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COURSE CODE: CML5613S

COURSE NAME: Collective Labour Law


Emma Fergus


DUE: 09 September, 2014
WORD COUNT: 3,500


ASSIGNMENT TASK:
Given the frequency and (often violent) nature of strikes in South Africa, do you agree
that the imposition of a judicially enforceable duty to bargain on parties to
employment relationships is undesirable? In your response:
critically analyse the arguments both for and against the imposition of such a
duty.
Your analysis should include a clear indication as to whether or not you agree
with the Constitutional Courts sentiments in this regard.



STUDENT NAME: Diantha Jones
STUDENT NUMBER: JNSDIA001













Jones

2

Plagiarism Declaration

I know that plagiarism is wrong. Plagiarism is to use anothers work and pretend
that it is ones own. Allowing another to copy my work and use it as their own is
also plagiarism.

This assignment is my own work.

I have not allowed and will not allow anyone to copy my work with the intention of
passing it off as his or her own work.

I acknowledge that working with someone on my assignment is allowed, but only if
a mutual effort is made and different examples and, where necessary, wording are
used.




Signature:...Diantha Jones.............................................

Name:...Diantha Jones...................................................

Student No:.........JNSDIA001....................................



"I acknowledge that plagiarism (any other attempt to pass another's work as one's
own) is both unethical and against university rules. I hereby confirm that I have not
plagiarised in the preparation of this assignment and have not allowed anyone to
copy my work."













Jones

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South Africas history with labor is a complex and often painful one to recount.
Under the Apartheid regime labour policies were designed around the separation of the
races in this country. Since the post-Apartheid government has come into power a great
deal of effort has been put into rectifying these unjust labour policies of the past,
particularly by enhancing collective bargaining rights. Part of these increased rights has
included the right to strike in South Africa. As the frequency of strikes continue to rise
though, people have begun to ask if South Africa should impose a judicially enforceable
duty to bargain as a way to decrease the number of strikes that are taking place in the
country.
This paper will explore this complex issue through a critical analysis of this
question. The first section of this paper will examine the reasons in favor of a judicially
enforceable duty to bargain. This will be accomplished through references to academic
papers and scholars and a discussion of previous South African legislative frameworks.
The second portion of this paper will then critically analysis the reasons against a duty to
bargain. Through an examination of the arguments against imposing a duty to bargain,
this paper will consider the reasons against this policy. As this paper explores both sides
arguments towards this issue, the author will weigh the advantages and disadvantages of
each against one another. The final section of this paper will then discuss the authors
final opinion on the best course of action to take on imposing a duty to bargain within
South Africa.
The Foundation of Collective Bargaining:
Before a critical analysis of a judicially enforceable duty to bargain begins, it is
important to first examine what legislative framework this question arises from. Section
23(5) of the Constitution outlines the Constitutions stance on labor relations and
collective bargaining
1
. This section has been the most closely examined piece of law
studied in the Courts debate regarding whether or not the South African legislative
framework supports the duty to bargain. In one of the most well known Constitutional
court cases to deal with the duty to bargain,
2
SA National Defence Union v Minister of
Defence & others, particular attention was given to the importance and meaning of
section 23(5) which says.

Every trade union, employers organisation and employer has the right to
engage in collective bargaining. National legislation may be enacted to
regulate collective bargaining. To the extent that the legislation may limit
a right in the Chapter, the limitation must comply with section 36(1).

In SA National Defence the plaintiff used this section to argue that the
Constitution creates a right for a duty to bargain. Focusing on
3
the right to engage in
collective bargaining they argued that section 23 created a constitutional right to the
duty to bargain that had been violated by the employers refusal to engage in collective

