Freedom of Association, the Right to Fair Labour Practice and Collective Bargaining in the Defence Force


Prof Yvonne Burns
Department of Constitutional and Public International Law, University of South Africa

Published in African Defence Review Issue No 19, 1994



INTRODUCTION

This paper's aim is to assess the influence which the Constitution of the Republic, Act 200 of 1993, will have on industrial relations in the sphere of the Defence Force.

The Constitution is of fundamental importance to this field of law (and indeed to all fields of law), since it entrenches a number of fundamental rights in chapter 3. Over and above this, the Constitution is the supreme law of the land, with the result that all other law (i.e., legislative enactments including the Defence Act 44 of 1957 and the Public Service Labour Relations Act 102 of 1993), common law and customary law, may not conflict with any constitutional provision. In effect, all law will henceforth be interpreted in the light of constitutional provisions and in the event of conflict, such a law may be declared unconstitutional by the Constitutional Court or the Supreme Court. (Only the Constitutional Court may declare an Act of Parliament unconstitutional.)

This discussion will centre on the constitutional provisions affecting labour relations, and labour and defence legislation. Thereafter, the international approach to labour relations will be discussed.

THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA ACT 200 OF 1993


The Constitution specifically provides for freedom of association, the right to fair labour practices and collective bargaining. The relevant sections read as follows:-

Freedom of Association

17 Every person shall have the right to freedom of association.

Labour Relations


27(1) Every person shall have the right to fair labour practices.

(2) Workers shall have the right to form and join trade unions, and employers shall have the right to form and join employers' organisations.

(3) Workers and employers shall have the right to organise and bargain collectively.

(4) Workers shall have the right to strike for the purpose of collective bargaining.

(5) Employers' recourse to the lock-out for the purpose of collective bargaining shall not be impaired, subject to section 33 (1).

Administrative Justice


This fundamental right, which is also entrenched in chapter 3 of the Constitution, sets the scene for the exercise of administrative power, by defining the parameters within which the administration must function. As a result, this fundamental right must be respected and applied consistently in the execution of any administrative function, including dealings with personnel. In essence the administrative justice clause is aimed at upholding the underlying values contained in the constitution and at promoting an open democratic society based on freedom and equality.

The right to administrative justice entitles every person to lawful administrative action where any of his or her rights or interests are affected or threatened. This means that all the existing legislative and common law requirements for valid administrative action, as developed by the courts, must be applied to any administrative action.

The clause also provides that all administrative action must be procedurally fair. This means that not only must administrative bodies and officials provide reasons for their decisions, but that these decisions must be justifiable in relation to the reasons given.

Procedural fairness demands that the affected person be given an opportunity to state his case, that he is properly informed of any consideration which may count against him, that reasons must be provided for a decision and that the person exercising the discretion must be free from bias.

The inclusion of the right to administrative justice in the Constitution ensures openness and accountability in the administration, including the Defence Force.

The Doctrine of Legitimate Expectation


The development of the 'legitimate expectation doctrine' has expanded the protection of individuals and bodies affected by prejudicial government actions, since it is no longer necessary to show that some or other existing right or liberty has been infringed. For example, in the case of Foster v Chairman, Commissioner for Administration the performance of a public servant, employed by the Department of Finance, was assessed to be 'above average'. After an altercation with some of his superiors he received a negative assessment on the grounds of 'poor interpersonal relationships'. Although his existing rights or liberties had not been affected, it was held that he had a legitimate expectation (based on his first assessment) of being heard on the allegations against him before his promotional prospects were taken away from him.

In the recent case of Utasa (Union of Teachers' Associations of South Africa) v Minister of Education and Culture, the court examined the question of whether the Minister could withdraw an order confirming the long standing authority of school principals to appoint substitute teachers in cases when permanent teachers are on long leave. The court found that the Minister could not do so without first hearing the principals and consulting the union, since they had a direct and substantial interest. The importance of this decision is that the application of the rules of natural justice was extended to a legal persona (i.e., a trade union).

The implication of this administrative justice clause for the Defence Force is that the rules of natural justice must be applied to all administrative action such as grievance procedures or disciplinary action (or any action falling within the administrative law relationship). This means that the individual must be given an opportunity to present his case when his rights or liberty are affected or when he has a legitimate expectation.

Limitation Clause


The Constitution also provides that the fundamental rights entrenched in chapter 3 may be limited in terms of section 33(1). (The total suspension of these rights - as opposed to their limitation - is permissible only in times of war, invasion, general insurrection or disorder or at a time of national disaster - in other words when a state of emergency is declared [section 34].)

