The creation of a general duty to bargain in view of the SANDF judgements

Abstract

Section 23(5) of the Constitution entrenches trade unions, employer's organisations and employers' right to engage in collective bargaining. For employees, collective bargaining is the key which opens the door to better wages, improved working conditions and an overall better standard of living to name but a few. The Labour Relations Act was promulgated to give effect to section 23 of the Constitution. However, in section 2 of the Labour Relations Act, members of the South African National Defence Force were excluded from the ambit of the Labour Relations Act (LRA). After the Constitutional Court regarded members of the South African National Defence Force (SANDF) to be "workers", they also had the right to engage in collective bargaining. However, because of the special duty that the members of the SANDF have to fulfil namely to ensure the safety of the republic and its citizens, they are not awarded the right to strike. The question therefor is: How do the members of the SANDF compel the SANDF to bargain with them? The aim of this study is to establish if a duty to bargain was implemented by Chapter XX of the General Regulations of the South African National Defence Force and the Reserve. Firstly, the new dispensation of voluntarism under the new LRA is examined to understand how collective bargaining would work in a normal situation and not that of the members of the SANDF. Freedom of association is also discussed. The reason for this was because members of the SANDF also have to right to associate with a trade union of their choice by sections 18 and 23(2) of the Constitution. Under the new LRA, organisational rights also play a major role in the bargaining process and afford trade unions more bargaining power. The voluntarist approach followed by the new LRA effectively removed the duty to bargain from collective bargaining. As explained above, the special situation applicable to the SANDF and its members are not governed by the LRA and therefor a duty to bargain might still exist in this specific system of collective bargaining managed by the regulations. The duty to bargain is based on representativeness and good faith which are also examined in this study. To establish if a duty to bargain was created by the courts, an examination of the judgements of the High Court, the Supreme Court of Appeal and the Constitutional Court. The Constitutional Court reiterated that there is no legally enforceable duty to bargain between the SANDF and the South African National Defence Union (SANDU). If Chapter XX of the regulations is scrutinised, it can however be seen that there is an initial duty on the SANDF to bargain with a registered military trade union over matter set out in regulation 36 which include most if not all matters of mutual interest. Therefor it would seem that a duty to bargain is created by Chapter XX.