Once an employer receives the letter demanding higher wages, an increase in pension fund contributions and an endless number of benefits, the inevitable threat of a strike is looming.

The collective bargaining process ensues from here. The trade union and the employer try to negotiate at a plant level to reach an agreement. When the collective bargaining negotiations collapse, this means that the parties would have reached a deadlock, and the trade union will have the right to refer a mutual interest dispute to the CCMA or a Bargaining Council.

When the matter is referred to the CCMA or Bargaining Council, a second round of negotiations may take place, only this time with the guidance of the CCMA commissioner. The aim of this process would be to find a resolution to avoid a certificate of non-resolution being issued by the commissioner, which allows employees to embark on a strike. At this stage, employers benefit from being represented by a Dispute Resolution Official from CEO. Our officials are trained and have extensive experience in these negotiations.

The negotiation process may be very daunting for employers as the demands that may be made are so outlandish that it sets a negative mindset from the onset. Which, in essence, negatively impacts the negotiation process. The ultimate goal for the parties would be to avoid a devastating strike. Some of the key principles, in my opinion, that should be considered are the following when engaging in negotiation:

1. Understanding the other party’s perspective: Too often, parties assume they understand the other side’s interests and goals. This is key to appreciating the reason for the demand from the perspective of the employees and, on the other hand, appreciating the reason for the counter proposal from the employer. It is also most useful to accept that party may have a different perspective that one would not agree with. In all negotiations, each party believes that their case is the strongest, therefore, underestimating the other party’s willingness to stand firm.

2. Taking the advice of the Commissioner: The commissioner plays a crucial role in the conciliation process, s/he is an objective third party who has only heard the facts after each party presents their case at the CCMA. In contrast, the parties have already been embroiled in negotiations and have become despondent. This will genuinely assist the parties to give a fresh perspective of the matter before them. If the parties do not reach an agreement, picketing rules are established, and the commissioner issues the certificate of non-resolution. This will allow the employees to embark on a strike, and the commissioner also seeks to avoid this outcome. While you must stand firm on your stance, it would be unwise to disregard advice without thought.

3. Patience, Patience and more Patience: By the time parties sit before the commissioner, they would have engaged in several meetings trying to reach a resolution. The trade union may use the strike as a power-play tactic to pressure the employer to concede to their demands. This, in turn, causes the parties to become too emotionally involved and frustrates the process. The key element in negotiating with the union is to be patient and remain calm. This allows you to keep the temperaments at bay and engage with the issues at hand. This also destabilises the trade union’s aim to provoke the employer and frustrate the process. Remaining level-headed also allows you to make informed decisions and to consider the impact the strike will have on the business instead of a knee-jerk reaction as a result of frustration and anger.

Ultimately, the goal for the employer and employees is to avoid a strike. The key to the negotiation is that parties must accept that they will not be a winner at the end of it all. The success lies in the resolution, which comes from the compromise that both parties must make.

Article by: Jamie Moodley
Dispute Resolution Official – Durban