Section 33 provides that the fundamental rights entrenched in chapter 3 may be limited by law of general application, to the extent that the limitation is reasonable and justifiable in an open and democratic society based on freedom and equality. The essential content of the right in question must also not be negated by the limitation. In so far as section 17 (the right to freedom of association) is concerned, the limitation must also be reasonable, in instances where the right relates to free and fair political activity.

Section 33(5)(a) is of specific importance to labour relations in the Defence Force. It reads as follows:

The provisions of a law in force at the commencement of this Constitution promoting fair employment practices, orderly and equitable collective bargaining and the regulation of industrial action shall remain of full force and effect until repealed or amended by the legislature.

The implication is that all existing labour legislation remains in place, until such time as it is either repealed by Parliament or declared unconstitutional by the Constitutional Court.

SOUTH AFRICAN DEFENCE AND LABOUR LEGISLATION


The Public Service Labour Relations Act 102 of 1993 (PSLRA) makes specific provision for the extension of basic worker rights to public service personnel. The application of this Act is limited to public service personnel as defined in Section 1 of the Public Service Act 111 of 1984, and does not include persons employed in terms of an Act other than the Public Service Act. As a result civilian personnel are included, but uniformed military personnel (who are employed in terms of the Defence Act) are excluded.

The Rights of Civilian Personnel under the PSLRA


One of the fundamental principles of this Act (section 4(1) provides for the right to establish and join any employer and employee organisations. A closed shop provision, which compels employees to belong to a specific union, will therefore be unlawful. The Act prohibits intimidation, victimisation or unfair discrimination based on race, colour, sex, religion, political opinion, and also makes provision inter alia for access of trade unions to their members (sec 4(10)); and access to information not deemed classified (sec 4(11)).

Section 4(15) stipulates that the parties shall at all times act in such a way that they do not compromise the provision of a neutral, non-political and impartial service to the public. It may be deduced from this section that politically directed industrial action is unlawful. An unfair labour practice is prohibited. The definition of an unfair labour practice is any act (other than a strike or lock-out) which has the effect of unfairly affecting employees or prejudicing their employment opportunities or work security, unfairly affecting or disrupting the activities of employers, creating labour unrest, or detrimentally affecting the labour relationship between employer and employee or non-compliance with the principles contemplated in section 4.

The Act makes provision for collective bargaining machinery, via the Public Service Bargaining Council and the dispute procedure is also laid down. It also regulates issues such as the admission of employee and employer organisations to the chamber of Council, registration of employee organisations, meetings of the chamber of Council, the establishment of Conciliation Boards, the right to strike or lock-out, and so on.

Section 19 (1) of the PSLRA is of particular importance to the Defence Force. This section reads as follows:

19 (1)?Subject to the provisions of this section, employees, excluding those rendering essential services, shall have the right to strike, and the employer shall, except in relation to employees engaged in essential services, have the right to a lock-out; provided....

Essential services are defined in section 20(1) as services the interruption of which could cause serious hardship to the whole or a part of the community or could endanger the life, safety or health of the members or some of the members of the community. Matters included as essential services include the provision of water, power and sanitation; air traffic control; emergency health services; and fire-fighting services and services by employees of the South African Defence Force, the South African Police and the Department of Correctional Services.

In the event of a dispute as to whether an employee is rendering an essential service, such a dispute may be referred to arbitration for a rapid resolution. Disputes which do not have financial implications for the employer are referred to the Industrial Court.

The Rights of Uniformed Personnel

Section 126B (1) of the Defence Act 44 of 1957 reads as follows:

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 (Act No 28 of 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.

The effect of this provision is clear - membership of a trade union is prohibited, and only membership of ministerially-approved bodies is permitted.

Section 126B (2) specifically provides that a member of the SANDF who is subject to the 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 he is a member of the SANDF or an officer or employee referred to in section 83A(2) serving in the SANDF or a member of any auxiliary or nursing service established under the Act) to strike or participate in a strike.

Section 126B provides that members of the Permanent Force shall exercise their rights in respect of labour matters in terms of the regulations, and the State must handle and administer these matters, including the resolution of disputes, in accordance with the regulations.

INTERNATIONAL LAW


South Africa has not as yet rejoined the International Labour Organisation, nor have the International Conventions regulating labour practices been ratified by South Africa. However, international law is of great importance since the Constitution specifically provides that, in interpreting the chapter on fundamental rights, public international law must be considered in the protection of these fundamental rights.

