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All South African labour laws have objectionable features which cause bitter resentment among the workers, and nearly all of them are punitive in character.
Before Union each of the four provinces in South Africa enacted its own laws. One of the earliest labour laws is the Master and Servants Act, Act 15 of 1856, of the Cape Province. In the Transvaal, a Master and Servants Act was introduced in 1880 (Law 13 of 1880), when the British were in occupation of that Province. A similar measure was enacted in Natal under Ordinance 2 of 1850, and in the Orange Free State under Ordinance 7 of 1904. In 1911, the Union Parliament passed the Native Labour Regulation Act. Under all these laws non-European-and especially African-workers are guilty of criminal offences when absenting themselves from work without lawful cause.
In consequence of the industrial disturbances on the Rand in 1913 and 1914, an Act was passed, not for the purpose of preventing and settling disputes by conciliation but to give the police wider powers to deal with strikers and to afford maximum protection to strikebreakers. The Act is known as the Riotous Assemblies and Criminal Law Amendment Act of 1914. This Act applies to all workers, irrespective of race or colour. Smuts, who introduced it, could never rid himself entirely of the feudal conception of the "master and servant" society and it was his belief that workers on strike were criminals who disturbed law and order. Thus, when he passed the Industrial Conciliation Act in 1924 (after the violent industrial strife on the Rand in 1922), which was the first labour law to introduce employer-employee instead of master and servant relationships, he made strikes, under certain circumstances, illegal and provided for penalties of three years' imprisonment and a £500 fine. In 1937, the Act was amended and a new repugnant principle introduced which, in effect, meant that a worker charged with striking was presumed guilty unless he established his innocence.
Another obnoxious feature of South African labour legislation is the wide discretionary powers given to the Minister of Labour and his departmental officials. Under the Industrial Conciliation Act, the Minister may gazette agreements entered into between employers and trade unions only "if he deems it expedient". The industrial registrar is given wide powers to deal with trade union registration and can dictate to unions what they should include in their constitutions. The Wage Act, which has been held up by various Ministers as a piece of excellent legislation-almost socialist in character, has in fact proved a complete failure for, while the Wage Board established under the Act can report and make recomÂmendations, none but the Minister has the power to make a recommendation of the Board legally binding as a determination.
The Unemployment Insurance Act is almost entirely under the personal control of the Secretary for Labour.
Bureaucracy, even when it is benevolent and efficient, is objectionable. In South Africa, where there is as yet no traditional respect for the rule of law, where Ministers are usually inferior politicians and seldom statesmen and where departmental officials lack the tradition of service and efficiency, the enormous powers placed in the hands of individuals, powers which cannot be challenged in a court of law, have been a constant source of irritation to workers and to employers.
A further feature of South African labour laws is the clumsy, ambiguous and obscure manner in which they are drafted. This has proved disastrous to the workers' cause and of immense benefit to defaulting employers. On numerous occasions' industrial agreeÂments and wage the courts, mainly because of bad draftsmanship in the statutes under which they were made, have invalidated determinations covering tens of thousands of workers.
Finally, there is the question of the enforcement of the laws. The authorities and the police have always acted with promptness, efficiency and rigour when prosecuting workers, but the enforcement of the provisions of the various laws which accorded workers
In seeking to secure for the garment workers the rights they were entitled to by law, the union concentrated on three main objectives: -
(a) The enforcing of the provisions of existing agreements by prosecutions;
(b) repeated applications to the Wage Board to fix uniform wages and conditions of employment for the clothing industry on a national basis, thus eliminating unfair competition from coastal areas (Cape Town, Durban, etc.);
(c) A campaign, in co-operation with other unions and with the South African Trades and Labour Council, for improved and more up-to-date labour legislation.
The enforcement of agreements through prosecutions was not simple. The vast majority of employers had no respect for law and few of them took the trouble to read the industrial agreements. To initiate prosecutions and to succeed in obtaining convictions evidence was required from the employees and, here again, the union was faced with great difficulties because of the terrible fear of victimisation.
