IntroductionStrikes, all too often accompanied by violence, are common in essential services in South Africa, as the recent public sector strike demonstrates. The purpose of this paper is to explore the legality of these strikes and to suggest what the law could do to better manage them.
Essential Services and the Right to StrikeThe starting point is to enquire whether essential services workers have or should have a right to strike at all. The right to strike for the purposes of collective bargaining is one of the fundamental rights enshrined in Section 27 of The South African Constitution. It is an extremely important right because 'If workers could not, in the last resort, collectively refuse to work, they could not bargain collectively. The power of management to shut down the plant (which is inherent in the right of property) would not be matched by corresponding power on the side of labour. These are the ultimate sanctions without which the bargaining power of the two sides would lack "credibility". There can be no equilibrium in industrial relations without a freedom to strike.'2The rationale behind collective bargaining is to maintain industrial peace and as Halton Cheadle says:"it is one of the ironies of collective bargaining that its very object, industrial peace, should depend on the threat of conflict."3The protection given to this fundamental right to strike is thus based on the functional 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 constitutional right to strike but subjects the right to a number of limitations. Among those limitations is a limitation which provides 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.
1 John Brand is a Director and ADR specialist at Bowman Gilfillan Attorneys2 P Davies and M Friedland, in Khan - Freund's Labour and The Law 3rd Edition (1983) 2923 The New Labour Law, M Brassey, E Cameron, H Cheadle and M Olivier4 Section 64(1)5 Section 65(1)(d)The essential services limitation on the right to strike in the LRA has not been subject to constitutional challenge and it is unlikely that it will be. This is because it is clearly justified and properly circumscribed in its scope. The Constitution permits rights in the Bill of Rights to be limited in terms of laws 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.6 There is thus a need to balance the right to strike with other fundamental rights such as those to health care, food, water and social security which are also enshrined in the Bill of Rights.In order 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 - but only to a limited extent. The Committee of Experts on the Application of Conventions and Recommendations of the International Labour Organisation ("ILO") recommends that the right to strike should only be restricted 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".7Interest ArbitrationEssential service workers should not however be left without an alternative to strike action and conventionally they are given the powerful weapon of compulsory arbitration as a substitute. This process allows one party to refer a dispute in essential services to arbitration with or without the agreement of other parties. An arbitrator then has to determine the dispute as it would have been determined if strike action were permissible.As stated earlier, collective bargaining without leverage for both sides robs the process of the equilibrium which is essential for its success and that is why it is conventional, when the right to strike is taken away, to substitute it with compulsory arbitration. In this way equilibrium is maintained at the bargaining table.The LRA8 and the disputes procedures contained in the various public sector bargaining councils all have disputes procedures which provide that any party to a dispute that is precluded from participating in a strike or a lockout because that party is engaged in an essential service may refer the dispute to conciliation and if the dispute remains unresolved then any party to the dispute may request that the dispute be resolved through arbitration.
1 John Brand is a Director and ADR specialist at Bowman Gilfillan Attorneys2 P Davies and M Friedland, in Khan - Freund's Labour and The Law 3rd Edition (1983) 2923 The New Labour Law, M Brassey, E Cameron, H Cheadle and M Olivier4 Section 64(1)5 Section 65(1)(d)The essential services limitation on the right to strike in the LRA has not been subject to constitutional challenge and it is unlikely that it will be. This is because it is clearly justified and properly circumscribed in its scope. The Constitution permits rights in the Bill of Rights to be limited in terms of laws 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.6 There is thus a need to balance the right to strike with other fundamental rights such as those to health care, food, water and social security which are also enshrined in the Bill of Rights.In order 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 - but only to a limited extent. The Committee of Experts on the Application of Conventions and Recommendations of the International Labour Organisation ("ILO") recommends that the right to strike should only be restricted 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".7Interest ArbitrationEssential service workers should not however be left without an alternative to strike action and conventionally they are given the powerful weapon of compulsory arbitration as a substitute. This process allows one party to refer a dispute in essential services to arbitration with or without the agreement of other parties. An arbitrator then has to determine the dispute as it would have been determined if strike action were permissible.As stated earlier, collective bargaining without leverage for both sides robs the process of the equilibrium which is essential for its success and that is why it is conventional, when the right to strike is taken away, to substitute it with compulsory arbitration. In this way equilibrium is maintained at the bargaining table.The LRA8 and the disputes procedures contained in the various public sector bargaining councils all have disputes procedures which provide that any party to a dispute that is precluded from participating in a strike or a lockout because that party is engaged in an essential service may refer the dispute to conciliation and if the dispute remains unresolved then any party to the dispute may request that the dispute be resolved through arbitration.
