Tuesday, June 14, 2011

Many observers see the increasing tension within the Tripartite Congress alliance as unsettling the regulation of labour markets.

Many observers see the increasing tension within the Tripartite Congress alliance as unsettling the regulation of labour markets. Critically assess how the contemporary labour market reforms impact on labour, capital and the state.


Table of Contents

1. Introduction
2. South African Labour market reforms in the age of globalization
3. Labour market Regulation and Deregulation by the state of South Africa in response to globalization
4. Failure of the South African BECA legislation to avoid workers exploitation.
5. The Employment Equity Act as legislature that eliminate discrimination in the contemporary workplace
6. Labour market Reforms the cause of socio-economic disparities in South Africa
7. The detrimental effects of labour Market Flexibility
8. Unemployment, inequality and poverty as the common norm of the South African society
9. The government strides in alleviating unemployment in the labour market.
10. Conclusion
11. Data Appendix
12. Bibliography










1. Introduction
Globalization has brought many reforms in the labour market that impact labour, capital and state. With the adoption of liberal market economies many counties have liberalized and deregulated their economies in anticipation of gaining the comparative advantaged posed by trade liberalization. The historical ideological perspective of Adam Smith of the operation of the “invisible hand” were the market forces are determined by the mechanisms of supply and demand have become the sole market regulator with government intervention discarded or kept at minimum. South Africa in the this age of globalization has adopted neo-liberal policies with the anticipation of promoting capital investment, economic growth, gaining comparative advantage in trade and enhance global co-operation of financial markets. Within this era of free market economies tensions have surfaced in the Tripartite Alliance due to differentiation in economic policies to be implemented that are beneficial to labour, capital and state, while the state institution the “government” is accused of being pro-capital than pro- labour. This essay will critically assess how the contemporary labour market reforms impact labour, capital and state and elucidate why many observers see the increasing tension within the Tripartite Congress Alliance as unsettling the regulation of labour markets.

2. South African Labour market reforms in the age of globalization
While the forces of globalization have autonomy effects on government policies the South African government ever since the new democratic dispersion in 1994 South Africa has according to Coetzee [1] faced with the major challenge of forging accelerated growth economic that would raise the country status whilst relieving socio-economic backlogs and imbalances acquired from the apartheid era. According to Steger[2] globalisation is the phenomenon reflected in the liberalization and integration of global markets and the reduction of governmental interference in the economy. The Wealth of Nations, Adam Smith according to Bowles and Edwards[3] proposed the idea that the coordination of all the economic actors within a society, including producers, suppliers, and consumers, could be left to the economic actors themselves. The global environment and the national interests are regarded to be the sole determinants of national policy, the South African government adopted RDP (Reconstruction and Development Program) in 1994 was endorsed by COSATU inline with the Freedom Charter and later adopted by the ANC government. RDP centred on wealth distribution and an increase in state welfare but due to lack of growth, devaluation of the rand and slow inflow of direct investment according to Barker [4] forced the government to consider a relative new policy.

The inception of GEAR in 1996 was the efficacy of neo-liberal policies as the South African government opened its markets to the rest of the world, according to Finnmore [5] Trevor Manuel the Minister of Finance of 1996 tabled a non negotiable frame work GEAR(Growth, Employment and Redistribution Policy) discarding RDP without consultation the government regarded the policy vital to secure economic stability and progress which resulted in more flexible labour market, increase in foreign investment, drop in tariff protection on imports from 10% to 7% to force the domestic industry to become more competitive complied with privatisation of state assets in reduction of state debt. The continuation of the alliance according to Buhlungu[6] enables the ANC to maintain a 'Big Brother' relationship towards COSATU and the SACP and to appropriate the legitimacy associated with the history and political symbolism of the liberation struggle as it displayed that it can implement policies without the acknowledgement of other alliance members.

According to Barker[7] GEAR had several aims and objectives to among them to structure labour market flexibility within the collective bargaining system, enhance human resource development, a social agreement to facilitate wage and price moderation, small and medium-sized enterprise development, restricting of state assets, tax incentives to stimulate new investment ,expansionary infrastructural investment and anti-inflationary monetary policy. GEAR formulation was within the requirements of WTO and Washington consensus of trade liberalization and for the purpose of economic integration of South Africa to the rest of the world. Massive investment resulted the influx of FDIs (Foreign Direct Investment) and through TNCs (Transnational Companies) but with globalization imposing homogeneity or sameness in nation states and workplaces around the world in terms of liberal policies detrimental effects resulted as tension elapsed between the state and labour unions as GEAR was never implemented after consultations, labour still regards GEAR as detrimental to working class.

