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 CWAO annual report 2016






This report covers the activities of the CWAO for the period1 January to 31 December, 2016. Attached to the report in a link is an audited financial statement for the period.


1. Context

The political context in South Africa is dominated by the on-going fall into factionalism and dysfunction of the governing African National Congress (ANC). Splits, combinations and factions are based entirely on advantageous positioning to better loot the state, rather than any political or programmatic differences. A related feature of this malaise, of cronyism, is leading to the collapse of the state at all levels, increasingly unable to perform its most essential function, of reproducing society on a daily basis by producing basic services and goods for its citizens. When this collapse is tied to the ANC’s long term conservative economic policy, of creating a framework that privileges profit maximization over social development, the effect on the dominated social classes is devastating.


The ANC’s disintegration has been mirrored on the parliamentary terrain by the increased popularity of the equally conservative Democratic Alliance (DA) and, at its polar opposite, the Economic Freedom Fighters (EFF). This is reflected in the gains both parties made in the 2016 local government elections, with the middle classes generally deserting to the DA and the working class to the EFF, although the DA did manage some gains even in black working class areas. Barring dramatic new developments, such as a split from the ANC and a realignment including ANC splitters, top EFF and possibly even UDM leaders, these two parties will most likely emerge as the main beneficiaries of the ANC’s collapse come the 2019 national general elections.


On the extra-parliamentary terrain, there have been contradictory developments. 2016 witnessed a significant increase in community struggles, with a noticeable growth in struggles in rural areas. However, it appears that these struggles are becoming even more localized than before. More struggles are not translating into stronger struggles; quite the opposite. The most marked absence is centralizing and co-ordination of these struggles, and it reflects the difficulty of building sustainable organisations in a period of generalised atomization and fragmention of whole communities. The weakening of civil society has negatively influenced all the different sites of struggle and contestation, including the CWAO constituency.


The promising national student struggle that characterized the end of 2015 has virtually disappeared, ebbing away into localized, institution-specific, sporadic struggles instead. Students, through their easy concentration on campuses and in schools, have a long history of galvanizing struggle, in South Africa and globally. The collapse of the 2015 wave of struggles is thus a loss for the whole of civil society.


The labour movement continues to implode, with more unions leaving the leading trade union federation, the Congress of South African Trade Unions (Cosatu).  The remaining, ANC-supporting affiliates have themselves now divided into opposing camps, suggesting even further division and paralysis in the organisation. While there has been no discernible rise or dip in the number of strikes in the period 2005 – 2015, two important trends have emerged over the past few years. One is that the number of unprocedural strikes is outstripping procedural ones. In 2015, 55% of strikes were unprocedural. This suggests that workers are increasingly acting outside of their trade unions or without union sanction. Secondly, the number of non-unionised workers participating in strike action is also growing. As one academic paper noted:

“Whereas between 2005 and 2008, non-unionized workers accounted for an annual average of 16,396 working days lost due to strikes, between 2009 and 2012 the annual average increased to 116,255 (South Africa Department of Labour 2013). While this is still a relatively small proportion of total working days lost, the more than sevenfold increase nonetheless represents an important minority tendency.” (Paret & Runciman, 2016.)


The collapse of the labour movement is partly the result of and further fuels a concerted employer profit maximization drive, of which a critical element is an assault on worker rights. This assault has taken the form of greater mechanization, retrenchments, lower wages, longer hours of work, lowering of other conditions of work, and a generalised instability among all workers. The other side of this has been massive payouts to shareholders and huge cash piles accumulating in the bank. Companies like Pepkor, Shoprite and Pick ‘n Pay sit with cash piles of R7 billion, R5 billion and R3 billion, respectively.


These two factors combined, of an employer offensive alongside a collapsing labour movement, have created a difficult context for the CWAO’s attempt to organize labour broker and contract workers, workers with no history of being organized, with no knowledge of their rights, and who have not yet tested out their collective strength as a critical lever through which to advance their rights and interests.


