Evolucion de las PYME desde el año 2008 hasta la actualidad

9.1 Relevant international law

This study does not aim to provide a comparative study however, based on section 39 (1)of the Constitution when interpreting the Bill of Rights, a court, tribunal or forum must promote the values that underlie an open and democratic society based on human dignity, equality and freedom, furthermore must consider international law. Section 233 of the Constitution states that when interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law. Also section 1(b) of the LRA stipulates that one of the purpose of the LRA is to give effect to South Africa’s obligations incurred as a result of it being a member state of the International Labour Organisation (ILO). In terms of section 3 of the LRA the act must be interpreted to give effect to its primary objects, in compliance with the Constitution and the public international law obligations of the Republic.¹⁰⁶ Thus it is important to take into consideration the international obligations South Africa has, as will be done below.

106 The Labour Relations Act 66 of 1995.

33 One of the main functions of the ILO is standard setting.¹⁰⁷ The ILO aims to promote workers’

rights, dignified human working conditions and social security in general, at the same time, it aims to prevent states from gaining advantages in international competition by maintaining a low level of workers’ rights. The ILO sets standards through conventions; which are binding agreements between states, declarations; which are documents stating agreed upon standards but which is not legally binding, and recommendations; which serve as non-binding guidelines.

For purposes of this dissertation this study will discuss two primary core conventions which are the Freedom of Association and Protection of the Right to Organise Convention of 1948, herein referred to as Convention 87, along with the Right to Organise and Collective Bargaining Convention of 1949 herein referred to as Convention 98 which have both been ratified by South Africa. Section 32(5) of the LRA contains a consideration by the Minister as to whether the failure to extend a collective bargaining agreement will undermine collective bargaining at sectoral level. Thus it is important to analyse what international law prescribes in terms of undermining or promoting collective bargaining at sectoral level.

The Freedom of Association and Protection of the Right to Organise Convention of 1948 aims to giving effect to the preamble of the constitution of the ILO which states that recognition of the principle of freedom of association as a means of improving conditions of labour and of establishing peace.¹⁰⁸ Article 2 of the above convention provides various protection in order to promote freedom of association and the right to organise, which includes the right of employers and workers to join organisations of their own choosing, subject only to the rules of that organisation. The right of workers and employers organisations to draw up their constitutions and rules, elect representatives freely, to organise their administration and activities and formulate their programmes,¹⁰⁹ and the obligation on members states to take all necessary and appropriate measures to ensure that workers and employers are able to exercise freely the right to organise.¹¹⁰

The Right to Organise and Collective Bargaining Convention of 1949 is probably the more important of the two conventions that will be discussed. It provides the requirements that

107 Van Niekerk et al (2015) 22.

108 The Freedom of Association and Protection of the Right to Organise Convention of 1948.

109 Article 3 (1) of The Freedom of Association and Protection of the Right to Organise Convention of 1948.

110 Article 11 of The Freedom of Association and Protection of the Right to Organise Convention of 1948.

34 machinery appropriate to national conditions should be established to ensure respect for the right to organise.¹¹¹ Article 4 states that;

“Measures appropriate to national conditions should be taken, where necessary, to promote and encourage the full development and utilisation of machinery for voluntary negotiation between employers and employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.”¹¹²

Article 4 is important for it provides support for legislation which provides a framework for voluntary collective bargaining. However there is no duty to bargain in South Africa rather there’s a system of voluntarism. Furthermore Article 4 creates an obligation on member States to promote and encourage collective bargaining in their countries where appropriate.

Section 23 of the Constitution¹¹³ seems to be in accordance with the two above conventions.

Apart from the express promotion in convention 98 for voluntary collective bargaining these conventions do not seem to provide any rights, measures, protections or obligations which are not already contained in the Constitution.

Bearing in mind that conventions are general in nature in order for States to be able to implement them, it is relevant to look at recommendations as well, such as the Collective Agreements (Recommendation 91) to see if it provides any further guidance. Clause 5(1) of the Recommendation provides that where appropriate and taking into account the practice and conditions of each country, measures should be taken to extend certain parts of collective agreements to all employers and workers in the particular industry or scope of the agreements.¹¹⁴

From the above clause it appears that the ILO is pro extension of collective agreements, however this principle is not an inflexible rule, because it is subjected to considerations of what is appropriate in the national context.

