Negotiations between the employer and Trade Unions are never straightforward. Whether negotiations relate to wages, collective agreements, bonuses, or allowances, finding common ground is generally a tense and lengthy affair. The main aim of negotiation is to resolve the dispute between the parties amicably. The preferred outcome is the opportunity to resolve the dispute at the company level. As will be outlined below, if the parties fail to reach an agreement, the dispute can result in a strike which can have mutually destructive outcomes. Therefore, it is advised that a negotiated settlement is always a win-win solution. If this is not possible, the consequences of a deadlock will be discussed below.

When both parties fail to reach an agreement, the consequences of moving forward are undesirable for both parties. The employees or the Trade Union can refer what is called a “mutual interest” dispute for Conciliation, at which point the Commissioner will attempt to resolve the dispute. The Commissioner, if deemed necessary, can authorise an extension for parties to try and go back to the negotiation table and resolve the dispute. If there is an agreement between the parties, the Commissioner can assist the parties in drafting a settlement agreement. Should negotiations remain unfruitful after the extension, a certificate of non-resolution can be issued. This will lead to the CCMA establishing picketing rules that will determine how the strike is physically conducted.

Once picketing rules have been established, it is at this stage that the parties would have reached a point of no return, and the battle lines are drawn in the sand. A strike is a lose-lose scenario for both parties. The employees suffer from the no-work-no-pay policy; therefore, the longer the strike lasts, the longer they do not get paid as they have not rendered their services. For the employer, production takes a significant hit, especially when they cannot obtain replacement labour. Even in the event that they can, it is very difficult to find people who can duplicate the production efficiencies of the employees on strike. The administration costs involved in procuring replacement labour can also be an expensive and time-consuming process. Furthermore, as history has depicted, replacement labour often becomes the focal point of disgruntled employees who are not being paid whilst on strike. Intimidation and violence are commonplace in these scenarios.

A strike’s ripple effect can have a detrimental impact on employees’ lives and can bring a business to its knees. The employer finds itself between a rock and a hard place, faced with the option of giving into the employee’s demands and thereby risking the business’s financial stability in the long run. Perhaps the most extreme consequence of a strike is when an employer must close the business due to the economic damage of the strike. This is the worst-case scenario for all parties involved as the employees lose their job and the employer loses its business.

Before accepting that negotiations have hit a deadlock, all parties concerned must bear in mind the harsh consequences of a strike. It is easy to walk away from the negotiation table and declare a deadlock, but a balance must be struck between the interest of the employer and the employee and what is financially feasible for the business.

So, let’s agree to try again, because a deadlock cannot be where things end.

Article By: Zothani Maseko
Dispute Resolution Official – CEO Durban