Marks, M. & Ali N. (1995). Our Boys in Blue can Toyi-Toyi Too! Labour relations in the South African Police as part of the Public Service. Research report written for the Centre for the Study of Violence and Reconciliation, June.
Monique Marks & Naseera Ali
Research report written for the Centre for the Study of Violence and Reconciliation, June 1995.
Monique Marks is a former Researcher at the Centre for the Study of Violence and Reconciliation.
Naseera Ali is a former Research Intern at the Centre for the Study of Violence and Reconciliation.
This paper aims at exploring the history and current status of labour relations within the South African Police Service (SAPS); this is done primarily from the perspective of the two key police unions currently operative in South Africa. To date, no comprehensive documentation has been written in this regard. This is probably owing to a number of reasons. Firstly, most writing on the South African Police has been concerned with the historical role the police have played with regard to "upholding the apartheid state", and also the transformation of this state security service to a democratised and accountable one. Secondly, the formations of the police unions in South Africa, and the challenge they posed to traditional mechanisms of dealing with labour relations in the police is very recent; the first real police union was only constituted in 1989.
This paper, however, is concerned that the question of labour relations in the South African Police not be examined in isolation. Members of this service are employed by state authorities (essentially at a national level), and they render a fundamental service to the public at large. As a result, the police have to be conceptualised as part of the public service, and this paper is at pains to explore the nature of the public service, and the limitations and benefits it confers upon its employees. The paper will therefore begin by exploring what is meant by the public service; how this differs from the private sector; historical changes within the public sector more broadly; and the collective rights and limitations of public service workers. The second part of the paper deals with the history of labour relations and unionisation within the South African Police. It concludes by exploring some of the problems and challenges confronting the South African Police Service in the future with regards enhancing labour relations in this organisation.
(i) What is meant by the public service?
Most writers concerned with labour relations, tend to separate the private and public sector. In broad terms, the public sector is used to delineate a large and diverse grouping. In the most general of terms, one can state that public sector workers are those who are employed primarily by the state, and are involved in providing a service to the public. These services include amongst others providing education, health, safety and security to the public. Consequently, when one examines workers in the public sector, it is important to take stock of both who the employer is, and what the function of such workers are. And, since the term public sector is so vast, particularly if one examines function, those who are directly employed by public authorities can be defined as workers in the public service. But, it should be noted that these two terms are often used inter-changeably.
Historically since about the 1920s, most workers who provided a "public service" were employed by the state. As the state was viewed as (and in fact was), the provider of these services, it emerged as the key employer in all areas of the public sector. The police, both in terms of their function as ensuring public safety and security, and the fact that they are employed by the state at various levels, fall squarely within the public sector regardless of which definition is used. But, defining the public sector itself has become increasingly difficult given the global political, social and economic changes which have occurred particularly since the late 1960s. It is to this complex debate that we will now turn.
It has been historically simple to differentiate between the private and public sectors. One had only to examine who the employer was, and where the source of revenue originated from. This information enabled one to determine whether the sector was "public" or "private". And, since in the past, the state was the major employer of workers in the public sector, this became self explanatory. But, since the international move toward privatisation and consequent structural adjustment programmes (particularly in the under-developed world) since the early seventies, many public servants were increasingly brought into parastatal organisations, and even into the private sector.1
In order to arrive at a definition of the public sector, one has to firstly, outline the fundamental differences between the public and the private sectors. Sarah Christie, in examining the public sector in South Africa, raises some of the key debates in this regard based on what she understands as a simplified definition provided by the International Labour Organisation.2 She argues in her article "Public Service Employment and the Public Sector Labour Relations Act", that the public sector should be treated differently because it acts in the public interest (as opposed to private sector workers who operate for purposes of gain). A further complicating fact is that some of their work constitutes an essential service3 which it provides to the communities, and furthermore that public sector employment is quintessentially political.4
Another difference between the private sector and the public service is the characteristics that employers assume. For example, the state as employer does not have to compete with other employers since it derives its revenue predominantly from taxation. In effect, this allows governments, when dealing with their employees, to override commercial concerns in favour of political and macroeconomic factors.5 (As a result, the national state budget is of particular concern). The private sector, on the other hand, derives its revenue primarily form profits, and is therefore keen to maintain a competitive position in the market in order to survive.
Historically, as has been alluded to above, it has been easy to identify the state as the employer of public sector workers, where the state was viewed as the sole employer and did not entertain any sort of partnership with the private sector. Indeed, the state in the early twentieth century, notably the British government, sought to influence private sector employment practices by acting as a model "good" employer. This move took place after the first world war when the state believed itself to have been responsible for bringing about mass suffering to its citizens, and consequently felt a need to compensate for this by providing the best possible public service. This was reinforced following the second world war which brought about even more destruction to civilians concerned. It was further believed that in order to bring about greater efficiency of state provided services, proper trade unionism and collective bargaining processes were encouraged for employees of the state.6
During the mid fifties governments in Britain, and other Western democratic societies, endorsed collective bargaining as the preferred method of determining terms and conditions of employment in both the public and the private sector. This model of "good" employer, however, came into conflict with the Thatcher administration's free market ideology which began to take force in the late seventies. This ideology "views public services as inefficient, uncompetitive, and an obstacle to the market."7 The free market ideology (still predominant today) views the government as employer as a high spender coupled with poor economic performance.
Henceforth the participation of the state was reduced by attempting to expose those areas which were traditionally located within the "public sector" to market forces. A number of methods were used to implement such adjustments including extensive programmes of privatisation, and the contracting out of functions traditionally performed by the state to privately owned organisations.8 (South Africa, and indeed the whole underdeveloped world, has not remained untouched by these developments).9 The resultant consequence of moves towards greater privatisation and decreased state involvement and responsibility for public service functions, has led to complications in clear definitions of the public sector, based solely on questions of employment.
So, the distinctiveness of employment in both the public and the private sectors has vanished largely because of an increasing overlap of functions between the two sectors and also because of the privatisation of public services. It is this overlap of functions and the changing nature of capital, coupled with the changing role of the state, that led to a blurred image of the two sectors. As Sarah Christie indicates "it is probably unwise to attempt to forge immutable and rational distinctions between private sector enterprise employment and public sector service; in any event, international norms tend to be tautological or circular."10
As a result she notes that in South Africa, of an economically active population of approximately 13 million, about 1.75 million11 work in the public sector. This figure, includes those workers who are involved in contributing towards the public service but are employed in the private sector, namely Telkom, Transnet etc. Many of these are parastatals and are moving towards increased privatisation. The definitive distinction then of who is public and who is private, she argues, is essentially a functional one. It is argued, therefore, that parastatals should be part of the public sector and the figure quoted above includes workers who are employed in the parastatals.
According to Christie, South Africa seems to have no developed principles to demarcate private and public corporations. South Africa has, however, attempted to work around this dilemma by including all those workers who fall under the jurisdiction of the Public Sector Labour Relations Act (PSLRA) of 1993, as public sector workers. The PSLRA governs employees in all state departments and provincial administration but have differential mechanisms for dealing with educators and uniformed functional personnel such as the police. (This will be dealt with in greater depth later in the paper). These peculiarities at a glance are extremely arbitrary, and have led to numerous problems with regards to collective bargaining in the various sectors of the public service in South Africa to date.
Christie has therefore attempted to arrive at an acceptable definition of what the public sector should include in the South African case based on international developments. According to her it should cover the following:
- public administration (central and regional);
- public safety: the armed forces; police and national security systems;
- social services afforded through central government agencies: the supply of electricity and water, sanitation and ancillary amenities;
- public education and health care;
- certain public communication services including ancillary economic activity (this may involve overlap with private sector enterprise), national airlines, harbours and railways, road transportation and civil engineering.
It is precisely this overlap with private sector enterprise that makes it cumbersome to arrive at a definition of what the public sector ought to include. For these reasons and without going into any further debate, for the purposes of this paper, not withstanding important current debates regarding such a definition we will take as our starting point the definition of the International Labour Organisation (ILO). The ILO simply defines public sector employees as, "all persons employed by public authorities."12 Hence, this paper will focus on those employed by the state, and shall refer to this grouping as the public service which forms a component of the broader "public sector", which is defined by function. In terms of this paper, members of the South African Police are clearly part of the public service since they are state employees; indeed, they are in fact civil servants and carry out one of the key functions of any state. Their location within the public service, and even the public sector itself has a number of implications when attempting to come to grips with collective bargaining and labour relations within the public sector in South Africa, and in particular, when examining that of the South African Police.
(ii) Constraints and benefits of being a civil servant
The "good" model employer was practised in Britain since 1918, and this included a number of social responsibilities from the state with regard its employees. These included a number of benefits such as housing and other subsidies; access to health care facilities; access to transport; standardisation of salaries and wages; and possibly most importantly, job security. Part of early conceptualisations of the "good public employer" included rights to collective bargaining and to unionisation. But, being a civil servant has the potential to impact dramatically on employees' individual and collective rights. So, positive attitudes to collective bargaining altered dramatically with the dominance of the free market ideology discussed above.
