24 March 2014

South Africa: Mediation Is an Honourable Profession


In an unequal society where conflict between employers and employees is inevitable, the role of mediators who help to minimise the damage to protagonists and to society at large, is an honourable one. Such is the role of the Commission for Conciliation Mediation and Arbitration (CCMA).

But the same Labour Relations Act that established the CCMA also allowed for the establishment of workplace forums that would act to promote the interests of all employees and also "seek to enhance efficiency in the workplace". More importantly, such forums were envisaged as platforms for employers and employees to consult and to seek consensus on all matters relating to business of whatever type so long as it employed more than 100 workers.

This measure was to try to ensure a greater level of co-operation and transparency in the workplace and so avoid some of the tensions that often arise. Unfortunately, few of these forums were set up, but the CCMA was -- and has gone from strength to strength, perhaps dealing with many disputes that might have been resolved in workplace forums.

The fact that legislation was gazetted to establish both the CCMA and workplace forums was an acknowledgement of the reality that the sellers and buyers of labour have fundamentally opposing interests. Yet both need to survive in the same economic system.

Such a system, without regulation, leads to anarchy and to often open warfare. History is replete with examples: at a basic level, it is a matter of economic power capable of hiring armed force, against labour power that has strength in numbers, but only if united.

It was this need for unity that gave rise to trade unions as workers realised that the only weapon they had in a dispute with their bosses was to withhold their labour --to go on strike. Because strikes tend to harm most of all those who sell their labour, this weapon is usually a last resort -- and most strikes are settled by negotiation between employers and unions.

For the most part, the CCMA does not become involved in strike situations. However, in the case of the current platinum dispute, intervention was requested by labour minister Mildred Oliphant.

Given the importance of the sector and the fact that talks between the three major producers and the Association of Mining and Construction Union (Amcu) appeared to have broken down irretrievably, the CCMA was a logical choice. Independent of state, employers and unions, its commissioners are experienced at conciliation between sometimes bitterly antagonistic parties.

It is not a question of the commissioners having or lacking financial acumen; they do not take possession of any dispute. Their role is merely to encourage dialogue, to bridge the gaps between the parties, to hopefully find consensus.

And, as CCMA director Nerine Kahn points out, the now two-month long strike on the platinum belt involves much more than a battle about wages. "There are many more broader political and social issues at play," she says.

Some of those issues have been dealt with in this column and they make for a volatile mix. The evident hostility between miners and mining companies, especially in the wake of Marikana, makes seeking for consensus an incredibly difficult task.

However, progress seemed to be made when Amcu proposed that their R12 500 entry level pay demand could be phased in over three years and, then a while later, over four years. "I thought the commissioners, who understand economics, were obviously doing a good job," says lawyer and former CCMA commissioner, Neville Rubin.

Amcu president Joseph Mathunjwa agrees. "After we moved to four years, the employers said they would come back with a revised offer," he says. "But then they went back to where they had been."

As a result, Amcu strikers on Tuesday staged a march on Amplats where they presented a memorandum to company joint ventures chief, Vishnu Pillay, requesting a resumption of talks. Pillay conceded,stating that a "lasting solution" would be sought.

In the meantime, although no mention has been made of it, the CCMA has continued talking to all parties and sources within the commission are confident that not only will talks resume, but that a settlement will be reached.

It is understood that a meeting was scheduled for last Saturday at which it was hoped some progress would be made. However, there appears to have been a communications glitch because Amcu negotiators maintain thy never received an invitation and were, therefore, not present. "But we are sure that talks will start again soon," says Mathunjwa.

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