SA's 'trade union corset': A response to William Saunderson-Meyer

By Darcy du Toit

I read William Saunderson-Meyer’s blog “Time to ease the trade union corset that confines SA” with a jaundiced eye.

I am quoted as “warning”, at the International Society for Labour and Social Security Law congress in Cape Town last week, “that while the basic principles of labour law remain unaltered, the traditional mechanisms for their application have become “increasingly redundant” and “the urgency for developing new ones significantly vital”.

To begin with it is a misquote. My welcoming message in the congress programme contains the observation that the “traditional mechanisms” have become “increasingly inadequate” (emphasis added) in meeting the historical challenge of labour law: protecting workers against the vastly superior bargaining power of powerful corporate employers by enabling them to bargain collectively rather than individually.

This is so partly because these “mechanisms” — including industry-based trade unions and sectoral collective bargaining — were not designed to cope with decentralised chains of production and non-standard forms of (typically non-unionised) labour that have proliferated in the era of globalisation. This is why, in my view, new and more effective mechanisms are needed alongside the existing ones for protecting vulnerable workers and regulating working conditions that currently fall beyond the reach of collective bargaining.

Saunderson-Meyer’s substitution of “redundant” for “inadequate” seems to be based on an inaccurate paraphrase (which did not purport to be a direct quote) on a legal website — not very good journalism. Unfortunately it gets worse: he then links my supposed opinion to his own thesis that trade union freedom is a problem and an obstacle to economic growth, which needs to be curbed.

It should be clear to anyone who has glanced even briefly at my views — as outlined above — that I disagree with this argument. Creating the impression that I support it is seriously misleading and bad journalism.

To begin with, blaming trade unions for the fraught state of labour relations in South Africa is one-sided — employers’ conduct also has something to do with it, as the Farlam Commission’s report on Marikana has shown.

In reality, trade union rights in South Africa are in line with the norms of the International Labour Organisation, as in other democratic countries. Institutions such as the World Bank and the International Monetary Fund have endorsed these rights. Alliances between trade union federations and political parties are also fairly commonplace.

The fact that South Africa experiences periodic turmoil in certain sectors, whereas many other countries do not, thus tells us less about the shared framework of labour law than about the state of South Africa itself. Targeting the trade union movement, I would suggest, amounts to shooting the messenger, or trying to, while ignoring the message.

The message is that the huge gulf of income inequality in South Africa 21 years into democracy (according to the World Bank, more than double that of most other African countries, let alone countries like Germany, France or Poland) is causing intolerable social strains. This is so especially in the labour field where inequality is revealed in its starkest form: the egregious chasm between “ordinary” workers and top management.

Nor can this growing inequality be blamed on a new black elite. Top management remains overwhelmingly white and male, creating visible continuity with the apartheid past. Collective bargaining, as an obvious means of addressing these disparities, thus takes place in a charged climate that is not of the unions’ making.

Add to this the rising tide of job losses in an economy already afflicted by mass unemployment, and it is easy to understand why there should not only be mistrust of affluent employers holding out against wage demands but also a sense of desperation among workers who are often the breadwinners for large numbers of unemployed family members.

These are the pressures that unions respond to, and hold the line against. Seeking to clamp down on them would, arguably, be the most provocative act imaginable in the circumstances and one which the government in the recent round of amendments to the Labour Relations Act ultimately baulked at.

Trade unions, like every other institution at the coal-face of social interaction, need creative support as part of a broader response rather than blame for ills they did not cause. Many areas of friction in the labour field are beyond their control or that of existing legal institutions.

That, too, is what I meant by the need for developing new mechanisms in the labour field as in others — a task that will hopefully enjoy the concerted attention of policy-makers across the political spectrum in the months and years ahead.

Darcy du Toit is an emeritus professor of law at the University of the Western Cape.