I would go into a small tailoring shop, where I needed no introduction, and approach a worker to check his or her wages and hours of work. In the friendliest manner I would ask for the full name. With the women there was generally no difficulty, but the older Jewish worker would reply: "My name? What do you want my name for?"
I must confess that I found it somewhat difficult to explain why I wanted his name, but after some time he would grudgingly give me the information I sought.
Next question: "How old are you?"
"How old am I? I don't remember. I think I was born ten years after the Turkish war".
Knowing a little about European history, I guessed that he was born in 1887.
"What work are you doing?"
This was important, as there were different wage rates for different classes of work.
The answer would invariably be: "Hmmm, what work am I doing? I do everything".
I would then ask: "Do you do cutting?"
"No".
"Do you do pressing?"
"No".
"Do you do fixing or shaping?"
"No".
I would ascertain finally that he was really only basting out or basting under garments, or perhaps performing several operations, but not all.
"How long have you been in the tailoring industry?"
This question was important in order to establish whether he had five years' experience and was entitled to the wage rate of a qualified man, or was still a learner.
The retort would often be: "Why do you ask such silly questions? I've been a tailor all my life".
After a little effort, we would mutually agree that he was not born with a needle or scissors in his hand, but had started in the tailoring industry at the age of ten or eleven, somewhere in Poland or Lithuania. I would also learn a great deal about his earlier life: that as a youngster he had worked for a few years without receiving any payment and that, while learning his trade, his duties had also included scrubbing floors, looking after children and doing all sorts of work which had not the remotest connection with tailoring and that his hours of work had been from about five a.m. to midnight, or until he dropped exhausted.
Then I would come to the most important question of all:
"What wages are you getting?"
The answers I received were more or less as follows: "I'm getting the proper wage", or" "I'm getting the union wage", or "Please don't worry, Mr. Sachs, I'm getting the right wage".
Far from convincing me, that always made me feel I had good cause to worry.
Sometimes the employer would chip in and answer for the worker, saying: "Oh, he gets the proper wage".
We had established a fairly well organised intelligence service in the industry and knew the exact wages of almost everyone, but in cases of underpayment we had to get an affidavit from the worker.
And his consent to appear in court to give evidence. This proved very difficult. Very few of the men told the truth. The majority of those who were underpaid were too frightened to give me the correct information and even more frightened to come to court, the Jewish workers who had come from Czarist Russia had every reason to fear courts, policemen and magistrates. There was nothing I could do, even though I knew that I had received false information, but before leaving the shop I would call the worker aside and ask him to come up to the office for a friendly chat. Many of them came and talked more freely. Their stories were more or less identical:
"Mr. Sachs, I know that you work for the workers. I know that the union is trying to do its best to help us, but what can I do? I am a first-class tailor and work very hard. I know that under the agreement I am entitled to £8 a week, but I only receive half that amount. You think I like it? I have a wife and family in the old country. I have to support them. In fact, I want to bring them here. I have also to support myself, and, if I told you the truth and my boss got to know, I'd soon get the, sack and who would give me a job then?"
Without the whole-hearted co-operation of the underpaid workers, our efforts to enforce agreements were hopeless. We had to become detectives to cope with the situation. Above all, we had to gain the confidence of the workers and bring pressure to bear upon delinquent employers in order to intimidate them and make them become law-abiding.
We decided to employ persuasive measures and to apply a little "prodding", where necessary.
I raised the question of enforcing the provisions of the agreements, both at the Industrial Council for the Bespoke Tailoring Industry (of which I was secretary) and at the Industrial Council for the Clothing Industry. At the Bespoke Tailoring Council, there was no difficulty and here I must pay tribute to the late W. J. Madden, one of the leading employers in the tailoring industry in Johannesburg, chairman of the Council and for some time also chairman of the Merchant Tailors' Association. Mr. Madden, who was a devout Roman Catholic, came from the ranks and had experienced hardships in his youth. He was a man with a high sense of honour and had deep sympathy for the worker which was reflected in the way he ran his own workshop. I submitted a full report to him on the deplorable state of affairs in the industry, suggesting that energetic measures be taken against offending employers and received his whole-hearted support.
