Posted by A. Soobedaar

South Africa has one of the most progressive labour relations frameworks in the world that provides for structured and orderly collective bargaining. That being said, however, the actual practice of collective bargaining exhibits symptoms of dysfunctionality. Collective bargaining today is, more often than not, characterised by prolonged wage negotiation processes, protracted industrial action marred by intimidation and violence, challenges to negotiated outcomes, escalating adversarialism and conflict in the labour market and extreme situations such as the tragedy that was Marikana. Responsibility for this may be apportioned in varying degrees to; the parties engaged in collective bargaining, the manner in which they interact with each other at the process level and the political, social and economic environment in which collective bargaining plays out. We have observed the following five challenges facing collective bargaining in South Africa:

Coalescence of workplace and societal issues

While the purpose of collective bargaining is to negotiate wages and terms and conditions of employment; the slow pace of delivering a social wage has resulted in employers being increasingly faced with demands relating to issues that should rightfully be the responsibility of Government to provide. Such issues include housing, healthcare, transport and education amongst others. What falls through the cracks of the ballot box, is falling squarely on the collective bargaining table. The situation that culminated in the tragedy of Marikana was not a labour dispute per se, but the pressure of years of socio-economic frustration that found a fault line in a fragile employment relationship and burst forth in the extreme and unprecedented conflict that was witnessed.

Absence of a standard to inform wage demands and offers

It is accepted that the needs of employers and workers will always be diametrically opposed, however, the absence of a standard to inform wage demands and offers is a huge challenge in that it leaves negotiating parties at liberty to base their demands and offers on standards of their choice. If these standards are not comparable, it results in parties seeking to achieve collective bargaining outcomes (in respect of wages) that are conceptually different and artificially wide apart. If a common standard is agreed upon prior to commencing negotiations (whether this is the CPI, food inflation or any other agreed upon measure), it enables parties to negotiate on the same plane albeit that they may well have different expectations in terms of outcomes.

Challenges to negotiated outcomes

While the legislative framework has survived the challenge to the power of the Minister of Labour to extend agreements concluded by parties to a bargaining council to non-parties, a structural element of the labour market is an ever present risk for less formal challenges to negotiated outcomes. Given that trade union density in the private sector hovers below the 30% mark, it follows that the vast majority of workers do not belong to a trade union. Consequently, these workers do not see themselves being bound by agreements reached by trade unions on behalf of their fellow workers. Increasingly, this cohort of workers is making its dissenting collective voice heard as evidenced by the incidence of unprotected industrial action.

Inefficient negotiation processes

Despite the advent of democracy and the positive legislative changes that it brought to this country insofar as collective bargaining is concerned, it’s been business as usual on the collective bargaining front. Parties have continued to negotiate as they had always done - wielding power and holding position - playing out a Sisyphus-like ritual each time they negotiate with no (or very little) motivation to reflect and learn from past experience. This has resulted in inefficient negotiation processes that require intense effort and resources, akin to pushing a square wheel. The problem with pushing a square wheel is that one eventually develops the capabilities to get it rolling and then sees no reason to change or improve. Some enlightened parties have, however, adopted more contemporary and progressive negotiation practices; and have predictably reaped the rewards of that effort.

Over-reliance on statutory dispute resolution

The challenge of ineffective negotiation processes has led to an over-reliance by parties on statutory dispute resolution. Collective bargaining processes, more often than not, are a race to a dispute being declared and then passing the responsibility of achieving an agreement to the statutory dispute resolution body.  And, on those rare occasions when the dispute resolution body fails to broker an agreement between the parties, it is the dispute resolution body that unfairly becomes the target of criticism as opposed to the parties that actually own the outcome of their interaction. Statutory dispute resolution has produced sterling results but with an unintended consequence of contributing to a diminished capacity by parties to actually negotiate.

It is in the interest of parties engaging in collective bargaining to take cognizance of these matters (at least those that are within their control) and to make the necessary changes for a better bargaining experience.


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