According Bendix[8] the adoption on the neo-liberal democratic capitalism system has resulted in the treatment of FDI (Foreign Direct Investments) as highly important than the National Investment thereby resulting in the peripheralise and casualize part of the labour force from the formal sector to the unaccountable informal sector hence creating unemployment in the process as most entrepreneurial activities lack funding from the government. Mathekga[9] elucidates that instead of GEAR creating jobs and alleviating poverty, the government policy resulted in retrenchments, downsizing and restructuring

Trade liberalization that is promoted by International organisation such as WTO (World Trade organisation) has been the mostly successful according to Barker[10] in increasing the welfare and economic growth of South Africa which has resulted in the in high labour absorption rate in some of the sectors of the economy such as construction and finance but however South Africa have suffered severely in mining and agriculture as the country is failing to exploit the comparative advantage in agricultural exports . Trade liberalization led to the distribution effect as Haydam [11] propounds because it led to the South African economy to increase the demand for some production factors and reduces of others but this has been the major factor of a jobless economic growth. Whilst globalization is characterised with a route which emphasis skills training, high wages, effective collective bargaining, reward and incentive skills the South African government implemented AsgiSA Accelerated and Shared Growth Initiative for South Africa (AsgiSA) to compliment GEAR. AsgiSA resulted from Government's commitment to halve unemployment and poverty by 2014. Joint Initiative on Priority Skills Acquisition (Jipsa) was established a month later to address the scarce and critical skills needed to meet AsgiSA's objectives. These neo-liberal economic policies were to resolve the rampant effects of globalization on labour, capital and state.

3. Labour market regulation and deregulation by the state of South Africa in response to globalization
Due to the deregulation of the markets atypical unemployment has resulted with capital trying to circumvent the draconian laws such as BECA (Basic Employment Conditions Act) LRA (Labour Relations Act) and EEA (Employment Equity Act) which have been criticised by capital for making the labour market rigid, atypical employment has resulted due the more market flexibility caused by globalization. According to Barker[12] atypical employment reduces labour costs, sidestep burden of labour regulation and avoids the hassle factor associated with the employing workers especially those highly unionised. While one of the most labour market reforms is the high mobility of labour attributed to global reconstruction of the workplace, that has been promoted by high intensification of global economic integration of the South African economy labour has suffered from brain drain and the increase of the unskilled labour whilst capital benefited from highly skilled labour from across the states which results in productivity. While labour broking has boomed the LRA has not protected workers form this exploitative flexibility. Labour brokering is not only a global trend but ineffective labour laws in South Africa also made it easy for the system to emerge quickly. According to Theron [13] the LRA regards labour brokers as the employers of workers, even though labour agencies are not employers, according to the definition of employer.


In order to cut labour costs and reduce the costs of productivity and become globally competitive Webster and Von Holdt [14] emphasised that most companies have decided to retrench and downsize its operations. With the innovation of IT technologies human labour is now being replaced by machines hence casualisation and externalisation of employment has resulted. According to Castells and Ports [15] the casualization and externalisation of the employment relationship is part of the broader process of informalisation of work, a process that has shifted employment way from standard employment generating activities that are unregulated by the institutions of society in a legal and social environment. Due to these massive factors that led to the government to deregulate the market, the government have put in place markets reforms inform of legislation to protect the state from dangers of socio- economic challenges causing social unrest such as strikes, unemployment, high increase in crime and high exploitation of labour by capital.

The introduction of new labour laws according to Clarke [16] ushered in era in industrial relation in South Africa and a stronger regulation to regulation to address the extreme inequality and discrimination that characterised the apartheid work place. The ANC adoption of neo-liberal macro economics and industrial policies impeded the overall transformation of the labour market formal employment has shrunk, informal and subsistence work has become more prevalent and various non standard employment have grown significantly. According Clarke [17] new labour legislation has inadvertently contributed to these employment developments. Weaknesses and loopholes in the laws have led to the growth of distinctive forms of non-standard and precarious employment, such as "independent" contractors. Alongside these changes, "old" forms of casual and contractual employment have continued as holdovers from the apartheid labour market.

The Labour Relation Act as the fundamental legislation in recognition of workers rights
The Labour Relations Act was passed by Parliament on 13 September 1995 according Du Toit et al (1998)[18] it formalised and codified organisational rights, laid a basis for worker participation in the workplace, granted workers a meaningful right to strike (without fear of dismissal), introduced a new dispute resolution system, provided strong support for collective bargaining, and extended coverage o f its provisions to most workers. According to duT oit [19] the key goals of the Act was to shift industrial relations away from its adversarial heritage and create a new system that would be able to meet the challenges posed by globalisation .With Globalization fuelling the conflicts between capital and labour as they have different interests LRA provides the remedies for conflict resolution though a dispute resolution system, the establishment of the Commission for Conciliation, Mediation, and Arbitration (CCMA) through this act was very fundamental by the state to ensure peace between capital and state.