2. Description of the Project/Program

The campaign for implementation of the new rights for precarious workers the CWAO launched in 2015 remains its main focus. The new rights seek to address the key demands of labour broker workers that they be employed by the client companies, with the same wages and conditions of employment as permanent workers. Workers have remained determined to access the new rights, despite long institutional delays by the bodies charged with implementation of the new rights. They have  been faced with delays and uncertainty caused by bosses’ legal challenges to the new rights, including a particularly adverse Labour Court ruling in 2015 that they now have 2 employers instead of 1. Workers are also contending with employers systematically dismissing and retrenching those agitating for their new rights.


A large number of cases first referred in 2016 and even 2015 are still winding their way through the Commission for Conciliation, Mediation & Arbitration (CCMA) and the bargaining councils. Some of the delays are caused by constant employer applications for postponement of hearings, intended to frustrate workers. Other delays are caused by simple incompetence and/or indifference of bargaining council staff, in particular. Yet others are caused by unnecessary legal complexity, of whether a particular dispute should be heard by the CCMA or by a bargaining council. LG Electronics workers have waited over a year for just this issue to be resolved. Workers have persevered despite these delays.


The notorious Brassey Labour Court 2-employer ruling of September, 2015, was contrary to all expectations, and had the potential to derail the CWAO campaign. After extensive discussion, workers decided they would not be put off by this ruling and would continue their fight to be employed only by the client companies. A sequel to this has been an attempt to overturn the ruling at the Labour Appeal Court. The CWAO was admitted as an amicus curiae, an important acknowledgment by the Court of its leading role in organising precarious workers. The LAC’s ruling is expected soon. A successful appeal will give a significant boost to the new rights campaign.


The new rights challenge the reason employers use labour brokers: cheapened labour and a convenient way to circumvent other legal protections workers have, such as safeguards around retrenchment. The new limit on the use of temporary and the compulsion to make such workers after 3 months effectively proscribe these attempts to cheapen labour. It is therefore no surprise that employers have vigorously resisted implementation of the new rights, or have implemented them in very limited ways.


In many instances, employers have agreed to comply with the law to make the labour broker workers their permanent workers, but have then simply ignored the other key provision, to treat these workers ‘no less favourably’ than its other permanent workers. This has effectively left the position of the labour broker workers unchanged. Their struggle around this other key aspect of the new rights thus remains. In several instances, employers have taken CCMA awards against them on review to the Labour Court, as a way to bypass the law and to frustrate the workers.


Much more damaging has been widespread employer victimization of workers. In 19 workplaces employers have resorted to disciplinary action, dismissal and retrenchments in response to workers demanding their new rights. Other actions have included reducing workers’ weekly working hours, thereby reducing their income, increasing production targets and, more latterly, attempts at co-option of key worker leaders. Workers have refused to be demoralized by these actions, and continue to press on with their demand for the new rights to be implemented.


However, the most significant confirmation of the necessity for the new rights campaign and its continued relevance is the on-going attendance of workers at the Simunye Workers Forum (SWF). The Forum brings workers together every fortnight to discuss their issues, compare experiences and collectively find ways forward to access their rights. The Forum’s 23 general meetings in 2016, held at the CWAO offices, attracted a total of 4105 workers (2992 men and 966 women), with an average meeting attendance of 178 workers. This is in itself a significant achievement, especially when contrasted with the difficulties other campaigns have had in sustaining organisation. The Forum has effectively been meeting every second week since 25 April, 2015. It has not postponed a single meeting, and the lowest attendance at any one meeting was 85, with the highest at 504. The big student movement, #Feesmustfall, simply disappeared by the beginning of 2016, following a path familiar to many community activists who have struggled for years now to find a way to build sustainable community organisation.


The CWAO has continued its support of workers through the provision of legal services, an educational programme, and through organisers who routinely visit participating workplaces. It has sat in on workplace negotiations at the invitation of workers and provides infrastructure support to the Simunye Workers Forum, which meets fortnightly at its premises.


The provision of legal services has proved a challenge. Progressive labour lawyers are scarce, and institutions that used to provide labour law support, such as the Legal Resources Centre, Lawyers for Human Rights and the Centre for Applied Legal Studies, while acknowledging the need again to focus on labour law because of a collapsed labour movement, all need to once more build their capacity and levels of expertise in this specialized field. The CWAO has consequently been considering the option of establishing a labour law clinic as an immediate measure to deal with the challenge.


