STRIKE AVOIDANCE

1. STRIKE AVOIDANCE HOW TO DEVELOP AN EFFECTIVE STRIKE AVOIDANCE STRATEGY Presented by John Brand 12 August 2010

2. INTRODUCTION • The importance of the right to strike • The rationale for the right to strike • Forms of strike action – peaceful or violent • Forms of negotiation – mutual gain or adversarial • The mutual gain approach to strike avoidance • The prevalence of bad faith bargaining • The prevalence of strike violence • Preparation for war to achieve peace • Conclusion

3. THE IMPORTANCE OF THE RIGHT TO STRIKE • Section 27 of the Constitution • The importance of the right to strike • ‘If workers could not, in the last resort, collectively refuse to work, they could not bargain collectively. The power of management to shut down the plant (which is inherent in the right of property) would not be matched by corresponding power on the side of labour. These are the ultimate sanctions without which the bargaining power of the two sides would lack “credibility”. There can be no equilibrium in industrial relations without a freedom to strike.’ – P Davies and M Friedland, in Khan – Freund’s Labour and The Law 3rd Edition (1983) 292.

4. RATIONALE FOR THE RIGHT TO STRIKE • Bargaining balance • Peaceful withholding of labour to force an employer to meet a demand • Bargaining not begging

5. FORMS OF NEGOTIATION AND STRIKE ACTION • Good faith and peace • Bad faith and violence • Permutations

6. AVOIDANCE BY MUTUAL GAIN NEGOTIATION What unions and employers do • Accept the pluralist idea of partnership and mutual gain • Accept each other as legitimate entities with divergent interests • Subscribe to constitutional democracy • Recognise that strike action is often futile • Recognise strike is an act of last resort • Recognise dependence and independence • Recognise overlapping and different interests

7. AVOIDANCE BY MUTUAL GAIN NEGOTIATION What unions and employers do (cont.) • Have recognition agreements which commit to: • freedom of association; • good faith bargaining; • exhaustion of disputes procedures; • democracy; • picket rules; and • non-violence.

8. AVOIDANCE BY MUTUAL GAIN NEGOTIATION What unions and employers do (cont.) • Eliminate conflict aggravators and introduce conflict moderators • Conduct negotiation which is characterised by: • Joint training in modern negotiation theory and practice • Use of an independent and trusted facilitator • Adoption of problem solving methodology • Sensitivity to the negotiation paradox

9. AVOIDANCE BY MUTUAL GAIN NEGOTIATION What unions and employers do (cont.) • Conduct negotiation which is characterised by (cont.): • Adjusting the mandating process • Exploring causes, interests, needs, fears and concerns • Credible exchange of information • Creative solution search • Objective solution evaluation • Trading across issues • “Expanding the pie” • Use of single text

10. AVOIDANCE BY MUTUAL GAIN NEGOTIATION • Essentially • Negotiation is characterised by

11. THE PROBLEM SOLVING PROCESS PROBLEM ANALYSIS SOLUTION SEARCH SOLUTION EVALUATION SOLUTION CHOICE

12. INTEREST BASED NEGOTIATION PARTY A PARTY B WHAT WE SEE OR HEAR POSITIONS DEMANDS NEEDS INTERESTS FEARS CONCERNS WHAT IS HIDDEN OVERLAPPING INTERESTS

13. INTEREST BASED NEGOTIATION

14. PEACEMAKERS + CREATOR CREATOR = GREAT/GREAT OUTCOME

15. ADVERSARIAL NEGOTIATION AND STRIKE VIOLENCE Judge Basson said in the Labour Court: “In summary, this strike was marred with the most atrocious acts of violence on non-striking employees. The individuals who perpetrated these acts clearly had no respect for human life, the property of others or the rule of law. What makes matters worse is the fact that it appears from the evidence that the police and the criminal justice system have dismally failed these defenceless non-strikers. Although criminal charges were laid against certain individuals, nothing happened to these charges. The non-strikers were completely at the mercy of vigilante elements who did as they pleased and who had no regard for the life and property of defenceless individuals. It must be pointed out that although a certain measure of rowdiness and boisterousness behaviour are expected or typical to most strike actions, the acts that marred this particular strike were particularly violent and senseless and stretched far beyond the kind of conduct that normally occurs during a strike”

16. ADVERSARIAL NEGOTIATION AND STRIKE VIOLENCE The Judge concluded that: “Strikes that are marred by this type of violent and unruly conduct are extremely detrimental to the legal foundations upon which labour relations in this country rest. The aim of a strike is to persuade the employer through the peaceful withholding of work to agree to their demands. As already indicated, although a certain degree of disruptiveness is expected, it is certainly not acceptable to force an employer through violent and criminal conduct to accede to their demands. This type of vigilante conduct not only seriously undermines the fundamental values of our Constitution, but only serve to seriously and irreparably undermine future relations between strikers and their employer.”