In fact, since the late seventies, many liberal democratic states no longer perceive collective bargaining as an appropriate mechanism for protecting workers and achieving industrial stability but rather saw trade unions as "unjustifiable impediments to the operation of the market, obstacles to efficiency and incompatible to individual freedom".13 So, for example, the civil service under the Thatcher Government was transformed from one of protecting its employees to "discouraging new recruits to join trade unions where civil servants have been warned that participation in industrial action may be a relevant factor in promotion to the higher grades".14 This transformation of the Civil Service was followed in most parts of the world.
These changes were easily legitimised since it was argued that within the public service "a challenge to an employment decision has political ramifications because a challenge to the employer is a challenge to the state".15 The implication of this is that anybody employed as a civil servant has an obligation to ensuring the effective and efficient implementation of state policy. A civil servant's key concern, therefore, should be with serving the public as a functionary of the state from which he/she benefits directly. This in turn raises serious questions as to the rights of public service employees to collective action, in particular their right to strike.
The state as the employer of "civil servants" can seek to justify its actions on the grounds of the 'national interest'. Consequently, it is "… considered legitimate to place restrictions on the personal liberties of state employees although similar restrictions are not applicable to private employees."16 So, for example, the state as employer is able to restrict the collective and individual rights of its employees since their actions have a direct impact on public services delivery.
Strikes by civil servants are generally viewed as secondary "as the social and economic costs of public sector labour disputes are not carried by the state as employer, but by an unpredictable community".17 This was evidenced in South Africa when in mid-August 1995, nurses went on strike at Baragwanath Hospital. The government did not respond to the strike initially until "images of neglected patients filled the media".18 Public opinion is thus crucial when understanding how strikes by civil servants are dealt with by authorities concerned. At times, this can even be to the advantage of workers in the public service when "public employees can harness public sympathy in support of strike action and against the government, particularly when they are able to transfer public blame for the disruption of services resulting from strike action on to the government's poor handling of the situation, or its poor treatment of the employees concerned".19
While in most democratic societies, freedom of association and organisation is a basic civil right, not all servants in the public sector are afforded the right to strike, and sometimes even to organise. This is largely dependent on the degree to which the services rendered are deemed "essential". The ILO Convention 87 on Freedom of Association and the Right to Organise guarantees workers the right to form and join organisations of their own choosing to all workers, but permits exclusion of the armed forces and the police. It is believed that strikes by members of the security services could bring into question the security of the state.
The point, however, is that Convention 87 restricts the free movement of civil servants. It was argued in the discussion of the draft document which was presented to members of the ILO that such an exception with regard the security services was necessary since "most countries would not find it possible to ratify a Convention which required absolute freedom of association to be granted to members of the armed forces and the police, having regard to the responsibility of Governments for defending the law and assuring the maintenance of public order".20
The question relating to whether workers who constitute an essential service should be afforded the right to strike has been extensively debated in most countries since the term itself is so contested. There is no uniformity to date internationally as to which workers constitute an essential service. It is therefore left to each country (and even to individual ministries)21 to decide according to its political and economic position. But, it is generally argued that much of the work carried out by civil servants in some way forms part of an essential service since their services are "important services upon which the community are highly dependant and their disruptions may threaten the lives or health of individuals in the community".22
But, there can be no doubt that some services carried out by civil service workers are more "essential" than others. As a result, the manner in which these different sectors in the civil service are dealt with in terms of labour relations, varies. So, the service supplied by the military, the police and the fire fighters is different in importance and kind from that of porters, gardeners, and even teachers.23 So, for example, in France, the civil service functionaries are governed by administrative law, have a different legal status from private sector employees, and their terms of employment are settled by the state and not by bilateral collective bargaining.24 In the USA federal employees are barred from striking but certain state and local public employees,25 have a limited right to strike. An example of what happens to public sector employees who defy prohibitions can be gleaned from the 1981 air traffic controllers strike. Two days into the strike Reagan dismissed 11 000 controllers and the federal courts upheld the president's decision. The rationale was not only that the strike was in breach of federal government's prohibition on strikes, it also violated the air traffic controllers' own "no-strike oath."26
Drafters of the new legislation on essential services in South Africa, have departed from the definition on essential services under the old Public Service Labour Relations Act of 1993. Academics and other experts in the labour field have criticised the definition as being too wide. In addition to including the ILO definition on essential services, legislation also included a further breakdown of services which it regarded as essential. An example of the definition as being too wide, is the inclusion of key-point computer services as an essential service. The new Labour Relations Act 1995, has however, managed to overcome some difficulties that were experienced with the definition by simply using the ILO's definition as a base from which to work from. The definition of an essential service therefore means:
(a) a service the interruption of which endangers the life, personal safety or health of the whole or any part of the population;
(b) the Parliamentary service;
(c) the South African Police Service.
The Act provides for the establishment of an Essential Services Committee comprising of persons with specialist knowledge of labour relations or labour law. This committee then decides after it has conducted an investigation "as to whether or not the whole or part of any service is an essential service, and then to decide whether or not to designate the whole or part of that service as an essential service; to determine disputes as to whether or not the whole or part of any service is an essential service; and to determine whether or not the whole or part of any service is a maintenance service."27 An example of a service or a part of a service in the nursing profession would be for the committee to decide whether the entire nursing profession constitutes an essential service or whether only the nursing staff in the intensive care unit or the nursing staff in the operating theatres constitutes an essential service. This committee is therefore empowered to use its discretion by firstly deciding whether an interruption of an essential service endangers the life, personal safety or health of the whole or any part of the population. If this committee is of the opinion that an interruption of nursing care is likely to endanger the health of the whole or part of the population then its members or staff must resort to compulsory and binding arbitration as per Section 74 of the Act. Secondly, if the committee is of the opinion that an interruption of the entire health services may not constitute an essential service but after investigations discovers that only a part of that service constitutes an essential service then the committee may make that ruling. This committee is empowered to make binding decisions based on fact. The concept of an essential service has changed in that the provisions in the new Act allows for a service to be declared essential during the course of a strike even though the service may not have satisfied the definition at the commencement of the strike.
As a result, when trying to come to grips with labour relations in the South African Police Service, one has to account for the fact that they are part of the civil service, that they have a particular and unique function, and that for the most part they are considered part of "essential services" provided by the state. This gives rise to obvious limitations with regards their rights to collective bargaining and organisation which will be examined later in the paper. At the same time however, being members of the public service contains certain benefits such as state subsidy, job security, and a sense of purpose or vocation in their work.
(iii) A brief look at unionisation in the public service internationally
As industrialisation developed rapidly in the 1960s and early 1970s, there was a general trend towards unionisation on the part of both the workers and the state as employer. The state was seen to be the single largest employer and some kind of coordinated structure between the employer and the employees had to be recognised. This was a period when the rate of economic development was high and many governments were pursuing Welfare State ideals and expanding public expenditure. An increasing number of countries recognised the negotiating and consultative rights of public servants and introduced procedures for settling labour disputes arising in the public service.28
During this period, the public sector imported the idea of collective bargaining from the private sector which had a long history of trade unionism than did the public sector. Article 7 adopted at the 64th Session of the International Labour Conference of the Labour Relations (Public Service) Convention, 1978 (No. 151), and its subsequent ratification by an increasing number of ILO member states provides that:
Measures appropriate to national conditions shall be taken where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organisation, or of such other methods as will allow representatives of public employees to participate in the determination of these matters.
Article 7 reflects the culmination of public worker interests and expectations. The number of public servants rose sharply especially in such areas as education and health and welfare services. This steady growth in the public sector gave rise to individuals joining forces to work and organise together, hence the beginnings of the collective bargaining phase. The private sector in this regard proved successful and the public servants decided to emulate their peers in the private sector.
