INTRODUCTION

While many of the Scandinavian armed forces have had to cope with the issue of unionisation or some form of group representation of soldiers since the beginning of the century, for many Western European countries, such as Spain, France, Italy and Greece, and now South Africa, this is a relatively recent phenomenon.

There are a number of reasons why members of the armed forces, in general, are showing an interest in unionisation. The first can be linked to the broad liberties guaranteed to all citizens in democratic societies. The argument is that if soldiers are expected to defend democracy, they cannot be denied basic democratic rights, such as the right to belong to trade unions. But the push for unionisation relates more specifically to aspects of social change affecting the military organisation. Caforio,² for example, states that one of the main causes of the spread of unionisation within the armed forces is the divestment of government from the interests of the military. Where government no longer acts as guarantor for the military, the inclination to form pressure groups to protect their interests is enhanced. This is especially the case where government's divestment is associated with a loss of prestige and social esteem of the military community, and where members of the armed forces have experienced a decline in their standard of living or tenure. These are but some of the driving forces, which are seen to promote unionisation within the military. Other factors include the drift towards occupationalism where military service is seen as `just another job', the civilianisation of the military profession and the recruitment of officers from the underprivileged sector who are familiar with union practices.

The response of armed forces to the possibility of unions within their ranks has been diverse. There are those that have accepted some form of group representation as an inevitable trend towards greater industrial democracy. Others have opposed such a development as a threat to internal cohesion and operational capacity, as well as political control over the armed forces. The latter has to some extent been the reaction of the South African National Defence Force (SANDF) to the growing possibility of unions within its ranks.

The SANDF is resolute that it will not allow uniformed military personnel to join unions, even if there may be pressure for unionisation. While there may be justifiable reasons for limiting the labour rights of soldiers in South Africa, there has been virtually no discussion on viable alternatives to unionisation. This article hopes to stimulate some debate on possible options and alternatives with respect to the military union debate. The shortcomings of the present labour relations dispensation for military personnel are discussed, and suggestions are made that could improve the present grievance resolution mechanisms. As the SANDF may have to accommodate some form of group representation for uniformed personnel, suggestions are made on how such organisations could be structured and function, in order to reduce many of the potential threats unionisation could pose to internal cohesion and the authority structure of the SANDF, or to civilian control over the armed forces.

INEFFICIENCIES OF PRESENT GRIEVANCE RESOLUTION MECHANISMS

In the first section of this article, the present labour relations dispensation for uniformed members of the SANDF is analysed, specifically those mechanisms created to resolve grievances.

Individual grievance procedures

Presently, the Military Disciplinary Code (MDC) (Schedule 1 of the Defence Act) is the structural base of authority whereby the SANDF maintains discipline and resolves military related problems.³ Included in the MDC is Section 134 dealing with the Redress of Wrongs procedure, which is the means whereby an aggrieved member of the SANDF can submit a written request for a redress of wrongs that can go as far as the President. In principle, the latter procedure can be equated to a grievance procedure found in any other private business organisation, although the issues that can be channelled through this procedure, relate more specifically to issues of injustice. For example, a superior may have treated a subordinate with unnecessary harshness, or the member may feel (s)he has been unjustly disciplined or insulted. Grievances where members have no legal claim, such as transfers, leave, nomination for courses and pay fall outside the jurisdiction of the MDC. Such grievances are addressed through the normal chain of command structures or communication `forum' structure, which makes provision for both individual and collective grievances.

One of the main problems with the present grievance mechanisms is that there is no dispute resolution procedure for either disputes of rights⁴ (those which fall under the jurisdiction of the MDC), or disputes of interests, which are channelled through the normal command structure. Should a member of the SANDF feel dissatisfied with the feedback received from the Chief of the SANDF (CNDF), this may be forwarded to the President, whose answer is final. In practice, however, uniformed members are often reluctant to even submit a grievance through the Redress of Wrongs procedure, "... because of a concern of possible victimisation or negative consequences for their future careers."⁵ The resistance to use the official grievance channels reduces the efficiency of this mechanism. Should a uniformed member skip or use alternative channels, this is considered a disciplinary offence. Recently, a lieutenant was court martialled for submitting a grievance over alleged discrimination directly to the President. In his defence, he stated the reason for not doing so was that "... they expect us to complain to the very people who are unjustly discriminating against us."⁶ The conclusion may be reached that the present MDC does not always function as an effective or impartial channel of restitution.