The International Labour Organisation


The International Labour Organisation (ILO), is the specialised agency of the United Nations, which deals with the setting of international labour standards by means of conventions and recommendations, and also provides assistance to member states in the form of technical training, and so on.

The first real contact South Africa had with the ILO, after its withdrawal in 1964, emanated from the complaint lodged with the ILO by Cosatu. The complaint was based on the amendments to the Labour Relations Act introduced in 1988. Since South Africa was no longer a member of the ILO, the normal complaint procedure could not be followed, and following upon consent by the South African Government, a Fact Finding Conciliation Commission (FFCC) was appointed. (The 1991 amendments to the Act had removed most of the grounds of complaint, and the investigation was then directed at issues such as freedom of association in South Africa.) At present, the possible re-admission of South Africa to the ILO, and the requirements which will have to be met, are being discussed.

The ILO and Freedom of Association


It is worth noting that the ILO has found that freedom of association is such an important subject that it has adopted international standards and has also set up special machinery to deal with the issue.

Convention 87 Freedom of Association


Article 2 of this Convention (Freedom of Association and Protection of the Right to Organise) provides for the right to establish trade union and employers' organisations:

Workers and employers, without any distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.

The article is very wide and guarantees not only the rights of workers or employers in private industry, but extends to those rights in the public sector. This article guarantees an individual right, that is, the right of the individual to choose a trade union, or an individual employer to join an employers' organisation.

The FFCC has criticised the procedure for the registration of unions and employers' organisations in terms of the Labour Relations Act 28 of 1956 as being too complex and too time-consuming. It has also recommended that the racial requirements in connection with registration be eliminated.

Article 3 deals with the collective rights of the organisations themselves. In terms of this article organisations have the right to draw up their own Constitutions and rules, to elect their own representatives, to formulate their own programmes, and so on. Article 3 specifically provides that the public authorities refrain from any interference which would restrict this right or impede its lawful exercise. The FFCC has found that the discretionary powers vested in the industrial registrar to regulate the content of the Constitutions is in conflict with ILO standards. Article 8 provides that workers, employers and their respective organisations must obey the law of the land, but that this law should not impair the guarantees provided for in the convention.

Convention 98 Collective Bargaining


This Convention (The Right to Organise and Collective Bargaining Convention) complements Convention 87 by protecting workers from anti-union discrimination in respect of their employment and also protects workers and employer organisations from acts of interference by other parties.

Recommendations of the Fact Finding Conciliation Commission


The ILO made certain recommendations in respect of organisational rights, for example a right to access to employer premises for the purposes of organising workers. In this regard the FFCC referred to Convention No 135 (concerning protection and facilities to be afforded to workers' representatives in the undertaking). For our purposes, the findings of the FFCC with regard to strike law are very important and are summarised below:
  • The FFCC was of the opinion that the South African procedural requirements relating to strikes are too cumbersome. It found that the pre-strike procedures and the length of time needed to comply with them (as required by the Labour Relations Act) have a 'negative effect' on the right to strike. The provision that an absolute majority of union members in an undertaking must vote in favour of strike action is also against the principles of the ILO - and seriously limits the activities of trade union members. The FFCC was also extremely critical of the restriction in section 65(1A) on strikes not classified as 'industrial disputes'.
  • With regard to essential services, the FFCC was of the opinion that the provisions of the LRA dealing with strikes in essential services infringe the principles of the ILO:-

    First of all, the definition is too wide and includes services which cannot be regarded as essential. Thus, only 'genuine' essential services (for example, where an interruption would endanger the life, personal safety or health of the whole or part of the population) should be prevented from striking.

    Secondly, certain employees employed in essential services do not have dispute resolution machinery available to them to compensate for the removal of their right to strike - other procedures such as arbitration must be provided.

    Thirdly, the dispute resolution procedure set out in the Labour Relations Act for essential service employees as defined, are not working satisfactorily and steps have to be taken to resolve the problem.
  • The FFCC also made certain recommendations concerning the sanctions which employers invoke against unions and employees who instigated or participated in a strike.

The ILO and the right to strike


One of the central principles on which the ILO is based is the right of employees to join and form unions and the right of unions to operate freely and to pursue the interests of their members. These principles clearly emerge from the four Conventions already mentioned.

It is significant that no reference to the right to strike can be found in the four ILO instruments dealing with freedom of association. However, the ILO has indicated on numerous occasions that the right of employees to strike is an essential element of freedom of association. The FFCC did not comment on the position of the police and members of the armed forces regarding strike action, on the basis that these bodies may be excluded from the ILO's freedom of association principles.

