The challenges facing South Africa’s labour market in 2016 have been evident in a number of recent judgments and in ongoing processes of engagement between social partners.

The introduction of a national minimum wage remains high on the policy agenda, but its relationship with job losses and job creation remains obscure. Plans by the National Union of Metalworkers of South Africa to launch a new trade union federation appear to have stalled, with the timing of the launch and its trade union composition still up in the air. Important court judgments on industry collective bargaining and affirmative action have been handed down, and the mining sector is still struggling to emerge from a period of industrial relations instability following a rupture in traditional union membership in the sector. All this comes against the backdrop of a jobs crisis that shows no sign of abating.

The 2015 labour law amendments offered the most vulnerable workers improved protection and job security. At the same time, there is evidence of a significant reduction in the number of jobs available. Whether this proves that better labour protection destroys jobs is hotly contested, but common sense suggests that there is at least some causal link. On the horns of a dilemma, government continues with attempts to demonstrate a commitment to worker interests. There have been no signs of change or a new path so far in 2016. It may be important not to overstate the extent to which labour laws and labour market policy can grow employment, but there is little evidence of government intervention in this area that will either stimulate employment or grow jobs in the short term.

There have been ongoing discussions at the National Economic Development and Labour Council (Nedlac) about the national minimum wage. Representations and public hearings on the issue took up a significant amount of time and energy in 2015 and have continued in 2016. The potential impact of a national minimum wage is that, if it is set too low, in order to avoid destroying jobs in the lowest-paid sectors, it will have little impact on higher-paid sectors. On the other hand, if it is set too high, it may negatively affect jobs across the economy. Government’s public statements are, however, clear. While the appropriate wage level must still be divined, it will push ahead to introduce a minimum wage.

The form of increased regulation of strikes has also been under continuous debate this year. Government had, in the previous round of amendments to the Labour Relations Act (LRA), proposed changes to the provisions regulating strikes, reintroducing compulsory strike ballots and increasing the powers of the Labour Court to intervene in violent strikes. But these were withdrawn following trade union lobbying of the Parliamentary Portfolio Committee in 2014. Similar provisions are, however, the subject of a separate ongoing engagement process at Nedlac. There is still some prospect that improved regulation of strikes will emerge from this process during the remainder of the year.

The year has also produced ongoing contestation over the effect of centralised collective bargaining. Judgement in the Free Market Foundation challenge to the extension of collective agreements to nonparties was handed down in the North Gauteng High Court and produced claims of victory all round. Despite some of the small print, the judgment clearly endorses the basic structure through which the LRA regulates industry bargaining. But the precise relationship between decisions taken under these provisions and the Promotion of Administration of Justice Act remains somewhat obscure.

Judgment has also been handed down by the Constitutional Court in the appeal brought by trade union Solidarity against the Department of Correctional Services in an affirmative action case. Solidarity had argued that employees in the Western Cape had been overlooked for promotion when the department wrongly used national, instead of regional, racial demographics in the hiring process. The case is one of a series of similar challenges brought by Solidarity against the use of national demographics and an ongoing system of race classification in hiring and promotion practices, particularly in the public service. The Constitutional Court agreed with Solidarity that the use of national demographics alone in that case was not consistent with the provisions of the Employment Equity Act. The decision has important implications for the application of race-based affirmative action in a country where there is no even distribution of ‘races’ across different provinces or regions.

Earlier in the year, Solidarity had been granted an interdict to halt all employment equity promotions and appointments in the South African Police Service pending the outcome of its dispute with the Correctional Services Department. The Constitutional Court’s decision will, undoubtedly, have far-reaching implications throughout the public sector.

Further realignment of trade union affiliations appears inevitable. Whether or not this is good for workers is a matter of debate. But, for businesses, interunion rivalry is likely to produce a period of industrial relations instability, at least until the strength of new union formations has been established.

The mining industry, in particular, has suffered severe labour relations instability since shortly before the Marikana tragedy, in August 2012, and the growing significance of a new mining trade union has presented significant challenges to collective bargaining in the sector.

The impact has spread to a number of other industries. It is unlikely that the proposal by the Congress of South African Trade Unions to compel industry bargaining will improve the situation, and there is little that the law can do to stabilise the effects of intense interunion rivalry in the workplace. Instead, a return to basic principles of labour management relations and greater focus on effective industrial relations at the workplace rather than at industry level are more likely to restore stability in the medium term.

These decisions and many more will be discussed at the twenty-seventh Current Labour Law seminars, which take place in Johannesburg, Cape Town and Durban between October 11 and 14, 2016.