RESOLVING LABOUR TENSIONS IN AFRICAN MINING

Transcription

1 RESOLVING LABOUR TENSIONS IN AFRICAN MINING THE EFFECTIVE REGULATION OF INDUSTRIAL DEMOCRACY PRESENTED TO THE SAIIA ROUNDTABLE BY JOHN BRAND 3 FEBRUARY 2014

2 Courtesy: Greg Marinovich Content

3 Courtesy: Greg Marinovich Content INTRODUCTION

4 Courtesy: Greg Marinovich Content ESSENTIAL FEATURES OF INDUSTRIAL DEMOCRACY

5 Courtesy: Greg Marinovich Content ORGANISATIONAL RIGHTS UNDER THE LRA

6 Courtesy: Greg Marinovich Content COLLECTIVE BARGAINING RIGHTS UNDER THE LRA

7 Courtesy: Greg Marinovich Content PROBLEMS WITH THE LRA

8 Courtesy: Greg Marinovich Content MANIFESTATIONS OF THE LRA S PROBLEMS

9 Courtesy: Greg Marinovich Content WHAT NEEDS TO BE DONE

10 Courtesy: Greg Marinovich INTRODUCTION

11 INTRODUCTION Violent inter-union rivalry is a major feature of South African industrial relations It has produced calls to limit inter-union rivalry and even unionisation But, freedom of association and organisational and collective bargaining rights are enshrined in the Constitution

12 INTRODUCTION The rights are therefore legally inviolable and are essential for a free market economy The problem is not the existence of the rights but how they are exercised and regulated

13 Courtesy: Greg Marinovich ESSENTIAL FEATURES OF INDUSTRIAL DEMOCRACY

14 ESSENTIAL FEATURES OF INDUSTRIAL DEMOCRACY It replicates the political democracy It upholds freedom of association

15 ESSENTIAL FEATURES OF INDUSTRIAL DEMOCRACY It allows, subject to limited conditions, access by all unions, to employer operations for the purposes of: recruitment communication with members serving members interests holding meetings with members holding member ballots

16 ESSENTIAL FEATURES OF INDUSTRIAL DEMOCRACY Subject to limited conditions: it makes deduction of trade union subscriptions permissible it makes recognition of shop stewards permissible it permits union representation in grievance, discipline and meetings with employers

17 ESSENTIAL FEATURES OF INDUSTRIAL DEMOCRACY It allows reasonable time off for trade union activities It ensures reasonable disclosure of information to all unions It provides for the holding of proper ballots to test representativeness

18 ESSENTIAL FEATURES OF INDUSTRIAL DEMOCRACY It grants collective bargaining rights in appropriate bargaining units to only one union or an alliance of unions who represent the majority of workers in an appropriate bargaining unit It recognises the right to strike peacefully It requires negotiation in good faith

19 Courtesy: Greg Marinovich ORGANISATIONAL RIGHTS IN TERMS OF THE LRA

20 ORGANISATIONAL RIGHTS IN TERMS OF THE LRA A representative trade union is entitled to certain organisational rights and a majority union is entitled to additional organisational rights A representative trade union means a registered trade union, or two or more registered trade unions acting jointly, that are sufficiently representative of the employees employed by an employer in a workplace The CCMA has set 30% as approximate threshold of sufficient representativeness

21 ORGANISATIONAL RIGHTS IN TERMS OF THE LRA Definition of Workplace Workplace means... The place or places where the employees of an employer work. If an employer carries on or conducts two or more operations that are independent of one another by reasons of their size, function or organisation, the place or places where employees work in connection with each independent operation, constitutes the workplace for that operation.

