"Section 126B (1) A member of the Permanent Force shall not be or become a member of any trade union as defined in section 1 of the Labour Relations Act, 1956: Provided that this provision shall not preclude any member of such a Force from being or becoming a member of any professional or vocational institute, society, association or like body approved by the Minister."



Section 126B(2) furthermore states that "a member of the SADF who is subject to the said Military Discipline code, shall not strike or perform any act of public protest or participate in any strike or act of public protest or conspire with or incite or encourage, instigate or command any other person (whether or not such person is a member of the SADF or an officer or employee referred to in section 83A(2) serving in the SADF or a member of any auxiliary or nursing service established under this Act) to strike or to perform such an act or to participate in a strike or such an act."



Section 126C specifies that "any member of the permanent force shall exercise his rights with respect to labour matters in terms of the regulations, and that the State as his employer shall handle and administer all such matters, including the resolution of disputes in accordance with the regulations."

The effect of the above provisions are clear. Membership of a trade union is prohibited by the Act and only membership of a body approved on ministerial level is permitted. Strike action is prohibited, and labour relations in the defence force shall be regulated according to internal defence regulations.

On the other hand, Section 17 of the Interim Constitution specifically provides that "every person shall have the freedom of association" thereby implying that membership of any union is a constitutionally protected right. Section 27 of the Interim Constitution, furthermore guarantees that "every person shall have the right to fair labour practices, workers shall have the right to join trade unions and to organise and bargain collectively."3

As the Constitution is the supreme law of the country, all laws must be interpreted in the light of constitutional provisions, implying that the above clauses in the Defence Act may be declared unconstitutional by the Constitutional Court or the Supreme Court, should they be challenged.

However, provision is made in Section 33 of the Interim Constitution to limit the fundamental rights entrenched in chapter three by a law of general application, such as the Defence Act, providing that such limitation is considered "reasonable and justifiable in an open and democratic society based on freedom and equality."4 The onus will thus be on the military to justify such a restriction.

OPTIONS IN THE CONSTITUTIONAL DEBATE

Theoretically, according to Phillips and Crosby5, there appears to be four options should the case be referred to the Supreme or Constitutional Court. It must be born in mind that ultimately only the Constitutional Court may declare an act of Parliament, such as the Defence Act, to be unconstitutional.

The first option is to maintain the present status quo, by retaining the prohibition on trade union membership, collective bargaining and the right to strike. Should this be upheld, there is every indication from the side of the South African National Defence Union (SANDU) that they would challenge the current provisions in the Defence Act on the basis that it is an infringement of the basic principle of freedom of association, which furthermore denies the individual the right to fair employment practices.6

In such an event, the Defence Force will have to justify that it is reasonable and essential to withhold the freedom of association and labour relations rights, such as the right to form and join trade unions for the purpose of collective bargaining and the right to strike, as these rights could endanger the maintenance of state security and public order. As the defence force renders an essential service to society, it could argue that a military union will break down loyalty, discipline and morale, thereby affecting the ability of the defence force to carry out its mission successfully. The fundamental requirement for obedience, and the consequent necessity to impose discipline, may be permissible in the military, while being constitutionally prohibited outside. According to Delholm and Humes7 it is this overriding demand for obedience and discipline that forms the basis for prohibiting military unionism.

Clearly, the most critical issue is whether or not union membership would erode military discipline.8 The general opinion prevails that the constitutional rights of members of the armed forces might well be restrained, if a deterioration in discipline leading to the compromise of a higher public interest could be demonstrated. Whether it could be shown that ‘mere’ membership of a military union would cause such a deterioration in discipline, is of course, an entirely separate issue.9

Concerning the right to freedom of association, limitations must be reasonable and where it is restricted, alternative provisions need to be put in place. In other words, the essential content of the right in question must not be negated by the limitation. In this regard, the provision in Section 126B of the Defence Act that limits the right to belong to a trade union, but allows a member of the permanent force to be or become a member of any professional or vocational institute, society, association or like body approved by the Minister, could suffice, but would need to be specified. The largest military association in the world, the Deutsches Bundeswehr Verband (Federal Armed Forces Association) of Germany, for example, is considered a professional association for soldiers. The Verband is not an authentic union, but a ‘company union’, with close and cordial relations with the Ministry of Defence. It only has limited consultative rights, no collective bargaining rights, and has no organisational ties with the broader labour movement.10

