Deunionisation of defence members: Is it a breach of international law?

Authored by: Piet Shai

Published: 2009/11/04

Introduction

It is common cause that since 20 August 1999, the members of the South African Defence Force enjoyed the Freedom of Association in line with the Right of Freedom of Association and Protection of Right to organize a Convention. Until recently, there has been no question on the wisdom of granting the members of the Defence Force the Right to Freedom of Association and Protection of the Right to Organize.

The events of the past weeks have stirred a raging debate on whether members of South African Defence should continue to enjoy these Rights. The wisdom of granting them rights in the form they are at the moment is called into question.

Briefly, the members of the South African Defence engaged in unprotected strike and participated in an illegal march which resulted in storming of the “hallowed” premises of the Union Buildings in Pretoria, the seat of government, and damage to property. It is also alleged that some of the members of the Defence Force were armed, a situation which, if true, could have deteriorated in a shoot out between the two forces. The purpose of this exposition is to analyze and determine whether the deunionisation of the Defence Force members would render the country in breach of international law or not and also whether such an act would amount to unconstitutionality.

International Labour Organization Conventions

South Africa is a member of the International Labour Organization. It has ratified some Conventions and not others. Some Conventions, even if not ratified, the South African government does comply with some, for example Convention 158 on termination of employment. For the purposes of our discussion, Convention 87 on the Freedom of Association and Protection of the Right to organize and Convention 98 (1948) on the Right to Organize and Collective Bargaining (1949) are more relevant.

Convention 87, Freedom of Association and Protection of the Right to Organize provides as follows:

•

Article 2 provides that workers and employers, without distinctions whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization.

•

Item 2 of article 3 provides that public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.

•

Article 8 provides that; (1) In exercising the rights provided for in this Convention workers and employers and their respective organization, like persons or organized collectivities, shall respect the law of the land. (2) The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.

•

Article 9 presents an exception to above principles. Item 1 of this article provides that the extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.

•

This means that the Convention recognizes the sensitivities around workers employed within the security establishments of countries and accepts that different arrangements may be applied. It is therefore left to the member states to regulate this sector to suite their requirements or circumstances.

Convention 98, the Right to Organize and Collective Bargaining 1949 provides for Protection of workers as follows:

•

Article 1 provides that workers shall enjoy adequate protection against any Acts of anti-union discrimination in employment for example, subject their conditions to not joining or relinquishing union membership, dismissal or prejudice leaned on union membership. Employer’s Organizations are also accorded similar rights.

•

Article 5 contains a similar provision as Article 9 of the Convention 87. Article 5 of Convention 98 provides also that the extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations. This article also recognizes the need for countries to make their own arrangements according to their circumstances.

•

Although member states are given the latitude to decide on own arrangements with regard to workers in security establishments, the Committee of Experts will usually express itself on the extend of those arrangements. For example, the Committee of Experts said the following with regard to Police and Security Forces: “The only exceptions authorized by Convention No 87 are the members of the Police and armed forces (Article 9), such exceptions being justified on the basis of their responsibility for external and internal security of the state. Most countries deny their armed forces the right to organize, although in some cases they may have the right to group together, with or without certain restrictions to defend their occupational interests. As regard members of the police and security forces, it is frequently the case that countries which deny this right to members of the armed forces include the police under the same heading and generally apply the same legal provisions in both cases. Sometimes, members of the police are restricted to the right to establish and join their own organizations, although in some countries they have the same right to organize as other categories of public servants or are entitled to do so under separate legislation. Although article 9 of Convention No 87 is quite explicit, it is not always easy in practice to determine whether workers belong to the military or to the police or are simply civilians working in military institutions or in the service of the army and who should, as such, have the right to form trade union. In the view of the Committee, since Article 9 of the Convention provides only exceptions to the general principle, workers should be considered as civilians in the case of doubt.”

•

From the foregoing, it is clear that the Committee of Experts accepts that member states may come up with their own arrangements which may vary from country to country. It further gives guidance with regard to non-military personnel working in military establishments, that they should be regarded as civilians hence not covered by the exception.

Labour Relations Act

Section 2 of the Labour Relations Act 66 of 1995 excludes members of the following institutions; National Defence Force, National Intelligence Agency; South African Secret Services; The South African National Academy of Intelligence and Comsec, probably in favour of regulations by the Acts governing them.