Lastly, the advice office continues to work closely with other advice offices nationally. It delivered 2 training modules at the second Dullah Omar School and conducted worker rights training to advice offices operating in alliance with the Maokeng Advice & Research Centre in Kroonstad, Free State. Beyond this, it routinely supports advice office from around the country with advice and resources. The public interest settlement agreement it won at the Labour Court regarding the right to representation at the CCMA holds huge implications for the advice office sector nationally.




3. Target

There has been no significant shift in the CWAO target group. The advice office continues to work mostly with precarious workers.

4. Results and evidence

The expected results for 2016 were:

  1. Greater rights awareness among workers
  2. More workers accessing their rights, especially newly legislated limits on non-standard work
  3. More women workers defending and demanding their rights
  4. Strengthened organisation among hitherto unorganised workers
  5. Advice offices giving better quality advice and support to workers nationally


1. Greater rights awareness among workers

In 2016, the advice office concentrated its rights awareness raising on workers attending the meetings of the Simunye Workers Forum. As already mentioned, an average of 178 workers attend these fortnightly meetings at the CWAO offices. A series of 12 educational activities were built into the general meetings of the Forum, at workers’ request. One set of workshops dealt with the key rights in the Basic Conditions of Employment Act (BCEA), and included Hours of Work, Wages and Deductions, Annual Leave, Paid Sick Leave, Maternity Leave, Family Responsibility Leave and Termination of Employment (notice periods). Labour Relations Act related issues include Dismissal, Retrenchment, Unilateral Changes at Work, Organising in the Workplace and Bargaining Councils. In the period under review, a total of 1143 workers attended 6 workshops, 892 men and 251 women.


The resource materials produced to accompany the educational activities were produced in forms that could be shared with workers outside of the Forum, and also with other advice offices nationally. Specifically, the organisation produced traditional pamphlets, as a resource for the educational slot within the SWF general meetings. Thereafter, it converted 4 of the pamphlets into short audiovisual clips, in English and isiZulu, for digital distribution via WhatsApp. Examples of these were shared with the Mott local office in the course of 2016. The advice office has a large database of phone numbers of workers in the different workplaces, so is able to reach many more workers in this way than merely the workers who attend the Saturday meetings.


Regarding social media more generally, the CWAO Facebook page reached 22 743 people in 2016, an average of 245 people per post. The single most popular post was the organisation's victory over the CCMA rule excluding non-union members from representation. This post reached 5300 people. The organisation's Youtube channel attracted 4562 viewers for its 25 videos, averaging 182 views per video. Its website attracted 3424 sessions, with 1360 new users, with the average pages viewed per session was 2.34. The highest age group use was 18 to 34 (55%), while 52% of the users were women.


The advice office received greater media coverage than in previous periods, with a 2-minute long news clip of its rights campaign flighted on the national television broadcaster’s Morning Live show, and an evening radio chat show. Other media coverage included interviews on community radio stations Kasie FM, Voice of the Cape, Radio 786 and Jozi FM. Print media covered the organisation’s challenge to the CCMA Rule 25 and the subsequent court victory, and workers’ struggle at Pick ‘n Pay. All of these dealt essentially with worker rights, and in the aggregate contributed significantly to workers learning about their rights.


In September, the advice office was able to conduct its first intensive, 5-day long workshop with 23 key worker leaders nominated to attend by their respective workplaces. The workshop had several aims, chief among them the consolidation of a group of worker leaders themselves able to play an educational role in the course of daily life in the workplace. An important aside here is the break with trade union sponsored education, where shop stewards are able to apply for paid time off to attend union educational activities. The workers the CWAO works with are all non-unionised. They therefore have to apply for unpaid leave to attend week day activities. This means, firstly, that they open themselves up to being replaced at work, simply for taking time off work. This is compounded by the fact that they have to conceal the reasons for their absence, as employers will not grant them time off to attend workshops where they are learning more about their rights. Secondly, it means the CWAO has to pay workers’ lost wages, making such necessarily intensive educational events very expensive. The September workshop cost the organisation around R45 000, once lost wages were included. This naturally limits the number of times the advice office is able to engage in this kind of intensive learning events.


