Abstract

Keywords

Advisory arbitration in the public interest, section 150 of the 1995 LRA; section 150A–D of the 1995 LRA; collective bargaining; voluntarism; third-party intervention; third-party discretion; duty to bargain in good faith; Labour Relations Act 28 of 1956.

……………………………………………………….

1 Introduction

Collective bargaining is generally seen as a "voluntary" process that should not as a rule allow for extensive intervention by either the legislature or the judiciary. 1

* Wilhelmina Germishuys-Burchell. BCom LLB (UP) LLM (Unisa) LLD (SU). Senior Lecturer, School of Law, University of South Africa (Muckleneuk Campus), South Africa. E-mail: germiw@unisa.ac.za . ORCID: 0000-0003-3160-7705. I should like to thank Prof CJ Garbers and Prof KB Calitz for their comments on earlier versions of this research, which also formed part of my LLD research at Stellenbosch University, and Chantelle Hough Louw for her editorial assistance and technical support.

1 See Kahn-Freund Selected Writings 9 reprinted from Kahn-Freund "Labour Law". Collective laissez-faire as Kahn-Freund put it, is "the retreat of the law from industrial relations and of industrial relations from the law."

Of particular interest in this regard is that the 1995 LRA is a product of criticism of the Labour Relations Act 28 of 1956 (hereafter the 1956 LRA) 5

5 GN 97 in GG 16259 of 10 February 1995 (Explanatory Memorandum to the Draft Negotiating Document in the Form of a Labour Relations Bill) (hereafter the

that it allowed for too much legal intervention in collective bargaining (after the fact) and that the system provided too great a scope for third-party discretion in the resolution of collective bargaining disputes, in particular. 6

6 Explanatory Memorandum 278.

It is with reference to the specifically mentioned sections that regulate advisory arbitration in the public interest that this article considers the extent to which the collective bargaining model under the 1995 LRA – as a product of criticism of the 1956 model – continues to be grounded on the legislative policy consideration of voluntarism. 7

7 Explanatory Memorandum 278; ILO Prelude to Change 739; Du Toit et al Labour Relations Law 20; Mischke 1995 JBL 58; Saley and Benjamin 1992 ILJ 731-739. See Mboweni "A New Era for Labour Relations" referred to in Du Toit 1995 ILJ 792. Du Toit et al Labour Relations Law 5, 23.

All of this takes place in the context of a growing realisation that we need to prevent labour unrest and re-align the functionality or "meaningfulness" of the collective bargaining process, a realisation that has resulted in an extension of the scope for judicial intervention in collective bargaining. 8

8 See, for example, the addition to the 1995 LRA of s 21(8A)-21(8D); the recently added s 150A-150D; the insertion of s 189A in 2002; and the deletion of s 189A(19) with effect from January 2015.

disputes in the public interest. 10

10 The notion that a strike should be "functional to collective bargaining" has its origin in industrial court jurisprudence under the Labour Relations Act 28 of 1956 (1956 LRA). Also see Rycroft 2014 IJCLLIR 199; Fergus 2016 ILJ 1537.

In the light of the above, this article seeks to show that the very criticism of the 1956 LRA (that it allowed for too much legal intervention in collective bargaining and too great a scope for third-party discretion in the resolution of collective bargaining disputes) that the 1995 LRA sought to address 12

12 Explanatory Memorandum 278.

2 On legal intervention and the 1995 LRA as a product of criticism against the 1956 LRA

Voluntarism and autonomy were among the ideals informing the original regulation of collective bargaining, 13

13 Davis and Le Roux 2012 Acta Juridica 316. Also see Davies and Freedland Kahn-Freund's Labour and the Law 19, 69; Rycroft and Jordaan Guide to South African Labour Law 88-89.

