Courts are a last resort and have no place in wage battles

Commentators and experts seem agreed that the public service strike highlights the dysfunctionality of the mechanisms created by the Labour Relations Act (LRA) for effective dispute resolution and strike prevention, given the lack of trust and engagement in good faith at the negotiating table.

At a deeper level, however, the strike highlights the dysfunctional relationship between the three constituencies (labour, capital and government), the cooperation and shared sense of purpose of which are necessary for the LRA to do its work.

In a broader sense, does this not mirror the dysfunctional relationship between that other tripartite arrangement that is crippling effective governance and service delivery in South Africa—the ruling alliance of the ANC, Cosatu and the South African Communist Party?

Also troubling is the way in which the parties have had to resort to the labour courts in urgent proceedings, seeking interdicts to keep the country functioning.

Legal process is supposed to be a last resort in labour relations, with alternative dispute resolutions processes such as mediation and arbitration favoured. Here, it has been the first step because negotiations have failed spectacularly to date.
This role for the courts confirms that the judiciary, yet again, is called on to deal with the devastating effects of the political struggles in the ruling alliance on ordinary people, babies in hospitals and learners.

In 1995 the LRA was signed into law. At the time it was heralded as a progressive piece of legislation in keeping with the social-democratic commitments of the Constitution. Much of its content was sourced in the jurisprudence of the 1980s, when the union movement, represented by a group of innovative lawyers, won a series of litigation victories that included the right to bargain collectively and in good faith, the right to organise and ultimately to strike when a dispute of interest arose between employer and employees.

These hard-won rights were then translated into constitutional guarantees, ensuring that the LRA contained detailed provisions regarding bargaining and organisational rights and on the procedures required for the conduct of a lawful strike.

Apart from its specific content, the LRA held out the hope that a jurisprudence that had created industrial citizenship for workers could only expand a shared vision of economic prosperity in the context of a vibrant democracy. By joining the ruling alliance, Cosatu was entitled to expect that the LRA would cement a compact between labour, capital and the state and thus help strengthen the social-democratic project as set out in the Constitution.

As Jay Naidoo, who led Cosatu into the alliance, has written in his recent autobiography, the union movement thought that it had extracted major gains when the Reconstruction and Development Programme (RDP) became the basis of government economic policy. The LRA fell squarely within the animating economic principles upon which the RDP was predicated. Yet, as Naidoo observes, within a blink of [Thabo] Mbeki’s political eyelid, the RDP was abandoned for the growth, employment and redistribution strategy (Gear), as was a social democracy as an animating goal, in favour of a Washington consensus.

So began the root problem of which the current public service strike is the latest manifestation. Instead of a socioeconomic framework that could promote broad agreement and cohesion, economic and social policy produced increased alienation for those who barely benefited from the fruits of democracy as they watched BEE deals that made billions for a few, the rapacious actions of tenderpreneurs, unchecked corruption and a Gini coefficient (measuring income inequality) that deteriorated rapidly.

There is an alienation of the ANC’s alliance partners from its purportedly shared governance vision, just as the collapse of the pact of capital and the state has occurred in the private sector as officials gorge themselves on public funds.

The provisions of the LRA that govern industrial disputes such as the present public service strike (and, by extension, the ruling alliance) require a measure of consensus, conciliation and cooperation—the existence of a shared practice in which the competing sides see each other as essential partners in an economy, upon the success of which they are both dependent.

All these provisions are based on the idea of shared good-faith bargaining and a desire to resolve disputes, the intensification of which could jeopardise the industrial compact at the heart of the LRA. But none of these provisions can be effective when the parties regard each other as the warring enemy and in a situation in which any shared conception of economic citizenship is replaced by bitter forms of alienation.

In the event that a strike can take place under the LRA, a failure by a registered trade union to comply with a provision in its own constitution requiring it to conduct a ballot of its members whom it intends to call out on strike, renders the strike illegal. This is a provision common in countries with similar commitments to the right to strike, thereby helping to curb vanguardist attempts to intimidate members who may be compelled to strike even though they have had no say in the decision. Again, the present strike seems to honour this set of provisions only in the breach.

Within this context, the LRA cannot fulfil its ultimate purpose of promoting a shared framework in which labour, capital and the state can fight out their differences and reach a peaceful resolution. Instead, the courts play a lonely role in granting interdicts against striking workers, thereby weakening their legitimacy, which is essential if they are to supervise the ambitious enterprise envisaged in the LRA.

A core lesson from this sorry saga is that for as long as South African society is unable to share a common normative framework for realising our socioeconomic potential, ambitious legislation designed to promote substantive social democracy will continue to fail. That conclusion is not restricted to the LRA alone—in the long run the constitutional enterprise itself cannot survive such a deep divide.

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