6 Section 36(1)7 General Survey 1983, paras 213 - 4. And see also Freedom of Association and Collective Bargaining (International Labour Office 1994), para 158 - 98 Section 74(1) and (4)9 See the constitution of Public Service Coordinating Bargaining Council, the General Public Service SectorAny arbitration award made in such arbitration in respect of the State which has financial implications for the State only becomes binding fourteen (14) days after the date of the award unless a minister has tabled the award in Parliament within that period or fourteen (14) days after the date of tabling the award, unless Parliament has passed resolution that the award is not binding.10If Parliament passes a resolution that the award is not binding the dispute must be referred back to the CCMA for further conciliation between the parties to the dispute and if that fails any party to the dispute may request the CCMA to arbitrate11. That arbitration is then final and binding on the State and the workers. Whether or not the parties refer a dispute to arbitration in terms of Section 74, a strike in essential services remains unprotected.Criteria in Interest ArbitrationIn the event that a dispute about wages and working conditions is referred to arbitration, unlike in a rights arbitration, where the arbitrator determines a dispute within the relatively narrow confines of existing rights, 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 which guide interest arbitrators in doing this. The core principles are these:
· replication of a negotiated outcome;
· demonstrated need for the change proposed;
· total compensation - the overall cost to the employer of the deal; and
· appropriate comparison with similarly situated employees doing similar work in similar sectors.
10 Section 74(5)11 Section 74(6)Some countries have codified this common law of interest arbitration into a statute12.An important subsidiary principle which applies in such arbitration is that public sector employees should not be expected to subsidise public services. They are not second class working citizens. If the reasonable wages they should receive are such as to 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.What the interest arbitrator is therefore required to do is to supplement the collective bargaining process by striking a fair and equitable deal for the parties which they were unable to do for themselves. For an arbitrator's determination to be workable it needs to take serious account of the type of arguments that parties make to one another during the collective bargaining process. These arguments include, for example, the ability to pay, prevailing practice in the industry, cost of living indices, previous practice, competition, productivity, public interest, supply and demand and internal and external comparisons and equity.No single criterion has universal application and arbitrators generally apply a combination of standards, the combination varying from case to case. Often the application of these criteria do not point in the same direction. It is therefore necessary to weigh each factor and then on balance make a determination which is fair and equitable.The weight to be accorded to a particular criterion in any given case should be on the basis of the evidence tendered by the parties and the burden is upon the parties to submit evidence which is both factual and material so that an arbitrator is not required to speculate.One advantage of compulsory interest arbitration is that, with a good body of arbitrators, outcomes become predictable and parties are for this reason discouraged from taking up unreasonable positions in negotiation. This in turn actually encourages negotiated settlements. Evidence from Canada and the United States shows that the outcomes determined in compulsory arbitration are very similar to comparable negotiated outcomes.13
12 See for example the Hospital Labour Disputes Arbitration Act in Ontario, Canada which codifies the criteria to be taken into consideration as: 1. The employer's ability to pay in light of its fiscal situation; 2. The extent to which services may have to be reduced, in light of the decision or award if current funding and taxation levels are not increased; 3. The economic situation in Ontario and in the municipality where the hospital is located; 4. A comparison as between the employees and the other comparable employees in the public and private sectors of the terms and conditions of employment and the nature of the work performed; 5. The employer's ability to attract and retain qualified employees.13 In Ontario the base wage rate average annual increases for collective agreements covering 200 or more employees over the period 1998 to June 2009 in the public sector was 2.5% in arbitrated cases and 2.7% in non arbitrated cases. In the private sector the base wage rate average achieved was the same. See