Disputes over wages and other terms and conditions of employment are generally referred to as disputes of ‘interest’. Disputes of ‘right’ concern mainly dismissals. A neutral third person decides on the validity, lawfulness and fairness of the employer’s decision to dismiss. In theory all disputes of ‘interest’ should be left to the parties to resolve either by agreement or the use of power (strikes and lock-outs). In theory that demonstrates that the parties retain their rights in a market-type economy and there is no state control over actual wages. In reality certain limited services must be regarded as ‘essential’ and compulsory arbitration is substituted for power-play. We should support the call by John Brand today for the government and the teachers to agree to resolve their difference through compulsory interest arbitration and to refrain from striking.
Link to categories Collective bargaining and Strikes and lockouts
A number of posts will be found under those categories.
Link to Business Day today where article first published
Compulsory arbitration for teachers may be the solution – John Brand is a director and dispute resolution specialist with attorneys Bowman Gilfillan.
Extracts from Business Day
STRIKES, sometimes accompanied by violence, are common in the education sector in South Africa and the government now seems to want to put a stop to this by declaring teaching an essential service. Is this legal or desirable? The starting point in answering the question is to inquire whether essential services workers have or should have a right to strike at all and then to consider whether teachers can properly be considered to be essential service workers.
The right to strike for collective bargaining is enshrined in section 27 of the constitution. It is an important right because, as the great employment lawyer Otto Kahn-Freund said: “If workers could not, in the last resort, collectively refuse to work, they could not bargain collectively. The power of management … would not be matched by corresponding power on the side of labour.”
The rationale behind collective bargaining is to maintain industrial peace. The protection given to this right to strike is based on the importance of strikes to collective bargaining. As it is sometimes simply put, “collective bargaining without the right to strike amounts to collective begging”.
The Labour Relations Act (LRA) recognises this right to strike but subjects it to limitations. Among them is that no person may take part in a strike if that person is engaged in an essential service. Because the right to strike is so important, a limitation of this kind needs to be justified, and to be justified it needs, among other things, to be limited. The essential services limitation on the right to strike has not been subject to constitutional challenge because it is clearly justified and properly circumscribed in its scope. The constitution permits rights in the bill of rights to be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. There is thus a need to balance the right to strike with other rights, such as those to healthcare, food, water and social security, which are also enshrined in the bill of rights.
To achieve an appropriate balance, workers in essential services are conventionally excluded from the right to strike in open democracies and this exclusion has been sanctioned by the International Labour Organisation (ILO) — but only to a limited extent. The ILO recommends that the right to strike should be restricted only in relation to public servants exercising authority in the name of the state and in relation to genuinely essential services, namely “those the interruption of which would endanger the life, personal safety or health of the whole or part of the population”.
In the event that a dispute about wages and working conditions is referred to arbitration, the arbitrator is required to determine new rights for the parties according to standards of fairness and equity. The common law of arbitration has developed a number of principles that guide interest arbitrators in doing this. The core principles are these: replication of a negotiated outcome; demonstrated need for the change proposed; total compensation; and appropriate comparison with similarly situated employees doing similar work in similar sectors.
An important subsidiary principle is that public sector employees should not be expected to subsidise public services. If the wages they should receive render the public authority unable to continue to provide the service, then that is a political problem, not one that should be reflected in an award.
One advantage of compulsory interest arbitration is that outcomes become predictable and parties are for this reason discouraged from taking up unreasonable positions. This in turn encourages negotiated settlements. Evidence from Canada and the US shows that the outcomes determined in compulsory arbitration are very similar to comparable negotiated outcomes where the right to strike exists. For this reason, teachers seek to be treated as essential service workers in these countries.
In view of the problems facing education in South Africa, there may be merit in seeking to declare teaching to be an essential service. An alternative would be for all parties (the state as employer and trade unions in the sector) to agree that, at least for a period of time, compulsory arbitration will replace strike action as the fallback if collective bargaining fails. If this could be achieved as an outcome of negotiation and collective agreement, it would be unnecessary to pursue a declaration of a new essential service. The debate about the constitutionality of that step would become academic and both the state and teacher unions would have committed themselves to achieving collective bargaining outcomes through rational negotiation and, where that fails, a rational outcome imposed by a properly qualified independent arbitrator. This would, surely, serve the best interests of all sides.