COLLECTIVE BARGAINING IN

THE SOUTH AFRICAN PUBLIC SECTOR

 

 

EXECUTIVE SUMMERY

This article considers collective bargaining in the public sector. It traces the historical development of collective bargaining in the public sector within the context of the changing South African state: this being from the “apartheid” state to a democratically elected state.  It then analyses the legal framework governing the management of labour relations.  These developments are compared with international trends and developments. The article proceeds to examine the impact of “post apartheid” legislation on collective bargaining and the efficiency of collective bargaining structures established in the public sector.  Finally the article considers how the budgeting process impacts on collective bargaining in the public sector.

 

These core themes that are explored in the article are analysed in the context of the move by the South African state to radically decentralse the power of managers in the public sector and the concomitant decentralisation of the budgetary processes.

 

INTRODUCTION

Collective bargaining appeared in the early stages of the industrial revolution, in the private sector, as a means of fixing wages and other conditions of employment. The rationale for collective bargaining for workers was the replacement of unilateral decision making by the employer in relation to individual workers, thereby overcoming the weak bargaining position of these individual workers.  Collective bargaining has however, over many years of industrial development, developed into a sophisticated means of transforming and regulating what occurs in the workplace. In practice collective bargaining now serves many purposes, including:

·         a rule making function whereby what is agreed in collective bargaining becomes part of individual contracts of employment;

·         a normative function whereby collective agreements are extended beyond the scope of the bargaining unit and the individual workers who may not be union members;

·         a conflict resolution device;

·         a regulatory device in which the relationships between the employer and the trade unions are defined; and

·         in respect of the public service, a limitation of the sovereignty of the state.[1]

 

Historically the law has drawn a distinction between labour legislation in the private and public sectors. The rationale for the distinction between the public and the private spheres of the economy is that the state, as employer, has distinctive characteristics that are not shared by the private sector. The most obvious distinctions include:

·         the rationale for decisions being ideological, political and social, rather than market driven;

·         the fact that the state is a single employer, although it is made up of different departments and components; and

·         the necessity for transparency and accountability in decision making.[2]

 

In order to maintain its status, both as an employer and as the state, different laws were enacted that determined how the public sector is managed vis a vis the private sector. The conventional model of public sector management, which is firmly established in the legislative framework, is the bureaucracy. In a state controlled bureaucracy the traditional relationship between capital and labour is absent. Managerial power derives, not from the ownership of capital, but from a hierarchy of authority that is set out in legislation.[3]  Employment practices in the public sector are characterised by direct public sector production of services, organisational hierarchies, rule bound or standardised work processes and the unilateral central determination of terms and conditions of employment by the employer.[4] This is contrasted to the private sector in which business management practices, particularly in relation to employment, are, in most instances, flexible, fluid and appropriate to the conditions of the particular industry within the market. This may facilitate a high level of employee involvement in the determination of their terms and conditions of employment.

 

The private sphere of the economy was, prior to 1995, governed by the Labour Relations Act, [5] which was substantially amended in 1979. The public sphere of the economy, was regulated by the Public Service Labour Relations Act, (the PSLRA),[6] the Education Labour Relations Act (the ELRA)[7] and the South African Police Services Labour Relations Regulations.[8]

 

This distinction between the public and private spheres created intense conflicts in the public sector, both in South Africa and other developed countries, and has not facilitated the easy development of collective bargaining. The state, as employer, resisted the introduction of basic employee rights, for instance freedom of association, collective bargaining and dispute resolution.  The rationale for this is that the state, even in its role as employer, is a representative of the popular will and accountable only to its constituency. Consequently, democratic theorists [9] have asserted, that the state has an unassailable right to act unilaterally on all matters which fall within its legislative powers, [10]the budget being one of these matters, which right cannot be challenged by groups representing particular rather than general interests, like public sector trade unions.[11]  In the South African context collective bargaining in the public sector has, similarly, been characterised by conflict. In addition to the obvious political reasons, this being a challenge to the “apartheid” state by the trade union movement, the major source of conflict was that public sector employees, including teachers and police, had no formal collective bargaining or dispute resolution rights.  These rights were only granted in 1993, with the introduction of the above mentioned legislation and regulations.