The need for collective bargaining in the public service was necessary because it indicated a shift away from the sovereign nature of the state. The sovereignty of the state arises, according to Ozaki, "from the ideology that the state has an unassailable right to act unilaterally in matters coming within its legislative power, a right that cannot be challenged by groups representing particular interests, such as public servants' organisations."29
In most democratic countries, public service workers have the right to unionise and organise, but their rights to collective action may be limited dependent on the socio-political context, and the nature of work of such employees. Immediately after the Second World War in Japan, all public employees had the right to strike. This changed since, it was argued, the repeated strikes by public employees "hampered the operations of the Japanese government and endangered its economic recovery".30 The Japanese government therefore issued a decree which denied public service employees the "right to back their collective bargaining demands with a strike or any other form of collective action, and stated that if they did engage in such conduct, they would lose their rights under their employment contracts".31
In Germany Public sector labour relations are shaped by the 'co-existence of a non-strike legislation model and a negotiation-cum-strike model'. Employees in the public sector have their conditions of service determined by contract in the negotiation/strike mode; officers do not.32 Before the Conservative Government came into power in Britain, differences between trade union strategies and methods were stark. These differences became less visible due to the changing economy to which the structural adjustment programmes contributed. There are now fewer distinctions between public and private sector employment, hence fewer distinctions between the unions in both these sectors. In most parts of Europe and North America mainly in the last two decades fewer distinctions existed the two sectors. Thus trade union activity consisted of the same components in both the sectors, namely, that public sector workers may bargain collectively and strike in support of economic demands. Generally public sector work is seen as ordinary work with the exception of essential service workers. However, of great importance, these public servants are provided with some sort of protection, in particular grievance procedures which have been established by collective bargaining agreements. In this regard the ILO notes that if public servants are denied the right to strike they should at best be afforded protection in the form of "impartial and speedy conciliation and arbitration procedures, in which the parties concerned can take part at every stage and in which the awards should in all cases be binding on both parties and be rapidly and fully implemented".33
In some "less liberal" countries where public servants are denied the right to form or join trade unions, it does not mean that these workers are totally deprived of any means of protecting their interests; they are still in a position to form associations under special legislation or without any legal basis. Associations set up in India, for example, without formal registration under the Trade Union Act of 1926, were recognised by the Government for the purpose of discussing employment conditions. In Pakistan the lower grades of public servants appear to have the right to form associations. These countries have well developed mechanisms for dealing with labour relations in the public service.
There are a number of similarities and differences between unions which operate where the employer is private, and when it is the state itself. As a starting point, however, it should be acknowledged that the main preoccupation of the employer in the private sector who is an individual or corporation is to make profit and "expand its asset-base".34 The state is not necessarily circumscribed by the need to expand its asset-base, and it is sometimes required to accept that its functions and investments produce a reduction in its asset-base. Moreover, the nature of the state's functions and duties are very different from that of a private sector employer. The state is sometimes required to provide goods and services solely because they are socially necessary and useful, and it is very difficult for the state to abscond this duty.35 The state's obligation to provide services and goods to the communities stems from the fact that the state derives its revenue from taxation, whereas the employer in the private sector derives its income mainly from profits. The justification, then is that the state is held accountable to taxpayers whilst the employer in the private sector is held accountable to its shareholders.
The bargaining and other rights of trade unions in the public sector is different and restrictive when compared to its counterpart in the private sector. This is because civil servants in different capacities provide varying degrees of essential services. So, for example civil servants whose service to the communities cannot be interrupted because it might endanger the health or safety of that community may not acquire the right to strike. The essentiality of services in the public sector is not as prevalent (in fact it does not feature at all) in the private sector. Trade unions, in the private sector are in a position to decide, and collectively bargain on behalf of all the workers with uniform rules and procedures. Unions in the public service, while dealing with the state as employer, is also obliged to liaise with the various management structures which is set by the state. The unions in the private sector have only to deal with a single employee and one management structure. Until recently in South Africa, trade unions in both the public and private sectors were not bound by the Constitution of the country. This differentiation has now become a familiar feature in both the sectors. Hence, one of the main reasons for the re-formulation of the Labour Relations Act of 1956 is to "give effect to section 27 of The Constitution of the Republic of South Africa of 1993".36 The similarities in both these sectors which unions have experienced is the way workers have been organised into trade unions. Public sector unions have to a large extent modelled their unions along similar lines of private sector unions. Thus collective bargaining, work stoppages, scope of bargaining etc. have their roots in private sector unions.
(iv) Complexities regarding labour relations in the public service
The contractual relationships in both the private sector and the public service are similar, in broad terms in that the employees are exchanging their labour power in order to be compensated. But, whilst a single employer relationship can be traced in the private sector, the public sector differs in this regard. Different sectors call for different employers e.g. teachers and nurses and in particular the police all have separate management structures. It is precisely this diverse management structure of the public sector employer that makes it difficult to bargain effectively and the inability to handle labour matters in general.
The South African scenario indicates the potential complexity of this situation in the public service. When it comes to collective bargaining in the public sector "employee organisations are seldom engaged in negotiations with the real decision maker".37 The Commission for Administration is the appointed management who is appointed indirectly by parliament. (Parliament delegates its powers as employer to the executive, who in turn rely on the knowledge and expertise of the appointed management – in our case the Commission for Administration.)38 The Commission, however, is not able to "make decisions that have financial consequences outside the budget without authorisation from the Department of Finance".39 This makes bargaining arrangements in the public sector very complicated. One does not encounter such diverse structures of management in the private sector.
The role of parliament or local assemblies can provide one with certain difficulties since in some countries it is these elected bodies who are authorised to handle the more complex issues such as wages for public sector workers. In some countries public servants' pay has to be decided by an Act of Parliament and Ozaki asserts, the executive organs of the government (i.e. the immediate employers) do not have the authority to take decisions on pay and other employment conditions for public servants unless parliament explicitly delegates to them its authority to do so, and that in the absence of such delegation the executive bodies are not empowered to take binding decisions through collective bargaining with public servants.40 Parliament therefore delegates power to both the central and local governments.
In Denmark and the United Kingdom the employer is represented in collective bargaining by the Ministry of Finance or the Treasury, although in the UK the National Health Service has a separate negotiating body. Sweden also allows for a collective bargaining agent in the central government sector. Attempts at centralisation rather than de-centralisation has become a prominent feature especially when it comes to pay policy having regard to present anti-inflationary policies and budgetary restraints. Control over the budget has proved to be important in most cases and this is usually entrusted to Parliament or Congress in the first place and later to the Treasury. In the Federal Republic of Germany central control is written into the basic law which gives the Federation power to regulate pay scales and pensions for all civil servants, (Beampte). In Canada the Treasury Board, is designated by law as the bargaining agent for the Federal Government. This Board is a senior cabinet committee with overall control over the Government's budget. The budget is debated in Parliament by the various parties in parliament – hence the debate whilst economic in nature tends to bear political costs. The political party who has the ability to work on a sound budget gains in the long term in that they can win public support and confidence and therefore votes.
Employer representation in local government level (i.e. regional and municipal) demonstrates once again, that decisions and agreements in the public sector has the propensity to lean towards making overtly political decisions. Party political divisions occur may occur at the central government level where the Minister of Finance and the Minister of Interior belong to different parties in a coalition government. Another danger of party political bias occurs where a negotiating team has been set up for union activities and the outcome might depend on which way the majority members of the party belong to. So labour relations in the public service is inextricably bound with the politics of the day, and bargaining needs to take place within a number of management bodies.
(v) A glance at South Africa's public service
The South African state has historically dealt with labour relations in an extremely unilateral manner. This was based on the notion of the sovereignty of the state, as well as the idea that employees of the state should operate based on notions of loyalty and obedience to the state.41 Furthermore, in South Africa, the public sector has historically been divided along racial lines where white civil servants became the beneficiaries of apartheid policies. They were granted privileges and benefits such as job security, high wages, and excellent working conditions in return for their obedience and loyalty to the government. White civil servants were also expected to vote for the government to remain in power. Black civil servants in general, were granted no such privileges and benefits which were given to their white counterparts.
Public service unions have been around since 1921 in South Africa. But, these unions represented mainly white workers and since these white workers were granted numerous privileges it was not necessary for these unions to develop workers' rights given the enormous privileges white civil servants had been awarded. These unions did not see the need to proceed beyond the process of "consultation" with their employers and indeed, this has been a feature of public service labour relations for the past 70 years. However, in the last decade or so, this configuration has begun to disintegrate.
In 1988 COSATU, (Congress of South African Trade Unions) as part of its campaigns against the amendments to the Labour Relations Act (LRA), demanded that all workers including farm, domestic and public sector employees be covered by the LRA. After much protest by COSATU, the state, in its attempt to resolve disputes in the public sector, established the Commission for Administration (CFA) to act as the management body for the government. The CFA (at the time of its establishment) was not in tune with the moods and demands of public sector workers. This is evident in what the CFA in 1990, proposed to do, and as a result, the conclusions of the CFA proved to be less than satisfactory to organised labour. Its recommendations related exclusively to the establishment of greater managerial autonomy of the individual state departments and offices in order to promote what they (the CFA) construed as efficiency and professionalism. The CFA made no recommendations concerning labour relations and this indicated that the CFA was clearly out of touch with the need for a new dispensation in public sector labour relations. The road to establishing a new labour statute for public sector workers was a thorny one. Although the CFA negotiated with a group of eleven unions (including staff associations), major disagreements occurred between the two parties when the CFA agreed to base its draft labour Bill on the LRA and the ILO conventions in August 1991.
The disagreements revolved around two key issues. Firstly, with respect to the definitions clause, the definition of "essential services" covered almost the entire civil service and was not in line with the ILO's definition of essential services. Secondly, the unions did not want the CFA to administer the Act for the public sector. The unions believed that the Department of Manpower had more experience (than the CFA) when it came to dealing with labour matters.