The Labour Relations amendment of 2010 according to Ministry of Labour[20] will regulate contract work the amendment aims to stop the practice of repeated contracting for short-term periods. The onus will be on employers to justify the use of short-term or fixed term contracts, in place of contracting employees on a permanent basis. It will further address the problem of labour broking; the Labour Relations Amendment Bill proposes to repeal section 198 that deals with Temporary Employment Services in the Labour Relations Act (no 66 of 1995). The Department is introducing a new Employment Services Bill which will address both Private and Public Employment Services. The new proposed LRA amendments will result in the decrease of the labour absorption rate in the formal sector as new tenants in the labour market will find it hard to get permanent work as not capital will sacrifice costs associated with labour without assessment of the worker for some period before getting permanence. According to Le Roux [21] the LRA sees the important role for more centralised bargaining in particular at sectoral level, however bargaining council’s agreements might very well result in a high level wages as well as standardisation of work as capital is provided with platforms to determine markets wage rate trends.

In order to avoid exploitation of workers and ensure decent work for all workers as well as to protect the employment relationship, introduce laws to regulate contract work, subcontracting and out- sourcing, address the problem of labour broking and prohibit certain abusive practices. The BECA is important in establishment of the workers conditions of employment according to Clarke [22] aimed to advance equity and workers' rights, while balancing these goals against the need to create more efficient and competitive workplaces. The Act established minimum conditions of employment and extended them to all workers in terms of working time, maternity leave, overtime rates, and annual leave provisions. However the act has been condoned by capital as creating some rigidity in the labour market but the state has defended this allegation elaborating according to Clarke (2004;562)[23] regulated flexibility," was accepted as a way to balance "the protection of minimum standards and the requirements of labour market flexibility”.

5. Failure of the South African BECA legislation to avoid workers exploitation.
The inclusiveness of the legislature in all sectors of the economy has left the informal sector workers to lament under the harshness of labour market flexibility according to Clarke[24] all informal workers are completely excluded from the legislation and many casual workers continue to receive inferior wages and benefits and are entitled to only partial protection with the BECA not taking into consideration workers that work under 24 hours the owners of capital are bound to circumvent from these draconian laws through these loop holes. Clarke [25] further more elaborates that informal work has grown significantly and the poor regulated temporary employment sector is quickly becoming one of the largest in South Africa. With increased legislation by the state, capital investments have reduced as they are high costs in South Africa attributed to labour as high unionism is dominant. Standardization of work has resulted as the enforcement of these legislatures has been weak.

6. The Employment Equity Act as legislature that eliminate discrimination in the contemporary workplace
The Employment Equity Act formulated in 1998 in the bid to create fairness in the workplace that is being dominated by the owners of capital after profit extraction according to Clarke [26] the Act promotes equal opportunity and fair treatment in employment "by eliminating unfair discrimination in any employment policy or practice" (EEA 1998, Section 5), listing nineteen grounds of prohibited discrimination by employers. They are extensive and include: race, gender, sex, pregnancy, marital status, family responsibility, ethnic or social origin, colour, sexual orientation, age, disability, religion, HIV status, conscience, belief, political opinion, culture, language or birth (EEA 1998, Section 6(1)). However the protection of labour in terms of promoting non discriminatory acts on the contemporary workplace has been challenged by high contestation from capital as they have found ways to categorise the current workers according to skills the unskilled face job insecurity while the skilled enjoy more benefits of capital. According to Clarke [27] under apartheid, race determined workers' access to protected employment now, new contractual arrangements play a critical role in determining employment protection for different groups of workers.

In recognition of discriminatory tendencies that are being created by the forces of capital the government introduced the Skills Development Act (SDA) according to Clarke[28] was set out to address labour market segmentation that is linked to gaps and inequalities rooted in skills as well to be a mechanism for promoting investment in training in order to help reverse slow economic growth and the lack of competitiveness in many industries. Globalization has emphasised on efficiency and effectiveness of productivity, as well it has made capital to posses varies profit extraction methods, the need for skilled workforce is important. However the South African government has struggled to offer better educational incentives to majority of the population, Sector Education and Training Authorities (SETAs) qualifications have lacked credibility on the labour market but nevertheless skills have been enhanced.

7. The detrimental effects of labour Market flexibility in South Africa
The South Africa state by adopting neoliberal policies brought about market flexibility, a more flexible market emphasized by GEAR flexibility in working hours, working practices, appropriate wage policies. Horwitz and Eskine [29] labour under globalisation market flexibility has been enhanced work process flexibility, work place process flexibility which has been fuelled by multi-skilling, job rotation and different forms of team work to structure the work place to all the employee participation, work time flexibility has also been alters the patterns of working time through continuous shifts systems hence now the labour markets has been characterised by part time work, temporary work and job sharing. Wage flexibility in this era of free market economies has also been enhanced Horwitz and Eskine [30]elaborates that wages have shifted from uniform pay systems to performance based pay either or an individual team, the most detrimental labour market flexibility that has been the sole result for unemployment and social degradation is numerical flexibility which allows the owners of capital to reduce the size of the labour force to the laws of supply and demand this has resulted in subcontracting of labour, outsourcing, the use of casual or seasonal labour and homework .

