On 26 October 2015 Vice-chancellor of Wits, Adam Habib released the agreed “9 measures to get academic programme back on track”.

The university’s Senior Executive Team (SET) had met and, taking into account all the representations from students and the University community, the SET committed to implementing the following measures in order to get the academic programme back on track:

1.  No increase in fees for 2016 – this includes means academic, residence and any other fees.

2.  The University is prepared to address the increase in the upfront fee payment.

3.  The University recognises that the protests have adversely affected the ability of students to write their examinations. It will therefore restructure the academic programme and examination timetable.

4.  The University recognises that outsourcing is an exploitative practice and commits to establishing its own internal commission. The internal commission will be chaired by the Chairperson of Council and will comprise the Chairperson of Finco and representatives from all stakeholders, including students, unions and others. It may also include an independent expert. This commission will investigate the effects of outsourcing services on the University, the cost structures associated  with insourcing and possible alternative models. 

5.  The University undertakes to find financial resources to support the children of all workers employed in currently outsourced services, provided that these children qualify for admission to the University.

6.  There will be no disciplinary processes against students who were involved in legitimate forms of protest.

7.  The University commits to drawing up a workers’ charter.

8.  The University agrees, in principle, to make every effort to resolve any other outstanding issue that the students may want to address in good faith.

9.  Should the students agree to these measures, the University will commit to calling a General Assembly.

On the basis of this, the academic programme must resume on Tuesday, 27 October 2015. It is imperative that we do not lose the academic year and jeopardise the future potential careers of our students. 

This agreement was reached with the Students Representative Council; which other organisations the SRC represented is not clear. Wits succumbed to pressure to agree issues that were not within the purview of the SRC to present and negotiate.

The issues are outsourcing and the “workers’ charter”.

The only people who could negotiate for the employees were the employees themselves or their representative trade unions. No one else. These issues are workplace issues, not student issues.

The Constitution provides with respect to labour relations:

“23.  (1) Everyone has the right to fair labour practices.
        (2) Every worker has the right—
  (a) to form and join a trade union;
  (b) to participate in the activities and programmes of a trade union;
  (c) …

  (5) Every trade union……and employer has the right to engage in collective bargaining.
National legislation may be enacted to regulate collective bargaining.
  (6) ….”
The legislation that amplifies and gives force to these rights is the Labour Relations Act 66 of 1995. The Act has been broadly in this form since 1978.

One of the stated purposes of the Act is “to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution.”

The Act must also “…provide a framework within which employees and their trade unions, employers and employers' organisations can-
  (i)  collectively bargain to determine wages, terms and conditions of  employment and other matters  of mutual interest; and
  (ii)  formulate industrial policy; and to promote-
  (i)  orderly collective bargaining;
  (ii)  …
  (iii)  employee participation in decision-making in the workplace; and
  (iv)  the effective resolution of labour disputes.

In other words, the framework for employees to consult and negotiate with their employee is specifically enshrined in law.
“200. Representation of employees or employers
(1)  A registered trade union or registered employers' organisation may act in any one or more of the following capacities in any dispute to which any of its members is a party-
  (a) in its own interest;
  (b) on behalf of any of its members;
  (c) in the interest of any of its members.”
The demand to Wits was that employees affected by outsourcing be employed directly by the university. They said that as outsourced workers, they had less rights than university employees, and earned significantly less.

“198. Temporary Employment Services
(1)  … "temporary employment service" means any person who, for reward, procures for or provides to a client other persons-
  (a) who render services to, or perform work for, the client; and
  (b) who are remunerated by the temporary employment service.
(2)  …, a person whose services have been procured for or provided to a client by a temporary employment service is the employee of that temporary employment service, and the temporary employment service is that person's employer.
(3) …
(4)  The temporary employment service and the client are jointly and
  severally liable if the temporary employment service, in respect of any of its employees, contravenes-
(a) a collective agreement concluded in a bargaining council that regulates terms and conditions of employment;
(b) a binding arbitration award that regulates terms and conditions of employment;
   (c) the Basic Conditions o Employment Act; or
   (d) …”

The ANC, SACP and Cosatu went on a venomous campaign to demonise TESs, or labour brokers, and outsourcing. Cosatu demanded the banning of TESs. They were likened to the devil incarnate or worse.

However, the ANC understood that although they could emasculate them it couldn’t ban them. It could only circumscribe their operations and the rights as to how their clients used them. Hence, section 187 as it is currently worded.

Why is banning unconscionable?
1. Outsourcing is a legitimate and accepted practice world-wide. Most commonly an organisation outsources functions that are not its core function such as cleaning and catering.
2. Labour brokers created 14% of the jobs created in the past 20 years.
3. It is estimated that over 1 million people are employed by TESs.
4. TESs are the most reliable starting point for a young person to get initial experience and then move into to better, higher earning, permanent jobs.

Employment legislation now ensures that employees of TESs are entitled to the same rights as other employees.
Wits management alone makes policy decisions about employment. It is part of the mandate with which they are charged.
If they decide to outsource a service, the affected employees are entitled to challenge that decision and either demand consultations with management or negotiations through their recognised representative trade unions, if negotiation is provided for in a collective bargaining agreement.

If outsourcing may result in retrenchments, section 189 of the Act obliges employers to consult – note, not negotiate – with the affected employees or their representative unions.

Students have no role in this relationship whatsoever.

Outsourcing is not, as and of itself, an exploitative practice.

The students are not entitled to sit on the commission into outsourcing (although they may really learn something!).

A “workers charter” is also between employees and employer only. It is arrogant and patronising for students to think otherwise.

There is little doubt that the SET knows all this but that the only one reason the SET agreed to these issues was an act of desperation. They saw it as the only way to get things back to normal and start the exams sooner rather than later.

Written by Sara Gon, Policy Fellow at the Institute of Race Relations.