Looking back on the 1988 LRA amendments there is little doubt that when the former government accepted the recommendations of the Wiehahn Commission in 1979 they failed to understand the nature and effect of what changes to the employment and labour laws would entail.
In about 1986 this fact was brought home forcefully to the former government and employers when the high court (per Richard Goldstone J as he then was) in the Marievale case confirmed that the newly created industrial court was the sole arbiter of the statutorily created right of ‘fairness’ as opposed to wrongfulness or unlawfulness.
Because the industrial court was not a court of law there was no appeal against its determinations and neither was any common law review possible.
Justice Goldstone quoted from a judgment of Justice of Appeal Neville Holmes as follows:
“There is no appeal against the decision of the Commission. The Legislature has appointed it as the final arbiter in its special field and, right or wrong, for better or worse, reasonable or unreasonable, its decision stands – unless it is vitiated by proof on review in the Supreme Court that-
(a) the Commission failed to apply its mind to the issues in accordance with the behests of the statute and the tenets of natural justice: in other words that, de jure, it failed to decide the matter at all. Such failure could be established by reference to mala fides, improper motive, arbitrariness or caprice. The list is not exhaustive; or
(b) the Commission’s decision was grossly unreasonable to so striking a degree as to warrant the inference of a failure to apply its mind as aforesaid – a formidable onus.”
As an aside the late Arthur Chaskalson and a former Chief Justice was the senior counsel for the National Union of Mineworkers (Num) and the current president of South Africa, Cyril Ramaphosa, signed the affidavits in his capacity as general secretary of Num. Advocate Paul Pretorius SC, the lead prosecutor in the Zondo Commission, appeared as junior counsel for Num.
As a direct result of that judgment the former government immediately proposed to change the employment and labour laws to alter that system and this resulted in severe criticism from many knowledgeable persons involved in the practice and teaching of such law.
Clive Thompson was one of them and this is the article that appeared in October 1987. The law did eventually go through but caused both senior management and trade union leaders to visit the Minister of Manpower in Cape Town during 1989 to seek assurances that the law would be changed back to where it was.
Shortly thereafter the historic Laboria Minute was negotiated and signed in Pretoria and the law was changed forthwith.
After the arrival of the new dispensation and change of government Professor Halton Cheadle was tasked with drafting a new Labour Relations Act which was passed in 1995 and implemented in November 1996.
Refer to the address in 1994 by the then Minister of Labour Tito Mboweni concerning the proposed changes.
Labour Relations Amendment Bill: a sure recipe for conflict
By Clive Thompson and published in the Cape Times on 6 October 1987
If the primary function of labour Iegislation is to mediate the manner in which organized labour and capital exercise power, then the draft Labour Relations Amendment Bill, which is before Parliament, must belong to a contrary tradition.
While certain of the early comments on the bill have been cautiously favourable, a close reading of its terms reveals some utterly perverse features. Some may see it as anti-union but it would be more accurate to describe it as subversive of a coherent and effective system of collective bargaining. It appears to be the product of myopic bureaucrats rather than of ideologues.
To begin with, the bill undermines the critical rule-making function of the industrial court. The Wiehahn Commission envisaged a body that would be able to develop a set of standards for the guidance of all. In this connection, it is noteworthy that more than two thirds of the cases that come before the court involve applications to reverse precipitate and unilateral action by one or other party – so-called status quo applications.
Currently the court can use the relevant provision to strike down rogue behaviour from whatever quarter. In future the unrepentant rogue will be able to carry on regardless as the bill proposes that a status quo order should only be issued if it will “assist the parties in reaching a settlement”. A cunning respondent will always be able to avoid a court rebuff by pleading hostility to settlement prospects.
More ‘significantly still, with the proposed repeal of its special “court of law” functions, the industrial court will be deprived of all powers to hear matters on an urgent basis. An employer seeking to interdict an illegitimate work stoppage or an employee facing imminent victimization for lawful trade union activities will be unable to receive quick relief from the labour court; at best their cases will be ripe – or rotten – for hearings some months later. The draftsman seems to be unaware that industrial disputes nearly always require prompt attention.