The second option is to prohibit collective bargaining and strikes in the military, but authorise membership of a union under certain conditions. This would allow freedom of association, the fundamental right to be challenged in the constitutional court, while curtailing the right to collective bargaining and strike action on the premise that it is reasonable and justifiable in the light of the unique role the military is expected to fulfil in society. The military could argue that in the interest of national security it is necessary to restrict these rights. As the armed forces depend on absolute discipline and obedience to an established chain of command for effectiveness, it is believed that bargaining or even the formation of bargaining units within the armed forces could seriously inhibit, if not destroy, its combat readiness.11

Countries such as the Netherlands and Germany which have allowed the formation of military unions have restricted their activities. Military unions and associations in these countries have no collective bargaining rights, but have legislated ‘consultative rights’ on matters concerning service conditions. They are not permitted to interfere in any other military related affairs and do not have the right to strike.12

The third option is to prohibit striking, while authorising collective bargaining. This would allow the freedom to belong to a union, with the purpose to bargain with the military command structure over terms and conditions of service. Such a ruling would give the military the same rights as the rest of the public service, that is also prohibited from striking. This option has been followed by the Danish armed forces, and is based on the premise that there is no fundamental difference between the armed forces and the rest of the public service.13

The fourth, most liberal option is to place no restrictions on the rights of military personnel to unionise, to partake in collective bargaining, or to strike. This would extend all constitutional and statutory labour rights to soldiers. The only country that has extended these rights to soldiers is Sweden.14

DRIVING FORCES OF MILITARY UNIONISM

Although the constitutionality of military unions is perhaps the central issue in this debate, the possible development or emergence of unions in the military must not be viewed in isolation. Cognisance must be taken of those factors that have influenced the emergence and development of military unions in other armed forces.

An attempt will thus be made to analyse factors that have facilitated or retarded the development of military unions in other armed forces, and to assess whether these trends are apparent in South Africa. At the same time, it will be determined whether it would be possible to prevent or restrain the development of military unions.

Public Sector Advocacy

The impetus towards military unions in European nations can be traced back to developments in the trade union movement, particularly among public service unions.15 The extension of labour rights to the military only occurred after these rights were granted to other state employees. From the broader public sector these rights were transferred to the public service, the police and lastly to the military, the argument being that "what applies to other civil servants, postal, health, railway, emergency services and the police, cannot be withheld from the armed forces under peaceful conditions, since they are all important elements of the welfare state."16 The limitation on the rights of soldiers is justified only where it relates to operational matters. It is therefore not uncommon among European democracies for members of the military to be organised into unions or professional military associations, in much the same manner as the rest of the public service, albeit with certain restrictions.17

In South Africa, public servants were granted basic employee rights, comparable to the private sector on 2 August 1993, with the promulgation of the Public Service Labour Relations Act No. 102 of 1993 (PSLRA). Not long after this, the Department of Correctional Services, considered to be part of the security forces and excluded from the provisions of the PSLRA, asked to be included under the Act.18 Subsequently, the South African Police (now South African Police Service), have been subject to increasing incidences of labour unrest, amended the Police Act No. 7 of 1958 to include a section on South African Police Labour Regulations, 1993, that permitted policemen to join trade unions for the purpose of collective bargaining, but prohibited strike action.19

New labour legislation under current review, also excludes the police and military from its scope. This exclusion and the consequent restriction of rights, flows from the unique functions performed by members of these services. These restraints are in line with International Labour Organisation criteria, Convention No. 87 of 1948 (freedom of association and protection of the right to organise, article 9[1]) that stipulates that "the extent to which this right can be extended to the security forces and police be subject to national legislation and regulations."20 The respective departments will be responsible for the creation of their own labour relations regulations, but will still have to be in accord with constitutional provisions on labour relations.

The first and most basic lesson for the SANDF, derived from the sequence of events in the public service and other security services, is that the potential for collective action among groups of employees should not be disregarded. This is especially true in a society that has given de facto and de jure recognition to such action, rendering it legitimate in the search for job security, improved working conditions and redress of grievances.21 Despite the restrictions placed on trade union activity by the Correctional Services Act No. 8 of 1959 and the Police Act No. 7 of 1958, these services were nevertheless subject to incidences of labour unrest and trade union activities, eventually culminating in the acceptance of trade union rights.

