The role and effect of collective bargaining and industrial action in the modern labour relations

Tebogo Rakhongoana

6/6/2014Dissertation submitted for partial fulfilment of the requirements for the degree Baccalaureus

Legum (LL.B) at the University of the Free State

Study Leader: Mr Q Cilliers

Module: RSK 424 (Thesis)

TABLE OF CONTENTS

CHAPTER 1: Introduction

1.1 Introduction 2

1.2 Research statement 2

1.3 Research methodology 5

1.4 Chapter outline 5

CHAPTER 2: History

2.1 Historical development of collective bargaining in South Africa: 1924-1994…. 6

2.2 Historical development of industrial action in South Africa…… 8

CHAPTER 3: Collective bargaining process in South Africa

3.1 Duty to bargain and recognition……. 10

3.2 Organisational rights…. 11

3.3 Collective bargaining structures and levels 13

CHAPTER 4: Comparative trends in collective bargaining and industrial action

4.1 Collective bargaining and industrial action trends in Europe 16

4.2 Legal dimensions of industrial action 18

4.3 Limitation on the right to strike and lockdown 19

4.4 Trade unions as complex bargaining organisations 21

5. CONCLUSION 22

Bibliography 23

2

CHAPTER 1

INRODUCTION

1.1 Introduction

The current labour dispute in the platinum industry which has just ended after five

months has had a negative influence on the South African economy because losses

at the mines will result in the Treasury getting less company tax, which would stretch

the budget deficit.1Collective bargaining between the employers, unions and the

government has not been successful since these parties have not reached an

amicable agreement to solve this conundrum. Finally these parties reached an

agreement which one would say is a step in the right direction towards bringing back

dignity to the working class.

Ratings agencies Fitch, and Standard & Poor's, in its review of the South African

economy has dropped according toBarclays Capital, with slowing growth, wide

budget deficits, rising service delivery protests, and continued labour market

dysfunction.2These downgrades would mean that the state and state-owned

companies would pay more to fund massive capital projects.

There is conflict between striking and non-striking mine workers particularly in the

platinum industry with the no work, no pay policy affecting both parties similarly even

though the right to strike is a constitutionally entrenched right.3This paper will focus

on the role and effect of collective bargaining and industrial action in modern labour

relations. To adequately understand this topic we have to break it up.

Collective bargaining is an adversarial process, involving employers, unions and the

government with conflicting interests in seeking mutually acceptable compromise in

the attempt to reach an agreement on wage and conditions of service for the

employees. If the agreement is reached, the contents are recorded in a collective

agreement, which binds the parties until the next round of bargaining.4 The term is

1 Strydom 2014. http://www.mg.co.za/miningtalkscollapse Accessed on 10/06/2014.2 Strydom 2014. http://www.mg.co.za/miningtalkscollapse Accessed on 10/06/2014.3 Constitution of the Republic of South Africa: Sec 23(2)(c).4 Anstey et al 2011:47.

3

said to have been coined in 1891 by the British labour-movement pioneer, Beatrice

Webb.5Under the Labour Relations Act6, the chief agents of collective bargaining are

employers, either acting individually or grouped into employers’ organisations, on the

one hand and registered trade unions on the other.7

Industrial action is a term linked to collective bargaining; it is both controversial and

necessary in the modern labour relations. It is controversial in that it is the

crucialmaterialization of conflict within the workplace which causes disruptions to

economic activity. It is essential, because without industrial action and in particular

strike action there can be no significantcollective bargaining, or any means of

balancing the power relationship.8

When parties are engaged in the process of collective bargaining and cannot reach

mutually beneficial agreement, industrial action is often the end result. Employees

will choose a collective action to reinforce their demands. This involves them

withholding the supply of labour for a predetermined period of time, also referred to

as strike action.

Strike action has been a common occurrence in South Africa particularly with the

strike season in full swing at the moment. At closer examination it is clear that the

number of strikes have decreased in comparison to the past.9 They are different

types of strike action namely; go-slows, work-to-rule, work-ins (sit-ins) and lastly

lockout which will all be explained in greater detail later.

The last component of the topic is the modern labour relations which is a complex,

intricate, comprehensive discipline that is characterised by a number of significant

features. Labour relations can be defined as: - “The area of study and practice of the

roles of and the interactions between the parties to the labour relationship, various

rules and regulations which govern that relationship, and the environment in which

the relationship plays out.”10

5 Potter B 1891.6 Labour Relations Act 66/1995.7 Anstey et al 2011:47.8 Venter and Levy 2009:498.9 Levy et al 2009:501.10 Levy et al 2009:4.

