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 establishment of workplace forums, led many to view the LRA as favouring larger unions and containing a majoritarian tendency. This view was clearly articulated by Baskin and Satgar who wrote: ‘The LRA is profoundly majoritarian. Unions with majority support get distinct advantages. Small, minority and craft-based unions are disadvantaged. The message for unions is clear … grow or stagnate!’ (Baskin and Satgar 1995:12).
In extending organisational rights to trade unions and in supporting centralised collective bargaining, the 1995 LRA was sending a clear message that stable labour relations depended on capable parties that could bargain effectively. The exercise of power should be reserved for the pursuit of matters of interest in an orderly fashion and as a last resort. The vision of the law was expressed clearly in the report of the Comprehensive Labour Market Commission which placed a strong emphasis on ‘voice regulation’ in the labour market:
It is the need to balance flexibility with security that justifies the Commission’s emphasis on voice regulation of the labour market, namely, the constructive role that bargaining between workers (and their unions) and employers (and their associations) can play in the productivity-enhancing redesign of the work process, in training and skills development, in employment equity planning and in many other aspects of the employment relationship. The ILO argues, and the Commission agrees, that excessively bureaucratic regulation is inimical to flexibility while an over-reliance on market forces is incompatible with labour market security and may result in increased inequality. Voice regulation provides the best means of charting a course that avoids both of these undesirable outcomes’ (Report of the Commission to Develop a Comprehensive Labour Market Policy 1996: 3).
Relying on voice regulation requires bargained arrangements between strong, stable and well-informed employer and employee representatives. This policy approach articulated well with the legal framework in the LRA in relation to trade union rights and collective bargaining.
TRADE UNION GROWTH AND STRUCTURE
In the period 1994 to 2012, union membership increased by 557 919, or 18.4 per cent. Membership peaked between 2000 and 2004 and this coincided with a mushrooming in the number of registered trade unions (see Table 1 below). The sharp increase in the number of trade unions (but with a relatively modest increase in membership) was caused first by an unintended consequence of the new, open approach to freedom of association and trade union registration. This open approach led to the exploitation of union status for financial gain by individuals; a number of trade unions were established by labour consultants to gain rights of appearance available to unions and employer organisations in processes at the Commission for Conciliation Mediation and Arbitration (CCMA).
Minor amendments to the Labour Relations Act in 2002 and a concerted drive by the registrar of labour relations to de-register non-genuine trade unions led to a sharp decrease in the number of registered trade unions. The exploitation of union status for financial gain did, however, signal the arrival of an entrepreneurial orientation to trade unionism. This darker side of trade unionism has continued in different guises.
A second, expected, consequence of the new labour dispensation, was the spread of unionisation to the public sector and the public service in particular. Prior to 1993, unions had not been formally recognised in the public service. A number of unions had been active in parastatals such as Eskom and Transnet since the late 1980s and a few unions had begun to recruit members in the health services, in education and the police service. In the civil service itself, only staff associations had been recognised and it was only in the early 1990s that the state began informal discussion with the newly emerging unions and with staff associations that began to transform themselves into trade unions. Between the early 1980s and 1996 the number of organisations within the public service increased from one to over twenty, representing roughly 760 000 employees. In December 2011, there were 1 168 774 union members in the public service (excluding parastatals) – roughly