Clause 5(2) of the above recommendation provides that the laws or regulations in countries can make extensions subject to conditions such as:

111 Article 3 of the Right to Organise and Collective Bargaining Convention of 1949.

112 The Right to Organise and Collective Bargaining Convention of 1949.

113 The Constitution of the Republic of South Africa 1996.

114 The Collective Agreements Recommendation 1951.

35 (a) that the collective agreement already covers a number of the employers and workers concerned which is, in the opinion of the competent authority, sufficiently representative;

(b) that, as a general rule, the request for extension of the agreement shall be made by one or more organisations of workers or employers who are parties to the agreement;

that prior to the extension of the agreement, the employers and workers to whom the agreement would be made applicable by its extension should be given an opportunity to submit their observations.¹¹⁵

Although the provisions under clause 5(2) appear to provide vague preconditions for the extension of collective agreements, as it is silent on both criteria to considered by the competent authority and what is meant by sufficiently representative. Furthermore it does not provide any guidance on when extensions may or may not be appropriate. Leaving us in the same situation as seen in both Convention 87 and 98 along with the Constitution which are silent regarding which level of collective bargaining is most appropriate. The considerations listed in Recommendation 91 are still worth noting.

9.2 ILO Supervisory Bodies

The above provisions do not provide much guidance on their own, thus it may be useful to consider the views of ILO supervisory bodies. In NUMSA and Others v Bader Bop (Pty) Ltd and Another¹¹⁶ the court stated that there are two ILO supervisory bodies tasked with ensuring the observation of Convention 87 and Convention 98, which are the Committee of Experts on the Application of Conventions and Recommendations (Committee of Experts) and the Committee on Freedom of Association (CFA).

The Committee of Experts examines reports made by member states and make non-binding findings which are then submitted to the ILO Conference. The CFA makes recommendations to the ILO’s Governing Body regarding whether a case is worth examination.¹¹⁷ In its General Survey of 1994, the Committee of Experts observed with regards to Article 4 of Convention 98, that machinery and procedures should facilitate bargaining between the two sides of industry, allowing them the freedom to reach their own settlement.¹¹⁸ The committee stated

115 The Collective Agreements Recommendation 1951.

116 2003 2 BLLR 103 (CC) 29.

117 Wisskirchen “The standard-setting and monitoring activity of the ILO: Legal questions and practical experience” 2005 ILR 287.

118 International Labour Organisation General Survey 1994 248.

36 that although public authorities may establish machinery to encourage parties to collective bargaining, they must take note of social and economic considerations and public interest.

Furthermore, that the discretionary power of authorities to approve collective agreements is in conflict with the principle of voluntary bargaining.

The findings of the Committee of Experts may not be binding, however they advise that there should be as little interference as possible by authorities in the settlement reached by the bargaining partners and the public authorities. Furthermore that were necessary during the negotiation process and when requesting an extension to non-parties of a collective agreement, the principle of democracy are observed.

Lastly the ILO standards and the findings of the supervisory bodies, with regards to the promotion of collective bargaining, do not provide any findings that a failure to extend a collective agreement to non-parties would undermine collective bargaining.

CHAPTER 10: RECOMMENDATIONS

Thus this study recommends that section 32(3) (c) and (d) of the LRA should be amended so that the representativity of the parties to the agreement and not the parties to the bargaining council is taken into account. Section 32(5) (a) and (b) of the LRA should be deleted. The provisions in section 32(5) (c) and (d) of the LRA, which provides for an opportunity for non-parties to submit comments, should be retained, furthermore it must form part of the extension of collective agreements process in terms of section 32(2) and 32(3). However, the parties to the bargaining council should be required to assess the comments and make a decision as to whether amendments to the collective agreement are necessary or not.

