Time to change the architecture of Labour Relations Act – Judge of the Labour Court

The time has come to consider the redesign of the Labour Relations Act (LRA) taking into account developments in the labour market since 1996 and limitations of resources, said Judge President Basheer Waglay of the Labour Appeal Court and the Labour Court of South Africa.

Waglay argued that the LRA was introduced as an instrument to propel management and labour to find ways to constructively and positively engage with each other and find ways to shift away from adversarial mode of co-operation to one of joint problem solving. He said the policy instrument offered benefits – on the one hand for labour it offered a vehicle for constructive relation and broadening of collective benefits and for the employers a vehicle to be rewarded with increased efficiency and improved performance.

“Sadly, the expected returns have not been realised,” he lamented.

The LRA Act 66 of 1995 was conceived to provide simple procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration.

To give purpose to the Constitution the Act was designed among others:

•             to regulate the organisational rights of trade unions;

•             to promote and facilitate collective bargaining at the workplace and at sectoral level;

•             to regulate the right to strike and the recourse to lockout in conformity with the Constitution;

•             to promote employee participation in decision-making through the establishment of workplace forums;

•             to provide simple procedures for the resolution of labour disputes through statutory conciliation, mediation and arbitration, and through independent alternative dispute resolution services accredited for that purpose;

•             to establish the Labour Court and Labour Appeal Court as superior courts, with exclusive jurisdiction to decide matters arising from the Act;

•             to provide for a simplified procedure for the registration of trade unions and employers’ organisations, and to provide for their regulation to ensure democratic practices and proper financial control;

•             to give effect to the public international law obligations of the Republic relating to labour relations;

•             to amend and repeal certain laws relating to labour relations;

•             and to provide for incidental matters.

The Judge was speaking today during the start of the two-day Commission for Conciliation, Mediation and Arbitration (CCMA) Fourth Annual Labour Conference 2022 held at the Birchwood Hotel & Conference Centre in Boksburg. The conference is being held following a two-year hiatus imposed by the COVID–19 pandemic.

The theme of the conference is: “25 years in pursuit of Social Justice and Equity”.

Waglay said adversarialism seems to be the order of the day. He said for a country faced with an economic crisis – high unemployment, investment downgrades and other problems – it can ill afford to continue with the status quo.

He said the high workplace ‘adversarialism’ has spilled over into the system of individual dispute resolution, “Workplace disciplinary processes appear to be dysfunctional, with referrals to the Courts as a major of first resort instead of being the last resort.”

According to Waglay, the Labour Court was being used to leverage settlements and Courts having to preside over minor infractions.

He expressed concern over delays in CCMA and Labour Court case management, saying this places undue financial burdens on litigants.

“It appears that despite the stated purpose of informality which was intended in the LRA – Labour Court procedures today are as formal as those applicable to any divisional high court,” he said. He was also saddened by the state of trade unions – many of whom were engaged in internal squabble when they were supposed to be dealing with workers’ interests.

Source: Government of South Africa