1. STRIKE AVOIDANCE HOW TO DEVELOP AN EFFECTIVE STRIKE AVOIDANCE STRATEGY
Presented by John Brand
12 August 2010

2. INTRODUCTION The importance of the right to strike
The rationale for the right to strike
Forms of strike action – peaceful or violent
Forms of negotiation – mutual gain or adversarial
The mutual gain approach to strike avoidance
The prevalence of bad faith bargaining
The prevalence of strike violence
Preparation for war to achieve peace
Conclusion

3. THE IMPORTANCE OF THE RIGHT TO STRIKE
Section 27 of the Constitution
The importance of the right to strike
‘If workers could not, in the last resort, collectively refuse to work, they could not bargain collectively. The power of management to shut down the plant (which is inherent in the right of property) would not be matched by corresponding power on the side of labour. These are the ultimate sanctions without which the bargaining power of the two sides would lack “credibility”. There can be no equilibrium in industrial relations without a freedom to strike.’ – P Davies and M Friedland, in Khan – Freund’s Labour and The Law 3rd Edition (1983) 292.

4. RATIONALE FOR THE RIGHT TO STRIKE
Bargaining balance
Peaceful withholding of labour to force an employer to meet a demand
Bargaining not begging

5. FORMS OF NEGOTIATION AND STRIKE ACTION
Good faith and peace
Bad faith and violence
Permutations

6. AVOIDANCE BY MUTUAL GAIN NEGOTIATION
What unions and employers do
Accept the pluralist idea of partnership and mutual gain
Accept each other as legitimate entities with divergent interests
Subscribe to constitutional democracy
Recognise that strike action is often futile
Recognise strike is an act of last resort
Recognise dependence and independence
Recognise overlapping and different interests

7. AVOIDANCE BY MUTUAL GAIN NEGOTIATION
What unions and employers do (cont.)
Have recognition agreements which commit to:
freedom of association;
good faith bargaining;
exhaustion of disputes procedures;
democracy;
picket rules; and
non-violence.

8. AVOIDANCE BY MUTUAL GAIN NEGOTIATION
What unions and employers do (cont.)
Eliminate conflict aggravators and introduce conflict moderators
Conduct negotiation which is characterised by:
Joint training in modern negotiation theory and practice
Use of an independent and trusted facilitator
Adoption of problem solving methodology
Sensitivity to the negotiation paradox

9. AVOIDANCE BY MUTUAL GAIN NEGOTIATION
What unions and employers do (cont.)
Conduct negotiation which is characterised by (cont.):
Adjusting the mandating process
Exploring causes, interests, needs, fears and concerns
Credible exchange of information
Creative solution search
Objective solution evaluation
Trading across issues
“Expanding the pie”
Use of single text

10. AVOIDANCE BY MUTUAL GAIN NEGOTIATION
Essentially
Negotiation is characterised by

11. THE PROBLEM SOLVING PROCESS
PROBLEM ANALYSIS
SOLUTION SEARCH
SOLUTION EVALUATION
SOLUTION CHOICE

12. INTEREST BASED NEGOTIATION OVERLAPPING INTERESTS
PARTY A
PARTY B
WHAT WE SEE OR HEAR
POSITIONS
DEMANDS
NEEDS INTERESTS FEARS CONCERNS
WHAT IS HIDDEN
OVERLAPPING INTERESTS

13. INTEREST BASED NEGOTIATION

14. PEACEMAKERS +
CREATOR
CREATOR
= GREAT/GREAT OUTCOME

15. ADVERSARIAL NEGOTIATION AND STRIKE VIOLENCE
Judge Basson said in the Labour Court: “In summary, this strike was marred with the most atrocious acts of violence on non-striking employees. The individuals who perpetrated these acts clearly had no respect for human life, the property of others or the rule of law. What makes matters worse is the fact that it appears from the evidence that the police and the criminal justice system have dismally failed these defenceless non-strikers. Although criminal charges were laid against certain individuals, nothing happened to these charges. The non-strikers were completely at the mercy of vigilante elements who did as they pleased and who had no regard for the life and property of defenceless individuals. It must be pointed out that although a certain measure of rowdiness and boisterousness behaviour are expected or typical to most strike actions, the acts that marred this particular strike were particularly violent and senseless and stretched far beyond the kind of conduct that normally occurs during a strike”

16. ADVERSARIAL NEGOTIATION AND STRIKE VIOLENCE
The Judge concluded that:
“Strikes that are marred by this type of violent and unruly conduct are extremely detrimental to the legal foundations upon which labour relations in this country rest. The aim of a strike is to persuade the employer through the peaceful withholding of work to agree to their demands. As already indicated, although a certain degree of disruptiveness is expected, it is certainly not acceptable to force an employer through violent and criminal conduct to accede to their demands. This type of vigilante conduct not only seriously undermines the fundamental values of our Constitution, but only serve to seriously and irreparably undermine future relations between strikers and their employer.”

