Negotiating a Democratic Order in South Africa: Learning from Mediation and Industrial Relations

Philip Hirschsohn

Labor law reform in South Afiqca unintentionally precipitated the rapid

growth o f a powerful black trade union movement and institutionalized

collective bargain ing in the 1980s. Despite the pol i t ical crisis, the

Independent Mediation Service of South Afi'ica helped to disseminate the cultttre and practice o f negotiated order, developed in htdustrial relations,

to the broader socie O, and national politics. As a result of the negotiated

transition, the new democratic order is characte~gzed by inclusive, consen-

sus-building poliq3p-making processes.

T h e of Mandela and EW. Klerk the Nobel image Nelson De receiving Peace Prize suggests that the transition toward democracy in South

Africa can be captured by the outstanding efforts of two leaders w h o s tepped back from the abyss of civil war to negotiate a deal at a critical juncture in the country 's history.

This picture tells only a small part of the story. In reality, the origins of the negotiated transition to democracy in the 1990s lie in the unin- tended consequences of the Apartheid state's 1979 labor law reforms. These changes spawned a powerful labor movement and institutional- ized negotiation as the dominant mode of conflict resolution in industrial relations in the 1980s. This experience not only provided a template for

Philip H i r s c h s o h n is a senior lecturer in the department of management at the University of the Western Cape, Private Bag x17, 7535 BeLIville, South Africa. He is also a doctoral degree candidate in industrial relations at the Sloan School of Management, Massachusetts Institute of Technology, Cambridge, Mass. 02139.

0748-4526/96/04004)139509.50/0 © 1996 Plenum Publishing Corporation Negotiation Journal April I996 139

the negotiated political transition in the 1990s, but shaped the process in a unique way, as black South Africans secured - - and were able to institu- tionalize - - their collective rights more than a decade before securing their individual rights.

The organizat ional d e v e l o p m e n t of the I n d e p e n d e n t Mediat ion Service of South Africa (IMSSA) represents the prime example of how the lessons from industrial relations facilitated the transition to a negotiated political order. Initially established to help employers and unions resolve industrial relations disputes, IMSSA extended its activities to deal with the broader societal and community conflicts that accompanied the negotia- t ions toward a democra t i c order. More recently, IMSSA has b e c o m e involved in designing processes to facilitate public participation in policy making and constitution writing.

IMSSA's development suggests how the culture and practice of nego- tiated order extended from industrial relations to encompass the society as a whole. More importantly, the legacy of this culture of negotiation and the e x t e n d e d transit ion toward democracy is shaping the post- election, consensus-based policy formulation process that characterizes the new political order. The procedure adopted in forging agreement on the new Labor Relations Act provides one of the best examples of this process.

G r o w t h o f U n i o n s a n d C o l l e c t i v e B a r g a i n i n g

In the post-World War II period, South Africa exper ienced a rapid struc- tural transformation as the economy industrialized and the black working class population grew and became increasingly urbanized (Lambert and Webster 1988). Typically, such societal processes restructure p o w e r rela- tions and promote the mobilization of suppressed groups and foster the emergence of formal organizations (Tilly 1978). Following a wave of unorganized strikes in Durban in 1973, African t workers , w h o were denied the right to join recognized unions, began organizing at plant level outside the legal industrial relations framework.-' To protect them- selves against s tate repress ion , un ions buil t d e m o c r a t i c grass roots structures based on worker representat ion and control. This "worker control" idea broke with traditional representative organizational forms and emphas ized direct democracy, accountabi l i ty of delegates, open debate, education of activists, and worker participation in union decision making. In the process, unions began to build a democratic political cul- ture from the bot tom up ~ i n e 1992).

Although emerging black unions barely survived repress ion and employer opposition, the government feared that continued repression would drive them underground. Despite the recognized political risks, 3

140 Philip Htrschsohn Negotiating a Democratic Order

in 1979 the state sought to exercise greater control over these unions by recognizing them and drawing them into industry-wide collective bar- gaining. The reforms proved to be far more radical and resulted in the opposi te of what the architects intended, as the legal recognit ion of union rights during a period of widespread community-based political protest against Apartheid led to explosive union growth. Union member- ship grew from 700,000 in 1979 to 2.7 million by 1991, representing 53 p e r c e n t o f t he w o r k f o r c e c o v e r e d by the Labour Re la t i ons Act (Finnemore and Van der Merwe 1992) as unions succeeded in raising real wages despite a severe recession and in protecting workers from arbi- trary managerial action. ~ These results were not secured without intense struggle, with more days lost to industrial action between 1986 and 1990 than over the preceding 75 years (Innes 1992).

