PRESENTATION TO THE 26 TH ANNUAL LABOUR LAW CONFERENCE 2013 SANDTON CONVENTION CENTRE PRESENTATION TO THE 26 TH ANNUAL LABOUR LAW CONFERENCE 2013 SANDTON CONVENTION CENTRE MEDIATING IN THE STRIKE CONTEXT THE ROLE OF THE CCMA

LEGAL BASIS FOR INTERVENTION  Section 150 of the Labour Relations Act obliges the CCMA to offer assistance where resolution of the dispute would be in the public interest  Process is voluntary conciliation and requires the consent of all parties  Participation in the process does not compromise a party’s rights in respect of the industrial action currently underway  Proposed amendment to Section 150 allows the Director of the CCMA to intervene in matters where no consent is forthcoming.

APPROACH TO UNPROTECTED STRIKES

TIMING OF INTERVENTION TOO EARLY Trade Union likely to decline TOO LATE Employer likely to decline IF PARTIES ARE TALKING both likely to decline  No ideal intervention time & each intervention is carefully considered on its particular circumstances.  Labour Market monitoring allows CCMA to select the most opportune time to offer to intervene  97% acceptance of offers of assistance

APPOINTING A MEDIATOR  Not a question of throwing a “warm body” into the process!  CCMA draws on a cohort of selected, capacitated and resourced Commissioners around the country that can be rapidly deployed  Consideration given to various factors e.g. experience in or knowledge of the business or sector, knowledge of the issues, previous experience with parties.  Single mediator or a team of mediators could be deployed

MEDIATOR SUPPORT

NOTABLE ACHIEVEMENTS – MEDIATIONS IN THE STRIKE CONTEXT Private Security Sector (2006) Civil Engineering Sector (2009) Metrorail (2010)Pikitup (2011) Transnet Bargaining Council (2010) SA Road Passenger Bargaining Council (2007) Motor Industries Bargaining Council (2010) National Bargaining Council for the Clothing Manufacturing Industry (2009) National Bargaining Council for the Road Freight & Logistics Industry (2011, 2012) National Bargaining Council for the Chemical Industry (2011) National Bargaining Council for the Wood & Paper Sector (2011) Lonmin – Marikana (2012)

1) Agree Rules of Engagement such as a Code of Conduct for Negotiations, a Communications Protocol and Picketing Rules in times of peace. 2) Wage negotiation and strike mediation are very different processes, so teams don ’ t have to be identical. Take the opportunity between the processes to review the team and make changes if necessary. Include Decision Makers, exclude Proxy Negotiators. 3) Commit to the mediation process and to finding a solution in process ; and be seen to be so committed. 4) Take the process seriously and be seen to be serious

5) Be prepared to push the envelope and find creative solutions – don ’ t be married to your positions or come in wearing blinkers 6) Be open and honest with your mandate givers, communicate with them regularly and effectiand be prepared to show leadership. 7) Relying on the law has its limitations, rather concentrate your efforts on searching for a negotiated solution. 8) Don ’ t burden the negotiating team with other functional responsibilities such as dealing with interdicts, media liaison etc.

9) Do not negotiate through the media. Rather agree on a total media blackout or a Communications Protocol that will guide what is to be said, by whom and when. 10) Keep Calm & Trust the Mediator !

S150 NOTICE

Putting Mediation First!