4

1.2 Research statement

The current research will investigate and establish the role and effect of collective

bargaining and industrial action in the modern labour relation with specific focus on

the role of trade unions.

As a secondary concern is whether collective bargaining is applied efficiently and

procedurally by all the parties concerned in South Africa and other European

countries such as England and Australia.

1.3 Research methodology

A legal comparative study will be conducted by analysis of several textual sources,

including academic articles, academic textbooks, case law, internet sources, law

commission reports, newspaper articles and postgraduate dissertations.

1.4 Chapter outline

Chapter two will contain the historical developments of collective bargaining and

industrial action in South Africa, different tables and graphs will be included for

further illustration

In chapter three, collective bargaining trends in South Africa and other European

countries will be discussed with the aid of tables, graphs and figures.

In chapter four trade unions in SouthAfrica will be analysed and it will be ascertained

whether they abuse their constitutional right to strike.11

Finally in the last chapter, conclusions will be drawn following the above discussions

and recommendations will be offered to improve the level and quality of collective

bargaining and industrial action in the modern labour relations.

11 Constitution of the Republic of South Africa:Sec 23(2)(c).

5

CHAPTER 2

2.1 Historical development of collective bargaining in South Africa: 1924-1994

South Africa’s current collective bargaining system originates from the Industrial

Conciliation Act12 which is the cornerstone legislation which made provision for the

development and establishment of the industrial council. The industrial council is the

foundation of centralised collective bargaining institution. In 1995 the name changed

from collective bargaining institution to bargaining council.13

From 1924-1979 the industrial councils did not allow African who were and has

always been the majority workers to take part in centralised collective bargaining.

This injustice was done by not allowing these workers to be part of a registered trade

union or even to form their own trade union. The only union they were allowed to be

part of was the industrial councils.14

The black trade unions that emerged in the 1950’s were not effective in protecting

African employees’ rights because the National Party government did not recognise

them as they were not allow to formally register.15During the 1960’s the South

African economy benefited from a post-war boom with the economy growing rapidly.

This growth over-rode the concerns about the continued segmentation of the labour

market.16During this growth there was the emergence of large manufacturing

corporations with vast factories. This meant that for the first time in South Africa’s

history a large group of African labourers were working together in these factories

this aided in them organising their own trade unions.

In the 1970’s more and more black trade unions emerged that were more organised

and managed. These trade unions were operating against grain and faced a lot of

opposition from both employers and thestate not recognise them. After the Soweto

uprising in 1976 South Africa received a lot of attention internationally. More

12 Industrial Conciliation Act 11/1924.13 Maree 2011:13.14 Godfrey 1992:11.15 Maree 2011:13.16 Theron et al 2010:53.

6

pressure was put on the apartheid National Party government with the help of the

recommendations of the Wiehahn Reform Commission and in 1979 this government

recognised and registered black trade unions.17

After the Wiehahn Commission reforms in the 1980’s there was a significant growth

the union movement.18Black trade unions were recognised by employers and were

allowed to play a part in industrial councils. These trade unions radically shifted the

power relations in negotiations and bought a new dynamic in collective bargaining in

South Africa.19

During the CODESA negotiations in the late 1980’s and early 1990’s between the

National Party and then official opposition the African National Congress major

changes took place in the labour market.

In 1994 the 1st democratic national election took place where the African National

Congress a black political party won and Nelson Mandela was elected as the 1st

black president of the new South Africa. This political transformation brought

progressive change to the application of collective bargaining.

This new government swiftly passed new labour legislation which benefited the

employers, employees and the state. In 1995 the Labour Relation Act20 the focus of

collective bargaining, this piece of legislation extended full collective bargaining

rights to all sectors of the economy and changed industrial council to bargaining

council as we know it presently.21 The duty to bargain was not imposed on the

different parties but trade union organisation rights in the workplace were

strengthened by the Labour Relation Act.22

Table 1

Employment, Trade Union Membership and Density 1979-1996Year Private-

Employment(non-agriculture)

Trade Union Membership

Density (percentage %)

1979 4 560 868 701 758 15.4

17 Theron et al 2010:54.18 Godfrey et al 2010:60.19 Maree 2010:13.20 Labour Relations Act 66/1995.21 Maree 2010:13.22 Labour Relations Act 66/1995.

