Only two weeks before the kick-off of the world soccer spectacular, a deal was struck that ended almost four weeks of national disruption, untold economic damage and widespread anger attributable to strikes in the transport sector. Since then the nation has seen nothing but a show of national spirit, unity and support for Bafana Bafana as they host a four week tournament competing for the coveted FIFA trophy. Lingering questions around the strikes remain: was all that extra time really necessary in goalless draws without penalty shootouts – were the consequences of the strikes overstated, can the job of putting the economy back on track wait, are there not better ways of orchestrating the power play that all strikes involve, can we not find a better way by striking efficiently and scoring more goals in these endless annual derbies between perennial rivals: team management and team unions?
Whatever the answers, the ability of the nation and its workers to adapt must hold some clues as to what we need to do to change the long standing annual occurrence now known as the ‘strike season’ – hopefully, but not definitely, shortened this year by the advent of a one month long soccer fest.
In her first media interview, the newly appointed chair of the Commission for Conciliation Mediation and Arbitration (CCMA), Tanya Cohen, said “We’ve got to nip it in the bud” implying that early intervention in labour disputes by the CCMA is to be encouraged. Strength to her whistle, as referee – not umpire – the CCMA does indeed have a more pro-active role to play.
The four weeks of “industrial action” (it should be called “inaction”) in the transport sector cost the country hundreds of millions of rands, in missed opportunities, cancelled contracts, reputational damage, loss of production, lower tax revenue, reduced income and damage to property – all within the current legal framework of power-play between the two teams. This tends to suggest a not so beautiful game in which there are meant to be winners and losers, but all too often goalless draws are the actual outcome.
Unfortunately, the transport sector power-play typically produced no winning goals; but when the duration of the game started to threaten the comfort zone of the sporting spectacular, the CCMA was called in as referee and the dispute was resolved – with enough time in hand to scrub dirty faces to look good for the influx of soccer loving visitors.
Given the expressed desire to “nip things in the bud”, this begs the question “what exactly needs to happen to trigger an earlier intervention when a long playing and damaging power-play is the risk?”
According to Tanya Cohen, “The one thing the CCMA can’t do is take away the power of the parties to exert their power in the process, because that’s the way the Labour Relations Act is designed.”
So there is a rule book – the Labour Relations Act, but where did the problem start?
Taking the Transnet strike as an example, the employee team started the ball rolling by demanding an increase of 15% in line with the 14% increase awarded to the management team in 2009.
The management team responded by saying the 15% demand was not affordable and offered 8%
And so the war of words began, that escalated to protest actions, marches and other unruly behaviour. This is what we have become accustomed to during ‘strike season’, but surely after many years of ever worsening experiences, we shouldn’t be talking about ‘encouraging’ alternatives, we should be asking what needs to change?
According to the rule book – the Labour Relations Act, Chapter 3 section 16 states whenever an employer is consulting or bargaining with a representative trade union, the employer must disclose to the representative trade union all relevant information that will allow the representative trade union to engage effectively in consultation or collective bargaining. All too often this does not happen.
In addition, and according to what could be called a supplementary rule book, The Employment Equity Act, the employees and managers are actually in the same team, when it comes to equal treatment and consequently the evaluation of pay differentials.
In fact, according to section 27 of the Employment Equity Act, an organisation the size of Transnet, must measure and report on the income differentials across the organisation annually. If it is found that there are disproportionate income differentials, management must take measures to correct the problems, one of these measures being negotiation through the collective bargaining process.
The point is that there are existing rules to ensure that the game will at least start on a far more substantively informed basis than simply a war of words, but it seems as though there is a perception that there doesn’t need to be a referee to start the industrial action “power play” game.
Consequently, whilst there is no custodian or enforcer of the rules active in the power play, we must not be surprised that the pattern of not achieving a ‘better’ deal hasn’t changed.
During the Transnet strike, and as we drew closer to the critical comfort zone, President Zuma indicated that there needs to be some change made to labour legislation to avoid a recurrence of this year’s strike action. According to Tanya Cohen, The Labour Relations Act may well give parties to a “power play” the right to sort out their problems among themselves and call on the CCMA only when it suits them. But the same law enjoins the CCMA to dispense social justice, advance economic development and ensure labour peace. The CCMA’s adoption of a more pro-active stance ought to be welcomed by all players in the industrial power play league, especially those starved of the type of information that could curtail strikes considerably if it were more timeously made available. Let us not forgot about the negative social, economic and labour relations issues that characterised this year’s Transnet strike, because, surely those consequences are sufficient to warrant the intervention of our premier dispute resolution body, the CCMA, in the exercise of its statutory proactive mandate to ensure labour peace. It must be given the tools and means to do so.
Paul Hoffman SC
9 June 2010.