V. Lack of Freedom of Association and Obstacles to Union Formation

Farmers regularly interfere with workers’ organizing efforts, thus denying workers their right to freedom of association, which is a fundamental right enshrined in international law and the South African Constitution.[239] Obstacles to union formation are prominent problems on many farms in the Western Cape. Farmworkers are some of the most poorly organized workers in the country; although there are no reliable statistics on how many farmworkers are organized in the Western Cape, estimates of union “density”—the percentage of workers represented by trade unions—range between 3 and 11 percent,[240] compared to 30 percent in the formal sector as a whole and over 75 percent for mineworkers in the country.[241] Denial of freedom of association and resulting low levels of union representation can prevent workers from negotiating better working and living conditions or remedying exploitative situations.

5.1. Obstacles to Union Formation

Farmers often deny union organizers’ access onto farms, threaten union organizers and workers who want their assistance, or create workers’ committees to thwart genuine trade union formation. Union organizers do not have a right to enter onto farms to recruit or communicate with members until the union becomes “sufficiently representative” at the work place, rendering it difficult for workers to organize.[242] Although, in the past, union organizers sometimes joined labor inspectors going onto farms, the Department of Labour agreed to prohibit this practice due to farmers’ protestations.[243]

Union organizers thus struggle to establish initial contact with farmworkers free from intimidation by the farmer. As one farmer explained, “labor unions must make [an] appointment with [the] farmer; farmer will ask workers if they want the union to come on.”[244] This arrangement exposes workers who want to meet union organizers and may influence workers to say that they are not interested to avoid reprisals. Some union organizers also confront more difficulties accessing farms than other workplaces: for example, one union leader, whose union supports both farmworkers and factory workers in the food industry, stated that farmers were more likely to unreasonably refuse permission to enter than factory management, which generally provides reasonable access to union organizers.[245] Yet without this permission it is difficult for organizers to reach farmworkers. For example, another union leader explained that, to find workers, an organizer must sneak onto a farm, find workers in town, or get a contact person on the farm to begin a conversation.[246]

Some farmers or managers who do not want unions to enter their farms resort to threats against union organizers. For example, one union leader described receiving an SMS message from a farmer threatening severe violence if he entered onto a farm.[247] Another union leader explained that one of his recruiters had been locked up the previous week for trespassing. Although the union had members on the farm, the manager blocked the recruiter’s car and called the police because he had not made an advance appointment.[248] Farmers may also take other efforts to stymie unions, such as neglecting to transfer union dues from workers to the union management for periods of time.[249]

Farmers sometimes establish workers’ committees to address problems between farmworkers and employers. However, this runs afoul of international strictures against management creation and domination of employee organizations.[250] Although there are different views regarding the impact of such committees, some farmers use them to circumvent unions with structures that do not provide workers with any bargaining power.[251] As one example, Greta P., who served as chairperson of a workers’ committee, explained that workers were initially excited, agreeing to pay 10 rand per week:

At that time, [we] thought it was a good thing, but at end of day realized it was a bad thing. [The farm] said they would buy [a] bus with [our] money, and help with school fees, if you were part of workers’ committee. But … they didn’t give people money.… Once they had a braai [barbecue] and they gave all the workers workers’ committee t-shirts and caps. That’s all they buy.…

My role as chairperson—if people [had] problems on the farm, it [was] my duty to go to farmer and tell him this is the problem.… The farmworkers were very scared of him.… He would always say, “if you don’t like it, then you leave my farm.”[252]

5.2. Farmers’ Efforts to Force or Persuade People to Resign from Unions

Some farmers try to unilaterally withdraw farmworkers from unions or convince them to resign. For example, Arnold M., who was recently dismissed subsequent to joining a union, explained that the farmer had sent a letter to the union saying that he and other union members had resigned. He noted that the “farmer never asked me or told me [he] was doing that.… We weren’t aware of what [the] farmer was doing.”[253] The union representative who received the letter said that when she asked the members about the letter, they had not known about it but still wanted to be members.[254]

Greta P. described a similar occurrence that arose two months after she and other farmworkers joined a union. The manager met with her and two supervisors:

