Q&A: Legal implications for S African miners

Al Jazeera takes a look at the legal ramifications for miners on strike at Marikana.

South Africa miners strike Lonmin
Three thousand Rock Drill Operators have been on strike since August 10 [EPA]

Work at Lonmin PLC, the world’s third largest platinum mine operator, has slowed drastically at its Marikana location in South Africa for more than a month now.

Trouble began at the mine when three thousand Rock Drill Operators (RDO) embarked on an armed, unprotected strike on August 10, demanding a pay raise to R12,500 ($1,500) per month.

The strike turned deadly afterwards, with 45 people killed in clashes so far, including security personnel, police officers and 34 strikers that were controversially killed by police in what some have dubbed the “Marikana massacre”.

With mediation now poised to begin at the Commission for Conciliation Mediation and Arbitration (CCMA), the labour dispute resolution body facilitating the wage discussions, negotiators remain at an impasse while most workers continue to stay away – some due to intimidation – as the strike persists.

Tensions have also spread to other mines in the country, fueled by political wrangling and public outcry against the low salaries earned by the miners.    

The CCMA said on Wednesday that “the situation on the ground appears to be worsening”, while questions linger about the potential legal implications of the protracted strike for the miners. 

Al Jazeera’s Safeeyah Kharsany spoke with Mahamed Rajah, Professor of Labour Law at the Graduate School of Business Leadership, University of South Africa and senior part- time Commissioner at the CCMA for 16 years, about labour practices in the country and the meaning of the South African Labour Relations Act 66 of 1995 (LRA).

Safeeyah Kharsany: What is the general procedure for wage negotiations from the time that a wage grievance is tabled?

Mahamed Rajah: In an organisation that recognises a trade union or unions, the employer and union(s) usually meet annually or every second year to negotiate wages and working conditions. Most of these negotiations usually result in agreements.   

Striking miners are demanding a pay raise to R12,500 ($1,500) per month [REUTERS]

If agreement is not reached during these negotiations, the trade union can apply to a bargaining council or statutory council with jurisdiction to resolve the dispute.

Some industries have formed councils. If there is no council with jurisdiction, the union applies to the CCMA to resolve the dispute.

The council or CCMA will appoint a Commissioner to attempt, usually through conciliation [mediation], to resolve the dispute within 30 days.

If the dispute remains unresolved the commissioner will issue a certificate to this effect, or the 30 days will lapse.

By agreement the parties can extend the 30 day period. If the employees want to strike the union or employees must give the employer at least 48 hours written notice of their intention to strike. If this procedure is followed, it will be a protected strike.

The employer could institute a lockout. In such a case the employer would give the union or employees at least 48 hours written notice of its intention to lockout.

During strikes the employees may picket or they may choose not to strike but picket during lunch breaks or outside of working hours.

SK: In terms of the law, can wage negotiations continue if workers continue to strike?

MR: Wage negotiations do carry on during strikes. Strikes are a necessary part of the collective bargaining process – not an end to the process. Without the right to strike you would not have effective collective bargaining. You would have, as somebody said, collective begging. 

Strikes, which are the collective withholding of labour, are probably the only real form of pressure that employees can use against their employer’s economic power.

SK: Is Lonmin in a position to deviate from general labour law protocol to resolve the situation? And what implications could it have if they do?

MR: This is a difficult one to comment on. It probably would not be in the interest of good labour relations to consider alternatives. The CCMA is involved at this stage to try to assist. They will try to convince the employees who stayed away from the process yesterday to participate. We will know by tomorrow what they are planning.

Unfortunately it appears that this is not a purely labour dispute. There are other socio economic and political factors that need to be considered.

SK: Do workers face possible dismissal if they do not return to work?

MR: Workers can be dismissed if they do not return to work. The LRA makes provision for disciplinary action, which could be dismissal for participating in an unprotected strike. The employer would have to follow the required procedure, which includes issuing ultimatums stating the consequences if employees do not return to work.

The employer in this case would probably use dismissal only as a last resort.

The difficulty with dismissal is retraining of new employees and finding employees with the relevant skills. The employer would have to consider the consequences of a dismissal under the circumstances.

Another consideration is the employees who do continue working and new employees could be considered to be “sell-outs” by those who lost their jobs.

SK: If workers are rehired [after dismissal], will they be rehired at the same level as when they were dismissed, or will they be rehired as new employees (without accrued benefits from their years of service)?

MR: If rehired it would be a new employment contract. The employer can then determine what the offer is. The offer could be that they will be in their previous positions, similar positions or it could be new positions.

If they are reinstated then they will be placed in their previous positions or similar positions including benefits.

For the purpose of determining length of service, in case of retrenchments in the future, according to The Basic Conditions of Employment Act, length of service is considered unbroken if the break in service is less than 12 months.

SK: If this crisis is resolved, where will it leave the miners who now have forfeited one month’s pay?

MR: The employees who were on strike…were not paid for the time that they were on strike.

Some will probably be in debt to moneylenders for a long time. Sometimes the employer advances them loans on favourable terms, as part of the agreement, when the dispute is resolved.

The dispute settlement agreement can also make provision for overtime work to allow employees to earn extra. There was loss of production so the extra overtime could be a favourable option for all parties.

SK: What exactly does an “unprotected” strike refer to and how is this different from an illegal strike?

MR: If the procedure [outlined above] is not followed the strike that takes place will be an unprotected strike [or wildcat strike]. The LRA refers to protected or unprotected strike. It does not classify strikes as legal or illegal. This is probably because employees have a Constitutional right to strike.

If the CCMA cannot resolve the dispute it could impact negatively on South Africa’s image internationally.

Strikes can be illegal in terms of other laws which may prohibit gatherings.

Employees who participate in a protected strike cannot be disciplined or dismissed for participating in such strike. They can be disciplined or dismissed for misconduct during strikes.

Employees who participate in unprotected strikes can be disciplined which could include dismissal, provided the employer follows the LRA guidelines for a fair dismissal.

SK: What do these strikes and the outcomes of these strikes mean for South Africa and its unions?

MR: These strikes have certainly highlighted the dissatisfaction of workers including their socio economic positions. It is probably a reflection that the Congress of South African Trade Unions (COSATU) and its affiliated unions and the ANC and government are not in touch with the workers’ needs.

They have not managed to address the vast inequalities that society experiences.

COSATU needs to rethink its political role in relation to its labour relations role. Granted it is not a trade union (COSATU is a union federation) it does however have a role to ensure that its affiliated unions focus more on their members’ needs.  

If the CCMA cannot resolve the dispute it could impact negatively on South Africa’s image internationally.

I am optimistic that the CCMA will eventually succeed in assisting parties to resolve their dispute.

Follow Safeeyah Kharsany on twitter @safeeyah

Source: Al Jazeera