Numerical flexibility promotes employers to easily retrench and dismiss the work without any state or union involvement. Mantashe [31]points out those permanent jobs have been replaced by flexible jobs that lack a “standard employment relationship”. Theron [32] argues that “standard employment relationship” implies that workers work full time (this implies that workers have one employer), work in the building of an employer (this indicates that there is a workplace that is controlled by the employer) and that workers are appointed permanently (the assumption here is that there must be a full‐time contract of employment, not a fixed term period or contract).

8. Labour market Reforms the cause of socio-economic disparities in South Africa
The labour reforms have caused detrimental effects to the South African state; the problem of unemployment and other social degradation effects such as poverty, crime, inequality has resulted. The costs of unemployment can be very devastating to South Africa as the economy production lowers which results in inflation and a low GDP. According to Haydam[33] the costs of unemployment is divided into two the economic and non economic costs, the economic cost is the lost of output of workers who are unproductive and the non economic cost results in the high level of crime and labour unrest. In South Africa the economic cost of unemployment can be noticed in the low level of GDP and the increases in transfer payment of the government for example the child grants and the UIF (unemployment insurance funds) this raises government expenditure. With one of the highest crime rate in the world it shows that the people who are involved in the crime activities are unemployed.

One of the factors impacting on the performance of the labour market to eradicate the disparities like the decrease in the labour absorption rate on the market is the increase in the costs of labour; South Africa has a highly unionised labour market. COSATU as the dominate workers union advocate for minimum wage rate for all workers, in relation to the inflationary environment. According to Barker [34] the major factor that impacts employment creation and performance of the labour market is the cost of labour a trade off between employment and relative labour costs is not foreseeable. As cost of labour increase employers become more mechanised or their earnings decrease and they are unable to invest sufficiently for the economy to maintain momentum, lose their market share and shrink. Wage increase impact negatively on employment to the extent that over the long term according to Finnermore and Rensburg[35] the increase in the costs of labour outstrips productivity it will discourage employment.
9. Unemployment, inequality and poverty as the common norm of the South African society
Unemployment results in other social ills such as poverty according Finnermore and Rensburg[36] the costs of unemployment rate in SA is relatively phenomenally high with slow growth the costs of the malfunctioning labour market are borne primarily by poor people between 36% to 53% South African live below the poverty line. The South African population as figure one illustrates[37] growth ranges between 47 million and 49 million the availability of a larger labour force is available but job creation has between sidelined with economic growth in the past government policies. According to Barker[38] higher economic growth does not invariably and automatically translate into increased employment. The unemployment rate according to Stats SA[39] 24, 0% represents 4.5 million people of the 16.8 million total labour force persons in labour market. The unemployment rate according to Altman and Hemson [40] is also serious among the youth about 37% of those aged 15 - 34 are unemployment. From 1995 the high rate of unemployment has increased according to the 2010 Budget Review (2010:36) employment fell by 870 000 during 2009, raising the jobless rate to 24.3% – the highest level in five years. While with the Gini- coefficient of 0.68 inequality is increasing, which is the highest in the world, the government during the 2011 nation state address set aside 9 billion for job creation grant to eradicate the effects of unemployment.

10. The government strides in alleviating unemployment in the labour market.
The government as the last employer through the establishment of the Expanded Public Works Programme (EPWP) was able to address the problem of unemployment in the Labour market the EPWP was launched in 2003 according to Altman and Hemson[41] the EPWP was a short to medium term response to high unemployment and marginalization aimed to provide work opportunities, training and launch pad trainees into labour market. With the South African government the last resort of employment creation, government programmes to halve the rate of unemployment in the labour market is crucial to achieve its macroeconomic goals such as the EPWPs. The EPWPs have created a lot of opportunities in the South African labour Market according to the 2010 Budget review (2010:39) the expanded public works programme created 1.6 million short-term jobs during its first phase from 2004 to 2009, exceeding its target of 1 million, 52 billion in the budget was allocated to the EPWPs and 2.5billion of the total will be allocated for labour intensive this means a lot of employment opportunities will be created this year. The unemployment trends as illustrated figure two[42] have been on the decrease from 2000 from 30% to 24.0% in 2010 all can be attributed to government efforts.



