Critical evaluation of the Constitutional duty to engage in collective bargaining

Abstract

The law regarding collective bargaining in South Africa has been interpreted in two ways; the Labour Relations Act (LRA) refers to a duty to bargain collectively, while the Constitution refers to a right to engage in collective bargaining. These two interpretations have been subjected to judicial criticism (SANDU v Minister of Defence 2003 3 SA 239 (T) I; SANDU v Minister of Defence 2004 4 SA 10 (T) II; and Minister of Defence v SANDU 2007 1 SA 422 (SCA) III (hereafter "SANDU I, II and III")). These cases are relevant in terms of the courts' interpretation of collective bargaining as a duty or freedom. They are currently the main cases dealing with this issue in South Africa. This has created doubt as to whether the distinction provides an acceptable basis to use the terms interchangeably, both by the courts as well as those involved in collective bargaining. The purpose of this paper is firstly to sketch the landscape of South Africa's collective bargaining jurisprudence, touching on the current legislation and secondly to give an overview of why collective bargaining is a necessary tool to balance power in the workplace. I shall examine the discourse as to whether the term "collective bargaining" creates a duty to participate (which can mean compelled) in collective bargaining on the part of the employer,as opposed to a right to engage in collective bargaining (which is voluntary). Lastly, the author will attempt to show the thread of how the courts have answered the question in case law (SANDU I, II and III supra).