Furthermore, the body dealing with the enforcement of the ILO's principles, such as the Freedom of Association Committee of the Governing Body of the ILO (CFA), has, over the years, built up a substantial record of decisions dealing with principles of freedom of association. These decisions express the view that the right to strike is an essential element of the freedom of association. The CFA has accepted that certain limitations to the right to strike may be imposed, although the extent of these limitations is not clearly defined. Since the ILO accepts that workers enjoy a fundamental right to strike, the debate is not about the existence of the right, but the extent of the right and the limitations to its exercise. A general prohibition on the right to strike or a prolonged suspension would be regarded as an infringement of freedom of association.

The ILO accepts that strikes are regarded as acceptable only if they are embarked upon with the aim of furthering the "economic", "social" and "occupational" interests of workers. Although these criteria are widely defined the ILO still accepts that strikes for purely political motives fall beyond the ambit of freedom of association. Restrictions on the right to strike (for example the provision of minimum services during the period of the strike) may be acceptable. These measures generally apply where essential services are involved, and, as has been stated, the provision of certain minimum services are regarded as necessary to prevent danger to life, safety or health of the population.

Essential Services


Essential services must be strictly defined - they are those the interruption of which would endanger the life, personal safety, or health of the whole or part of the population, for example medical and health services, supply of water and air traffic control. As we shall see, a number of countries accept that the activities of the Defence Force constitute essential services.

Comparative International Law


Sweden

Three military unions, which represent most of the regular military personnel, are integrated into the Swedish collective bargaining system. Legislation permits them to strike, and the government has the right to a lock-out.

France


The French Constitution entrenches the right to strike, which is conferred on employees in both the private and public sector. The French system provides a number of mechanisms for the settlement of disputes, although this does not restrict the right to strike in any way. The mechanisms include: conciliation procedures; mediation; arbitration; and informal procedures.

Special rules apply to certain public services employees, such as public transport, energy, hospitals and social services. For example, certain procedures must be followed prior to resorting to strike action and rotating strikes are forbidden. Certain occupational groups are completely forbidden to strike - e.g. soldiers, judges, police, prison officers and state security officers. Their work is considered to be vital to the public order. Other service providers must maintain a minimum service in the event of industrial action, e.g., in hospitals, public broadcasting and air traffic control.

The government has the right to restrict or even remove the right to strike in circumstances where it deems the workers involved in strike action to be indispensable to public safety, the running of government or to the maintenance of equipment. This right of the government is subject to the judicial control of the Council of State.

Germany


Article 9(3) of the Basic Law guarantees freedom of association. This Constitutional guarantee has served as the source for a derived right to bargain collectively. In much the same way as the Freedom of Association Committee of the Governing Body of the ILO has seen the freedom to strike as a functional corollary to collective bargaining, the German Federal Constitutional Court and Federal Labour Court have linked the freedom to resort to measures of industrial action to the freedom to bargain collectively. Neither civilian officials nor military personnel have the right to strike.

CONCLUSIONS


The position in South Africa is that, on the one hand, the Constitution, as the Supreme Law of the land, entrenches the right to freedom of association, the right to fair labour practice, as well as the right to strike. On the other hand, members of the Defence Force are limited in the exercise of these rights.

As we have seen, uniformed personnel are prohibited from joining trade unions (apart from a ministerially-approved body or association), or from participating in strikes. In terms of the Public Service Labour Relations Act 102 of 1993, civilian personnel may participate in collective bargaining and have the right to join trade unions of their choice, (which means that closed shop provisions will no doubt be deemed unlawful). These statutory provisions coincide with the international standards laid down in Convention 151 (concerning protection of the right to organise and procedures for determining conditions of employment in the public service), which came into force in February 1981.

However, certain civilian personnel are specifically prohibited from striking by the PSLRA, on the basis that they form part of essential services. Generally, the effect of the PSLRA with regard to strikes, is conservative. For example, public servants (other than those employed in essential services) may only strike for a period not exceeding 30 days.

It could be argued that the creation of a Military Ombudsman could go a long way towards protecting the rights of military personnel. The advantage of this office would be that a member of the armed forces could approach the Ombudsman in the early stages of a grievance or dispute. The Ombudsman, who would be a person experienced in military matters, would be in a position to effectively resolve many issues by way of negotiation and conciliation.

