The recent spate of violent industrial action has left many analysts pondering over the cause and effect of the conflict. While there has been a progressive increase in strike action over the past years, prolonged or violent strikes remained blips on the radar.
“In 2012 these blips grew to fill the radar screen, with the on-going strikes and associated mayhem continuing to dominate headlines. In this regard, collective bargaining as a factor in the industrial unrest warrants closer scrutiny,” says Johan Botes, Employment Director at Cliffe Dekker Hofmeyr.
During his key-note address at SASLAW Conference in October, Justice André van Niekerk lamented the role played by parties in the collective bargaining process where"… work-place-based collective bargaining remains as adversarial as ever" . He dismissed the notion that the Labour Relations Act is to blame for recent events or that there is a need to rewrite this Act to avoid similar occurrences.
Instead, employers and trade unions should rather focus energies on considering their own roles in the collective bargaining process and reviewing collective agreements that do not support the current workplace needs or realities
Botes says that the frailties of existing collective bargaining processes and practices contribute to breakdowns in negotiations and industrial action. Many labour negotiations are still dominated by positional or distributive bargaining. This process sees the respective parties take in positions or table demands at opposing ends of the negotiating spectrum, whittling down their demands in an effort to negotiate into an area of common ground.
“Also called "win/lose" negotiations, the draw-back of this style is that whatever one party wins the other loses. If the subject of the negotiation is R100,00 to be shared between the parties, the more the one party gains, greater the loss to the other.
“In practice, this type of bargaining frequently leads to unintended breakdowns in negotiations. The parties are often forced to defend the positions they adopt, only to later find it impossible to extricate them from that position in order to agree to a lower offer. If you had to vigorously motivate why you need not a cent less than R16 500 per month to survive, it becomes very difficult to accept that R10 000 would suffice as well without losing face in the process,” he explains.
“While such distributive bargaining is useful if you are bartering with a vender at a flea market that you will never again see in your life, it is notoriously problematic where you are engaged in an enduring relationship with the other party to the negotiations. In employment relationships today's winner would still have to face the losing party in tomorrow’s negotiations. Feeling short-changed after negotiations almost inevitably will have a negative effect on a relationship,” Botes notes.
“Needs-based or "win-win" labour negotiations may hold the key to lowering the conflict associated with labour negotiations in many industries. Using this approach, employers and trade unions identify their respective needs and assist one another during negotiations to find ways of accommodating the other's demands. While this may sound like heresy to labour negotiators used to going in high so that they can settle low, used in the right industry with trained negotiators, inclusive bargaining can yield wonderful results,” he says.
Botes says that negotiators often adopt an approach based on what they know and trust. If negotiators are not trained in negotiation theory, they will not be able to identify those instances where the traditional positional bargaining approach will increase conflict and hamper relations. Negotiation skills training for both management and union negotiators should be strongly considered by any employer wishing to maximise gains during collective bargaining and/or manage the conflict inherent in collective bargaining.
“While it may sound counter-productive to train you bargaining adversary, the value of bargaining with trained negotiators cannot be over-emphasised where the goal is long-term labour peace and stability,” he says.
“Sound employee relations play a critical part in managing workplace conflict. Keeping a finger on the pulse of the company's employee relations pulse is critical in determining whether employees are satisfied with conditions and work practices or whether they are on the verge of going postal. Regular meetings with employees (departmental or otherwise) and trade unions are essential tools to assist managers in picking up areas of discord,” he notes.
“The value of sound employee relations should never be underestimated. Whilst conflict is inherent in any employment relationship due to the divergent needs of the parties, a focus on sound employee relations will see employers actively managing this conflict to the benefit of the organisation. Looking inwardly at the roles played by the main role-players in the relationship: employers and employees/ trade unions, will provide more answers than looking at the legislator to intervene by changing the law,” Botes adds.