17. ADVERSARIAL NEGOTIATION AND STRIKE VIOLENCE
What conflict is contemplated
The class war
Conventional constraints:
Good faith
Democracy
Non violence

18. ADVERSARIAL NEGOTIATION AND STRIKE VIOLENCE
LRA constraints:
Offences
Peaceful pickets
Criminal justice system
LRA amendment
Employer counter strategy

19. THE TYPICAL DYSFUNCTIONAL STRIKE
The typical dysfunctional strike in recent times has been characterised by:
Picket line violence
Absence of a ballot
Minority support
Persuasion / Intimidation
Replacement workers from the unemployed
Clashes between strikers and non-strikers
Court interdicts
Employment of private security

20. THE TYPICAL DYSFUNCTIONAL STRIKE
The typical dysfunctional strike in recent times has been characterised by (cont.):
Violence at homes
Lack of overt encouragement of violence by unions
Failure to curtail violence by unions
Shifting blame
Calls to marshal picket lines and help management ineffective
Difficulty to sustain the strike
Escalation of violence
Polls amongst strikers

21. THE TYPICAL DYSFUNCTIONAL STRIKE
The typical dysfunctional strike in recent times has been characterised by (cont.):
A decision to terminate the strike
Role of the media
Loss to workers
Loss to employers

22. THE TYPICAL DYSFUNCTIONAL NEGOTIATION
The negotiations which have preceded these strikes have typically had the following features:
Letter with a list of demands from the union
Rejection and low counter proposals by the employer
Assumption of win, lose or eventual compromise
Lack of counter demands by the employer
Positional preparation
Exaggerated motivation
Demeaning of opponents
Threats to walk out and walk outs

23. THE TYPICAL DYSFUNCTIONAL NEGOTIATION
The negotiations which have preceded these strikes have typically had the following features (cont.):
Early declaration of disputes
Assumption that real negotiation will only take place:
with imminent or actual strike action
at the CCMA
Hope that an employer will take fright and make concessions
Un-reciprocal concessions
Slow moves from concession to concession

24. THE TYPICAL DYSFUNCTIONAL NEGOTIATION
The negotiations which have preceded these strikes have typically had the following features (cont.):
Manipulation of information
Adversarial rhetoric
Incremental removal of non-wage issues
Threats to use power
Benign uses of power
All out strike action

25. WHAT THE NEGOTIATION LOOKS LIKE
Party A
Party B
Position
Position
Position
Position
Position
Position
Position
Position
Compromise
Threat and power zone
Threat and power zone
Zone of potential agreement
“ZOPA”
Haggle zone
Insult Zone
Haggle zone
Insult Zone

26. TYPICAL DYSFUNCTIONAL NEGOTIATION+
CLAIMER
CLAIMER
= MEDIOCRE / MEDIOCRE OUTCOME

27. PREPARATION FOR WAR
People who want peace but who are faced with war need to:
Remember that if you want peace, prepare for war
Develop a comprehensive strategy
Include action plans in the strategy on:
production;
security;
legal;
Internal communication;
external communication;

28. PREPARATION FOR WAR
People who want peace but who are faced with war need to (cont.):
Include action plans in the strategy on (cont.):
financial information;
human resource information;
human resource climate; and
negotiation tactics.

29. PREPARATION FOR WAR
People who want peace but who are faced with war need to (cont.):
Use a tried and tested strategy formulation process with the following stages:
Stage 1 – preparation
Stage 2 – environmental scan
Stage 3 – facilitated workshop
Stage 4 – review and monitoring

30. PREPARATION FOR WAR
People who want peace but who are faced with war need to (cont.):
Stage 1 - Preparation
strategy formulation group;
facilitation;
dates;
venue;
invitation to guest presenters; and
pre-reading.

31. PREPARATION FOR WAR
People who want peace but who are faced with war need to (cont.):
Stage 2 – Environmental scan
conscientising the strategy team about the environment;
exposure to relevant information;
exposure to options;
presentations on
state of the macro economy
the employer’s financial position
the parties strategic plans
current wage settlements
macro HR and political environment; and
micro HR environment

32. PREPARATION FOR WAR
People who want peace but who are faced with war need to (cont.):
Stage 3 – Facilitated workshop
swot analysis;
organisational objectives and challenges;
“putting on the opponents shoes”;
BATNA analysis;
isolating themes;
typical themes:
negotiation tactics;
internal communication;
external communication;

33. PREPARATION FOR WAR
People who want peace but who are faced with war need to (cont.):
Stage 3 – Facilitated workshop (cont.)
typical themes (cont.):
security;
legal;
financial information;
HR information;
HR climate;
continuous production;
development of action plans;
what, who, when and responsibility;

34. PREPARATION FOR WAR
People who want peace but who are faced with war need to (cont.):
Stage 4 – Review and monitoring
overall purpose of the strategy is:
to strengthen one’s hand at the bargaining table and weaken that of the other
to equip the negotiating team with detailed financial and human resource information
to develop security plans to survive a strike if it eventuates
to develop legal plans to ensure compliance with the LRA, the recognition agreement and civil and criminal laws
to foresee scenarios
to plan “changing the game” techniques

35. PREPARATION FOR WAR
People who want peace but who are faced with war need to (cont.):
overall purpose of the plan is (cont)
understanding roles and responsibilities and ground rules
considering motivations and questions
negotiating an effective mandate

36. THE NEGOTIATOR’S DILEMMA
Beware of the negotiator’s dilemma

37. NEGOTIATOR’S DILEMMA +
CLAIMER
CREATOR
= GREAT/TERRIBLE OUTCOME

38. THE BALANCED NEGOTIATOR
NEGOTIATOR’S DILEMMA
THE BALANCED NEGOTIATOR

39. PREPARATION FOR WAR
People who want peace but who are faced with war need to (cont.):
The Negotiation Paradox –employers who take the time and trouble to prepare generally find that preparation for war produces peace and that prevention proves better than cure.

40. CONCLUSION Whether one is faced with:
An incorrigible adversarial opponent or
One which embraces good faith mutual gain negotiation
The key to avoiding strike action is meticulous preparation
for the former that preparation is for war to achieve peace, and
for the latter it is to prepare for peace in order to avoid war