The organisation engaged a media consultancy, Frayintermedia, to develop an overall media strategy, including the possibility of the CWAO establishing a workers’ radio station. A potential funder for the initiative was also engaged. Limited funds obliged the organisation to postpone the media strategy development to 2017 but the question of establishing a radio station at the primary form through which to develop righs awareness to workers remains a key priority.


2. More workers accessing their rights

The CWAO handled a total of 342 cases in 2016, involving 6355 workers. One hundred and sixty nine (169) cases involved the new precarious worker rights. A further 173 drop-in cases involving 207 workers were handled by the office, dealing predominantly with unfair dismissal and UIF benefits.


By far the best victory was won at Dis-Chem. In 2 separate cases, the company agreed to make a total of 117 workers permanent, pay them the same wages as its other permanents, and extend to them all other benefits including provident fund and medical aid membership. The affected workers have also benefitted from a reduction of monthly working hours, from 180 to 172, alongside an increase in the hour rate of pay from R29.13 to R34.60. The agreement went further than the company is obliged to by law: workers cancelled their employment contracts with Bidvest, the labour broker. This effectively means that the workers are solely employed by Dis-Chem, contrary to the Brassey ruling. The advice office has a third case pending at Dis-Chem – the company uses 2 different labour brokers – involving a further 186 workers who must also be made permanent, with the same improvement in wages and conditions set out above. The case will be concluded in February, 2017.


Such victories are critical for the material difference they make to the lives of what are, effectively, the working poor. They are also important for keeping the momentum of the new rights campaign, not least because they are atypical of employer responses. A good example is SDV, where the CWAO won an important award after an exhaustive arbitration process. There, too, some workers were entitled to a significant wage increase but the company has simply ignored the award. This compels the organisation to go back to the bargaining council to make the award an order of the Labour Court. If the company still continues to ignore the award, the advice office then has to file contempt of court proceedings against it. All of these steps require the services of lawyers, and the employer strategy is to test the resources of the CWAO and to frustrate the workers.


The CWAO also opened a Pretoria office in September, 2016, to test out the possibilities for organising in the Rosslyn/Silverton areas. The Pretoria connection developed out of contact Nissan workers made with CWAO in 2014. The Nissan workers were already in contact and meeting with workers from other companies, some sub-contracting at Nissan. The agreement to pilot until March 2017 was based on this pre-existing self-organisation among the Rosslyn workers, in particular. The office is currently working with workers at 15 workplaces, including well known companies such as Nissan, Wasteman and Checkers. An average of 70 workers from the different workplaces meet every Friday afternoon on an open field to discuss their problems and to find common solutions. To date, 6 dismissal cases have been referred to the CCMA, all from Wasteman, where workers have started negotiations with the employer over wages and other conditions of employment. The dismissals are a clear example of the kinds of victimization workers are routinely subjected to.


By far the most significant long term contribution of the CWAO towards more workers accessing their rights lies in its Labour Court victory over CCMA Rule 25. The rule limited worker representation at CCMA hearings to only members of registered trade unions and to lawyers. The rule is contrary to the country’s constitution, to state policy and to the aims and objects of the Labour Relations Act. The trade unions themselves acknowledge that only 24% of the country’s workers are unionized. This means that the vast majority of workers, 74% or roughly 9 million workers, are denied the right to a fair hearing. Very few of them would be able to afford a lawyer who, typically, can charge up to R15 000 for a day’s work. This is the equivalent of 3 months’ wages for most workers. The Labour Court Order obliged CCMA commissioners to consider alternative forms of representation for non-union members, including representation by fellow workers, by representative groups of workers acting on behalf of bigger groups, advice offices and even nascent organisations such as farm committees and, indeed, the Simunye Workers Forum. This represents a major advance for workers, most obviously, but also for the whole advice office sector, for whom labour related matters generally remain the single biggest category of cases they handle.


