Are changes to strike law needed or negotiation and mediation skills?



South Africans have watched with rising concern media reports of professional workers - particularly teachers and nurses - behaving in a violent or overly aggressive manner during the recent public sector strikes. Academics and labour law professionals and union representatives gathered to consider whether our strike law should be changed - or is it a lack of skilled facilitators, negotiators and mediators?



South Africans have watched with rising concern media reports of professional workers - particularly teachers and nurses - behaving in a violent or overly aggressive manner during the recent public sector strikes.
Many have questioned how people in ostensibly professional positions, with an assumed level of economic and career development security, have reached a stage of frustration where they are moved to behave in this manner. What are the conditions that lead to the public service strike, which is still not completely resolved? Should our strike law be changed?
The organisations of the Industrial Relations of South Africa (IRASA) and the South African Society for Labour Law (SASLAW), in collaboration with the University of Cape Town (UCT) Institute of Development and Labour Law (IDLL) and University of the Western Cape (UWC) convened a well-attended seminar to address these questions.

UCT?s Professor Evance Kalula welcomed the delegates and congratulated Judge Anton Steenkamp on his recent appointment. Delegates included judges, academics, researchers, labour lawyers, labour practitioners, Commission for Conciliation Mediation and Arbitration (CCMA) commissioners, and union officials.

UWC Professor Darcy du Toit indicated that he had instructions to behave like Judge Dennis Davis, but he didn't think that it would be quite the same - as he is very different to the Judge. The evening was intended to take the form of a discussion and he introduced the topic by questioning whether it is our strike law that is at fault, and asked Professor Maree to provide a sociological background to the discussion.
UCT Emeritus Professor Johann Maree provided a sociological background, describing our labour history:

commencing from the 1960s - a relatively quiet decade with organisations and activities suppressed by the apartheid government;
through the 1970s with the upsurge of strike action in 1973 with Frame Textiles, and many other large companies such as Bakers and Dunlop - he characterised those strikes as "demonstration stoppages' -short demonstrations, workplace based indicating a frustration with management;
then the 1980s, after the Wiehahn Commission report the state recognised black unions, employers began to conclude recognition agreements, there was mass civil unrest, the rise of the United Democratic Front (UDF), Federation of South African Trade Unions (FOSATU) and Congress of South African Students (COSAS) achieved a stay-away on the East Rand, and Congress of South African Trade Unions (COSATU) was formed, and there was the organisation of national rather than workplace demonstrations.

The 1990s saw a reduction in activity, the end of apartheid and institution of the new government, the new Constitution, and Labour Relations Act(LRA). Statistics provided by Shane Godfrey were quoted on "working days lost', demonstrating that from 2000 there was a gradual increase in strikes leading to a peak in 2007, with 2010 already having surpassed that peak.
Professor Maree characterised our labour relations history as adversarial. In addition, he suggested that it is also necessary to consider the social cleavages within society:

where the issues of teachers and nurses relate more to those of the working class,
there is a brutalisation of society,
"normlessness', and lawlessness.
He described the effect of large numbers of male migrant workers to urban centres - leading to an absence of men and male role models in townships - adversely affecting the youth.
Finally, there is a frustration and anger at government for the failure to address unemployment, poverty, and inequality since 1994.

Visiting Professor Manfred Weiss compared strike law in Germany, where he confirmed that there is no mention of strikes in the German statutes. There are also other differences:

when there is a strike, the German unions must pay strike benefits, which are almost as high as the net wage - so very expensive for the unions;
strikes are unpopular and unions are concerned about an adverse effect on the recruitment of members;
and there are essential services with a minimum service level.

Compared to our adversarial environment, Professor Weiss described how when there is the possibility of a strike, the trade unions and employer associations sit together to ensure minimal impact on any third party - a "social partnership', where there is a joint responsibility.
The Professor also pointed out that the German right to strike is a collective right - as compared to France or Italy, where it is an individual right derived from their respective constitutions. He did also point out that in his experience German citizens are far more likely to obey an interdict immediately; compared to those fellow European countries.
In how to respond to our current strike level, he cautioned about thinking that the answer lay in another country?s law - and reminded of the International Labour Organisation (ILO) Convention 87, which doesn?t explicitly mention strikes, but it is agreed that a right to strike is implicit.