During deliberations between COSATU and the CFA it was agreed in 1992, that there was a need to establish a Public Service Bargaining Council at national level and further collective bargaining arrangements for each state department and provincial administration. These deliberations therefore marked the beginning of a separate piece of legislation for public service workers. Hence, the formation of the Public Sector Labour Relations Act of 1993. The Public Service Act, the predecessor to the PSLRA did not provide for collective bargaining; it merely acknowledged the need for consultation between the employer's representative which is the Commission for Administration, and recognised staff associations, but it did not confer negotiating rights to the associations.
The PSLRA not only endorsed collective bargaining in the public service, but also created the necessary institutions to achieve the objectives of collective bargaining. The Act provides for the establishment of a Public Service Bargaining Council with a chamber at central level and chambers at departmental and provincial level. The statute further pronounces that "an employer shall not fail or refuse to negotiate on matters of mutual interest with an admitted employee organisation within the relevant chamber of the Council".42 Since 1993, therefore, the state as employer has been under an obligation to bargain with an employee organisation admitted to a Council.
While labour relations in the public service has been dramatically improved in the past few years, the entire public service, and indeed the public sector, is undergoing a process of restructuring. But, employer representation is one of the more complex and difficult issues in public service labour relations. The new Labour Relations Bill which is about to be signed before the State President (the status of the Bill will then be changed from a Bill to an Act) includes the entire public service excepting the military and intelligence services. This in effect, will serve to make the Public Service Labour Relations Act redundant, and will lead to dramatic changes within the public service given newly agreed bargaining relationships for all industries, public and private.43
But, regardless of the changes in legislature, one central problem still remains to be sorted out. There are still questions as to the role of elected representatives which is either parliament or a local assembly in determining employment conditions for public servants. Most countries have accepted that public servants' pay be voted by parliament and this has placed parliament in a special position as to what that pay should be. It has been an established fact in South Africa that public servants' pay be determined by an Act of Parliament. This places a burden on the legislative organ of parliament whereas the executive organ who ought to be making the decisions are excluded from the whole decision making process, unless of course, parliament explicitly delegates to them its authority to do so. And indeed, given the present nature of the budget and the form of the Public Service Bargaining Chamber, different sectors in the public service will no doubt continue to contest one another with regard their "share" of the national budget agreed upon in parliament. So, teachers will continue to contest health workers, police will contest municipal workers and so on.
Negotiations are one of the principal means of settling labour disputes, but if the parties fail to reach agreements during negotiations they may find the assistance of a neutral third party useful. Hence, the established procedures for such intervention has taken the form of conciliation, mediation or arbitration. One problem surrounding the settlement of labour disputes in the public service is the dual role of the government – as employer and sovereign (custodian of civil society) at the same time. However, this constraint is being negotiated away as more governments are being forced to acknowledge their responsibilities as employer. Another problem facing the parties to a dispute in the public sector is the choice of the third party that is brought in to help resolve the dispute. A major difficulty for the unions is to find an independent third party – one that is not in any way part of the government. The new Labour Relations Bill (Act), has in some measure, attempted to address some of these problems. The draft Bill provides for the creation of an independent Commission for Conciliation, Mediation and Arbitration,(the CCMA). This body according to Section 113 under the Dispute Resolution Section of the Labour Relations Bill will remain independent of the State. In terms of Section 115 of the Bill the main functions of the CCMA would be to try and resolve, through conciliation any disputes referred to it in terms of the Act. NEDLAC together with the Minister shall nominate and appoint a chairperson and nine other members to the CCMA. The new Labour Relations is therefore moving away from activities that were previously wholly controlled by government.
Arbitration as a means of dispute resolution is becoming widely accepted as a necessary part of labour relations in the public sector in many countries. According to section 21 of the PSLRA, 1993 arbitration is compulsory in a dispute of interest where it affects "employees who are employed in an essential service" and where no agreement can be reached through negotiations at the Council. A dispute with financial implications cannot be referred to the industrial court, but if the parties cannot agree on an arbitrator then the industrial court will be required to arbitrate the dispute.44 A dispute with no financial implications can be referred to the industrial court. With regard to disputes with financial implications at Central level, the arbitrator's decision will be referred to Parliament for consideration "during the current or next session of Parliament". This means that it is possible that the implementation of the award may be delayed for up to a year. It is hoped by both the state and labour representatives that these cumbersome procedures will be dealt with in the near future since they are not preferable to either party at present.
In fact, as Christie notes, delays of this nature are contrary to the ILO principles which state that "reserving a power for Parliament or the government to grant or approve funds or not before an arbitration award can be implemented, detracts from the principle that such awards should be an impartial, speedy and binding settlement of the dispute".45 This clause also allows Parliament to reserve the right to make the final decision regarding the appropriation of funds. With regard to a dispute with financial implications at departmental level, the arbitrator's decision shall be binding, "unless insufficient funds have been appropriated for the department concerned for giving effect to the award during the financial year in question in which case such department shall request that such funds be appropriated during the following financial year".46 The arbitrator's award in disputes with no financial implications is binding on all parties concerned.
The Public Services Labour Relations Act provided for the right of employees outside "essential services" to strike,47 and this is likely to remain the case, taking into account the fact that in some instances it remains unclear as to what constitutes these "essential services". At present, employees engaged in essential services have to resort to arbitration to resolve their disputes. The definition of a strike is wide and it is identical to the definition contained in s1 of the Labour Relations Act.48 The general strike provisions of the PSLRA, as Sarah Christie49 points out are unremarkable. The provisions contain the normal procedures toward declaring a strike. The right to strike relates to unresolved disputes of interest. There is no right to strike if a deadlock has not been declared "on the matter giving rise to the strike" and if an agreement on the matter is current,50 if it is agreed to refer the matter to arbitration.51 A period of 30 days must pass once a deadlock has been declared.52 A strike is only permitted if its purpose is "to induce or compel the employer to agree to or comply with any demands or proposals" concerning terms and conditions of employment.53 Thus political strikes are illegal. Voting in favour of a strike by majority members of an employee organisation has to be done by secret ballot and if the employee organisation wishes to commence with a strike, it must give the employer at least 10 days notice of the result of the ballot as well as the date of the commencement of the strike.54
Incidentally, the Act protects the rights of the non-striker. Thus an employee who wishes not to strike is protected. Employees may not dismiss or penalise during the first 30 days of a protected strike, but if the strike "is conducted in an unfair manner" strikers may be disciplined and dismissed. The employer is not allowed t issue any penalties for thirty days against any employee for participating in a legal strike as long as the strike is not conducted "in an unfair manner".55 In the event that a strike does not comply with the statutory provisions, the employer must give at least a one-day ultimatum and if workers fail to return, workers may be dismissed if they fail to produce written reasons for their non-return within three days. There is no obligation to hold a hearing but provision is made for furnishing written submissions on both sides.56 Finally the Act criminalises all illegal strikes, including those that are just technically illegal, such as those that have failed to meet the balloting requirements.
(vi) Current status of bargaining councils in the public service in South Africa
One of the key concerns of public service employers and representative bodies, is that of setting up appropriate bargaining chambers/councils in every sector. Bargaining councils under the new Labour Relations replaces the industrial council system under the LRA and similar councils established in terms of the PSLRA. Registered trade unions on the one hand and employers' organisation or the state on the other hand may form a council for a sector and area. They do this by signing a constitution agreed upon by them and by obtaining registration of the council. The procedures for registration are similar to the provisions of the PSLRA except that NEDLAC will now have the power to demarcate the appropriate sector and area in respect of which the bargaining council should be registered. The main functions of the bargaining councils will be dispute resolution and collective bargaining. The new Labour Relations therefore establishes a bargaining council for the public service as a whole which is known as the Public Service Co-ordinating Bargaining Council and for any sector within the public sector that may be designated as such in terms of the Act (Bill). Of significance here is the fact that the new Labour Relations acknowledges and therefore makes provision for some public services to be privatised. Hence, it is stated in the Bill a bargaining council which straddles the private and public sectors can also be established.
A bargaining council may be designated for a particular sector of the public service. The new Labour Relations provides for an education sector called the Education Labour Relations Council as well as a Bargaining council for the police which is referred to as the Negotiating Forum in South African Police Service. The bargaining council in that sector of the public service shall have jurisdiction to conclude agreements and to resolve labour disputes in that sector. In terms of the new Labour Relations Bill (Act) the Public Service Co-ordinating Bargaining Council may perform all the functions of a bargaining council in respect of the following matters, namely, matters which are regulated by uniform rules, norms and standards that apply across the public service; or matters which apply to terms and conditions of employment applicable to two or more sectors; and matters assigned to the state as employer in respect of the public service, where such matters are not assigned to any particular sector.
