It is not often I feel the urge to write a letter to Business Day but I did so last year in October and the letter was published in Business Day – Playing labour games.
The “Patterson” referred to by Tim Cohen in his excellent column (Unions ride roughshod over firms — and logic, October 20, 2011) was actually Dr TT Paterson, who visited SA years ago and influenced management thinking on proportional wage differentials.
Collective bargaining in SA is not the same as in the US, where there are only three mandatory issues: hours, wages and conditions of employment. In the US, trade unions must prove that they have the support of 50% plus one in a bargaining unit. They then become the sole bargaining agents for everyone in that unit and the parties must bargain in good faith.
SA does not have any duty to bargain, let alone in good faith, and all employment matters of mutual interest must be resolved by a power play. Even if Xstrata persists in arguing that the offer has been withdrawn or cancelled, that does not prevent the employees from engaging in further protected strike action.
As part of a power play, employers may implement offers or make them to individual employees instead of the union. To protect their operations, employers may even “contemplate” dismissing protected strikers based on their “operational requirements”. Employers must then follow the statutory procedures in the Labour Relations Act , including consultations with the trade unions. Employees who are dismissed and refuse to accept their existing jobs forfeit the right to receive “severance pay” as required by the Basic Conditions of Employment Act, but must get notice pay.
The moral of the story is that employers in SA have to accept that one of the main objects of achieving the purposes of the Labour Relations Act is collective bargaining with trade unions over any matter of mutual interest. It is only power that determines the outcome and neither employers nor employees can complain to any court or other body about the legitimate tactics being used.
Until a duty to bargain in good faith is introduced into our law, it is to be hoped investors will learn to “play the game” and not pay any attention to the saying, “if you cannot stand the heat, stay out of the kitchen”.