The same argument could be used in connection with the Constitutional creation of the office of Public Protector and other commissions, with regard to the protection of the rights of military personnel. However, although these commissions will assist in preventing administrative abuse in the workplace, it must be remembered that they are aimed in the main at the protection of individual rights. Although the value of these commissions and the creation of a Military Ombudsman to investigate any abuse in the Defence Force, cannot be underestimated, it is generally accepted throughout the western world that the worker is best protected via collective bargaining, since the sheer weight of numbers involved forces employers to heed employees' grievances, demands, and so on.

It is worth repeating that all fundamental rights may be limited by law of general application (i.e., the common law, customary law and legislation), to the extent that it is reasonable, justifiable in an open and democratic society and that the essential content of the right is not negated. Furthermore, the Constitution makes specific provision for the continuance of law promoting fair employment practices, orderly and equitable collective bargaining and the regulation of industrial action. This means that all labour law will remain in operation until such time as it is either declared unconstitutional by the Constitutional Court or the Supreme Court, or until it is amended by Parliamentary enactment.

An important factor to be considered, particularly in the light of the inclusion of international law in the Constitution, is the current trend in the Western world towards greater worker participation in the working environment. This trend, which has been adopted in South Africa, has seen the demand for greater democracy in the workplace emanating from trade unions, although some employers have brought about greater worker democracy through their own initiatives. It is apparent, in the light of the approach of the International Labour Organisation, the international demand for greater worker democracy, the advances made in this country in the field of industrial relations, and the philosophy behind the 1993 Constitution, that the Defence Force cannot stand apart from these developments in labour relations.

The following provisional recommendations are made:
  • Although international standards should be taken into account, the position of the armed forces in the sphere of labour relations must be regulated at a national legislative level. This approach is in accord with Convention 151 (concerning the protection of public service employees) which specifically states that "the extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations".
  • Existing labour legislation applicable to the armed forces should be brought into line with Constitutional principles and international standards, as far as is practicable. To this end both the military and civilian sphere of employment must be examined, with the objective of providing increased participation in problem-solving and decision-making.
  • Despite the argument that greater worker democracy could detrimentally affect the hierarchical chain of command, the needs of military personnel (as opposed to civilian personnel) must be accommodated. This means, for example, that the regulation relating to membership of a ministerially-approved body should be scrapped; that anti-union discrimination should be extended to all personnel; and that basic procedures regulating grievances and disciplinary matters should be updated.
  • It is submitted that the Constitutional court will, in the light of the international trend of prohibiting strikes by employees in essential services, accept the limitation imposed by the relevant legislation (e.g., the Defence Act and the Public Service Labour Relations Act), particularly where it can be shown that a strike by these employees will endanger the community as a whole, or the protection of the common weal.
  • The creation of a Military Ombudsman should be considered. The Ombudsman will serve as a link between Parliament and the Defence Force, and will be in a position to reduce industrial strife by way of consultation and mediation.

REFERENCES

  1. Wiechers M, Administrative Law, translated from the Afrikaans by Gretchen Carpenter at 148 regarding the administrative service relationship,1985.
  2. Wiechers op cit. 172-258.
  3. Wiechers op cit. 208-228.
  4. The doctrine was discussed fully in the Appellate Division decision of Administrator, Transvaal v Traub 1989 (4) SA 731 (A).
  5. 1991 4 SA 403 (C).
  6. 1993(2) SA 828 (C).
  7. In the Traub case supra it was held that a person will have a legitimate expectation where there has been an existing practice, or an express promise has been made. A number of writers have disagreed with this limit placed on the application of the legitimate expectation doctrine. In a recent decision of the Transkei General Division it was held that such a promise or practice is not a necessary requirement, and that an expectation can arise whenever it is fair or reasonable to afford a fair hearing. Gemi v Minister of Justice, Transkei 1993 (2) SA 276 (Tk) at 287-281.
  8. Public protest is defined in the Act.
  9. See generally Freedom of Association Committee of the Governing Body of the ILO (1985) Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, 3rd edition, International Labour Office, Geneva; and Korner-Dammann, Marita (1991) Bedeuting und faktische Wirkung von ILO-Standards-dargestellt am Beispiel Süd-Afrika (Nomos Verlag, Baden-Baden).
  10. COSATU called for inter alia the narrowing of the list of services contained in section 46 of the Labour Relations Act where compulsory arbitration is substituted for strike action. COSATU argued that certain employees such as support staff whose tasks were not part of the essential services provided, should be allowed to strike. It also requested that in genuinely essential services some form of compensatory mechanism such as conciliation, mediation and arbitration be introduced, or (where it already existed) be strengthened. See the Report by the Fact Finding Conciliation Commission.
  11. See the document by the Fact Finding Conciliation Commission.