More strike action is expected in the mining industry should unions continue to set unrealistic wage demands on companies who are unable to meet wage hike demands of up to 60%, as put to South African gold and coal producers by the National Union of Mineworkers, says law firm Norton Rose Fulbright South Africa director Joe Mothibi.

These demands, which are high above inflation, will not be met, owing to pressure from shareholders to make a return on investment, high input prices and low commodity prices, he says.

“Therefore, unions are advised to temper their demands, especially since some mineworkers do not realise that the demands made will not be the actual increase granted after negotiations,” he explains.

Unions should be careful not to give their members unrealistic expectations, which could, when these expectations are not met, lead to workers leaving the specific union and embarking on wildcat strikes, Mothibi says.

“Union members should be educated about the current economic reality. The demand for platinum is not what it used to be and while China is still growing, the rate of this growth is not what it was before the economic downturn.”

Further, unions and employers should consider using workplace forums, which are suggested in the Labour Relations Act, before wage negotiations start.

Workplace forums can be used to build trust between employers and their employees and effectively resolve shop-floor issues, he says.

Mothibi also suggests that mining companies should use mediators early in the wage negotiation process.

“Perhaps every cycle of bargaining should have a mediator right at the outset to assist parties in reaching an agreement, instead of calling in a mediator only when demands have been tabled and people have adopted fixed positions,” he says.

Bargaining
While the law does not prescribe negotiating per industry, it does promote collective bargaining, Mothibi points out.

“For collective bargaining to work optimally, one has to be flexible, which our law promotes.”

Collective bargaining is advantageous as it sets a common denominator across an industry and provides stability. However, in some cases, such as those involving marginal mines, it might not be the best option, he adds.

Meanwhile, Mothibi states that there is no legal duty to bargain, which means that, while companies are not obliged to engage with unions, registered unions have the right to make demands to the company, often ensuring that these demands are heard by withholding labour.

Should a company not want to negotiate a demand made by a union, the union can refer the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), which will attempt to mediate the dispute.

If the dispute cannot be successfully resolved by the CCMA, a certificate will be issued, stating that the union is allowed to go on strike, provided it gives 48 hours notice.

“Through this process the unions attempt to force the hand of the employer using the most potent weapon they have – the withdrawal of labour,” Mothibi stresses.

During a strike period, employers are entitled to use replacement labour, he points out, adding, however, that this often leads to violence but that employers are not without remedy and are entitled to approach the courts for relief.