JOHANNESBURG (miningweekly.com) – As yet another round of platinum strike negotiations reach a deadlock, platinum majors may this week be reviewing legal options to end the unprecedented five-month strike through the implementation of sweeping mass retrenchments that could leave the estimated 70 000-strong striking workforce jobless.

Norton Rose Fulbright employment law senior partner Joe Mothibi has told Mining Weekly Online that, while miners Lonmin, Anglo American Platinum (Amplats) and Impala Platinum (Implats) – which have lost a combined R21.9-billion in revenues since the start of the strike – were unable to retrench workers under the definition of a protected strike, there could “come a point” at which employees could be retrenched not because they were on strike but because of “the economics of the situation”.

EXTERNAL ECONOMICS
He explained that the platinum miners would be able to embark on mass retrenchment exercises during a protected strike if they were able to prove that external economic factors, such as a depressed platinum price and low demand, occurring concurrently with the strike, had threatened the economic viability of the company as a going concern.

“[The company needs to prove to the Labour Court] that it is at the precipice; that it needs to do something drastic or it will fold. While this can’t be because of the strike, it is obviously linked to it in some way, but the law says that structural economic issues have to be the reason for the retrenchment. It's a fine legal point,” he explained.

If able to prove financial failure, the company could then begin consultations with labour in terms of Section 189 of the Labour Relations Act (LRA) over the proposed retrenchments.

However, while the company would be required to make “all attempts” to reach an agreement with the union over the retrenchments, this was not a prerequisite for its execution.

“[The company] doesn't have to reach an agreement [with labour]; it's a joint problem-solving exercise with the aim of coming to an agreement, but if they can’t come to an agreement, the company’s in-principle decision can then become final and is then implemented,” Mothibi said, adding that this would be a “long and drawn out” process that could take upwards of three months.

Moreover, the union could attempt to interdict the retrenchments by arguing that these were not related to the supposed financial unviability of the company, but were the result of the protected strike action.

“However, at a point where the companies are close to liquidation, the chances of the union being granted an interdict against mass retrenchments becomes less and less,” he noted.

This may be the likeliest option for Lonmin, which was struggling to prevent the haemorrhage of funds as 100% of it operations remained offline as a result of the strike.

Mining Weekly Online last month quoted fund adviser Liberum Capital as saying that, of the platinum trio, Lonmin was “hurting the most” and was “continu[ing] to burn” $17.3-million a week in cash.

UNPROTECTED STRIKE?
A second, far “riskier” option available to the mining firms would be to try to have the Association of Mineworkers and Construction Union- (AMCU-) led strike declared unprotected under the LRA.

This would require the platinum miners to prove to the Labour Court that the strike had become dysfunctional and was no longer a means of collective bargaining, which Mothibi said was “arguable”.

If the court granted this application, workers would be legally required to return to work. If they refused, they would be in breach of the conditions of employment under the LRA and could be fired.

“It would be a bold move, but it’s probably arguable to say that the strike is no longer a means of collective bargaining and that, in fact, it has nothing to do with collective bargaining at all. It’s a risky move but it’s there [as an option].

“There is no precedent in this regard for a strike that has gone on this long, which is why it would be novel, but, at the moment, there is some debate among labour lawyers as to whether or not the strike is actually functional,” he asserted, adding that this process could take around four months if the application was not deemed urgent.

Mothibi’s comments came as Business Day Live (BDLive) on Tuesday reported that Lonmin’s tribal landlord at Marikana, in the North West, the Bapo ba Mogale tribe, was “pushing” for the platinum strike in Rustenburg to be declared both "unlawful and unconstitutional".

According to the article, the tribe planned to file papers on Tuesday at the North West High Court.

BDLive quoted tribal adviser Lehlohonolo Nthontho as saying the strike was “no longer about labour issues and has become political".

DIRECT APPROACH
A third option available to the platinum companies would be a continued attempt to approach the striking workers directly through SMSes; a tactic that had angered AMCU and last month prompted the union to bring an urgent Labour Court application seeking to prevent the employers from communicating wage settlement offers directly to AMCU members.

Mining Weekly Online reported last week, however, that the court had dismissed the application, with Labour Court judge Rob le Grange saying the matter “lacked urgency”.

The producers said many of the strikers had indicated a willingness to accept the pay offer through SMS polls after asking for a yes or no reply.

However, the miners said the SMS campaign had created a "security risk" for those receiving them, and had brought the practice to a temporary halt after reports of violence and intimidation against workers who had decided to return to work.

“The difficulty in South Africa is a practical one – it is the issue of violence and intimidation. The companies have all these legal [mechanisms available to them], but sometimes the law becomes a blunt instrument and we are [left] dealing with the issue of security, which only the State can [solve],” said Mothibi.

ROLE OF THE STATE
He further suggested that perhaps this was the role that could now be filled by government following the withdrawal this week of Mineral Resources Minister Advocate Ngoako Ramatlhodi from the wage negotiation process.

“[In my opinion], the State could now [task itself] with investigating security options [to protect those miners] wishing to return to work,” he commented.

After announcing his departure from the government-led mediation process, Ramatlhodi acknowledged that there was a deficiency in South African labour law, saying current legislation lacked a “wage deadlock-breaking mechanism”.

“The law is silent on that, but if we had the tool, we would have used it,” he told a media briefing on Tuesday.

Elaborating on the collapse of the talks, Ramatlhodi noted that, while the wage demand of R12 500 was agreed, the parties could not find common ground on the timeline for reaching this amount.

In addition, AMCU and the platinum producers could not resolve emerging issues of housing allowances and the roll-out of “decent” houses for the miners.

After the Minister’s withdrawal from the process, Lonmin, Amplats and Implats issued a joint statement saying they were to pursue “other options”.

AMCU could not be reached for comment.