Unions initially eschewed the established centralized bargaining forums to negotiate recognition agreements with employers at plant or firm level. ~ Although relations between black unions and white manage- m e n t w e r e e x t r e m e l y adversa r ia t , c o l l e c t i v e b a r g a i n i n g b e c a m e institutionalized and a culture of negotiation emerged. Within a decade, 2,000 recognition agreements had been concluded (Finnemore and Van der Merwe 1992).

The 1979 amendments also introduced the Industrial Court, which was given wide discretion to determine the nature of unfair labor prac- tices. As a court of equity, the court played a vital role in reshaping industr ial relat ions as it took its cue from the In ternat ional Labour Organization guidelines w h e n defining worker rights/ ' The effective enforcement of employers' obligation to bargain in good faith, and the adherence by both unions and employers to the letter, if not the spirit, of the law had he lped to institutionalize industrial confl ict by the mid- 1980s. Employers dubbed the court a "workers court" as labor won so many cases initially and secured rights that workers in Europe and the United States took decades to achieve and some still have not achieved (Haysom 1984).

A l though blacks universa l ly r ega rded the legal edi f ice of the Apartheid system as illegitimate, the labor law and the Industrial Court, which were initially regarded with enormous suspicion, came to earn grudging respect. Because its rulings were primarily determined on uni- versal standards of fairness and due process rather than lawfulness, the court helped to secure support for negotiation and respect for procedure as the industrial relations norm, despite the fact that the broader society and labor-management relations were wracked by intense and highly charged conflict.

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The Emergence o f IMSSA IMSSA was established in a political environment characterized by inten- sifying protest, reform that slowly eroded the Apartheid system, and repression which included the regular de ten t ion and harassment of unionists. On the shopfloor, tension between militant black workers and conservative white supervisors was pervasive. Charles Nupen (1995: 2), former Director of IMSSA, recalls a visit to an auto plant where he was:

• . .confronted by workers on the production line with wooden AK47s strung across their backs, and the atmosphere thick with defiance. They complained of white supervisors, packing real pis- tols in the plant. Well, the first thing we did there was to negotiate a weapons control policy.

Government-appointed mediators and arbitrators were particularly ineffective in resolving industrial disputes because they lacked credibility with black unions and came from the very institutions that were under political attack. Despite this hostile climate, collective bargaining began to bear fruit and, in the early 1980s, workshops were convened to dis- cuss the possible creation of a labor mediation service. The workshop sessions were remarkable in bringing together employers, white unions and the emerging black unions despite enormous suspicion (see IMSSA 1994: 5).

The potential benefits of an independent service were promoted by experienced British and American mediators who addressed meetings of employers and unionists, conducted training sessions, and helped South Africans see beyond the highly adversarial local situation. From 15 media- tions in the first year, by 1990 the annual rate had increased to 580 mediations and 344 arbitrations. Private dispute resolution became firmly established through IMSSA's reputation for neutrality, perhaps best exem- plified by the request of a conservative white union for a black panelist, an IMSSA board member, to arbitrate (IMSSA 1994).

Progress wi th the professionalization of industrial relations and mediation contrasted starkly with the rising tempo of political protest. In the ten months prior to the declaration of a national state of emergency in July 1985, 14,000 people were arrested and 740 were killed. The state of emergency, which was to last five years, increased the level of repres- sion, as the state deployed the army in black townships, engaged in mass detention without trial and banned political organizations. By December 1988, another 31,000 had been arrested and 3,361 killed (Sisk 1995: 65). The May 1987 bombing of COSATU (Congress of South African Trade Unions) headquarters by agents of the security forces, which caused severe structural damage and forced COSATU and five affiliates to fred new offices, was a clear indication that organized labor was not immune

142 Philip Htrschsohn Negotiating a Democratic Order

from state harassment. Given this context it was difficult to imagine the liberalization of political activity and the emergence of democracy. Industrial relations was to lead the way.

L a b o r L a w b y N e g o t i a t i o n

In 1988, in response to employer pressures to curb shopfloor militance and the right to strike, and to reverse many union advances, the Labour Relations Amendment Act (LRAA) was passed to "swing the balance of power back to management" (Fine and Webster 1989). Despite the coun- try's largest-ever, three-day general strike, and a series of meetings with organized employers, the union movement failed to prevent the law from being passed. The employers' victory was short-lived, however, as unions made the legislation unworkable by refusing to follow its proce- dures. In the face of continued labor protests, employers finally entered negotiations with the unions, and concluded an agreement on a new industrial relations framework, largely on the unions' terms.

