The Labour Relations Bill, just released for public=20 debate, will turn the current system on its head.=20 Clive Thompson analyses it
The 1995 Labour Relations Bill promises a third=20 revolution in South African labour law. The first was=20 in 1924, which saw the first comprehensive labour=20 statute in the wake of the Rand Revolt; 1979 brought=20 the deracialisation of labour law.
The bold draft Bill released on Thursday promotes=20 conciliation and mediation in industrial relations=20 rather than adversarial relations, worker participation=20 and a controversial model of corporatism.It is the=20 fruit of comfortable compromise between big business=20 and big unions.=20
The big winners will be well-organised unions and=20 employers who are prepared to shake off their bad old=20 fighting ways. They are given a chance to enter into a=20 new era of constructive, participative relations.
The losers are likely to be isolated employees,=20 managers, workers in small and medium enterprises,=20 small unions, unions trying to make headway against=20 powerful and recalcitrant employers, and the labour=20
Anti-union businesses with poorly organised workforces=20 will also gain, since the Bill will assist them in=20 engineering a union-free environment.
The Bill takes a calculated gamble. If the big-league=20 players seize the moment, it can succeed.
But several things could derail such a course. The=20 major players could persist with adversarial manoeuvres=20 in industrial relations. Parties excluded from the=20 benefits of the new dispensation could set out to=20 destabilise it. And the moderating role of the=20 judiciary may be sorely missed.
The Bill is the culmination of a very intensive and=20 considered research process. Key and contentious=20 features include:
* A bargaining framework based on the voluntary=20 participation of both parties, organisational rights=20 for unions and the scrapping of a duty to bargain.
* New workplace forums for consultation between=20 employers and employees.
* The creation of a state Commission for Conciliation,=20 Mediation and Arbitration to deal with labour disputes.
* Clear rules on dismissal.
* The demise of the general unfair labour practice=20 notion and a reworked right to strike.
The present dispensation is marked by two-tier=20 bargaining. Unions and employers may voluntarily come=20 together in industrial councils to negotiate industry- wide agreements on wages and working conditions. And,=20 using the unfair labour practice remedy, unions can=20 compel reluctant employers to bargain with them at=20 factory (and sometimes industry) level.
The proposed statute will eliminate the unfair labour=20 practice concept and with it all notion of a duty to=20 bargain. Instead, unions commanding an as yet=20 unspecified level of membership are given a series of=20 express organisational rights — access to employer=20 premises, meeting rights and union subscription=20 facilities — and the right to strike to extract=20 employer recognition.
To bring some moral pressure to bear on surly=20 employers, the Bill does provide for recommendatory but=20 non-binding arbitration awards in the event of=20 recognition disputes.
Once an employer has agreed to bargain, a union is=20 entitled to disclosure of all relevant information=20 under an employer’s control.
The new position will thereafter look quite similar to=20 the old. Collective agreements, which would override=20 individual contracts, may be concluded at factory level=20 while the new bargaining councils — successors to=20 industrial councils — will regulate employment matters=20 at industry level.
As before, representative bargaining councils may have=20 their agreements extended to cover non-party employers=20 and workers. However small businesses (and others) may=20 apply to an independent body for exemption.
The team has taken the courts out of the collective=20 bargaining system. This is because the labour courts=20 made a hash of it under the old law and because the=20 collective sentiment of members of the drafting team is=20 corporatist. If Anglo and the Congress of South African=20 Trade Unions can come to an understanding, their=20 conception of the public interest prevails. What is=20 good for General Motors (and the United Auto Workers)=20 is good for America.The drafters’ optimism on the=20 willingness of labour and capital to bargain in good=20 faith without legal supervision is probably ill- founded. The recognition strikes of the 1970s and early=20 1980s look set to resurface. A better solution would be=20 to provide sharper guidance on bargaining obligations=20 in the statute, and to ensure that the Labour Appeal=20 Court asserts its policy authority over a reconstituted=20 labour bench.=20
The absence of any enforceable right to bargain also=20 belies the claim that the Bill will bring labour law=20 into line with the constitution (which guarantees ”the=20 right to bargain collectively”). The further claim that=20 the Bill, in support of the reconstruction and=20 development programme, will promote industry bargaining=20 is true only insofar as enterprise bargaining will=20 crumble in the absence of enforceable rights.=20
The Bill makes the sweeping recommendation that=20 workplace forums be established, at the initiative of=20 majority unions, at all establishments employing more=20 than 100 workers. The German system of works councils=20 is clearly the inspiration.
