Die verpligting om kollektief te beding in die sa nasionale weermag

Abstract

Members of the South African National Defence Force (the “SANDF”) are excluded from the application of the Labour Relations Act 66 of 1995. They were also prohibited by the Defence Act 44 of 1957, which was in force until 30 April 2003, to form or join any trade unions. However, they were regarded as workers as contemplated by section 23(2) of the Constitution of the RSA, 1996 (the “Constitution”). As such the said prohibition was declared unconstitutional by the Constitutional Court. Current defence force legislation allows members of the SANDF to form and join military trade unions. Registered military trade unions have the right to organise. A registered military trade union that has reached the prescribed threshold for admission to the Military Bargaining Council, obtains collective bargaining rights. These so-called collective bargaining rights of military trade unions have posed the question if section 23(5) of the Constitution does not impose a correlative duty on the SANDF as the employer to bargain collectively with the military trade unions. This was subsequently the subject of five court cases. This dissertation critically considers this research question. The legal position of the International Labour Organisation (the “ILO”) is examined with specific reference to the conventions relating to the freedom of association, the right to organise and collective bargaining. This research shows that the said ILO conventions do not exclude armed forces from its application. However, it is left for countries to determine its applicability. This is confirmed by the different approaches of member states in respect of the recognition of military unions. The research further illustrates that the ILO adopts a voluntary approach towards collective bargaining. This dissertation then examines the relevant defence force legislation providing for the right to freedom of association, the right to organise and collective bargaining. It is emphasised that the constitution of the Military Bargaining Council places a duty on the SANDF to bargain collectively with recognised military trade unions. This dissertation also considers the Labour Relations Act 66 of 1995, the relevant provisions of the Constitution and opinions of authoritative writers and concludes that there is no enforceable duty on the employer to bargain collectively with the trade unions. This is also confirmed by the Supreme Court of Appeal. However, for technical reasons the Constitutional Court did not confirm or reject the position of the Supreme Court of Appeal in this regard. This would have brought finality on this question. With reference to the position in the military, this dissertation shows that the SANDF cannot unilaterally withdraw from negotiations in the Military Bargaining Council and may not unilaterally impose pre-conditions for participating in the Military Bargaining Council. Furthermore, the SANDF may not unilaterally implement any matters relating to conditions of service as contemplated by Regulation 36 of the General Regulations of the SANDF, before exhausting the dispute mechanisms of the Military Bargaining Council. This is indicative of a duty to bargain on these matters before unilateral implementation. In conclusion this dissertation states that the current developments do not make collective bargaining in the Department of Defence possible.