IN THE days following the Marikana killings, commentary focused on several things: the actions of the police; the role of small, radical trade unions; the pay and living conditions of mine-workers; the government’s initial failure to step in; and mine executives’ silence. No one has asked how South Africa’s labour relations system, supposedly one of the most sophisticated in the world, could produce such a tragedy. Just days before the killings, International Labour Organisation director Vic van Vuuren suggested that South Africa’s labour relations system and labour laws compared favourably to "other best-practice countries".
South Africa’s labour relations system contains four key institutions. The National Economic Development and Labour Council (Nedlac) is the governing body of relations between government, business, labour and communities. Its goal is to discuss and reach consensus on issues of social and economic policy.
The Commission for Conciliation, Mediation and Arbitration (CCMA), a dispute resolution body, aims to replace the earlier highly adversarial model of labour relations with one based on promoting co-operation and labour peace.
The Labour Court and Labour Appeal Court adjudicate labour disputes, with the important goal of providing a stable set of rational guidelines to employers and employees in order to avoid labour-employer conflict. And the bargaining councils deal with collective agreements and attempt to solve labour disputes.
It is clear that these four institutions have failed. Nedlac is no more than a "talk shop" where the government, in particular the Department of Labour, bullies the other partners by threatening them with unfavourable legislation. From a conciliation point of view, the CCMA is merely a rubber stamp for issuing strike certificates. The Labour Court’s rulings are far from stable or rational. The bargaining councils, dominated by big business and organised labour, are more concerned with keeping small businesses and start-up trade unions out of the game.
South Africa’s labour relations system is based on the representative principle. Industry associations represent employers, and trade unions represent workers. This is a real problem, since only 26% of the national workforce is unionised, and industry associations representing big businesses employing more than 50 people only account for 32% of total employment. In other words, South Africa’s labour relations system has the primary characteristic of being unrepresentative. This creates conflict, since the vast majority of workers possess no mode of expressing or resolving their grievances. Employers are only obliged to recognise trade unions that represent an outright majority or are "sufficiently representative" of the employer’s workforce.
South Africa’s current labour relations system is fundamentally undemocratic, and for this reason large chunks of the Labour Relations Act (1995) are explicitly excluded from provisions in the Competition Act (1998) against anticompetitive behaviour.
It would be a great leap forward to oblige employers to recognise all unions. For one thing, this would have the virtue of being more nearly democratic, which the current system is not. And the employers’ fear that this would lead to negotiations to be dominated by small, radical unions, could easily be solved by the additional requirement that unions negotiate with each other based on their respective members’ interests and present a single, unified position to management. Of course, large unions will not negotiate with small unions. The Congress of South African Trade Unions (Cosatu) will oppose even the remote possibility that small unions will be recognised. Cosatu’s opposition to restrictions on unions contained in proposed labour law amendments has apparently led to those restrictions being shelved.
But there is hope. The government’s attitude towards its partner Cosatu has been slowly but steadily evolving. The government’s baptism of fire came in 2010 during the countrywide public servants’ strike. During that strike, a greater number of workdays were lost due to strikes and work stoppages than at the peak of rolling mass action against apartheid.
In consequence of the strike, the government, for the first time, came to appreciate its position, not as political alliance partner with Cosatu, but as employer, with all the pragmatism and opportunism to which that appreciation gave rise.
Second, last year, following Cosatu’s hysterical campaign against "labour brokers", the government proposed several restrictions on unions in the current labour law amendments, ranging from balloting ahead of a strike to an expansion of essential services where strikes are severely restricted. There was never any real prospect that these restrictions on trade union behaviour would be passed into law.
Most likely they were a bargaining chip to get Cosatu to agree to a moderate position on labour broking in exchange for having the restrictions scrapped. But the proposed restrictions on union behaviour clearly illustrate that the government is well-informed about the elements of labour laws that give rise to union power, and more importantly, that the government has lost its reluctance to put pressure on Cosatu.
Third, this year, following the killings at Marikana, the role played by splinter trade unions will not be lost on the government. In reality, this has been going on for years. Splinter unions have now been formed from Cosatu-aligned South African Transport and Allied Workers Union, the Chemical Energy Paper Printing Wood and Allied Workers Union, the South African Democratic Teachers Union, the National Union of Mineworkers, the National Union of Metalworkers of South Africa, and many others.
As early as 1995 Cosatu’s Shopsteward publication complained that "the problem of unions not servicing their members properly is still widespread. Workers are flocking to union offices and to the federation with complaints." The problem is not that these splinter unions are significant (they are not), nor that their membership numbers merit political attention (they do not), but rather that Cosatu is experiencing a crisis of relevance. Growth in the politically non-aligned Federation of Unions of South Africa and the National Council of Trade Unions, and to a lesser extent Solidarity, has largely been a result of members’ frustration at Cosatu’s preoccupation with politics rather than worker interests, a movement which is well known to Cosatu, where it is called "workerism".
It remains to be seen whether the government’s diagnosis of the root cause of the conflict at Marikana will extend to the labour relations system.
Probably it won’t.
But the commission of inquiry established for this purpose may yet reach a surprising conclusion. Retired judge Ian Farlam is patron of the Centre for Constitutional Rights, where his colleagues include former president FW de Klerk, advocate Paul Hoffman SC and Dr Anthea Jeffery of the South African Institute of Race Relations, who as innovative thinkers are not shy to reach politically troublesome conclusions.
Judge Farlam’s judgments have attracted significant public and professional interest, notably those relating to the enforceability of a Muslim marriage contract and the decriminalisation of sodomy.
Quite possibly, we will see the most significant about-turn in labour relations since the 1979 Wiehahn commission, which greatly extended trade union rights.
• Sharp is a labour economist at Adcorp.
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