It is time to consider introducing ‘good faith bargaining’ in defined ‘bargaining units’.  In 1995 South Africa knowingly refused to impose any legal duty on employers and trade unions to bargain in good faith.  This results in uncontrolled ‘power-bargaining’ that could result in anarchy.  Bargaining in the USA requires good faith and only takes place with registered trade unions and refers to ‘bargaining units’ not ‘workplaces’ as in SA which tend to be much larger.

In the USA there has to be an election and the trade union winning the votes of the majority of workers in a ‘bargaining unit’ must be recognised as representing all workers in that bargaining unit.  Employers are then obliged to bargain with that trade union, but only over wages, hours and conditions of employment.   Both parties must bargain in good faith.   Good faith bargaining disputes are not resolved by power but by neutral third parties.

We do not have a legal duty to bargain in good faith despite the parties to an employment relationship having reciprocal duties of trust and confidence’ (good faith) in their individual relationships.  That results in the unsatisfactory situation where an employee has an individual obligation to act in good faith but if two employees decide to strike there is no such obligation.

In 1995 SA deliberately decided to avoid any notion of bargaining in good faith and adopted a system of ‘power-bargaining’ to resolve such disputes.   It was assumed that only registered trade unions would have the ‘power’ to engage in such bargaining.   Not all  strikes action is legally protected but ‘unprotected’ strikes are not illegal or unlawful.   SA no longer regards any collective action by workers as a criminal offence.   Protected strikes ensure that trade unions and employees are immune from claims for damages and dismissal.   But that does not prevent employers from dismissing the employees engaged in a ‘protected strike’ for a fair reason:

  • based on their operational requirements,  or
  • related to bad behaviour during the strike.

The article A chance to reassess our system of industrial relation by Nerine Kahn, the Director of the CCMA, was first published today in Business Day.   Click on the link to read the full article online at BDlive.

THE Farlam Commission of Inquiry into the events at Lonmin’s Marikana mine provides a unique opportunity to reflect on the health of SA’s collective bargaining framework.   As a member of the mediation team that oversaw the final Lonmin pay agreement, and as someone involved in other volatile pay disputes, one can’t help feeling we are at a crossroads.

And one can only hope that, while providing some much-needed clarity on what led to the tragedy at Marikana, the commission will also take a long, hard look at our labour relations framework and how it may have influenced not just Marikana, but other industrial disputes.

The Lonmin dispute is, in many ways, a microcosm of some of the new challenges we face in applying a collective bargaining framework that was developed during different times and in different circumstances.

Our current legislative framework, developed in the mid-1990s, is founded on the principle that the majority union in any workplace has the right to bargain collectively and enter into binding wage agreements, and the outcomes of those agreements apply to all workers in that workplace.

There are rules and regulations defining how this should happen, and when parties fail to agree they have recourse to the Commission for Conciliation Mediation and Arbitration (CCMA).

This winner-takes-all approach was developed and adopted when there was a fair degree of union stability, a growing consolidation within the trade union movement, and a strong commitment to social dialogue and inclusive solutions within the government, labour, business and civil society.   But much has changed since then.

This strategy of organising disaffected workers has been highlighted in the recent mining disputes, but is not unique to the resources sector.   As was seen at Lonmin, the labour relations environment begins to shift when rival or smaller unions seek to capitalise on legitimate grievances among workers who, under normal circumstances, would be represented at the negotiating table.

Because of this sense of frustration and exclusion, emerging unions and/or worker delegations tend to seek other avenues to highlight their grievances — such as unprocedural strikes and, ultimately, violence.   In addition, they tend to demand higher wages than established unions as a strategic organising tool.

This phenomenon is at the core of the current wave of labour disputes in the platinum belt.   And it is compounded by what workers perceive as an absence of union leadership, with workers saying they do not feel adequately represented.   The ramifications for the collective bargaining process are numerous, and pose very real challenges to the government, business and labour.


  • The concept of closed-shop agreements is being undermined as the concomitant rights that evolve from them are not playing out realistically in the workplace.
  • Although the Labour Relations Act (LRA) permits legitimate protest action in workplace disputes (through CCMA processes) or through socio-economic protest (through the National Economic Development and Labour Council) it is increasingly clear that workers and broader society do not believe this actually assists them.
  • The complexity and legality of dispute resolution processes often results in a sense of alienation among workers.
  • There is confusion and anger over expectations of employers and of the government when it comes to non workplace (or social) issues, which significantly affects workers’ aspirations.
  • The sense of dis-empowerment inevitably leads to anger and violence, seemingly based on the belief that this is the only way to get attention.

LRA framework

Ultimately, we have to ask: is our present LRA framework still suited to the changing union dynamics, the growing inequalities in our society, the growing social responsibilities of employers (for example, as enshrined in the social and labour plan commitments made by mining companies) and in the context of the blurred lines around the social development responsibilities of both the government and business?

One profound lesson the CCMA has taken from Marikana is that the dream of collective bargaining structures, its voluntarist system and the manner in which we are conducting it, no longer meets the aspirations of the lowest-paid workers.

Farlam Commission of Inquiry

During the Farlam Commission of Inquiry, and in the months afterwards, we need to recognise the changing dynamics of the labour market, heed the realities of corporate SA in the current economic environment, recognise the expectations of workers who may not feel adequately represented in the present collective bargaining framework, and re-examine the role of the state in regulating industrial relations.