Another important consideration is that collective bargaining emerged in the public service and the other security services despite the existence of numerous avenues of appeal, such as grievance procedures and various other forums to address employees’ interests. The existing avenues of appeal clearly did not obviate the perceived need for collective bargaining.22 This implies that one cannot accept that the present channels available to military personnel, such as the Redress of Wrongs procedure or newly established forums, will automatically preclude the need for an alternative structure.

Influence of Constitutional Rights

Although the influence of constitutional rights has already been addressed in some detail, it is interesting to note that where labour rights have been extended to soldiers, such rights have not been secured by military unions through collective bargaining, but by social legislation under social democratic governments, in countries with strong labour movements.23

The recognition that soldiers are also citizens and should be granted the same basic rights and responsibilities as any other citizen, has eventually culminated in the extension of civil rights to military personnel. This does not imply that pressure has not been exerted by military personnel to have labour organisations, but that the decision to allow such rights has been based on the recognition that military personnel also have civil rights. These rights were extended to military personnel by government initiated legislation that guaranteed certain inalienable rights to individuals irrespective of employment, and not by the military command structure.

A correlation can be drawn with the current situation in South Africa, where the freedom of association and labour rights are enshrined in the Interim Constitution, and where the military is being pressured to bring its labour relations practices in line with the constitutional provisions.

Pressure of dominant trade union culture

The development and character of European military unions can be better understood after considering the historical and traditional relations between labour movements and their respective governments. Most of the European countries with military unions, emerged from societies that inhibited social mobility and protected class distinctions. These circumstances politicised the labour movement that had to fight to obtain universal male suffrage and certain legal labour rights.24 A crucial comparison with the present situation in South Africa, where the trade union movement has been the backbone of the liberation struggle to obtain political rights for the broader populace.25

In European countries with military unions, governments were able to assume power largely on the strength marshalled by the civilian trade union movements. Military representation developed as part of the social norm of active support and promotion of government, and can thus be considered reflective of the social trends within those countries.26

An entirely different situation developed in the United States. Although there was much debate surrounding the possibility of military unionism in the 1970s when the American Federation of Government Employees wanted to recruit military personnel, military unions never got off the ground. Despite the fact that the public service and police in the United States are unionised and the rights of soldiers have not been constitutionally curtailed, the trade union culture in America has not been conducive to unionisation as a means to fight for the rights of military personnel.

There is no labour movement in the European sense in the United States. The fluidity of their developing society and the abundance of political rights have resulted in labour unions that have maintained pragmatic goals and attitudes. Unions have focused on bread-and-butter issues, rather than on ideological concerns during their formative years. Moreover, unions in the United States, unlike most of their European counterparts, are seldom constituent parts of government or political parties. They operate rather as pressure groups in pursuit of their own pragmatic goals, shifting allegiance to the political party that assists them towards the attainment of these goals.27

With the greater degree of acceptance of unions in South Africa, and in the light of the history of the labour movement and the close alliance of labour with government, it may be assumed that the probability that military unions may develop in this country is higher. However, according to Ballantyne28, this will only be the case "if the social environment indicates acceptance of this departure from the traditional subservience of the armed forces. Community acceptance is unlikely while unionism is associated with political and industrial activism."

Of importance for the SANDF, is that if the broader population from which military personnel are recruited are more receptive to unionism as a means to pursue their rights, the desire to form unions will be enhanced.