However, a growing realisation over time that absolute voluntarism and autonomy were inadequate in addressing the imbalance in bargaining power in the employment relationship has led to an increase in legal intervention in the employment relationship. 15

15 Trident Steel (Pty) Ltd v John 1987 8 ILJ 27 (W) 39A-D (hereafter the Trident Steel case); D'Art 2020 Irish Jurist 99-100; Dukes 2008 ILJ 267.

support for majority trade unions. Ironically, these policy choices of both voluntarism and majoritarianism, once seen to represent a necessary (and clear) break from the previous system, have been identified as factors that might contribute to the challenges experienced in the current regulation of collective bargaining in South Africa. 17

17 The tensions that exist between the purpose of collective bargaining and the fundamental values underlying the LRA have been at the centre of industrial conflict. It has been acknowledged by both the legislature and the judiciary that the strict application of the principle of majoritarianism may have a serious impact on unions’ seeking recognition from employers. See Le Roux 2018 CLL 72; Van Eck and Newaj 2020 CCR 331-351; Theron, Godfrey and Fergus 2015 ILJ 853; Botha and Germishuys 2017 THRHR 365-369; Ngcukaitobi 2013 ILJ 836; Corazza and Fergus "Representativeness and the Legitimacy of Bargaining Agents" 87; Friedman 2014 Dispute Resolution Digest 50-53; Brand 2014 Dispute Resolution Digest 55; Anstey 2013 South African Journal of Labour Relations 138; Kruger and Tshoose 2013 PELJ 289 with reference to Bendix Industrial Relations 253.

While the notion of fairness was the catalyst for increased intervention, it was not explicitly acknowledged in South African law until the right to fair labour practices was recommended by the Wiehahn Commission and adopted through amendments to the Industrial Conciliation Act 28 of 1956, which became the 1956 LRA. 18

18 Germishuys-Burchell Legal Regulation of Trade Union Recognition 4.

The definition of unfair labour practice in the 1956 LRA was designed to serve the fundamental purpose of the 1956 LRA by promoting collective bargaining to reduce industrial conflict and settle industrial disputes. 20

20 The 1956 LRA as amended by the Labour Relations Amendment Act 83 of 1988.

It was accepted as essential for the proper functioning of collective bargaining that the parties participate in the process or be compelled to do so, should they refuse. 22

22 Brassey et al New Labour Law 151. Also see Wedderburn, Lewis and Clarke Labour Law and Industrial Relations 216-217. See in general Thompson 1987 ILJ 1, also referred to by the Industrial Court in the Paper Wood case 703.

The 1956 LRA was seen to entrench the voluntary core of collective bargaining, but through the endeavours of the Industrial Court this Act ultimately did so within a coercive framework aimed at ensuring self-governance in compliance with the rules and principles of collective bargaining and preventing either party from acting in a way so as to subvert the continued or effective functioning of the collective bargaining process. 23

23 MWASA v Argus Printing & Publishing Co 1984 5 ILJ 16 (IC). See, for example, United African Motor Allied Workers Union v Fodens (SA) (Pty) Ltd 1983 4 ILJ 212 (IC) (hereafter the Fodens case); Metal & Allied Workers Union v Stobar Reinforcing (Pty) Ltd 1983 4 ILJ 84 (IC); Shezi v Consolidated Framed Cotton Corporation Ltd 1 1984 5 ILJ 3 (IC); National Automobile & Allied Workers Union v Pretoria Precision Castings (Pty) Ltd 1985 6 ILJ 369 (IC); National Union of Mineworkers v Marievale Consolidated Mines Ltd 1986 7 ILJ 123 (IC); Metal & Allied Workers Union v Natal Die Casting Co (Pty) Ltd 1986 7 ILJ 520 (IC) (hereafter the Natal Die Casting case); Food & Allied Workers Union v Spekenham Supreme (2) 1988 9 ILJ 628 (IC) (hereafter the Spekenham Supreme (2) case).

In all of this, and in an essentially market-orientated economy, the view prevailed that the substantive outcome of collective bargaining (the content of collective agreements) should be left for determination by market forces. 26

26 Cameron, Cheadle and Thompson New Labour Relations Act 99.

As is pointed out below, currently third-party intervention under the 1995 LRA may occur even after the parties to the dispute have exhausted the statutory conciliation procedure to allow for another attempt by a second commissioner to conciliate between the parties, even during a strike for which all procedural requirements have been met. 29

29 In the case of s 150 the director may appoint a commissioner who has already conciliated that dispute.

The 1956 model provided for by the 1956 LRA was explicitly replaced by a different regulatory model as provided for by the 1995 LRA, with its strong support for voluntarism. As mentioned, among other good reasons for change – including our new constitutional dispensation – the 1995 LRA and its approach to regulating collective bargaining is also a product of criticism against the 1956 LRA. 30

30 Explanatory Memorandum 278; ILO Prelude to Change 739; Du Toit et al Labour Relations Law 20; Mischke 1995 JBL 58; Saley and Benjamin 1992 ILJ 731-739. See Mboweni "New Era for Labour Relations" referred to in Du Toit 1995 ILJ 792. Du Toit et al Labour Relations Law 5, 23.

