COSATU Submission to Public Hearings of the Constitutional Assembly

1. Bill of Rights

A. Right to Strike

The right to strike should specifically include the right to defend and promote social and economic interests of workers. The report of the Fact Finding and Conciliation Commission on Freedom of Association concerning the Republic of South Africa (International Labour Office Geneva, 1992) accepted this principal as stated by the Committee of Experts on the Application on Conventions and recommendations:

"the Committee considers that trade union organisations ought to have the possibility of recourse to protest strikes, in particular where aimed at criticising a Government's economic and social policies" (Report, paragraph 647).

The Commission also accepted this principal as stated in the digest of decisions and principles of Freedom of Association Committee of the governing body of the ILO (1985) in paragraph 388:

"the right to strike should not be limited solely to industrial disputes that are likely to be solved by the signing of a collective agreement; workers and the organisations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their interests".

This approach is endorsed in Section 4.8.3.2 of the RDP, which calls for the constitutional right to strike and picket on all social and economic matters.Furthermore, South Africa is about to ratify Conventions 97 (Convention concerning Freedom of Association and Protection of the Right to Organise) and 98 (Convention concerning the application of the principles of the right to organise and to bargain collectively) of the ILO which makes these principles directly applicable to South Africa.

1.1 - COSATU Submission to Public Hearings of the Constitutional Assembly

We would propose the following wording :

"Organised workers shall have the right to strike to promote and defend the social and economic interests of workers" .

Note : our legal advice is that the right to strike includes the right not to be criminally

prosecuted, civilly sued, interdicted or dismissed. If the Constitutional Assembly is advised to the contrary, we would want this protection to be explicitly provided for. Further, the right to strike without fear of dismissal, implies that there should be no replacement or 'scab ' labour, permanent or temporary. Consideration needs to be given on how to give effect to this.

B. The right to picket

The right to picket should be stated explicitly in the provisions of the Bill of Rights dealing wit h labour relations . Accordingly we propose the following wording :

"Trade unions and workers shall have the right to picket at the premises of employers"

C. Lock-outs

There is a fundamental misconception in certain circles that the employers 'right' to lock-out balances workers right to strike. This fails to understand the nature of the relationship between employers and workers. It incorrectly assumes that we are dealing with equal partners. Workers have only their labour to sell. Employers own and control the means of production. The right to strike attempts to balance this huge inequality in power. This is recognised in the RDP, now supported by all parties in the GNU, which states in 4.8.4 that "the right to lock out should not be included in the constitution".

There is no reason why lock-outs need special constitutional protection, and all references to the lock-out should be excluded from the constitution. The recourse to lock-outs can be dealt with adequately under labour legislation. The right to lock-out is not a universally accepted right for the purpose of Constitutional Principle II and there is no constitutional reason for its inclusion in the Bill of Rights. Most constitutions do not include the right or freedom to lock-out.

D. Collective Bargaining

COSATU will revert at a later stage to the Constitutional Assembly on proposals dealing with an y constitutional provisions on this matter . No law shall prevent representative trade unions from negotiating collective agreements bindin g on all workers covered by such agreements .

E. Property Rights

COSATU does not believe that a right to property belongs in our constitution. Constitutions in a number of democracies, including New Zealand and Canada, do not contain an entrenched right to property. It is particularly inappropriate in the South African context, where existing property rights are directly linked to colonial conquest and racial domination.To constitutionally entrench property rights, would perpetuate existing patterns of in equality ad infinitum. This would limit the ability of society to realise many aspects of the RDP, particularly in areas such as land reform and restitution. Property rights and their limitation are more appropriately dealt with in legislation.

F. The Right to Privacy

The privacy clause as contained in s13 of the interim Constitution, deals mainly with search and seizure and the protection of citizens against abuses by the police. However, the right to privacy is often used to circumscribe a zone of freedom that the State cannot interfere with, and has provided a hiding place for private discrimination in other jurisdictions, for instance, in the case of private clubs that discriminate on the grounds of race. The right to privacy also needs to be formulated in a way which prevents employers from abusing this right to deny workers access to information

1.1 - COSATU Submission to Public Hearings of the Constitutional Assembly

G. The Right to Economic Activity

The right to economic activity is not an internationally recognised fundamental right, and should not be included in the Constitution. This right effectively entrenches one economic system and should be removed. It is fundamentally undemocratic to constitutionally prescribe to people that they adopt a particular type of economic system.

H. The Right to Information

South Africa is a country where a veil of secrecy has existed, not only in relation to