Negotiators and mediators are destined for failure if the new negotiating style, which is gaining ground in the country, is not mastered. This according to Nerine Kahn, former Director of the Commission for Conciliation, Mediation and Arbitration (CCMA) and current CEO of Employment Relations Exchange, who recently dealt with the post-consensus negotiating style in a blog. Kahn described the new approach as a poker-faced, positional bargaining style that gives minimal leeway for consensus, and where a win-lose compromise is the goal.
This gun to the head approach is threatening the CODESA style of give and take negotiations, as well as the traditional positional approach. In the gun-to-the-head style, trade unions kick off negotiations with an unrealistically high demand, and employers respond with an unrealistically low opening offer, reaching a settlement through a “my move, your move” approach.
The Marikana incident and Amcu’s 2014 platinum strike to raise the minimum wage to
R12 500 paved the way for this new style. More examples are the #FeesMustFall debacle that saw students being ruthless in pursuing their demand for paying no class fees; the Chamber of Mines’ unilateral decision taken in 2017 to overturn three decades of central collective bargaining by decentralising coal negotiations to mining house level; and the disruptive style of the DA, EFF and Cope in Parliament in 2017 to pressure Zuma to resign.
The “court of public opinion” plays a major role in the post-consensus style, and the success of the two opposing parties’ public relations and media strategy will determine whether the demanding party’s demand comes across as unrealistic and illogical, and the other party comes across as harsh and unfair. Influencing public opinion is of major importance as it could be a make or break when it comes to the credibility of the leaders who are involved in the negotiations and that of a party’s brand.
The advantage of the new style is that the opposing party knows from the outset what the demanding party wants, but the demanding party’s hard-line stance makes it very challenging for a mediator, and of course for the other party or employer to negotiate an alternative settlement. This situation reminds one of the fable in which the chicken and the pig prepare a ham and egg meal that requires full on sacrifice and commitment from the pig.
The post-consensus style is set to become more prevalent in the labour relations environment as well as in the political arena because entry level workers, who were part of the labour force before 1994, have become extremely frustrated by the fact that after 23 years their living conditions have not improved significantly; in parliament, politicians are setting an example of intolerance and of being inflexible in their demands; violent student and community protest actions are being justified; and importantly, successes are being achieved in this way.
In some circumstances, the post-consensus approach can be countered by using a strong hand, for example by removing the EFF from parliament sessions, by obtaining a court order or by implementing a mass dismissal of workers. However, the secret lies in developing a strategy to deal with it by using a softer approach; otherwise things will become catastrophic.
It is, according to Kahn, important to actively listen to the aggrieved group and to realise that the traditional approach of finding a win-win solution should be thrown out with the bathwater.
She is right – during negotiations, listening is always more important than talking. And so, the aggrieved demanding party should be listened to, lending them a sympathetic ear, but without creating the impression that protesters have an absolute right and that an unrealistic demand could materialise. Apart from reaching a settlement, a platform for social dialogue is indispensable in the process for, as Kahn emphasises, the desperation for change and to be heard cannot be ignored.
Moreover, negotiations that followed in the wake of the Marikana incident taught us that it is a key element of post-consensus negotiations to negotiate only with bona fide representatives of the aggrieved party/workers. Marikana also taught us that all the issues raised by the protesters must be listened to, otherwise those rather trivial issues that have been ignored become burning issues at a later stage.
Reaching a settlement in the new fashion is difficult but when it is achieved, the agreement must be final and binding and should leave no room for new burning issues to lead to another post-consensus phase. Importantly, the agreement must create a platform for ongoing dialogue.
Gideon du Plessis is Solidarity’s General Secretary