Ontario Ministry of Labour, Collective Bargaining Services.Consequences of an Unprotected StrikeThere are potentially serious consequences for parties who take part in an unprotected strike or in any conduct in contemplation or in furtherance of such a strike. Such persons do not fall within the protection provided by the LRA14 which states that persons who take part in a protected strike or in any conduct in contemplation or in furtherance of a protected strike do not commit a delict or a breach of contract by doing so. The result is that any person who suffers delictual or contractual harm as a consequence of an unprotected strike may claim damages from a union and or workers who participated in or furthered the strike. This may be done in terms of the common law or in terms of the LRA15 which gives the Labour Court the power to order the payment of just and equitable compensation for any loss attributable to the strike. Actions of this kind are uncommon because once the dust has settled after a strike employers are reluctant to "rock the boat" with court actions and the average person on the street is reluctant to take on a union in court because of the cost and delay involved. There are however exceptions to this, as a recent case in the Cape High Court indicates.16
The LRA also empowers the Labour Court to grant an interdict or order to restrain any person from participating in a strike or any conduct in contemplation or in furtherance of a strike if the strike does not comply with the provisions of the LRA17. Failure to comply with such an interdict or order is a factor which the Labour Court may take into account in ordering just and equitable compensation18. The Court frequently grants such interdicts and trade unions have sometimes flouted these interdicts in contemptuous terms. Union organisers are, however, seldom summoned before Court to explain their contempt.It may also be permissible for an employer to, for example, suspend performance in terms of or cancel a collective agreement such as a recognition agreement if a union or its members act in breach of that agreement by participating in an unprotected strike. One consequence of this could be that an employer could stop making deduction of union subscriptions from a trade union's members (and paying them over to the trade union) for so long as the union is in breach of the agreement. Once again, fear of aggravating an already troubled relationship with a trade union tends to discourage employers from doing this.
14 Section 67(2)15 Section 68(1)(b)16 See Garvis and Others v South African Transport and Allied Workers Union and Other, Cape High Court (unreported)17 Section 68(1)(a)18 Section 68(1)(b)Defining Essential ServicesSection 213 of the LRA defines essential service as follows:"(a) A service the interruption of which endangers the life, personal safety or health of the whole or any part of the population; (b) the Parliamentary service; (c) the South African Police Service"This definition is in line with ILO Recommendations.19If that was all that the LRA did to define essential services there would be much uncertainty about which workers fell within the definition and which did not. In order to limit such uncertainty the LRA provides for the establishment of an Essential Services Committee (ESC") which must determine which services fall within the definition.20 The LRA provides that the minister, after consulting NEDLAC, and in consultation with the minister for the Public Service and Administration must establish an ESC under the auspices of the Commission for Conciliation Mediation and Arbitration ("CCMA"). Members of the Committee are required to have knowledge and experience of labour law and labour relations21.The functions of the ESC are to conduct investigations as to whether or not the whole or a part of any service is an essential service and then to decide whether or not to designate the whole or a part of that service as an essential service22. The ESC is also required to determine disputes as to whether or not the whole or a part of any service is an essential service . In addition, at the request of a bargaining council, the ESC must conduct an investigation as to whether or not the whole or a part of any service is an essential service.24The LRA also prescribes the process which the ESC must follow in designating a service as an essential service25. In essence the ESC must give notice of an investigation and invite interested parties to submit written representations and to indicate whether they require an opportunity to make oral representations. Interested parties are then given a right to make oral representations in public. The ESC is then charged, after having considered any written or oral representations, to decide whether or not to designate the whole or a part of the service that was subject to an investigation, as an essential service.