Defence Act 44 of 1957

As mentioned above, Convention No 87 on Freedom of Association and Protection of the Right Organize, 1948, and Convention No 98 on the Right to Organize and Collective Bargaining Convention, 1949, make exception for countries to make their own regulation relating to members of the Defence Force.

Section 87(1)(r B) of the Defence Act 44 of 1957 gives the Minister the power to issue regulations to regulate labour relations within the Defence Force. Indeed the Minister introduced section 126B to the Defence Act to regulate the Defence Force members’s Labour Rights.

Section 126B provided that:

“(1) A member of the Permanent Force shall not be or become a member of any trade union as defined in section 1 of the Labour Relations Act, 1956 (Act 28 of 1956): Provided that this provision shall not preclude any member of such Force from being or becoming a member of any professional or vocational institute, society, association or like body approved by the Minister.”

Section 126B(2) prohibits any member of the Force who is subject to the Military Disciplinary Code to take part in a strike or performing acts of public protest or participate in any strike or act of public protest or conspire with or incite or encourage, instigate or command any other person to strike or to perform such an act into participating in a strike or such an act.

Subsection (3) of the same Section declares the above acts criminal offences. This prohibition therefore covers, Permanent Force, member of the citizen force, commandos and the Reserve while rendering the services in terms of the Defence Force Act, or when they are liable to do so but failing to do so.

When one examines the Convention No 87 and 98 and the restrictions brought in by section 126B, it becomes apparent that the said restriction does not render the country in breach of international law. It is also my opinion that taking away union rights, as it is suggested, will not render the country in breach of international law, subject of cause to the guidelines given by the Committee of Experts on civilians employed in Military Establishment.

However, the fact that the deunionisation of the members of the Defence would not render the country in breach of international law would not necessarily make the action lawful vis-a-vis the Constitution of South Africa. This then brings us to the Constitution of South Africa, 1996.

The Constitution of South Africa, 1996

As indicted above, section 126B of the Defence Force Act prohibits members of the Defence Force from taking part in the acts of public protest and becoming members of trade unions. These prohibitions came up for consideration in the case of South African National Defence Force v Minister of Defence.

In so far as section 126B(2) is concerned, the Court cited section 16 of the Constitution which provides as follows:

“(1) everyone has a right to freedom of expression, which includes:

(a)

freedom of the press and other media

(b)

freedom to receive or impart information or ideas

(c)

freedom of artistic creativity, and

(d)

academic freedom and freedom of scientific research.

(2) The right in subsection (1) does not extend to:-

(a)

propaganda for war;

(b)

incitement of imminent violence;

(c)

advocacy of hatred that is based on race, ethnicity, gender, or religion, and that constitutes incitement to cause harm”

The court expressed a view that the freedom of expression is at the heart of democracy and the “constitution recognizes that individuals in our society need to be able to hear, form and express opinion and views freely on a wide range of matters”. Having said that, the Court decided that the relevant section 126B(2) read with section 126B(4) clearly infringes the freedom of expression of the members of the Defence Force who are bound by it. The court now had to examine whether the infringement or limitation was justifiable as contemplated by section 36 of the Constitution. The relevant subsection provides as follows:

“36(1) the right in the Bill of Rights may be limited only in terms of law of general application to the extend that the limitation is reasonable and suitable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors; including:-

(a)

the nature of the right

(b)

the importance of the purpose of the limitation

(c)

the nature and the extent of the limitation

(d)

the relation between the limitation and its purpose and

(e)

less restrictive means to achieve the purpose.”

After examining this section, the Court concluded that section 126B(2) read with section 126B(4) contains a sweeping prohibition, whose consequence is a grave incursion on to fundamental rights of soldiers and hence cannot be justified by reference to the need to ensure that uniformed Military personnel do not engage in politically partisan conduct. The provisions were found to be inconsistent with the Constitution.

In so far as prohibition contained in section 126B(1), prohibition of members of the Defence Force to become members of trade unions, the Court after examining the ILO convention No 87 and 98 concluded that members of the Permanent Force constitute workers for the purposes of section 23(2) of the Constitution and that the provisions of section 126B(1) of the Defence Act infringe their Right to form and join Trade Unions. Section 23(2) of the constitution provides that every worker has a right to:

(a)

to form and join a trade union;

(b)

to participate in the activities of and programmes of a trade union; and

(c)

to strike.