The key points of contention in response to the Labour Relations Amendment Bill at the National Economic Development and Labour Council

(NEDLAC) related to the proposed regulation of collective bargaining. 31

31 Cosatu, Nactu and Fedsal "Proposals on the Draft Labour Relations Bill" 7, 12 referred to by Du Toit et al Labour Relations Law 24-25.

It is against this background that the regulation of advisory arbitration in the public interest provided for in section 150 and 150A–D, is considered below.

3 On advisory arbitration and third-party intervention in collective bargaining under the 1995 LRA

At the time when the current LRA came into effect, as far as legal intervention is concerned, section 150 provided no more than that once the Commission for Conciliation, Mediation and Arbitration (CCMA) becomes aware of a dispute that has not been referred to it, and if the resolution thereof would be in the public interest, the CCMA may offer to appoint a commissioner to attempt to resolve the dispute through conciliation. 38

38 Section 150(1) as it read since the enactment of the 1995 LRA until just prior to the Labour Relations Amendment Act 6 of 2014.

was possible only if all the parties to the dispute consented to such a commissioner’s being appointed. 39

39 Section 150(2) as it read prior to the Labour Relations Amendment Act 12 of 2002 (hereafter the 2002 LRAA).

In Dairybelle (Pty) Limited v Lupondwana, 40

40 Dairybelle (Pty) Limited v Lupondwana 2001 7 BLLR 741 (LC) para 13.

In 2002 the scope for intervention under section 150 was broadened to provide for the possibility of appointing a commissioner to assist the parties in resolving the dispute through further conciliation. 41

41 Regarding conciliation in the public interest, Also see s 72(9) added in 2019.

In this light, as the article shows, there is a growing disconnect between the legislature's intention at the time of drafting the LRA which replaced the 1956 LRA and developments over the almost 30 years since the enactment of the LRA. This is true particularly in as far as the notion of voluntarism is concerned. Of particular importance in this regard is the extent to which the current regulatory regime allows for third-party intervention in the regulation of collective bargaining.

As part of its intervention aimed at addressing the high levels of violence and other unlawful acts that occur, often during prolonged strikes, the legislature in 2015 amended section 150 as follows. The director of the CCMA may now appoint one or more commissioners who must attempt to resolve the dispute through conciliation, whether or not that dispute has been referred to the CCMA or a bargaining council. 44

44 Section 150(1) of the 1995 LRA.

consulted both the parties to the dispute 45

45 Section 150(2)(a) of the 1995 LRA. To be noted here is that consultation, as a rule, is a process associated with the retrenchment process rather than with the process of collective bargaining.

(a) one person from a list of at least five names submitted by the representatives of organised labour on the governing body of the Commission; and

(b) one person from a list of at least five names submitted by the representatives of organised business on the governing body of the Commission. 48

48 Section 150(4) of the 1995 LRA.

Unless the parties to the dispute agree otherwise, the appointment of a commissioner in terms of section 150 does not affect any entitlement of an employee to strike or an employer to lock-out, as acquired in terms of chapter IV of the LRA. 49

49 Section 150(5) of the 1995 LRA.

As part of the 2019 amendments to the LRA (introduced by the Labour Relations Amendment Act 8 of 2018) and in a further attempt to address strike violence, damage to property and strikes that are no longer "functional to collective bargaining", the LRA now provides in detail for an increased measure of third-party intervention to facilitate the resolution of collective bargaining disputes in the public interest. 50

50 The notion that a strike should be "functional to collective bargaining" has its origin in industrial court jurisprudence under the 1956 LRA. Also see Rycroft 2014 IJCLLIR 199; Fergus 2016 ILJ 1537.

Apparent from these sections is not only the increased scope allowed for third-party discretion but also the obligation that is placed on such a third party to deal with the substantial merits of the dispute.