It is now to the case of the South African Police as part of the public service that we shall turn, and which will be the focus of the remainder of this paper.
(i) A brief look at police unionism internationally
Police unions are generally accepted and recognised formations not only in Western European countries, but also in countries in Asia, and elsewhere. The forms that these unions take, and their rights and limitations with regards collective action and organisation, however, differ from one country to another. In some countries such as the Irish Republic, however, police unions do not exist – there are only police associations.57 In Singapore police unionisation is not allowed at all; here too officers of all ranks belong to associations. In most democratic societies, police unions are seen as part and parcel of freedom of association; police, like other workers are deemed to have the right to organise and present a collective voice. But, given that police are generally perceived to be in some form part of the "essential services" of the state, their rights are limited. This is based on the premise that the status of police officers as law enforcers is incompatible with the use of means for the purpose of "agitation".
In the United Kingdom police unions are allowed for, and even encouraged. However, they are not allowed to affiliate to federations. In the UK, there are three representative police unions whose bases are decided by ranking system. In other words, police officers in South African terms who would fall below the rank of captain would be part of one union, while those who are brigadiers and colonels would belong to another, and so on. It is believed here that police in different ranks have differential demands and conditions of service. In Spain, there are four police unions. These are differentiated by location i.e. there are differing police unions at a national, regional and municipal level. Police in Spain who are part of the Gaurdia Civil are not allowed to organise since they are deemed part of the military. In Denmark, there are two main police unions, one for criminal and one for uniformed police; consequently in this country union differentiation is based on function. But, as is the case in South Africa, there are countries such as the Netherlands where police unions are split based on "political" allegiance or "ideology".
In most of the above mentioned countries where police unions are allowed, they operate in a similar fashion to other unions. They have the same rights to collective bargaining and representation. However, it is almost an international norm that police unions are not allowed to strike; in France, for example, they only have the right to protest and demonstrate when off duty. Even in historically liberal countries such as the Netherlands, police unions while having the right to demonstrate like other citizens, are not allowed to strike – this however is not forbidden by law. This limitation is argued almost uniformly as a result of the essential services that police provide as part of the public service. It is generally believed that a widespread disruption or withdrawal of such a service would lead to chaos.
So, in the United Kingdom the police force is the only public and other service including doctors and prison wardens who cannot strike. But, in all these countries there are extremely comprehensive and well developed mechanisms of collective bargaining within the police force/service. This is generally deemed necessary for the efficient and democratic functioning of police workers. Consequently, in a country like Denmark, leadership of the two key unions negotiate on a regular basis with top echelons of the police, as well as with representatives of the Ministry that will be dealing with the problem at hand. For example, representatives of the Ministry of Justice will be present at any negotiations which involve working conditions. Even in the United States of America where police unionisation was initially met with great resistance, since the 1960s it is generally accepted that as with the private sector, unionisation can give rise to "substantial economic benefits … primarily through the collective bargaining process … and a perception among police officers that the value to the community of the job they are performing should be recognised in the form of increased benefits."58
In most countries, however, labour relations within the police service is complicated since they are employed as civil servants. As a result, negotiations are generally cumbersome, and involve both police management and the state as employer. And, as we have seen above, "police officers and their labour organisations pursue the same economic benefits and working condition improvements as their counterparts in the private sector".59 The only way of ensuring that police do not withdraw their essential services is to provide for effective and efficient mechanisms for dealing with labour relations. In all countries the civil service system (or however it may be labelled)60 plays a central role in the hiring, promotion, and disciplinary practices of the public employer; these are all traditionally the concerns of police unions internationally. But, the public sector employer does not have a monolithic structure. As Burpo writes in this regard:
Authority and responsibility are diffused among various individuals and governmental bodies, a situation often leading to inconsistent and conflicting policy making … labour relations in the public sector is essentially a political one … . This political calculus gives the police union the option to support or oppose particular political officials or issues on the basis of how much support or opposition will assist in attaining union objectives.61
All these factors have led to some debate in the United States, for example, as to how best to deal with collective bargaining in the police service. This differs from state to state depending on the nature of the relationship between police workers and their employers in the state.62 And, in most states in the USA, police unions are said to be generally supportive of the Civil Service Systems since it is believed that this governmental body allows for uniform mechanisms of hiring, promotion, and disciplinary practices. Police, as civil service workers are subject to rational processes of employment, have job security, and are generally provided with additional fringe benefits such as housing subsidies.63
However, according to Burpo, there are three main disadvantages to the key role played by bodies like the public service commission in the employment practice of police officers. Firstly, the appointment of civil service commissioners is within the authority of the elected officials, and police officers often believe that the civil service commission is a "rubber stamp" for the desires of the public employer. And, if one does not have entire faith in elected bodies and officials, immediate suspicion could be awarded to the public service systems itself. Secondly, since civil service commissioners are often laymen, and do not understand complex personal issues, resolution of dispute within the public sector often requires sophisticated public personnel administration principles. Thirdly, civil service commissioners are often generalists, and have no real comprehensive understanding of the peculiar and specific needs of police officers. The consequence of the contested role played by such bodies has led internationally to a need for sophisticated mechanisms and processes for labour relations in the police on the part of police unions, police management, and the state as employer. In South Africa, given the very recent development of a more open approach to labour relations within the South African Police, any degree of sophistication is lacking amongst all three bodies concerned i.e. the state as employer, police management, and the police unions.
(ii) The history of police unions in South Africa
Historically, labour relations in the SAPS have been unilaterally controlled by police and the public sector management. This was both a result of the autocratic and militaristic nature of the South African Police, as well as the fact that the public service in general had very poor mechanisms of collective bargaining prior to 1993. (It was only in 1993 the South Africa's first Public Sector Labour Relations Act was legislated). Before this time, any grievance whether "collective" or "personal" in nature, was dealt with on an individual basis by a higher ranking official in the police service. This was initially done at the station level, and if not adequately resolved, referred to a district commissioner, and later the provincial and even the national commissioner of the South African Police.
Grievances could relate to anything from distinctly personal issues such as transfers to areas where families reside, to potentially collective problems such as discrimination of a variety of sorts. Dealing with all grievances through the existing authoritarian ranking system served to make all problems individual, and to consequently break down any "politicisation" of these. In fact, Police Act 7 of 1958 stated that "members of the police force may not unionise without the consent of the Commissioner of Police and whether on duty or off, may not wear badges or signs which associate them with a trade union".64
The fact that the police had no proper means of grievance procedure outside of the ranking system, combined with the appalling conditions under which members of the police service worked, and the much contested political role played by the service, led to an almost inevitable coming together of aggrieved members of the police service. This occurred in South Africa during a period of mass defiance, and an opening up of the political arena for oppositional groupings. 1989 was deemed the year of defiance by the United Democratic Front, and it was in this context, that the very first real police union was formed in South Africa.
On September 5 1989, the Police and Prisons Civil Rights Union (POPCRU) was launched, and thousands of police and prison wardens took to the streets indicating their support. According to Lundo Sam, elected president of POPCRU in 1995, there were four main reasons for the formation of this union. Firstly, it was believed that police and prison workers were the most oppressed workers in the public service. Secondly, members of this union believed that it was essentially police and prison wardens who were used by the then government to uphold apartheid and capitalism. Thirdly, according to Sam, police workers came to recognise that their needs and interests were in contradiction with police management. Finally, policing policy in South Africa was seen as outside of the international norms and standards of policing; this was typified by the huge distance between the police and the communities they were supposed to be serving.
As a result of the above mentioned concerns of mainly black police officers, POPCRU was spearheaded, amongst much controversy, by Lieutenant Gregory Rockman, a policeman in the Western Cape. POPCRU, while crucial to developing a collective voice for police officers in South Africa, identified itself primarily as a civil rights union, and only in the second instance as an industrial based union. In POPCRU's 1995 Secretariat Report it is stated that "POPCRU was established with the sole purpose of promoting stability, unity, impartiality, and furthermore, to recognise the civil and basic human rights of all South Africans and all people who live in it." This conceptualisation, while extremely significant, is limited in terms of a vision for any union, and has had severe consequences for the ability of this union to represent issues of the shop-floor in relevant negotiating forums.
The key goal of POPCRU since its inception was to indicate to all South Africans that many members of the South African Police were extremely dissatisfied with the function they were performing, and wanted South Africans to know that there were members of the police service who wanted to be proper "community policing officers". Subsequent to the formation of the union, in March 1990, about 90 members were dismissed from their jobs, and about 400 members suspended. (Suspended members were reinstated in May of the same year).
POPCRU was widely viewed, and still is, as an "ANC aligned" union, particularly given their close link with the ANC itself, as well as with the Congress of South African Trade Unions (COSATU).65 In August 1993, for example, it was reported that "history was made in Port Elizabeth yesterday when black policemen were led on a march to a mass rally by a small band of Umkhonto we Sizwe cadres".66 This joint action was aimed at fostering a reconciliatory relationship between the police and the community. The image of POPCRU as a black, militant union was reinforced time and again before the national elections in 1994. For example, POPCRU members were reported to have marched on South African Police headquarters chanting "Kill the boer, kill the farmer".67 It is not difficult to comprehend, therefore, why POPCRU was viewed as a black police union which was highly politicised, and thereby alienating of white police officers.