 

In introducing labour laws for the public sector the legislature had to introduce legislation which would accommodate the bureaucratic mode of management and production. Collective bargaining was regulated by ensuring that the collective bargaining processes and decision-making structures were firmly connected to the way in which the powers of management in the public sector were regulated.  In order to ensure the continued adherence to the concept that the employer was one body and to ensure general accountability collective bargaining was centralised, with terms and conditions of employment being characterised by a high degree of uniformity.

 

THE LEGAL FRAMEWORK – THE MANAGEMENT OF COLLECTIVE BARGAINING IN THE PUBLIC SECTOR PRIOR TO THE ENACTMENT OF THE LABOUR RELATIONS ACT

In terms of the Constitution of the Republic of South Africa a public service is established within public administration to execute the lawful policies of the government of the day.  The Constitution states that “the terms and condition of employment of public service employees must be regulated by national legislation.”[12]

 

The structure of management in the public sector is determined by legislation, including the Public Service Act,[13] for those employed in the public service, the Employment of Educators Act, [14] for educators (teachers) and the South African Police Services Act [15], for police personnel.

 

The Public Service Act covers those employees employed in the “traditional” public service.[16]  The public service consists of the national departments and the provincial administrations, as set out in the Schedules to the Public Service Act.[17] The provincial administrations are established in the Constitution[18] as relatively autonomous political entities that have, not only administrative and executive powers, but, to a limited degree, can develop legislation in accordance with their own needs.[19]  The provincial administrations, however, do not have legislative powers in relation to employment[20].

 

The national departments and the provincial administrations deliver a variety of public services, including health services. The national departments are a coherent entity in that each one has to deliver a specific coherent service. There is for instance a national department of health, a national department of welfare and a national department of safety and security. The provincial administrations are, however, not coherent structures. They are made up of a number of different departments, each department performing and delivering a different service. The number of departments vary in each provincial administration, the only similarity between the provincial administrations is that they are only able to create departments which deliver services if the services that they must deliver fall within their power of authority as determined by the Constitution.[21] The provincial departments were, prior to amendments to the Public Service Act, not seen as autonomous from the provincial administration. The provincial administrations, and not the provincial departments, were, in terms of employment and managerial authority, viewed in the same way as a national department. The status of the provincial administration equaled that of a national department, despite the differences in the number of employees employed, the type of work that they did and the fact that the provincial administrations were made up of a variety of different departments. 

 

Management authority was, prior to 1998, vested in the Public Service Commission.[22] The Public Service Commission had the power to make recommendations on all aspects of human resource development, including terms and conditions of employment for both national departments and provincial administrations. As management authority was centralised in the Public Service Commission, collective bargaining necessarily took place at central level.  Consequently the Public Service Labour Relations Act created the Central Chamber in which terms and conditions of employment were determined by collective bargaining for the public service, this being those employees employed in terms of the Public Service Act, who are employed in both the national departments and the provincial administrations.[23]

 

In the education sector, with regard to educators or teachers employed in the provincial administrations, the Minister of Education was, and still is, in terms of the Employment of Educators Act, vested with the power to determine terms and conditions of employment and other aspects of human resource development for teachers.[24] The employees employed in the Departments of Education, at both national level and in the provincial administrations, who are not teachers, are employed in terms of the Public Service Act.  The Education Labour Relations Act therefore configured the collective bargaining structures in accordance with this authority.  The Act created a central Education Labour Relations Bargaining Council (ELRC) [25] where terms and conditions of employment for teachers were centrally negotiated.  In reality, however, while the Minister for Education is technically vested with the power to determine terms and conditions of employment for teachers, the Public Service Commission made recommendations in relation to terms and conditions of employment as a whole for the public sector.  Consequently managerial mandates in education were the same as those mandates in the public service. Collective bargaining in the ELRC mirrored collective bargaining in the Central Chamber of the public service.

