With formal union representation being rejected by many workers, they often find themselves being represented by fellow workers with little formal knowledge of the labour laws and how to handle such situations, with potentially dire consequences. The decision by Harmony Gold to institute a Section 189 procedure at its Kusasalethu mine, while surprising the market, was at one level, completely predictable.

It followed weeks of violence and intimidation but, more importantly, a break down in the relationship between workers, unions and management.

Workers at Harmony Gold Mine returned to work on January 2 2013 to find that operations had been closed down at the Kusasalethu shaft and that access to mine property and hostels had been denied. This lockout follows violence and wildcat strikes at Harmony last year after the violence at Marikana. Harmony management insist that workers were formally advised of this decision on December 21 2012. This is repudiated by a workers’ committee which denies that the workers were informed. At this stage workers are still being paid a basic salary but have nowhere to stay.

Harmony management advised on Monday that, following violence and death threats from workers, there is a high risk that things could go wrong. The Kusasalethu shaft may be closed permanently and put on ‘care and maintenance’ as the risk of opening the shaft could expose the mine to problems.

The strikes and unrest within the mining sector last year have impacted on nearly every facet of the way dispute resolution will have to be handled over the coming months in the workplace.

How it started

When unrest first broke out management saw this as an opportunity to start a massive restructuring of the workforce in the mines.

Marikana was a battle of giants between Lonmin plc and the National Union of Mineworkers (NUM) and the Association of Mineworkers and Construction Union (AMCU). The Marikana strike was initially about wage increases for three thousand rock drillers who were already earning about R10,000 per month. If Lonmin had addressed their demands of a basic salary of R12,500 expeditiously there probably would have been no major problems. This then became a rallying point for all the other mine workers across the sector now demanding the same R12,500 per as month basic salary.

The violence that followed the strikes has negatively affected the ability of the trade unions to negotiate with employers. The NUM’s comfortable and ‘laisez faire’ relationship with the big mine owners has come to haunt some trade unions. It allowed AMCU to dramatically overtake NUM as the majority union at many mines.

The present situation

Formerly the main course of action, the CCMA, has now become an ‘alternative dispute resolution forum’ as many workers are dealing directly with employers, with the potential threat of violence being ever present. Workers now feel that they can achieve better results more expeditiously by threatening employers directly.

The labour legislation, which has all the checks, balances and procedures to properly handle the situation, was effectively thrown out the window in the recent confrontations.

The labour laws allow for the summary dismissal, after a relatively short consultation process, of workers who have embarked on an unprotected wildcat strike. Their dismissals are salutary. It allows for meaningful consultations to take place with dismissed workers, and the unions having a key role to play. This option is no longer the workers’ first choice leaving the employers and unions in uncharted waters.

Small to medium sized businesses, without legal backup, are now beginning to feel the brunt of how workers’ expectations will best be achieved. Commissioners at the CCMA are reflecting on the impact of the precedents set by Lonmin settling their problems under the threat of violence by paying exorbitant increases to claimants. The tried and tested system for dispute resolution presented by the CCMA and Labour Court forums are truly under threat.

The fabric of a carefully crafted labour legislation has been torn to shreds with militancy and confrontation becoming the order of the day. This pattern can be seen in the transport sector and the resulting shortages in fuel and empty supermarket shelves. Police have shown themselves to be powerless in many of the violent labour protests.

The sad outcome is likely to be disinvestment and massive job losses in all sectors.

* Rael Solomon is a business and legal adviser.