Having said that the Court had to determine the justifiability of the limitation in the light of section 36 and indeed it was the Court’s conclusion that the limitation is not justifiable in terms of the above section and said the following:

“I conclude, therefore that the total ban on trade unions in the Defence Force clearly goes beyond what is reasonable and justifiable to achieve the legitimate state objective of a disciplined Military Force. Such a ban can accordingly not be justified under section 36 and section 126B(1) is accordingly inconsistent with the Constitution and invalid”

The above provisions where suspended for 3 months to enable the Minister to come up with regulations correcting the above situation. Indeed the Minister came up with Regulation 998.

The regulations were subject to several challenges. Regulation 4(1) now gives the members of the Defence Force the right to exercise their labour rights as contemplated by section 23 of the Constitution-see the preceding paragraph. However, regulations 6 prohibits them from participating in a strike, secondary strike or incite other members to strike, or support or to participate in a secondary strike. This provision I must add would not render the country in breach of International Law for reasons stated earlier.

Regulations 43(1)(e) provides for the registration of unions that have a threshold of 5000 members at the time of registration. The regulations provide for the constitution of Military Bargaining Council (MBC) and every union which has membership of 15 000 members may apply for admission to the Bargaining Council. The objective of the MBC is captured under section 191 of the Constitution of the (MBC) as to negotiate and bargain collectively to reach agreement on matters of mutual interest between the employer and the members represented by admitted Military Trade Union (MTU) in Council, and to prevent and resolve disputes between the employer and such Military Trade Union by means of negotiation, consultation or otherwise, including, but not limited to, the utilization of procedures for dealing with disputes.

From the foregoing, it is clear that anyone who attempts to deunionise the members of the Defence Force has a mountain to climb. The Constitution as it stands is insurmountable. The only way to deunionise the members of the Defence Force is to change the Constitution. To change the Constitution a two thirds majority is needed in parliament. The ruling party, the African National Congress, does not possess two third majority in parliament. However, looking at the reaction of the opposition parties to the actions of the members of the Defence Force it appears that the two third majorities may be achieved.

Is it desirable to deunionise the members of the defence force?

This matter is a very sensitive one. Whether there is wisdom in deunionisation of members of the Defence Force is a debatable one. COSATU has already demonstrated its opposition to the move. Unless they are convinced otherwise, it is clear that it is going to be a contested terrain.

As South Africans, we pride ourselves as a “dialoguing” nation. It is the critical time for us to demonstrate that fact. For that reason, although the matter is urgent we need time to apply our minds to it. It is even more so because these are rights that have been enjoyed for sometime. We therefore need to tread carefully in taking such rights away.

In South African National Defence Union v Minister of Defence

, the Court commented on a research done by the respondent party and said the following:

“Annexed to one of the affidavits filed by the respondent was a research memorandum which explored the position of trade unions and the armed forces in a variety of democratic countries.”

In some of countries considered in the memorandum, such as England, the United States of America and France, no trade unions at all are permitted in the Defence Force. In none of those countries, however, is there an express constitutional right to form and join trade unions. On the other hand, in other countries, the Netherlands, Germany and Sweden, for example trade unions are permitted. In those countries where trade unions are permitted, they are often not afforded rights to negotiate on behalf of these members, but are only afforded rights of consultation and representation. In my view, this research, like the ILO conventions, suggest that a range of different responses to trade unions in the armed forces exist: See also General Survey on the Freedom of Association and Protection of the Right to Organize Convention and Right to Organise and Collective Bargaining Convention.

I am of the view that since members of Defence Force had previously enjoyed this right; it should not be taken away absolutely. Negotiations should be entered into with a view to limit the rights to the satisfaction of the parties involved. Taking away vested rights absolutely may send a wrong message about our democracy. From the preceding paragraph, it is clear that there are many options that can be looked into to ensure that the Defence Force members enjoy the right to belong to a trade union and on the other hand to ensure discipline of the Defence Force. It also calls for trade unions to ensure that their members act responsibly and display maturity as to instill confidence in the nation, that they are capable of enjoying this right and also to maintain high standard of discipline and most importantly, that they can be trusted with the security of the country regardless. The unions must therefore give assurance to the nation that the drama that played itself at the Union Buildings will not repeat itself ever in the country. The alternative dispute resolution mechanism that are envisaged must be real alternatives such that the members do not feel enslaved by them.

Conclusion

It is clear that the deunionisation of the members of the Defence Force would not necessarily lead to breach of International Law. As it stands it will lead to unconstitutionality. The only remedy available, it appears, is to change the Constitution of the Country. However, the best bet is to limit the right and educate the members of their rights, their limitations and their obligations to the Public of South Africa.

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