Furthermore the duty to bargain should not be subject to the qualification that it is applicable to the majority. It would also be informed for South Africa to learn from its past, by looking at the old Labour Act which provided for minister discretion to extend agreements, however the minister could decide whether provisions of any agreement, should not be applicable to certain areas, classes of people and could exclude such classes of people from an order. Perhaps the most import part of the old Act was that the minister also consulted industrial council, if there’s no council, then with employers and employees affected, this is something that the current legislature ought to consider. This study state that the discretionary power of authorities to

37 approve collective agreements is in conflict with the principle of voluntary bargaining thus, should be done away with.

This study recommends that collective bargaining should advance democracy by relying on a pluralistic democracy that allows minorities the power to determine issues specific to them, and the majority should be prevented from deciding matters of particular importance to the minority. Also collective bargaining should be broader or wider in the sense that it creates more of a framework as opposed to specifying in great detail actual terms and conditions and actual wages, thus leaving no room for employers and employees to negotiate terms which are enterprise specific.

This study recommends that South Africa takes into account international law, such as the Collective Agreements Recommendation 1951 which subject’s majoritarianism to considerations of what is appropriate in the national context. Considerations such as those in clause 5(2) (c) which states that prior to the extension of collective agreements the employer and workers must submit their observations.

CHAPTER 11: CONCLUSION

This study has examined the state of majoritarianism in South African industrial relations and highlighted the inconsistency and/or challenges attributed to majoritarianism. To start off the study established that the purpose of labour law is to be a countervailing force to the inequality of bargaining power, majoritarianism on the other hand does the opposite as it promotes inequality of bargaining power between majority and minority trade unions.

The study discussed how majoritarianism has played a hand in the causing of unemployment, divergent interests, imposing the will of others thus not advancing democratisation of the workplace. Majoritarianism disrupts ordinary collective bargaining relations and will lead to union rivalry. Furthermore majoritarianism has the tendency of infringing on a number of rights in the Bill of Rights such as, the right to administrative action, democracy, right to strike, equality, right to dignity, freedom of expression and freedom of association.

The Minister has the discretion of extending collective agreements however after examining the unreliability of the “safeguards” of the ministerial discretion in section 32(5) of the LRA it seems to be highly limited and capable of manipulation. Section 32(5) of the LRA does infringe

38 the right to fair labour practices, to engage in collective bargaining, to strike and freedom of association. Furthermore the limitation to these rights are not justified in terms of section 36 of the Constitution, and that there are less restrictive means to extend collective agreements by only permitting extensions in terms of section 32 of the LRA, which is in keeping with democratic principles.

Extension mechanisms were also examined, bearing in mind that there is no duty to bargain in South Africa, one saw that the imposition of the terms of a collective agreement on non-parties creates controversy, in particular where non-parties have deliberately not joined the bargaining council where the agreement was concluded.

39 BIBLIOGRAPHY

CONSTITUTION

1. The Constitution of the Republic of South Africa, 1996.

LEGISLATION

1. The Labour Relations Act 66 of 1995.

2. The Labour Relations Act 28 of 1956.

3. The Promotion of Administrative Justice Act 3 of 2000.

4. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.

INTERNATIONAL LAW

1. Collective Agreements Recommendation 1951.

2. International Labour Organisation General Survey 1994.

3. The Freedom of Association and Protection of the Right to Organise Convention of 1948.

4. The Right to Organise and Collective Bargaining Convention of 1949.

BOOKS

1. Baqwa D; De Stadler E; Evans R; Eiselen S; Humby T; Kelly-Louw M; Konyn I; Kopel S; Naude T; Scott S; Smit N; Sutherland P; Woker T The law of Commerce in South Africa (Oxford University Press, New York) 2015.

2. Currie I & De Waal J The Bill of Rights Handbook (Juta, Cape Town) 2013.

3. Davies P and Freedland M Labour and the Law (Steven & Sons Ltd, London) 1983.

4. Devenish GE The South African Constitution (LexisNexis, South Africa) 2015.

5. Grogan J Collective Labour Law (Juta, Cape Town) 2014.

6. Grogan J Workplace Law (Juta, Cape Town) 2017.

7. Kahn-Freund O Labour and the Law (Stevens & Sons Ltd, London) 1997.

8. Rautenbach IM & Malherbe EFJ Constitutional Law (LexisNexis, South Africa) 2009.

9. Roux T Democracy Constitutional Law (Juta, Cape Town) 2014.

10. Scott TJ; Baqwa D The law of commerce in South Africa (Oxford University Press, South Africa) 2009.

40 11. Van Niekerk A et al (LexisNexis, South Africa) 2015.