19 See footnote 7 above20 Section 7021 Section 70(1)(a)22 Section 70(2)(a)23 Section 70(2)(b)24 Section 70(2)(c)25 Section 71If the ESC designates the whole or a part of the service as an essential service, then the ESC must publish a notice to that effect in the Government Gazette26.Importantly, the Parliamentary Service and the South African Police Service are deemed to have been designated an essential service27. The effect of this is that no investigation and determination by the Essential Services Committee is required in respect of those services. In a recent judgment of the Labour Appeal Court, the South African Police Service has been held to be confined to the service performed by members of the South African Police Service and not other employees employed in the Service28.Designated Essential ServicesThe ESC has over the past fifteen years carried out its mandate and it has, after due notice and public investigation, designated a large number of services as essential services. These are:1. Municipal traffic services and policing.2. Municipal health.3. Municipal security.4. The supply and distribution of water.5. The security services of the Department of Water Affairs and Forestry.6. The generation, transmission and distribution of power.7. Fire fighting.8. The payment of social pensions one month after they fall due.9. The services required for the functioning of Courts.10. Correctional services.11. Blood transfusion services provided by the South African Blood Transfusion Service.12. The following services in the public sector:
12.1 Emergency health services and the provision of emergency health facilities to the community or part thereof;12.2 Nursing;12.3 Medical and paramedical services; and12.4 The following services which support the services referred to in 12.1 - 12.3
12.4.1 catering;12.4.2 medical records;12.4.3 security;12.4.4 porter and reception;12.4.5 pharmaceutical and dispensary;12.4.6 medicine quality control laboratory;12.4.7 forensics;12.4.8 laundry work;12.4.9 clinical engineering;12.4.10 hospital engineering;12.4.11 waste removal;12.4.12 mortuary services; and12.4.13 pest control.
13. The Eastern Province Blood Transfusion Service.14. The Western Province Blood Transfusion Service.15. The Natal Blood Transfusion Service.16. The Northern Blood Transfusion Service.17. The Border Blood Transfusion Service.18. The South African National Blood Service.19. The whole of the services provided by old age homes registered in terms of the National Welfare Act.20. The whole of the services provided by children's homes and places of care in terms of Section 30 of the Child Care Act of 1983.21. Computer services provided or supported by the Central Computer Service of the Department of State Expenditure:
21.1 The Persal system;21.2 The social pension system;21.3 The hospital systems;21.4 The flood control system.
22. The regulation and control of air traffic.23. The weather bureau of the Department of Environmental Affairs and Tourism.24. The following services provided at all airports in South Africa:
24.1 All electrical services;24.2 All safety services;24.3 All security services.
25. Immigration officers grade 8 and above.26. The following parts of sanitation services:
26.1 The maintenance and operation of water borne sewerage systems, including pumping stations and the control of discharge of industrial effluent into the system;26.2 The maintenance and operation of sewerage purification works;26.3 The collection of refuse of an organic nature;26.4 The collection of infectious refuse from medical and veterinary hospitals or practices;26.5 The collection and disposal of refuse at a disposal site;26.6 The collection of refuse left uncollected for fourteen (14) days or longer, including domestic refuse and refuse on public roads and open spaces.
27. The following services provided by the private sector which are funded by the public sector:
27.1 Emergency health services and the provision of emergency health facilities to the community or part thereof;27.2 Nursing;27.3 Medical and paramedical services;27.4 The following services in support of the services referred to in paragraph 27.1 - 27.3 above:
27.4.1 boiler; and27.4.2 water purification.
28. The following services provided by nursing homes which are registered as welfare organisations in terms of the National Welfare Act, 1978, to patients in need of moderate (level 2) and maximum (level 3) care:
28.1 Emergency health services and the provision of emergency health facilities;28.2 Nursing; and28.3 Medical and paramedical services; and28.4 The following services in support of the services referred to in paragraph 28.1 - 28.3 above:
28.4.1 physiotherapy;28.4.2 dispensary;28.4.3 catering;28.4.4 laundry;28.4.5 boiler;28.4.6 transport; and28.4.7 security.
29. The following services provided by the following civilian personnel in the Department of Defence to support the South African National Defence Force:
29.1 The Secretariat for Defence;29.2 The intelligence division;29.3 The finance division;29.4 The parachute seamstresses of the South African Army;29.5 The parachute packing operators of the South African Army;29.6 The military intelligence functionaries of the South African Army;29.7 The store man in the South African Navy;29.8 The provisioning officers and clerks in the South African Navy;29.9 The technical personnel in the South African Navy;29.10 The tugboat personnel in the South African Navy;29.11 The surveyors in the South African Navy;29.12 The South African medical service;29.13 Those serving in military posts in the South African National Defence Force;29.14 The cryptographers in the South African National Defence Force; and29.15 The maintenance services in the South African National Defence Force.
All the services designated by the ESC as essential services have been the subject of notices in the Government Gazette29 . There can therefore be little doubt about who is or is not an essential service worker.
