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Labour guides has received a number of enquiries about the Labour Relations Act 66 of 1995 and the Basic Conditions of Employment Bill 1997. The Act and Bill are available from the Government Printer in Pretoria. Jutas stocks analyses of the legislation.
Please note that the Employment Bill 1997 is only a draft bill published for public comment and is not yet law. It is this Bill that Cosatu is objecting to as being too employer-friendly.
CONTACTING LABOUR GUIDES
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BT Labour Guides will be updated daily, based on questions and feedback received from browsers. BT Labour Guides can be contacted on:
Tel: 487-3456
Fax: 487-1385
Mail: btimes@tml.co.za
Post: Box 7248, JHB, 2000
* All submissions will be treated in the strictest confidence.
* Give as much relevant information and a contact phone number where possible.
* Wait for a reply before you pre-empt a dispute.
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Prepared by Rael Solomon and
The Labour Consultancy.
THIS week, Labour Guides looks at labour disputes.
LABOUR DISPUTES - What are the obstacles to successful Conciliation? |
This week in Labour Guides, we discuss the conciliation process and its problems with Chris Mbileni of Afroscene Management Consulting (Pty) Ltd. Chris Mbileni is a part time commissioner with the CCMA.
THE SITUATION
Conflict is a growth industry and labour disputes are not an exception. Huge corporate mergers, wage negotiations, corporate relocations, industrial action and many other causes are forcing thousands of people out of jobs. Unfortunately, our ability to deal effectively with disputes is not keeping pace; too often we lack the creative ideas needed to accommodate conflicting interests, and - more importantly - we lack a mechanism which will allow us to generate those ideas. How do we begin to untie our hands? The following are some practical observations from conciliated labour disputes at the CCMA.
Many parties, big and small, including company directors, professionals such as medical practitioners and employers of domestic workers, do not seem to know what they are negotiating on the table. They seem ignorant of the requirements of the Labour Relations Act, 66 of 1995 as amended. Many disputes referred to conciliation by the CCMA, should otherwise not have come in the first.
- Partisan perceptions: Individuals, unions and employers involved in a labour dispute invariably have substantially different perceptions of the dispute and of the historical facts that underlie it. Those differing perceptions make it difficult if not impossible for the parties to negotiate for an outcome that would be acceptable to both sides.
- Focus is on substantive differences: On both sides primary attention is on the issues that divide them rather than on a process by which those issues could be resolved.
- Each side adopts a position rather than clarifying their interests: The parties in dispute often fight over an absolute “either/or” choice such as wages and compensation on financial benefits rather than negotiating for something for mutual benefit or shared gains which they really want.
- Each side is reasonably rejecting the other’s position: In most of the labour disputes I conciliated, parties tended to assume that if they are being reasonable, then the other side is being unreasonable. To the contrary, in most disputes the agent who is negotiating on each side is prudently, from his or her point of view, saying “no” to what they hear the other side demanding.
That this is true in a typical case, can be illustrated by a chart that often reflects the choice faced on each side:
Currently Perceived Choice of each negotiator
Question: Shall I now accept
the position of the other side?
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If I say “YES”
- I back down
- I appear weak
- I betray the interests of our side
- I get nothing
- We give up negotiating power
- I will antagonise our hard-liners
- I will lose much union/corporate
support.
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If I say “NO”
- I stand firm
- I appear strong
- I am loyal to our side’s interests
- We have a good chance of doing better
- We preserve our negotiating position
- I maintain broad union/corporate support
- I keep my options open.
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When that is the choice, each negotiator or party says “no”.
- There is no option on the table that each side could accept: Often in these situations of labour disputes, no one has advanced a proposal or package of proposals that both sides to the dispute could be expected to accept.
- There is no process for generating good options: Continuing to argue over a substantive dispute ignores the potential joint gains that might make a broader agreement acceptable to everyone. And adversarial bargaining is not a promising climate within which to explore fresh ideas that could accommodate the interests of both sides. Advancing a new idea is risky for any negotiator or negotiating agent who has authority to commit. Any fresh suggestion may be heard as a concession, rewarding the other side for stubborn behaviour and encouraging it to demand more and more.
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