3.  More women workers defending and accessing their rights

A total of 966 women attended the 23 general meetings of the Simunye Workers Forum in 2016. The Forum has been decisive in workers developing an understanding of the common nature of their problems, that it is not due to any individual failing on their part that they are exploited, underpaid and abused by employers.  Women workers have also benefitted from the discussions in the Forum on building unity, from the educational activities highlighting other workplace rights, and from witnessing fellow women workers giving reports in the big meetings of their CCMA experience. The latter, in particular, has encouraged more women to play leading roles in their workplaces.


4.  Strengthened organisation among precarious workers

A defining feature of precarious workers is that trade unions either fail or refuse to organize them. The CWAO provides organising, legal, educational and research support to workers organising themselves at workplace level, and to the SWF, where the different workplaces come together. Workers have set up workers’ councils in 13 workplaces and are negotiating work conditions with employers at 9 of these. The CWAO assists with the setting up of the councils and participates in some of the negotiations, at the invitation of the workers. The advice office provides the SWF with a space that can comfortably seat 400 for its fortnightly meetings, with all related infrastructure, from chairs, a sound system, digital projector, coffee and tea, and printing facilities. It also delivers educational workhops at SWF meetings and updates workers on latest developments around the campaign. Between July 2016 and January 2017, the SWF held 13 general meetings, with a total attendance of 2167 workers, 1655 men and 512 women.


Workers routinely laud the role of the SWF in showing the common nature of their problems, in teaching them about their rights, and in giving them the confidence to engage with their employers. They view the SWF as the organizational home trade unions would traditionally have been. A factor worth noting about the SWF is that it has sustained itself since April 2015, close on 2 years, something later and much bigger initiatives, such as #Feesmustfall and #Outsourcingmustfall, have been unable to do.


5. Advice offices giving better quality advice to workers nationally

The training that the CWAO provided to other advice offices took place in the first half of 2016, and was recorded in the previous report to Mott. In the period under review, the organisation mainly supported existing or emerging advice offices with advice and resources, printing and couriering copies of documents such as the LRA, BCEA and sectoral determinations covering farm, domestic and cleaning workers, as well as security guards. Advice offices supported include Witzenberg Rural Development Centre in the Overberg, Western Cape, the Taifa la watu Organisation on the Dolphin Coast, KZN, an emerging initiative in Uppington, Northern Cape, the Centre for Research & Development in Sekhukhune, Limpopo, and the Peddie Metro Community Service. The organization is active in the ACAOSA Capacity Building Collective, and also joined a task team to look into advice office capacity building specifically around CCMA representation in the aftermath of the Labour Court agreement.


5. Capability profile

Not much has changed since the organisation’s June, 2016, report, in that the organisation has had a significant impact around worker rights within the advice office sector but also generally. This was acknowledged in the recent Mott-commissioned evaluation report for Atlantic Philantropies.


The organisation’s pathbreaking organising work with precarious workers continues to be acknowledged, by bodies such as the Labour Appeal Court, the CCMA, university academic departments and research institutes, and other civil society organisations. For example, in September alone, the organisation was invited to speak on its organising experience at the Jozi Book Fair, at an international conference of the Global Labour University hosted at Wits University, and a seminar organized by the South African Labour Bulletin Bulletin. The latter was postponed and the Wits invitation had to be declined, for reasons of sheer busyness. Also in September, the Wits Sociology Department organized for 55 third year students to attend a SWF general meeting.


The increased profile of the organisation is further reflected in growing media coverage of its work, including newspapers, community radio and national television. It was invited to participate in a nationally televised debate on the proposed national minimum wage but again had to decline. It simply does not have sufficient personnel to deal with the number of such requests it receives. It is hoped that the planned media strategy workshop in February 2017 will assist in how to deal with this necessary part of the organisation’s work.


Equally importantly, the organisation has accumulated the most experience of any single organisation around the new rights for precarious workers, and is in a position to offer advice to other organisations working with such workers in a most informed manner. Also, it has interacted intensively with the CCMA, with employers and with their legal representatives in the past year. Despite not having any formal standing within the industrial relations framework, its knowledge of the law and close working relationship with affected workers have seen it recognized as a legitimate party in hearings, negotiations and even at the level of the Labour Appeal Court.


