CCMA not built for strike talks - Kahn

Labour commission head says problems in SA's platinum sector go way beyond a labour dispute.

The Commission for Conciliation, Mediaton and Arbitration (CCMA) was not designed to deal with challenges such as those thrown up by the strike in the platinum mining sector, says its director, Nerine Kahn.

The commission was called in by the government to mediate an end to the conflict between the Association of Mineworkers and Construction Union (Amcu) and the world's three largest platinum mining companies in January.

But after six weeks of strike action, which has closed down almost all platinum mining operations in the country and cost the economy billions, the commission adjourned the process last week - pretty much admitting that its efforts had been ineffective.

The commission tore into the Chamber of Mines after its chief negotiator, Elize Strydom, criticised the standard of mediation in this newspaper last week. The commission accused Strydom of undermining the mediation process, although her remarks were published in Business Times after the commission had decided to suspend the process.

Kahn became director in 2006, and has won great respect for transforming what was, when she arrived, a largely dysfunctional body into a far more professional organisation.

She bristled at any suggestion that her mediators were not up to the job, but admitted that the commission "might have done things differently" in the current platinum dispute.

"It is very difficult to give an answer," she said when asked if the commission had been ready to handle the situation when Labour Minister Mildred Oliphant called it in the day after the strike began.

"Intervening in strikes is a very skilled decision-making process. Hindsight is always 20-20 vision. I would venture to suggest that we might have done it differently."

Critics other than Strydom say that by allowing the mediation to drag on for so long when it was patently obvious that Amcu was not going to budge from its R12500 entry-level wage demand, the commission encouraged unrealistic expectations and prolonged the strike.

Kahn responded: "The challenge is that there are many more broader political and social issues at play. This dispute in my view is significantly about those issues, as opposed to a wage dispute or fight between two unions.

"Was the CCMA set up to deal with these issues? The answer is definitely 'no'. But we are trying to ensure that we empower the organisation to do that. It would be inappropriate for us to just turn away and say we can't deal with those challenges."

Were the commission's facilitators out of their depth?

"That's a very unfair question," she said. "The Marikana situation [which ended in 44 deaths] was worse, and we engaged in it when asked to."

The commissioners involved in trying to resolve the platinum strike had been involved in every single Rustenburg dispute, she said, and their experience could not be doubted.

So why after six weeks were they not able to get anywhere?

"We're in a process and it is confidential and I am not going to respond to that question."

Kahn said she herself did not underestimate the complexities.

Why, then, only four days into the strike, did she announce that she was confident that a mediated solution was in sight?

"I am still confident." The strike at Northam Platinum went on for 11 weeks before it was resolved, she said.

Can the country afford to wait another six weeks for this strike to be resolved?

She said it was unfair to ask this of the commission alone. The parties to the conflict needed to bring solutions to the table.

Would more professional, qualified mediators have produced quicker results?

And who would those more professional and qualified mediators be, she asked in response. "The mediators involved in this dispute are every single day of their lives in cases and mediating. I would venture to suggest that the mediators in the CCMA are professional and are qualified."

The commission, she said, had been held up as an example for the world to follow. "We've been approached by all the European countries who have been forced to set up their own mediation systems."

If the commission is so good why does South Africa still, according to the World Economic Forum, have the worst labour-employer conflict in the world?

"The social environment has changed, and the challenges faced when the CCMA was set up and those facing us now are very, very different."

The quality of the parties involved in disputes was also a challenge for the commission, she said. Employer and employee negotiators were not as skilful as they once were. "The quality of negotiation from both sides needs serious work, and this is one of the challenges our commissioners have."

The people who drafted the Labour Relations Act in 1996 which gave birth to the commission were not in the labour market anymore. They had gone into politics and business, "and not necessarily has that legacy been passed on".

The loss of institutional memory had compounded the commission's challenges, she said, and the demands of transformation had to be met.

"When I took over there was the - I don't want you to quote me on this, but I know you will - old-boys' club of traditional white male commissioners."

In big national mediations the commission had been fielding commissioners who "weren't diverse". The body had been heavily criticised for this, and Kahn had to work hard to "balance" its panels.

It has been suggested that the root of the platinum crisis is the extensive protection afforded trade unions in the Labour Relations Act, and that an extensive web of legislation is trade-union friendly. An example in the current strike is that there is no legal requirement for strike balloting.

Kahn said employers were sometimes too nervous to utilise rights the law gave them because they were afraid of worsening an already bad situation.

"There may be some merit in that. But don't sit and say the law doesn't protect you, when you have got rights in relation to the law. If you don't utilise those rights then obviously things will slide against you."

A recent example of this is Anglo Platinum, one of the parties in the current dispute. When their workers embarked on violent and illegal strike action last year, Amplats not only reinstated them but offered them bonuses to come back to work.

That they are now ruing the day can hardly be blamed on the commission, Kahn suggests.