Collective grievance mechanisms

During 1995, a communication `forum' structure was introduced to enable various rank groups to submit either individual or collective grievances, complaints and suggestions to higher authorities. While this is a valuable forum, the main shortcoming of this mechanism is that there is no remedial channel, should there be dissatisfaction with the feedback received. In labour relations terms, grievance, disciplinary and dispute resolution procedures are complementary to one another. The absence of one, renders the others less effective.

Most of the grievances channelled through the forum structure concern matters of interest, that relate to the determination of new terms and conditions of employment. Unlike disputes of right, which have a judicial foundation, the resolution of disputes of interest constitutes a more dynamic aspect of labour relations, as the right still needs to be established. The settlement of such disputes may require the establishment of procedures such as conciliation, mediation or arbitration.

A possible option to consider is to utilise a mechanism similar to the Commission for Conciliation, Mediation and Arbitration (CCMA) created under the new Labour Relations Act, No 66 of 1995. The CCMA is a state-funded body, governed by a tripartite board composed of representatives of government, labour and business, designed specifically to resolve disputes as speedily as possible at local and central level by means of conciliation, mediation and, where necessary, arbitration. Only where disputes cannot be resolved, are they referred to the Labour Court for adjudication. These dispute resolution mechanisms are already available to civilian employees in the Department of Defence (DoD), but as uniformed members are excluded from the scope of the Labour Relations Act, it is debatable whether the DoD could utilise this structure for uniformed personnel.

Should a similar mechanism be created to resolve disputes for uniformed personnel, criteria will need to be established with respect to the appointment, selection and tenure of such officials. Such a military CCMA could possibly function as follows: after a complaint has been channelled through the forum structure, and an unsatisfactory response is received from the CNDF, resulting in a dispute, the matter could be referred to the military CCMA. The method of settlement will depend on the seriousness of the dispute. The more critical the issue, the greater the tendency to make use of compulsory arbitration.

A possible problem for the military is that arbitration tends to take the initiative out of the hands of the actual participant. This means that the selection of the arbitrator, or even mediator, must be fully acceptable to all parties involved in the dispute, as well as familiar with the customs and practices of the military. As military personnel do not have access to the Labour Court, due to their exclusion from the Labour Relations Act, a possible option to consider in the case of fundamental disagreement, is for the Military Ombudsperson (MO) to investigate and make recommendations on disputes that could not be resolved by the military CCMA.

The most obvious value of such a structure, is that it may render the present individual and collective grievance procedures for both disputes of rights and interests more acceptable. As unresolved grievances are often the main causes of labour unrest, a special CCMA which is compatible with military service, may diffuse potential discontent within the ranks of the SANDF, and could even improve morale within the forces.

THE MILITARY OMBUDSPERSON

The creation of the post of MO is one of the most favoured means proposed by Parliament and the DoD to address the problems and grievances of military personnel.⁷ Based on the recommendations in the White Paper on Defence and statements by the chairperson of the Joint Standing Committee of Defence, Mr Tony Yengeni, it would appear as if the role of the MO is to:

monitor adherence to democratic civil-military relations;


undertake investigations at the request of parliament;


investigate complaints against the SANDF by military personnel; and


investigate complaints against the SANDF by members of the public.⁸

The MO, as is the case with the Public Protector, is appointed by and reports to Parliament.⁹ The essence of the MO's role is to ensure the observance of the principles enshrined in the Constitution by military personnel and to investigate any human rights violations. Other typical functions could include:

oversight of the Legal and Personnel Divisions at DoD headquarters;


the procedures followed by the military courts and prisons; and


the detention and dismissal of uniformed members.

