Even in its controversial accord with Amcu is a contested clause giving unions more latitude.
By signing a new recognition agreement with the Association of Mineworkers and Construction Union (Amcu) Lonmin has opened up a can of worms. It is also the latest in a string of bad decisions made by the company over the past year.
Lonmin, which was the first company to give in to wage demands during wildcat strikes last year, setting off a chain reaction throughout the entire mining sector, last week announced a controversial recognition agreement with Amcu just two days before the first anniversary of the Marikana massacre.
Lonmin’s chief executive, Ben Magara, expressed his delight when announcing the agreement, describing it as “excellent news for Lonmin”.
He dismissed comments from the attending media that the recognition agreement flew in the face of the mining peace accord the company had signed a month earlier at the presidential guesthouse, which called for “majoritarianism” — the winner-takes-all principle — in the labour market to be re-evaluated.
This principle has been blamed, in part, for the unrest. The new recognition agreement sets a threshold of 30% for basic rights, such as access and deductions, and 40% for representation and bargaining rights.
The latter is new and more inclusive than the National Union of Mineworkers’ (NUM) agreement with Lonmin. However a 50%-plus-one member threshold remains for majority status.
Only Amcu at the bargaining forum
This agreement also means that, although there are four unions represented at Lonmin — Amcu, the NUM, Solidarity and the United Association of South Africa (Uasa) — only Amcu will now be represented in the bargaining forum. Previously Solidarity and Uasa enjoyed special rights despite being small.
The derecognised unions reacted swiftly, with Solidarity referring the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) on August 19 and asking for the matter to be addressed at the earliest opportunity. After that, Solidarity said it will seek a protected strike with the support of the NUM.
Meanwhile, Solidarity told the Mail & Guardian it would no longer turn a blind eye to Lonmin’s “wrongdoings”, one example being that Lonmin had failed to report a mud rush in its Saffy Shaft to the department of mineral resources.
The company first refuted the accusation but this week confirmed that there was an incident in early July that was not reported in line with procedures and standard practice.
“Lonmin views this breach in a serious light and we thank Solidarity for bringing the matter to the company’s attention, albeit indirectly,” said Lonmin’s spokesperson, Sue Vey.
But it would be naive to think Lonmin did not see the backlash coming. In its agreement with Amcu a clause states clearly that the parties acknowledge that other trade unions may declare a dispute as a result of not being granted organisational and collective bargaining rights and, if these unions embark on a protected strike, which could severely hinder the mine’s operations, Lonmin, in consultation with Amcu, will be entitled to grant unions these rights.
Although the page on which the clause appears is signed by both parties, Amcu president Joseph Mathunjwa said it was erroneously included in a draft and was not part of the official agreement. He said the agreement came about through a number of exchanges of draft documents.
“It [the clause] was in Lonmin’s submission to us and we rectified that, but … the company erroneously printed the wrong version. We did highlight to management after the press conference the document should not be circulated, management are checking amongst themselves who could have leaked it.”
But Solidarity, which has described the clause as “mind-boggling”, believe it is valid, as the document is signed.
“They are just crazy, Lonmin. They want to send a double-edged message,” said the NUM spokesperson, Lesiba Seshoka. “They want to seem as if they are on the fence but they are not, they have chosen Amcu.”
Regardless of the clause, there are a number of avenues the derecognised unions could pursue to regain recognition, which Solidarity is considering.
One would be to challenge the constitutionality of section 18 of the Labour Relations Act, which allows employers and the majority union to set their own threshold in order for a union to be given organisational rights.
Contravention of the Bill of Rights
This contravenes the Constitution’s Bill of Rights, which allows for freedom of association, Solidarity’s general secretary, Gideon du Plessis, said.
Solidarity was derecognised at both Impala Platinum and Anglo Platinum by a similar recognition agreement signed with the NUM a few years ago. Although Solidarity challenged the decision in court, the decision was upheld because of section 18.
But the difference now is that all signatories to the peace accord agree that the majoritarian principle should be abolished, Du Plessis said. Solidarity also represents over 4 000 workers at Lonmin, although this is just 4% of the workforce.
Other avenues such as binding contractual agreements could also be explored, he said.
“But at the moment, the door that is opened the widest is the strike avenue, as bizarre as it might be. [In the clause] Lonmin are saying come and disrupt operations properly, you can get your recognition, just make sure it’s very destructive.”
Seshoka has said the NUM is working with Solidarity and both will appear before the CCMA. “If the CCMA don’t resolve this, then we will go on strike,” Seshoka said.
NUM still big
The NUM, although it has lost popularity with lower-level workers, still represents a large number of skilled workers, followed by Solidarity and then Uasa. Although a smaller group, the workers represented by these unions, perform critical operations.
Solidarity is close to being a craft union, which exerts its strength not because of numbers but because its members are key personnel, Andrew Levy, a labour analyst, said. “They don’t have to have the numbers but they can exert tremendous power by the fact they have all the skilled jobs.”
Levy said the real issue is whether the union’s members have a stranglehold on the company and are not easily replaced, and whether its members would heed a call for a strike.
Both Solidarity and the NUM said they felt confident their members would support a strike.
But Mathunjwa said he thought the recognition agreement Amcu has concluded was a very inclusive recognition agreement.
“But, Solidarity is simply antitransformation and hellbent on keeping a ‘little Oranje’ in the workplace. Solidarity want to contain and perpetuate a very old system,” said Mathunjwa.
Right to strike
Mathunjwa said it was Solidarity’s right to strike and Amcu could not prevent it. But John Brand, an alternative dispute resolution specialist and a director of Bowman Gilfillan, said multi-bargaining units within a company are common in many countries because they are considered to promote industrial democracy.
Cadiz mining analyst Peter Major said Solidarity was a lifesaver for many white mine-workers as it gave frightened people refuge, a sense of belonging. “Solidarity wrote, spoke, managed and performed well. It is not an apar
theid relic. It is an important transformational vehicle for stability, preservation and nurturing of skills,” he said.
Du Plessis said the irony is that Amcu members will lose about R18-million in bonuses if Solidarity and the other trade unions strike for a day.