LABOUR relations is seldom viewed dispassionately. It is a field that spans a multitude of collective and individual workplace interactions and experiences, from constructive relationship building initiatives to often fierce adversarialism.
My graduation from UCT in the early 1980s coincided almost exactly with the dawn of the present-day employment law and labour relations regime that prevails today. This may sound strange, especially if you remember that apartheid was still at its height, the release of Nelson Mandela and the dawn of a new democratic South Africa was more than a decade away.
Even so, as early as the mid 1980s, the concept of fairness in discipline and dismissal was already becoming prominent, as espoused by Unisa’s Professor Nic Wiehahn. It was also the time at which the so-called emerging Black unions began to grow in prominence displaying competent and powerful leadership, with Cyril Ramaphosa’s National Union of Mineworkers leading the way.
Nonetheless, organised labour was still highly oppressed by the PW Botha Nationalist government. At the time, and quite understandably, organised labour would put employers under enormous pressure to send a telegram to the Minister of Police to demand the release of union officials who had been detained without prosecution for simply being union officials.
The trade union landscape his significantly changed over time. There is no doubt that the evolution of Cosatu in the mid-1990s brought greater cohesion to the realm of organised labour. Alignment with the ANC added impetus to Cosatu’s breadth of influence. But it didn’t last. Although union membership in the public sector remains high, the split within Cosatu that resulted in the formation of rival union federation Saftu has negated the role of trade unions in the private sector, which currently has about one in eight employees being union members. Overall, only about 25% of employees are union members.
Another consequence of the split in Cosatu is the increase in numbers of trade unions of a lesser size. This in turn has led to an increase in union rivalry and by and large generally less effective trade unionism. Trade unions have from the very beginning suffered from a glut in competent leadership, due primarily to the fact that competent trade union leaders are frequently fast-tracked into government positions.
No analysis of the South African labour relations landscape would be complete without a look at the Commission for Conciliation, Mediation and Arbitration (CCMA) and Bargaining Council dispute resolution centres. The CCMA is probably approaching 900 labour disputes being referred to it every day.
About 95% of those cases are “resolved” or “conciliated, either because one or both parties are fearful of losing at arbitration or the employer is willing to pay the former employee a settlement sum so as to avoid the nuisance factor associated with arbitration. Employers still lose nearly 50% of all arbitration hearings.
This percentage is almost certainly skewed by the SMME sector which fares far more poorly than larger and more sophisticated employers. There is no reason why employers should have poor outcomes at the CCMA if they apply the fundamentals of discipline and dismissal protocols. Perhaps the biggest challenge facing employers in the labour relations space is that they frequently don’t know what they don’t know.
That results in often fatal flaws being made in, for example, discipline cases that cannot subsequently be reversed.
It must be remembered that about 80% of all labour disputes are discipline related, so competence in managing discipline, misconduct cases, requires close attention and training.
Finally, increasing employment law continues to decrease labour flexibility. Some would further argue that our employment law regime is over-regulated and too focused on job security than on job creation focused.
Tony Healy is a labour law expert at labour law consultancy Tony Healy & Associates. Visit www.tonyhealy.co.za.
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