1
Constitution of the Republic of South Africa, 1996, section 23(5); D du Toit, D Bosch, D
Woolfrey, S Godfrey, C Cooper, GS Giles, C Bosch, J Rossouw Labour Relations Law: A
Comprehensive Guide
2
SA National Defence Union v Minister of Defence & others 2007 (5) SA 400 (CC); (2007) 28
ILJ 1909 (CC)
3
Ibid para 4
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bargaining with the defence union. The academic book Labour Relations Law
4
states that
the defence in SA Defence argued that there was a difference between the right to engage
in collective bargaining and the right to bargain collectively. This is where debate over
the right to impose a duty to bargain begins. Advocates for the issue state that there is a
Constitutional right to impose a duty to bargain. Critics argue that there is no such right
and that section 23(5) does not support this issue.
The following section will critically analyze the argument presented in support of
a duty to bargain. This will be accomplished through three arguments cited in favour of a
duty to bargain.
Support for the Duty to Bargain:
The first argument supporters often give in support of imposing a duty to bargain
is that South Africans have a Constitutional right to engage in collective bargaining. This
was the argument briefly presented above, in SA Defence. By interpreting section 23(5)
as a Constitutional right, supporters argue that the law has created a basis for the duty to
bargain. If this is true, a duty to bargain is a right that all citizens are guaranteed. This
differs from the Courts current stance on the issue of the duty to bargain which states
that bargaining is a privilege that employers and trade unions can engage in voluntarily.
In SA Defence the plaintiffs argued that their right to engage in collective bargaining was
being infringed upon and the Court had a duty to uphold this Constitutional right.
Ultimately, the Court ruled against this claim and denied the plaintiffs defence that a
duty to bargain was a right through section 23(5) of the Constitution. Nevertheless,
supporters in favour of a duty to bargain still argue that s.23 protects and guarantees the
right for imposing a duty to bargain on employers.
While certain interpretations can be gathered from section 23(5) to support the
argument it falls short when examining the LRA alongside the Constitution. The LRA
does not offer any direct support for collective bargaining, a fact that greatly damages the
credibility of supporters case that the Constitution does offer this support. This was the
conclusion that the Court came to in SA Defence during their final ruling. In Labour
Relations Law the authors explore the Courts reason for their verdict in this case. In
reference to the claim that section 23(5) supported a duty to bargain the Court stated
that
5
, no writer on labour relations has so much as suggested that the LRAs provisions
with regard to collective bargaining might offend the Constitution. The Court went onto
state that because the LRA does not impose a duty to bargain, one cannot infer that based
solely on section 23(5) the Constitution can support this viewpoint. Because the two
documents were created with the intent of being read in conjunction with one another, the
Constitution would not support something that the LRA did not.
While the SA Defence and the argument in favor of the right for the duty to
bargain did not succeed, further arguments have been presented to argue in favor of
imposing a duty to bargain in the future. In a study conducted by the UCT Labour and
Enterprise Policy Research Group
6
, the group defends their support in favor of a duty to

4
D du Toit, D Bosch, D Woolfrey, S Godfrey, C Cooper, GS Giles, C Bosch, J Rossouw Labour
Relations Law: A Comprehensive Guide
5
Ibid para 3; para 4
6
Development Policy Research Unit Paper 07/130 The State od Collective Bargaining in South
Africa An Empirical and Conceptual Study of Collective Bargaining.106-110

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bargain with an examination of the lack of a success organizational rights have had in the
country. More specifically, the research group claims that the decline in trade union
membership in the private sector and the growing tendency to outsource labour and
production has made the laws definition of workplace harder to define. The research
group argues that this becomes especially problematic when attempting to use the LRA to
defend organizational rights because the current definition of a workplace in the LRA
does not coincide with the current lived definition of this term. This discrepancy in a
unified definition of the word workplace means that workers who should be covered
under organizational rights are left vulnerable to their employers.
In addition to this, because firm and plant-level bargaining are in the decline
fewer workers are being covered under organizational rights. The consequence of this is a
rise in vulnerable workers who are not being protected in the manner the law intended for
them to be. The research group states that this declines shows that organizational rights
have not been an adequate substitute for the duty to bargain. The research group
recommends introducing a duty to bargain as a method of remedying this labour issue.
By introducing a duty to bargain system and turning away from an emphasis based on
organizational rights, the research group states that the Labour Court could be responsible
for imposing an order to the disputing parties that tells them at what level they must
engage in a duty to bargain.
One drawback this paper sees with this plan is in the details in this strategy. One
cannot simply decide to introduce a duty to bargain and walk away. Introducing a duty to
bargain will require the law to create a regulatory framework regarding labor and
collective bargaining. At the moment this system is considered voluntary. As a result, the
Court does not regulate the collective bargaining system. In Labour Relations Law the
authors note that if a duty to bargain was introduced, South Africas labour market would
shift to one that is committed to a collective bargaining regime centered in the workplace
as opposed to the industry level. This would require a number of tribunal determinations
to be decided upon including the following
7
:

Who must bargain with whom- the threshold of representativeness
The bargaining constituency or unit
What may be bargained about
The manner in which bargaining takes place (bargaining in good faith and the
duty of fair representation.

