Organisational and collective bargaining rights through the lens of Marikana
Authors Jan Theron, Shane Godfrey, Emma Fergus
Affiliations: Practising Attorney; Co-ordinator of the Labour and Enterprise Policy Research Group, Deputy Director of the Institute of Development and Labour Law, University of Cape Town; Senior Lecturer, Commercial Law Department, Institute of Development and Labour Law, University of Cape Town
Source: Industrial Law Journal, Volume 36 Issue 2, 2015, p. 849 – 869
This article is based on research conducted for a submission to the Marikana Commission that focused on the issue of organisational and collective bargaining rights at Lonmin as well as Implats and Amplats. It comprised an examination of the recognition agreements which the three companies had entered into with trade unions, over the decade or so before the massacre. This gave us insight into how management and trade unions were interpreting and elaborating on the organisational rights provided for in the Labour Relations Act (LRA). We were therefore able to reflect critically on those provisions, the different choices made by management and trade unions at the companies, as well as the CCMA’s and Labour Court’s interpretations of relevant legislative provisions during organisational rights disputes. The recognition agreements at Lonmin and Implats reveal an uneasy mix of the ‘old’ recognition system and the new organisational rights dispensation: the bargaining unit remains the reference point for measuring representativeness rather than the ‘workplace’; there is almost no provision for the possibility of union competition; undifferentiated thresholds are set for all the organisational rights; and thresholds are sometimes raised to protect incumbent unions from newcomer unions. The agreement at Amplats, however, is an exception. The article concludes that the limited organisational rights dispensation provided by the LRA has not achieved the right balance between labour relations stability and workplace democracy.