 

In the police sector, with regard to police men and women in the national department of Safety and Security (there are no police employed in the provincial administrations), the Minister of Safety and Security, in terms of the South African Police Services Act, and Regulations made by the Minister in terms of that Act, was, and still is, vested with the power to determine terms and conditions of employment and other aspects of human resource development for police.[26] The employees employed in administrative or management positions in the Department of Safety and Security, excluding the employees employed in the Safety and Security Secretariat, are employed in terms of the Public Service Act.  Once again the South African Police Labour Relations Regulations configured the collective bargaining structures in accordance with this authority. The Regulations created a central National Negotiating Forum (NNF)[27] where terms and conditions of employment for police were centrally negotiated.  In reality, however, while the Minister for Safety and Security is technically vested with the power to determine terms and conditions of employment for police, the Public Service Commission made recommendations in relation to terms and conditions of employment as a whole. Consequently managerial mandates in the police services were the same as those mandates in the public service.  Collective bargaining in the NNF therefore mirrored collective bargaining in the Central Chamber of the public service.

 

The Public Service Labour Relations Act also made provision for the creation of provincial and departmental chambers.[28] The departmental and provincial chambers were made up of representatives of the employer, this being the departmental and provincial employers, and trade unions representing employees in the different departments and provinces.  However as managerial authority in the public service was centralised these chambers were vested with very little power in relation to the issues that could be bargained over.  The chambers could not, for instance, bargain over terms and conditions of employment, as this was a centrally determined issue. They, therefore, existed, in the better cases, more like workplace forums in that the issues that they bargained over related to the implementation of the agreements entered into in the Central Chamber, for instance the organisation of work and which employees should be promoted.  In most cases the chambers fell into disrepute, as trade unions representing employees felt they had little power to change things at this level and forwarded all their concerns and demands to the Central Chamber.  Most chambers effectively did not operate.

 

MANAGEMENT OF THE PUBLIC SECTOR – SOME INTERNATIONAL TRENDS

In the 1970’s and the 1980’s the public sectors in the developed world were swept up in the general global economic restructuring.  In this restructuring the role of the state, especially in relation to the provision of services, for instance welfare, health and education provoked heated debates and analysis.  Neo liberal literature in the 80’s focused on issues such as the “overloaded state”, “fiscal crisis” and “crowding out” by the public service of the wealth generating private sector.[29]  Questions raised included whether or not the state should be the foremost service provider, whether in fact it had the capacity to provide these services and whether it should direct others towards providing the services as a more appropriate method of organising the public sector.  In addition to this the economies of the developed world faced fiscal crisis’ which compelled them to cut back on the expenditure of the state.  The obvious place to cut back on was what appeared to be an unproductive public sector.

 

The resultant restructuring of the state internationally has, generally taken two forms, this being:

·         the redefinition of what government should legitimately be providing in the form of services; and

·         the restructuring of the way the public service is managed, in that a more entrepreneurial private sector style of management has been introduced.

 

In the developed nations, the strengthening of the public service managers’ right to manage has been developed by radically devolving powers to managers at local level and coupling public service managerial contracts of employment with individual performance incentives. Public service managers no longer have their management practices prescribed to them by a central authority, they are now being required to develop management styles and practices in accordance with the particular markets that their department is required to service.  The post-bureaucratic state emerged. [30]

 

This transformation of the public sector started evolving in South Africa in 1994, following the first elections of the democratic government. After the elections the state faced the overwhelming task of delivering services to forty million people, instead of eight million as had been done by the apartheid government.  The state was also faced with a fiscal crisis.  The deficit was large, taking up valuable state revenue and the public sector now had to pay for the delivery of services to the whole population, where the base for service delivery was frequently non-existent. A radical restructuring of the public sector was necessary.  The numerous policy documents developed by the state on public sector transformation have emphasised the need for the public service to radically decentralise, create autonomous managers who have the power to manage their own departments and to, where possible, divest themselves of the actual provision of services by privatising services.[31]

 

These policy proposals draw directly from the models that have been implemented elsewhere in the developed world.[32] The policy proposals on the transformation of managerial authority in the public service are, however, being implemented slowly. 

For instance the changes in the public service law regulating managerial power and authority has been amended, but does not entirely regulate the public service in accordance with the policy proposals.