11. Conclusion
Although tensions exist between the Tripartite Congress Alliance because of the non consultation of the GEAR macro economic policy in 1996, globalisation has been the most drive in unsettling the labour market. Globalisation has forced the state to pro-capital than being pro-labour as capital is the major determinant of economic growth and development. Strategic unionism has been fuelled by the ramifications of globalisation rendering union activity weak in the South Africa state as most of the economic decision are in line with the global trade liberalization statutes of WTO. Globalization imposes homogeneity in production, state policies and every aspect of life, labour in South Africa has been severely been affected due to the State economic integration to the rest of the world. Market flexibility has impacted the state and labour creating spheres of social ills, unemployment mainly caused by economic liberalization. The contemporary labour market reforms have had an adverse impact on labour and the State, with capital mainly being protected in by state legislature and the global ideological perspective of neo-liberal economies.
12. Data Appendix
Fig one





% of population growth
Years

Fig two








% of unemployment



Years

13. Bibliography
Altman M. and Hemson D. The Role of Expanded Public Works Programmesin Halving Unemployment(2007) Human Sciences Research Council (HSRC) South Africa
Barker.F, The South African Labour Market theory and practice (2007) Fifth edition Van Schailk Publishers

Budget Review 2010 available on;http://www.treasury.gov.za/documents/national%20budget/2010/review/chapter3.pdf [accessed on the 8th of March 2010)
Bendix, S. (2000) The Basics of Labour Relations. Cape Town: Juta and Co, Ltd.
Buhlungu, S. (2005) ‘Union-Party Alliances in the Era of Market Regulation: The Case of South Africa’, in Journal of Southern African Studies. Vol 31 No 4. www.jstor.org/stable/pdfplus/25065042.pdf
Bendix, S. (2000) The Basics of Labour Relations. Cape Town: Juta and Co, Ltd.
Castells M and Ports A 1989 World underneath: The origins, dynamics and effects of the informal Economy in the informal Economy: Studies in Advanced and less developed countries John Hopkins University Press
Clarke, M. (2004) ‘Ten years of Labour market reform in South Africa: Real Gains for Workers? in Canadian Journal of African Studies. Vol 38 No 3. www.jstor.org/stable/pdfplus/4107254.pdf
H. Adam, Van Zyl Slabbert and K. Moodley, Comrades in Business: Post-Liberation Politics in South Africa (Cape Town, Tafelberg, 1997), p. 140
du Toit, D., et al. 2000. Labour Relations Law: A Comprehensive Guide. Cape Town: Butterworth.
du Toit, D., et al. 1998. The Labour Relations Act of 1995. Cape Town: Butterworth.

Haydam N; 2002; The Principles of Macro economics 2nd edition: Van Schaik: Pretoria

Holdt K V and Webster E .2005: Beyond the Apartheid Workplace: UKZN press: South Africa

Horwitz 1995 Flexible work practices in South Africa; economic, labour and regulatory considerations Industrial Relations Journal 26(4) 257-66
Theron, J. 2005. Employment is not what is used to be: The nature and impact of work restructuring in South Africa, in K. Von Holt and E. Webster (eds.). Beyond the apartheid workplace: Studies in transition. Pietermariztburg. UKZN Press.
The academic debate over globalisation” from Steger, MB 2002 Globalism: the new market ideology, Lanham: Rowman
Mantashe, G. 2005. Labour market flexibility: Will the social impact help? Paper presented at Harold Wolpe memorial seminar, 5 October 2008 [Online]. Available: www.google.com [2008, 2 February].

[1] Coetzee (1999) the dilemma of the South African government in adopting a people cantered economic policy that is targeted in improving the welfare and to adopt a policy that would ensure regional and international economic integration to enhance economic growth.
[2] Steger (2002;49) Globalization is the major cause of integration of the South African economy in the global markets due to the benefits that are linked to trade liberalization this has forced to SA state to focus on being a developmental state.

