Pension Fund Act, so that it generates the maximum interest.

However, we are in the process of discussing the terms of Regulation 28 because in our view it does take into account investment areas where is need most. e.g. job creation, infrastructural development.

Who controls where the funds are invested - the unions or the bosses?

Neither unions nor bosses. Only the trustees are responsible for all the activities of the fund. That's why COSATU has establish a trustee training programme which will empower trade union trustees to deal with these complex matters in the best interests of members.

When do I get my money back and how much do I get?

Let me explain 'my money' first. Your money is normally in your bank account and you can withdraw it any time. However, in pension/provident funds, 'your money' is in the form of retirement fund benefits. You can only receive these benefits in the following circumstances:

(a) On your retirement

(b) If you die, when it goes to your beneficiaries

(c) If you are retrenched

(d) If you resign or are dismissed.

Normally under (d), a certain portion of the employer's contribution will remain in the fund. For example, if your years of service with that employer are less than five years you will get 100% of your contributions, plus interest, plus two thirds of your employer's contributions, plus interest thereon. The remaining third remains in the fund. However, we are in the process of discussing whether or not members should be allowed to get their benefits before reaching retirement age as stipulated by the Act.

We have to also discuss one of the shortcomings in the Pension Fund Act, which is that there's no compulsory provision in South Africa. In other words employers and workers are not compelled to make retirement funds provision. In the commercial, catering and other sectors that employ permanent casual workers with no benefits at all, on retirement these workers will become a burden to the state.

As I have said, we cannot discuss a compulsory provision without addressing a compulsory preservation. Again, compulsory preservation without a solid social security system will not work. So, We have a difficult challenge ahead of us.

Am I guaranteed a certain amount regardless of how well the fund performs?

If the fund makes a surplus, do I get a bigger pension? You are guaranteed a benefit only if your fund is a "defined-benefit fund". With these, even if the market performs badly, you are guaranteed a benefit, based on your age, years of service and salary. The employer carries the risk. But if your fund is a "defined-contribution fund", you are entitled to the actual contributions made to the fund during your period of service, plus the actual returns on the investment. You, the member, carry the risk.

If the investments have been good, you benefit and not the employer, but if not, it is you who suffer. Also in defined-contribution funds, trustees can keep a certain portion of the investment returns, in order to level the amount of bonuses paid each year, as opposed to giving, say, 15% this year and 2% next year.

This means that they might still be able to declare a bonus in the event of stock market crash, as in August 1998. This is a smooth bonus approach!

Many employers have switched from defined-benefit to defined-contributions funds. One of the issues that we will be discussing during this three-year programme is a clear understanding of how pensions and provident funds work and what's the difference. This will allow our members to take informed decision, because it is not entirely true that defined contribution funds are best, compared to define benefit funds.

What happens to me if the fund goes bankrupt?

The trustees of that fund will owe members of that fund some explanation, because in terms of the Pension Fund Act, they are expected to take great care in managing the assets of the fund. If the fund was mismanaged, members can lodge a complaint with the Pension Funds Adjudicator's office and they can also sue them in their individual capacity.

Where are the funds invested - shares, government bonds, RDP projects?

Normally the bigger chunk is invested in equities (shares) and a certain portion in government bonds. Fund managers have invested very little in RDP projects. This is one area we need to address seriously in our three-year programme. We are still far from controlling our assets.

Where does COSATU think the funds should be invested? What is this idea of Reconstruction Bonds?

COSATU's view has been that at least 10% of the whole retirement fund and the insurance industry must be invested in prescribed asset investment. We need to campaign to see that this policy is implemented.

What happens to any surpluses in the funds, after all benefits have been paid out, and why are the unions and employers arguing about this?

At the moment there is an estimated R100bn surplus in the funds. COSATU is arguing that this surplus is made up of investment reserves that should have been part of transfer and retrenchment payments made when fund members transferred to new funds or were retrenched. COSATU believes this money belongs to the members of the fund.

Under normal situations, if there is a surplus, trustees are supposed to increase pensioners' pensions and enhance other member's benefits. But, for example, in the case of a fund where there was a surplus and the employer dismissed the whole workforce, the directors could raid that fund and give themselves huge bonuses at the expense of the workers.

What changes in the Pension Funds Act would COSATU like to see?

There are a number of changes that we would like to see, for example compulsory provision of pensions for all employees and compulsory preservation of pension rights.

But the main one concerns the surpluses. At present there's no law in South Africa that states unambiguously as to who owns these. That's a major flaw. We want the law to be retrospective, back to the eighties when most of the transfers from pension funds to provident funds were carried out. This money was meant for retirement. We won't agree with any suggestion that the past should be forgotten. For most of our members, their only savings are through their retirement funds.

The employers say that the stock market will crash if they have to pay out this money but there is no scientific basis for this.

More probable is that if employers get off the hook they will do what some have done already - take surpluses offshore or arrange schemes that benefit senior management.

Why does Cosatu want to impose a moratorium?

COSATU wants all parties to negotiate in good faith. If there's no moratorium, employers will continue to raid all these pension fund surpluses so that by the time negotiations are over and the law is changed there'll be nothing left.

How are the talks about this at Nedlac going?

In the last four meetings that I have attended, Business South Africa (BSA) has been completely unwilling to negotiate, making a lot of unsubstantiated claims that should the Act be retrospective it is going to cause a major negative impact on the stock market and that it is going to discourage foreign investors.

