Writers are often exposed to the good, the bad and the ugly of Labour Law.
The recent events at the State of the Nation address were in stark contrast to a recent engagement that we were asked to attend.
Whilst the events of SONA were sadly a reflection of our social dialogue as it is, we were fortunate enough to be involved with collective bargaining as it should be. On a platform with economists and industry experts, we were tasked with addressing the negotiating parties in a Bargaining Council prior to the negotiation.
It was refreshing to see how well received the discussion around a new way of negotiation and expansion of the pie was received. One hopes that this in principle receipt will be carried through in negotiation.
South Africa’s democracy is firmly entrenched in collective bargaining and social dialogue. In Labour Law the legislation encourages collective bargaining, by granting certain rights and by creating the power play structures. It is important to remember that there is no legal duty to bargain, however the system of industrial action is created to encourage bargaining.
The LRA context of collective bargaining has always favoured the system of majoritarianism.
The Labour Law Amendments pose significant challenges to the foundation of the collective bargaining structure and the principles of majoritarianism.
There were open admissions made in Parliament and the public consultation process that the amendments are aimed at easing access for trade unions in the workplaces.
Among the amendments is that of section 21 which will now allow for easier access to previously majority trade union rights under s21 for trade union representatives, leave and access to information. This contradicts the principle of a majority union situation. As example, a union with 400 members could now find themselves recognised as a majority union in a 1000 workplace rather than 500 plus 1 required in the past.
There is also a change in the definition of workplace: Workplace now may include permanent, Temporary Employment Service, Fixed Term Contract and part-time employees.
s55 (1) (4) (b) of BCEA also provides that in the event of a Sectoral Determination, the Labour Minister may provide for minimum increases on actual rates of pay. This will result in much higher wage costs where employees are paid above the minimum prescribed rate. The real risk here is job losses and employees being paid at the minimum wage.
Sadly, there have been no real provisions made by Government that restrain strike violence adequately. Government’s own proposal was that a system of strike ballot be implemented, however the Portfolio Committee removed this provision. Unrestrained strike violence will be a continued deterrent to employment and direct foreign investment.
Lastly, S69 (6) (a) provides that picketing rules may apply to third parties who are not employers. ( ie mall owners )
The Ekurhuleni Declaration of 4 November 2014 is an attempt to resolve the labour market crisis.
The aim of the Declaration is to Promote employment and Strengthen Social Dialogue : Towards Transformation of the South African Labour Relations Environment.
One of the key themes of the Indaba was collective bargaining – an acknowledgement that the current system is flawed. There is a commitment to collective bargaining but there is a pressing need to strengthen collective bargaining in every aspect of its practice from negotiation to industrial action.
The Indaba was the launch of the process of engagement through task teams to address the various issues identified and may be a precursor to a much alluded to “Labour CODESA” aimed at addressing the current volatility in the labour market.
Whatever occurs, we need to ensure that we keep abreast of developments, ready ourselves for negotiations and set structures in place to deal with strikes and the inevitable violence which may arise therein at workplace level.
Whilst one can always address the issue at a higher level and attempt to redress the system, it is essential that this process of readiness and change in mind set begins at the shop floor level.
At GBS, we always aimed at providing you with real solutions to the challenges that the labour market throws at you.
We firmly believe that we have the solutions to assist with the above issues. Hereunder are a list of services which could be of great assistance to you:
–Technical Update on the Labour Relations Act
–Negotiation Skills Training
–Strike Management Tools
We hope to see you at the various Updates across the country and wish you well ’til next time.