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25 Indus. L.J. (Juta) 805 (2004)
Fair Labour Practices - The Wiehahn Legacy

handle is hein.journals/iljuta25 and id is 859 raw text is: Fair Labour Practices The Wiehahn Legacy ADOLPH A LANDMAN* INTRODUCTION One of the United States of America's lesser known exports is the concept or more accurately the taxonomy 'unfair labor practice'. Apart from South Africa the notion of an unfair labour practice is incorporated in the laws of Bangladesh, India, Japan and the Philip- pines.1 The notion crossed the Atlantic and landed on British shores where it was promptly anglicized and incorporated, for a brief period, into English labour legislation as 'an unfair industrial practice'. An 'unfair labor practice' started life in the USA as a handy descrip- tion for a clutch of statutory torts designed to curb employer action against trade unions organizing.3 The phraseology, removed from its context, found its way into South African labour legislation, at a critical moment in our political development. THE SOUTH AFRICAN RECEPTION In the 1970s when industrial action by emerging or black trade unions, as a force for political enfranchisement, began strangling the economy, Professor Nic Wiehahn4 persuaded the government of the day to establish a commission to investigate labour legislation with specific reference to 'the methods and means by which a foundation for the creation and expansion of sound labour relations may be laid for the future of South Africa'.5 The first interim report of the Wie- hahn Commission addressed discrimination against black workers and the method of maintaining it through 'job reservation', that is, * Judge of the Labour Court. 1 Blainpain Encyclopedia for Labour Law and Industrial Relations vols 1, 2, 4, 5 and 6. 2 Paul Davies & Mark Freedland Kahn-Freund's Labour and the Law (3 ed) at 211: 'The Industrial Relations Act 1971 was the first statute in this country to proclaim freedom of organisation as a legal principle, i e the freedom to be a member of a union, to participate in its activities, and to stand for, or to hold, office in it. If an employer discriminated against, or penalised, a worker because he had exercised this freedom, e g if he refused to engage or to promote him or if he dismissed him for that reason, this was on the American pattern an unfair industrial practice.' See also Paul Davies & Mark Freedland Labour Legislation and Public Policy (1993) at 294. 3 See Philip Selznick Law, Society and Industrial Justice (1969) at 140. 4 For a useful perspective on Wiehahn and the commission see chapter 6 'Nicolaas Wiehahn and the End of Classical Labour Ideology' in Steven Friedman Building Tomorrow Today African Workers in Trade Unions 1970-1984 (1987). SLex Patria The Complete Wiehahn Report parts 1-6 and the White Paper on each part with notes by Prof N E Wiehahn at xxxi-xxxiii. 805

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