COLLECTIVE BARGAINING CHALLENGES AND SOLUTIONS

1. COLLECTIVE BARGAINING CHALLENGES AND SOLUTIONS PRESENTED AT THE 19TH ANNUAL GENERAL MEETING OF THE NABC by John Brand 27 September 2012

2. INTRODUCTION

3. CONTENT Collective bargaining in the aftermath of Marikana Some important facts Outcomes in public sector bargaining Outcomes in private sector bargaining The frequency and extent of strike action Working days lost comparison Structural collective bargaining challenges Process collective bargaining challenges Possible collective bargaining solutions

4. THE MARIKANA CONFLICT

5. THE MARIKANA CONFLICT MANIFESTATIONS MODERATORS AGGRAVATORS TRIGGER CAUSES

6. THE MARIKANA CONFLICT MANIFESTATIONS DISREGARD OF PROCEDURES POLICE ACTION ARRESTS UNPROTECTED STRIKE DEATH AMCU workers reps TRIALS VIOLENCE INTIMIDATION church NEW PLAYERS POOR POLICING POWER APPROACH POOR NEGOTIATION WEAK MEDIATION UNREALISTIC EXPECTATIONS THE CHURCH INACCURATE PERCEPTIONS PAST UNRESOLVED CONFLICT DIVIDED CONSTITUENCIES MEDIATION MODERATORS ILLITERACY AGGRAVATORS INNUMERACY IGNORANCE NEED FOR PAY LANGUAGE BARRIERS FEAR WEAK DEMOCRACY NOT LISTENING POOR COMMUNICATION POLITICAL OPPORTUNIST IMPLATS WEAK LEADERSHIP COMPROMISED UNIONS THE MEDIA OVER CENTRALISED TRIGGER WAGE DIFFERENTIALS CORRUPT BEAUROCRATIC ELECTRICITY CONFLICTED SHOP STEWARDS SEWERAGE HEALTH & SAFETY HOUSING WEAK BARGAINING STRUCTURES LABOUR BROKERS HEALTH CORRUPT REMOTE UNION LIVING CONDITIONS WORKING CONDITIONS DISCRIMINATION POLITICIANS WATER POOR BARGAINING SKILLS NOT INTEREST BASED TRANSPORT MIGRANT LABOUR ROADS LACK OF TRI-PARTITE DIALOGUE VERY ADVERSERIAL REMOTE LACK OF RESPECT LACK OF CONCERN REFUSE REMOVAL EDUCATION CONFLICTED CAUSES SECURITY

7. SOME IMPORTANT FACTS

8. SOME IMPORTANT FACTS • Average SA worker earns R3 000 per month • 59% have pension • 40% have medical aid • 77% have UIF • Rock drillers are in the top earning 25% of formal sector employees • The top 25% of formal sector employees earn R7 500 per month and more • The top 10% of formal sector employees start at R15 000 per month Few have all 3

9. SOME IMPORTANT FACTS (cont) • Only 4 out of 10 adults work in South Africa • 7 out of 10 adults work in the rest of the world • Therefore only 7.3 million out of 32.9 million people work in South Africa • Therefore rock drillers are in the top 6% of adult earners in South Africa • In 8 out of 30 OECD countries teachers earn less than rock drillers in South Africa • Greek teachers earn R8 392 per month • Indian high tech employees earn R6000 per month

10. SOME IMPORTANT FACTS (cont) • Actually the maximum increase at Lonmin was 7.7% to the lowest grade • The actual increase to rock drillers at Lonmin was 3% • Lonmin workers lost +- 12% of annual wages in the strike due to no work no pay • Some Lonmin workers received a R2 000 return to work bonus • +- 9000 Lonmin contract workers got nothing

11. OUTCOMES IN PUBLIC SECTOR BARGAINING

12. OUTCOMES IN PUBLIC SECTOR BARGAINING

13. OUTCOMES IN PRIVATE SECTOR BARGAINING

14. OUTCOMES IN PRIVATE SECTOR BARGAINING

15. OUTCOMES IN PRIVATE SECTOR BARGAINING (cont.)

16. OUTCOMES IN PRIVATE SECTOR BARGAINING (cont.)

17. THE FREQUENCY AND EXTENT OF STRIKE ACTION

18. THE FREQUENCY AND EXTENT OF STRIKE ACTION Working days lost

19. THE FREQUENCY AND EXTENT OF STRIKE ACTION (cont.) Working days lost per 1000 employees

20. THE FREQUENCY AND EXTENT OF STRIKE ACTION (cont.) Wages lost

21. THE FREQUENCY AND EXTENT OF STRIKE ACTION (cont.) Working days lost through industrial action per 1,000 employees, annual average 2005–2009 Source: EIRO

22. WORKING DAYS LOST COMPARISON

23. WORKING DAYS LOST COMPARISON • All European countries 2005 – 2009 • Average 30.6 working days lost per 1,000 employees • Maximum 159.4 • Minimum 0 • South Africa 2006 – 2011 • Average 507 working days lost per 1,000 employees • Maximum 1593 • Minimum 36

24. WORKING DAYS LOST COMPARISON (cont.) • 20 674 737 working days lost in 2010 in South Africa • 2 806 656 working days lost in 2011 in South Africa • Estimated to be the highest in the world • 2012 and 2013?

