Faculty of CommerceDepartment of Business Management

Student Number: L0120909U

Student Name : Ngenga Innocent

Program: Bachelor of Commerce Honours Degree in

Human Resource Management

Level: 4.2

Course: International Labour Law

Format: Block Release

Lecturer: Mrs Mlauzi

Question: Discuss the extent to which SADC meets ILO’s expectations on

Collective Bargaining and Labour Dispute Resolution?30marks

Collective bargaining is a means of regulating relations between management and employees and

for settling disputes between them. SADC countries have put various statutes and acts in trying

to streamline their labour laws with the International Labour Organisation standards or

expectations. The promotion and protection of collective bargaining has been identified by the

International Labour Organisation as one of the tools through which the conditions of decent

work can be realized. Collective bargaining ensures that worker rights are genuinely recognized

and protected. Again by its very nature it recognizes the desirability for joint decision making,

joint problem solving and joint responsibility in conducting relations between employers and

employees. It may therefore be viewed as an instrument by which democratic values are infused

into the employment context. Collective bargaining has a great potential for minimizing conflict,

and redressing confrontational attitudes and acrimony inherently associated with the employment

relationship, thereby promoting industrial peace and ultimately economic growth.

In South Africa recognition has been given to the collective bargaining process in International

Labor Organization standards. The process of collective bargaining in South Africa can be

defined as the process in which employers and employees collectively seek to reconcile their

conflicting goals through a process of mutual accommodation (Bendix 1996). Employers and

unions will seek to bargain collectively at a site where they can derive maximum benefit. In

recent times, at organizational level, employers are faced with the introduction of workplace

forums and new rights for trade union representatives, and recognition agreements need to be

reconsidered. A careful understanding of the LRA shows that the collective bargaining model it

introduced was aimed at reducing and minimizing unilateralism, which was one of the main

features experienced during apartheid era. Collective bargaining is now seen to be the preferred

method of securing labour peace, economic development and minimizing labour unrest, thus

meeting the expectations of International Labor Organization on Collective Bargaining and

Labour Dispute Resolution. The Labor Relations Act promotes the spirit of bargaining by giving

value to agreements reached between parties and by allowing parties to contract out of the

provisions of the Labour Relations Act. Trade union recognition is the starting point of collective

bargaining. However, trade union rights can only be obtained if the unions are representative.

The LRA protects the right to strike as an important part of collective bargaining and also it is

silent about how employers should bargain and over what issues in respect of International Labor

Organization expectations.

In Botswana Collective bargaining process does not exist in many of the organisation because of

the requirements. The implementation of the collective bargaining process in respect of

International Labour Organisation standards is a challenge for many organizations in Botswana.

This difficulty can be attributed to both the substantive issues and the procedural process

required for the implementation of a collective bargaining process for example, the Botswana

Mining Workers Union failed to meet the requirements to carry out a protected strike action

(Betten 1993). It should also be noted that the Botswana Constitution provided for collective

bargaining for unions that had enrolled 25 per cent of a labour force as members. In reality, only

the mineworker unions had the organisational strength to engage in collective bargaining and

because of the requirement that only unions that had enrolled 25 per cent of their labour force

could engage in collective bargaining, this had contributed greatly to the non-existence of

collective bargaining in most other sectors. This requirement needs to be rectified if Botswana is

to meet the International Labour Organisation standards in terms of the collective bargaining

Convention. However in Botswana attempts has been made to implement the clauses on freedom

of association in terms of ILO standards, but this has not been successfully achieved.This means

that workers still have restrictions on their associations with unions thus hampering Botswana to

achieve International Labour Organisations expectations on collective bargaining and Dispute

Resolution.

Management is not included in bargaining unit and collective bargaining unit and collective

bargaining process is not extended to all organisations in Lesotho. Workers in Lesotho have the

right to join and form trade unions without prior government authorisation, and workers exercise

this right in practice. However, some employers in the textile sector do not observe trade union

freedoms. The Labour Code prohibits civil servants from joining or forming unions, but allows

them to form staff associations (Brownlie 1990). The government regards all civil servants as

essential employees; therefore, essential employees do not have many of the normal labour

rights, such as the right to strike or the right to negotiate. Moreover It can also be noted that the

Police Service Act prevents members of the service from belonging to trade unions though they

are allowed to establish a staff association charged with promoting the professional efficiency

and interest of members of the service. This means that the police do not have an organ or a

union that represent them. The law in Lesotho prohibits anti-union discrimination, and the

government generally enforces this in practice. However some employers have harassed union

organizers, intimidated members and fired union activists, particularly in domestic industries.

The Labour Code of Lesotho allows unions to conduct activities without interference and the

government generally protects them in practiced. Collective bargaining is protected by law and

freely practiced (Du Toit et al 1996). However the Labour Code provides for a restricted right to

strike. Freedom of association which promotes free association of employees with labour unions

is recognized and practiced

In Swaziland collective bargaining process is not fully implemented in respect of International

Labour Organizations standards (ICFTU Annual Survey of Violation of Trade Union

Rights :2006).Employees may take part in the formation of any trade union or staff association or

federation as the case may be, be a member of any trade union or staff association and take part

in its lawful activities outside working hours or, with the consent of the employer, within

working hours (Dlamini 2000). Workers exercise any rights conferred or recognised by the

Industrial Relations Act, and assist any employee, staff association or trade union to exercise

such rights. The Industrial Relations Act, as amended in 2005, promotes freedom of association

for both employees and employers in the workplace. This enables employees to join labour

unions thus promoting dispute resolution as per expectations of the International Labour

Organisation.

