Reimagining employee representation in the context of collective bargaining under the Labour Relations Act 66 of 1995: The imperative of substantive equality and decent work

Abstract

Despite what is often said to be progressive constitutional and labour legislation in South Africa, inequality between employees who are affiliated with trade unions (especially registered and representative unions) and those who are not remains. While trade union density (particularly in the private sector) and collective bargaining coverage have declined in South Africa and many countries worldwide, this form of inequality continues to be passed over by the Labour Relations Act 66 of 1995. This article considers this form of inequality, with specific reference to the LRA’s approach to employees’ representation in the context of collective bargaining. If the imperatives of decent work and substantive equality are to be achieved, reform is desperately needed. In support of these arguments and in search of an apposite approach to reform premised on equality, the meaning of substantive equality in South Africa is considered. While dignity is found to be paramount in South African equality jurisprudence and judicial decisions, a more holistic and encompassing approach to substantive equality than dignity alone is needed to respond to the exigencies of employee representation in the context of collective bargaining. Catherine Albertyn and Sandra Fredman’s multidimensional framework for substantive equality is proposed as the most fitting model for this context, and it is applied to bargaining representation under the Labour Relations Act. Broad recommendations for change are then suggested. In conclusion, it is contended that the elements of substantive equality as outlined by Albertyn and Fredman provide a useful framework from which to recast and align the Act’s model of employee bargaining representation with both the pillars of decent work and its transformative role.