7

1983 4 839 555 1 273 890 26.31991 5 191 773 2 718 970 52.31996 5 238 839 3 016 933 57.5

Note: 1 Employment excludes public service, military and police, agriculture and domestic workers, thus excluding sectors that have a poor union representation. Trade union density is unrealistically high with the exception of public service unions whose densities have become very high since 1995.

Note: 2 Employment and trade union membership include all workers African, coloured, Indian and white.23

2.2 Historical development of industrial action in South Africa

Historically labour relations in South Africa has seen the emergence and

improvement of the use of industrial action in the workplace as well as a across the

board jurisprudence surrounding it. In order to fully understand the nature of strike

action it is very important to examine this history.24

In the early 1970’s in Natal today known as Kwa-Zulu Natal the textile and sugar

industries were hit by massive strike action. The strikes focussed on management of

the industrial relationship which was very one sided benefiting the employers and

also how the then state led by the National Party responded.25

During this time black led trade unions were not actually recognised as legitimate

vehicles for expression of black aspirations in the workplace. Surprisingly the

collective industrial bodies were also seen as a threat to economic pillar of apartheid

because there were political involvements. In 1973 the government passed the

Bantu Labour Relations Regulation Amendment Act26 which provided an alternative

channel for black representation in workplaces, through bodies called Liaison

Committees.27These committees were ineffective since they dealt with trivial issues

and there were still no provision for the right to strike. Sanctions were having a

positive effect on the National party government and a parliamentary commission,

Wiehahn Commission of enquiry was set up and instructed to examine and suggest

23 Maree 2010:14.24 Venter et al 2009:499.25 Levy et al 2009:499.26 Bantu Labour Relations Regulation Amendment Act 1973.27 Levy et al 2009:500.

8

the revamp of the entire body of labour legislation and the organisation African

workers in different trade unions.28

This organisation was tasked with changing the political atmosphere in South Africa

with ultimate goal of ending apartheid labour laws. The implementation of the Labour

Relations Act29 which legitimised the right to strike by employees saw an increase

the number of African led trade unions.

The way industrial action was applied changed since notice or warning had to be

given to the employer before employees can go on strike action. If this important

requirement was not applied the action of the employees was deemed to be unfair.

This was apparent in cases decided the Industrial Court today known as the Labour

Court.

The Industrial Court played a very important role in the procedural requirements for

protected industrial action in South Africa. To understand this principle of prior notice

which was needed to be given before industrial action could be applied we have to

look at case law.

In the case of Metal and Allied Workers Union v BCR Sarmcol30 the court referred to

the action of the trade union before and after strike also the actions after the

dismissal of employees who participated in the strike action. In another case; BAWU

and others v Palm Beach Hotel31 the court held that even if the strike could have

been legal the union and its members acted unreasonable and unfair by not giving

the employer sufficient notice of the intention to strike. The court regarded this as a

serious infringement because the actions of the union and its members

inconvenienced the guests of the hotel. They were more cases with similar outcomes

and the Labour Relations Act 66 of 1995 took this as a foundation.

28 Venter et al 2009:500.29 Labour Relations Act 66/1995.30 Metal and Allied Workers Union v BCR Sarmcol (1987) 8 ILJ 815 (IC). 31 BAWU and others v Palm Beach Hotel (1988) 9 ILJ 1016 (IC).

9

CHAPTER 3

3. Collective bargaining process in South Africa

3.1 Duty to bargain and recognition

The South African law does not enforce any duty to bargain, but the Labour

Relations Act32 promotes good faith bargaining through the creation of an institutional

framework. The LRA33 provides for the establishment of bargaining councils and

statutory council and for the conclusion of collective agreements.34

Refusal to bargain can effect in power play in order to convince the other party to

negotiate. Section 64 makes it compulsory to obtain an advisory award from the

Commission of Conciliation Mediation and Arbitration (CCMA) before notice of strike

is given. The role of the CCMA in this instance is to promote collective bargaining by

facilitating an agreement between the disputing parties, but it cannot order parties on

what to do voluntarism is very important in this process.35

Although an advisory award is not binding, it seems that it will not be ignored if it

imposes a duty to negotiate. The refusal by an employer to bargain with a trade

union constitutes legitimate ground for a strike action. Section 64(2) of the LRA36

describes the refusal to bargain as: A refusal to recognise a union as a collective bargaining agent; A refusal to establish a bargaining council; The withdrawal of recognition of a collective bargaining agent; The resignation of a party from a bargaining council and Disputes concerning appropriate bargaining units, levels and topics.