The decisions that the industrial court or the special labour court do eventually deliver will remain unknown for a lengthy, period or perhaps even forever, given the secrecy provisions that have been mooted. It goes without saying that it is difficult to develop a body of law under such circumstances.
The bill also offers lawyers a most Iucrative future, not only in the Industrial court but in the new special labour court as well. This comes courtesy of the bill’s contorted and often unintelligible language which threatens the now well-established jurisprudence on unfair dismissal.
The existing case law is clear: No employer may dismiss an employee without a good reason and, unless circumstances render this impractical, without a fair hearing. The proposed definition on unfair dismissal is loaded with ambiguity. A dismissal without good reason, for instance, will be unfair unless the employee concerned has been employed for less than 12 months, but even here the dismissal will again become unfair if it is effected “in any unfair manner”.
When this and other vexed provisions wend their way to the special labour court, as they inevitably will do, the parties will find (if they are corporate entities such as trade unions or companies) that they cannot represent themselves in that forum. Nor can they make do with the services of an attorney.
Only an advocate will be entitled to appear there, duly instructed of course by an attorney.
A troubled issue in labour law today, concerns the position of those unions which enjoy minority support, whether at plant, enterprise or industry level. These unions are typically the established and more conservative ones, although this is not always so. There is a case for minority unions under the banner of freedom of association, but the bill does not make it.
Instead it introduces an insidious contradiction. While bolstering the already entrenched position of minority unions on industrial councils – where they can exploit existing closed-shops and engineer decisions that bind the majority unions and their members – the bill declares that outside of these councils it will be an unfair labour practice for a majority union to press for exclusive bargaining rights.
The conflict that this promises to generate between industrial council and plant bargaining will be nothing short of spectacular. What is more, the iniquity of the scheme will not be lost on the leadership or members of the emerging unions, either now or in the future.
While the emergency regulations reflect the failure of the state to accommodate the political aspirations of South African citizens, the bill’s provisions on strike action bear testimony to the inability of the political economy to meet worker demands. There the points of similarity end for, unlike the disenfranchised and unenfranchised majority, the unionized work force disposes of very real power.
The Wiehahn Commission acknowledged this and advocated a system that would institutionalize conflict. The bill negates this principle. Contrary to the recommendations of a recently released National Manpower Commission report, it perseveres with the crass expedient of criminalizing strike action.
By introducing still more protracted and even indeterminate preconditions to lawful strike action, it naively believes that the phenomenon can be curtailed or eliminated. It is quite probable, however, that workers will perceive that lawful strikes have receded beyond their reach and will therefore resort, to wild-cat strikes, the most uncontrollable species of industrial action.
Uncontrolled is no doubt how the action will remain, for a new deeming provision imposes a presumption of complicity upon union officials that are seen to be involved in the conflict. Unions must henceforth wash their hands of illegal strike action in order to avoid incurring financial penalties.
The bill is not without some redeeming qualities. In principle the formation of a special labour court to reconcile conflicting industrial court decisions at regional level and to lend status to the adjudicative process generally is to be welcomed.
Again, the proposals regarding the streamlining of conciliation board applications through the removal of a ministerial discretion represents a salutary development. None the less, the overall impact of the provisions is retrogressive and ultimately self-defeating, and only the most striking inadequacies have been highlighted here.
The existing act is marked by a surprising sophistication and subtlety in the area of conflict regulation. It has been found wanting not so much because of its own shortcomings, but because of the pressures emanating from a deteriorating political environment.
The legislature, however, does not have the will to address the latter, fundamental predicament. Instead it has allowed lesser functionaries with little grasp of the issue at stake to tamper with a complex scheme of labour legislation. The Department of Manpower could do worse than to rethink the future of the bill in the context of the original recommendations of the Wiehahn Commission.
(Clive Thompson is Director, Labour Law Unit, UCT, and Co-editor, Industrial Law Journal).