12. Van Niekerk A Law@Work (LexisNexis, South Africa) 2015.

JOURNALS

1. Bogg “Representation of Employees in Collective Bargaining within the Firm:

Voluntarism in the UK (Report to the XVlIth International Congress of Comparative Law July 2006)” 2006 Electronic Journal of Comparative Law 1 - 2.

2. Brassey “Fixing the Laws the Govern the Labour Market” 2012 ILJ 1 - 7.

3. Calitz “The extension of bargaining council agreements to none-parties” 2015 SA Merc LJ 1 – 12.

4. Sarah Christie “Majoritarianism, collective bargaining and discrimination”1994ILJ708 - 712.

5. Du Toit “The extension of bargaining council agreements: Do the amendments address the Constitutional challenge” 2014 ILJ2637 - 2644.

6. Du Toit “What is the Future of Collective Bargaining (And Labour Law) in South Africa” 2007 ILJ 1405 - 1409.

7. Fergus & Godfrey “Organising and bargaining across sectors in South Africa: Recent developments and potential problems” 2016 ILJ2211 - 2216.

8. Godfrey et al “Regulating the Labour Market: The Role of Bargaining Councils” 2006 ILJ 731 - 733.

9. Grant “In Defence of Majoritarianism: Part 1 – Majoritarianism and Collective Bargaining” 1993 ILJ 305 - 305.

10. Grant “In defence of majoritarianism: part 2 – majoritarianism and freedom of association” 1993 ILJ 1145 –1145.

11. Kruger & Tshoose “The impact of the Labour Relations Act on Minority Trade Union:

A South African Perspective” 2013 PELJ 285 - 287.

12. Malan “Observations on Representatively, Democracy and Homogenization”2010 TSAR 427 - 449.

13. Van Staden and Smit “The regulation of the employment relationship and the re-emergence of the contract of employment” 2010 TSAR 702 - 711.

14. Wisskirchen “The Standard-Setting and Monitoring Activity of the ILO: Legal Questions and Practical Experience” 2005 ILR253 - 287.

CASE LAW

41 1. Association of Mineworkers and Construction Union v Chamber of Mines of South

Africa 2017 3 SA (CC).

2. Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety and Security and Others 1996 7 SA (CC).

3. Confederation of Associations in the Private Employment Sector and Others v Motor Industry Bargaining Council GPD 464761/2011 (27 NOVEMBER 2013).

4. Democratic Alliance & Another v Masondo 2003 2 SA 413 (CC).

5. Fredericks & others v MEC for Education and Training Eastern Cape and Others 2002 2 BLLR 119 (CC).

6. Free Market Foundation v Minister of Labour & others 2016 266 SA (HC).

7. Kem-Lin Fashions CC v Brunton and Another2000 25 SA (LAC).

8. Metal & Allied Workers Union v Hart Ltd 1985 6 ILJ 478 (IC).

9. Municipal & Allied Trade Union of SA and Saldanha Bay Municipality & Others2018 39 ILJ 1164 (CCMA).

10. NUMSA and Others v Bader Bop (Pty) Ltd and Another 2003 2 BLLR 103 (CC).

11. Police and Prisons Civil Rights Union v South African Correctional Services Workers’

Union2018 24 SA (CC).

12. R v Daleski 1933 (TPD).

13. Stocks & Stocks Natal (Pty) Ltd v Black Allied Workers Union & others 1990 11 ILJ 369 (IC).

14. Valuline CC and Others v The Minister of Labour and Others 2013 34 ILJ 1404 (KZP).

FORIGN CASE LAW

1. Saskatchewan Federation of Labour v Saskatchewan 2015 4 (SCC).

INTERNET SOURCES

1. IR Network article by Darcy Du Toit “’Collective Bargaining’ or ‘Collective Begging’?” 2015http://www.mylexisnexis.co.za/index.aspx (25-11-2018).

In document UNIVERSIDAD COMPLUTENSE DE MADRID (página 182-193)