Recognition of a union is the beginning of collective bargaining. Under the Labour

Relations Act37 the Industrial Court appreciated employers to deal with and to accord

rights to unions. This decision of the Industrial Court were in conflict; some required

a employer only to bargain with a majority trade union, some compelled the

employer to negotiate with any union in its organisation, the majority of decisions

32 Labour Relations Act 66/1995.33 Labour Relations Act 66/1995.34 Labour Relations Act 66/1995.35 Du Plessis and Fouche 2006:230.36 Labour Relations Act 66/1995.37 Labour Relations Act 28/1956.

10

forced a duty to bargain once a union had sufficient representation.38 The Labour

Relations Act of 199539 removed this uncertainty; an employer is now obliged to

accord rights of recognition only to registered trade unions which are representative.

Representation has three connotations: Only a registered union which is sufficiently representative of employees at a particular

workplace may demand organisational rights, such as access to the workplace, stop-order facilities leave during office hours for its office bearers. Sufficient representation is not defined, but the spirit of the Act indicates that a union with sufficient membership base will be considered a sufficiently representative union. The Industrial Court, under the old Act, sought a membership of approximately 30% to constitute sufficient representation. In term of the 1995 Act the concept sufficient representation has been considered mostly in the context of organisational rights and from these judgements it appears that a membership in the region of 30% will in the majority of cases be considered sufficiently. Two or more unions may act jointly in order to establish sufficient representation.

Majority indicates a clear majority of union members in the workplace, which is 50% plus one of the employees, have joined the union. Only registered unions with majority support in the workplace will be able to demand statutory rights with regard to agency shop, closed shop and workplace forum arrangements. Two or more unions may join to establish majority support in order to be accorded these rights. Furthermore, rights to disclosure of information, to appoint workplace representatives and to paid leave for representative are enjoyed only by a majority union.

A registered union wishing to establish a statutory council must have a membership of at least 30% in the relevant industry. Two or more unions may join together for this purpose. The 30% membership is used only in the context of statutory councils.

3.2 Organisational rights

Organisational rights are described in Part A of Chapter 3 of the Labour Relations

Act40. These rights apply to a majority registered trade unions only while sufficiently

representative registered unions will make use of some of these rights. Nonetheless

an employer and a union may conclude a collective agreement to regulate

organisational rights.41

These organisational rights are found in the following sections of the LRA; section

12, 13, 14, 15 and 16. Section 12 allows any trade union office-bearer or official

access to workplace to recruit, communicate and have meetings outside working

hours with employers. Section 13 allows trade union members to consent so that

employer can deduct trade union subscriptions or levies from their wages and to pay

these directly to the trade union.

38 Du Plessis and Fouche 2006:230.39 Labour Relations Act 66/1995.40 Labour Relations Act 66/1995.41 Du Plessis and Fouche 2006:231.

11

Section 14 allows trade unions the right to have their shop stewards recognised.

Shop stewards function is to represent members in disciplinary and grievance

proceedings and check employer’s compliance with labour legislation and collective

agreements.42

Section 15 enables employees who are also trade union officers’ reasonable leave

from work to perform their tasks of trade union. Section 16 entitles trade unions

access to information for purpose of collective bargaining and also to perform their

functions.43

It is important to note that the rights awarded by section 12, 13, and 15 are only

applied to trade unions that are sufficiently representative of the employees

employed in the workplace (section 213 of the LRA).

In order to implement all these organisational rights the unions must be

representative and must follow section 21(exercise of organisational rights) together

with section 65(2) of the LRA.44In terms of section 21 the union must notify the

employer of theorganisational rights that it seeks. The parties must then meet and

attempt toreach a collective agreement in respect of these rights. If an agreement

cannot be reached then the dispute will be referred to the Commission

forConciliation, Mediation and Arbitration (CCMA), which will attempt to resolve the

dispute through conciliation.45

If conciliation fails the parties have a choice between referring the matter for

arbitration in terms of section 21or employees can embark on a strike action in terms

of section 65(2). If union chose the latter option it has to wait for a period of 12

months from date on which strike notice was issued in terms of section 64(1) of the

Act.

The LRA does not allow provisions regulating non-representative trade unions that

want to obtain the above organisational rights. In the case of Numsa v Bader Bop

(Pty) Ltd46minority unionswere given the right to strike for the purpose of acquiring

organisationalrights. This judgement was heavily criticised since it failed to apply

International Labour Organisation (ILO) standards correctly.