Decline in status of the military

Another important variable influencing the receptiveness towards unionisation, is the status of the military in society. Britain, with its highly unionised public service, a human rights tradition and a strong trade union culture, factors listed as preconditions for military unionism, does not have military unions. Reasons for this are found in the status of the British armed forces in society. Throughout their history, the armed forces, and particularly the officer corps, have been regarded as an inherent and essential part of the ruling establishment. The contemporary military profession and its relationship with society reflect a centuries-old alliance with the institutions of monarchy, Parliament, the Church, and other lesser ruling institutions and therefore enjoys a high status within society. The fact that the salary scales for military personnel in Britain respond to adjustments in the civilian marketplace, coupled to the recognition that servicemen make certain sacrifices inherent in the nature of their job and that their interests should therefore be looked after, has lessened the need for unions.29

Weibull30 suggests that where interest in the military in society declines, this has major implications for those already employed in the armed forces. "The external world’s view of the officer’s job, here defined as the sum effect of how politicians value military expertise in relation between missions and means and the image of the officer’s profession in the public eye, is judged as the most dissatisfying factor ... and where one’s contribution is supposed to add much to the common good, the strong dissatisfaction with feedback from society must be looked upon as a warning concerning officers’ future commitment to their work." Commitment to altruistic values depends upon reinforcement from society. Where this is not forthcoming, soldiers are more likely to view their service in the military as a job, rather than as a calling.

Harries-Jenkins31 supports this view, claiming that one of the most important factors motivating the military to unionise is the feeling that the armed forces, compared to other institutions in society, have lost their previously held status and have suffered an undue amount of deprivation. "When there is a significant loss of privilege and status of the military in society, trade unions are then formed as a pressure group to re-establish the privileges formerly held by the armed forces." Such a development may pose a serious threat to civil-military relations, especially where the interests of the military trade union runs counter to public interest.

With the focus on social development and upliftment in South Africa, the SANDF no longer holds the same status in society as it has in previous years. The military no longer occupies a privileged position in society, with the backing of government to protect its status. In this regard, the government must bear in mind that military members have traditionally looked to it to serve as their advocate, and have not felt the need to organise in order to have their interests protected. Should government divest itself from its paternal obligation to the military, it may well see soldiers organising into self-interest groups.

Organisational change within the military

According to Charles Moskos32, there are certain universal trends that facilitate receptiveness towards unionism in the armed forces. These trends are associated with the changing nature of military service, as well as changes in the structure and operation of the military organisation itself. Moskos is of the opinion that the military is increasingly identified as an occupation, rather than as a calling and consequently service members are becoming more pragmatic about basic conditions of employment. He identified certain factors that have been associated with this institutional/occupational drift, which are in part responsible for the trend towards unionisation. These include, amongst others, the shift to a volunteer force where marketplace forces are used as incentives for recruitment. It is believed that many who join under the voluntary service system, as is at present the case in South Africa, join not because they consider it a calling, but because it provides financial, educational and promotional prospects necessary for the attainment of material success.33 Under such circumstances, soldiers increasingly view themselves as workers or employees.

Another factor is a shift in recruitment from the elite to those representative of the broader population, bringing with them a different set of beliefs and traditions. In an extensive study by Caforio and Nuciari34 among European nations, it was found that pro-union attitudes are strongly linked to social origin. Officers from underprivileged backgrounds were more supportive of joining unions. With the termination of ‘whites only’ conscription, the majority of recruits now entering the SANDF come from disadvantaged backgrounds, many of whom have experienced the benefits of trade unionism.

A major driving force behind the formation of military unions has been a decline in working and living conditions of service members. In the Australian Defence Force, it was the inability of the system to protect the interests of service members that led to the formation of the Armed Forces Federation of Australia.35 Similarly, the perceived decline in permanence of tenure in the SANDF and the progressive erosion of service benefits have in many instances increased the desire among military personnel to join a union.

Another important driving force is the narrowing skill differential between military and civilian occupations that has resulted in the military profession losing some of its uniqueness. Segal36 states that "[t]he extent that military personnel see themselves as federal employees who wear uniforms, rather than as a unique occupational community, to the extent that they see themselves confronted by grievances that unionization might help to correct, and to the extent that they feel that such manifestations of industrial citizenship are appropriate in the armed forces, the possibility of pressures for military unionization, or some alternative paraunion structure, cannot be ruled out." This trend towards civilianisation is facilitated by the employment of large numbers of civilians in the military who perform vital logistic and other support functions alongside uniformed military personnel. Contrary to their military counterparts, civilians have the right to join unions for the purpose of collective bargaining. Approximately 23 000 members of the permanent force of the total SANDF are civilians. In the SA Navy, more than fifty per cent of employees and almost the entire dockyard staff responsible for the maintenance of ships, are civilians.

