South Africa’s labour unions, as well as platinum miner Lonmin, learnt several lessons as a result of the events that took place at Marikana last year, Advocate Dali Mpofu stressed at labour law firm Werksmans Attorneys’ labour and employment seminar, held last week.

Mpofu, who is representing mineworkers who were injured and arrested during the Marikana incident at the Farlam Commission of Inquiry, said the National Union of Mineworkers (NUM) had, for example, learnt not to create a social distance between the union and its members.

This social distance could, over time, create problems – it could cause union members to feel that the union is unsupportive of their needs and, to assert those needs, they might have to bypass the union, he warned.

Mpofu stated that the NUM had also learnt that, if it allowed itself to be labelled a “sweetheart union”, it was likely to lose credibility among its members.

He highlighted that the most important lesson learnt by the Association of Mineworkers and Construction Union (AMCU) was that trust is earned over time.

“Although AMCU was able to benefit from disgruntled NUM members, who subsequently joined AMCU, there is still an element of distrust from the members towards the union. The level of required trust needs to be fostered by AMCU,” he said.

In addition, AMCU also realised that it would have to ensure that it had the capacity to deal with increasing membership numbers. “From an employer’s perspective, AMCU will have to ensure that it has a properly represented union that is trustworthy and stable,” noted Mpofu.

Further, he said Lonmin had learnt that the role of the State, for example, the police, needed to be carefully considered. “How one is going to engage the police is something you have to be careful about, as was the case with the Marikana tragedy.”

Mpofu maintained that the mineworkers felt that there was too much of a partnership between the police and Lonmin, resulting in workers considering the scenario as an ‘us against them’ situation, which might have led to their becoming violent.

Lonmin also learnt to consider the bigger picture in future and the snowball effect its actions could create for the rest of the mining industry, such as double-digit wage increases being demanded by mineworkers throughout the country’s mining sector as a result of the demands made by Lonmin workers.

Mpofu maintained that, in light of all the lessons learnt, the positive outcome of the first commemoration of the Marikana tragedy was that it marked a new epoch in the history of the country – one that established a platform for future positive working relations.

He believes that more profound insights will be gained once the Farlam Commission has completed its findings.

Legislative matters, which include expected changes to the Labour Relations Amendment Bill, which was passed by Parliament in August but still needs to be approved by the National Council of Provinces before being signed by the President; the Basic Conditions of Employment Amendment Bill; Section 6 of the Employment Equity Amendment Bill; and the Employment Services Bill, were also discussed at the seminar.

Werksmans Attorney, director and member of the firm’s labour and employment practice Sandile July highlighted at the seminar that the proposed changes to the Labour Relations Act No 66 of 1995 include amending the right to strike provisions, the right to lock out, arbitration awards dealing with organisational rights, the grounds for dismissal of high-income earners and the move to regulate, rather than ban, the practice of labour broking.

Proposed changes to the Basic Conditions of Employment Act No 95 of 1997 aims to assist trade unions, which have historically struggled to secure representivity in certain sectors, in achieving union representivity in industries that are subject to sectoral determinations.

These amendments will enable trade unions to automatically acquire organisational rights in all workplaces covered by sectoral determination on achieving a prescribed threshold of representivity in that sector.

The amendments also aim to establish sectoral determination for any employees not already covered by sectoral determination and to streamline the mechanisms used to enforce compliance with the Basic Conditions of Employment Act.