POPCRU was, however, the only real police union (although not officially recognised) in South Africa until 1993 when the equally contentious South African Police Union (SAPU) was formed. SAPU was launched in November 1993, and it was believed by many, in particular POPCRU members, that SAPU was formed as a management union, aimed at breaking down the power and strength of POPCRU. Indeed, there is a popular perception that the formation of SAPU is shrouded in secrets, and many of the initial elected national executive committee members were high ranking white members of the South African Police. As a result, the relationship between the two unions has historically been acrimonious and combative, and continues to be so to date.68
However, in speaking with Peter-don Brandt, General Secretary of SAPU in 1995, he believed that SAPU was formed to allow workers in the police service to have a collective voice in an industrial based union which was not politically aligned. According to Brandt, who has been a member of SAPU since its inception, the key motivation for the emergence of the union was that there was at the time of its formation no proper mechanism of collective bargaining for police workers. This, he stated, was made worse as a result of the autocratic nature of police management at the time. Similarly, Gontse Koitsioe, Communications Head of SAPU retorted the following when asked whether SAPU had been set up by police management in opposition to POPCRU:
Nothing has ever been proven to that effect. SAPU was started to take care of the interests of the workers. We are not part of any agenda. People keep asking why, when POPCRU was in existence, SAPU had to be formed. It was fundamentally because of their ideological baggage. It is understandable that POPCRU has a certain ideological bias. But it was urgent that a purely workerist union must be formed and that is why we formed SAPU. SAPU is a union without any adherence to any particular party or political ideology. It looks purely at the interests of workers and the power relationship between workers and government.69
Indeed, what has emerged since the inception of the two unions, is that POPCRU has remained primarily a civil rights union, while SAPU has focused on issues pertaining to working conditions of members of the South African Police. However, the changing role of the two unions in the past few years needs to be given due consideration. When POPCRU was formed, much of its collective action was directed at the state which was deemed racist, exploitative and oppressive. When SAPU was formed, however, this union was far less combative toward police management and the state at large. (Consequently their label as a reactionary sweetheart union). However, since the election in 1994, this terrain has transformed dramatically. In this regard, David Strydom, correspondent for Servamus from KwaZulu Natal had the following to say in July 1995:
Today, as the country teeters on the spindly legs of a newborn democracy, that scenario is not potboiler fiction. Morale within the police has sunk to an all time low, as illustrated by police suicides. Now the South African Police Union has mobilised its estimated 50 000 members to fight the government's lack of concern. This was the role formally filled by the Police and Prisons Civil Rights Union, who before the April 1994 general elections, had been a troublesome thorn in the side of the Nationalist regime. Once Nelson Mandela's Government of National Unity had been sworn in, SAPU became the more vociferous of the unions …70
In fact, since the general elections, POPCRU's main activities have centred around affirmative action within the South African Police Service, and in imputing with regards internal changes in the service more generally. In so doing, POPCRU has in fact formally detached itself from the more militant and combative activities seemingly organised by SAPU. For example, when in March/April 1995, SAPU members embarked on a go-slow over salaries and working conditions, POPCRU distanced itself from these activities and chastised SAPU for encouraging the protest saying that police officers should be less concerned with material gain, and more interested in developing a service which is centred around human rights for all. As a result, it is now POPCRU who are branded as a management union with allegiances to the current government.
(iii) Organisational structure and capacity of the police unions
POPCRU and SAPU together represent about 60% of workers in the SAPS.71 However, as has been noted earlier, their social bases are vastly different. SAPU has a membership of about 48 000, 60% of which are black, and 40% of which are white. The high percentage of white member is not at all reflective of the composition of the South African Police Service, but certainly serves in a limited way to confirm that SAPU is not simply a "white management" union. In fact, according to Brandt and Koitsioe, the majority of SAPU's membership are ranked at constable or sergeant level. Officers ranked higher than Colonel are not allowed entry into the union since they are deemed part of police management. All office bearers in the union are from the police service itself. Within SAPU there are a number of appointed officials from outside of the police service who play a central role in the daily functioning, as well as negotiations of the union. According to Brandt, the key issues which members bring to the union include questions of promotions; transfers; salaries and overtime; and discrimination and victimisation.
POPCRU, on the other hand, is an essentially black union, and claim a membership of 42 000. (At their June 1995 National Congress, there was only one white delegate, Major Alan Thompson from the Eastern Cape).72 Police officers form the majority of the membership base, and there are about 6000 prison wardens in the union. Most members are from junior ranks of constable, sergeant and warrant officer. However, similar to SAPU, most of the unions national office bearers and key leadership are of higher ranking. By June 1995, there were no appointed officials within POPCRU, but the union was hoping to employ an education officer, a legal officer, a chief negotiator, and three researchers.73 Key issues for POPCRU, according to Sam, include discrimination of all forms; lack of transport and person power at station level; the need to improve salaries and narrow the gap in salaries between the various ranks in the service. So, while the membership bases of the two unions are very different, the issues they present as central are entirely compatible, and this serves to raise the question as to the appropriateness of these two competing unions organising in essentially the same social base.
Both unions claim to organise at local station level, and like other unions refer to representatives at this level as "shop stewards". However, neither unions was convinced that meetings and report backs were being held at this level of the union; in fact, if anything, both unions acknowledged a severe lack of union skills and knowledge at the local level. In both unions, most of the key decisions are taken by the National Executive Committees concerned. Communication with members from a national to provincial and local levels is primarily carried out through written media; both unions have negotiated use of various facilities for communication with police management at all levels.
While these two police unions have been able to effectively mobilise a large proportion of police officers, their internal organisational capacities are extremely weak. This is not surprising for a number of reasons. Firstly, as was shown above, both unions are very young. Secondly, police unions have only recently been recognised by management and employers, and consequently labour relations skills are seriously lacking on both the side of management and the unions. It could even be stated that police management is not entirely convinced of the positive role these unions could potentially play in the service. As a result, according to Brandt, union officials are only allowed two official working hours per week for union activities. But, according to Brandt, even this limited freedom is not uniformly adhered to by police management. Sam echoed this in stating that the unions are still negotiating with management for time off for union activities. Sam stated that this is not in tandem with international trends, and that this needs to be negotiated with the Minister of Safety and Security, as well as with the Public Service Commission.
A third factor limiting the capacity of the police unions is the fact that their services are deemed "essential", and consequently police officers are expected to regard their public service as primary to their union activities. As a result their bargaining power is restricted. Fourthly, and related to the above limitations, police officers have no real knowledge of the operations of unions, and members are generally poorly informed about issues regarding labour relations more broadly. Fifthly, it is very difficult for police officers to organise at the local level; shop stewards operate at a station level and police stations are still extremely authoritarian, and submit to ranking systems. This makes it very difficult for union officials of low rank to challenge higher ranking officers, especially at the station level. Union activity may negatively affect police officers chances of promotion, for example. As Sam stated: "police officers still have problematic relationships with management. Management does not allow members to attend meetings, and they tend to respond to union officials as constables rather than union officials".
Both Sam and Brandt spoke frankly about the weaknesses of their unions resulting from their histories and current organisational positions. Brandt, in examining the key weaknesses within SAPU stated that their are three main problems. Firstly, there is a general lack of knowledge, even amongst union leadership, as to what unionism is about. Secondly, officials and members do not understand the role of shop-stewards at the shop floor level. (This is the basis for union effectiveness in any industry). Thirdly, he claimed there was a general lack of negotiating skills. Sam stated the following three reasons that prevent POPCRU from functioning to its fullest capacity: Firstly, management does not accept change. Secondly, he stated, POPCRU lacks the necessary publicity to function as a union. Thirdly, Sam stated that within POPCRU there was a general lack of skills amongst leadership with regard to negotiation and mediation. Fourthly, he stated that police management do not have a good understanding of the role of unions within the police service. Both union officials also acknowledged that there was a communication breakdown at all levels of the union. Further, there is a lack of transparency in both unions. Finally, there is disunity and mistrust amongst members of the police service both within unions themselves, as well as between the two unions.
