The Wiehahn Commission was established in June 1977 after the 1973 ‘disturbances’ in Natal, now KwaZulu-Natal, with 14 commissioners and the first part of their report was issued on 15 February 1979.

Unless the terms of reference of the Farlam Commission include the power to investigate and recommend changes to the labour laws it may be time to establish another Commission to do what the Wiehahn Commission was required to do.

The editorial in Business Day today Labour law needs a major makeover is available online at BDlive.   These random extracts are permitted but please read the entire editorial by clicking on either link [free registration required].

THE so-called Marikana massacre has exposed serious flaws in our society and made them impossible to ignore any longer.   Among these is the inadequacy of the labour law regime.

It is common cause that for much of SA’s colonial and apartheid history, laws regulating relations between employers and employees were heavily weighted in favour of the former.   This unjust arrangement started to change in the early 1980s, when black workers used their numerical superiority, in sectors such as mining in particular, to become more organised and form militant trade unions.

It was, therefore, inevitable that the labour regulation pendulum would swing in favour of workers when the African National Congress took power in 1994 in alliance with the Congress of South African Trade Unions (Cosatu).   It was probably also inevitable that the pendulum would swing past the point of equilibrium.   It is a matter of record that allowance was made in the law for organisational tools such as closed shop and agency shop agreements, union-biased measures that are prohibited in many democracies in the same way as laws that give employers monopolistic powers.

It remains questionable whether these provisions, which restrict freedom of individual choice, are even constitutional.   Nevertheless, few big employers complained, least of all the mines.   This is explained by the fact that the formation of the National Union of Mineworkers (NUM), which monopolised the lower echelons of the labour market, provided a measure of stability compared with the tumultuous environment that prevailed before.   The upshot was a labour relations regime that suited the government, big business and big labour, and largely achieved its goal during the first decade or so of democracy.

This is by no means the only flaw in SA’s labour relations.   The bargaining council system, which allows the government to impose minimum wages and annual wage adjustments on nonsignatories to negotiated agreements, is similarly out of step with the times and conditions that prevail in many industries.   In the clothing and textile sector, for example, the Cosatu-affiliated South African Clothing and Textile Workers Union is balloting its members on strike action — not because of a wage dispute but over the question whether all employers should be compelled to comply with the minimum wage for the sector.

The government is in the process of tinkering with the Labour Relations Act; it should be undertaking a comprehensive review.