22 ORGANISATIONAL RIGHTS IN TERMS OF THE LRA Any office bearer or official of a sufficiently representative trade union is entitled to access to: recruit communicate serve member interests hold meetings outside of working hours conduct a ballot Sufficiently representative trade unions are entitled to deduction of union subscriptions and levies

23 ORGANISATIONAL RIGHTS IN TERMS OF THE LRA Majority representative union means a registered trade union or two or more registered trade unions acting jointly, that have as members the majority of the employees employed by an employer in a workplace Majority representative unions are entitled, in any workplace with more than 10 members, to elect union representatives to: assist and represent members in grievance and discipline monitor employer s compliance with relevant legislation and agreements report contraventions perform any other agreed function

24 ORGANISATIONAL RIGHTS IN TERMS OF THE LRA Subject to reasonable conditions, majority trade union representatives and office bearers are entitled to take reasonable time off with pay during working hours to perform his or her functions and to be trained. Section 18 of the LRA allows a majority union and an employer to define thresholds of what is sufficiently representative in a collective agreement. The thresholds set in such a collective agreement must apply equally to any registered trade union seeking such organisational rights.

25 Courtesy: Greg Marinovich COLLECTIVE BARGAINING RIGHTS IN TERMS OF THE LRA

26 COLLECTIVE BARGAINING RIGHTS IN TERMS OF THE LRA There is no duty to bargain collectively in good faith or at all in terms of the LRA The duty can only arise by agreement

27 PROBLEMS WITH THE LRA Courtesy: Greg Marinovich

28 PROBLEMS WITH THE LRA Section 18 permits a majority union and an employer to agree that in future any other trade union wanting basic rights must be representative of the majority of all employees in the workplace Industrial democracy is thereby undermined This does not mirror the broader political democracy

29 PROBLEMS WITH THE LRA The LRA prescribes the total workplace as the constituency in which to measure representativeness Industrial democracy is thereby undermined This does not mirror the broader political democracy

30 PROBLEMS WITH THE LRA The LRA does not properly regulate the process to measure representativeness

31 Courtesy: Greg Marinovich MANIFESTATIONS OF THE LRA S PROBLEMS

32 MANIFESTATIONS OF THE LRA S PROBLEMS One example Platinum mines entered into restrictive Section 18 organisational rights agreements with NUM Representativeness was measured by signed stop order forms

33 MANIFESTATIONS OF THE LRA S PROBLEMS One example cont The result was: newcomer AMCU, had to recruit thousands of members from outside a mine to get basic organisational rights

34 MANIFESTATIONS OF THE LRA S PROBLEMS One example cont NUM became complacent and failed to properly service members interests Workers chose to join AMCU Although AMCU became highly representative of, for example, rock drill operators, it couldn t service their interests or represent them in collective bargaining because it was refused basic trade union and collective bargaining rights

35 MANIFESTATIONS OF THE LRA S PROBLEMS One example cont NUM, which didn t represent rock drill operators, agreed to wages for rock drill operators that were unacceptable to them An all or nothing war for majority status then broke out for AMCU to get official recognition and for NUM to retain it

36 MANIFESTATIONS OF THE LRA S PROBLEMS One example cont The war had high stakes. The winner would have the benefits of: the full suite of organisational and collective bargaining rights full time shop stewards comfortable offices telephones and computers

37 MANIFESTATIONS OF THE LRA S PROBLEMS One example cont The loser would have nothing This led to the production of fraudulent membership forms, intimidation, serious violence including murder and eventually to the Marikana tragedy

38 Courtesy: Greg Marinovich WHAT NEEDS TO BE DONE?

39 WHAT NEEDS TO BE DONE? Basic trade union rights must be granted easily with low thresholds of representativeness to encourage a habit of co-existence between unions in the workplace Independently monitored ballots must be conducted to test representativeness A statutory duty to negotiate in good faith must be established

40 WHAT NEEDS TO BE DONE? Appropriate bargaining units must be designated within workplaces Unions must compete democratically for the status of collective bargaining agent Independently monitored strike ballots must be conducted The Courts must have the power to declare strikes that are accompanied by violence as unprotected

41 CONCLUSION Courtesy: Greg Marinovich

42 CONCLUSION Much can be done to regulate industrial democracy effectively by the parties themselves It would greatly assist if the LRA was amended to deepen industrial democracy

43 Thank you