I have facilitated a number of complex collective bargaining processes over my 22 years and have been involved in numerous court cases in an effort to protect the status of centralised bargaining. Collective Bargaining is currently faced with a number of challenges and have heard a number of conclusions drawn that the collective bargaining system is failing.
However, is it failing as a policy? or is it failing to deliver to the constituencies that negotiators represent? or is it failing in its application by the negotiators? or is it failing due to deliberate efforts to undermine it? or is it really failing to fail?
The answers to these questions will naturally depend on who you ask. My view is based on my three pillars of thinking: that collective bargaining is an essential right which must be protected in South Africa and has generally delivered positive results; that there are a number of real challenges to collective bargaining; and that these challenges can be remedied by applying strategic changes at the collective bargaining level, without any need to drastically change the policy.
I present my perspective in two posts – This post will focus on the challenges and the next post will focus on an Integrated Collective Bargaining (ICB) model that I suggest can be used to great effect to enhance collective bargaining. I encourage readers to comment and share their thoughts with me on ebrahim@mediateworks.com
KEY CHALLENGES TO COLLECTIVE BARGAINING
Collective bargaining is generally assumed to be synonymous with differences, adversaries, violence and unreasonableness. However, to most experienced facilitators and mediators working in this field; it is apparent that the majority; if not all negotiators; like most people; prefer peace, contentment and stability. The tendency however is for negotiators to use power as the default method of bargaining. This display of power is then synonymous with collective bargaining.
We live in a complex society that is grossly unequal, under resourced and impoverished. Social justice policy imperatives, are crucial for achieving change. We however have a developing economy that requires the promotion of economic development. Collective bargaining provides a crucial mechanism for trade unions and employers to achieve a collaborative ‘balance’ between the imperatives of social justice and economic development in specific workplaces, sectors and areas.
The collective bargaining arrangements are however burdened with macro socio-economic and political frustrations that are felt by ordinary people. This burden influences negotiators broad ranging demands, strategies and responses. Demands in collective bargaining, thus span issues of health, housing, transport, safety and education. These are matters which normally should be addressed through government policies and interventions. In addition, domestic and International economic instability and corruption have gravely impacted on our financial security and as such contribute to a need for greater angst for economic development.
The intensity of the tug of war between the widening and seemingly polarised objectives of social justice and economic development is leaving all sides bruised. These stress factors however remain, and negotiators must adapt quickly to manage the higher level of responsibility and sophistication that these adverse factors bring to the negotiating table.
Collective bargaining is also faced with procedural inconsistencies. The rules of bargaining and its processes are neglected, and breaches are condoned. This contributes to a greater level of procedural uncertainty. This in turn escalates conflict and insecurity, creates a higher level of mismanagement and an erosion of trust. Collective bargaining processes must become more efficient, predictable and offer a higher level of compliance.
Achieving a deal at all costs is simply irresponsible and contributes to the ‘normalisation’ of violence, intimidation and manipulation during negotiations. Negotiators must prioritise the development and sustainability of workplace relationships as much as finding sustainable solutions. A good deal is not a wise deal if it is achieved at the expense of the long-term stability of the relationship between the unions and employer parties. The long-term relationship stability between the employer and union stakeholders, is essential to providing an effective climate to tackling the issues at the collective bargaining table.
The proliferation of trade unions; rapid and unpredictable changes in membership between trade unions; increased presence and rights of minority trade unions and employer organisations; challenges to established principles such as “majoritarianism”; instability in bargaining councils; changes in trade union federations; shifts in the political alliances of trade unions and inconsistent decisions from our courts, are additional pressure points being felt in most collective bargaining arrangements.
The greatest concern to the stability of collective bargaining is the prevalence of extreme inter-union rivalry. In some bargaining arrangements the representative status of unions fluctuates from month to month. Trade unions are more focussed on winning over and retaining members, rather than on the quality of the negotiation process and its outcomes. Trade unions are steadily undermining their bargaining role and ability in preference of their identity and power. This has the potential of crippling any potential that collective bargaining may hold. It is proving to weaken the trade unions in the collective bargaining structures; creates uncertainty in the power of trade unions in bargaining arrangements; leaves members exposed; leads to easy exploitation in bargaining arrangements and ultimately produces poor results. Ultimately members of trade unions may find no real value in their union membership. Trade unions must get their collective house in order and engage with each other behind closed doors to resolve their issues and demonstrate a united front in negotiations.
Precious negotiation time and resources are wasted on debating and retelling past bad experiences in previous negotiation processes. This is exacerbated by the lack of finality on past deferred issues. It thus frustrates any ability to focus on the present realities and challenges. Negotiators must quit stalling and provide time and space to clean up the past baggage as it is devouring any new future opportunities.
I accept that the current challenges pose a real risk if not tackled strategically in every bargaining arrangement that it will result in the failure of an essential right. Check out my next post on a proposed method of enhancing collective bargaining.
Ebrahim Patelia
CEO - Mediate Works (Pty) Ltd