The right to appeal to an MO to investigate irregularities of court martials, arrests, detentions or dismissals, may also render the disciplinary procedure more congenial. In any such or related human rights violations, members should have the right to submit their complaint directly to the MO, without going through the chain of command. Ironically, in the absence of an MO, this role is currently being fulfilled by the `illegal' South African National Defence Union.¹⁰ For example, SANDU recently secured a Supreme Court interdict that it is unconstitutional for the SANDF to hold persons in detention without the option of applying for bail.¹¹

Another function of the MO is to conduct tours of inspection. In other countries, such inspections are made at random, or in some cases, may have been initiated by complaints received from the public or members serving in the armed forces themselves. The department or unit receives only a day's notice of an inspection visit.¹² The MO in South Africa could fulfil a similar function. Even though the MO has only powers of enquiry, the impartiality of the findings and the mere consciousness of the MO, may have a healthy effect on the whole organisation, as well as the leadership behaviour of superiors.

Although the MO can be a valuable institution to investigate irregularities, it is debatable whether it should intervene in the chain of command to resolve grievances or disputes. To do so would require that the powers of the MO be extended to at least that of an arbitrator, to be able to adjudicate and ensure fair labour practices. As suggested, a possible alternative is for the MO to act as an impartial body in the absence of a Labour Court. The power of the MO to make recommendations to the Minister of Defence, to refer matters to the President as Commander in Chief of the SANDF and to report to Parliament, should ensure sufficient oversight and adherence to just and fair labour practices.

THE NEED FOR GROUP REPRESENTATION

While the implementation of a CCMA type dispute resolution mechanism for the military, and the establishment of an MO, could improve the present labour relations dispensation for military personnel, there is still a need for representation on pay and conditions of service. The need for some form of group representation is central to the current labour relations debate within the SANDF.

The desire to have an organisation to represent their interests is precisely because most sources of grievances cannot be readily addressed within the chain of command. The required decisions are often beyond the legal competence of the officer commanding or the internal authority structure of the military, but lie with external role players or political decision-makers.

Structure and function

Should members of the SANDF be permitted to join and form employee organisations to represent their interests, certain questions are brought to the fore. What will be the structure of such organisations and will they resemble trade unions as found in the private or public sector? The principle of freedom of association implies that an indefinite number of organisations can be formed. International experience also indicates that a diversity of structures can be created based on rank, arm of service, mustering or even service dispensation. While the military may be a monolithic organisation with respect to goals and mission, it employs a large number of people in various capacities and specialities. The heterogeneity of the military profession is such that one cannot assume that only one association representing all will necessarily be created, although private sector trends indicate the preference for one union organised along industrial lines.¹³

One of the principal arguments against military unions is that they will divide the loyalty of members between the unit and the union, thereby breaking down cohesion an essential element for combat effectiveness. If this can be proven, it is unlikely that trade unions in the true sense will be permitted. The traditional role of a trade union is to regulate the employment relationship through the direct process of collective bargaining,¹⁴ which implies representation of an interest group (the bargaining unit) in competition with the established authority (management). Very few countries have granted their armed forces full collective bargaining rights, precisely because they felt this role of unions could undermine cohesion. In most cases, the form of group representation that exists for uniformed members is closer in definition to professional associations. These associations have only limited joint consultative rights,¹⁵ and their activities are constrained by normal regulations pertaining to military law and discipline.

The reason why professional associations, and not trade unions, are admissible, relates to their modus operandi. Professional associations aim to represent the professional interests of their members by projecting an image of professionalism and by enhancing the status of their occupation in the eyes of the employers, government and the public. However, what often happens in practice, when the aspirations of the professional associations are not met by more moderate means, is that they often start behaving like trade unions. The experience of the Belgium armed forces is a case in point.¹⁶ What this implies, is that it is not the freedom of association to belong to a trade union that poses any potential threat to organisational or combat effectiveness, or civilian control over the military, but the activities associated with trade unionism. The next question then arises: What restrictions can be placed on the activities of organisations representing military personnel?