It is widely believed that a strong potential for military unionisation exists in a country where the above trends can be perceived. Presently, all the above factors are evident in the SANDF, and are discussed at length in a previous article, (Heinecken, 1994).

Perceived need for military unionism

According to Harries-Jenkins37 there are a number of prerequisites that should exist in the military environment before unionisation becomes feasible. There must be a motive to unionise, a mood to unionise and the opportunity to unionise.

An important motive for unionisation is where the existing system, both government and the military command structure, is perceived to be unable to protect and promote the interests of military personnel. This often occurs where there has been an erosion of service benefits or a feeling of insecurity, and a union is seen as a means to address the needs of soldiers. With reference to the South African situation, there is no doubt that the pending rationalisation of some 30 000 military personnel and the progressive erosion of service benefits can be seen as the motive of many who may opt to join a union.

While there may be sound reason to unionise, there should also be a desire or willingness to join a union. This mood to unionise in the armed forces, as well as in other organisations, arises when the general feeling of "individual deprivation is converted into the rarer sense of collective deprivation."38 Without a definite need and an accompanying belief that there are tangible benefits to be derived from membership of a union, military personnel are unlikely to join and undertake the financial obligation to pay monthly dues.39

Although there may be a motive or mood to organise, it is only when the opportunity presents itself that this mood can be translated into into action. Opportunity does not only relate to the legality of such a step, but also to the likelihood that it will be accepted within the political and social environment.40 Present restrictions in the Defence Act and negative media publicity of SANDU, are perhaps the greatest restraining forces in the development of unions within the SANDF.

RESTRAINING FORCES OF MILITARY UNIONISM

While the driving forces of military unionism have been emphasised, it should be pointed out that there are also forces in the South African context that could retard the development of military unions.

Legislative restrictions

The present restrictions in the Defence Act that curtail trade union membership are perhaps the most important restraints in the development of military unions. The fact that any uniformed member contravening the provisions in section 126B of the Defence Act of 1957 commits a criminal offence and could be charged with mutiny, is a serious deterrent to union membership. Without a protective legislative mantle, the potential for military unionism is limited.

However, such restrictions could run into constitutional difficulties, specifically with regard to the freedom of association clause in the Interim Constitution. Should the court rule in favour of those who challenge the restrictions, the most effective impediment to the development of unions will be removed. Many have argued that it would be wise for the defence force to amend present legislation in time to prevent a constitutional battle.

Resistance by THE Department of Defence

Although senior military personnel have generally maintained a low profile on the issue of military unions, there is clear opposition to such a development. This is reflected in statements such as those by Lt. Gen. Reg Otto: "The SANDF and, by implication the SA Army, does not recognise any trade union or person claiming to represent leaders of any trade union. We will further not be dictated to by any labour union or any of its officials. Peace and stability are our concern and it cannot be achieved with bad discipline or the interference of outside institutions."41 Similar sentiments were reiterated by Lt. Gen. Johan Pretorius, former Chief of the SA Army: "Because of the nature of the trust put in members of the armed forces, it is proper for them to subjugate their personal interests to the greater task of protecting the sovereignty of the RSA. If they fail to do so, they cannot claim to be military professionals."42

The main fear is that such a union will provide a second formal organisational parallel with the ‘parent union’, the military command structure. The military fears that such duality will drive a wedge in the chain of command, creating an ‘us-them’ relationship. This is of specific concern to the SANDF, where the officer corps is still predominantly white and the non-commissioned officers, overwhelmingly black.

The real fear exists that a union could politicise the defence force, especially if there is more than one union representing different personnel segments. This could lead to a disintegration of unit cohesion, in terms of the interests of those personnel that are represented, causing a division between the leadership and members at unit level. The activities of the Police Prisons and Civil Rights Union (POPCRU) in the South African Police Service and the incidences of unrest at Wallmannsthal, serve as disturbing examples of these effects.43 However, it must be born in mind that the unrest at the Wallmannsthal assembly area prior to integration, was not connected to union involvement, but centred around unresolved grievances.

Resistance by society

Another serious deterrent to union membership is the resistance by society. As was previously stated, society will reject military unionism as long as it is associated with political and industrial activism.