[3] Bowles and Edwards (1993;31) Adam Smith’ s ideology of the “Invisible hand” free market economies with no intervention as the primary sole determinant of market economies that national states are adopting.
[4] Barker (1999;155) Globalization autonomy over the state economic policy and every aspect of life, globalization’s effects on labour, capital and the state has caused the state to be more pro-capital than labour.
[5] Finnmore (2006;47) Non consultation of the GEAR policy is the major contributor to Tripartite Alliances clashes between the state and labour.
[6] Buhlungu ( 2005;175) The dominance of the ANC in the Tripartite Alliance in setting economic and political agendas while the Tripartite alliance is used to gain labour approval only in economic policies and as an election campaigning agent by the ANC.
[7] Barker (2008;186) Gear objectives where mainly centred on economic growth although it had “trickle down effects” on labour. Labour within the policy was more of a secondary issue than primary.
[8] Bendeix (418;1996) The result of the neo-liberal policies on capital resulted in major inflows of FDIs and a significant rise in GDP but was more detrimental to labour as more labour flexibility meant more job casualization and peri- phasing.
[9] Mathega (2009;3) The negative result of the Gear policy was in the alienation of labour as also an important player in economic development.
[10] Barker (2002;150)Neo-liberal policies such as Gear resulted in economic development with major investment in the sectors of the economy such as manufacturing, textile, mining, finance and construction
[11] Haydam (2002;146) Trade liberalisation opened the SA state to new opportunities such as capital inflows and technological improvements.
[12] Barker (2007;150) Atypical unemployment is the child brain of capital, as capital try to find more ways of extracting profits in the labour market.
[13] Theron ( 2009;43) (b) The LRA’s recognition of exploitative labour methods by brokers is disturbing as it is suppose to protect workers but it has left them vulnerable to the exploitative nature of capitalism.
[14] Webster and Van Holdt (2005;290) In realisation of lowering production costs companies retrench and downsize, the innovation of new technologies has replaced labour, capital its only determination in maximizing profits, labour is discarded in place of machinery.
[15] Castells and Ports (1989;12) Informalisation of work has created standardization of work that has resulted in high exploitation of the workforce.
[16] Clarke (2004;558) (a)New labour laws in the South Africa state changed the course of Industrial Relations, but high exploitation has resulted of the workforce but nevertheless it is possible to note that workers have been protected to some extent.
[17] Clarke (2004;559) (b) Labour laws contribution to the structure of the labour market where capital regarded labour as a commodity that can be intensively exploited or discarded if it does not led to profit accumulation.
[18] Du Toit et al (1998) LRA statutes recognised the rights of the workers but is fails to protect them fully from capital exploitation.
[19] Du Toit et al (2002;39) LRA legislature was formulated to cope with globalization not with the needs of the SA workers, it is biased to the attributes of globalization hence it was not formulated for the betterment of South Africans.
[20] Ministry of labour (2010) LRA amendment to promote permanent contracts rather than temporary in order to reduce exploitation will have detrimental effects as capital will only be left with one option “not to employ at all”.
[21] Le Roux (1985;85) The recognition of the LRA of the bargaining process in the labour markets will result in more consensus between labour, capital and state but it is invertible that one of the three will be suppressed.
[22] Clarke (2004;561)(a)The importance of BECA influencing good working conditions of the worker has resulted in the labour being protected from the effects of capital exploitation.
[23] Clarke (2004;562)(b) The state can protect the workers in what is term regulated flexibility but this has not been enough in SA as the owners of capital usually threaten to stop production if the state implement regulated flexibility.
[24] Clarke (2004;564) The exclusion of workers in the informal sector has resulted in high exploitation of the SA workers in the labour markets the LRA is totally inclined to the benefits of capital and less to labour.
[25] Clarke (2004;565) The growing informal sector in the SA has mean more exploitation of the uncounted labour force by capital.
[26] Clarke (2004;562) The Employment Equity act as legislation made remarkable strides silencing the apartheid workplace but the eradication of racial oppression doesn’t mean the exploitation in the contemporary workplace is over.
[27] Clarke (2004;564) Contractual arrangements in the labour market have been complied with some of exploitation, race and background no longer matters.
[28] Clarke (2004:263) The SDA in enhancing skills development in South Africa was in reaction to globalization which eliminates unskilled workforce into spheres of abject poverty.
[29] Horwitz and Eskine (1995;290) Globalisation on enhancing market flexibility, resulted in exploitation of labour as it forced the a state to jump from other stages of development such as socialism to capitalism.
[30] Horwitz and Eskine (1995;290) Market flexibility has resulted in unemployment as causualisation of the worker force and standardization has resulted hence the destruction of formal employment to non permanent informal employment.
[31] Manatashe (2005;4) The distraction of job permanence to temporary work has resulted in more exploitation of labour as the SA population is willing to work at any wage rate that is below the government determined wage rate.
[32] Theron (2005;296) Full time employment is now a rare opportunity for workers in SA as employers try to avoid the draconian laws that limits then from attaining huge profits hence exploitation is the only way adopted by the capital owners.
[33] Haydam (2002;1999) The cost of unemployment to the South African State has been the escalating crime rates and gini-co-efficient of 0.68 which are all the highest in the world.
[34] Barker (1999;149) Unemployment is the major cause of the government increase in social spending, as it occasionally increase its safety nets to the population living in abject poverty.
[35] Finnermore and Rensburg (2000;154) High trade union activity in SA which fight for increase in wages occasionally has resulted in capital unwilling to create employment opportunities due to ever escalating labour costs in production.
[36] Finnermore and Rensburg (2000;237) More people live in abject poverty due to no or less employment opportunities caused by globalisation and state policies
[37] http://www.indexmundi.com/g/g.aspx?c=sf&v=74 The number of the SA population is ever increasing due high birth rates.
[38] Barker (2008;185) High economic growth does not mean high employment figures, GDP of SA is better in relevance to other African countries.
[39] statssa.gov.za(2010)The number of the labour force in South Africa is huge whilst the labour absorption rate is very low hence unemployment figures don’t not consist only the uneducated or the unskilled.
[40] Altman and Hemson (2007;9) The youth or new entrants on the labour markets have the largest figure of unemployment.
[41] Altman and Hemson (2007;9) The government as the employer of last resort implemented the EPWPs but they lack permanence and are seasonal hence the employed people are laid off as soon the project ends.
[42] http://www.indexmundi.com/g/g.aspx?c=sf&v=74 The decrease in employment figures can be attributed to the government’s objective to curb unemployment to 14% in 2014 as well to 6.4 by 2024.

