In the year since the Marikana massacre, there has been an active debate in the opinion pages around the role of majoritarianism in the collective bargaining arena.
A number of political commentators have adopted the simplistic approach of blaming it all on the Labour Relations Act (LRA). However, more informed commentators have pointed out that, although the LRA promotes the emergence of a single representative union in a workplace, it does not compel it.
The law does not prevent employers setting a lower threshold for recognising trade unions and taking on the (often very difficult) task of dealing with several unions that represent its workforce. In addition, trade unions that are not recognised retain the right to raise demands on behalf of their members and refer them to the Commission for Conciliation, Mediation and Arbitration (CCMA).
It is often forgotten that post-apartheid labour legislation seeks to minimise the role of law in regulating collective bargaining. The LRA does not contain an enforceable duty to engage in collective bargaining nor does the law regulate the conduct of collective bargaining through a concept such as good faith bargaining.
Rather, it uses a system of statutory organisational rights to promote the recognition and effective operation of representative trade unions.
One clause dealing with organisational rights has been implicated in the events in the mining industry. This is section 18, which allows an employer and a majority union to conclude collective agreements setting the threshold at which trade unions can obtain the basic organisational rights.
Normally, a trade union that it is “sufficiently representative” is entitled to these rights in terms of which the employer is required to deduct and pay over union subscriptions and grant reasonable access by union officials to the employer’s premises to conduct union business. It has become common practice for collective agreements to set this threshold at 50 percent.
As a result, there are many workplaces in which only one trade union can have any organisational rights at all. Such cosy deals between management and majority unions contradict the purpose of the LRA and exacerbate inter-union rivalry.
Frustratingly, amendments to our labour laws that were developed at Nedlac during 2011 have not yet seen the light at the end of the (increasingly long) parliamentary tunnel.
When they become law sometime in 2014, an arbitrator will be able to set aside a threshold agreement and award those organisational rights to minority trade unions that represent a significant interest in the workplace or a substantial number of employees.
It would be a constructive development for employers and trade unions to take these principles on board even before the law changes.
Another upcoming change in the law will allow the largest trade union in a workplace in which there is no majority union to be granted those organisational rights (the recognition of elected trade union representatives and the disclosure of information for collective bargaining purposes) normally reserved for majority unions.
The framework agreement for the mining industry contains a tripartite commitment by the big players in the sector to re-evaluate the principle of majoritarianism. It is not difficult to see why the continued application of winner-takes-all majoritarianism in a mining complex with some 20 000 or 30 000 employees is a recipe for disaster.
But should we require an employer with 100 or 200 employees to bargain with every trade union that represents some of its employees? The answer is that in the collective bargaining arena one size does not fit all.
Employers have adopted a variety of approaches to union recognition since the re-emergence of collective bargaining in the late 1970s. The LRA recognised this plurality by not attaching a legally enforceable “duty to bargain” to one or other of these approaches.
Organisational rights form the basic building block of our labour relations system. Although this innovation has been with us since 1996, there remains uncertainty as to its application. Key unresolved questions include when is a trade union “sufficiently representative” and what is a “workplace”?
Although the answers depend on the context, it would be very useful for the CCMA to consolidate into a set of guidelines its accumulated knowledge derived from 17 years of dealing with these issues.
A further change to the law on organisational rights has not received the attention it deserves. An amendment to the Basic Conditions of Employment Act will allow the minister of labour (on the advice of the Employment Conditions Commission) to set a threshold at which trade unions in a sector covered by a sectoral determination will be able to exercise the organisational rights of access to the workplace and payment of union dues by stop order at all workplaces in the sector.
This could have a marked impact in sectors with low levels of unionisation, such as agriculture. For example, a future sectoral determination could stipulate a national or regional threshold at which trade unions would become entitled to payment by stop order and access for recruiting and union business at all farms.
This provision could revolutionise labour relations in agriculture, where the laborious process of securing organisational rights on a farm-by-farm basis is beyond the resources of any union.
As we saw last year, the country will from time to time continue to pay a major price if structures are not developed to allow a vulnerable group such as farmworkers to voice their concerns on their terms and conditions of employment.
Observers agree that the collective bargaining climate has become increasingly adversarial and fraught in the past five years. Last year’s report of the National Planning Commission attributed this to “a decline in negotiating capacity, the re-emergence of non-workplace issues in negotiations, and the rise of general mistrust between the parties”.
A long list of factors have contributed to this shift: the increasing inequality of earnings between blue-collar workers and executives, trade union responses to increased casualisation in the workplace, the depredations of the migrant labour system, the unstable economic climate and rising expectations created by events such as the 2010 World Cup.
The crisis of collective bargaining is not primarily the result of inadequacies in the legal framework; it is a result of the context and quality of collective bargaining. If we are to restore the health of our labour relations system, there will have to be major initiatives to restore trust in the workplace and to rebuild bargaining capacity on both the employer and trade union sides.
This will require significant initiatives at both workplace and leadership level. Without this, we are doomed to a fractious future.
Professor Paul Benjamin will participate in the LexisNexis Current Labour Law Seminar, which will discuss the proposed LRA amendments and review the implications of the labour crisis. The seminars will take place across the country between November 4 and 8.