Prevention best option. Strike action advice: Brush up on bargaining tactics to avoid problems starting

If you want to avoid strike action that could cripple your business, start by using an experienced negotiator. Union representatives might not have postgraduate degrees in law but they probably know more than you do about labour legislation and, importantly, how to use it to full advantage.  In this third in a series on SA 2013: The Year of the Strikes, Cape Town advocate Ilene Power provides some pointers on what to think about as you go into discussions with a union.  She highlights five common mistakes to avoid if you do not want to  exacerbate a tense labour situation. – JC

By Ilene Power 

Advocate Ilene Power is one of South Africa's experts on labour law.
Advocate Ilene Power is one of South Africa’s experts on labour law.

The 2012 strikes were unprocedural and caused many a HR Manager in the industry sleepless nights. The rule of law was not adhered to and the strikers simply carried on, creating more momentum with each passing day. This despite legitimate rulings that ordered them to go back to work. What can you do in such a case?

The Courts’ approach – interdicts and Union’s attitudes toward strikes

The process to deal with an illegal strike is to approach the Labour Court for an interdict. However, the employers find themselves questioning whether they can rely on the court to help them interdict an unlawful strike?”

The Labour Court will attempt to enforce the constitutional right to strike. Normally, however, they will interdict misconduct on the part of the strikers and unlawful strikes. However, where an employer seeks to interdict a strike which on the face of it is lawful, the Labour Court considers the situation very carefully and attempts to enforce the constitutional right to strike. If arguments are highly technical, the Labour Court has become increasingly less inclined to assist.

This is particularly so in regard to secondary strikes. A secondary strike is defined as follows: when employees of employer B (the secondary employer) go on strike in support of a demand made by employees of employer A (the primary employer), who are striking against employer A over their demand.

A secondary strike is sometimes called a sympathy strike because in effect the employees involved in the secondary strike are on strike in sympathy with their colleagues at the primary employer. A secondary strike is designed to compel the secondary employer to put pressure on the primary employer to give in to the demand of its employees, usually when there is a connection of some sort between the two businesses.

Thus if one has relied on interdicts in the past to strengthen a specific position during disputes, one may find that they have become less effective. Sometimes reliance on the legal route can indicate that the negotiators weren’t sufficiently skilled to resolve the wage dispute. Therefore it is critical to start the procedure properly by using skilled or professional negotiators.

The attitudes of Unions in the situation of a strike is a key factor in South African labour relations. In the normal scheme of things employers seem to believe that Unions relish in the idea of a strike. In my experience, having worked for 2 of the major unions in the Country, most major unions prefer to avoid strikes because of certain elements.

They recognize that a social partnership with the employer is the preferred option, they also acknowledge that employees will lose income during a strike (due to the no work no pay principle) and that there is no guarantee that the employer will improve its offer.

They concede that strikes could lead to a loss of orders and hence restructuring/retrenchments and a loss of members as some employees may resign from a union during a strike to avoid its negative effect. Therefore it is not a given that unions will support their members during strikes.

One should realize that most major unions are skilled and confident in the provisions of the Labour Relations Act and so it will be difficult to use interdicts as a basis for undermining strikes in future negotiations on conditions of employment. Therefore an employer should base collective bargaining strategies on that assumption and adopt a more realistic position to resolve wage disputes.

One should try to build levels of trust between negotiators and union officials/shop stewards so that a proper platform

can be established for engaging in collective bargaining. No matter how vigorously representations are made, if there is an absence of trust, one will not be taken seriously.

These key elements require every employers’ consideration, and is especially important to remember when dealing with strikes or future strikes. These important factors can lead to successful implementation of methods to avoid future strikes.

In summary, don’t make the following mistakes:

1. Don’t be complacent and anticipate that strikes will not take place at your enterprise or industry just because you’ve not had strikes for some years.

2.Some employers appear to be arrogant and underestimate trade unions. They assume that the unions at their enterprises or in their industries are weak and assume that employees would accept whatever was proposed by management.

3.Some employers have misunderstood the link between inflation and costs. Although inflation has been low, the cost of food and energy has increased significantly and these costs have cut into the wages of employees. At the lower end of the scale the impact on workers who spend a greater portion of their wages on food and energy was that they were experiencing inflation higher than the official inflation rate. Employers didn’t always take this into account in the increases they proposed.

4. Where financial managers determined the mandates of employers in the region of 3% or 4% based on inflation, these offers clearly fuelled angry responses and hardened attitudes on the part of employees.

5. In addition to these misconceptions there are some key areas where you need to get your facts and strategy correct and understand the background against which your employees are negotiating to ensure effective negotiation and to avoid conflict.

It is commonplace overseas to engage in a fact finding exercise prior to engaging in collective bargaining.

This has proven to be a useful strategy. Having accurate facts (for example on the impact of rising food costs and energy) can help to formulate proposals to defend. Inappropriate and callous statements (for example that employees have not contributed to the current substantial profits) should be avoided, as these only serve to intensify conflict and hinders the competency of those Human Resources representatives to achieve appropriate settlements with the union representatives.

With all this information at hand, the answers to the introductory questions are easy enough to answer.

In the current instability of the economy, no business can afford to lose production because of a strike. Furthermore, employers can’t afford the damage to an employer-employee relationship that long and acrimonious strikes bring about.

There are ways of understanding why strikes occur and they can be prevented, lest the employer applies his or her mind to the above-mentioned methods and are at all times aware of what happens in their business, in order to prevent any surprises with regard to strikes.

Prevention is better than cure. The overall best strategy for developing and maintaining peaceful industrial relations is the creation of a culture of peace, mutual trust and harmony. While there’s no easy or ideal recipe for achieving this challenge, your approach can contribute to avoiding strikes or the escalation thereof and limit the carnage it can cause.

Ilene Power is admitted in the High Court of South Africa as an advocate and holds a BA LLB degree.  After her articles at law firm Klynveld-Gibbens Inc, she served the membership of the finance industry at SASBO, and in 2005 she joined the Legal Department of Solidarity, where her skills and expertise were honed, resulting in her becoming a highly experienced and skilful labour law practitioner.

Ilene has served on various Gender and Equity committee’s and acted as spokesperson for Solidarity on workers’ rights and gender equality. She was one of three individuals from SA in 2008 to study on full scholarship at the International Labour Organisation’s Training School in Turin, Italy, where she received exposure to the global labour scene and intensive training on international labour law.

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