It took lengthy negotiations with the state before this agreement was accepted. After the liberalization of political activities and the removal of the ban on all political organizations in early 1990, the state finally backed down, reversed its position on the LRAA, and signed the Laboria Minute, a document that commit ted the state to submit all future labor laws to employer and union federations before tabling the legislation in Parliament. The Laboria Minute marked the beginning of a process of consensus- based policy formulation which has come to characterize the current tran- sitional political order in all policy arenas. Most significantly, it helped to establish a mechanism through which organized interests could directly participate in policy decisions affecting them. 7

E x t e n d i n g IMSSA's S c o p e

While IMSSA began as a mediation and arbitration service, its activities ex tended to include the Relationships by Objectives (RBO) process, aimed at facilitating the development and maintenance of a constructive relationship between labor and management. IMSSA also began offering training in mediation and arbitration techniques to users to better pre- pare themselves when engaging in the process.

As interest-based bargaining has become more frequent, the role of dispute resolvers has changed:

Mediators are becoming facilitators and problem solvers. They are going in earlier. They are managing conversations and shuttling less between parties. They are designing, with parties, problem- solving and dispute resolution systems, and training parties how to use them. They are experimenting with process and to good effect. Mediation arbitration, arbitration mediation, fact-finding mediation arbitration...We are learning that processes with maxi-

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mum involvement in design, and control by the parties in execu- tion, confer legitimacy and promote wider acceptance of the result (Nupen 1995: 4).

From its early days of dependence on inputs from the United States and Britain, IMSSA has thus developed an indigenous approach and a body of expertise on which its practice is founded. Arbitration is replac- ing media t ion as bargaining re la t ionships mature and increas ingly sophisticated parties only seek intervention for unresolved issues. One innovation is an Arb-Med process in which the .arbitrator makes a deci- sion, which is not announced unless the subsequent mediation, with its much wider terms of reference, proves unsuccessful (IMSSA 1994).

The performance of IMSSA's mediators and arbitrators in the field earned it a great deal of credibility and provided the basis for its move into community mediation in early 1990 in response to unprecedented country-wide violence at the grassroots level. This conflict occurred in an extremely unstable political environment and mediation was often dangerous: Deaths and injuries were not uncommon and frequently set back mediation efforts. Unlike the case in industrial disputes, the parties in violent political disputes are seldom clearly defined, nor are the relationship between them and the parties' accountability to their con- s t i t u e n c i e s . The areas o f d i s p u t e do no t a d h e r e to a g r e e d - u p o n parameters, and there are few established procedures for dealing with conflict (IMSSA 1994).

IMSSA's activities contr ibuted to creating a culture of negotiation and the acceptance of alternative dispute resolution to resolve political and community disputes. This provided a lead to politicians when they began to negot ia te the n e w democra t i c order. The National Peace Accord, signed by 29 political organizations in September of 1991, estab- lished a set of guidelines to promote peace and reconciliation. A wide variety of stakeholders agreed to abide by codes of conduct and to use ADR to reduce the potential for conflict and violence (King 1995). IMSSA became involved in regional and local committees comprising of political organizations, civic associations, local authorities, churches, business, unions and the security forces. In Thokoza, for example, a 1991 peace conference, organized by IMSSA as a neutral party, led to a total cessation of politically related deaths for six months in a community in which 300 people had died in political violence in only 18 months.

Through success, as in the Thokoza case, peace commit tees not only earned the reputation of being trusted and credible facilitators but also enhanced the stature of negotiation and consensus-building as the preferred approach to addressing conflict in a highly polarized political context. IMSSA subsequently shifted emphasis from ad hoc intervention in situations of violence to "mediating development" aimed at building

144 Phtlfp Htrschsohn Negotiating a Democratic Order

consensus and more cooperative long-term relations, thereby facilitating the society's reconstruction and development (IMSSA 1994).

The process of organizational evolution that IMSSA has traversed symbolizes the transfer of experience and shift in orientation from con- flict resolution to development in industrial relations and in the broader society. Organized labor is undergoing a similar transformation: from the "politics of protest" to the "politics of reconstruction and development." In both cases, these organizational changes have had significant conse- q u e n c e s for the d e v e l o p m e n t of d e m o c r a t i c i n s t i t u t i ons . Whi le COSATU's strategic shift has resulted in the emergence of corporatist pol- icy-making institutions, IMSSA's experience has served as the model for the dispute resolution mechanisms in the 1995 Labour Relations Act.