These problems in the unions can be illustrated by a number of incidences. Firstly, when police officers embarked on a go-slow in May 1995 it was difficult to identify which union members belonged to, and consequently which body they were accountable to. Secondly, in August 1995, the general secretary of POPCRU was abducted by members of his own union in the Eastern Cape who insisted his immediate resignation despite his democratic election into office. Thirdly, the Independent Board of Inquiry (IBI) while lacking the necessary evidence, alleges that the general secretary of SAPU who resigned from the South African Police in 1993 is still on the pay role of the SAP. Fourthly, the IBI also has confirmation that some of the key office bearers of the supposedly more progressive POPCRU have been members of the very contentious security branch for many years.74 Finally, at a self-help group of police officers in Soweto in July 1995, both unions were accused of being ineffective and unaccountable to its membership.75
Even more alarming, at the 1995 national congress of POPCRU attended by Marks, there was almost no discussion regarding questions of labour relations in the South African Police Service. The entire congress was almost entirely concerned with developing a new constitution, and even here debate was largely semantic, and not concerned with key debates such as the exclusion of the police from the draft Labour Relations Bill at that time. Further, racism of different forms still appears to be rife within both unions. Finally, there are no real programmes for training and development in both unions for either leadership or the general membership. The Policing Research Project at the Centre for the Study of Violence and Reconciliation has offered its assistance to both unions in this regard. While both unions have indicated interest, no forum has been organised for such training to take place. The reasons for this remain unclear. So, while both unions acknowledge their internal weaknesses, neither have taken even the most basic steps to remedy these.
(iv) Existing relationship between SAPU and POPCRU
While the political histories and social bases of the two unions differ significantly, it would appear that by July 1995, there was general agreement amongst national leadership of the two unions that a positive working alliance be developed in order for the two unions to present a common and strong collective voice in negotiations with police management. However, this is a new and relatively tenuous, and there is at present no clear indication that the two unions will be able to work harmoniously together, despite their obvious common goals with regards to labour relations.
Both Brandt and Sam had clear explanations as to why a merger process between the two police unions would be difficult. According to Sam, within POPCRU there is still a lot of mistrust as to SAPU's formation and current objectives; SAPU is still perceived as a management union, and the historical background of SAPU is regarded as questionable. POPCRU members still maintain that SAPU was formed to counteract POPCRU. He stated that there are no concrete relationships between the two unions at present, and a joint working relationship is still uncertain.
Brandt described the relationship between the two unions as "strained", particularly at a local and provincial level. Furthermore, Brandt stated that POPCRU was perceived by SAPU as a political tool for the ANC and aligned forces. SAPU also maintains that they are more concerned with issues regarding labour relations than is the case with their "sister" union. POPCRU is seen to have a close working relationship with the Minister of Safety and Security, Sydney Mufamadi, which is not equally the case with SAPU; this has come to be seen as a political issue. According to Brandt, "the two unions appear to be more concerned with fighting each other than with fighting management".
However, despite their current combative relationship, the General Secretaries of both unions believe their is potential for one united police union in South Africa. In this regard Brandt stated that he had little doubt that in time the two union would merge given their basic common concerns as representatives of police workers. In fact, according to Brandt, at the national negotiation forum of the SAPS, the two unions generally present themselves as a united front for "tactical reasons". Similarly, Sam stated that the leadership of POPCRU are of the view that the two police unions will eventually operate as one "despite the different view of membership on the ground". Indeed, at POPCRU's 1995 National Congress, a resolution was taken by the union to affiliate to Cosatu knowing full well that this could force a merger process with SAPU at some point given Cosatu's policy of "One Union, One Industry". Similarly, SAPU requested the PRP to facilitate contact with leadership of Cosatu. As a result, the PRP organised for Neal Thobejane, the General Secretary of the National Health and Allied Workers Union (NEHAWU), to provide an input at SAPU's national secretariat meeting in July 1995 as to the potential for this union to affiliate with Cosatu, and to consider joining Cosatu's vision of a single public sector union in South Africa. Thobejane was extremely well received by SAPU, and was perceived as a reference point by members present as to appropriate mechanisms of collective bargaining within the public sector.
The existing tension between the two unions serves to break any potential unity, and consequently undermines the necessary strength of a collective voice. As a result, while the police service is undergoing major restructuring at all levels, it is in the area of labour relations that changes are most slow. So, for example, the new Safety and Security Act passed by cabinet in September 1995 breaks significantly with the past in terms of being more community oriented and sensitive, it lacks the much needed creative mechanisms for dealing with labour relations outside of the labour regulations in the police service. However, some of these problems pertaining to labour relations in the police are dealt with by the Labour Relations Act of 1995, and the South African Police Labour Regulations of 1993. The following section of this paper will examine the current legislation pertaining to labour relations in the police service.
(v) Current negotiating arrangements in SAPS
It was only in September 1995 that it was finally agreed in cabinet that the South African Police Service be included in the new Labour Relations Act gazetted in 1995. Initially, the police were excluded from the draft Labour Relations Bill, along with other departments of the security services, which included the military and intelligence. The exclusion of the police was contested initially by NGOs and the police unions, and later by the Minister of Safety and Security, all of whom argued that the Labour Relations Act could provide some basic guidelines for labour relations within the police service; further, it was argued that there was no clear reason given as to the exclusion of the police from the Act in the first place.
The inclusion of the police service into the Labour Relations Act is significant since it allows for the establishment of forums of collective bargaining and negotiation at both a local and national level for all industries (public and private) included in the Act. This binds both police unions and management to participate in a National Negotiations Forum representative of the entire police service. Secondly, it creates the space for local workplace forums consisting of police workers who may or may not be members of any particular recognised union. (It seems, moreover, that members of police "management"76 could also be a part of these forums if so decided at a station level). The exact nature and form these forums will take is still to be developed, however, it forms the basis for discussion around labour relations and working conditions at the level of the police station. The significance of the inclusion of the police service in the new Labour Relations Act lies in the fact that the police service can now not regress into previous modes of negotiation dominated by police management, and carried out in an extremely autocratic manner. And, as Jeremy Baskin, director of NALEDI (the research desk attached to Cosatu), the new LRA will most likely at some point supersede the existing labour regulations of the South African Police Service.77
However, while the LRA of 1995 establishes the broad parameters for the operation of labour relations in the police service, the actual functioning of necessary mechanisms is still unclear and seemingly unsatisfactory to both police unions. In fact, the police service is not alone in its feeling of uncertainty with regards to labour relations; this is an experience shared by all quarters of the public service and indeed the public sector at present in South Africa, and there is much debate both within the state and within the labour movement as to the restructuring of labour relations in the public service.78 At present, while both SAPU and POPCRU have been admitted to the Public Service Bargaining Chamber, both unions have only been awarded observer status with regard functional police; in other words, they do not have full representational rights in the chamber.79 Both police unions are therefore unable to negotiate on issues pertaining to salaries; service conditions for functional members; and wages with the state as employer. This, it is hoped, will be changed in the near future when the police service is awarded a separate bargaining chamber where proper negotiations will take place.80
At present, however, labour relations in the police service is primarily governed by the South African Police Labour Regulations of November 1993. This Government Gazette is an important break with past mechanisms with dealing with labour related issues in the South African Police in a number of ways. Firstly, the gazette recognises the right of employees of the South African Police to join organised representative formations.81 The document states in its fundamental principles that "employees shall … have the right to establish and, further only subject to the constitution of the organisation concerned, to join any employee organisation of their own choice …".82 It is further stated that no member of the police service shall be discriminated against, or victimised, as a result of joining any such organisation.
Secondly, the Labour Regulations of 1993 states that recognised organisations of the police shall have access to the necessary information and resources required for its efficient operation. In this regard, the document states that "a recognised employee organisation shall be granted reasonable access during working hours to its members and to the premises and facilities of the employer for the purposes of conducting its lawful activities …".83
Thirdly, and probably most importantly, the regulations make important provisions for a Negotiating Forum in the police service at a national level. This forum shall be constituted by the employer and recognised employee organisations, and "any agreement concluded by virtue of proceedings contemplated … shall be binding on the relevant parties and the members of employee organisations involved".84 The forum, according to the regulations, shall not deal with individual concerns, but of issues of mutual concern to both employee and employer bodies. However, all issues dealt with at the forum, have to be agreed to by the national Commissioner of the South African Police.85
The ultimate goal of the Negotiating Forum is to reach some form of agreement between police employees and employers represented at the forum.86 (The forum is equally represented by management and employee organisations, and both parties have to sign any agreement). Any matter not resolved within 30 days from the date of declaring a dispute, will be referred for arbitration, the decision of which will be binding to both parties.87 However, all agreements reached must be within the powers of employers. This, of course, brings into question the role of police management as employers, and its relationship with the Public Service Commission (PSC).88 The PSC is obviously of significance when dealing with issues pertaining to wages, salaries, grading systems, and benefits since all these are concerns of public servants as employees of the state more broadly.
The introduction of the liberalised South African Police Labour Regulations in November 1993 has served as a great relief to police unions concerned. However, both unions believe that these regulations are inadequate, and that many problems still exist when dealing with labour relations issues in the police service. Firstly, representatives of both unions expressed concern as to the role of the PSC. According to Brandt of SAPU, the problem with the present labour regulations and mechanisms for dealing with labour relations in the SAPS is that "the PSC is ultimately the employer, and yet, collective bargaining only takes place with police management and not the PSC."89 An added problem for the union, according to Brandt, is that most union members do not understand the role of the PSC, and the consequent limitations of police management.