While the research group offers a brief recommendation on how a judicially
enforceable duty to bargain will be determined by the Labour Court, they do not address
or answer all of the questions listed above. Not having a standard or uniform method for
determining how and when the duty to bargain will be imposed will create a great deal of
confusion and disorder within the labour market. It would also mean re-structuring the
current labour market into a regulatory market.
An increase in labour regulations often means that it is more difficult to terminate
employment relationships that are unhealthy. Employers may see that an employee is not
being productive but they will be unable to dismiss this worker based on labour

7
Ibid para 4
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regulations that make firing workers difficult
8
. Economists claim that this leads to a less
productive economy and higher unemployment rates. Companies may become more
hesitant to hire new workers if they are afraid they will not be able to fire them if they
turn out to be bad employees
9
. Those who are already out of work will also have a harder
time finding a job because those who are already employed will not dismissed, which
creates less available jobs for those outside of the market to apply to.
It is impossible to ignore the declining rates of firm and plant-level bargaining. This
paper supports the research groups claim that more should be done to address and
remedy this issue within the labour market. The author of this paper believes that
imposing a duty to bargain, as a one step solution to this problem is not the solution
though. More research needs to go into investigating why these numbers are dwindling
and what potential alternatives can be taken to improve these numbers. Instead of
switching over a to a new duty to bargain system, this paper recommends trying to find a
solution by working within the current organizational rights system.
One possible solution that could be investigated is looking into industry wide
bargaining councils and the improvement of statutory councils within various industries.
The research group also proposed an investigation into the improvement of statutory
councils, however it suggested this in conjunction with the imposing a duty to bargain on
employers. By working to make these councils more effective this paper believes that it is
possible to avoid introducing a duty to bargain as a replacement plan.
The final argument this paper will explore that supporters cite for imposing a duty to
bargain is the prevalence of strikes in the country. It is impossible to deny that strikes
happen often in this country. The frequency and length of strikes has a damaging effect
on both companies and industry. With no obligation to bargain, supporters claim that
more strikes occur when employers refuse to sit down at the table to discuss the
possibility of compromising with trade unions. The refusal to engage in this kind of
negotiation ultimately hurts all parties involved as employees lose wages, companies lose
profits, and industry suffers.
10
If employers were compelled to engage in bargaining with
trade unions some believe that the occurrence of strikes would drastically decrease.
Bringing employers to the bargaining table is not a solution though. Strikes occur
even when employers and trade unions have been willing to sit down with another.
Simply being compelled to engage in negotiations talks does not mean both parties will
agree to a solution. Labour Relations Law
11
takes a similar stance on this critique of
imposing a duty to bargain as a method to decrease the number of strikes within the
country. The authors argue that the recourse a union must take if an employer does not
agree to their terms will remain the same (to take strike action), whether there is an
imposition of a duty to bargain or not. If the frequency of strikes cannot be guaranteed by
imposing a duty to bargain one begins to question whether or not there is a real need to
impose a duty to bargain.

8
D. Moore The Case for Minimal Regulation of the Labour Market, Address to Stonnginton
University, 2008
9
OECD Employment Outlook Group Employment Protection Regulation and Labour Market
Performance, OECD Press, 2008
10
D. Belman & M Belzer The Regulation of Labor Markets: Balancing the Benefits and Cost of
Competition in Government Regulation of the Employment Relationship
11
Ibid para 4
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Part 2: Arguments Against an imposition for a duty to bargain
The first section of this paper explored three key arguments given by supporters
in favor of an imposition on a duty to bargain. This second portion of this paper will now
explore three arguments against the duty to bargain. In examining the reasons for and
against the duty to bargain, there is a great deal that can be gained from looking at the
international communitys view on this issue.
The International Labour Organisation (ILO) is one of the most widely referenced
international perspectives that South Africa considers when considering potential
policies. South Africa mentions this emphasis on considering international law in chapter
14 of its Constitution. Section 233 of this chapter states that:
12


When interpreting any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent with international law
over any alternative interpretation that is inconsistent with international
law.

