Our Labour Relations Act of 1995 [“LRA”]  is very specific.   The purpose of the LRA is to

  • advance economic development,
  • social justice,
  • labour peace and
  • the democratisation of the workplace.

This can only be achieved by fulfilling the primary objects of the LRA which include

  • providing a framework for collective bargaining to ‘determine wages terms and conditions of employment and other matters of mutual interest’ and
  • ‘formulate industrial policy’.

What is striking (pardon the pun) about the purpose and objects of the LRA is the recognition that even employees may engage in collective bargaining.   But only registered trade unions can conclude ‘collective agreements’ as defined in the LRA.   In terms of the Constitution it is employees and not trade unions that have the right to strike.

This does not mean there is an absolute right to strike.   It is completely wrong to talk of an ‘illegal’ strike if by that is meant conduct that deserves to be punished.   Employees who strike without ensuring compliance with the LRA simply forfeit certain rights.   Such employees may provide employers with the right to dismiss them and legal action can be instituted for damages resulting from breach of contract or delict.   Criminal conduct will never be condoned but it is not illegal to strike.

Linda Ensor’s article SA ‘needs to restore faith in collective bargaining’ was first published in Business Day today and with permission here are some random extracts.

ONE of the major challenges post-Marikana would be to restore faith in collective bargaining as the instrument of dealing with labour disputes, labour experts said on Thursday.

They agreed that a worrying aspect of the wildcat strikes that spread through the mining industry was that they were completely unprocedural and were characterised by a rejection of union representation in favour of direct bargaining.

The experts participated in a panel discussion on the implications of the recent developments for the system of labour relations in South Africa at the annual conference of Stellenbosch University’s Bureau for Economic Research.

Labour consultant Andrew Levy and Edward Nathan Sonnenbergs director Stuart Harrison agreed that the legislative framework of labour law in South Africa was solid even though it needed to be reformed in some aspects.   What had been lost was the workers’ faith in the system.

“The act is fundamentally sound; the problem is that people are turning their backs on it.   It is a question of legitimacy.”

“The collective bargaining legislative framework is not broken, but negotiating parties need to seriously reconsider how they make use of it to re-establish its credibility and rebuild the respect of the rule of law,” Mr Harrison said.

Employers and employees had to start talking to each other.

Both experts wanted to see the reintroduction of strike ballots before strikes could be lawfully undertaken.   This measure — strongly opposed by Cosatu — would prevent industrial action if there was only minority support and prevent the violence and intimidation that often occurred in these circumstances.

The other necessary reform would be to give minority unions more organisational rights.

Mr Levy said the Marikana events had left the National Union of Mineworkers and Cosatu much weaker.   This would give the government an ideal opportunity to tackle labour market reform and introduce the youth wage subsidy, should it want to do so.