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International Labour Standards
Introduction
As referenced in Chapter 1 this thesis focuses on the issue of setting thresholds in collective agreements in relation to the acquisition of organisational rights. This practice, it is submitted, potentially has negative implications for unrepresentative trade unions with low levels of representivity. This chapter deals with internationa standards and the focus is on the International Labour Organisation’s (ILO) Conventions and Recommendations that relate to freedom of association, collective bargaining and organisational rights.
South Africa rejoined the international community after its first democratic elections on 27 April 1994. The Constitution, 1996 provides that “[w]hen interpreting the Bill of Rights, a court, tribunal or forum must consider international law”.128 Section 233 of the Constitution, 1996 provides that where there are conflicting interpretations of legislation, each and 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.” In S v Makwanyane129 it was held that public international law refers to both binding and non-binding law and both may be used as an interpretation tool.
The view exists that the role of international law in South Africa is recognised as a “foundation of democracy”,130 which should mean that without international law as a basis the values of the Constitution, 1996 and the labour rights dispensation will not have any international validity.131 This evaluation portrays the importance of international law to South Africa and its use as a point of reference for the interpretation of labour law.132
This part identifies the essential criteria and principles to be followed by member states in assessing the conformity of legislation with international standards. The operational structure of the ILO,133 the binding nature of ILO instruments and the attitude of the ILO towards the different models of collective bargaining, namely majoritarianism and pluralism, including the extent to which minority trade unions are to be recognised, are all relevant to that assessment. Therefore, the purpose in this chapter is to identify international norms pertaining to minority trade unions and these principles will be used to measure and assess South African practice.
The International Labour Organisation (ILO)
The Early Years of the ILO
Even prior to the formal establishment of the ILO, business, labour and governments had an interest in setting international standards.134 The idea of an international organisation existed before 1919 when the ILO was established. These efforts and the idea of regulating labour at an international level became a reality when the Paris Peace Conference on 29 January 1919 established the Commission on International Labour Legislation.135 The dominant theme of the Constitution of 1919 was to exert humane conditions for workers principally through the recognition of the principle of freedom of association. When comparing the right to freedom of association with the right to organise and to engage in collective bargaining, it is interesting to note that the preamble to the 1919 ILO Constitution evidently does not mention the right to organise or the right to collective bargaining.137 This omission denotes that the right to freedom of association has to be understood and appreciated fully from the perspective of being the origin of other labour rights. Therefore, there is a need to be cautious and not reduce this right to secondary status and of less significance through a collective agreement.138
The ILO in its early years recognised that the prevailing conditions and circumstances of member states will inform the extent of compliance by member states and the unique challenges they face.139 This consideration became significant when the ILO gradually increased its membership. According to Hepple,140 the ILO trebled in membership between 1946 and 2003 from 52 to a total of 177-member states. The author further states that 15 new African countries joined.141 The ILO had been established for the purpose of the regulation of and the improvement in the condition of workers’ rights internationally, however this was a difficult task due to the disparity between the member states in their socio-economic and political circumstances.142
The Operational Structure of the ILO and Participation by Members
The ILO Constitution forms part of Part XIII of the Treaty of Versailles that was signed in 1919. This document establishes the ILO, regulates the composition of the body and contains valuable information about the binding nature of its instruments. The ILO consists of three main bodies, namely the International Labour Conference, the Governing Body and the International Labour Office.143
The International Labour Conference is the highest policy-making body of the ILO and is composed of two representatives from government, one from the employer organisations and one from labour.144 This is the body where new international standards are adopted.145
The Governing Body is the executive arm of the ILO and is made up of an equal number of elected representatives of workers and employers, and representatives of government.146 According to Van Niekerk et al, this body has 14 members who are worker representatives, 14 from employers and 28 representatives of government.147 The Governing Body’s tasks are to determine the agenda of the Conference, to manage the budget of the ILO and decide on policy issues.148
The International Labour Office is the ILO’s bureaucracy and is headed by the director-general who is appointed by the Governing Body for a fixed term.149 The staff members in the International Labour Office are appointed by the director-general and they perform the day-to-day work necessary to give effect to the ILO’s mandate.150 It is required that the staff members be selected from different nationalities and a certain number are required to be women.151
The Constitution of the ILO confirms that representivity in the member state serves as the yardstick for participation in ILO structures and provides that:
“The Members undertake to nominate non-government delegates and advisers chosen in agreement with the industrial organisations, if such organisations exist, which are most representative of employers or workpeople as the case may be in their respective countries.”152
It is significant to note that the International Labour Conference and the Governing Body are constituted by persons nominated by the most representative national employer and worker bodies respectively. This provision creates the impression that organisations that have a small membership base ordinarily are not easily accommodated in the structures of the ILO or are able to participate in them. The weakness identified is that there is no provision in the Constitution of the ILO that specifically encourages diversity as a possibility in its structures, where for example, minority trade unions have a voice in its structures.
Chapter 1 General Introduction
1. Introduction
2. Contextual Background
3. Aims of the Study and the Research Questions
4. Significance of the Study
5. Research Methodology
6. Important Concepts and Definitions
7. Overview of the Chapters
8. Limitations of the Study
Chapter 2 International Labour Standards
1. Introduction
2. The International Labour Organisation
3. Relevant Labour Standards
4. The ILO on Models of Collective Bargaining
5. Conclusion
Chapter 3 Constitutional Framework
1. Introduction
2. The Concept of Democracy
3. Negotiating the New Constitution
4. Democracy under the Constitution, 1996
5. Electoral Systems
6. Labour Rights in the Constitution
7. Interpretation of the Bill of Rights
8. The Limitation of Constitutional Labour Rights
9. Conclusion
Chapter 4 Early Developments Regarding Collective Bargaining and the Rights of Minority Trade Unions
1. Introduction
2. The First Phase: A Dual System
3. The Second Phase: Era of the Industrial Court
4. The Ministerial Task Team
5. Conclusion
Chapter 5 Statutory Organisational Rights and the Right to Engage in Collective Bargaining
1. Introduction
2. The Purpose of Organisational Rights
3. Definition of “Workplace”
4. Acquisition of Organisational Rights
5. Content of Statutory Organisational Rights
6. Labour Relations Amendment Act of 2014
7. Conclusion
Chapter 6 Acquisition of Organisational Rights by Collective Agreement
1. Introduction
2. Acquisition of Organisational Rights by Collective Agreement
3. Effect of Section 21(8C) of the LRA of 1995 on Organisational Rights
4. Advancing Labour Peace
5. Conclusion
Chapter 7 Comparative Analysis: Majoritarianism and Pluralism
1. Introduction
2. United States of America
5. Content of Statutory Organisational Rights
6. Labour Relations Amendment Act of 2014
7. Conclusion
Chapter 6 Acquisition of Organisational Rights by Collective Agreement
1. Introduction
2. Acquisition of Organisational Rights by Collective Agreement
3. Effect of Section 21(8C) of the LRA of 1995 on Organisational Rights
4. Advancing Labour Peace
5. Conclusion
Chapter 7 Comparative Analysis: Majoritarianism and Pluralism
1. Introduction
2. United States of America
3. Conclusions: Answering the Research Questions
4. Recommendations
DOCTOR OF LAWS Mercantile Law