29 Government Gazette number 18043, notice number 784 of 6 June 1997; Government Gazette number 18276, notice number 1216 of 12 September 1997; Government Gazette number 18439, notice number 1542 of 21 November 1997; Government Gazette number 18761, notice number 436 of 27 March 1998; Government Gazette number 22670, notice number 2054 of 21 September 2001; Government Gazette number 27104, notice number 1462 of 24 December 2004; Government Gazette number 28076, notice number 1024 of 28 July 2006; Government Gazette number 29987, notice number 769 of 22 June 2007; Government Gazette number 30805, notice number 304 of 29 February 2008.Disputes about who is an Essential Service WorkerShould any party dispute whether or not a service is an essential service or whether or not an employee or employer is engaged in a service designated as an essential service, then the ESC must determine the dispute as soon as possible30. Therefore, to the extent that there may be any dispute about precisely which employees fall within these designated essential services, such dispute should be remedied by the use of this disputes procedure. Regrettably it has seldom been used and parties have tended to wait until a strike takes place to contest which employees may and may not participate in the strike and even then, they have not made use of the prescribed dispute procedure.Minimum Service AgreementsThe LRA does make provision for employer and trade unions to agree to maintain something less than the whole essential service, or to maintain the whole essential service with a reduced number of staff, but subject to the overriding supervision of the Essential Services Committee. The ESC may ratify any collective agreement that provides for the maintenance of minimum services in an essential service31. If an agreement of this kind is concluded and the Essential Services Committee ratifies it, then the agreed minimum services are the essential service, and the remaining services are no longer treated as part of the essential service.32 Once this happens, only those workers in the minimum service are precluded from striking. The workers who now fall outside the essential service may strike, but the trade union no longer enjoys the right to insist on interest arbitration of the dispute in respect of the reduced essential service.To date, more than 14 years after the LRA came into effect, no minimum service agreement has been ratified by the ESC. There are perhaps two reasons for this. The first is that very few minimum service agreements have been negotiated or agreed. Trade unions appear to have been unenthusiastic about endorsing strike action that has the effect of dividing the workforce between those who must continue to work (because they are employed in essential services) and who therefore continue to earn a salary during a strike, and those who are allowed to strike, and who must then take the full force of the strike on their pay packets - the result of the "no work no pay" principle. Employers, for their part, appear not to have considered it important to pursue the conclusion of minimum service agreements on the grounds that a much larger proportion of public sector workers are then precluded from striking. (Ironically, once strikes have started public sector employers have shown little willingness or ability to prevent strike action by essential service workers as well.)
30 Section 7231 See Section 7232 See Section 72(a)Because in South Africa essential service workers and non-essential service workers are included in the same bargaining unit, trade unions have effectively pursued strike action across the whole bargaining unit, including essential service workers. No doubt they are aware that strike action by essential service workers, despite being unprotected, significantly increases the pressure that is brought to bear on the employer and so enables both essential and non-essential service workers to leverage benefit from the strike by essential service workers.On the other hand, employers are reluctant to divide essential service workers between minimum service workers and others because they find it is problematic enough to distinguish essential from non-essential workers, let alone to work out which workers should be regarded as falling within a minimum service. Since public sector employers typically have a Constitutional duty to provide essential services, they have preferred to maintain all workers within the designated essential service as essential service workers who are (in law) precluded from striking.The second reason why the ESC has not ratified any minimum service agreements is that in the few cases presented to it for ratification it has not been satisfied that the agreements would ensure the proper maintenance of the essential service during a strike. Concluding an effective minimum service agreement that will ensure no disruption to the essential service is no simple task. A simple reference to a number or percentage of workers in the service that are to continue working is unlikely to be effective even in theory, let alone in practice.It needs to be emphasised that if either party really wanted to conclude minimum service agreements it is entitled to make a proposal to the other side and if negotiation fails, then the LRA and the bargaining council constitutions require that the dispute (over the terms of the minimum service agreement to be concluded) may be referred to conciliation and failing that to interest arbitration. The award of the interest arbitrator would then have to be ratified by the ESC before coming into effect. Notwithstanding complaints by some unions about the absence of minimum