THE Farlam Commission of Inquiry into the events at Lonmin’s Marikana mine provides a unique opportunity to reflect on the health of SA’s collective bargaining framework. As a member of the mediation team that oversaw the final Lonmin pay agreement, and as someone involved in other volatile pay disputes, one can’t help feeling we are at a crossroads.
And one can only hope that, while providing some much-needed clarity on what led to the tragedy at Marikana, the commission will also take a long, hard look at our labour relations framework and how it may have influenced not just Marikana, but other industrial disputes.
The Lonmin dispute is, in many ways, a microcosm of some of the new challenges we face in applying a collective bargaining framework that was developed during different times and in different circumstances.
Our current legislative framework, developed in the mid-1990s, is founded on the principle that the majority union in any workplace has the right to bargain collectively and enter into binding wage agreements, and the outcomes of those agreements apply to all workers in that workplace.
There are rules and regulations defining how this should happen, and when parties fail to agree they have recourse to the Commission for Conciliation Mediation and Arbitration (CCMA).
This winner-takes-all approach was developed and adopted when there was a fair degree of union stability, a growing consolidation within the trade union movement, and a strong commitment to social dialogue and inclusive solutions within the government, labour, business and civil society. But much has changed since then.
A key element of Marikana, for example, is the fact that many Lonmin workers chose to represent themselves rather than being represented by a recognised union. In doing so, they not only rejected existing unions, they also in effect rejected the recognised collective bargaining structures. Their decision to represent themselves could be regarded as a vote of no confidence not just in their representatives, but in the system in which their representatives function.
In many cases, this rejection is a consequence of the fact that majority unions and employers have entered into threshold agreements that deny minority unions basic organisational rights. These include stop order facilities and access to the workplace to hold meetings and to organise and recruit new members.
Consequently, if particular categories of workers (or members of minority unions) have little voice, these workers may feel they are not heard in the negotiation process. In many instances, this has created groups of disaffected workers who then reject the unions and opt for a more organic form of organisation and protest.
This strategy of organising disaffected workers has been highlighted in the recent mining disputes, but is not unique to the resources sector. As was seen at Lonmin, the labour relations environment begins to shift when rival or smaller unions seek to capitalise on legitimate grievances among workers who, under normal circumstances, would be represented at the negotiating table.
Because of this sense of frustration and exclusion, emerging unions and/or worker delegations tend to seek other avenues to highlight their grievances — such as unprocedural strikes and, ultimately, violence. In addition, they tend to demand higher wages than established unions as a strategic organising tool.
This phenomenon is at the core of the current wave of labour disputes in the platinum belt. And it is compounded by what workers perceive as an absence of union leadership, with workers saying they do not feel adequately represented. The ramifications for the collective bargaining process are numerous, and pose very real challenges to the government, business and labour. First, the concept of closed-shop agreements is being undermined as the concomitant rights that evolve from them are not playing out realistically in the workplace.
Second, although the Labour Relations Act (LRA) permits legitimate protest action in workplace disputes (through CCMA processes) or through socioeconomic protest (through the National Economic Development and Labour Council) it is increasingly clear that workers and broader society do not believe this actually assists them. On several occasions during the platinum-belt disputes, for example, workers raised issues that fall outside the ambit of the collective bargaining process and the scope of the CCMA — for example, demands that employers take responsibility for social delivery they believe is not coming from the government.
Third, the complexity and legality of dispute resolution processes often results in a sense of alienation among workers. So while these processes may resolve a particular dispute, they do not necessarily result in workplace stability. This is compounded by the fact that workers who do not belong to a recognised union may not be provided with the same level of explanation and context as workers whose union leaders are experienced negotiators. So while some of the dispute resolution mechanisms and outcomes may be legally correct, they may not feel socially acceptable to all affected parties.
Fourth, there is confusion and anger over expectations of employers and of the government when it comes to nonworkplace (or social) issues, which significantly affects workers’ aspirations. Worker representatives, increasingly, are fighting just as hard for social change as they are for workplace change — based, it appears, on a sense that existing political and civil society groups cannot do this for them.
Fifth, the sense of disempowerment inevitably leads to anger and violence, seemingly based on the belief that this is the only way to get attention. Recent research by the Congress of South African Trade Unions, for example, shows that workers believe they will get more attention if they resort to violence. This is not what the LRA was envisaged to do when it enjoined us to ensure industrial peace.
But we have to ask to what extent it mirrors the attitude in communities that embark on service delivery protests in an attempt to get the government’s attention, having become frustrated with their ward councillors and other representatives?
Ultimately, we have to ask: is our present LRA framework still suited to the changing union dynamics, the growing inequalities in our society, the growing social responsibilities of employers (for example, as enshrined in the social and labour plan commitments made by mining companies) and in the context of the blurred lines around the social development responsibilities of both the government and business?
One profound lesson the CCMA has taken from Marikana is that the dream of collective bargaining structures, its voluntarist system and the manner in which we are conducting it, no longer meets the aspirations of the lowest-paid workers.
During the Farlam Commission of Inquiry, and in the months afterwards, we need to recognise the changing dynamics of the labour market, heed the realities of corporate SA in the current economic environment, recognise the expectations of workers who may not feel adequately represented in the present collective bargaining framework, and re-examine the role of the state in regulating industrial relations.
• Kahn is director of the CCMA.
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