Collective bargaining is in crisis and there is increasing reluctance to reach consensus through negotiations, according to two institutions at the heart of South Africa’s labour relations dispensation.
The Commission for Conciliation, Mediation and Arbitration (CCMA) and the National Economic Development and Labour Council (Nedlac) are concerned because all parties appear to be in a state of denial about the situation.
The institutions were speaking at last week’s annual collective bargaining conference of the Federation of Unions of SA (Fedusa), the second-largest local trade union federation with 400 000 members. The two-day meeting comes at a time when the country is experiencing a protracted strike in the platinum belt that has been accompanied by violence. The CCMA is mediating between mining companies and the Association of Mineworkers and Construction Union, which has had 80 000 members on strike for over a month.
Lengthy strikes, inter-union violence between workers, and violence between workers and the police are becoming increasingly prevalent. This has led to calls to curtail the right to strike and collective bargaining, even though both are enshrined in the constitution.
The system of collective bargaining is near collapse. Often there is little or no joint preparation for negotiations, which leads to conflict between and within caucuses; there is a lack of leadership evident among all parties, feedback to constituencies is weak, which causes dissatisfaction and alienation; short-term gains are favoured over sustainable outcomes; and there are often legal challenges to decisions made during collective bargaining.
“The general ineffectiveness of our collective bargaining has manifested itself through protracted negotiations, strikes associated with violence and intimidation, escalating conflict in the labour market, increasing legal challenges to the system and extreme situations, such as the tragedy of Marikana,” said the CCMA’s Afzul Soobedaar.
He and other speakers said a paradigm shift and modernisation were needed in collective bargaining, and made suggestions to the Fedusa delegates, who plan on asking for increases of between 8 percent and 12 percent, depending on the industry, during this year’s wage talks.
The suggestions range from limiting the time workers can down tools in exchange for firms not employing scab labour, to accepting improvements in the living standards of employees when bosses cannot meet their financial demands.
John Brand, a partner at Bowman Gilfillan, said that industrial democracy should more closely resemble political democracy. He believed the Labour Relations Act – which allows a majority union and an employer to “close shop”, forcing any other union to show it represents the majority of workers before it is granted recognition – needed to change.
The act set organisational rights at about 30 percent in the workplace and did not properly regulate the process to measure representativeness, he said. Newcomers had to recruit thousands of members from outside a mine to get basic organisational rights.
“Basic trade union rights must be granted easily with low thresholds of representativeness in appropriate constituencies to encourage a habit of co-existence between unions in a workplace,” he said.
Brand also suggested conducting independently monitored ballots to test representativeness, and designating appropriate bargaining units within the workplace.
He said independently monitored strike ballots should take place to establish how many workers supported industrial action and that the courts should have the power to declare strikes accompanied by violence as unprotected. The ANC recently backed down from introducing strike ballots in proposed changes to labour laws. Strike ballots are unpopular among unions, and are generally viewed as a means of curtailing the right to strike.
The International Labour Organisation’s South African director, Vic van Vuuren, said unions needed to consider scenario planning in their industries, and creating a co-regulatory body for different sections at work because there were so few labour inspectors in South Africa and many of them performed poorly.
Ian Macun of the Labour Department said that the minimum wage should be increased as workers would then be negotiating from a higher base and would be less inclined to turn violent as they would not be as desperate.
The ANC had given itself five years to investigate the feasibility of a national minimum wage. “But it is not a silver bullet. It must work with collective bargaining and social upliftment,” Macun said.