Scope of activities

Unions or associations representing military personnel may need to conform to certain criteria if they are to have any locus standi within the SANDF. As one of the concerns is that unions will politicise the armed forces, restrictions could be placed on the right of such organisations to be formed along party political lines, to join political parties or to partake in their activities. Such a restriction is justifiable, as the principle of political impartiality of the armed forces is constitutionally entrenched.¹⁷

Another concern is whether organisations representing military personnel will divide the military along racial lines. This too could be justifiably curtailed, as the principle of equality of rights¹⁸ in the Constitution specifically states that racial exclusivity as a criteria for membership is not acceptable. A possible problem, however, is if these organisations are formed along the classical division that already exists in the military, namely between officers and non-commissioned officers. The officer corps of the SANDF is still predominantly white, while the opposite holds for non-commissioned officers, who are mainly black. Although European experience does not indicate that officers and non-commissioned officers are organised as opposing groups, the racial, cultural and political divisions are not as acute in these countries as in South Africa.

Besides the need for organisations representing military personnel to concede to the above-mentioned constitutional principles, restrictions could be placed on activities that may be detrimental to organisational or combat effectiveness. For example, limitations could be placed on the right to intervene in the chain of command and authority structure, if it threatens to divide the loyalty of the member between the unit and the union/professional organisation. Activities that may undermine discipline or combat readiness could also be constrained. As the collective resistance against authority is considered an act of mutiny, limitations could be placed on the right to strike or demonstrate. Provision could be made for the entire representation process to be suspended during times of national emergencies or war. Similar regulations have been placed on military unions and professional associations in advanced democracies. However, if such, or any other limitations are to be imposed on trade unions or professional associations, the military will have to show that they are reasonable and justifiable.

Should such restrictions be accepted by the military associations or unions and enshrined in legislation, it would remove many of the potential fears that group representation may hold for the SANDF. Under such conditions, some form of group representation for military personnel could be permissible, and may even contribute towards morale and loyalty. The present dissatisfaction within the ranks of the SANDF is not as a result of union involvement, but due to the lack of effective grievance and representative structures. As Cortright¹⁹ aptly states, "... unions do not create employee grievances, they simply try to deal with them and erase their causes. The tensions that threaten military reliability cannot be traced to unionisation. They depend on military mission and on command ability to meet rank and file needs. Internal effectiveness hinges on the decisions of commanders, not labour leaders." The solution lies with the military leadership's ability to resolve disputes.

The question that remains, is what the role and function will be of an organisation representing military personnel, given the restrictions placed on their activities. Even negotiations over pay and conditions of service are in most cases removed from the scope of bargaining, as benefits gained from negotiated settlements by the public service unions are extended to uniformed personnel. A shortcoming is that there is no organisation or institutionalised mechanism whereby uniformed members can participate in the formulation of policy, or where they can lobby, bargain or negotiate for their unique institutional requirements.

Process of representation and joint consultation

The form of group representation that may be permitted in the SANDF, in all probability, would not resemble trade unions in the classic sense, but be closer in definition and behaviour to that of a professional association. Based on the premise that members of the SANDF may be permitted some form of group representation, the following process of representation and joint consultation could be considered (see Diagram).

Institutionalised process of joint consultation



Those organisations approved by the Minister to represent the collective interests of military personnel, upon prior agreement, could hold regular informal and formal discussions with the Ministry of Defence (MoD) on matters that affect their service dispensation and employment in the SANDF.

After holding informal discussions with the associations, the MoD confers with the relevant role-players, such as the Chief of the Defence Staff of the SANDF and designated staff officers, and representatives of the Defence Secretariat and Public Service Commission (representing the state as employer). The Minister may also consult other external role players, such as the MO, should this be deemed necessary.

Hereafter, the MoD holds formal discussions with the associations. After considering the recommendations of the various organisations representing military personnel, the Minister makes a final decision. Should the Minister turn down recommendations by the respective associations, the reasons for doing so need to be motivated. However, to give this process legitimacy, any matter falling within the jurisdiction of discussion on which the associations have not been consulted, has no judicial validity.