 

 

 

AMENDMENTS TO PUBLIC SECTOR LEGISLATION AFTER 1994

In 1996 the Public Service Amendment Laws[33] reconfigured managerial power in the public service in an attempt to transform the public service. The amendments accord the Minister for Public Service and Administration all those powers that were previously vested in the Public Service Commission.[34]  The Ministers, at national level, and the Members of the Executive Council’s (MEC’s), at provincial level, were also accorded original powers with regard to the organisation of their departments, employment and dismissal of employees.[35] 

 

In a further amendment to the Public Service Act, the Public Service Amendment Act the provincial administrations, which have the status of a national department in terms of the act, are divided into provincial departments, mirroring the structures of the national departments.[36]  This means that where a provincial administration has the legislative competence in terms of the Constitution of the Republic of South Africa,[37] for instance in education and health services, the MEC’s in these newly created provincial departments will have the managerial authority to organise their departments, employ and dismiss employees.  Autonomous departments within provincial administrations have therefore been created. 

 

In addition, the rigid provision regulating the management of discipline of public service employees have been repealed and replaced by a collective agreement.[38]  The collective agreement ensures that discipline will be managed in a flexible way and removes the need for the restrictive legislative provisions that previously existed.[39]

 

On 1 July 1999 the new Public Service Regulations[40] came into effect.  The regulations amplify upon the powers conferred on executing authorities in terms of the legislative amendments to the Public Service Act.  The regulations repeal the lengthy provisions on human resources management contained in the Public Service Staff Code. Those areas of the Public Service Staff Code that deal with terms and conditions of employment were incorporated into a collective agreement of the PSCBC.[41]  The new regulations and the collective agreement emphasis the decentralisation of managerial powers.  However, in essence they summarise the core provisions of the old Public Service Staff Code without changing or amending the substance of these provisions. The new Public Service Regulations and the collective agreement on Remunerative Allowances and Benefits although drafted in plain English are ambiguous and may lead to legal challenges.  It is unclear whether the old Staff Code may be relied upon if the regulations or the agreement is silent on an issue.  The fact that both documents are essentially a summarised version of the old Public Service Staff Code suggests that this may happen.  Furthermore, the regulations are not clear as to what powers the Minister of Public Service and Administration will retain, in that there are still many prescriptive rules established at national level and which bind the national and provincial departments.[42]

 

Management authority in the public service from 1 July 1999 is therefore no longer as centrally organised as it was under the previous legislative framework.  However, managerial power has only been decentralised in relation to human resource management, and even these powers are limited.[43]  Managers do not, in terms of the amendment laws, have the power to determine pay and other conditions of service for their employees in their departments or provincial administrations. The power of authority to determine pay and other conditions of service is vested in the Minister for Public Service and Administration, the Minister for Education and the Minister for Safety and Security.  Collective bargaining is conducted at national level, and all pay scales are determined in a central collective bargaining forum – the Public Service Co-Ordinating Bargaining Council (the PSCBC).

 

THE LABOUR RELATIONS ACT

On 11 November 1996, in line with the government’s policy of harmonisation of the country’s labour laws, the Labour Relations Act,[44] (the LRA) came into effect.  The LRA purported to repeal the Public Service Labour Relations Act, the Educators Labour Relations Act and the South African Police Services Labour Relations Regulations.  However, in real terms it maintained the core provisions of these laws by retaining them in the transitional arrangements.[45]  For the first time, a single law regulated labour relations in both the public and the private spheres.

 

In the private sector, the labour laws in South Africa have encouraged the development of industry wide collective bargaining. This process was, prior to 1995, in terms of the Labour Relations Act of 1956, regulated by the industrial council system.  The LRA retained this system.  It replaced the industrial councils with bargaining councils.  The industrial council/bargaining council system encouraged collective bargaining at industry level.  Employers, and employers’ organisations and trade unions that were sufficiently represented in an industry would bargain on behalf of those employees and employers in the industry as whole.  This was achieved by employers and trade unions entering into agreements which could be extended to non-party employers and employees in the industry. The Supreme Court has described this system in the following terms:

“The so called industrial agreement is not really an agreement or contract, but a form of permitted domestic legislation by which the will of a statutory body is by a majority vote imposed on all the members of a designated group or employers and employees, irrespective of any actual concurrence by the individuals affected and notwithstanding any positive disapproval by any such individual”[46]