Strikes in Essential services

Strikes in Essential Services
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.



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.


: Critically analyse nationalism as an ideology.

Introduction
Nationalism unites people of different classes and ideological perspectives and enhances same understanding of political, economical and social problems affecting them. Historically nationalism has been used for national building and spearheading revolutionary wars against oppressive rule. Religious, political and economic groups have used nationalism to unite and forge ahead with one spirit in achieving their goals. Leaders such as the famous Martin Luther King, Churchill and Roosevelt used nationalism as a weapon to unite their nations against enemies for the preservations of democratic principles. While nationalism has also been used to promote barbaric and horrible acts on other races, it has been used by dictators and powerful hungry politicians the likes of Hitler and Mussolini to silence opposition alliances and exclude other races from socio-economic benefits. Therefore from history nationalism can be seen a force for self-preservation, bravery and admiration or for retribution, subjugation, enslavement and discredit. This essay will critically analyse nationalism as an ideology.
Different Definitions of Nationalism and features
In the modern realm nationalism has been subjected to different definitions, just like any other ideology the definitions are a legion. Proponents from different fields have come up with different definitions; no actual definition can be classified as substantiative and fundamental in defining the term nationalism. According to Smith nationalism is defined as “a process of formation or growth of nations”, as a “sentiment or consciousness of belonging to a nation”, as a “language and symbolism of the nation”, as a social and political movement on behalf of a nation and lastly as a “doctrine or ideology of a nation” (2010: 5). The major question of nationalism is its viability to be classified as an ideology various proponents of ideologies view nationalism as lacking values and characteristics to be categorized as an ideology. According to Quayam (2004) despite nationalism quality, and the difficulties involved in defining it, the phenomenon still enjoys profound political and emotional legitimacy in modern society. Nationalism is embedded with its own features according to Alter (1989:70) these include consciousness to the uniqueness of a group, respect of ethic, linguistic or religious homogeneity; emphasizing of shared socio- cultural attitudes and memories.
Is nationalism an Ideology?
Although there are contending views on whether nationalism is an ideology or not, nationalism must evaluated and analysed to understand the weakness and merit of the ideology. According to Freeden (1998:749) in order of nationalism to be an ideology it has to be unique to itself alone and need to provide a comprehensive range of answers to the political questions that society generate. Nationalism has through historical context has not really provided the answers to political questions however it has been paramount in uniting people of different classes and ideological perspectives and enhances same understanding of political, economical and social problems affecting them. Freeden characterises nationalism as a thin centred ideology that “arbitrarily serves itself from wide ideational contexts by the deliberate removal and replacement of concepts” (1998: 750).

The very different conceptual arrangements of nationalism in transcending to the perceptions and needs of different communities according to Freeden makes the modern literature on nationalism to be full broadly dichotomous, distinctions between liberal, constructive, moderate, aggressive and integrative nationalisms (1998:751). In my own argument nationalism is a poor ideology which lacks characteristics such as those embedded in socialism and liberalism Freeden (1998:751) retaliates the same sentiments as its structure is incapable of providing its own solutions to questions of social injustice, distribution of resources and conflict management as other ideologies provide. In English dictionary most words that end with ‘ism’ are considered as ideologies but most of them lack substantial merits to be classified as ideologies.
Contending aspects of Nationalism
However although different contending views envisaged in the categorization of nationalism, nationalism is a broader political ideology that does bestow a picture of what happens in human societies. According to Alter (1989;5) nationalism can mean exploitation and emancipation these attributes make nationalism difficult to understand it justified expulsion of people in their homelands and justified territorial conquests. Nationalism has been used to amplify differences, promote generality and cause prejudiced thinking in nations according to Freeden “nationalism contain certain assumptions about a nation’s independent attributes and will be reluctant to accept the detachment of individuals from national aims though different degrees of holism may apply” (1998:753). Hence nationalism is paramount in creating a nation state that is driven by same strategic objectives and provides an umbrella in the country policies. However Freeden (1998:753) critics nationalism as it enforces homogeneous and holistic tendances which an individual is subservient to a monolithic set of values attached to national wills and purposes. This would imply that individuals can not display their opposition to the national policies that are embedded with nationalism synthesis according to Quayum (2004) “radical nationalism acts as opiate of the people, making them irrational and fanatical, blind to the senses of truth and justice, and willing to both kill and die for it, perpetuating a logic of “lunacy” and war, instead of a cycle of freedom and peace”.

