There is an urgent need to re-examine the labour relations system SA adopted in 1995. In many respects it was based on what Smuts introduced in 1909, in the old Transvaal Republic, and then in 1924 in the Union of SA, as it then was. Loane Sharp argues that it is just possible that the new Commission set up to investigate the tragedy at Marikana could bring about the necessary changes to labour relations.
Click on the links to read Adcorp’s Loane Sharp’s article SA’s labour relations system fundamentally undemocratic first published in BDlive today. Thanks to Business Day for the random extracts.
IN THE days following the Marikana killings, commentary focused on several things: the actions of the police; the role of small, radical trade unions; the pay and living conditions of mine-workers; the government’s initial failure to step in; and mine executives’ silence. No one has asked how South Africa’s labour relations system, supposedly one of the most sophisticated in the world, could produce such a tragedy. Just days before the killings, International Labour Organisation director Vic van Vuuren suggested that South Africa’s labour relations system and labour laws compared favourably to “other best-practice countries”.
- Nedlac (National Economic Development and Labour Council).
- CCMA (Commission for Conciliation, Mediation and Arbitration).
- Labour Court and Labour Appeal Court.
- Bargaining councils.
It is clear that these four institutions have failed. Nedlac is no more than a “talk shop” where the government, in particular the Department of Labour, bullies the other partners by threatening them with unfavourable legislation. From a conciliation point of view, the CCMA is merely a rubber stamp for issuing strike certificates. The Labour Court’s rulings are far from stable or rational. The bargaining councils, dominated by big business and organised labour, are more concerned with keeping small businesses and start-up trade unions out of the game.
South Africa’s labour relations system is based on the representative principle. Industry associations represent employers, and trade unions represent workers. This is a real problem, since only 26% of the national workforce is unionised, and industry associations representing big businesses employing more than 50 people only account for 32% of total employment. In other words, South Africa’s labour relations system has the primary characteristic of being unrepresentative. This creates conflict, since the vast majority of workers possess no mode of expressing or resolving their grievances. Employers are only obliged to recognise trade unions that represent an outright majority or are “sufficiently representative” of the employer’s workforce.
Competition Act excluded
South Africa’s current labour relations system is fundamentally undemocratic, and for this reason large chunks of the Labour Relations Act (1995) are explicitly excluded from provisions in the Competition Act (1998) against anticompetitive behaviour.
Recognition of all trade unions
It would be a great leap forward to oblige employers to recognise all unions. For one thing, this would have the virtue of being more nearly democratic, which the current system is not. And the employers’ fear that this would lead to negotiations to be dominated by small, radical unions, could easily be solved by the additional requirement that unions negotiate with each other based on their respective members’ interests and present a single, unified position to management. Of course, large unions will not negotiate with small unions. The Congress of South African Trade Unions (Cosatu) will oppose even the remote possibility that small unions will be recognised. Cosatu’s opposition to restrictions on unions contained in proposed labour law amendments has apparently led to those restrictions being shelved.
Splinter trade unions
As early as 1995 Cosatu’s Shopsteward publication complained that “the problem of unions not servicing their members properly is still widespread. Workers are flocking to union offices and to the federation with complaints.” The problem is not that these splinter unions are significant (they are not), nor that their membership numbers merit political attention (they do not), but rather that Cosatu is experiencing a crisis of relevance. Growth in the politically non-aligned Federation of Unions of South Africa and the National Council of Trade Unions, and to a lesser extent Solidarity, has largely been a result of members’ frustration at Cosatu’s preoccupation with politics rather than worker interests, a movement which is well known to Cosatu, where it is called “workerism”.
Centre for Constitutional Rights
But the commission of inquiry established for this purpose may yet reach a surprising conclusion. Retired judge Ian Farlam is patron of the Centre for Constitutional Rights, where his colleagues include former president FW de Klerk, advocate Paul Hoffman SC and Dr Anthea Jeffery of the South African Institute of Race Relations, who as innovative thinkers are not shy to reach politically troublesome conclusions.
Judge Farlam’s judgments have attracted significant public and professional interest, notably those relating to the enforceability of a Muslim marriage contract and the decriminalisation of sodomy.
Quite possibly, we will see the most significant about-turn in labour relations since the 1979 Wiehahn commission, which greatly extended trade union rights.