However, as the previous report indicated, the biggest challenge facing the CWAO is capacity. The organisation’s workload and the nature of that work demand the employment of additional, skilled and experienced, skilled staff. Additional staff of this calibre will allow for internal specialization of functions, including but not confined to mentoring the young organisers, all of whom are ex-precarious workers, following unfolding legal developments, and co-ordinating clearly thought out organising and bargaining strategies.


The current climate in South Africa makes it difficult to find skilled activists with experience in worker organising. However, the organisation will advertise for an experienced organizer by the end of January, and probably for a sklled media/education person by end February.



6. Your ability to adapt and self-renew

The CWAO has had to follow the unfolding new rights campaign in great detail and with regular assessment, adjustment and innovation. This was due to the newness of the affected workers to organising, the newness of the rights themselves, and because of very hostile employer responses. The advantage it has had was its abilty to regularly consult with workers in SWF meetings.


An example of the kinds of tactical shifts it has had to make is at what point it declares a dispute against a company for not implementing the new rights. Previous practice was to declare a dispute as soon as workers approached the office with this grievance. However, experience has shown that employers target key workers for victimization as soon as it is informed of a dispute having been declared. To minimize the effect of employer victimization, the advice office now spends many weeks discussing possible employer responses with workers, encouraging the workers to build the strongest possible unity and to concretely consider what steps they are willing to take should the employer threaten suspension, dismissal or threaten retrenchment. This is working well at new companies like Simba Chips, where workers have followed this advice and have not yet come up against explicit employer victimization.


Further examples are the organisation’s response to legal costs and the educational challenges it faces. Total legal fees in 2016 came to just under R700 000. This is clearly not a sustainable cost, and the organisation subsequently investigated setting up a labour law clinic. Such a clinic will not only cost less, it will also give the CWAO and workers more control over their legal representatives and allow them to accumulate greater legal knowledge themselves, thereby increasing their own capacity to resolve disputes and advance rights. The clinic will be established in the first half of 2017. On the education front, the educational needs of precarious workers are vast and cannot be addressed through piecemeal measures. In line with this, the advice office has begun investigating the prospect of establishing a workers’ radio station.


7. Financial Acumen

The organisation employed a fulltime finance manager as of July, 2016. All existing financial policies and procedures are currently under review, with a number of new ones being developed. The organisation is already three-quarters to completing its 2016 financial audit preparations, which should be lodged with the auditors by the second week of February. With a financial year end of December, this is good progress.


8.Leadership and Governance

The organisation’s strategy of headhunting experienced organisers to bolter its leadership has not borne fruit. The intention was for such individuals to co-ordinate specific areas of work, mentor the younger staff members to improve the quality of their work but also encourage to assume some of the leadership tasks in the organisation.


At the end of January, 2017, the CWAO will advertise for an experienced organizer. The ability to mentor and guide the work of others will be a non-negotiable skill requirement. However, in recognition of the dearth of such experienced people, the organisation has reorganized itself internally, with areas of office, finance and case management allocated to specific individuals, in addition to co-ordination tasks being allocated for legal, educational and organising support. Additionally, the organisation has taken measures to free the co-ordinator, the most experienced member of staff, from a range of administrative tasks, to allow more time to address the strategic questions facing the organisation.


The management committee has seen a reshuffle. Ismael Lesufi has assumed the role of chair, John Appolis its secretary, with Dr. Carin Runciman replacing Bridget Kenny, and assuming the position of treasurer. Dr. Runciman is based in the Centre for Social Change at the University of Johannesburg, where her research focuses on worker and community protest. The committee has also agreed to a more active role in the organisation in the light of its capacity shortages. Ishmael Lesufi, who is based at the University of South Africa in Pretoria, oversees the work of the CWAO Pretoria office, Carin Runciman meets regularly with the finance manager and John Appolis, one of the country’s most experienced trade unionists, attends the weekly organizer meeting.


Lastly, the organisation is continuing a programme of staff training. Between July and November, the organisation’s in-house counsel delivered 3 workshops on different aspects of the LRA. In November, staff received training in the use of Excel. A refresher course in Microsoft Office scheduled for early December was postponed to 2017.


9. Expenditure Report and Sustainability


 An audited financial statement for the financial year 1 January, to 31 December, 2016, can be accessed here


 Download Related Document: CWAO annual report 2016.docx

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