Matters which may have political repercussions could be referred by the Minister of Defence to the Joint Standing Committee or the Portfolio Committees for Defence for deliberation. Should the decisions made by these committees require a revision of policy, these can then be referred to the Defence Secretariat whose task it is to formulate human resource policy. The input of the SANDF is secured through the Council on Defence,²⁰ which is the forum for institutional decision-making affecting the entire DoD. Once policy has been formulated, the MoD once again can consult the associations for their final comment. This process may ensure that organisations representing military personnel are not placed in a position of confrontation with the SANDF. At the same time, the associations have an opportunity to influence any draft agreement, decree or directive affecting their service conditions, before being promulgated.

Even if there should be no formal organisation representing the interests of military personnel, this structure could be of value. In Germany, for example, `trustmen' are selected to represent and serve on a council at the level of the MoD. Similarly, representatives of the unit forums could be elected to serve on a regional forum, which in turn nominates members to serve on a central body at MoD level which would advise the Minister of Defence on problems and grievances within the ranks.

While the above process may ensure some form of participation in policy formation, there is still a need for a mechanism whereby uniformed personnel can negotiate or lobby for their unique service requirements. In the Co-ordinating Bargaining Council of the Public Service, the Public Service Commission represents the state as collective employer, versus the trade unions and personnel associations, which represent the interests of the public servants as employees. As uniformed personnel are excluded from the Labour Relations Act, the military per se is not represented on this forum. Even though pay and conditions of service negotiated for the broader public service is extended to military personnel, (effectively removing a potential area of conflict from the military arena), the unique institutional requirements of the military cannot be negotiated in this forum. An alternative mechanism through which the interests of the military could be accommodated, outside the bargaining structures that are in place for the rest of the public service, is required.

A means to accommodate the interests of military personnel under the current dispensation, is to create a special mechanism, such as a Defence Service Review Board (DSRB), for military personnel. Typically, representatives of the various organisations representing military personnel, and representatives of the DoD and the Public Service Commission, would serve on the DSRB. This would not be a collective bargaining forum, but a mechanism for joint consultation and recommendation. As previously mentioned, salaries are negotiated by the broader public service and extended to military personnel. This forum serves only to address the unique service conditions of uniformed members which need to be reviewed by the Public Service Commission. Should there be fundamental areas of conflict between the parties concerned, these could be referred to the Minister of Defence and ultimately to the President, as Commander in Chief of the SANDF, for final determination.

An area of concern is the degree of pressure that will be brought to bear on political authorities by organisations representing military personnel. One of the main reasons why military personnel elsewhere have formed collective organisations, is precisely because interest groups are more effective in persuading the political authorities to accept participation in those areas of decision-making that affect such groups. These include cuts in military budgets, possible amendments in military benefits, and to the system of military justice. What remains uncertain is what form of pressure, and what the powers of such organisations will be. A principle of military professionalism is, after all, the acceptance of constraints on the institutional autonomy of the military by civil authorities.

Should such associations press to be the ultimate judges on all matters affecting the armed forces, this could seriously disturb the current delicate balance of civilian control over the SANDF. Harries-Jenkins²¹ warns that, where the military has suffered an undue amount of deprivation, pressure groups are often formed to re-establish formerly held privileges. Strong professional associations, lobbying for the institutional interests of the military could pose a threat to civil-military relations, especially where the interests of such organisations run counter to public interest.

CONCLUDING REMARK

Given the constraints that could reasonably and justifiably be placed on organisations representing military personnel, it is unlikely that trade unions, as found in the civilian sector, could be compatible with military service. Nevertheless, experience in both the private and public sector demonstrates that, if the need to unionise exists, no law or legislation will prevent it.

The task faced by the SANDF is to create acceptable alternatives. The ultimate challenge is to balance the needs of the solider in a free democratic society, versus the needs of the military to have an effective organisation, bound by professional principles, but subordinate to the needs of society.

ENDNOTES

This article is based on a chapter in the author's Masters dissertation, entitled The Soldier as Employee: The Compatibility of Labour Rights with Military Service, submitted to the Faculty of Social Science and Humanities, University of Cape Town, April 1997.