Lundo Sam of POPCRU was equally concerned with the PSC's role with regard to collective bargaining in the police service. According to Sam, "the PSC has served to block the process of democratisation in favour of management".90 So, in Sam's understanding, the PSC plays a far more obstructive role, as opposed to a constructive one, in setting standards for employment and the protection of police officers as civil servants. Like Brandt, Sam stated that most members of POPCRU believed that the Commissioner and Minister of Safety and Security had authority and control over the working conditions in the SAPS. Most members of POPCRU, he stated "fail to understand that it is in fact the PSC that employs police as part of the public service."91
However, both unions believed the PSC has a role to play with regards to setting standards in the public service, and developing policy for employment by the state. As a result, both unions believed that it is essential that the police be provided with a separate bargaining chamber in the Public Service Bargaining Council to address their concerns with regards to working conditions. Both unions were distressed by the fact that the police unions are currently essentially excluded from the Public Service Bargaining Chamber, as opposed to other employee organisations in the public service. A separate bargaining chamber would not only provide police workers with a mechanism for collective bargaining with the actual employer organisation, but also gives recognition to the unique and special function performed by the police as part of the public service.
A second problem that both unions expressed with regard to the new Labour Regulations was with regards the all encompassing prohibition of police workers to strike. Both unions felt this to be inappropriate since there was no clear definition of essential services when referring to the police. Both Sam and Brandt stated that those members of the police service who performed essential services should not be granted the right to strike. However, they posited that many workers in the SAPS were not performing essential services, and should be given the same freedoms as other workers in South Africa. They both believed that those officers who were patrolling, or responding directly to demands of the public, constitute the "essential services." As a result, both unions shared a anxiety that essential services in the SAPS be defined, and that this should be done in consultation with the police unions. Brandt stated that "employees of the South African Police who have no link to essential services, should have full labour rights." He continued that "if you take away the right to strike, one needs to have immediate access to collective bargaining around wages and working conditions."
So, while the South African Police Labour Regulations, together with the new LRA, potentially create new and much needed space for the police unions to operate as representative bodies of police workers, there are still many questions which remain unanswered, and many limitations on the rights of police workers. Further, the existing legislation needs to be viewed in the context of the broader debates that are taking place within the public service itself, much of which will only be concluded when separate bargaining chambers are implemented for the different sectors concerned wanting direct access to the state as employer.
(vi) What still needs to be done in the South African Police Service?
The Public Service Bargaining Chamber is the crucial forum for dealing with any labour disputes within the public service, and this is still in its early stages of construction. Both police management and unions need to negotiate structures and mechanisms which are acceptable, and serve to provide a constructive working environment for employees of the police service. Any such bargaining and negotiating arrangements should be guided by the new LRA. A second, but related point, is that a clear and mutually agreed upon definition of essential services needs to be developed.
Thirdly, for police workers to have any real impact in negotiating forums, the two unions need to develop their own internal organisational capacity, and also begin to work constructively with one another as bodies representing the same social base. Presently, this goal is a far cry from reality, as we have seen, given the evident antagonism existing between the two police unions. Other unions in the public service, and organisations and individuals who have expertise in labour relations need to assist the two police unions in this regard. Further, unions which have in the past successfully engaged in merger processes between unions operating in the same industry need to provide assistance to the two police unions in this regard. This will be a painful process to facilitate, and will require intervention from outsiders who are sensitive to both the political and organisational histories of both police unions.
Finally, police management itself requires assistance in dealing with labour relations, and be provided with the tools necessary for ensuring that collective bargaining is beneficial to both management and labour. In the case of the police service, the needs of the public at large need to be taken into consideration. There is no point in developing a police service which is sensitive to community needs, while not being acutely aware of the impact that poor working conditions have on the "productivity" of police workers themselves. In this regard, the PSC needs to be restructured so that it operates in the interest of all parties concerned: police workers, police management, the state as employer, and the broader public which the police are meant to serve.
The question of labour relations in the South African Police Service is of grave concern to anyone interested with the transformation of the SAPS into a more effective and transparent organisation. So long as police workers are aggrieved, they will be unwilling (and arguably unable) to provide a proper service to the communities they are meant to protect. As a result, so long as basic issues pertaining to working conditions are not dealt with adequately, real "community policing" will be a far cry from reality.
In many ways the path of transition in South Africa has only just begun. And, without doubt it is the state itself and its various structures and employer bodies that require fundamental transformation to allow for effective and efficient delivery and a work force which feels it is being dealt with in an equatable manner so as to prevent further disruption to all public services be they essential or not. This will be to the benefit of all South Africans. And, indeed, it is the South African Police Service who have the responsibility for ensuring the safety and security of all who live in and visit this somewhat miraculous country. But, this requires a number of internal changes in the police service, probably the primary one being that of labour relations. We hope that this paper has illuminated some of the challenges that still need to be engaged with, and that police workers, police management, and the state as employer tackle these in the most constructive manner possible to meet the basic and fundamental needs of all South Africans.
1 The 1970s and 1980s witnessed severe recession in both developed and developing countries. This decline in the global economy was originally sparked by the two oil crises of the 1970s and by over-production and resultant low prices for commodity exports. The three decades leading up to 1980 saw a substantial growth in the size of the government sector in most countries. Later, however, in the 1980s governments were perceived as high spenders coupled with low economic performance. This trend towards privatisation was triggered off by the Conservative Party (headed by Margaret Thatcher) in the UK who came into power in 1979. Thus the 1980s witnessed massive privatisation of public assets in some countries and to "restructuring" of public services. The objective is to reduce the size of the state and to cut public sector spending in favour of a greater role for the private sector.
2 Christie, S. 1993. Public Service Employment and the Public Sector Labour Relations Act, written for Regional Workshop on Labour Law and Industrial Relations in a changing Southern Africa, held in Durban Marine Parade. Unpublished paper, University of Cape Town, Cape Town.
4 Christie argues that the public sector is "political" since employees who withdraw their labour place political pressure on the state to alter public policy; it is internationally accepted that the state should be the primary provider of public services. See Christie, S. Ibid, p. 5.
9 Indeed, at present, the government is proposing major reshuffling in the public sector to decrease state responsibility for providing public services. See The Star 11/12/95. This is to be done in consultation with major trade unions.
21 In the case of South Africa, ministries of various departments together with the Public Service Commission, and the Ministry of Labour decide on what constitutes "essential services" in the departments concerned.
30 Tiziano, T. et al, "Public Service labour Relations", Recent Trends and Future Prospects. A comparative survey of seven industrialised market economy countries. International Labour Office. Geneva, 1987, p. 171.
57 In these countries it is believed that there are adequate mechanisms built into the police service which renders the need for unions redundant. Generally police associations have direct access to the Commissioner of police and/or the respective minister. Moreover, in most countries police officers are seen as invaluable and their basic needs and concerns are taken very seriously by employers of civil servants. As a result, in Singapore, for example, government policy states that police officers should receive a salary that is 10% higher than civil servants.
Associations differ from unions in that they are generally based on profession and skill, and usually have a co-operative as opposed to an adversarial relationship with management concerned. Associations generally do not engage in militant collective action such as strikes; they are also governed by strict laws internally, and adhere to formal legislation.
68 The South African Police Union claimed to have 50 000 members by July 1995. Most of these are police officers, and there is a small percentage of which are support staff in the South African Police Service.
72 Thompson was described by Sam as the only real white activist on POPCRU. He was elected amongst much contestation as the National Treasurer of the union at POPCRU's National Congress in 1995. According to Sam, most white police officers feel alienated from the culture of POPCRU.
74 This information was obtained in an informal discussion with Piers Pigou, a researcher at the Independent Board of Inquiry in August 1995. It should be noted that there has been no hard evidence to substantiate the allegations made with regard to either of the police unions.
76 It is sometimes difficult to define "management" in the context of the police service since, for example, a local station commander may be of relatively low ranking (such as Captain), and would only be considered management in a local context. The same station commander could very well be a member of one of the police unions.
78 Both management and labour are arguing that they are concerned with developing a public service which is efficient, and benefits broader society as best possible. Their understandings as to how this is brought about, however, may differ as do their interests.
There must be a proper constitution of the organisation, as well as a list of the names and details of its office bearers, a physical address and contact numbers of the organisation concerned.
A list of members of the organisation; this should be accompanied with information regarding the regions members come from, and the units in which they work.
The employee organisation should be sufficiently representative of the membership concerned.
Employee organisations should not be affiliated to any political party, nor be financially supported by any such party.
85 This is completely in tandem with the Police Act (1995) in which the national Commissioner has been awarded extensive powers in terms of employment practices within the police service. This has come under much scrutiny from both police unions.
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