Under the auspices of the Council, we convened a meeting of merchant tailors and middlemen tailors and Mr. Madden and I appealed to them to help us improve conditions in the tailoring industry. We pointed out how the whole industry would benefit from the elimination of sweating and unfair competition. We offered to help to adjust wage rates gradually, provided employers stopped faking registers and came to us with their difficulties in a straightforward manner.
The meeting lasted about two hours and was attended by over fifty employers. The remarks I overheard when the meeting dispersed made me realise that our speeches had had little or no effect. Mr. Madden and I came to the conclusion that it was essential that some order be introduced into the industry and, within a few months, twenty-seven employers were prosecuted, twenty-five of whom were convicted, the other two managing to escape convicÂtion through technicalities. The English daily press was co-operative and gave much space to the court proceedings. In the first case the employer was c onvicted for several breaches of the agreement, fined £40 and ordered to pay a substantial sum in back pay. When the other employers received their summonses, they rushed to the Council or union offices, but I explained to them that, since they had not listened to the advice we had given previously, they would now have to deal with the magistrate. I also made it plain that the Council and the union were determined to enforce the agreement and would not abandon prosecutions until every employer had been made to realise that agreements must be honoured.
I warned them that, should they victimise any of their workers who gave evidence, they would get into trouble. There was a provision in the Industrial Conciliation Act prohibiting victimisation of employees who gave information to Council officials or evidence in court. But it was almost impossible to prove victimisation. However, in one case where a merchant tailor, after being convicted, sacked two workers who had given evidence, the union called a strike and staged a demonstration outside his premises, in which over a thousand workers participated. Within a week the employer reinstated the workers, paid them for time lost and the strike was settled.
The results of a policy of action soon became apparent. The delinquent employers became terrified of the Council and of the union and, uninvited, came to seek advice. But what was more important was the new spirit created among the workers. Confidence in the union and themselves took the place of fear and scores of underpaid and sweated workers came forward with their complaints. The union pledged support to the middlemen tailors in their efforts to secure full contract rates from merchant tailors; this was followed by vigorous action directed to convince the merchant tailors that the days of exploiting middlemen tailors were gone. Several merchant tailors, who refused to toe the line, had their work stopped and, in addition, were treated to a few lively demonstrations. One well-known firm of merchant tailors, which exploited middlemen, had a large shop in the centre of Johannesburg. For nearly a month, during the lunch hour, the union organised demonstrations outside the shop. Hundreds of workers and thousands of inquisitive people would be attracted to the demonstration and speakers from the union would climb on to a motorcar bedecked with banners and address the crowd, not only exposing the wickedness of the firm, but also commenting on the bad conditions in the industry generally. On one occasion the firm very foolishly called in the police and the sergeant, accompanied by about half-a-dozen policeÂmen, approached me angrily while I was speaking to the crowd, saying: "What right have you to hold a meeting here? You are causing an obstruction".
I had been arrested previously for addressing a meeting of strikers in the street and charged with obstruction. At that time, the magistrate had seemed particularly anxious to convict me, but on the strength of a judgment in the Transvaal Provincial Division of the Supreme Court, declaring invalid the bye-law under which I was charged, had reluctantly discharged me. I thereupon told the sergeant that I was entitled to address the meeting and that he had no right to interfere with me. South African crowds always enjoy a crack at policemen and, when I offered to lend the sergeant a copy of the judgment, there was a roar of laughter from the crowd, which had increased to about three thousand. The men in uniform beat a hasty retreat.
Demonstrations proved very effective in exposing bad employers and forcing them to observe agreements. They also served in arousing interest and enthusiasm among workers and bringing them into active participation in the union's struggles.