17. ADVERSARIAL NEGOTIATION AND STRIKE VIOLENCE • What conflict is contemplated • The class war • Conventional constraints: • Good faith • Democracy • Non violence

18. ADVERSARIAL NEGOTIATION AND STRIKE VIOLENCE • LRA constraints: • Offences • Peaceful pickets • Criminal justice system • LRA amendment • Employer counter strategy

19. THE TYPICAL DYSFUNCTIONAL STRIKE • The typical dysfunctional strike in recent times has been characterised by: • Picket line violence • Absence of a ballot • Minority support • Persuasion / Intimidation • Replacement workers from the unemployed • Clashes between strikers and non-strikers • Court interdicts • Employment of private security

20. THE TYPICAL DYSFUNCTIONAL STRIKE • The typical dysfunctional strike in recent times has been characterised by (cont.): • Violence at homes • Lack of overt encouragement of violence by unions • Failure to curtail violence by unions • Shifting blame • Calls to marshal picket lines and help management ineffective • Difficulty to sustain the strike • Escalation of violence • Polls amongst strikers

21. THE TYPICAL DYSFUNCTIONAL STRIKE • The typical dysfunctional strike in recent times has been characterised by (cont.): • A decision to terminate the strike • Role of the media • Loss to workers • Loss to employers

22. THE TYPICAL DYSFUNCTIONAL NEGOTIATION • The negotiations which have preceded these strikes have typically had the following features: • Letter with a list of demands from the union • Rejection and low counter proposals by the employer • Assumption of win, lose or eventual compromise • Lack of counter demands by the employer • Positional preparation • Exaggerated motivation • Demeaning of opponents • Threats to walk out and walk outs

23. THE TYPICAL DYSFUNCTIONAL NEGOTIATION • The negotiations which have preceded these strikes have typically had the following features (cont.): • Early declaration of disputes • Assumption that real negotiation will only take place: • with imminent or actual strike action • at the CCMA • Hope that an employer will take fright and make concessions • Un-reciprocal concessions • Slow moves from concession to concession

24. THE TYPICAL DYSFUNCTIONAL NEGOTIATION • The negotiations which have preceded these strikes have typically had the following features (cont.): • Manipulation of information • Adversarial rhetoric • Incremental removal of non-wage issues • Threats to use power • Benign uses of power • All out strike action

25. WHAT THE NEGOTIATION LOOKS LIKE Party A Party B Position Position Position Position Position Position Position Position Compromise Threat and power zone Threat and power zone Zone of potential agreement “ZOPA” Haggle zone Insult Zone Haggle zone Insult Zone

26. TYPICAL DYSFUNCTIONAL NEGOTIATION + CLAIMER CLAIMER = MEDIOCRE / MEDIOCRE OUTCOME

27. PREPARATION FOR WAR • People who want peace but who are faced with war need to: • Remember that if you want peace, prepare for war • Develop a comprehensive strategy • Include action plans in the strategy on: • production; • security; • legal; • Internal communication; • external communication;

28. PREPARATION FOR WAR • People who want peace but who are faced with war need to (cont.): • Include action plans in the strategy on (cont.): • financial information; • human resource information; • human resource climate; and • negotiation tactics.

29. PREPARATION FOR WAR • People who want peace but who are faced with war need to (cont.): • Use a tried and tested strategy formulation process with the following stages: • Stage 1 – preparation • Stage 2 – environmental scan • Stage 3 – facilitated workshop • Stage 4 – review and monitoring

30. PREPARATION FOR WAR • People who want peace but who are faced with war need to (cont.): • Stage 1 - Preparation • strategy formulation group; • facilitation; • dates; • venue; • invitation to guest presenters; and • pre-reading.

31. PREPARATION FOR WAR • People who want peace but who are faced with war need to (cont.): • Stage 2 – Environmental scan • conscientising the strategy team about the environment; • exposure to relevant information; • exposure to options; • presentations on • state of the macro economy • the employer’s financial position • the parties strategic plans • current wage settlements • macro HR and political environment; and • micro HR environment

32. PREPARATION FOR WAR • People who want peace but who are faced with war need to (cont.): • Stage 3 – Facilitated workshop • swot analysis; • organisational objectives and challenges; • “putting on the opponents shoes”; • BATNA analysis; • isolating themes; • typical themes: • negotiation tactics; • internal communication; • external communication;

33. PREPARATION FOR WAR • People who want peace but who are faced with war need to (cont.): • Stage 3 – Facilitated workshop (cont.) • typical themes (cont.): • security; • legal; • financial information; • HR information; • HR climate; • continuous production; • development of action plans; • what, who, when and responsibility;

34. PREPARATION FOR WAR • People who want peace but who are faced with war need to (cont.): • Stage 4 – Review and monitoring • overall purpose of the strategy is: • to strengthen one’s hand at the bargaining table and weaken that of the other • to equip the negotiating team with detailed financial and human resource information • to develop security plans to survive a strike if it eventuates • to develop legal plans to ensure compliance with the LRA, the recognition agreement and civil and criminal laws • to foresee scenarios • to plan “changing the game” techniques

35. PREPARATION FOR WAR • People who want peace but who are faced with war need to (cont.): • overall purpose of the plan is (cont) • understanding roles and responsibilities and ground rules • considering motivations and questions • negotiating an effective mandate

36. THE NEGOTIATOR’S DILEMMA • Beware of the negotiator’s dilemma

37. NEGOTIATOR’S DILEMMA + CLAIMER CREATOR = GREAT/TERRIBLE OUTCOME

38. NEGOTIATOR’S DILEMMA THE BALANCED NEGOTIATOR

39. PREPARATION FOR WAR • People who want peace but who are faced with war need to (cont.): • The Negotiation Paradox –employers who take the time and trouble to prepare generally find that preparation for war produces peace and that prevention proves better than cure.

40. CONCLUSION • Whether one is faced with: • An incorrigible adversarial opponent or • One which embraces good faith mutual gain negotiation The key to avoiding strike action is meticulous preparation • for the former that preparation is for war to achieve peace, and • for the latter it is to prepare for peace in order to avoid war