As section 233 of the Constitution shown above demonstrates, the Constitution places a
strong emphasis on the importance of referencing international law. By studying the
ILOs opinion on the duty to bargain it is possible to gain further insight into the issue
that might otherwise be left unconsidered in this debate.
In the ILOs Right to Organise and Collective Bargaining Convention
13
the
organization emphasizes the promotion and encouragement of voluntary negotiation
between employers, employers organisations and workers organisations. This focus on
the importance of voluntary negotiation directly contradicts the desire and imposition of a
duty to bargain. The ILO states that it is the goal and desire of the organization to
promote the freedom of collective bargaining. The ILOs opinion towards collective
bargaining is representative of a larger view held by many others within the international
community. A voluntary system assures that when both groups come to meet at the table
they are prepared and more motivated to work towards finding a solution together. This
paper feels that this second argument against imposing a duty to bargain is a strong one
that should be considered by those engaging in this debate. The international
communitys stance against imposing a duty to bargain in favour of voluntary system
assures that collective bargaining remains a willing act by all parties. This paper feels that
this will lead to more productive negotiation discussions than imposing a duty to bargain
by the Courts would result in.
The freedom of collective bargaining is a crucial objective in the development of
labor relations within South Africa. This is a second argument against imposing a duty to
bargain that this paper will examine. In the years since Apartheid has ended, many look
back on industrial relations during this time as being unjust. South Africas ruling party
imposed a dualistic approach towards labour relations that separated white and non-white
workers and prevented black workers from joining register trade unions for many years.
Mothepa Ndumo explores this history in her research dissertation entitled, The Duty to

12
Constitution of the Republic of South Africa, 1996, section 233
13
The International Law Organisation Right to Organize and Collective bargaining Convention
(No 98), 1951
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Bargain and Collective Bargaining
14
. Ndumo writes that the Black Labour Relations
Regulation Act 48 of 1953
15
stipulated this separation as well as the restricted right for
black workers to strike. As Ndumo continues to discuss the development of labour
relations in Apartheid South Africa, she describes the Industrial Relations Act of 1956
16
,
which determined what bargaining topics the industrial councils could negotiate on. The
result of these two pieces of legislation was a highly regulated and interventionist policy
towards labour relations by the Apartheid government.
17
Since 1994 new legislation has
been enacted in this country with the intention to change these former policies.
This paper mentions these two labour documents as a testament to the legacy of
interventionist policy under the Apartheid regime that South Africa must remember
today. The ILOs emphasis on the freedom of collective bargaining is a critical argument
in the preservation of the freedom to labour relations within this country. Imposing a duty
to bargain creates a regulatory framework that removes this freedom from taking place.
The voluntary approach that the LRA favours limits government regulation and
intervention. Labour Relations Law cites this as a response to the old regimes Industrial
Court system. The authors state that the former Industrial Court treated an employers
refusal to bargain collectively with a registered trade union as an unfair labour practice.
18
The scholar AP Molusi states that the creators of the LRA consciously chose to include
an emphasis on a voluntary view towards collective bargaining as a way to remedy these
issues seen under the Industrial Court.
The issues seen in the Industrial Court under the former ruling party is the third
and final argument against imposing a duty to bargain in South Africa. The Industrial
Council faced several problems when they began imposing a duty to bargain on
employers. The most notable problem was imposing a duty to bargain on an ad hoc
basis
19
. Because there was no set standard for a duty to bargain in the Court rulings were
often inconsistent from one case to another. This undermined the original intention of the
imposition of a duty to bargain, which was established to create a greater sense of order
into the labour relations process.
The second issue that arose under the Industrial Court was a two-fold system that
formed between plant-level and centralized bargaining.
20
Molusi discusses the difficulties
that arose between the development of a dualistic approach towards the duty to bargain
during this time. She states that the duty to bargain was divided between two levels of
bargaining with no clear indication when it should be taking place at each level. Without
a firm plan for how or when to impose a duty to bargain a dual system began to emerge