 

Industry wide bargaining has a number of positive features for both employers and trade unions.  For employers the attraction of industry wide bargaining is that agreements cover the whole of that specific industrial market, in that the wage costs of all businesses who compete in the same market are taken care of.  Businesses are therefore easily able to factor the cost of labour into the selling costs of their products. An additional advantage, particularly for smaller employers, is that industry wide agreements tend to reduce the power and influence of individual trade unions in the workplace.  Wages are standardised as are job descriptions making it possible to standardise training and retain skilled employees. Trade unions have always supported industrial bargaining in that it establishes clear rates for specific jobs and protects employees who are weakly organised.[47]  It also assists the trade unions in that they only need to commit resources to bargaining in one forum and not in a number of enterprises that are geographically spread out.

 

The LRA, in addition to its other features, created collective bargaining structures for the public sector.  While the drafters of the LRA, canvassed the support and views of trade unions and business in the private sector, they did little to evaluate and analyse the structures of management in the public sector.[48]  Consequently the collective bargaining structures are located where managerial authority is vested in the public sector.  A central bargaining council was created, the Public Service Co-ordinating Council (the PSCBC) [49]as most issues are determined centrally.  At the same time the collective bargaining structures that had been created for educators (the ELRC), for police (the National Negotiating Forum (the NNF), the national departments and the provincial administrations continued to exist.[50]

 

In line with the principles set out in the LRA regarding sectors, the LRA makes provision for already existing sectors, for educators and police personnel and establishes a mechanism for the creation of other sectors in the public service.[51]

 

The PSCBC is designed to cover all employees in the whole of the public sphere.  It is intended to cover all public service employees,[52] educators[53] and police personnel[54].   The PSCBC may perform all the functions of a bargaining council in respect of those matters that:

·         are regulated by uniform rules, norms and standards that apply across the public service as a whole;

·         apply to terms and conditions of employment in two or more sectors; and

·         which are assigned to the state as employer in respect of the public service, which are not assigned to the state as employer in any other sector.[55]

 

The two sectoral bargaining councils retained by the LRA, namely the ELRC and the NNF bargain on those issues which the Minister of Safety and Security and the Minister for Education have the authority to determine, if these issues do not fall within the jurisdiction of the PSCBC.  However, the LRA created more confusion than certainty.  It defines the jurisdiction of the PSCBC by relying upon the definition of “public service” as set out in the Public Service Act.[56]  This means that the jurisdiction of the PSCBC is circumscribed to the public service only and does not cover educators or police personnel.  The state as employer and the trade unions who are parties to the PSCBC have, however, interpreted section 36 of the LRA broadly so as to broaden the definition of “sector” to include educators and police personnel.  This was probably the intention of the LRA, although it is somewhat ambiguously drafted.

 

In terms of the LRA, the NNF and the ELRC are established as fully-fledged sectoral bargaining councils.[57] The LRA, while subscribing to a sectoral or industrial approach in relation to collective bargaining in the private sector, does not do so in the public sector. It merely replicates what existed prior to its enactment by entrenching the Education Labour Relations Act and the South African Police Services Labour Relations Regulations which established bargaining councils along occupational lines, rather than on industrial or sectoral lines.

 

The LRA also entrenches the departmental and provincial bargaining chambers, as were previously defined in the Public Service Labour Relations Act, in that these chambers are deemed to be sectoral bargaining councils in their own right.[58]  The LRA gives the provincial bargaining chambers and the national departmental bargaining chambers a status that they never previously enjoyed.[59]

 

In real terms the departmental and the provincial administration bargaining chambers are not sectoral councils as, many straddle different sectors.  For instance a provincial bargaining council covers several sectors, such as health, welfare, transport or agriculture as all these employees employed by the provincial administration, all be it in different provincial departments.[60]  There is little rationale for this.  Similarly, where a national department and provincial administrations employ employees in the same industry with the same terms and conditions of employment to perform similar work, like the Department of Health, these employees are not covered by the same bargaining council.  Instead in terms of the LRA they fall into 10 different bargaining councils – nine provincial bargaining councils and one departmental council. 

