It is clear from this that industrial conflict is only partially institutionalised in postapartheid South Africa. On the one hand, trade unions and employers make regular, indeed daily, use of the institutions and procedures for resolving conflict between individual employees and employers, as well as for collective dispute resolution and collective-bargaining. On the other hand, procedures may be disputed or regarded as unfair, and collective action not infrequently involves violence and intimidation, including violence by the police. Explaining the partial quality of institutionalisation needs to take account both of the industrial relations factors as well as the factors located in the broader society.
What are the likely implications of these features of the 2012 industrial conflict for the future of trade unionism? The weakening of internal union organisation and the ability of trade unions to rely on organisational power is likely to have three consequences. First, the chances of fragmentation through the formation of new, breakaway unions is increased. Fragmentation may lead to a short- term decline in overall union membership as some workers give up their union affiliation. Over time, workers may well join other unions or re-join the union to which they originally belonged, and the overall effect on aggregate union membership may be minimal. A second consequence of the weakening of union organisation is that it lays a basis for greater instability in workplace labour relations and may lead to a weakening of collective bargaining. The risk of instability is clearly heightened where unions compete for recognition and organisational rights, or where new unions adopt a militant stance in pursuit of organisational rights, which has been seen in the platinum mining and transport sectors. A third consequence is that trade unions turn to the state to support them in retaining their workplace influence – either through legislative change or through intervention with management. Such a strategy is not only contrary to the rationale underlying the current legal dispensation but is also likely to be the most damaging to the long-term prospects of strong, democratic trade union organisation.
The use of industrial protest action to deal with socioeconomic pressures experienced by workers can have many consequences. The obvious effects are instability in workplaces, with associated risks of deterioration in existing relations between management and workers and in such collective bargaining arrangements as may exist. It may be tempting to view spontaneous industrial action as an opportunity for trade union organisation, but such opportunities are complicated by a lack of familiarity with trade unionism on the part of workers, who are often in vulnerable positions, as are farmworkers, and for whom trade union subscriptions are not always affordable. The fact that workers who engage in industrial protest may be seasonal or contract workers, as was the case in the farmworker protests, also makes union membership an unlikely prospect. As has been pointed out in relation to obstacles to effective collective bargaining for non-standard workers, ‘a fragmented workforce implies that there are different segments of workers in the same workplace with diverse interests and different contractual status, which can trigger and intensify conflicts among workers themselves instead of labour-management conflict, thereby hindering solidarity among workers’ (Ebisui 2012: 5).
Finally, the consequence (apart from legal consequences) of violence during strikes and industrial action is likely to be a growing problem of trade union legitimacy. Declining legitimacy and growing distrust in unionism can only lead to declining affiliation and membership of trade unions.
In light of these developments in industrial relations and trade unionism, some have argued for a review of labour legislation to craft a different dispensation that is better able to deal with the challenges that have arisen over the past few years.
What then are the strategic and policy implications of the industrial conflict of 2012? The first implication is that the problems in labour relations cannot be resolved simply by further amendments to labour legislation. Some would argue that the legislative framework is not suited to current dynamics, especially when it comes to assisting low-paid, vulnerable workers and nor does it assist in regulating competition for resources between the employed and unemployed, as labour legislation supports collective bargaining structures that create barriers to entry into the labour market and excludes minority unions and outsiders. Such arguments tend to over-emphasise the role of law in resolving conflicts relating to socioeconomic conditions. As outlined above, the LRA clearly supports collective bargaining arrangements, in particular between strong bargaining partners. But the LRA does not compel parties to enter into specific arrangements, including arrangements relating to majority unions and the rights that they may enjoy. The LRA also does not prescribe what agency shop agreements employers and unions should enter, and nor does it set down hard and fast criteria for thresholds of representivity and access to organisational rights and collective bargaining arrangements. A distinction should be drawn between the statutory framework and the labour relations frameworks and practices that are adopted by employers and trade unions in workplaces and in bargaining structures, including bargaining and statutory councils. As Van Niekerk argues (2012: 5): ‘It is not necessary in these circumstances to rewrite the LRA, nor is it necessary to reconvene another Wiehahn-like commission to consider alternative legislative models. What is required is for both unions and employers to revisit their agreements to determine whether they are grounded in historical circumstances that are no longer part of workplace reality, and to make the necessary changes.’
Placing the responsibility for change on business and organised labour, and not the state, does however run the risk of stalemate, as the parties resort to a power play that will inevitably inhibit innovation and change. If unions are to continue to grow in the face of the labour market and socioeconomic challenges that face workers it will be necessary to re-build democracy within trade union structures and also to restore legitimacy in trade unionism, particularly in the eyes of those who remain as prospective union members. Revisiting employer and trade union agreements in workplaces will also be necessary to craft a more inclusive trade union regime in the workplace so as to avoid conflict and encourage more inter-union cooperation.
As key elements of the LRA’s vision for trade unionism and collective bargaining have not been realised over the past twenty years, the prospects for change in the future are not encouraging. In the light of increased labour market fragmentation, a weakening of organisational power of some of the largest trade unions and an increased politicisation of trade unionism, union growth in the future is likely to be limited, uneven across sectors and occupational groups, and constrained by the responsiveness of union organisation to changing labour market conditions.
CONCLUSION
The two competing theses about trade union growth and influence alluded to at the beginning of this chapter can be approached by recognising the many dimensions of power that may be exercised by trade unions. Trade unions exercise power through numbers – not only absolute membership, but also membership as a proportion of potential membership, that is, the degree of union density. At roughly 30 per cent, South African trade unions have retained a relatively high density across sectors and have demonstrated very substantial membership in sectors such as mining, energy and the public service. The stable growth of trade unions has continued despite adverse economic conditions over the past five years and a decline in real wages of workers, although negotiated increases have continued to outpace inflation.
To assume that trade unions are in crisis on the basis of a loss of membership by one union is misleading and underestimates the resilience of trade unions as organisations that further the interests of workers. The NUM may be facing particular challenges, but that does not mean that the whole of Cosatu or the union movement is weakening. This review of trade union growth after apartheid suggests that the numerical strength of the South African union movement has been relatively stable and that Cosatu has become even more dominant within the union movement as a whole.
Trade unions also exercise institutional power – that is, the ability to shape decision making in order to serve their members’ interests. Cosatu’s