Johannesburg - South African labour law needs to be overhauled to address problems such as those which led to the strike violence at Lonmin's Marikana mine, a senior counsel at the Johannesburg Bar said on Wednesday.
“Securing such innovations will not be easy. Frankly, I hold out little hope for a successful result so long as we have a tripartite alliance in which the government routinely answers to Cosatu,” Martin Brassey SC said in a speech prepared for delivery at the Free Market Foundation in Johannesburg.
He said that while the collective bargaining system might not be adjusted in the short term, there were signs that society would not indefinitely accept the status quo.
Brassey said he subscribed to free market aspirations, not so much because he wanted to make a few capitalists richer, but “because I want the impoverished to be less poor and all of us to be freer”.
The design and application law was the product of historically contingent, value-laden choices.
“Experience worldwide teaches us that strikes have a natural tendency to degenerate into violence, but ours is a country in which this phenomenon is far worse than elsewhere.”
The police and the legal system needed to be fully functional to address this violence.
“Since, by common consent, ours hardly qualifies for this accolade, strategies of incorporation and co-option remain a requisite.”
Structures to prevent strike-related bloodshed were of limited value, and leadership was needed.
“Violent strikers are never disciplined and union leaders simply parrot a non possumus (we cannot) attitude when confronted with the effects of their members' conduct,” Brassey said.
From the liberal perspective, industrial actions were legitimate tests of market-place strength only when they were coercive.
“Picketing, the potential locus of precisely the kind of coercion that is reprehended, is permissible only to inform.”
Mass picketing, from this perspective, was not acceptable because of its intimidatory nature.
“Social democrats also worry about the effect of so-called externalities on innocent third parties and the public at large.”
In municipal strikes, for example, uncollected rubbish in the streets was inconvenient to the public.
“In the course of collective action, the employer will feel the resulting loss of profit and the worker will feel the effect of the 'no work, no pay' rule, but neither directly feels the significant inconvenience and loss that outsiders inevitably experience.”
Organised labour had become complacent as modern labour law reduced its mandates to little more than wage negotiators.
In the 1970s, union representatives worked harder for salaries fixed according to what their members earned.
“Now the emphasis is on central bargaining, union officials and full-time shop stewards are well paid, the union head office makes decisions on behalf of the membership, and there is nothing to fight over but money.
“Eliminate the struggle and the unions become (if you'll forgive the expression) corrupt, lazy and complacent. So it has proved.”
As such, it was unsurprising that the loyalty of workers could become compromised.
“In placing strikes under the spotlight, we will need to consider whether balloting should be made compulsory, whether strikes should, if too damaging, be channelled into compulsory arbitration, and what sanctions can be meted out for the strike violence,” Brassey said. - Sapa