Forums are designed to increase employee participation=20 in workplace affairs (partially as a counterweight to=20 industry-level collective bargaining) and to replace=20 factory-floor adversarialism with co-operation. They=20 represent a brave and necessary attempt to inject=20 rationality into the coal face of labour relations.=20
On matters of mutual (but non-bargaining) interest,=20 such as product development, new work organisation and=20 investment decisions — the range has still to be=20 negotiated — employers must share information, consult=20 and decide jointly with employee representatives, who=20 will be under a strict obligation to respect=20 confidentiality. If an item is subject to joint=20 decision-making (such as retrenchment plans), any=20 dispute must be arbitrated and strikes are prohibited.
Small and medium-sized businesses (employing perhaps=20 one-third of formal sector employees) are likely to=20 escape both industry bargaining and the workplace=20
The showpiece of the new order will be an independent=20 statutory body, the Commission for Conciliation,=20 Mediation and Arbitration, although parties are not=20 obliged to use its services.
However, mediation will become the main focus of=20 dispute-resolution efforts, with arbitration (and the=20 labour court) playing more of a mopping-up role. The=20 interveners will have a flexible mandate to rove=20 between conciliation, mediation and arbitration as=20 circumstances demand.=20
All this assumes that the Department of Labour will be=20 able to train up a cadre of skilled and credible=20 facilitators, capable of making decisive interventions=20 in labour-management affairs. It also assumes that the=20 major parties will accept the value of such=20
Although wages and working conditions will be=20 determined by bargaining prowess and power, most other=20 unresolved issues of a rights character will be decided=20 by arbitration and the labour court. And although the=20 labour court will be the superior body, pride of place=20 effectively goes to the arbitrators. They will decide=20 most categories of unfair dismissal cases, severance=20 pay issues and disputes over organisational rights. No=20 lawyers may appear in arbitration proceedings.=20
Given the high stakes involved in dismissal cases and=20 the inevitability of differing interpretations of the=20 law, the absence of any appeal against an arbitrator’s=20 decision is surprising.=20
The labour tribunals as a whole are insulated from the=20 ordinary courts. The labour court may, if the parties=20 choose, hear matters otherwise reserved for=20 arbitration. It may also review arbitrators’ decisions=20 and grant interdicts. A final appeal lies to a Labour=20 Appeal Court comprising senior members of the labour=20
The Bill unfortunately passes up the opportunity to=20 bring all employment matters within the jurisdiction of=20 the labour tribunals. Claims arising out of breaches of=20 employment contracts, for instance, will still have to=20 go to the civil courts. This split is a byproduct of=20 the drafters’ determination to downplay the importance=20 of individual (as opposed to collective) grievances,=20 and to keep the labour judiciary’s powers firmly in=20
Labour law in the eighties thrived on a diet of unfair=20 labour practice cases. This remedy was the universal=20 antidote to all manner of arbitrary action at the=20 workplace. The Bill ends this remedy, and threatens to=20 leave isolated employees quite exposed.=20
In future, individuals will be able to rely only on=20 unfair dismissal and anti-discrimination provisions.=20 Other inequitable employer action in the workplace –=20 bloody-minded decisions on transfers, promotions and=20 pension schemes for instance — will escape legal=20
The Bill’s preoccupation with the clash of the titans=20 and its failure to pick up the complex concerns of=20 modern employment relations reveals a surprisingly=20 archaic mindset.
Racially exclusive unions will be obliged to amend=20 their constitutions or forfeit all rights under the=20 statute. The current prohibition against unions=20 affiliating with or funding political parties will fall=20
The draft grants employees the right to strike (with=20 full protection against dismissal) and gives employers=20 recourse to lockouts — provided a dispute has been=20 dealt with by a bargaining council, under a private=20 agreement or by the commission.
There is a double sting in the tail, however. Striking=20 workers — except for those in essential services –=20 will be protected against dismissal. But the Bill=20 introduces the concept of ”maintenance services”: it=20 does not permit strikes by employees engaged in=20 services which, if interrupted, would lead to the=20 ”physical destruction of plant, machinery or the=20 working area”.
Employers who have a portion of their enterprise=20 classified as a maintenance service will not be allowed=20 to use temporary replacement workers in the rest of=20 their factory in the event of a strike.=20
A pre-strike ballot is no longer obligatory. Although=20 unlawful strikes may be interdicted, they will not=20 attract criminal sanctions.
The drafting team believe they have seen the future.=20 Unions and employers will determine whether it works.
Clive Thompson is the director of the Labour Law Unit=20 at the University of Cape Town