See G Caforio, Military Unionisation in Western Countries: The State of Studies, International Forum, 16, Socialwissenschaftliches Institut der Bundeswehr (SOWI), 1994. For the South African situation see, L Heinecken, Soldiers and Employee Rights: South African Trends and Issues, Strategic Review for Southern Africa, 16(2), 1994 and L Heinecken, Soldiers in Unions: A Democratic Imperative or Threat to National Security?, Strategic Review for Southern Africa, 19(1), 1997.



A commission under the chairpersonship of Rear Adm J E Retief has been tasked to review the entire Defence Act, including the MDC, to bring it in line with constitutional requirements. The revisions affecting summary trials, which can be compared to disciplinary hearings, as well as court martials may have some impact on labour relations.



A `dispute of right' is that to which a party is entitled by law, by contract, by agreement or by established practice. Most of the complaints which can be channelled through the MDC, fall within this category. A `dispute of interest' is that to which the party is not yet entitled. Any matter causing conflict between an employer and employee and not regulated by law, agreement or custom can give rise to a `dispute of interest'. It is specifically in this sphere where there is a lack of effective individual and collective procedures with some form of dispute resolution mechanism for uniformed personnel in the SANDF.



M Grobbelaar, The Consideration of a Representative Labour Relations System for the SANDF within the New Political Dispensation in the RSA, staff paper submitted to the South African Defence College, Pretoria, 18 October 1996.



Racism is Rife in the New Defence Force, Weekly Mail & Guardian, 10-16 January 1997, p. 6.



Military Ombudsman Planned: Yengeni, Citizen, 16 June 1996, p. 11.



South African National Defence Force (SANDF), Defence in a Democracy: White Paper on National Defence for the Republic of South Africa, p 12; Citizen, op. cit.



The role and functions of the Military Ombudsperson could be prescribed in the Defence Act which is currently substantially revised to bring it in line with the Constitution and provisions spelled out in the White Paper on Defence.



SANDU is presently preparing to take the SANDF to the Constitutional Court to obtain the right to be recognised and to represent the interests of uniformed military personnel.



Weermag Mag nie Sonder Borgtog Aanhou, Beeld, 24 February 1997, p. 4.



B Chapman, The Profession of Government, Unwin Press, London, 1966, p. 251.



The purpose of an industrial union is to represent all persons, irrespective of occupation, in a specific industry. Most of the unions belonging to Cosatu are organised along these lines.



Collective bargaining can be defined as "the method of determining conditions of employment which utilises the process of negotiation and agreement between representatives of management and employees." Collective action (in the form of a go-slow, strike or boycott) is an integral part of the collective bargaining process as it is a means whereby unions show their power and attempt to pressurise the employer into continued negotiation. For definitions see M Salamon, Industrial Relations: Theory and Practice, Prentice Hall, New York, London, 1989, p. 266.



Joint consultation can be defined as a "process wherein management determines the issues on which the views and opinions of its employees are to be sought and retains the discretion to decide the final outcome without subjecting it to joint agreement with employees or their representatives"; see ibid., p. 243.



See Heinecken, op. cit., pp. 68-70.



Section 226 (6) of the Interim Constitution states that, "[n]o member of the permanent force shall hold office in any political party or political organisation." This clause has been expanded in the Constitution of the Republic of South Africa, 1996, Section 199 (7) to: "Neither the security service, nor any of their members, may, in the performance of their functions (a) prejudice a political party interest that is legitimate in terms of the Constitution; or (b) further, in a partisan manner, nay interest of a political party."



Section 8 (2) of the Interim Constitution states that, "[n]o person shall be unfairly discriminated against, directly or indirectly, and without derogating from the generality of this provision, on one of more of the following grounds in particular: race, gender, sex ..." Section 9 (3-4) of the final Constitution includes a similar provision.



D Cortright, Unions and Democracy, in W Taylor, R Arango & R Lockwood (eds.), Military Unions: US Trends and Issues, Sage Publications, Beverly Hills, London, 1977, p. 231.



The Council on Defence consists of the Minister, the Deputy Minister, the CNDF and the Secretary of Defence.



G Harries-Jenkins, Trade Unions in Armed Forces, in Taylor et. al., op. cit., p. 61.