Recently appointed Judge Anton Steenkamp reminded delegates of the Explanatory Memorandum to the1995 LRA that listed what the Act was intended to achieve: compliance with ILO Conventions, to give Constitutional right to strike, to give the right to strike to unions and workers, to promote collective bargaining, provide for "reasonable' reasons for strikes, and lockouts, and to de-criminalise labour law.
Some of these objectives have been achieved; he recalled the days when interdicts against strikes were sought for simple issues such as against strike ballots, which he suggested is not constructive. The balance should not be to unreasonably obstruct strikes taking place, but to ensure responsibility for behaviour during strikes. He referred to the High Court judgement by the Judge President against South African Transport and Allied Workers Union (SATAWU) in respect of the 2006 strike, and also suggested that the LRA section 68 (b), which allows for: "just and equitable compensation for any loss attributable to the strike', is an underutilised section.

In the discussion, Sarah Christie suggested that the structures for public service bargaining should be reconsidered, that too many different sub-sectors are brought together and that it doesn?t make sense to have nurses bargaining for doctors; but she also pointed out that in questioning whether the strike law is the issue, the questions is rather whether the law reflects something that the State is willing and able to enforce.

Shane Godfrey pointed out that the high strike rates in 2007 and 2010 do not indicate that there is something wrong with the strike legislation, but rather we should consider other factors. The public service represents 10% of employees, but is responsible for 90% of strike working days lost.
Professor Weiss commented:

questions should be asked about the role of National Economic Development and Labour Council (NEDLAC) - particularly as mediators;
and agreed that it is necessary to ensure that the State is willing and has the ability to enforce strike law;
regarding the powers of the Courts and the CCMA - he questioned whether the latter has enough authority or acceptability to the parties;
and explained that the ILO definition of "essential services' was that the only acceptable areas for a prohibition on strikes are: the army, the police, and the fire brigade;
in other areas such as health and traffic control strikes are possible, but with an agreed required minimum service.

John McRobert questioned whether:

it had been right to remove the "duty to bargain' in the present LRA;
and as 90% of these strikes concerned public sector, whether a similar response to that of the City of Cape Town to the traffic wildcat stoppage would be effective;
and thirdly asked is it not the strike law, so much as incompetent negotiators?

Advocate Alec Freund raised the balance between allowing that strikes are possible relatively easily, with a requirement that no lawful strike be possible without conciliation, and whether this should be complied with for essential services. He proposed that there should be further examination of the social cleavages as raised by Professor Maree.
Mario Jacobs of South African Municipal Workers Union (SAMWU) responded to an opinion of Judge Steenkamp, who suggested that he could not understand why unions had not pushed for minimum service level agreements; on the contrary Jacobs said - it is employers who are obstructing the process of defining minimum service levels. He referred to the Eskom judgement by Judge Dennis Davis.

Secondly, he said with the escalating gaps in income, it is the reality of teachers and nurses that their life circumstances are such that they do see mutual interest with working class union members - income disparities have increased to the extent that globally we are now the most unequal society.
Commissioner Allie Ryklief offered the opinion from his CCMA experience, that it is the calibre of negotiators that is the issue, he described some of the "negotiations' he had seen as "pathetic', simply a "bashing' of the other side, and he had been told that employers expect the unions to go to the CCMA so they simply say this is the "bottom-line' now go to the CCMA - there is no negotiation in good faith. He also criticised the employer organisations, which treat wage negotiations as if they are misconduct dismissal disputes. He called for skills training for negotiators and for mediators.
In further conversation after the seminar, Commissioner Ryklief recalled the days when industrial relations practitioners qualified with a Masters degree, he felt that there was a need to revive such qualifications, and increase the skills and knowledge of the participants.
In closing, Johann Maree reiterated the importance and relevance of the social cleavages; Judge Steenkamp proposed a greater use of "interest arbitration'; and Professor Weiss that there is a need to examine the non-compliance with the law - that both sides get a perception that those who are applying the law are impartial, and proposed that there should be a greater role for NEDLAC.
Darcy du Toit concluded that this is a start of an important conversation, and further discussion is needed on whether it a change to strike law that is required or the social cleavages that are to be addressed.

Finally, in a post-seminar comment on essential services and minimum service level agreements, the SAMWU General Secretary Roger Ronnie expressed the view that what is needed is experienced and skilled facilitators - to assist the public sector parties to advance, that minimal service levels are not simply about an overall percentage of employees, and that the unions cannot do it alone, skilled facilitation is needed to enable the parties to agree on essential services and minimum service levels.
sylvia hammond




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