42 Chicktay 2007:159.43 Chicktay 2007:159.44 Chicktay 2007:160.45 Chicktay 2007:160.46 Numsa v Bader Bop (Pty) Ltd 2003 2 BCLR (CC).

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3.3 Collective bargaining structures and levels

Collective bargaining structures are divided in three councils which is a bargaining

council, statutory council and workplace forums. The bargaining council main

function is the conclusion of collective agreements. It also has a piece keeping

function to keep parties in check while negotiations such as dispute resolution

procedures and application of certain organisational rights.

When parties conclude a collective agreement, this agreement takes precedence

over the provisions of the Act. A collective agreement concluded in bargaining

council binds:

The parties to the bargaining council who are also parties to the collective agreement; Each party to and the members of every other party to the collective agreement in so far as

the provisions thereof apply to the relationship between such a party and the members of the other party.

The members of the union who is party to the agreement and the employers who are members of an employer’s organisation who is such a party, if the agreement regulates conditions of employment or the conduct of employers in relation to their employees or vice versa.47

The statutory council’s main function is the resolution of disputes within its area of

jurisdiction. These include the establishment of training, education schemes and

administration of pension, provident, medical aid, sick pay, holiday and

unemployment schemes. Collective agreements are concluded to deal with these

issues. Some of these agreements may be extended to include non- parties.48

Lastly are the workplace forms which operate as consultative bodies rather than

negotiating ones. The LRA require an employer to consult in-depth with such a forum

over a wide range matters. Section 86 goes beyond in that it requires an employer to

consult with the forum with regards to any agreement on issues such as affirmative

action and disciplinary procedure policies. If a disagreement is reached the matter

must be arbitrated which amounts to a limited duty to bargain.49

Bargaining level refers to whether bargaining takes place between unions and

individual employees at plant or centralised bargaining or between one or between

one or more unions and a group of employers from a particular industry or

47 Section 31.48 Du Plessis and Fouche 2006:238.49 Du Plessis and Fouche 2006:238.

13

occupation.50 The difference between centralised and decentralised bargaining is

that that the former is bargaining at industry and national level between employer

organisation and several trade unions federation and the latter is bargaining at plant

level between individual employers and trade unions.51

The benefit of centralised bargaining is that employers in the industry will pay similar

wages and grants and also in the same condition of service, this pushes employers

in the entire industry to stand or fall together. It is common knowledge that

centralised bargaining tends to favour big organisations and more organised trade

unions such as Congress of South African Trade Unions (COSATU).52

Courts have rejected to compel bargaining at certain level and, unless bargaining at

a particular level will result indiscrimination or unfairness. The parties amongst

themselves will have to determine the levels of bargaining through an agreement. 53

In the SACCAWU v Elite Industrial Cleaning (Pty) Ltd (CCMA 1997) the union based

its claim for plant level bargaining on the allegation that it represented only 148 out of

a possible 615 employees. Evidence supported this that the cleaning industry

regulated wages and working conditions through a centralised bargaining forum.54

Table 2

Advantages and disadvantages of the different levels of bargainingAdvantages Disadvantages

Centralised bargaining Improved, cost-effective benefits due to a more wide-scale application

Training more cost effective because it is broad based.

Dilution of individual employer’s power

Uniform application of employment standards.

Less flexible Wages established at

a minimum level Smaller organisations

maybe marginalised Interests of select

groups tend to be underrepresented.

Decentralised bargaining Wages tend to accommodate

More costly to implement training

50 Bendix 2010:74.51 Venter et al 2009:379.52 Bendix 2010:75.53 Du Plessis and Fouche 2006:238.54 Du Plessis and Fouche 2006:239.

14

theeconomic realities of individual organisations

Benefits are adapted to the particular needs of the individual organisation

More flexible Unions and

employers are encouraged to more actively engage in dialogue and redress issues impacting on particular workplaces.

interventions on a smaller, more limited scale

Less uniform application of employment standards

Focus may become too narrow and limited-broader economic objectives are not accounted for.

Source: Adapted from Bendix 2010:76.

CHAPTER 4

4. Comparative trends in collective bargaining and industrial action

In this section of the paper comparative trends of collective bargaining and industrial

action in Europe will be discussed and how they relate to the South-African labour

relation.

