2013 is the 50th anniversary of Martin Luther King Jr’s “I have a dream” speech.

A lot will be said about the speech and I am certain that a number of writers will use the famous lines of King’s to draw metaphorical comparisons to a variety of topics. What I will attempt to do in this article is not only discuss the state of collective bargaining in South Africa, but also to set out King’s vision, his dream, his Utopia…

Whilst not being a child of the sixties, I have always found visionary leaders to be inspiring… Kennedy, King and in earlier years Churchill. All men with flaws, but with a clear goal in mind… a clear vision and able to have the courage of their convictions where others would fall by the wayside. And there are several others – Ghandi, Biko, Mandela, de Klerk…

What of our leaders?

Where are the strong forces of nature, the men and women who have the courage to stand up against all odds, to walk the path less trodden and to have the courage of their convictions?

Too often, a number of those termed our leaders in business and labour find themselves stuck in a 1980’s style process of positional based bargaining. Too often an “us versus them” approach ensues. This was most clearly illustrated in a recent negotiation process that I was involved with. The employer I was representing and the union we were negotiating with had requested a bilateral and on a number of occasions the process was almost derailed due to ego’s, and positional, emotional gameplay that resulted in the man being played rather than the ball. And coming from a traditional English boys’ school in the Eastern Cape, we always know if you play the man, you lose.

Here was I, an individual 20 years the parties’ junior, playing mediator to ensure that the best solution is in fact reached.

But is this not a classic illustration of the state of collective bargaining in our country, laid bare recently in the recent incidents at Marikana and the follow up in the agricultural sector in the Western Cape.

The state post Marikana

Marikana exposed the real state of collective bargaining in South Africa – its hostility and violence laid bare for all to see. This was then followed by the farmworkers’ strikes in the Western Cape which emphasised that this violence was not an anomaly but has become the norm … to the extent that the consequences of burning your own vineyards down to get an increase were ignored.

The basic logic: there is no vineyard, there is no work, there is no increase, but there ARE retrenchments; somehow was missed in the whipped up emotion of this illegal strike.

Yes, true, both the incidents at Marikana as well as the Western Cape were part of an illegal strike action, despite there being agreements reached in respect of the items striked upon.

We saw the warning signs in the Metal Engineering industry strikes where after a few deaths and numerous violent incidents, the employer party agreed to a higher increase. Surely this sent out a very negative message: If you want your inflated increase – kill some people. Our country is still suffering from this type of settlement and is echoed in the way these levels of strike violence have escalated to utmost extremes.

Violence has been around in strikes for years even prior to the above, but it is increasing every year and has been moved starkly into the public spotlight by the media coverage of these two incidents.

And what of centralised bargaining?

The case of NEASA v Minister of Labour – JR3062/11(LC) was an application in terms of s 158(1)(g) of the Labour Relations Act (LRA) and s 6 of the Promotion of Administrative Justice Act (PAJA), to review and set aside a decision made by the first respondent, the minister of labour, to extend a collective agreement concluded under the auspices of the second respondent (the bargaining council) to non-parties that fall within the council’s registered scope.   NEASA sought to have the notice that gave effect to the minister’s decision (Government Notice are 748, published in Government Gazette 34613 on 23 September 2011), declared invalid and of no force and effect.

But this matter started long before this… In May 2011, negotiations on sectoral conditions of employment and other matters of mutual concern commenced under the auspices of the bargaining council.   Following the declaration of disputes and a strike called by one of the trade union parties to the council, an agreement was concluded on 18 July 2011 regulating a host of issues.   In effect, the agreement amends a number of clauses [in] what is referred to as the ‘main agreement’, and is intended to regulate employment-related matters in the sector until 30 June 2014.   NEASA opted not to sign the agreement.   On the same day on which the agreement was concluded, the bargaining council resolved to request the minister to extend the agreement to non-parties within the council’s registered scope, as contemplated by s 32(1).