He told me to tell workers that they must resign from [the] union because there are no problems on the farm, all these years he allowed them to go to trainings, no problem. I said that you are also in a union, you never asked us. I said it is my right to be in a union of my choice.… So the day after that, the two supervisors made a list of people in [the] union and resigned on behalf of them. [The union] organizer called me and said we received a list of names that [said] people resigning out of [the] union. She said let me set up [a] meeting with workers tonight. So she did that and asked them if they resigned. They said no we did not resign out of this union.… People were very angry.[255]

Sindi M. was dismissed along with her husband a year after they joined a union. She noted:

There were many members of [the union], but when we were dismissed, then all the members resigned … because things get bad when you join [a] union.… And the farmer was intimidating farmworkers and said same thing will happen to you if you don’t get out of union.[256]

Karel M., who recently joined a union after working on a farm for almost seven years, was told by the farmer that he would be dismissed because he joined the union. Although this has not happened yet, Karel said that he was sent home without pay one day during the period of union negotiations with the farmer; given the farmer’s previous threat, Karel suspects this was linked to his union membership and the negotiations.[257]

Dino M., who is a member of a union, said that although most farmworkers on his farm initially joined, the farmer threatened to restrict members’ working hours and promised to give more money to people who resigned. Most workers left the union, but the farmer did not provide more money. Dino said the farmer promised to give him anything he wants, including a free phone, if he left the union, but Dino refused to quit.[258]

Given the animosity that farmers show towards unions, some farmworkers simply never join. As Kiersten H. explained, “I’m not a member of a union. If you speak about union, you will lose [your] job or [be] treated bad.”[259]

5.3. Poor Treatment of Union Members

Farmworkers who have joined unions sometimes believe that the farmer subsequently discriminates against them based on their union membership, in contravention of their rights to freedom of association. Farmers appear to treat workers differently after joining a union, or provide non-union members with greater benefits, sometimes while specifically referring to union membership. As one example, Johnny A. said that after he joined a union, the farmer he worked for was angry and subsequently treated him “differently and badly.” The farmer began to give him and other union members’ tasks that were not practical, such as sending workers out into the mud without boots, which the farmer had never done before workers joined the union. When Johnny requested electricity for his house, the farmer said he must ask the union to give him electricity.[260] Similarly, Nolita Z. explained that the farmer for whom she works does not like unions: “if you ask for a loan, [the farmer] says go ask the union.… He treats union and non-union members different: for non-members, he gives loans [and] paints houses, but he will never help union members.” Prior to their current union, another union had tried to organize workers, but the workers told the union they did not want to join “because we were very scared.”[261]

One farmworker explained that after joining a union, the farmer promised that things would remain the same, yet he treats non-union farmworkers better. For example, the farmer gives another farmworker free transport, but “if I ask as a union member, [I] can’t get it.”[262] Roedolf V., who works on the same farm, said that the manager was mad that he joined, while other workers said that the owner suggested that they should resign from the union.[263]

5.4. Impact of Union Formation

Farmworkers in the Western Cape struggle to form unions, not only because of obstacles imposed by owners, but also because it can be hard to gain assistance from union representatives. Aside from being denied access to workers, union representatives find it difficult to organize such a remote and poorly paid population. Workers’ long hours, seasonality, or transience also inhibit union formation.[264] Despite the difficulty, some farmworkers who have joined unions describe subsequent improvements on the farm. For example, Mandy S. stated that there was greater equality between men and women and improved working conditions after farmworkers formed unions.[265] Naomi A. noted that the union had helped implement many changes, including an increase in the amount of money that the farm will pay for visits to the doctor.[266]

Unions sometimes provide the sole support for farmworkers who face problems with their employers. Union representation is particularly helpful in proceedings at the Commission on Conciliation, Mediation and Arbitration (CCMA), which is an independent government-funded dispute mechanism.[267] At most proceedings workers may be represented only by a union official, while employers may be represented by an employers’ association official.[268] Some farmworkers join unions after being dismissed, primarily so they can be supported in the CCMA process. For example, one farmworker explained that a union leader helped him open up a case after he was dismissed from his job.[269] A different union leader described how farmworkers who are dismissed often come to the union for help.[270] Union representation at the CCMA can be crucial, given that farmers are often represented at the CCMA.