Following the illegal strike by Implats workers in Rustenburg in February and Lonmin workers at Marikana in August, the process of striking workers bypassing unions has spread to other mines.
Labour court judge Anton Steenkamp told the Mail & Guardian that he had heard five urgent applications by employers this week, including AngloGold Ashanti and Gold Fields, asking for wildcat strikes to be declared unlawful. What was unusual, said Steenkamp, was that employers were not seeking relief against unions; the interdicts were being sought against individual striking workers. "The unions have been assisting the employers in trying to get workers back to work," he said. "This is unheard of."
Two of the unions involved were the National Union of Mineworkers (NUM) and the South African Transport and Allied Workers Union.
Labour lawyer Michael Bagraim said that the trend towards guerrilla bargaining was a dangerous one. Within the formal system, he said, unions could face employers as equals. Informal groups attempting to negotiate undermined this relationship. "It is the worst industrial-relations nightmare I have seen in 30 years [of practicing labour law]," he said. "Workers have lost faith in industrial relations systems."
This loss of faith has been in the making for years. A labour law specialist, who requested anonymity because of his involvement in disputes between illegal strikers and employers, said in the early 1980s and 1990s, unions and workers saw political and bread-and-butter issues as part of the anti-apartheid struggle.
But post-1994, improving living conditions outranked the political struggle in workers' minds. With that, the unions lost their best leaders to politics and the new leaders did not have the same expertise and enjoyed much better perks.
Another labour mediator, who also requested anonymity because he was directly involved in union negotiations, said that such perks fed the worker perception that the unions had stopped fighting for them and were focused on enriching themselves. "In the 1980s, union representatives used to walk. Now they drive luxury vehicles."
But the spokesperson for the NUM, Lesiba Seshoka, responded to the allegation that the union had more interest in politics and self-enrichment, saying: "Unions involved in bread-and-butter issues are going to fail, because broader policies are shaped at a political level. The NUM does not have shares in Lonmin or any mining, energy or construction operations in or outside of South Africa. That would amount to a conflict of interest."
Workers also see unions as siding with management for their own benefit. During a recent visit to Marikana, a former unionist and Lonmin worker, Lazarus Diale, pointed out a shiny sedan in the township where many miners reside. "That car is for the union representative. But Lonmin paid for it. Do you think that is right?" he asked. Seshoka said, however, that the vehicles were paid for by the union.
Another major factor leading to the unravelling of formal bargaining, according to the labour mediator, is the failure by management to recognise minority unions as bargaining partners. He said it was extremely difficult for smaller unions representing subcommunities such as rock-drill operators to gain bargaining power. When the Labour Relations Act was written, Cosatu had pushed for a clause that would allow the majority union together with management to set a threshold for new unions to be recognised, usually 30% representation.
But Seshoka said that the NUM did not shut out minority unions and allegations that the NUM had refused to deal with the Association of Mineworkers and Construction Union (Amcu) based on its minority status were untrue. He said that despite Amcu falling short of the 30% threshold, the NUM was prepared to negotiate with it.
Majority unions also tend to seek the same increase for all types of workers. This, said the labour mediator, lay behind the Implats strike. Rock-drill operators had managed to negotiate an increase for themselves, but the NUM intervened to negotiate increases for all workers. Rock drillers then received a smaller increase than originally negotiated. When they found out about the NUM's intervention, they were furious. Seshoka denied this, saying management had attempted to divide workers by bypassing the union.
Prior to the Marikana shootings, unhappy rock-drill operators started to seek better conditions and wages, said Bagraim, but were ignored by both the mine management and the NUM.
One rock-drill operator, Brian Mongale, told the M&G that rock drillers had held meetings after their shifts on the mine's premises for months before the shootings. Seshoka said that the NUM was unaware of these meetings and if it had been aware of them, it would have addressed the issues.
Said the labour mediator: "Marikana is a symptom of a seriously defective collective bargaining system. It has to be revamped and democratised."
Lonmin said that in light of processes such as the Farlam commission, it would be inappropriate to comment.
Heidi Swart is the Eugene Saldanha Fellow in social justice reporting