service agreements, none of them has made use of the procedures available to them in law to force conclusion minimum service agreements.Collective Bargaining in Essential ServicesWhat typically happens in South African collective bargaining is that before negotiation starts, the union delivers a letter to the employer containing a long list of (often extreme) demands. The employer responds by rejecting most of the demands and making low counterproposals on others. Central to both parties' thinking is that the higher the demand and the lower the counteroffer, the more likely it is the eventual midway compromise will favour them. Employers seldom make any counter demands of their own.Once the parties get to the bargaining table, they motivate their extreme opening positions and demean the other side's responses. Unions often walk out of the negotiations at the end of the employer's response, and declare a dispute. The unions assume that real negotiations will probably take place only once the employer is faced with imminent or actual strike action; that the sooner the parties get into dispute, the sooner real negotiations will start. Alternatively, they hope that the employer will make concessions to keep the negotiations alive.Employers often respond with concessions to keep the unions at the negotiation table, without requiring reciprocal concessions from the unions. Indeed, they often get close to their bottom lines before the unions have made any moves at all.Further negotiations are then characterised by slow moves from one concession to the other. The parties manipulate information to hide what is harmful to their position and to emphasise anything that undermines their opponent's stance.As the negotiations progress, the parties incrementally remove non-wage-related issues from the table. As it becomes increasingly difficult to bridge the gap between them, the parties resort to the use of power to pressure each other. Most often, the end result is full-blown and violent strike action. In essential services, this is notwithstanding the requirements of the LRA and the bargaining council constitutions which, as we have seen, require that any dispute involving essential service workers be referred to interest arbitration. Both parties believe that they are more likely to get what they want by means of a power play than by means of interest arbitration.Regrettably the parties risk analyses are usually seriously flawed and the power play delivers a serious loss to workers, employers and the community. Much of what happens in this typical negotiation process would constitute bad faith bargaining in other jurisdictions where a statutory duty to bargain exists33.
33 For a summary of what constitutes bad faith bargaining see Chris Todd - Collect Bargaining Law 46 - 47Strike ViolenceAlthough strike violence is antithetical to the idea of orderly collective bargaining and the freedom to strike even in non-essential services, it is common in South African essential service strikes. The picket line becomes a place of violent conflict, with strikers pressuring non-striking workers to participate, and persuasion often evolves into intimidation. Frequently, the picket line becomes a war zone. Employers have responded to violence with court interdicts and orders limiting workers' rights to picket in the vicinity of the employer's premises. This tends to move the violence to the homes of managers and replacement workers which is more difficult for employers to control.Like interdicts against unprotected strikes, interdicts against strike related violence are often breached with contempt and employers have done little to empower the Labour Court to deal with the contempt. The criminal justice system has also generally failed to bring perpetrators of violence to justice and although strike violence is very common, successful prosecutions are very few.South African unions have found strikes hard to sustain because it is difficult for workers to lose pay for any protracted period and, as support for a strike has waned, the violence has often escalated as die-hard supporters try to keep it alive. The workers frequently come off second best - sometimes losing more in pay than they would gain if the employer accepted their demand, and substantially more than they gain from an eventual compromise.Because of the large pool of unemployed workers that is available in South Africa, employers have often resorted to the use of replacement labour to maintain operations during a strike. Even so, strikes cost employers large amounts in damage to property, the cost of hiring private security firms and paying for lawyers to enforce their rights. The outcome of these strikes is therefore almost without exception a major loss to everyone concerned.Structural ProblemsApart from these process failures there are also serious structural problems in public sector collective bargaining in South Africa which contribute to dysfunctional collective bargaining. The most serious of these is the lack of appropriately designated bargaining units. It is conventional in order for collective bargaining to function properly for the process to take place in appropriate bargaining units. In essence the factors which determine an appropriate bargaining unit are the following. The primary factor is a community of interest among employees. For example doctors, prosecutors and cleaners would generally be considered to have distinct communities of interest and would be negotiated with in separate bargaining units. Other relevant criteria are the extent of union organisation, the desires of employees, bargaining history and the employer's organisational structure34.