14
Mothepa Ndumo The Duty to Bargain and Collective Bargaining in South Africa, Lesotho and
Canada: Comparative Perspectives (unpublished L.L.M. thesis, University of Cape Town, 2005)
15
Black Labour Relations Regulation Act 48 of 1953
16
Industrial Relations Act of 1956
17
L Petersson Post- Apartheid Southern Africa: Economic Challenges and Policies for the Future
(2013); Mothepa Ndumo The Duty to Bargain and Collective Bargaining in South Africa,
Lesotho and Canada: Comparative Perspectives
18
A.P. Molusi The Constitutional Duty to Engage in Collective Bargaining, (2010) 1 Obiter 31
at 156-166
19
Ibid para 4
20
Ibid para 19
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between these to levels of bargaining. This caused further confusion and resulted in even
more disorder in the Industrial Court.
This paper believes that these problems are not ones which can be quickly
resolved if an imposition on the duty to bargain was reintroduced by the Court. It is
important to examine and understand how and why these issues arose in the former
Industrial Court before proposing that they be reintroduced into South African labour
relations. This paper does not believe it is possible to remedy these issues, such as the
lack of consistency and the danger of dualism between the levels of bargaining easily.
Past experience has demonstrated that these issues have the potential to undermine the
duty to bargain objectives and can create discrepancies in rulings. The drafters of the
current Act recognized these issues and made the conscious choice to gravitate towards a
voluntary approach to collective bargaining to avoid these problems in the new
Constitution and LRA. This choice should be upheld and respected by refraining from
imposing a duty to bargain in the Courts.
There are many opinions regarding the decision to impose a judicially enforceable
duty to bargain. This paper has critically analyzed three key reasons for and against the
decision to impose this duty within collective bargaining. This analysis of imposing a
duty to bargain has allowed the author of this paper to explore the various arguments on
both sides of the debate. Ultimately the author feels that the arguments explored in this
paper have created stronger case against imposing a duty to bargain in South Africa.
While the other sides arguments did contain judicial merit and strength they fell short in
their argument of how imposing a duty to bargain could be accomplished.
The author believes that the mistakes of the past implementation of a duty to
bargain are likely to occur again. There are measures that can be taken to improve the
current state of collective bargaining within the country, such as improving upon the role
and duties of the statutory councils in arbitration disputes. The author believes that these
measures can be taken without imposing a duty to bargain though. The confusion,
potential inconsistency in ordering a duty to bargain, and the actual benefits that would
come from imposing this duty are not strong enough to justify pursuing this issue farther.

















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Bibliography

A.P. Molusi The Constitutional Duty to Engage in Collective Bargaining,
(2010) 1 Obiter 31 at 156-166

Black Labour Relations Regulation Act 48 of 1953

Constitution of the Republic of South Africa, 1996, section 23(5)

Constitution of the Republic of South Africa, 1996, section 233

D. Belman & M Belzer The Regulation of Labor Markets: Balancing the
Benefits and Cost of Competition in Government Regulation of the Employment
Relationship, University of Wisconsin-Madison Press, 1997

D du Toit, D Bosch, D Woolfrey, S Godfrey, C Cooper, GS Giles, C Bosch, J
Rossouw Labour Relations Law: A Comprehensive Guide 5 ed (2006) LexisNexis
Press, Durban South Africa

Development Policy Research Unit Paper 07/130 The State of Collective
Bargaining in South Africa An Empirical and Conceptual Study of Collective
Bargaining.106-110

D. Moore The Case for Minimal Regulation of the Labour Market, Address to
Stonington University, 2008

Labour Relations Act 66 of 1995

L Petersson Post- Apartheid Southern Africa: Economic Challenges and Policies
for the Future (2013) Routledge Press, New York City, USA

Industrial Relations Act of 1956

Mothepa Ndumo The Duty to Bargain and Collective Bargaining in South Africa,
Lesotho and Canada: Comparative Perspectives (unpublished L.L.M. thesis,
University of Cape Town, 2005)

OECD Employment Outlook Group Employment Protection Regulation and
Labour Market Performance, OECD Press, 2008

SA National Defence Union v Minister of Defence & others 2007 (5) SA 400
(CC); (2007) 28 ILJ 1909 (CC) para 55.
The International Law Organisation Right to Organize and Collective bargaining
Convention (No 98), 1951


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