Prior to the conclusion of the collective agreement, on 28 June 2011, the registrar of labour relations, acting in terms of s 49(4) of the LRA, issued a certificate recording that the bargaining council ‘is a representative council’ and would be regarded as such until 30 June 2012.   In terms of the certificate, as at 24 June 2011, 335 163 employees were found to be employed within the registered scope of the bargaining council, 172 799 of which were members of the trade unions that are parties to the council.   The certificate notes further that 197 061 employees were found to be employed within the registered scope of the council by members of employers’ organisations that are parties to the council.

In the end, the court found that, the decision by the first respondent in terms of which the collective agreement concluded on 18 July 2011 under the auspices of the second respondent was extended to non-parties who fall within the registered scope of the second respondent, was set aside.

Government notice R 748 published in the Government Gazette number 34613 on 23 September 2011 was also declared invalid and of no force or effect.

A number of challenges are currently pending against similar bargaining council decisions and against the overall bargaining council system as well, often specifically aimed at the extension of centralised bargaining agreements to non-parties. It will be interesting to see which path centralised bargaining takes and if it can stand up to these numerous onslaughts in the courtrooms of our beautiful country.

The path ahead

Both the centralised bargaining issue, which may lead as some suggest to an overhaul or the death of the bargaining council system in South Africa, and the Marikana related incidents are certain to have an impact on collective bargaining going forward. The latter incident and similar ones basically put pay to any reasonable negotiation. We can agree as a company and as the representative union, however if workers are not happy, there are no guarantees that they would not ignore the negotiation process engaged upon and then proceed despite agreements to go on these illegal violent strikes, negating the collective bargaining process. This poses a threat not only to employers, but also to the existence of the trade union movement and should be also become a public concern, as this often spreads into violent behaviour which affects non-related third parties.

The time-warp?

There were many good things in the 80’s – classic TV series, rock, movies that would go on to last a lifetime and the fall of the Berlin Wall. But there was also the bad – states of emergency, apartheid including the continued implementation of the Immorality Act, which would have prevented my relationship with my wife and inevitably the birth of my son… a piece of legislation that in today’s times would be unthinkable.

Unfortunately, a number of parties on both sides of the coin are dragging this process back to the 80’s. And what does this achieve … nothing but destruction, the decrease in the size of the pie and a lose-lose scenario for everyone.

Rise up!!

But where are those who do not favour this decreasing of the pie?  Those that can see the bigger picture. Those that can ensure that the environment is one conducive to the carrying out of business and which shall ensure that business prospers, not to the detriment of its employees but which shall benefit them. Where are the parties that will rise up, realise that a solution to any debate is compromise, in a way to expand the pie to the benefit of all? Those that realise that violence only begets violence and that one death on either side of the coin, is one too many. These men and women are out there – from personal experience – a number of trade union representatives and numerous young professionals that I have had the pleasure of working with and who truly believe in a better life for all. Who believe in the power of democracy, who choose to fight when the fight is necessary but also ensure that sanity prevails and that order is maintained and a compromise reached when required.

The compass

Each party’s moral compass should guide them.

As William Ernest Henley said in closing his poem  Invictus “I am the master of my fate:

I am the captain of my soul.”

Life is all about choice and consequence and we, the young leaders of South Africa – those untainted, at least to a degree, by the scars and ideologies of apartheid need to stand up and act out the opening stanza of this great literary work:

“Out of the night that covers me, Black as the Pit from pole to pole, I thank whatever gods may be

For my unconquerable soul.”

To rise out of the darkness that appears to have taken over the realms of Labour Law and particularly collective bargaining in this country, to move beyond this and lead this move to the promised land. And as many a great leader in great literary works and scripture, we may not see the promised land of constructive collective bargaining in South Africa, but we will be failing our sons and daughters were we not to take this first step into the unknown, to enter these unchartered territories and to move this system from its current state of anarchy to one of sanity, one that will ensure constructive debate and inevitably the one thing we all seek, the holy grail of South Africa… and that is… sustainable employment.


Global Business Solutions

Grant Wilkinson is an admitted Attorney in the field of commercial law with specialisation in labour law and a senior Industrial Relations consultant. Grant has wide ranging experience in both consulting and training on subject matter covering all aspects of Labour Law and various aspects of Industrial Relations, Legislative Development, Commercial Law, CPA, Corporate Governance and Human Resources.