/ 5 April 2013

How to manage interunion rivalry

The failure to manage multiunionism properly contributed to the Marikana tragedy.
The failure to manage multiunionism properly contributed to the Marikana tragedy.

The Marikana tragedy was a gross manifestation of much of what is defective in South African industrial relations. One particular feature was the apparent failure to manage multiunionism and interunion rivalry properly.

It seems that a major underlying cause of this failure was the way in which employers on the platinum mines had granted organisational and collective bargaining rights to trade unions. This became a substantial source of conflict and resulted in much of the violence that preceded and culminated in the killings of mineworkers on August 16 last year.

The problem appears to have its roots in the way in which the Labour Relations Act (LRA) regulates organisational rights and collective bargaining. Trade union federation Cosatu was dominant in the negotiations that led to the LRA and, consequently, the Act seeks to give effect to its policy of "one industry, one union". The Act deliberately seeks to limit industrial democracy and to entrench monopoly unions in each industrial sector.

To this end the Act prescribes that a sufficiently representative union must be granted certain organisational rights and a majority trade union must be given additional ones. The Commission for Conciliation, Mediation and Arbitration (CCMA) has ruled that, in order to give effect to the Act's directive to limit a plurality of unions, a union must have approximately 30% membership in a workplace to be considered sufficiently representative. It then becomes entitled to recruit members and communicate with them in a workplace.

It also becomes entitled, among other things, to have union subscriptions and levies deducted and paid over to it. Cosatu unions were easily able to meet this threshold in the late 1990s and thus achieved widespread access to organise in workplaces.

The Act also provides that a union that represents the majority of workers in a workplace is entitled to certain other benefits. These include the important right to elect union representatives to assist and represent members in grievance and disciplinary hearings and at meetings with employers.

Significantly, the Act permits such a majority union and an employer to agree to raise the threshold of representativeness and, thereby, make it extremely difficult for other trade unions to acquire basic organisational rights.

The National Union of Mine­workers (NUM) and employers on the platinum mines in effect used this provision to exclude competing unions such as the Association of Mineworkers and Construction Union (Amcu) from those mines.

For example, on a mine with 30 000 employees, a new union would have to recruit 15 000 members before it could compel the employer to grant it the most basic organisational right of access, or before it could compel the employer to recognise its shop stewards and grant them basic rights of representation in grievance and disciplinary hearings and at meetings.

As far as collective bargaining is concerned, the Act deliberately did not prescribe a duty to bargain with a representative trade union. That duty can only arise by agreement. The thinking was that unions should use the power afforded to them by their organisational rights and right to strike to force employers to negotiate with them rather than to get the CCMA or the courts do this for them. The NUM did precisely that and was quickly able to entrench itself as the collective bargaining agent of most workers on the platinum mines.

The effect of excluding unions from recognition on these mines had the unfortunate side effect that the NUM became complacent and bureaucratic. Furthermore, the aggregation of collective bargaining in large, multi-interest group bargaining units led to distinct interests, such as those of rock drill operators and miners, being neglected. In the end this lost the NUM support and drove workers to join Amcu. However, Amcu was prevented from getting even the most basic organisational rights when it became representative of significant numbers and communities of workers.

One of the principles of industrial democracy is to permit a plurality of unions to operate in a workplace by setting low thresholds for the granting of organisational rights. This allows unions to achieve the status of a collective bargaining agent.

To become a collective bargaining agent, a high threshold of majority representativeness is conventionally required. This is because an employer cannot lawfully pay different wages to similar categories of workers based on their union affiliation. It has to apply a uniform wage to each category of workers and that wage should be the one agreed to by the agent of the majority of workers in the category.

The problem on the platinum mines was that, by accumulating many categories of workers into large bargaining units and having only one bargaining agent, the interests of miners and rock drill operators were suppressed by the majority vote of other categories of workers. It was this void that Amcu successfully exploited.

Although the Act does not regulate recognition appropriately, there is nothing to prevent parties from doing much better for themselves. They do not have to wait for legislative change to put in place a recognition regime that incorporates the basic principles of industrial democracy.

The Act prohibits employers from providing organisational rights that are less extensive than those prescribed in the Act, but the implementation of effective industrial democracy would grant rights that are superior to, and more extensive, than those prescribed in it.

If parties do this carefully they can permit a reasonable plurality of unions to enter their workplaces to exercise basic organisational rights, without giving rise to an unnecessary proliferation of unions.

They can also define appropriate constituencies, which are smaller than the whole workplace, in which to measure representativeness. In addition, they can set thresholds of representativeness that are lower than those set by the CCMA.

As far as collective bargaining is concerned, employers can recognise any union or coalition of unions that represent the majority of workers in appropriate bargaining units as the bargaining agent of those workers.

Again, the appropriate bargaining unit can be made up of less workers than all of those in a workplace. Importantly, a condition for this ­recognition can include a duty to negotiate in good faith, which is not a requirement of the LRA.

There is, therefore, much that parties can do to craft the architecture of their recognition regime in a way that can moderate the kind of conflict that has been generated by recent past practice. An important lesson from Marikana is that the exclusion of unions does not reduce interunion rivalry, but aggravates it. What is needed is to open up the workplace to sound and regulated industrial democracy.

John Brand is the director and employment law specialist at ­Bowman Gilfillan