Ebrahim Patelia

Ebrahim trains on several Conflict Dynamics courses and he is a lead trainer, coach and assessor on the Conflict Dynamics mediator skills training course. Ebrahim is a CEDR (UK) accredited commercial mediator and is associated with the Commission for Conciliation, Mediation and Arbitration (CCMA) as a part-time senior commissioner, the International Labour Organisation Training Centre (ITCILO) as a lead faculty member, the University of the Witwatersrand School of Law and the Mandela Institute (Wits) as a visiting senior lecturer.

The purpose of the Labour Relations Act is "to advance economic development, social justice, labour peace and the democratisation of the workplace [1]". To achieve this the Act seeks to fulfill a number of objectives, one of which is to "promote orderly collective bargaining"[2].

The Labour Relations Act allows parties to voluntarily enter collective relationships and through the process of collective bargaining (negotiations) reach collective agreements that are to their benefit. The practice of collective bargaining and the resultant agreements or disagreements are left to the parties. There is very little interference from the legislature. The parties to collective bargaining relationships thus have a significant responsibility in the way they exercise their rights to bargaining.

The Code of Good Practice on Collective Bargaining, Industrial Action, and Picketing[3] (the Code) provides guidelines that support parties to collective bargaining. The Code sets as its objectives amongst others: the promotion of orderly collective bargaining, proactive and constructive means to resolve disputes speedily and prior to industrial action inducing behaviour changes amongst the role players in negotiation. Of importance to this article, the Code emphasises the development of skills and knowledge of negotiators, ensuring process certainty, defining good faith, and ensuring commitments from negotiators.

It is therefore recommended that collective bargaining partners take an integrated and comprehensive approach to preparation. This will include:

• the continuous development of skills and knowledge of negotiators, the coaching and mentoring of new negotiators, and, where possible, the evaluation of negotiators’ performance.
• the development and enhancement of the relationship between the collective bargaining team members through structured processes such as the Relationships by Objectives (RBO) process.
• the review and enhancement of the processes, practices, rules for engagement, or codes of conduct for negotiators.
• the consolidation of the outstanding/historical issues that have been parked and remain unattended. This requires a plan that will be actioned to address these issues.
• the consideration of the appointment of facilitators and the development of terms of reference for the facilitators.
• the careful facilitation of the negotiations.
• the review and enhancement of the negotiations.

In each negotiation, negotiators will be best served to develop an adequate plan that considers a range of issues from their own perspective and from the perspective of the other party. A negotiation planning framework is provided below to assist negotiators. Each of these areas requires a strategic plan. These matters will evolve during the negotiation and as such the negotiation plan needs to evolve.

Finally, the behaviours of negotiators need to be managed by a clear definition of what "good faith" means for the negotiation environment. It is advisable for negotiators to agree to their own code of conduct in respect of their negotiations. The Code states that Good Faith includes amongst other things clarity and certainty on:

• Disclosure of information.
• The process of submitting and responding to demands.
• The prevention of including new demands during the negotiations unless agreed to or for the purposes of settlement.
• The consistent attendance by the same negotiators at negotiation sessions.
• No unreasonable delays in the negotiations.
• The preparedness to change positions during the negotiations.
• The negotiators should be mandated.
• Negotiations are to be conducted in a rational and courteous manner.
• Communication with members and principals must be accurate.
• Communication should not be issued as a means and in a manner to undermine the bargaining status of the other party.
• Employers should not bypass the recognised trade union/s by dealing directly with employees.
• Employers must not unilaterally alter terms and conditions of employment during negotiations; and
• The parties should remain open to negotiations after a dispute has been declared.

The outcome of collective bargaining negotiations contributes one of the largest costs to the expenses of an organisation and is conversely of huge value to the terms and conditions of employees. These are matters that are of serious consequence commercially and for the improvement of the lives of employees. Collective bargaining must be given the serious attention it deserves in its planning and execution.

[1] Section 1 of the Labour Relations Act

[2] Section 1 (d) (i) of the Labour Relations Act, 66 of 1995

[3] Government Gazette, No 42121 of 19 December 2018