F r o m I n d u s t r i a l R e l a t i o n s t o P o l i t i c a l T r a n s f o r m a t i o n

In the 1980s, organized labor in South Africa utilized shopfloor organiza- t ion, mil i tant member sh ip , t a len ted leadership , and s t rong ties to community groups to exercise its power from outside. However, after concluding the Laboria Minute in 1990, COSATU worked to establish cor- poratist policy-making structures to ensure that it could participate and exercise influence over economic, industrial, and labor policies from within the power structure (Patel 1993). Although hotly debated within the labor movement , the establ ishment of corporatist policy-making s t ruc tures can be v iewed as a natural d e v e l o p m e n t f lowing out of COSATU's founding mission:

• . .to protect worker interests and advance their rights.. .[by building] large broadly based industrial unions capable of dealing with the highly centralized structures of capital... [and] to formu- late clear policies as to how the economy would be restructured in the interests of the working class and to work towards this restructuring (ROAPE 1986: 83,79).

Elsewhere, corporatism has been almost universally in retreat. In South Africa, however, acceptance of COSATU's demand for an inclusive policy formulation process during the extended political transition led to the establishment of the National Economic Forum in 1992, comprising the "Big Three"-- organized labor, business and government. Following the first democratic elections, it was replaced in early 1995 by NEDLAC (National Economic Development and Labour Council) a statutory body with the "Big Three" and a community development constituency, com- p r i s ing o r g a n i z a t i o n s of civil soc i e ty ( r e p r e s e n t i n g w o m e n , the unemployed , the aged, youth, etc.) wi th a mass base and definable national interests. Characteristic of corporat ism as a policy style but more inclusive because of the communi ty development constituency, NEDLAC seeks to reach consensus and negotiate agreements on eco-

NegotiatlonJottrnal April 1996 145

nomic , l abo r and social p o l i c y issues b e f o r e t h e y are d e b a t e d in Parliament. As all significant changes to policy are submitted to NEDLAC before implementation, Labor Minister Mboweni (1995) argues that the "process will allow government to be more accountable to civil society and provide the basis for reaching broader consensus amongst major stakeholders."

Through NEDLAC and a host of o ther specialized forums, the social and political order is being transformed into one characterized by negoti- ated consensus be tween all organized interests. Participative, democrat ic and t ransparent policymaking lies at the core of the normative vision embodied in the government 's overarching socio-economic policy frame- w o r k , t he R e c o n s t r u c t i o n and D e v e l o p m e n t P r o g r a m m e (RDP). Originally drafted by COSATU, the RDP includes social movements, com- munity-based organizations, and o the r organs o f civic socie ty in the development and implementation of policy.

T h e 1 9 9 5 L a b o r R e l a t i o n s A c t

The 1995 Labor Relations Act (LRA) provides a good example of the RDP principles at work. While it is clearly beyond the scope of this article to discuss the content of the new law, the inclusive procedure for reaching consensus on the law, and the reliance of the law on IMSSA's exper ience with ADR are noteworthy.

Process f o r Public Participation The newly elected government established a highly democratic process of debate and negotiation to reach consensus on the LRA. The Minister of Labor initiated the process by commissioning a team of lawyers, repre- sentative of the key interest groups, to draft a new law for submission to NEDLAC:

The lawyers were instructed to draft a law which would both rec- ognize the unique features of our labor relations system, keep faith with our new constitution and our public international law obligations and recognize the imperatives of development and the new economic order (Mboweni 1995).

The primary intention was to rewrite the law from scratch to mod- ernize the legal framework in keeping with the country 's re-integration into the global economy and to shift the orientation from adversarial to cooperative labor-management relations.

Wi th in fou r m o n t h s , the t eam p r o d u c e d a "Draf t Nego t i a t i ng D o c u m e n t in Bill F o r m " and an a c c o m p a n y i n g E x p l a n a t o r y Memorandum in January, 1995. Both were wri t ten in relatively simple language to facilitate public c o m m e n t from interested individuals and organizations and then submitted to NEDLAC. This procedure has been

146 Philip HD~chsohn Negotiating a Dentocratic Order

quest ioned because of the limited time frame available to the drafting team for comprehensive fact-finding and the lack of public debate about options prior to the publication of the draft. Despite this criticism, the draft bill provided a useful framework for vigorous public debate and the clause-by-clause negotiations be tween the "Big Three" in NEDLAC. The ability of organized labor to back up its bargaining positions with mass mobilization on the streets ensured that negotiations were kept on track and that the final version of the legislation was eventually passed with minor amendments in September of 1995.

