31 October 2022 Employment Law Alert

Trade union membership, collective bargaining and the National Labour Migration Policy

The Department of Employment and Labour issued a statement in respect of the Minister of Employment and Labour, Thulas Nxesi’s, address to the Southern Africa Trade Union Coordination Council’s (SATUCC) worker congress. The statement recognises that registered union membership has increased, while union representation at bargaining councils has decreased in the recent past. Furthermore, there are policy and legislative developments that will aim to regulate labour migration and the employment of foreign nationals.

Below is an abridged version of the statement issued by the Department of Employment and Labour:

“Union membership increased from 3,5 million to over 4 million between 2013/14 and 2020/21, while the total number of registered unions increased from 203 to 220. Nxesi mentioned this…at the SATUCC worker congress in Gauteng.

According to Nxesi, ‘one of the unintended consequences of the 1995 Labour Relations Act’s freedom of association was the proliferation of trade unions.’ When combined with prevailing ‘majoritarianism,’ this tends to mean that members of splinter unions are not directly represented in bargaining chambers, resulting in a weakened collective representation of workers. Nxesi stated that he has raised this issue with various unions, suggesting that they find ways to unite all workers, including those in splinter unions – as difficult as that may be, Nxesi added.

Minister Nxesi, on the other hand, stated that there appears to be fierce competition for membership, to the point where some trade unions are using collective bargaining as a recruiting turf for membership by portraying their rivals as ‘sell-outs’ and resorting to intransigent tactics such as long and damaging strikes.

In recent years, the Department of Employment and Labour has seen an increase in the number of ‘unprotected’ strikes, indicating a deterioration in respect for collective bargaining institutions. Even the most militant-sounding union leader understands the importance of registration and can be found lobbying the Minister of Employment and Labour for the implementation of certain aspects of the LRA [Labour Relations Act 66 of 1995], such as the extension of collective agreements to non-members.

The Employment and Labour Department is working with NEDLAC (National Economic Development and Labour Council) to finalise arrangements for the Labour Market and Development Chambers to collaborate on the two documents. ‘We hope to complete government final consultations this year before referring both documents to Parliament,’ Nxesi said.

The draft National Labour Migration Policy [NLMP] must be viewed in the international context of globalisation and cross-border migration as the norm. Minister Nxesi emphasized the importance of properly managing labour migration, which all countries do. As a result, South Africa will have a comprehensive policy and legal framework to manage labour migration for the first time.

The proposed National Labour Migration Policy seeks to strike a balance in four areas. The first is to address South Africans’ expectations regarding access to job opportunities, given the country’s worsening unemployment and the perception that foreign nationals distort labour market access. The NLMP, along with proposed legislation, will impose quotas on the total number of documented foreign nationals with work visas who can work in major economic sectors such as agriculture, hospitality and tourism, construction, and so on. The NLMP will be supplemented by Small Businesses.

The National Labour Migration Policy complements a proposed Employment Services Amendment Bill by providing a policy framework and legal basis for employers to regulate the extent to which they can employ foreign nationals in their establishments, while protecting migrants’ rights.”

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