Although there has been no official survey of public attitudes to military unions in South Africa at the time of writing, the number of negative press reports and cartoon strips that appeared after the launch of SANDU, despite the fact that the union denounced the right to strike, is an indication that the public is seriously concerned about the consequences of such a development.44 Any court decision on the issue will undoubtedly be influenced by public sentiment, especially if one considers that society has entrusted the armed forces with the task of protecting them.

Perception of external threat

According to Manley, McNichols and Young45, an important restraining force associated with the development of military unions, is the perceived threat from potential enemies. The phenomenon of military unions appears to be associated with peacetime forces, and is not likely to be prominent in a wartime situation. This can readily be explained by the enhanced status of the armed forces during such periods, where much of government resources are channelled in the direction of the military.

In the absence of a clear external threat, this restraint obviously does not exist in South Africa. However, the more prominent internal role of the SANDF, and the dependence of the Government of National Unity on the defence force to maintain internal security and bring down the level of crime, may affect the present status of the military within society. 

Internal sensitivity to labour relations

The military maintains that if the chain of command functions effectively and efficiently, grievances of military personnel will be channelled through it. Cocklin states that "a commander who successfully instills unit pride and a sense of mission accomplishment, who makes sure his troops know he is concerned about their welfare, who eliminates petty harassment and senseless details will have no prospects for union membership in his command."46 Military leadership must provide what the unions cannot. This means genuine interest in and compassion for subordinates. Should internal structures provide adequate protection for individuals with grievances, and the chain of command can deliver the required results, the inclination to join a union will be substantially reduced.

However, if the personnel structures are ineffective or unable to address the needs of soldiers on the ground, the pressure towards unionisation will increase. The need for unions results from situations where management or the ‘military leadership’ in the case of the armed forces, has not adequately addressed issues of concern. The choice becomes clear: "either the military and the unit looks after the interests of the soldiers, or the union will do it for them."47

In this regard, the newly established forums that aim at the establishment of structures to accommodate collective grievances of members in uniform within the chain of command, might parry the union challenge. There is concern that although these structures may address many of the immediate grievances of soldiers, they will not be able to address the more serious issue of job security for those serving in the SANDF, in the light of the politically sensitive issue of impending rationalisation.

CONCLUDING REMARKS

Military unionisation should not be taken lightly. There is real concern that if military personnel are granted labour rights similar to those of civilians and the rest of the public service, it would "result in a defense establishment that could not protect, and might even threaten the society it is supposed to guard."48 Even so, there is every indication that the SANDF faces the possibility that labour unions will be formed within its ranks, despite overwhelming opposition from the public and the military command structure.

In fact, such a union has already been formed and appears to have some latent support among uniformed military personnel. The only real restraint on the development of the union, is the legal impediment placed on trade union activities by the Defence Act. This legal shield, however, may not withstand a challenge in the Constitutional Court, especially if recent judgements on the death sentence and the right to life serve as a guideline.

Some international authorities taking part in the debate on the constitutionality of military unions, feel that the courts would most probably uphold restrictions on unionisation within the military, but would not prohibit it. In other words, it is felt that certain restrictions will be placed on the activities of a union that constitute a clear danger to loyalty, discipline and morale, such as the right to join labour unions for the purpose of collective bargaining or the right to strike. Such restrictions could be considered reasonable and justifiable, but not restrictions on ‘the freedom of association to join a labour organisation’. Chief Justice Earl Warren of the US expressed this as follows: "Implicit in the term ‘national defense’ is the notion of defending those values and ideals which set this nation apart ... It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties - the freedom of association - which makes the defense of the nation worthwhile."49

By restricting the fundamental right of association, but curtailing the activities of such a union for the sake of military effectiveness and national security, would be considered reasonable and justifiable in an open and democratic society (constitutional requirement).

Restrictions could be placed on the scope of bargaining and the activities of a union by stipulating that ‘it may not interfere in the chain of command; shall not strike to achieve its objectives; shall not undermine discipline or the combat readiness of the armed forces; and shall not support a specific political party but maintain a position of party political impartiality’. Restrictions on the right to strike and the suspension of the entire unionisation process during times of national emergencies could also be justified. The severest of penalties could be prescribed for any union that transgresses these provisions.

