In an article “Showdown with mining unions looms” published by Reuters on 25 May 2015, Dineo Faku reports on the upcoming wage negotiations in the mining sector.

The spectre of the Marikana tragedy looms over these negotiations. Once again the National Union of Mineworkers (NUM) and the Association of Mineworkers and Construction Union (Amcu) take centre stage. The article reports that NUM is demanding a R10 500 monthly wage for underground entry-level employees and  R9 500 for entry-level surface workers, whereas Amcu is demanding a  R12 500 monthly salary for entry-level employees. Currently the basic wage for entry-level employees is R5 787 excluding benefits, which illustrates the wide rift between what Labour is demanding and what employers in the mining sector are prepared to pay.

The road to Marikina also began with inflated wage demands by Amcu, and the consequent deadlock in negotiations between Amcu and Lonmin resulted in a protracted unprotected strike that turned violent, fanned by the flames of interunion rivalry between Amcu and NUM.

What lies at the heart of the unprotected strike and the violence that came in its wake is the fact that the Labour Relations Act precipitates an overly-centralised bargaining system, where all bargaining happens at industry level, with little to no engagement at plant-level. The devastating result of this is that the real concerns of workers at plant-level are insufficiently addressed, and the culture of democracy of the unions is eroded in favour of highly bureaucratic industry-level bargaining agents that the workers on the ground cannot identify with.

This in turn opens the door for rival (often militant) unions to start attracting significant numbers of workers at plant-level. This is exactly what transpired at Marikana, where the centralised bargaining system effectively marginalised the distinct interests of miners and rock drill operators in favour of the majority vote of other categories of workers. This lost NUM support at plant-level, and Amcu successfully filled the void, signing up these neglected workers. However, due to NUM’s entrenched status as the collective bargaining agent of most workers at industry-level, Amcu had insufficient representation to bargain at that centralised level despite its significant representation at plant-level. Amcu’s turned to unprotected industrial action in a bid to make its demands heard at plant-level. This fuelled the interunion rivalry and violence that we witnessed, as NUM and Amcu clashed for turf.

Unfortunately, the recent amendments to the Labour Relations Act have not effectively dealt with this issue. Ultimately the amendments do no more than tinker with the existing labour protection, and do not offer the visionary overhaul and radical reform needed to reinvigorate plant-level collective bargaining and engagement, and improve the industrial democracy we so desperately need to restore calm to our labour relations environment. The CCMA and Labour Court have also been ineffectual in stemming the tide of unprotected strike action and concomitant violence.

That being said, with the proper strike planning and preparation, strikes can be effectively prevented or the adverse effects of strike action can be significantly contained.

Employers are encouraged to engage the services of a Labour Lawyer who has expertise in Employment Mediation, and who will facilitate the employer’s strategy teams in formulating detailed and informed negotiation strategies and action plans. These will take into account the employer’s financial position, current wage settlements in the relevant industry, the macro and micro human resource and political environment, and most of all, the key organisational objectives and challenges that need to be addressed in the upcoming negotiations, with the view to prioritise those objectives. Sophisticated risk analysis techniques will also be used to weigh the advantages and disadvantages of offensive or defensive lockouts, unilateral implementation, boycotts and the like.

The strategy teams will also be assisted in developing very detailed, task orientated action plans that define time-lines and specify who will be the responsible person for each action plan.

Key action plans include providing for security, so that the employer will be in in a position to protect its property and employees, this may include liasing with the South African Police Service, but will often focus on the coordination of private security providers.

Implementing strategies to ensure continuous production in the event of a strike is also key to effective strike planning, as well as ensuring effective internal and external communication.

This last action plan is important, because during strikes the media often does little more than publish the propaganda that each side has supplied, or worse, simply airs the propaganda which best tends to its personal bias, without endeavouring to establish the veracity of the claims. It is therefore imperative for employers to establish effective communication with the media to control their brand image.

If there is a possibility of strike action looming, it is advisable for employers to brief their preferred lawyers who have expertise in the field of labour law, so that they will be on standby should any urgent applications need to be made to interdict unprotected strikes, strike violence or evict renegade workers from the workplace.

A legal team should be instructed to formulate a detailed legal strategy, in consultation with the employer, that will assist an employer to compel compliance with the Labour Relations Act, any recognition agreement and relevant civil and criminal law. This will include plans to enforce any duty to negotiate in good faith and to ballot in terms of a recognition agreement. The aim is also to ensure compliance with agreed negotiation and dispute resolution procedures, strike and picketing rules and the law.

Implementing strategic action plans and making appropriate preparations will help to strengthen the employer at the bargaining table and help form a realistic and informed basis from which to negotiate, which will greatly enhance the prospect of reaching a negotiated agreement with Labour.

Having a trusted team of labour lawyers to consult with will also help the employer to properly plan for the eventuality of industrial action, and to curb and contain any unruly or unlawful action at its inception, while minimising the adverse effects of strike action on the employer’s business.