Whilst a nation is pluralistic with different tribes, ethnic, religious and political institutions homogeneity imposed by nationalism alienates some groups and confine them to ideological perspectives not originally formulated by them. Quayum (2004) retaliates that Tagore saw “nationalism as a political and commercial union of a group of people, in which they congregate to maximise their profit, progress and power; it is “the organised self-interest of a people, where it is least human and least spiritual” Nationalism enables citizens within a state to benefit and maximize their returns due to enshrined goals formulated as a nation. Alter propounds that nationalism brings about national consciousness and creation of a state whose general modes are centralized, uniformity and efficiency (1989;22). However nationalism has its critic as an ideology as according to Quayum (2004) it is vulnerable to regressing into more natural social units of clan, tribe and race, or language and religious groups, it’s very formative process introduces a self-deconstructing logic in it.
The historical development of Nationalism in South Africa between the Afrikaners and the Africans were the same notions of race, ethnic ties, religions affiliation Mark and Trapido (1987:10) postulates the both types of Nationalism developed and were constructed out of older building blocks of language, ethnic ties and religions affiliation. The Dutch Reformed Church according to Mark and Trapido (1987:11) provided a forum for local politics because of British institution and the use of exclusion of the majority of Cape Dutch from public life while within the African nationalism Christian imagery and believes encouraged the popular consciousness vast number of African men and women in both towns and countryside the church provided the strategies of the survival in the harsh and heartless conditions of SA towns. Nationalism in this context can be used as a political forum that asserts unity of different racial groupings however Quayum (2004) elaborates that nationalism places the dominant group at the centre, pushing the minority population to the periphery.

Other scholars have criticised nationalism as a mere invention to create spheres of exploitation. Gellner observes that nationalism is an ‘invention,’ ‘fabrication’: “Nationalism is not the awakening of nations to self-consciousness: it invents nations where they do not exist” (1993:169). The very inception of nationalism in the 18th and 19th century during industrial capitalism period has been question to it nature and purpose according Quayum (2004) as he quotes Tagore he retaliates that nationalism is only about organisation of politics and commerce, where human relationships are regulated, so that men can develop ideals of life in co-operation with one another but rather a political and commercial union of a group of people, in which they congregate to maximise their profit, progress and power; it is “the organised self-interest of a people, where it is least human and least spiritual”. However if nationalism is about organisation of politics and commerce the nation is bound to benefit from politics and commercial sectors that are moulded with ideological perspectives involving the population.
Nationalism has been used to justify horrible acts in the history of human kind, according to Quayum (2004) he quotes Tagore propounding that the fetish of nationalism can be a source of war, hatred and mutual suspicion between nations. Nationalism was the justification of Germany going to war with the rest of the world waging war against other nations for its self-fulfilment and self-aggrandisement. The unification of Germany was solely on the principles of nationalism. The Nazis and Adolf Hitler within their nationalism ideological perspectives of Christian nationalism influenced the Germany Nazis to participate in the holocaust and other horrible acts against the Jews. In Africa nationalism has been used to legitimize unelected leaders and governments that abuse power in the name of nationalism. Alter (1989:5) elaborates the nationalist interests were the driving forces of European colonialization of Asia, with colonies characterised with intolerance, inhumanity and violence. However nationalism was the sole responsible for the development of Africa Nationalism responsible for the spearheading the war against oppression and colonialization and ensuring an independent Africa.
Conclusion
Nationalism as an ideology has lacked that uniqueness to itself alone and to provide a comprehensive array of answers to the political questions that society generate. However nationalism has unified nations against their oppressors and enhances common understanding of a nation state goals and objectives neither good nor bad. Although there is high contestation of classifying nationalism as an ideology due to its lack of values and characteristics to be classified as an ideology , nationalism has been a unifying force of citizens in a nation and very fundamental in creation of a state. Nationalism provides a sense of identity and nationalistic pride on the citizens which are essential factors for nation state development.
Bibliography
Alter P, 1989 Nationalism London Edward Arnold Press
Freeden M:1998, Is Nationalism an Ideology? Mansfield Collage Oxford press
Gellner, Ernst. 1983,Nations and Nationalism. Ithaca: Cornell UP,
Smith A :2010 Nationalism 2nd edition, Revised and updated UK Polity Press
Marks, S and Trapido, S:1987 Introduction The Politics of Race, Class and Nationalism in the Twentieth Century SA London pp10-22 and pp36-62
Mohammad A. Quayum 2004: Imagining “One World”: Rabindranath Tagore’s Critique of Nationalism http://www.mukto-ona.com/Articles/mohammad_quayum/Tagore_Nationalism.pdf (accessed on 07/04/2010)