However, what should be considered by the military and government, is that if collective bargaining is curtailed, the only genuine appeal for personnel to belong to the union would lie in its potential clout with government. In other words, to lobby with government for certain benefits or by placing pressure on the military command structure through the politicians. This avenue of appeal has already been utilised by SANDU when they met officially with the Minister of Defence, Mr Joe Modise, as well as with the President, Mr Nelson Mandela on 6 April 1995 to discuss problems it experienced when attempting to represent the interests of members, after the military command structures refused to speak to the union.50 It is also seen as one of the main motivating factors for union membership in Western nations that are subject to the kind of restrictions mentioned above.

In any ruling that affects the functioning of the armed forces, the courts will naturally take the unique character and special status of the military into consideration. The fundamental necessity for obedience and the imposition of discipline, may render some things permissible in the military that would be constitutionally impermissible elsewhere. According to Phillips and Crosby, "[t]he court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian community result from the fact that it is the primary business of armies and navies to fight or to be ready to fight wars should the occasion arise."51

There are strong arguments for and against military unions from both sides. The fact that both advocates and opponents see it as a constitutional question, suggests that any vote for legislation on unionisation would be challenged by the side whose view had not prevailed at that point. Many have argued that if this case is tested in court, an adverse decision would limit the military’s subsequent ability to erect barriers to military unions. Even those who are strongly opposed to military unions have voiced this concern.

A key issue, however, may not necessarily be the constitutionality of such legislation, but its enforceability. The effectiveness of anti-union legislation has slowed or hindered union organisation, but has not been able to prevent it. Legislating against unions in the rest of the public service did not cause their disappearance. It precluded the immediate institutionalisation of organised public service personnel, as it did for military personnel, but it did not prevent it. There are other forces at play that influence the trend for or against active group representation in the military. These forces are linked to the prevailing socio-political and military climate in the country, and include factors such as the presence of a strong trade union culture in society, the relative status of the military in comparison with other institutions, whether employment in the military is seen as a job rather than a calling, and most importantly, whether there is a perceived need for a military union. The only real restraining forces in the development of military unions at present are the legislative restrictions in the Defence Act and perhaps, the newly established structures that aim to address the collective grievances of soldiers.

Given the strong potential for military unions and the dire consequences this may hold for the military and the State, the central issue is how to accommodate the right of individuals to influence their employment conditions, through collective bargaining if they so desire, while simultaneously accommodating the needs of the military, given the unique social function it is expected to fulfil. It may well become the troublesome task of the courts to balance the rights of individuals against the interests of the state, a challenge with far-reaching implications for the citizen in uniform, the military and the state alike.

Endnotes

Edited version of a paper presented at the 2nd Annual Congress of the South African Sociological Association, 2-5 July 1995, Rhodes University, Grahamstown. The opinions expressed in this article are those of the author and do not reflect the official position of the SANDF



J. Kuhlmann, What do European officers think about future threats, security and missions of the armed forces?, Current Sociology 42(3), 1994, p. 100.



Constitution of the Republic of South Africa, Act 200 of 1994, Government Press, Pretoria, 1994, p. 16.



Ibid., p. 18.



C. Phillips and J. Crosby, Public sector unionization and the U.S. Military: A first amendment issue, in A. Sabrosky (ed.), Blue Collar Soldiers?, Foreign Policy Research Institute, USA, 1977, p. 100.



South African National Defence Union (SANDU), Newsletter, May 1995, p. 2.



D. Denholm and T. Humes, The case against military unionism, in Sabrosky, op. cit., p. 86.



W. Taylor, Issues in military unionization, in Sabrosky, op. cit., p. 37.



E. Krendel, Trade Unions and the United States Armed Forces: The issues and precedents, in E. Krendel and B. Samoff (eds.), Unionizing the Armed Forces, Pennsylvania Press, USA, 1977, p. 15.



D. Cortright, Unions and Democracy, in W. Taylor, R. Arango and R. Lockwood (eds.), Military Unions - U.S.Trends and Issues, Sage, Beverly Hills/London, 1977, p. 225.



Delholm and Humes, op. cit., p. 84.



Report to the Congress, by the Controller General of the United States, Information on Military Unionization and Organisation, Washington, 16 September 1977, pp. 10-11.



