William Thomson

William Thomson’s qualifications include BSocSc (UCT), BProc (SA), LLB (SA) and a DPLR (Unisa Graduate School of Business). William is an Attorney and a CEDR (UK) and Conflict Dynamics accredited Commercial and Civil Mediator. A former Director of the Independent Mediation Service of South Africa (IMSSA). He is currently a Senior Commissioner with the Commission for Conciliation Mediation and Arbitration (CCMA) and a Panellist with Public and Private Sector Bargaining Councils and Accredited Private Dispute Resolution Agencies. William teaches courses on Negotiation, Mediation and Labour Dispute Resolution at a number of South African Universities and facilitates training and other processes for the International Labour Organisation (ILO). William is a UCT Graduate School of Business and an internationally accredited Coach. He is also a research associate in the Law Faculty at the University of Cape Town. 

South Africa’s quadruple reality of high unemployment, low economic growth and extreme inequality and poverty is at the core of sectoral and workplace wage negotiations and collective bargaining processes for the 2022/23 period. The challenges of advancing economic development, social justice, labour peace and workplace democracy, the foundation stones and the purpose of the Labour Relations Act (LRA) 66 of 1995[1], are right at the forefront of this dialogue.

At a 2011 CCMA 15 year ‘think tank’ on South Africa’s labour relations, collective bargaining and negotiations between the sectoral and workplace parties were described as being adversarial and positional. Then in 2014 a NEDLAC Summit on the state of collective bargaining was convened and the ‘Ekurhulani Declaration’ was signed by social partners, that gave birth to the LRA Code of Good Practice: Collective Bargaining, Industrial Action and Picketing (the Code). The Code was gazetted and came into being on 12 December 2018.

The Code is based on the ‘Principles of Good Faith Bargaining’ and it includes a Good Faith Declaration for the parties to sign and to make fundamental commitments to each other prior to commencing negotiations.

The Code’s intention is to provide practical guidance:

• on collective bargaining,
• on the resolving of disputes on matters of mutual interest and
• on the resort to industrial action.

The Code also makes it mandatory that anyone interpreting the LRA, must take the Code into account.[2]

Key aspects of the Code on collective bargaining and dealing with disputes of mutual interest include: 

• The development and support for negotiators: The Code requires parties to commit themselves to either joint or separate training and capacity building for negotiators, but using the same training materials and conducted by recognised institutions, trade unions or employers’ organisations.[4]
• The use of facilitators: The Code encourages the parties consideration, and mutual agreement for the appointment of a facilitator or facilitators to facilitate negotiations, before, during and after the process.[5] 
• The disclosure of information: The Code holds the disclosure of information to be essential for rational collective bargaining and effective consultation at the workplace.[6]

Negotiators sometimes speak of the ‘3 important Ps’ for effective negotiations; the people, the process and the problem. The people refer to the parties and how they relate to one another, their relationship, their levels of trust and respect, their rapport, and their communication skills. The process is how the parties structure the negotiation: following the phases, preparation including the use of a facilitator and pre-negotiation meetings, agreeing ground rules, timing, caucusing, working in teams, etc. The problem is how and what the parties explore: identifying the issues, positions vs needs and interests; and how they manage the bargaining process, generating options, formulating demands, offers and proposals, the exchange of offers and if necessary managing deadlock. The key to effective negotiation is the capacity of negotiators to manage all three Ps.

The 2022/23 collective bargaining and wage negotiation period in South Africa could be described as being largely adversarial, positional and combative with low levels of trust, respect and collaboration, and little co-operation and co-determination between the parties. Evidence of creative and innovative thinking and constructive exploration of mutual interests and gains to the parties has either been limited or completely non-existent.

The Code of Good Practice on Collective Bargaining in recognising the trust deficit in the labour market between and within (inter and intra) the parties and social partners provides three very important tools in seeking to encourage more collaborative, constructive and effective dialogue:

• The establishment and setting out of a process[7] for collective bargaining including a good faith commitment and declaration[8] by the parties on how they will engage with each other; and
• The encouragement of the use of a facilitator or facilitators mutually agreed to and respected by the parties (for their impartiality, knowledge, process management and creative and complex problem-solving skills) to assist the parties in identifying their underlying needs and interests, and to assist in the generation and selection of options for possible settlement so as help the parties to jointly find and ensure stable and sustainable ‘mutual gains’ outcomes.
• The disclosure of information for meaningful dialogue and participation in the negotiations is contained in the Code as being paramount for the informed co-operation of employees and for the building of a trusting culture.[9]

A number of the parties engaged in these processes have embarked on relationship reflection, assessment, alignment and improvement processes prior to or following their collective bargaining processes. 

The outcomes of these workplace relationship-building type interventions have often also included the identification of the need for the training and the capacity building of the parties in the relevant and necessary knowledge and skills so that they can meaningfully engage and effectively participate in these processes.

Another key outcome has been the identification of the need, and the agreement between the parties, to establish credible workplace communication structures and mechanisms for the parties to engage each other constructively, effectively and meaningfully as well as from a position of having the necessary understanding and relevant information. The aim of these workplace communication mechanisms is for the parties to meet on a formal and regular basis throughout the year to discuss, manage and resolve workplace issues and matters of mutual interest as they arise, leaving items identified for and agreed to for collective bargaining, to these separately scheduled negotiations for this purpose.  

Fulfilling the primary objects of the LRA to promote orderly collective bargaining at a sectoral and workplace level, employee participation in workplace decision making, and effective labour dispute resolution,[10] as well as the proactive management of conflict and the prevention of disputes is provided for and enabled by the Code of Good Practice on Collective Bargaining.