Bypassing the union: An Employer's Right to Negotiate Directly with Striking Employees

Abstract

South African labour law influenced by the Constitution and notions of equity and fairness has undergone a total change and will, without doubt, continue to change to meet the ever changing nature of employment it seeks to regulate. It is after all in the nature of all laws to change with the society they seek to regulate and our labour law is no exception. Recently, focus has shifted to the institution of collective bargaining and the questions posed are whether our labour laws as they currently stand are capable of adequately regulating the process of collective bargaining in such a way that the main objective of collective bargaining which is to bring about industrial peace is promoted and maintained at all times. These questions are posed on the back of the unprecedented spates of prolonged violent strikes that have resulted in the destruction of property and loss of life as well as unimaginable financial losses not only for the employers affected but also for the economy as a whole. These unprecedented prolonged violent strikes have caused employers to engage in bargaining conduct that could erode the participation of trade unions from the collective bargaining process which bargaining conduct takes the form of employers bypassing trade unions and negotiating with striking employees directly. But do employers have a right to bypass trade unions in this way? This paper investigates this question against the background of the case of Amcu v Lonmin where the Labour Court on application by a trade union had to decide whether to grant an urgent interdict restraining employers from negotiating directly with striking employees. The employers considering themselves to be acting within their rights opposed the application. The Labour Court unfortunately dismissed the application on technical grounds relating to the lack of urgency without considering or deciding this question. This paper accordingly picks up the debate; considers the historical evolution of collective bargaining in our labour law including the voluntarist argument that is said to be embodied by the Labour Relations Act (LRA), and concludes that when all things considered employers in fact do not have a right to bypass trade unions. If employers had this right certain provisions of the LRA that guarantee trade union participation would be rendered nugatory and the whole collective bargaining process would become unworkable. The LRA envisions that once parties have voluntarily embarked on collective bargaining they bargain in good faith and do not bypass each other.