Trade unions - How to deal with power play and position bargaining
Johanette Rheeder

Demands by unions, strikes and the most recent cases of looting and protest marches have been on the forefront of the news in the last few months, stunning some with surprise at the high wage demands and the seemingly unbridgeable gap between demand and offer. Many wonder why this is happening and whether there is a lack of common understanding and failed relationships between employers and employees in South Africa. To understand the power play and the process of position bargaining, one has to understand the purpose of a trade union. A trade union is in essence an association of employees with its principal purpose to regulate relations between the employer and the employees on matters of mutual interest. This includes collective-bargaining, dispute resolution, the representation in disputes and effectively working together in achieving labour peace in the workplace and increasing employee participation in workplace matters. (As is so eloquently put in the preamble of the Labour Relations Act).

The purpose of setting up a trade union or belonging to one is that collective power is a fundamental concept of a trade union. An employee achieves very little when he or she is a “one man show”. A single employee can, for instance, not embark on a protected strike. Employees therefore organize themselves in trade unions in order to maximize their collective power in what we call “power play” against the employer. This ensures greater participation by employees in the regulation of their workplace matters. It is this positive effect of power-play that has been recognized by the legislature and embodied in law.

In endeavouring to achieve its purpose, the trade union will seek recognition from the employer and will exercise its rights once achieving the level of representativeness required by the Act. The more powerful the union gets, the more rights it become entitled to and once it reaches majority, it can appoint shop stewards, claim information in terms of section 16, set the threshold for representivity for other unions and bind other employees in collective agreements with the employer. This principle is called majoritarianism. Naturally speaking, the more members the union has, the more powerful it is and the more effective it becomes in the power play with the employer or employers in an industry. Naturally therefore, in these processes, the union officials and shop stewards never lose sight of their collective power, therefore its representivity with the employer. If it loses members, it stands to lose its representivity, giving the employer the right to cancel its collective agreement or to even cancel recognition altogether.

The purpose of a trade union is therefore not only to be in an adversarial relationship with the employer. In order to achieve the purpose of the Act, it must also seek labour peace and engage in joint and meaningful consensus seeking processes, for example during retrenchment procedures. Trade unions also play an important role in workplace safety. Unions might for instance question employers during accident investigations and the union and the employer must appoint health and safety representatives. Health and safety is therefore a joint concern of both the employer and the union. The various disputes that the union and the employer are involved in and negotiating on can either be “interest” or “rights” disputes. Rights disputes are about existing rights, those rights come from contract or the law. For instance, an employee has the right not to be unfairly dismissed or the employer refuses to give way to a right the employees have in terms of the employment contract or collective agreement. Interest disputes are those things employees want, e.g. a wage increase. They do not have the right to it. These disputes must be the subject of collective action if the parties cannot come to an agreement. The right to bargain collectively is a constitutional right. However, in our law, there is no reciprocal duty to bargain. Employees must enforce this right through collective power.

Normally negotiations take place by way of position bargaining. Unions, ever minding its collective position with the employer, advise employees and present the mandate it receive from employees at the negotiation table. This entails a union party setting forward a demand, thereby stating its position with regard to the demand. For example, during wage negotiations the union will state its position to be: “18% increase across the board”. The position will then move as the employer sets it counter offer or position. As the position moves closer and closer, the closer the parties will be to settlement. This stating of different positions is done by way of mandates that will be obtained from either the employees to the union or the employer to management. The aim of positioning bargaining typically is not the “win win” situation but rather “give and take” or compromising style.

When compromising, the objective is to find an expedient, mutually acceptable solution that partially satisfies both parties. Compromising might mean splitting the difference, exchanging concessions, or seeking a quick middle-ground position. Different negotiation tactics will then be applied to achieve settlement as close as possible to that parties’ mandate. If the parties cannot settle, strikes, protest marches, picketing and secondary strikes are used to force the hand of the employers. Various types of destructive collective bargaining behaviour can take place during these processes. Collective bargaining should take place in good faith. Bad faith does not result in agreement, which is not to the benefit of the employer or the employees. Depending on the process and the issue in dispute, parties may or may not be prepared to compromise or give up a dispute. The more rigid the parties are, the more difficult it will be to settle the matter. Aggressive attitude, unreasonableness, dishonesty and mala fides will work against a resolution in the process.

The following are examples of destructive collective bargaining behaviour;
1. The nature of the demand in itself works against the resolution of the disputes. The demands are unrealistic, mala fide, not the real reason for the unhappiness, frivolous, unfair or not obtainable.
2. Bad or negative attitude, arrogance, insulting behaviour, disrespect, offensive behaviour, negative or incorrect perceptions and either of the parties not being committed to resolve the dispute, refusal to be reasonable or to listen, racism.
3. Poor communication during the process, either about the dispute or the proposals.
4. Being unreasonable in the communication of the demand or in the way that the demand is being rejected.
5. Refusal to disclose relevant information or lack of information.
6. Undermining attitude or behaviour.
7. By-passing or side stepping the union or the employer.
8. Unilateral behaviour such as unilateral implementation of conditions or change to conditions.
9. Unfair and undermining tactics such as delays, division or conflict.
10. Brining in political interests into the workplace.
11. Unreasonable pre-conditions during negotiations procedures.

Johanette Rheeder Attorneys
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