and aid donor statistics.
4 Privatised services often curtail access for the poor (Dugard 2013), while service delivery by ‘New Public Management’-restructured state agencies or hospitals has overall been ineffective (Von Holdt 2010; Tshandu and Kariuki 2010).
5 This is very significant in a context of high dependency ratios, which is a direct consequence of high unemployment and a social grant system which barely covers able-bodied adults.
6 The EEC is not directly involved in research but typically outsources it, sometimes resulting in serious misrepresentation of issues, as in the case of forestry (Pons-Vignon, forthcoming). Radically different proposals were made in the MERG report (1993) for the establishment of sectoral wage boards, staffed with qualified researchers, and tasked with the establishment of minimum wages and monitoring of employment in different sectors.
7 Von Holdt (2003) shows how ‘disobedient’ black workers could be punished either for ignoring an order from a white colleague, or for obeying it when this order diverted them from their task.
8 Sectoral determinations can be found online at: www.labour.gov.za/legislation/sectoral-determinations/sectoral-determination.
9 One can wonder whether, beyond some isolated initiatives, there was ever any serious intent in Cosatu to recruit and organise poor workers in sectors such as agriculture or domestic work.
CHAPTER 2
The state of organised labour: Still living like there’s no tomorrow
Ian Macun
INTRODUCTION
One of the features of the past few years has been the extent to which the role of trade unionism and collective bargaining in South Africa have been called into question. Some commentators have gone as far as referring to an ‘opportunity to smash the unions and enhance the economy’s long-term job-creation potential’ (Sharp 2012). Others acknowledge the importance of organised labour in South Africa’s industrial landscape, ‘but not in its current form’ (Business Day 5 July 2012). By the end of 2012, and with some normality having returned in the wake of the tragedy at Marikana on 16 August when thirty-four mineworkers were killed by members of the South African Police Services, and an uneasy truce having returned in the farming sector of the Western Cape after violent protest actions, it was clear that something of a turning point had been reached.
The general assumption is that there has been a significant weakening of trade unionism, most clearly pronounced in relation to the shifting allegiance in the platinum mining sector from the National Union of Mineworkers (NUM) to the Association of Mineworkers and Construction Union (Amcu). Parallel to the weakening thesis sits a thesis of political power exercised by the Congress of South African Trade Unions (Cosatu) over the African National Congress (ANC) and government in how to regulate labour and the labour market. This has been most commonly argued in relation to Cosatu’s opposition to labour brokers and the youth wage subsidy – both complex policy issues whose implementation was stalled for some time due to political difficulties. A similar argument has emerged in relation to the extension of the collective agreement between employers and trade unions in the clothing sector and its impact on jobs in the Newcastle area of KwaZulu-Natal.
What then is the reality of trade unionism in South Africa in the wake of Marikana? A divided and weakened union movement, or one that continues to command substantial power and is able to exercise significant political influence? And what are some of the challenges for trade unionism and for policy in the wake of the events of 2012?
Concerned with these issues, this chapter will start by looking back to the vision contained in the 1995 Labour Relations Act (LRA) for trade unionism to identify the major supports introduced in law to ensure state support for organised labour. It will provide an overview of the size and shape of the trade union movement post-1994 and will analyse what were arguably the most significant instances of industrial conflict during 2012 in order to identify some key challenges facing labour and the state.
THE VISION OF THE LABOUR RELATIONS ACT
The drafting of a new Labour Relations Bill began in the latter part of 1994 and a draft negotiating document in the form of a Labour Relations Bill was ready for public discussion and negotiation in February 1995 (Du Toit et al. 1996: 26). Key factors driving the urgency for a new labour relations dispensation were the interim constitution that had been adopted and that included fundamental rights (including in the area of labour relations) and a commitment by government to uphold international labour standards.
An International Labour Organisation (ILO) Fact Finding and Conciliation Commission on Freedom of Association had earlier found certain provisions of the previous LRA to be incompatible with principles of freedom of association. The new government had also undertaken to submit to Parliament for ratification the ILO Conventions dealing with freedom of association and the right to organise and collective bargaining. Both ILO conventions were ratified shortly after South Africa’s readmission to the ILO in 1994, thus setting the stage for amendments to the LRA to bring it in line with the conventions and to significantly alter the legal framework for trade union organisation and engagement in collective bargaining.
The key areas of change affecting trade unions were:
1 Curtailing the power of the state to interfere in the internal affairs of trade unions;
2 Extending organisational rights to trade unions;
3 Simplifying the registration procedure for trade unions; and
4 Making provision for closed shop and agency shop agreements.
Organisational rights under the pre-1994 LRA were limited and were generally obtained through the negotiation of recognition agreements. The amendments that were incorporated in the new Labour Relations Act (No 66 of 1995) marked a significant shift in bringing the legislation in line with the ILO conventions, but also in making the operation of trade unions easier and extending legal support for trade union organisation.
Provided that trade unions achieve sufficient representation in a workplace, they can acquire organisation rights such as access to a workplace and deduction of union subscriptions without an employer having to agree. The LRA also makes provision for unions acting jointly to acquire rights that they may not be able to gain on their own. In other words, smaller unions could join together to become sufficiently representative and acquire organisational rights or apply to become parties to bargaining councils.
The provision for unions to act jointly could be seen as a way of encouraging greater cooperation between trade unions and possibly greater unity through mergers and amalgamations. More importantly, as Du Toit notes: ‘The ease of registration may mean that new and predominantly small unions and employers’ organisations could mushroom. It could also lead to increased union density, especially in sectors traditionally avoided by unions such as agriculture and small enterprises’ (Du Toit et al. 1996: 63).
In parallel to the support for trade union organisation through the law, the use of representivity as a requirement for gaining organisational rights, applying for the establishment of statutory councils, entering into agency and closed shop agreements and applying for the