4.1 Collective bargaining and industrial action trends in Europe

We look at research complied by Schulten a European scholar which starts from

1990 till 2004. This research includes 26 countries most of which are in the

European Union (EU). The differences are clearly shown and trends are analysed.55

There is a distinction between two groups of countries those that were old EU

members and those who are the current EU members. The former countries have

strong multi-employer bargaining systems, sectoral, intersectoral bargaining and a

high bargaining coverage. The former are the new EU members and the UK with

55 Maree 2011:23.

15

weak bargaining institution in which the employer was the dominant bargaining level

bargaining coverage was very low in this group.56

Table 3

Coverage by level of bargaining: Europe 2004Country Collective bargaining coverage Intersectoral bargaining dominantBelgium >90%Finland 90%Ireland >40%Slovenia <100%Sectoral bargaining dominantAustria 98%-99%Bulgaria 25%-30%Denmark 77%Germany 70%Greece 60%-70%Italy 90%Netherlands 80%Norway 70%-77%Spain 80%Slovakia 40%Sweden >90%No bargaining level dominantFrance 90%Company bargaining dominantCyprus 27%

Czech Republic 25%-30%Estonia 20%-30%Hungary 40%Latvia 10%-20%Lithuania 10%Malta 50%Poland 40%Romania no dataUnited Kingdom<40%

Source: Schulten 2005:11.

56 Maree 2011:24.

16

They were giant differences in collective bargaining across Europe, with a clear

relationship between dominant and the coverage level of bargaining. From the table

above we can see that where sectoral level bargaining was dominant, the median

coverage was 77%. The Netherlands and Spain it was about 80% slightly different

from Italy and Sweden which is 90%.57 Intersectoral bargaining the median coverage

from above is 90%, Ireland being the odd country with coverage of 44%. Where

company level bargaining was central, the median coverage was just 27% which is

very low. It was uncertain with France because there was no clear dominant

bargaining level because it had a bargaining coverage of round about 90% very

high.58

Most of these European Union countries had an interaction between various

bargaining levels. It was prevalent in the countries that where intersectoral principal.

Complementary bargaining at company level was common among these countries;

this was accompanied by a hierarchy in the bargaining levels where standards

determined at higher levels could only be improved on lower levels.59

The collective bargaining situation in Europe according to Schulten found from the

year 2005.Next the changes which took place since 1990 which include social

pressures. Decentralisation of collective bargaining in most of these European

countries was common occurrence with a dominance of sectoral or intersectoral

bargaining.60

Countries including Austria, Denmark, Finland, Germany, Italy, Netherlands, Norway

and Sweden had high level agreement broadened their scope for additional

bargaining at company level. These high level agreements led to the surfacing of

flexible and differentiated multilevel bargaining systems which also had an effect on

wages.61

Spain was the only country with an exception to these trends. As a result of reforms

of the previously highly disjointed bargaining system which strengthened the sectoral

bargaining centralisation of collective bargaining took place.

57 Maree 2011:24.58 Schulten 2005:11.59 Maree 2011:24.60 Maree 2011:24.61 Maree 2011:24.

17

Bargaining coverage stayed relatively stable in eleven countries with the majority

using a centralised bargaining system. In seven countries, three used sectoral

bargaining coverage decreased. Spain was the only country which coverage

increased.62

Trade Union membership in Spain had increased with two of the biggest union

confederations membership increasing by 275 000 members.63 In summary it was

found that the trend in collective bargaining in Europe had moved towards

decentralisation of the bargaining level which resulted in the stabilisation or the

reduction in the coverage. It was also established that there was a relationship

between the level of collective bargaining and the extent of bargaining coverage.64

4.2 The legal dimensions of industrial actionSection 213 of the Labour Relations Act of 1995 defines a strike as: “the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or solving a dispute in respect of any matter of mutual interest between employer and employer and every reference to work in this definition includes overtime work, whether it is voluntary or compulsory.”

This definition can be divided into three components. The 1st is that a strike must

constitute either a complete cessation of work or retardation of the work process,

therefore incorporating go-slows, work-to-rule and sit-ins. Secondlythis action must

be concerted meaning that a cessation or retardation of work by an individual does

not form strike action. Lastly strike action can only be taken up in continuance of a

demand which includes collective bargaining.65

The Labour Relations Act of 1995 brought essential changes to the South African

law on strikes, most important the clarification to the position of overtime bans and

whether refusal to work voluntarily or contractual overtime represents strike action.