Ibid., p. 20.



Ibid., p. 22



Cortright, op. cit., p. 220.



B. Fleckenstein, Comparative perspectives - Federal Republic of Germany, in C. Moskos and F. Wood (eds.), The Military- More than just a job?, Pergamon-Brassey, 1988, p. 182.



W. Gomberg, History and traditions of trade unionism, in Krendel and Samoff, op. cit., p. 26.



L. Heinecken, Societal trends, defence legislation and military unionisation, African Defence Review 17, July 1994, p. 16.



South African Police Labour Relations, 1993 (Police Act, 1958), Government Press, Pretoria, 29 November 1993, pp. 4 and 12.



C. Smit, Arbeidsverhoudingereëlings in die Staatsdienste van Westerse lande vis-a-vis in die RSA-Staatsdiens, Research Paper, Commission for Administration, Pretoria, 1991, p. 1.



C. Perry, Due Process and Bargaining Rights in Public Education, in Krendel and Samoff, op. cit., p. 98.



L. Heinecken, The effect of industrial democracy and unionisation on the South African Security Forces, paper presented at the conference of the South African Political Science Association, Bloemfontein, October 1993, pp. 7-13.



W. Taylor, R. Arango and R. Lockwood, The relevance of the European Experience, in Taylor et. al., op. cit., p. 52.



E. Krendel, The implications of European military unions for the United States Armed Forces, in Sabrosky, op. cit., p. 109.



L. Heinecken and L. du Plessis, Trade Unions in Politics: South African Trends, Industrial Relations Journal of South Africa 14(4), 1994, p. 109.



I. Ballantyne, Military unionism - Its potential for development in the Australian Armed Forces in the 1980s, Defence Force Journal 39, 1983, p. 6.



T. Wyatt, American military unions: A sociological analysis, in Sabrosky, op. cit., p. 130.



Ballantyne, op. cit., p. 9.



C. Downes, Comparative perspectives - Great Britain, in Moskos and Wood, op. cit., p. 154.



A. Weibull, European officers’ job satisfaction and job commitment, Current Sociology 42(3), 1994, p. 70.



G. Harries-Jenkins, Trade Unions in Armed Forces, in Taylor et. al., op. cit., p. 61.



C. Moskos, The New Estrangement - Armed Forces and American society, in C. Moskos (ed.), Public Opinion and the American Military Establishment, Sage, Beverly Hills, 1971, p. 272.



L. Heinecken, Soldiers and employee rights - SA trends and issues, Strategic Review for Southern Africa 16(2), November 1994, p. 35.



G. Caforio and M. Nuciari, The Officer Profession: Ideal type, Current Sociology 42(3), 1994, p. 49.



N. Jans, Comparative perspectives - Australia, in Moskos and Wood, op. cit., p. 216.



D. Segal, From Political to Industrial Citizenship, in M. Janowitz and S. Wesbrook (ed.), The Political Education of Soldiers, Sage, Beverly Hills/London/New Delhi,1983, p. 294.



Harries-Jenkins, op. cit., p. 60.



Ibid., p. 64.



T. Manley, C. McNichols and G. Young, Military unionisation: A conceptual model for empirical research, in Taylor, et. al., op. cit., p. 89.



Ballantyne, op. cit., p. 89.



SANDF declares war, Weekend Argus, 25-26 March 1995, p. 11.



J. Pretorius, Integration, rationalisation and restructuring of the SA Army: Challenges and Prospects, African Security Review 4(1), 1995, p. 21.



P. De Ionno, Over 2000 will ignore Modise, Sunday Times, 6 November 1994.



A fear that Government must dispel, The Star, 31 August 1994, p. 4.



Manley, McNichols and Young, op. cit., p. 110.



R. Cocklin, Military Unions - A hoax and deception, in Taylor et. al., op. cit., p. 267.



Heinecken, op. cit., 1994, p. 49.



A. Sabrosky, Military unionism in America : Retrospect and prospect, in Sabrosky, op. cit., p. 154.



Phillips and Crosby, op. cit., p. 103.



Mandela’s orders ignored: Union, Citizen, 28 April 1995, p. 8.



Phillips and Crosby, op. cit., p. 98.