Collective bargaining process is not included in matters affecting the legal regulations of the

labour market and work relations in Namibia. The right to organise and bargain collectively is

often associated with the union that the law allows to conduct their activities without

interference, and the government protects this right in practice. The law provides employees with

the right to bargain individually or collectively and to recognize the exclusive collective

bargaining power of the union when a majority of the workers were members of that union

(Blanpain and Colucci 2004). However collective bargaining is not practiced widely outside the

mining, construction, agriculture and public service sectors. This means that more still needs to

be done in Namibia so as to ensure that it meets the expectations of the International Labour

Organisation on collective bargaining and labour disputes resolution.

In Zambia collective baragaining is implemented differently at different sectors and plant levels.

According to the Zambian Labour Relations (Ammendment) Act of 1997, Collective bargaining

may be undertaken (a) at the level of negotiations between the management of the undertaking

and the trade unions representing the eligible employees, or (b) at the level of an industry,

through negotiations between the employer’s organisation and the trade union representing the

eligible employees. It also states that, every valid collective agreement in force prior to the

commencement of this Act shall continue in force until its expiry or replacement under this Act.

Section 68 states that, every collective agreement shall contain clauses, in this part referred to as

statutory clauses, stipulating, the date on which the agreement is to come into effect and the

period for which it is to remain in force, and the methods, procedures and rules for reviewing,

amending, replacing or terminating the collective agreement. This shows that the Zambian

Government attempts to comply with the International Labour Organisation standards in respect

of the Collective Bargaining Convention 1981 (No. 154). However still needs to be done to meet

expectations on labour dispute resolution through implementing freedom of association.

In Tanzania the process required to negotiate collective agreements is mechanistic and

cumbersome for example, any issue agreed upon as a result of a collective agreement must be

submitted to the Industrial Court for approval and may be refused registration if it does not

comply with the government’s established economic policy. This is not in line with the standards

of Interntaional Labour Organisation on collective baragainiong and labour dispute resolution.

Collective bargaining does not exist in the public sector since unions and government

representatives each submit proposals, and the authorities make recommendations on the basis of

these, which have to be adopted by Parliament.The Public Service Act of 2002 states that

workers in the public services do not have the right to collective bargaining since the government

sets wages for employees in the government and state-owned enterprises. There are also

restrictions for a union to be registered which are not in line with the expectations of the

International Labour Organizations.

In Tanzania the Employment Labour Relations Act of 2004 allows for compulsory arbitration

which, of course, is at the government’s discretion and government decides the conditions and

terms for public service employees which is a complete contradiction with the expectations of

the International Labour Organization. This amounts to banning strikes. The law does not protect

those taking part in legal strikes and walkout because of the lengthy process involved in calling a

legal strike. Basing on the above it is clear that the Tanzanian Government does not encourage a

collective bargaining process to arrive at major agreements, instead force is used to implement

policies. This negates ILO policies in the establishment and implementations of collective

bargaining and dispute resolution.

In Zimbabwe they are restrictions in the process of collective bargaining and the dispute

resolution process. In Zimbabwe for workers to be able to go on strike in terms of failed

negotiated issues or failure to implement a collective agreement, it is an uphill task since they

have to go through a series of complicated and protracted mediation and conciliation procedures

which can prolong a dispute for months without resolving it. The law does not protect those

taking part in legal strikes and walkout because of the lengthy process involved in calling a legal

strike (Madhuku 2000).This shows that more still needs to be done to achieve the expectations of

the International Labour Organisations on collective bargaining and dispute resolution.

Conclusion

In conclusion the seven SADC countries have implemented some of the expectations of

International Labour Organisation for both the employers and employees in the workplace in

different ways. However to a greater extent SADC does not meet the expectations of

International Labour Organisations since much needs to be done to promote collective

bargaining and labour disputes resolutions since some of the organisations implemented the

International Labour Organisation standards. Basing on the above it is also clear that a lot has to

be done particularly in empowering trade unions to promote collective bargaining and to

ultimately countervail the inherent power imbalance between employers and workers which is

exacerbating labour disputes in the SADC region. The different approaches within the SADC

countries towards collective bargaining and the resolution of labour disputes shows the gape

which still needs to be bridged so as reach the International Labour Organizations expectations.

REFERENCES

Bendix, S (1996). Labour Relations in the New South Africa Cape Town: Juta & Co.

Betten, L (1993) International Labour Laws: Selected Issues The Hague: Deventer.

Blanpain, R and Colucci, M (2004) The Globalisation of Labour Standards: The Soft Law Track

The Hague: Kluwer Law International.

Brownlie, I (1990) Principles of Public International Law 4th ed. Oxford: Clarendon Press.

Dlamini S.P., ‘Swaziland’s New Industrial Relations Act 2000: A Legal Response’ (2000)

21 ILJ (SA), p. 2174.

Du Toit et al. (1996) The Labour Relations Act of 1995.

Namibia Labour Act 15 of 2004

Zambian Labour Relations (Amendment) Act of 1997