The Labour Relations Act of 1956 didn’t have a formal definition of overtime bans

constituted a strike, which left interpretation to the courts.66 The general consensus

was that refusal to work overtime was contractually stipulated in a contract of

employment amounted to strike under the Labour Relations Act of 1956. This

62 Schulten 2005:16.63 Fulton 2011.64 Maree 2011:25.65 Venter et al 2009:512.66 Venter et al 2009:512.

18

position was supported in NUMSA and others v Gearmax.67 The Labour Relations

Act of 1995 has clarified the grey areas when it comes to overtime bans. It now

includes both forms of overtime bans, whether voluntary or compulsory, in its formal

definition of strikes. Therefore, employees who refuse to work overtime of any

description will be deemed to be on strike.68

4.3 Limitation on the right to strike and lockoutsSection 23(2)(c)69 makes specific provision for the right to strike, no right in the

Constitution can be regarded as an absolute right. Section 36(1) of the Constitution

discusses the general limitations clause which states:

The rights in Bill Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, taking into account all relevant factors including:

The nature of the right The importance of the right The nature and the extent of the limitation The relationship between the limitation and its purpose, and Less restrictive means to achieve the purpose.

The courts must ensure that several elements are satisfied before a right can be

limited when apply the limitation clause. Firstly the right must be limited by a law of

general application. The right to strike as stated in section 23 of the Constitution is to

be controlled by limitations; a law of general application would have to meet the

necessary requirements. This requirement is included in the Labour Relations Act of

1995, which constitutes a law of general application in the form of a statute.70

Section 64 and 65 of the Labour Relations Act of 1995 give the necessary limitations

on the right to strike. Section 64 provides procedural limitations, while section 65

provides substantive limitations. In terms of section 65 no strikes or lockouts are

permitted in the following circumstances:

Where persons are bound by either collective agreements prohibiting strikes or lockouts over issues in dispute or by an agreement requiring that the issue in dispute be referred to arbitration.

Where persons are engaged in an essential or maintenance service, or Where the issue in dispute is one that the person has the right to refer to arbitration or the

Labour Court in terms of the Act.

67 (Pty) Ltd (1991) 12 ILJ 778 (A).68 Venter et al 2009:512.69 Constitution of the Republic of South Africa.70 Venter et al 2009:520.

19

Section 65(2)71 allows strikes or lockouts where the issue in dispute relate relates to

trade union access to the workplace, deduction of trade union subscriptions and

levies, trade union representatives, or leave for trade union activities. In this

instance, however, the union giving notice of the planned strike action waives its

right to refer the dispute to arbitration for a period of 12 months after giving notice of

intention to strike, thus ensuring that strike action is used only as a last resort.72

If the strike does not have a direct effect, then the dispute will be brought over for a

period of one year before it can be settled through arbitration, leaving the source of

the dispute unresolved. In terms of section 64(3), unless there is a collective

agreement in place that states otherwise, strikes and lockouts or their contemplation

are prohibited if a person adjoin by a collective agreement or an arbitration award

that regulates the issue in dispute.73

This section also prevents strikes and lockouts if the issue in dispute regulated by

any determination made by the Minister of Labour Affairs. During the 1st twelve

months of any determination that has been made in terms of Chapter 8 of the Basic

Condition of Employment Act No 75 of 1997 which regulates the issue in dispute, no

person may part take in or contemplate participation in any form of strike action.74

The 2nd element of the limitation clause in the Constitution requires the court to

consider whether the limitation in question is reasonable and justifiable in an open

and democratic society. When interpreting the limitation, having regard to the

consequences of such strike action should the limitation not be in place. Should the

limitation on essential services not to be in place, then strike action in these sectors

will threaten the life and health of members of society.75

The nature, purpose and the extent of the limitation must be considered. During this

deliberation the court must assiduously note the essential content of the right in

question and also consider less restrictive alternatives to limitation. An example is

the ban on strikes by essential services workers is not absolute, in that parties to the

71 Labour Relations Act 66/1995.72 Venter et al 2009:520.73 Venter et al 2009:520.74 Venter et al 2009:521.75 Venter et al 2009:520.

