LEBOGANG MULAISI: Rethinking labour market institutions to achieve the ideals of labour law

SA’s labour legislation is considered by many to be the best in the world. Post the constitutional democratic dispensation and the adoption of the Bill of Rights, the intention was to address inequality in the workplace through key provisions of the Labour Relations Act (LRA). Chief among these are freedom of association and the right to collective bargaining.

The constitution recognises freedom of association, the right to join and form a trade union, and the right to participate in union activities. Freedom of association also protects against interference from the side of the employer. In SA, collective bargaining agreements are normally legally enforceable as between employers and trade unions.

However, good labour laws mean nothing without enabling labour market institutions. Key to this is the functioning of the Council for Conciliation, Mediation & Arbitration (CCMA) and the labour court. The easy accessibility of the CCMA is at the heart of the ambition of its creators.

The institution is set up primarily to ensure cheap, accessible, quick and non-technical dispute resolution. Attorney Paul Benjamin, in his analysis of the CCMA’s achievements and challenges, highlights turnaround time challenges and resistance to the enforcement of arbitration awards.

Justice denied

For workers who are dismissed, the truth is that arbitration awards do not necessarily translate into reinstatement, nor to them necessarily receiving just compensation. After an arbitration award has been obtained, many employers simply seek a review in the labour court, or seek to have the award rescinded by the CCMA.

Even if employers do not go to these lengths, they can simply outwait employees and test their patience and resources as they battle to get an arbitration award processed through the three institutions that need to process it.

About one in 10 arbitration awards by the CCMA is taken up for review in the labour court. At first glance, one would assume this is because of poor decision-making on the part of CCMA commissioners. However, mediator Tokiso Dispute Settlement has reviewed arbitration awards to provide deeper analysis of the phenomenon, and found that for reviews taken to the labour court, two out of three are overturned.

While it goes without saying that inconsistent decisions at the level of the CCMA commissioners are a concern, reviews are largely attributable to employers’ delaying tactics in the enforcement of arbitration awards.

The initial requirement in the labour court was that arbitration award reviews be instituted within six weeks of an award, but there is no requirement for the court to expedite review applications to avoid delays. On average, it takes 23 months for a review application to be heard in the labour court, and an additional three months for a judgment to be handed down.

For the employee, this is simply a case of justice delayed is justice denied. In most cases, employees have lost their income, and given SA’s structural unemployment, the employee suffers in poverty while the process unfolds in court.

Even though it is tempting to want to tamper with the functioning of the CCMA and the labour court to address these challenges, that is simply not the solution. The solution requires a holistic view of labour market institutions and improving the efficiencies between the CCMA and the labour court.

Too much time is wasted because of duplication of processes between these two institutions. The best way to assist the functionality and efficiency of the CCMA is through better resourcing given its huge dispute resolution mandate.

In his dispute resolution paper, labour court judge Andre van Niekerk laments the fact that the current inefficient system simply does not have a disincentive. Even cases with minimal prospects of success can proceed from the workplace to the Constitutional Court. Van Niekerk proposes measures to discourage such behaviour and warns that should nothing be done to ease the pressure on the system, it will eventually collapse.   

My more optimistic opinion is that all disputes originate in the workplace and must ideally be addressed where they originate. Dispute resolution at the workplace is poor in SA, and this creates a ripple effect from the workplace moving through to other labour market institutions.

The source of many disputes is the adversarial nature of relations between workers and their employers in SA. We need to find ways to ensure better workplace harmony.

• Mulaisi is head of policy at union federation Cosatu.