Appropriate Dispute Resolution Building primari ly on IMSSA's e x p e r i e n c e over more than a decade, d i spu te reso lu t ion in the 1995 LRA rests on the es tab l i shment of a Commission for Conciliation Mediation and Arbitration:

Its influence is pervasive and powerful. It is a one-stop shop to settle disputes. Commissioners will be multi-skilled and multi- tasked. They will conciliate, fact find, mediate and in some instances arbitrate, with one objective, to settle disputes. In con- ceptualizing this Commission we have researched and drawn upon international best practice, Australian, European and North American models, but its design is driven ultimately by local con- siderations and experience. I am unaware of any labor relations system in the modem world that accords conciliation and arbitra- tion, in a continuum from agreed to imposed solutions, such a pivotal role (Nupen 1995: 6).

The C o m m i s s i o n wil l be i n d e p e n d e n t bu t s t a t e - f u n d e d , and governed by a tripartite board appointed by NEDLAC. To avoid current problems of backlogs in the Industrial Court, the new law: requires that almost all disputes must be submit ted to the Commission before the institution of proceedings with the Labor Court; makes provision for accredi ted independen t agencies, such as IMSSA, to provide ADR ser- vices; and aggressively encourages privately agreed ADR procedures , providing parties with their chosen dispute resolver and the flexibility to design systems tailored to meet their particular needs. As a result, ADR is no longer subordinate to litigation and now can justifiably be relabelled "Appropriate" Dispute Resolution (King 1995).

C o n c l u d i n g C o n l m e n t s

Based on the learning curve of IMSSA and the industrial relations system, the ex-post rationalization outlined here suggests that omniscient policy- makers intentionally used the labor law reforms to get important sectors of South African society accustomed to the negotiation process and prag- matic c o m p r o m i s e as a trial run for the more fundamenta l poli t ical transformation. In reality, the coun t ry often seemed hell-bent on self-

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destruction; conditions in the 1980s and early 1990s frequently lurched towards civil war before the mainstream of black and whi te opinion came to recognize the need for negotiation as the best compromise in the face of a common destiny.

South Africa was clearly fortunate in having, in the leadership roles, such individuals as Nelson Mandela and EW De Klerk, who placed the interests of the country ahead of the sectional interests of their support- ers. However, the p rominen t role played by organized labor in the struggle against Apartheid and its success with "radical reform," combin- ing negot ia t ion wi th mass mobi l iza t ion (Adler and Webster 1995), provided a proven model for the popular forces struggling for democ- rac):

The growth and development of IMSSA reflects how experience and expertise developed in the industrial relations arena in the 1980s proved invaluable in facilitating the political transition. In addition, in both industrial relations and politics, the balance of power and ongoing con- sultation and negotiation have engendered an environment where the relationship between interested parties can evolve from adversarialism towards cooperation. For "the rainbow nation," as South Africa's citizens now like to call it, cooperat ion based on the recognit ion of different interests provides the preferable route toward reconstruction and devel- opment, and the crafting of a democratic order in a country once beset with a most intractable problem.

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N O T E S

1. Under Apartheid all South Africans were classified as white, coloured, Indian or African. The usage of the term black is somet imes used to refer to Africans only but more conventionally, as in this article, to refer to all people not classified as white.

2. These unions were not illegal, but were not recognized under the Industrial Conciliation Act w h i c h explicitly gave collective bargaining rights at industry level to white , coloured and Indian workers only. Any union that organized African workers could not participate in legally sanct ioned bargaining structures.

3. The Minister of Labor stated that "the Government is only too aware o f the dangers wh ich possible participation by labor organizations in politics may hold for the c o u n t r y . . . T h e Republic is too vulnerable today to allow an intermingling of labor relations and politics" (cited in Maree 1985: 302).

4. Based on 1985 data, Moll (1993) found that returns to union membersh ip among black workers already averaged 24 percent . In addition to securing procedural protection through the Industrial Court, unions also w o n rights to preferential re-employment and industry-wide moratori- u m s on re t renchment .

5. The officially sanct ioned centralized bargaining forums (industrial councils) were regarded as racist, bureaucratic, isolated from the shopfloor, and dominated by white unions and employ- ers. Instead, the un ions d e m a n d e d U.S.-styled recogni t ion a g r e e m e n t s at p lant level. These agreements typically covered substantive issues, primarily wages and working conditions, and pro- cedural agreements on grievances, dismissal and retrenchments . Because black workers had no form of political representation, their unions also brought a broad range of communi ty issues into negotiations with employers.

6. On re t renchment , the Court took its cue from the procedures which the unions had nego- tiated wi th the most en l ightened employers , while on dismissals the Court wen t fur ther and adopted ILO guidelines of substantive and procedural fairness (Benjamin 1989).

7. Perhaps the most impressive example of participation to date is the constitution-writing process. Two million writ ten submissions have been received while constitutional public meet- ings cont inue to be held throughout the country to solicit opinions - - the process was designed and facilitated by IMSSA.

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