By: Zandile Mavuso
With this year’s five-month-long platinum-sector strike foremost in the minds of most delegates, various commentators suggested that amendments be made to the Labour Relations Act (LRA) to better regulate the right to strike.
The way in which other countries handled strikes was also discussed, and speakers highlighted various issues that should be considered if amendments were to be made to the LRA.
Some argued that the unrest in the mining sector might stem from the socioeconomic factors the country has to address to alleviate increasing tension between workers and employers in the sector.
They suggested interest arbitration as a possible alternative to the current collective bargaining system. The National Development Plan (NDP) was also highlighted as the ideal platform from which to create synergies between the private and public sectors, and between government and the unions, as it would prove beneficial to all the relevant stakeholders.
Chamber of Mines president Mike Teke pointed out in his keynote address that South Africa had to start building these synergies to find a balance between driving economic growth and meeting the needs of the labour environment.
He mentioned that the NDP was the perfect platform to create opportunities for all stakeholders to work together to tackle the various challenges facing South Africa’s labour force, including poverty, unemployment and inequity.
“South Africa remains the world’s best mining address and steps should be taken to build the future of the industry collectively, while acknowledging past wrongs,” he said.
A week after the labour conference, at the 2014 Mining Lekgotla, which took place in Johannesburg, Labour Minister Mildred Oliphant stated: “The lack of real transformation, socioeconomic equity and mutual respect and trust in the workplace have contributed to the anger and frustration in the current industrial relations dynamics”.
She emphasised that labour legislation was not to blame for the prolonged and often violent strikes in various industries in South Africa, and that opting for a “quick fix” or an “emotional” solution to the country’s bitter labour relations would not be sustainable.
Industrial sociologist Gavin Hartford seemed to concur in his address at the Labour Law Conference. He referred to the strike at Lonmin’s Marikana platinum mine in 2012, which culminated in the death of 44 people, as South Africa’s “mirror and lodestar” of how negotiations over wages and labour relation issues had degenerated over time.
He argued that socioeconomic inequality was at the root of the many unprotected strikes in South Africa over the last few years, with workers facing rural poverty, among many other challenges. This, he added, had caused severe indebtedness, as the cost of living had become too high for workers to properly take care of their financial responsibilities.
Hartford further noted that mineworkers’ reliance on unions to negotiate wage increases had also turned into a bitter-sweet situation for mineworkers, as unions had shifted their focus from promoting workers’ interests to being the majority and ruling union.
“Union democracy has been lost over the years, as union leaders’ accountability to employers has substituted their accountability to union members. Union leaders have become more prone to focusing on the benefits of being shop stewards than on finding ways to deal with issues affecting workers socially and economically,” he explained.
He further pointed out that the collective interests of workers currently favoured majoritarianism and created illusionary comforts for workers, hence the continued dissatisfaction with wage negotiations between unions and employers.
Hartford also mentioned that the exclusion from negotiations of foremen and line managers, who work closely with workers on a daily basis, was worrying. Negotiations had also become a case of mining companies’ human resource departments, instead of mine management, being at the forefront of discussions with unions. Consequently, negotiations were solely based on "professionalism", which tended to disregard the socioeconomic problems that caused workers to strike in the first place.
“We need to go back to the basics of negotiation to alleviate wage-related strikes. To do this, it is important for employers to re-establish social and individual relationships with their workers, whereby they become aware of the issues that workers face on a daily basis,” advised Hartford.
He further noted that rethinking human resources and line management roles in negotiations was pivotal, while union democracy is key to ending inter-union rivalry.
Further, establishing workplace dialogue and forums would assist employers in becoming aware of worker concerns, thereby preventing strikes, as problems can be dealt with beforehand.
South Africa has one of the highest incidence of industrial action in the world, with the strikes also being among the most violent.
In 2012, the country lost 17-million work hours, with 16-million of these in the mining sector, where 99 strike took place, 45 of which were unprotected or violent.
“During Marikana, a misconception that all the workers had received a 22% hike in wages spurred strike action across the mining sector, particularly in the gold and coal sectors,” said Bowman Gilfillan consultant and employment and alternative dispute resolution specialist John Brand, who also spoke at the conference.
He said there was a need to re-evaluate the legal status of the right to strike in South Africa.
The Commission for Conciliation, Mediation and Arbitration (CCMA) has suggested interest arbitration as an alternative to collective bargaining, which the commission's director, Nerine Kahn, said was not proving beneficial in any industry or sector in South Africa.
“Interest arbitration is a mediated process between parties in which an arbitrator or arbitration panel makes a binding ruling in a dispute on the grounds that a settlement would be in the wider public interest,” explained Kahn during her Labour Law Conference address.
Organised labour's reaction to this suggestion has not been favourable. A Johannesburg daily reported on August 12 that the Congress of South African Trade Unions (Cosatu) had started to brief its lawyers on finding ways to block attempts by government to pass interest arbitration.
Cosatu argued that interest arbitration was a direct threat to the constitutional right of workers to strike.
As indicated in the South African Bill of Rights, the right to strike is more than a freedom to strike, which only protects against criminal, contractual and delictual sanction.
The Constitution permits the right to strike to be limited in terms of laws of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom.
“There is, therefore, a need to balance the right to strike with other fundamental rights, such as those pertaining to trade, property, movement, healthcare, food, water and social security, which are also enshrined in the Bill of Rights,” said Brand.
He suggested that the Constitution and the Constitutional Court consider international and foreign law in re-evaluating the right to strike in South Africa.
Brand highlighted that legislation on the right to strike in the US, New Zealand, Australia and Canada included limitations on the duty of good-faith bargaining and a right to court intervention, while Canadian and Australian legislation also included secret ballot requirements. This ensured that workers who did not want to take part in a strike were not forced into it.
Brand also indicated that the legislation had worked well for these countries and could be considered in South Africa.
He further mentioned that establishing an independent institution to educate social partners about their rights and obligations in terms of the Bill of Rights, training them in mutual gain, good-faith negotiation and risk analysis, and providing them with reliable and relevant financial and economic information about collective bargaining could be beneficial to South African workers’ right to strike.
“While the rationale behind collective bargaining is to maintain industrial peace, the protection given to the fundamental right to strike is based on the functional importance of strikes to collective bargaining in a free market economy,” he said.
Consequently, Brand suggested that a specialised Industrial Action Protection Unit could be established in the South African Police Service to protect people from criminal conduct during industrial action. Employers – other than those in essential services – must not be allowed to hire replacement workers during protected industrial action. Further, trade unions, trade union officials and office bearers must be required to respect the right of nonstrikers to work.
Brand also suggested that the Labour Court be given a mandate to grant appropriate and proportional relief to any party whose rights had been violated during industrial action for any breach of the law. This might include, in extreme cases, suspending the protection of industrial action for limited periods.
“The Labour Court must also be given the power to lift industrial action protection in the event of acute national emergency. In such an event, compulsory arbitration must be substituted as the method of determining disputes,” concluded Brand.