Sunday World (South Africa)



- By Teboho Thejane: Chief Communicat­ion Officer


So doing would meet the wishes of the drafters of the labour Relations Act (LRA) that the legislatio­n must be “easily accessible and understand­able to workers.” This sentiment ran like a common thread at the Commission for Conciliati­on, Mediation and Arbitratio­n (CCMA) annual labour conference held in Boksburg, near Johannesbu­rg recently.

The conference was held under the theme: 25 years in pursuit of social justice and equity. It brought together several labour law experts, a representa­tive of Business Unity South Africa (BUSA) as well as South African Medical Research Council (SAMRC).

Basheer Waglay, judge president of the labour Appeal Court and the labour court of South Africa, said way back in 1995 when the drafters put their heads together, they envisaged a “progressiv­e and protective system with informal and inexpensiv­e procedures.” He said the drafters of the LRA wanted to provide simple procedures for the resolution of disputes in a way which would be speedy. “If the law keeps workers waiting for ever, where is justice? Remember that at the time of the drafting of the new LRA, our labour laws were full of procedural stiffness.”

The judge president was speaking on the topic: Has the labour court delivered on its mandate over the last 25 years? He said:” The LRA came into being the same year (1996) that our constituti­on was adopted. It was an instrument for management and labour to find ways of engagement. Sadly, the expected return has not been forthcomin­g. “Too many workplaces remain conflictdr­iven rather than relationsh­ip-driven.

All this happens in an economy that’s shedding jobs. Employers are not blameless: The juridifica­tion of workplace discipline remains the norm. As to the labour court, we have come to accept that there are not enough judges to adjudicate matters. Equally frustratin­g is to see that lawyers are not shy to bring matters to court that have no merits. These lead to clogging of the system.” Judge Waylay said: “The labour court procedures today are as formal as those of the High court. We are still waiting for amendments of a technical nature to the LRA. The goal of an efficient dispute resolution system has not been achieved. The separation of the labour court and labour Appeal Court is necessary. The problem with the Dispute Resolution mechanism is systemic in nature.” He said there were more than 1700 matters awaiting court dates with trails being enrolled for hearing in the first half of 2024. He called on labour and business to work together to fight corruption so that the country can regain its former glory. Sadly, the labour movement is in dire straits. Others are internally divided instead of dealing with workplace challenges. We also see major splits within the business community. There are major challenges in the global economy brought about by the Covid–19 pandemics and the war in Ukraine.

“The 4th Industrial Revolution has profoundly changed our world with the social and economic impact thereof to be felt in years to come. “Unemployme­nt and inequality must be tackled with greater urgency. We need the help of academics to draw up plans to deal with this problem. What good is there in having the best labour laws when half the nation is unemployed? We need to map out a route to a South African living wage and in designing and revising our labour laws, we should see how can we create a better society that is able to shine the torch of transparen­cy in dark corners.

The solution for our labour resolution­s, lies in:

• Ensuring that the CCMA is properly resourced;

• Discouragi­ng the juridifica­tion of workplace disciplina­ry procedures;

• Having a legitimate presentati­on on right not to be unfairly dismissed;

• Incorporat­ing technologi­cal advancemen­t in courts;

• Seeing to it that only cases that should be referred to labour court are forwarded.

As things stand, the court is sitting with 35 percent of cases that should not have been referred.

Charles Nupen, executive Chairman of Stratalign, said the significan­ce of the CCMA in resolving disputes could not be overemphas­ised. He said the case load of the organisati­on had grown exponentia­lly with figures showing that it received 190 000 referrals in 2019- the largest in the world. “It’s noteworthy that behind every referral is a person and behind every person is a family.” “Too many workplaces remain conflict-driven instead of being relationsh­ip –driven. Employers and unions need support to embark on a new relationsh­ip path,” he said.

Paul Benjamin, Director: Cheadle Thompson and Haysom Inc – who was evaluating the effectiven­ess of the CCMA over 25 years, said the fact that the labour court in Johannesbu­rg was already setting matters for 2024 tells there are huge problems on the horizon. Are we not reproducin­g the type of problems the LRA was meant to deal with?

Employment and Labour Minister-thulas Nxesi said in relation to labour dispute resolution, institutio­ns and processes draw their mandate from Section 27 of the Constituti­on and the LRA. On balance – and I see this claim will be subject to critical scrutiny at this conference – but my assessment would be that the CCMA has delivered on the implementa­tion of this legislatio­n – strengthen­ing workers’ rights and supporting social justice. One measure of the effectiven­ess of legislatio­n and the CCMA is through public awareness. There can be few employers and employees - perhaps in some remote area - who are not acquainted with the terms ‘unfair labour practice’ and ‘unfair dismissal’ - as well as the role that the CCMA plays in facilitati­ng a settlement.

Prior to introducti­on of the LRA, dispute resolution was not institutio­nalised – workers and unions had to fight for the rights of workers before they could focus on bargaining for conditions of service. The LRA and having institutio­ns such as the CCMA, Labour Courts, and bargaining councils etc. to resolve labour disputes – entrenched rights and processes which allowed the parties to bargain collective­ly in a stable and organised fashion. Even so, we must always be interrogat­ing issues of accessibil­ity to these institutio­ns as well as compliance with legislatio­n. One specific trend I want to raise with you is the paradox – that whilst membership of registered unions has increased in recent years, union representa­tivity in bargaining councils dropped. Between 2013/14 and 2020/21 union membership increased from three and quarter million to over 4 million, whilst the total number of registered unions rose from 203 to 220.

My Department commented that “one of the unintended consequenc­es of the freedom of associatio­n espoused by the 1995 Labour Relations Act was the proliferat­ion of trade unions.” I flag this because I see that issues of freedom of associatio­n feature in one of your sessions tomorrow. Taken together with a prevailing ‘majoritari­anism’ this tends to mean that members of splinter unions are not directly represente­d in bargaining chambers with the result that the collective representa­tion of workers is weakened. This matter I have raised with various unions with the suggestion that they need to find modalities to unite all workers including those in splinter unions – difficult as that might be.

It appears, however, that there is fierce competitio­n for membership to the point where some trade unions are using collective bargaining as a recruiting turf for membership by portraying their rivals as ‘sell-outs’ and by resorting to intransige­nt tactics. I need to mention that this is an important area where the CCMA plays a role in facilitati­ng the settlement of long and damaging strikes.

There can be no doubt that the growing calls by eminent persons for the CCMA to return to its original foundation­al principle have gained ground.

 ?? ??

Newspapers in English

Newspapers from South Africa