25. STRUCTURAL COLLECTIVE BARGAINING CHALLENGES

26. STRUCTURAL COLLECTIVE BARGAINING CHALLENGES • Lack of a uniform national minimum wage • Lack of coherent demarcation of wall to wall industrial sectors • Lack of wall to wall mandatory sectoral minimum wages and working conditions • Lack of national development strategy • Lack of sector development strategies • Lack of wall to wall powerful sectoral collective bargaining structures • Lack of distinction between sectoral minima, frameworks and workplace actuals • Lack of mandatory collective bargaining in appropriate bargaining units • Lack of appropriate organisational rights • Lack of properly resourced collective bargaining and social dialogue institutions

27. PROCESS COLLECTIVE BARGAINING CHALLENGES

28. PROCESS COLLECTIVE BARGAINING CHALLENGES • The typical strike in South Africa in recent times has been characterised by: • Picket line violence • Absence of ballots • Minority support • Persuasion / Intimidation • Replacement workers from the unemployed • Clashes between strikers and non-strikers • Court interdicts • Employment of private security • THE TYPICAL STRIKE

29. PROCESS COLLECTIVE BARGAINING CHALLENGES (cont) • The typical 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 • Calls to marshal picket lines and help management ineffective • Difficulty to sustain the strike • Escalation of violence • Polls amongst diminishing pool of strikers • THE TYPICAL STRIKE (cont)

30. PROCESS COLLECTIVE BARGAINING CHALLENGES (cont) • The typical strike in recent times has been characterised by (cont.): • A decision to terminate the strike • Loss to workers • Loss to employers • Loss to the community • THE TYPICAL STRIKE (cont)

31. PROCESS COLLECTIVE BARGAINING CHALLENGES (cont) • The negotiations which have preceded these strikes have had the following features: • Letter with a list of demands from the union • Rejection and low counter proposals by the employer • Assumption of eventual compromise • Lack of counter demands by the employer • Superficial positional preparation • Exaggerated motivation at the negotiation table • Demeaning of opponents • Threats to walk out and walk outs • THE TYPICAL NEGOTIATION

32. PROCESS COLLECTIVE BARGAINING CHALLENGES (cont) • Early declaration of disputes • Assumption that real negotiation will only take place: • with imminent or actual strike action • Hope that an opponent will take fright and make concessions • Un-reciprocal concessions • Slow moves from concession to concession • THE TYPICAL NEGOTIATION (cont)

33. PROCESS COLLECTIVE BARGAINING CHALLENGES (cont) • Manipulation of information • Adversarial rhetoric • Incremental removal of non-wage issues • Threats to use power • Benign uses of power • All out strike action • THE TYPICAL NEGOTIATION (cont)

34. WHAT 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

35. TYPICAL NEGOTIATION + CLAIMER CLAIMER = MEDIOCRE / MEDIOCRE OUTCOME

36. POSSIBLE COLLECTIVE BARGAINING SOLUTIONS

37. STRUCTURAL COLLECTIVE BARGAINING SOLUTIONS • Introduce a uniform national minimum wage • Demarcate coherent, wall to wall industrial sectors • Prescribe wall to wall mandatory sectoral minimum wages and working conditions • Implement a nation development strategy • Ensure powerful sectoral collective bargaining structures • Make a clear distinction between sectoral minima, frameworks and workplace actuals • Democratise organisational rights • Properly resource collective bargaining and social dialogue institutions

38. COLLECTIVE BARGAINING PROCESS SOLUTIONS • Accept the pluralist idea of partnership and mutual gain • Accept Unions and Employers as legitimate entities with divergent interests • Subscribe to constitutional democracy • Recognise that the right to strike is fundamental • Recognise that a strike is a last resort • Recognise that strike action is often futile • Recognise dependence and independence • Recognise overlapping and different interests

39. COLLECTIVE BARGAINING PROCESS SOLUTIONS (cont) • Commit to good faith bargaining • Commit to exhaustion of disputes procedures • Commit to industrial democracy • Commit to picket rules • Commit to non-violence

40. COLLECTIVE BARGAINING PROCESS SOLUTIONS (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 • Meticulous preparation • Adoption of problem solving methodology • Sensitivity to the negotiation paradox

41. COLLECTIVE BARGAINING PROCESS SOLUTIONS (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”

42. PEACEMAKERS + CREATOR CREATOR = GREAT/GREAT OUTCOME

43. Thank you