They also say that the records needed to rectify the past are no longer available. But we reject that. Of course the records are there. Labour and government have agreed that the past transfers were incorrect and that members were entitled to their fair return when a fund changes from a defined-benefit fund into a defined-contribution fund, on retrenchment or when pension are outsourced. But BSA is not prepared to remedy the past. They want us forget about these surpluses and only talk about the future!

If you would like more information, please contact Jan Mahlangu Policy Unit, COSATU 1-5 Leyds Street Braamfontein, 2001 Or P.O.Box 1019 Johannesburg, 2000 Tel: (+27 11) 339-4911/24 Fax: (+27 11) 339-5080/6940 Email: mahlangu@cosatu.org.za

 

 

The South African Municipal Workers Union (SAMWU) and the Rural Development Services Network (RDSN) are intensifying their campaign for 50 litres of free water per person per day.

The campaign has two objectives:

To stop amendments to the Water Services Act from being passed by Cabinet in October 2000.

To popularise the demands made by rural communities, trade unions and NGOs at a "Water for All" workshop earlier this year.

All the organisations resolved to "reject privatisation in all its forms" and campaign for, "a free lifeline supply of 50 litres of water per person per day".

RDSN's research proved what we already know - that current levels of poverty mean many South Africans simply cannot afford to pay for water. The research concludes that a lifeline supply must be available free of charge to all citizens. 50 litres is the minimum amount of water necessary to maintain basic health.

SAMWU and the RDSN want to see the Minister of Water Affairs, Ronnie Kasrils, coming up with a national cross-subsidisation system, where free water to the poor can be subsidised by the rich.

We want government to move away from spending R30 billion on weapons and R48 billion per year on paying back the apartheid debt. This money should be building pipelines and other infrastructure and giving everyone a free lifeline of water as a human right.

Unfortunately the government's GEAR policy means the opposite is going to happen. Water, like health, electricity, housing and education, will only be available to those who can afford to pay dearly for it.

This is why government has decided to amend the Water Services Act, 1997, which contained some progressive elements. Clauses 19(2) and 19(3) placed the public sector at the forefront of water service delivery. They said that before water could be privatised, all known public alternatives must have been investigated and found to be impossible options. This made it difficult for the private sector to get water contracts.

Recently Minister Kasrils decided the act was "anti-business", that the private sector was in a good position to deliver water and that water would need to be delivered on the basis of full cost recovery. You don't get water if you can't pay whatever price the private company feels like charging!

The union is also unsure how privatisation of water will fit in with President Thabo Mbeki's surprise announcement at the COSATU Congress that all families would get 6000 litres of water free per month. "It is a major step in the right direction," SAMWU General Secretary Roger Ronnie said, adding that "it provides a platform from which we can now look at the provision of other essential services, such as electricity, sewerage and drainage.

" But this free 25 litres per person per day in a family of eight, will not automatically be delivered, especially in places where there is no infrastructure. Therefore the union remains concerned, especially about our rural comrades.

SAMWU feels that rural poor communities have had enough of subsidising the rich with their swimming pools, who pay very little for the 50 000 or more litres of water they use every month. Every day we read about communities marching on council offices after being cut off from water and other services.

This was highlighted at the recent Anti-Privatisation Summit in Jo'burg. Communities from Katlehong, Soweto and other places talked about being disconnected. They told the summit about "hit squads" of private security companies who break down the doors of those who cannot afford to pay for services and throw the little furniture they have out onto the street.

They told the summit that Katlehong residents had been forced to erect barricades in the street to keep the hit squads out. As one councillor said at the anti-privatisation summit, unless workers start taking up their community struggles more actively we will find ourselves in a situation where communities say to us when we leave for work in the morning:

"Don't come back home tonight if you do not support those of us who are left behind each day. Will we then sleep at the union offices with our families?" the councillor asked.

No comrades, that will not be possible. As workers we are part of the communities and our families remain in the rural areas sharing water with cattle. We must all support the campaign for free services. Amanzi kuwonke wonke!

In 1997 a collective of labour service organisations carried out a radio pilot project - Workers World. 12 weekly 30-minute slots on a community radio station, Bush Radio, focussed on issues relevant to workers and the labour movement.

After the pilot project, the participants agreed to set up a semi-independent radio production project, based on our successful execution of the pilot project and the obvious need for radio productions focusing on labour issues.

After a feasibility study and preparatory work, COSATU, FEDUSA and NACTU, along with three labour service organisations - the Trade Union Library and Education Centre (TULEC), the Industrial Health Research Croup (IHRG) and the International Labour Resources and Information Group (ILRIG) - agreed to set up Workers World Radio Productions.

Why Workers World Radio Productions?

The profile of the labour movement and labour issues has declined since the mid-nineties. Most media references to trade union activities are negative, portraying them as harmful to investment prospects and economic growth.

This is despite the positive contribution the labour movement and workers made in the anti-apartheid struggle and still make today in transforming South Africa. We are still the largest, most organised and well-resourced grouping within civil society.

Radio, as the most accessible and popular medium, can play a vital role in strengthening the democratic process in South Africa and the effectiveness of the trade unions.

The project will produce programmes to inform, educate and uplift the cultural levels of the working people of South Africa, giving the trade unions access to the airwaves and, especially, enabling ordinary workers to express their views in quality productions and enhance their democratic role within civil society.

These productions will also:

Programmes will be balanced and respect universally accepted media ethics. The project also aims to ensure that trade unionists (members, shop stewards and officials) are trained in the use and appreciation of radio.

What will WWRP produce?

Based on the experience of the pilot project, the WWRP will produce mainly:

Potential projects with trade unions, federations and radio stations:

Trade unionists are also encouraged to inform us of any important issues and developments they want to be broadcast.