If you'd opened a newspaper in the early-1990s, there would have been a good chance of reading reports of large-scale strikes and rolling mass action. Today, though there is talk of strikes around the time of annual wage negotiations, strikes are few and far between. Is this because our labour laws are working better?
Deneys Reitz director St Elmo Wilken says the Labour Relations Act (LRA) of 1995 did help to set up a judicial structure to deal specifically with labour cases. This has helped create a legislative environment that is focused on co-operation and flexibility. The new framework replaced the adversarial model that developed during apartheid and was characterised by high levels of conflict, union repression, discrimination and authoritarian managerial styles.
Business and labour are now talking more, though naturally there are still disputes. But the establishment of joint councils such as the National Economic & Development Labour Council (Nedlac) and the Millennium Labour Council have bought labour and business together in bilateral forums.
"Both sides have had to compromise," says Congress of SA Trade Unions (Cosatu) communications manager Moloto Mopthapo.
Trade unions have also adopted a far more sophisticated approach to dealing with disputes, says Werksmans director Anastasia Vatalidis.
She says unions now have research departments that can conduct in-depth economic research such as feasibility studies of different companies.
"But companies need to be more open too and give unions access to the financial information they need," says Mopthapo.
He says the LRA has been a victory for SA workers - both at a bargaining-council level and for individual workers, who had little recourse to dispute employer's decisions.
The law made provision for the Commission for Conciliation, Mediation & Arbitration (CCMA) to conciliate workplace disputes and arbitrate disputes that remain unresolved after the conciliation process. It also set up a specialised labour court and the labour appeal court to review CCMA decisions.
Mallinicks director Deon Visagie says the LRA helped change the labour law landscape by giving unions basic rights and helped to define the parameters in which they could work.
"The result has been that disputes are often settled before industrial action is taken," he says.
But the powers of exclusive jurisdiction that the act gave the labour courts have been slowly eroded.
A number of labour cases have been taken to the high court, the constitutional court and the supreme court of appeal directly from the labour court. Recent cases have shown that the LRA has not affected the high court's jurisdiction to hear a review of the decision of a disciplinary inquiry.
An employee from African Bank, after being dismissed as a result of disciplinary inquiry, brought a review application in the high court, not the labour court, to set aside the decision taken by the presiding officer of the disciplinary hearing and allow him to be reinstated. The judge ruled in his favour.
"Decisions such as these show the law is in a state of flux at the moment," says Wilken.
Though the labour courts tend to approach cases from the point of view of fair labour practices, the high court would look at cases from a contractual, or common law perspective. Also, the complainant has to bring a case to the labour court within three months of the conciliation whereas they can bring a court case to the high court up to three years after the dispute.
Attorneys say the uncertainty has led to "forum shopping", where both employers and employees take the case to the court they feel is more likely to rule in their favour. Government is working on drafting the Integration Bill, which will make the labour court a division of the high court.
Viljoen says the high court's procedures and back office systems are well established, so this may ensure more efficient processing of labour cases.
Vatalidis says some labour cases are unique to certain industries and the judges hearing them need to have a thorough understanding of the market dynamics in particular sectors. The integration bill may also lead to labour court judges being appointed on the same basis as high court judges, who are appointed for life. At the moment labour judges are appointed on a temporary basis.