 

The LRA effectively creates 36 bargaining councils in the public sector.  The number of employees falling into these bargaining councils range in size from less than a hundred employees, to in some instances over 30 000 employees.

The Safety and Security Sectoral Bargaining Council has been designated by the PSCBC to include those employees previously covered by the Department of Safety and Security Departmental Bargaining Council and the National Negotiating Forum.  This decision was in accordance with resolutions taken in both the Departmental Bargaining Council and the NNF to amalgamate to form one bargaining council for the safety and security industry.   The scope of the Safety and Security Sectoral Bargaining Council is the employer and employees, employed in terms of the South African Police Services Act (police) and the civilian employees in the Safety and Security Department, employed in terms of the Public Service Act.

 

The scope of the General Public Service Sectoral Bargaining Council is all employees who are not covered by the Public Health and Welfare Sectoral Bargaining Council, the ELRC or the Safety and Security Sectoral Bargaining Council. It is likely that further sectors may be developed out of this sector.[61]

 

COLLECTIVE BARGAINING AND THE BUDGET

The current budgeting process in South Africa is determined in accordance with those provisions of the Constitution that deal with money bills.[62]  In terms of the Constitution all legislation that deals with money must be passed by Parliament, this being the National Assembly and the National Council of Provinces (“the NCOP). [63]  The budget is therefore determined nationally.

 

The budget process may be described as follows: The Minister of Finance, being a member of the national executive, or Cabinet, [64] prepares the national budget.  The national budget is made up of allocations to national departments and provincial administrations.  The national departments receive funds for the delivery of the particular services and business specific to that department.  Each accounting officer, the Head of Department,[65] for each national department must substantiate the needs of his or her department.  Provincial administrations are allocated a lump sum, or a provincial allocation, which must be divided, in accordance with their own departmental needs, among their own provincial departments in their own budgeting process. [66]

 

In the current system, however, while Parliament must ultimately pass the Budget Act, there is very little room for legislative interaction in the budgeting process. The reason for this is that when the Minister of Finance tables the budget this is the first time that parliament sees it.  In fact Parliament’s powers to engage with and change the budget are largely undefined. The process thereafter unfolds over a period of three to four months.  In this period the Portfolio Committee on Finance[67] and the Portfolio Committees for the national departments interrogate the allocations.  However, they do not have the power to amend the actual budget.  Rather the Constitution makes provision for parliament to amend money bills [68] by activating a separate act of Parliament.  To date such an act has not been passed.  This effectively renders the budget process largely symbolic as the budget is currently determined wholly by the executive with Parliament having little or no say in its contents.[69]

 

Wage increments for public service employees are apportioned to the Minister for Public Service and Administration in the budget vote.  The Improvement in Conditions of Service vote (ICOS) is a global amount that equals an estimate of the value of the wage increments in the public service, this being for all employees employed in national departments and provincial administrations.  Wage increments of teachers and police are similarly apportioned to the Ministers of Education and Safety and Security respectively. The budget vote for the improvement of terms and conditions of service form part of these departments’ respective budget allocations.

 

The Budget Vote, or the Budget Act is enacted at the beginning of the fiscal year, this being 1 April.  Salary increases are generally effected on 1 July of each year. Thus bargaining on wages and other conditions of service occurs in the same months that the budget is being interrogated in Parliament, but after the Minister of Finance has formulated the act.  The state, as employer effectively uses the Improvement in Conditions of Service vote as their mandate in the negotiations with the trade unions at the PSCBC. Thus the wage increments for public sector [70] employees are necessarily determined before collective bargaining is concluded.  The trade unions organising in the public sector argue that this makes it difficult to bargain effectively in the PSCBC[71] as the state, as employer, has in real terms unilaterally determined the increments payable in the budget.  Any further increases other than those already established in the budget must either be appropriated form the departmental and provincial votes of funds or by passing budget adjustment budgets in the form of allocations form the Treasury which are drawn from the state’s contingency reserves. It is this very issue that underpins the wage dispute in the PSCBC for the 1999/2000-wage agreement.