Furthermore, after hearing the merits of the competing (collective bargaining) contentions, the commissioner must step into the collective bargaining arena to consider and pronounce on a substantive issue – the "reasonableness" of the union's demand. This seems to create an exception

to the general rule against third-party intervention that goes beyond procedural issues in the context of collective bargaining. Notable from the above is that the LRA enjoins conciliating commissioners to adopt a more interventionist approach in collective bargaining. 51

51 For a discussion on the better utilisation of advisory arbitration awards, see Coetzer 2014 ILJ 880.

The provisions dealing with the effect of the award are criticised for being poorly drafted, but it has been suggested that the essence thereof seems to be the following: "The award is only binding on a party to the dispute if the party accepts the award or is deemed to have accepted the award, and provided further that at least one other party on the other side accepts the award." 52

52 Le Roux 2017 CLL 27, 29.

The recent amendments extended the scope for third-party intervention in collective bargaining in a number of ways. These include amendments aiming to facilitate the resolution of disputes where strikes become dysfunctional, violent and/or unduly protracted. 55

55 See s 150A-D of the 1995 LRA.

Apart from the greater scope for (third-party) discretion, specifically as far as it might affect the public interest, another noteworthy feature is the legislature's greater reliance on independent third-party intervention in the substance of collective bargaining. 56

56 See s 150A-150D of the 1995 LRA. Advisory arbitration in the context of "refusal to bargain" disputes (s 64(2) of the 1995 LRA) and advisory awards in the public interest (s 150 of the 1995 LRA).

In its original version the 1995 LRA provided for the CCMA, only if the dispute had not been referred to it before, to offer to appoint a commissioner to attempt to resolve the dispute through conciliation. A dispute could not be conciliated twice, 57

57 See Dairybelle (Pty) Limited v Lupondwana 2001 7 BLLR 741 (LC) para 13 which was decided before the 2002 amendments to the 1995 LRA.

After the 2019 amendments the director of the CCMA may in certain circumstances be forced to appoint a (senior) commissioner who has possibly already conciliated the dispute – with an assessor from each party. 59

59 Section 150(2)(a) of the 1995 LRA now provides for further conciliation.

The 1995 LRA, after its amendment and if in the public interest, provides for the appointment of a commissioner or an advisory arbitration panel even where no party to the dispute is interested. 61

61 Sections 150 and 150A-150D of the 1995 LRA.

While an advisory award is not binding on the parties and arguably places no obligation on the parties, both the 2015 and the 2019 amendments to the LRA seem to indicate a move in the opposite direction by obliging parties

who choose not to accept awards issued in terms of the new provisions to motivate their rejection in the prescribed manner. 62

62 Section 150C(5) and 150C(6) of the 1995 LRA.

The amendments brought about by section 150A-150D are far from the original proposed amendments emanating from some employer quarters to combat strike violence. According to PAK le Roux, 63

63 Le Roux 2017 CLL 29.

The fact that trade unions (and employers' organisations) would now have to conduct their deliberations in the court of public opinion may well translate into pressure on trade unions (and employers) and their members not to stand in the way of a resolution intended (or regarded by an independent third party) to be fair. 66

66 See Cheadle et al Strikes and the Law 124.

All of this takes place in the context of a growing realisation that we need to prevent labour unrest and to re-align the functionality or "meaningfulness" of the collective bargaining process, a realisation that has resulted in an extension of the scope for judicial intervention in collective bargaining. 67

67 See, for example, the addition of s 21(8A)-21(8D); the recently added s 150A-150D of the 1995 LRA; the insertion of s 189A in the 2002 LRAA and the deletion of s 189A(19) with effect from January 2015.

4 Conclusion

This article (with its focus on section 150 and 150A-D) has considered the extent to which the regulation of collective bargaining under the 1995 LRA

– as a product of criticism against the 1956 LRA – continues to be grounded on the legislative policy consideration of voluntarism.

This was done in the light of two specific points of criticism against the 1956 LRA. First, "the contradictions in policy introduced by layer after layer of amendments, year after year", and second, "the extensive discretion given to administrators and adjudicators" to intrude in the bargaining relationship. 68

68 Explanatory Memorandum 291.

Apart from a steep increase (over a relatively short period) in the scope allowed by the 1995 LRA for third-party intervention in collective bargaining, another noteworthy feature is the legislature's greater reliance on independent third-party intervention also in the substantive outcome of collective bargaining. 70

70 Section 150A-150D of the 1995 LRA.

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List of Abbreviations