Labour Law Is Not at the Root of Collective Bargaining Woes Improving Relations
BYLINE: Paul Benjamin
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? …