 

The trade unions in the PSCBC argue that they should be able to impact on the budgetary allocation before the budget is finalised.  If not, they argue collective bargaining is only over the distribution of the funds available not over the amount of funds available.  The counter argument is that public sector trade unions have been criticised for being able to have two bites at the cherry: they are represented in Parliament, as South African citizens and able to influence the budget vote through their elected representatives, while at the same time have collective bargaining rights which influence the parliamentary process.  This criticism ignores current international trends, which try to synchronize the budget vote in the legislature with the conclusion of collective bargaining.[72]

 

RECONCILING THE DEVOLUTION OF MANAGERIAL POWER IN THE PUBLIC SERVICE WITH THE PRINCIPLE OF SECTORAL BARGAINING

What now has to be reconciled is the restructuring of the law regulating the power of managers in the public service with the role of the state as employer.   Simultaneously one needs to reconcile how collective bargaining should be structured in the public sector.

 

The questions that need to be addressed are twofold, namely:

·         should the way in which collective bargaining is managed be determined by the different laws that establish management authority in the public sector, this being to decentralise collective bargaining to the executing authorities in national and provincial departments; and/or

·         should collective bargaining be determined in accordance with those principles set out in the LRA generally, namely the organisation of labour relations in accordance with the establishment of sectors which are organised along industrial lines?

 

The latter question poses the problem as to whether the model for bargaining councils as set out in the LRA[73] can and should be transposed onto the public sector.  In the case of the public sector there is only one employer, the state is the employer.  While the state may be constitutionally divided into different spheres, namely the national sphere of government and the provincial sphere of government, it is nevertheless one employer in that funds for the payment of wages are determined in a centrally determined budget vote.

 

The decentralisation of managerial power in the developed nations coincided with the decentralisation of collective bargaining.  Wage scales were now determined predominately at local level with departments competing for a larger slice of the budget for pay, while simultaneously, implementing privatisation programs and downsizing to keep their wage budgets at a minimum.[74]

 

The South African public service has not, as yet, decentralised pay and other conditions of service.  But, it appears from proposals put forward by the Department of Public Service and Administration that this is a distinct possibility.[75]   Given the present structure of the public service total decentralisation of power in relation to the determination of wages and terms and conditions of employment is, in the specific South African context, not necessarily the most appropriate way to go. The consequences of a total decentralisaton of collective bargaining, in a labour market where they are vast differences in skill, geographical area and development may increase existing provincial disparities. This could result in the poorer provincial administrations being deprived of skilled employees, or having to pay extra for these employees.  In addition to this a complete decentralisation of collective bargaining will reduce accountability of the state to pay equitable remuneration to its employees and to deliver on its social and political responsibilities.  The focus may shift from delivering services that are necessary to effect social transformation, to delivery only cost effective services, thus compromising service delivery. As a result, internationally, even in those countries where the state has radically decentralised collective bargaining, a framework is set by the state in relation to the substantive content of collective agreements that may be entered into.[76]  

 

CONCLUSION

The attraction of sectoral collective bargaining has other positive spin-offs for the state as employer. These include the ability to control the budgets in a particular sector, consequently those sector which are poorly staffed or are unable to deliver services as a result of historical disadvantages will be able to negotiate agreements which may correct and reflect their specific needs.  At the same time the inflexible system of control over wages and other terms and conditions of employment as presently exists, will be obviated. Sectoralisation, for the state as employer, represents a logical middle ground between total decentralisation of managerial power and complete rigid central control.

 

The trade unions will also benefit from sector based collective bargaining in that their already scarce resources can now be retrained and reallocated sectorally instead of across all departments and provincial departments. Jobs and the value of these jobs will no longer be arbitrarily determined but will be specifically related to the work and services needed in a particular sector.  It will make collective bargaining easier for trade unions as they will not be stretched over 36 bargaining councils but can consolidate their resources into the four sectors.

 

The options open to both the state, as employer, and the trade unions that organise employees in the public sector are varied. In a time of transformation and a time where both the state and trade unions must focus on the creation of a public sector that is both developmental, in relation to its employees, accountable to the people whom it services and able to provide services to the citizens of South Africa, creating a workable and effective collective bargaining system is imperative.

 

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