34 See Charles J. Morris - The Developing Labour Law Pg 416 - 421The drafters of the LRA deliberately chose not to impose a duty to negotiate with representative trade unions in appropriate bargaining units. Their belief was that, provided proper organisational rights were provided by the LRA, the duty to bargain, with whom, on what matters and in which bargaining units could be left to be determined through voluntary collective bargaining with, ultimately, a resort to power to attempt to force agreement on these matters.35It is arguable that by eliminating the right to strike in essential services and requiring all disputes to be referred to interest arbitration, it is possible to create a collective bargaining structure with appropriate bargaining units for essential service workers by means of interest arbitration. It is however extremely difficult to do this in isolation if there is no overriding duty to bargain provided by the law in the broader public sector.The consequence of this failure to designate appropriate bargaining units is that, for example, even in the educational sectoral bargaining council, teachers and cleaners are included in the same bargaining unit, as are doctors and gardeners in the health sectoral bargaining council. This is notwithstanding a manifest lack of community of interest between employees in these groups. In the recent public sector strike the dispute was over what across the board increase and housing allowance should be paid to every public sector worker from surgeon to labourer in one centralised bargaining unit. This ignores for example the very different housing needs of the different groups of workers. This failure to distinguish the interests of clearly distinct categories of workers would not happen if appropriate bargaining units were regulated by the law, as they are in other jurisdictions.One consequence of the failure to properly recognise the distinct interests of different categories of workers is that many workers believe that their interests are not being recognised and addressed. This may partially explain the manifestation of anger and frustration by essential service workers in the recent strike.
35 See the explanatory memorandum to the LRA.Need for ChangeIf South Africa is to prevent a repeat of what has happened in 2007 and 2010 in essential services there is a need for major change.Trade unions and the Government need to recommit themselves to the constitutional idea of pluralism, partnership and mutual gain. The parties need to recognise each other as legitimate entities with divergent interests in a constitutional democracy.There needs to be a major effort to ensure that parties embrace modern negotiation theory and practice. They need to move away from outdated adversarial negotiation toward modern problem solving and mutual gain negotiation. This kind of negotiation process is typically characterised by:
joint training in modern negotiation theory and practice; the use of independent and trusted expert facilitators; meticulous preparation for negotiation including detailed environmental scans and 'swot' analyses; adoption of problem solving methodology; exploration of causes, interests, needs, fears and concerns in negotiation; a credible exchange of information; creative solution search; objective solution evaluation; trade across issues; the creation of value.
LRA AmendmentsIt is submitted that Section 186 of the LRA seriously fails to meet the standard of fair labour practice contemplated by the Constitution. It is vital that the LRA properly reflect the intentions of the Constitution, particularly in relation to employee and trade union fair labour practices. The Labour Court needs to be given a flexible unfair labour practice jurisdiction similar to the one which the previous Industrial Court had. This would enable the Labour Court, perhaps within the framework of some legislative guidelines, to fashion a dynamic body of unfair labour practice jurisprudence in areas such as the duty to recognise a representative trade union for the purposes of collective bargaining, the duty to negotiate in appropriate bargaining units, the duty to negotiate in good faith, the duty to comply with agreed dispute procedures, the duty to act democratically and in particular to conduct ballots when appropriate, the duty to picket peacefully, the duty to strike non-violently and the duty in particular to respect essential services and to arbitrate interest disputes in those services.If one examines what has happened in the recent past, strikes in essential services have mostly been preceded by breaches of almost all of these duties of fair labour practice and perhaps, if they were enforced from an early stage, many strikes could be avoided.ConclusionThe causes for the high incidence of unprotected and violent strikes in essential services are multi faceted and complex. What South Africa needs to do is to properly analyse all these causes and then fashion solutions that meet all of them. The process needs to be a problem solving one rather than an adversarial and positional one between government, trade unions and political parties.In this process it will be useful to have regard to comparative employment law in social democracies because there is nothing uniquely pathological about the South African worker and employer and there is much that we can learn from the employment law of countries like the Nordic ones, Australia, Canada, the United States, Japan and others who have overcome similar difficulties to our own.Politicians, employers and trade unions probably do not by themselves have sufficient expertise and knowledge about public sector collective bargaining to do a proper analysis and to generate an appropriate set of solutions. There is also a risk that any sensible proposal put up by one of the parties will automatically be reactively devalued by the other parties. What may be best is for the Government to appoint a committee of experts, perhaps chaired by an eminent international person, to analyse the problem and make recommendations for the way forward. Such a process is likely to generate quality solutions and prevent urgently needed reform from being lost in an adversarial battle between employers, trade unions and political parties.