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relationship may outline a minimum service within the designated essential service,

effective allowing certain workers in the essential service to strike.76

4.4 Trade unions as complex bargaining organization

Because of the centrality of collective bargaining depends on the success of trade

unions, union behaviour can best be understood by asking this important question:

how does a modern trade union build an effective bargaining organisation? More in

detail, what does collective bargaining require of membership, structural design,

design, goals, internal government and administration of trade unions?77

Trade unions must be organised and effectively managed in order to meet the

various needs of their members. The organisation of a specific trade union will

depend on numerous factors which include its constitution, membership and major

objectives.78

Table 4

Methods used by unions to achieve their objectivesCollective bargaining Unions negotiate both at plant and industry level

to improved wages, working conditions.Collective action The right to strike forms an integral part of

collective bargaining. Unions will use this in last resort to force the hand of employer during negotiation.

Afflation Unions often align themselves with federations to get leverage through the support and resources of a bigger body.

Political involvement Unions may seek to bring about political changes in circumstances where they are dissatisfied with the status quo. The tripartite alliance between the ANC, COSATU and the SACP.

Benefit funds Unions often assist their members through establishing medical aid, pension and provident funds.

Education and social programmes Unions are involved in the establishment of education and training programmes at the workplace, as well as social responsibility programmes of organisations.

Lobbying and representation on various bodies

Stronger union federations might attempt to influence policies by lobbying the government to bring about change. They may also belong to

76 Venter et al 2009:520.77 Kochan 1980:124.78 Venter et al 2009:82.

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other bodies such as NEDLAC; an institution where trade unions, together with government, the community and business deal with various issues that affect workers. Change in the labour legislation being one of these issues.

Source: Adapted from Bendix, 2004:159-161.

5. Conclusion

The tendency in the South African collective bargaining system over the past 20 to

30 yearstowards centralisation of bargaining, with the resultant reduction in flexibility

and a lowlevel of expression between different levels of bargaining, has implications

for the South African economy and employment creation.

In contrast to the general trend inEurope and elsewhere in the world, the South

African collective bargaining system hasnot moved towards a more neo-liberal

approach whereas the trade regime andmacroeconomic and monetary policies

have.79 This lack of organisation in policy between different departments of the state

has had negative effect for the South African economy and its ability to create

employment.

South Africa is a young country with enough resources to emulate other European

countries like Denmark. The state, business and trade unions must work together to

find an affordable system. This would be to the advantage of all workers in the

country, as it would improve international competitiveness and help with job creation

without putting workers at risk.

South African labour laws need to be looked at, in order for our economy to compete

with other developing and even developed countries. The National Development

Plan of the government does address this issue but on a long term basis. A solution

is needed as soon as possible.

79 Maree 2011:33.

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BIBLIOGRAPHY

Books

ANSTEY ET AL

2011.Collective bargaining in the workplace.1st Ed.Cape Town:Juta & Company Ltd.

BEAL EF AND BEGIN JP

1982.The practice of collective bargaining.6th Ed.Illionois:Richard D Irwin INC.

BENDIX,S

2010.Labour relations in practice.1st Ed.Cape Town:Juta & Company Ltd.

BUHLUNGU S AND TSHOAEDI M

2012.Cosatu’s contested legacy.1stEd.Cape Town:HSRC Press.

DU PLESSIS JV AND FOUCHE MA

2006.A practical guide to labour law.6th Ed.Johannesburg:Lexis Nexis.

GODFREY ET AL

2010.Collective bargaining in South Africa.1st Ed.Cape Town: Juta & Company Ltd.

GROSSETT L AND LANDIS

2005.Employment and the law.2nd Ed.Lansdowne:Juta & Company Ltd.

KOCHAN,TA

1980.Collective bargaining and industrial relations.1st Ed.Illinois:Richard D Irwin INC.

SLABBERT JA AND SWANEPOEL BJ

2011.Introducing labour relations management in South Africa.1st Ed.Johannesburg:Lexis Nexis.

VENTER ET AL

2009.Labour relations in South Africa.3rd Ed.Cape Town: Oxford University Press.

Internet

23

STRYDOM,TJ

2014.Mining talks collapse.http://www.mg.co.za/miningtalkscollapse.Accessed on 10/06/2014.

Journals

CHEADLE,H

2005.Collective bargaining and the LRA.Law, Democracy and DevelopmentJournal 9(2):147-155.

CHICKTAY,MA

2007.Democracy, minority unions and the right to strike.ObiterJournal 28(1):159-165.

MAREE,J

2011.Trends in the South African collective bargaining system a comparative perspective.South African Journal for Labour RelationsJournal 35(1):7-37.

VAN DER WALT A AND QOTOYI T

2009.Dismissals within context of collective bargaining.Obiter Journal 30(1):63-119.

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