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South Africa – Government opens the door for further labour reforms

24 March 2014

The South African Government has opened the door to the possibility of further labour law amendments, especially those that could limit long and violent strikes, and has invited social partners to a structured discussion on the matter, reports bdlive.co.za.

Since the Marikana massacre in August 2012, which resulted in the deaths of 44 people, the majority of whom were striking miners, the efficacy of South Africa’s industrial relations framework has been called into question as established institutions have failed to mediate conflict.

This, plus the more recent realisation in both government and African National Congress (ANC) circles that existing legal provisions have had a limited effect on long and violent strikes that disrupt the economy, have led to renewed impetus for further legislative reforms.

Department of Labour acting deputy Director-General Thembi-nkosi Mkalipi said in an interview last week the government had submitted a proposal to business and labour representatives in the National Economic Development and Labour Council (Nedlac) to hold a labour relations gathering to address the challenges facing labour relations.

The gathering [or indaba], to be held in the second half of the year, is framed in terms of a response to Marikana. However, the partners would be free to make suggestions for the agenda.

In reply to a parliamentary question last week, Labour Minister Mildred Oliphant said the indaba would: "Conduct a holistic, situational analysis of the labour market in South Africa with a view to identify the problem areas and to agree on a set of interventions to remedy such ills."

Ms Oliphant said: "The department had commenced exploring possible regulatory instruments to curb protracted industrial action and would advise this house at an appropriate point".

Vanessa Phala, Business Unity South Africa’s (BUSA) representative in the Nedlac labour market chamber, said business had responded to the government proposal: "Long and violent strikes are a key issue for us and we will of course be pushing for discussion on those. The indaba will provide a platform for all of us to be honest. In the post-Marikana period we have to start rethinking. Will the Labour Relations Act, for instance, help prevent another Marikana in the future?"

Organised labour, which includes the Congress of South African Trade Unions (Cosatu) and the Federation of Unions of South Africa, which usually opposes labour market reform vehemently, has not yet formally responded to the government proposal.

Ms Phala said organised business wanted measures to help minimise violence during strikes included in the amendments to the Labour Relations Act that have just been processed by Parliament, but the proposal to make strike balloting compulsory, which initially came from the government, was excised in the process after a deal was struck between the ANC and Cosatu.

The reinstatement of this provision is important as there is evidence that strikes are more likely to be violent when they do not have majority support.

A second suggestion has been to revisit the "majoritarian principle", which allows unions with a membership of 50% of the workforce to set thresholds for competing unions, in effect shutting them out. This is considered vital by labour law experts in revisiting the labour relations framework. The effect of the majoritarian principle has been to limit the number of voices in industrial relations processes that employers can legitimately speak to.

While the latest amendments to the Labour Relations Act slightly water down the power of majority unions by allowing minority unions to appeal to the Commission for Conciliation, Mediation and Arbitration to change thresholds, it has been argued that this does not go far enough in allowing a variety of voices to be heard.

Another two areas of the law, which may prove far more controversial, have suggested that a protected strike should lose that status when violence that can be attributed to union members occurs. This is gaining currency among employers in the mining industry, which due to structural constraints has largely been unable to prevent violence and protect non-striking employees during strikes.

Another suggestion, being spoken of informally in the government, is that strikes should be subject to compulsory arbitration when they drag on too long. This, however, would fall foul of International Labour Organisation conventions to which South Africa in a signatory, which set strict parameters under which the right to strike can be limited.

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