The session on 8 May commenced with a joint employer caucus comprising members of the SEIFSA Main Agreement Negotiating Team, as well as representatives from NEASA and the Border Industries Association.

The caucus – chaired by SEIFSA Vice-President Mr Henk Duys, in the absence of SEIFSA President Mr Ufikile Khumalo – was again cordial, conducted professionally and consensus was reached on the overall employer positions, as mandated by the SEIFSA Council meeting of 5 May 2014. These positions focused on two key issues:

 1. Section 37:

Confirmation that Section 37 was of such importance that no agreement could be concluded without Section 37 being satisfactorily addressed in line with of one of the two options outlined in the submission made to the trade unions at the meeting of the Bargaining Council Management Committee on 6 May 2014.

2. Peace Accord:

Confirmation of the mandate of the SEIFSA Council meeting of 5 May that the matter of concluding a Peace Accord remained a pre-condition to negotiations on substantive matters, as set out in the employer letter of demand of 14 March 2014.

In conclusion, the joint employer caucus agreed that the leader of the SEIFSA negotiating team should communicate to the unions that the views expressed above reflected a consolidated view across all the employer bodies.

The Main Agreement negotiating session was opened by the Vice-President of the Bargaining Council, Mr Bheka Khumalo. After welcoming all present, the Facilitator took the parties through the proposed agenda for the day.

The Facilitator indicated that as he had previously undertaken, he had prepared a draft Peace Accord for the parties to consider. He indicated that in considering the draft, the parties should aim to finalise the document in the course of the day. He further indicated that it was his intention to propose joint employer and trade union caucuses, with a view to working towards a consolidation of demands on both sides so that the consolidated document would be the one on the basis of which negotiations would proceed. The Facilitator indicated that it was his intention at the end of the two-day engagement session to ensure that the question of time-lines and further meeting dates was discussed and agreed upon.

In response, SEIFSA Chief Executive Officer Mr Kaizer Nyatsumba made an opening address on behalf of all the employer parties. The address is attached hereto. Upon the conclusion of his address, the employer spokesperson indicated that for the reasons outlined in the address, the employer parties were not yet at the stage where they could commit fully to the process until clarity was sought from the trade unions on the two matters highlighted in the address, namely Section 37 and the Peace Accord.

In response, the NUMSA delegation leader indicated that he was disappointed in the employer position. He reassured the meeting that NUMSA was not preparing for strike action and, therefore, would not commit to an up-front commitment on either Section 37 or the Peace Accord. He accused the employers of employing delaying tactics and negotiating in bad faith, and reminded the employers that Section 37 was a position raised by labour, located in the Main Agreement IPF process with a view to scrapping Section 37 from the Agreement altogether. He further referred to the point that Section 37 was an item for further engagement in the IPF meeting on 14 May 2014.

This position was endorsed by all the remaining trade unions.

In response, the leader of the employer delegation reiterated that employers had served notice that while they remained committed to active participation in the negotiations process, nevertheless they would not sign any resulting agreement unless Section 37 was addressed to the satisfaction of employers, in line with one of the two positions shared with the trade unions. He further stated that on the matter of the Peace Accord, employers could not understand the reluctance on the part of the trade unions to 
commit to a peace accord, which would bind all parties to conducting themselves in a legally responsible manner.

He ended off by indicating that the employers would await the facilitator’s draft Peace Accord, and reiterated the view that employers required an up-front commitment to the concluding of a Peace Accord.

The Facilitator indicated that the employer position was noted. He said that he would table his draft Peace Accord, as requested by the parties at the previous session, and that he would engage the employers, during their caucus, on the process. He asked that the trade union parties should also hold a joint caucus on the document and, after the break, table their respective inputs to the document.

The leader of the NUMSA delegation indicated that NUMSA was opposed to a joint union caucus on the matter. Instead, NUMSA proposed that each union should hold its own caucus on the draft Peace Accord, and this was duly assented to by the other union.

After the adjournment, NUMSA indicated that it had noted the contents of the document and would take the document back to its relevant structures for input and mandating. Solidarity indicated an in-principle support for the document, but nevertheless undertook to make written submissions after consulting with its structures.

On Section 37, Solidarity indicated that it could not agree to the employer position that unless section 37 was addressed employers would not sign any resulting agreement. Solidarity said that it viewed this position as bad-faith bargaining and cautioned that, if employers did not review their position, Solidarity would consider itself to be in deadlock with the employers.

UASA supported the NUMSA and Solidarity position. SAEWA indicated that Section 37 should be addressed at the IPF. CEPPWAWU aligned its position with the one articulated by the previous speakers and supported the further discussion of Section 37 at the IPF. MEWUSA tabled the same view and aligned itself with the NUMSA position.

Through the leader of the delegation, employers indicated their acceptance of the Facilitator’s draft Peace Accord, but added that they would forward their written inputs to the Facilitator. They asked further that a new document containing the inputs made to the Facilitator should be distributed on day two of the negotiations so that the respective parties would then consult with their constituencies on the basis of the consolidated draft Peace Accord, Strike and Picketing Rules.

Having thanked all parties for their feedback, the Facilitator requested all the parties to forward him their inputs so that he would include them in the consolidated document, with a view to tabling a consolidated Peace Accord document for the parties to consider at the next meeting.

NUMSA responded immediately to say that it supported neither the process as outlined by the Facilitator, nor the prioritisation of the Peace Accord above all other demands.

Instead, NUMSA argued that discussions around a proposed Peace Accord should be dealt with simultaneously with all demands on the table. In fact, NUMSA went on to say that it was not prepared to sign a Peace Accord at a time when there was “no war” in the horizon. Instead, it believed that the appropriate moment to discuss a Peace Accord was once the negotiations had deadlocked.

Solidarity said that it viewed the matter of Section 37 as being sub-judice and that if employers persisted in making it a condition to any agreement, then Solidarity would consider itself to be in deadlock with the employers. On the matter of the Peace Accord, Solidarity reiterated its view that it would respond in writing at a later stage.

In addressing the sub-judice point, the leader of the employer delegation indicated that employers were not looking to interfere in the legal process. Instead, what was being proposed was a remedy to a short-coming that had been highlighted in the Van Niekerk Judgment, in order to ensure that employers did not again find themselves in a situation where they were called upon to negotiate at company level on matters that were subjects of negotiations at national level.

NUMSA reiterated its position that it would take the Facilitator’s original document – and not any consolidated document – back to its structures, and that Section 37, which was not originally an employer demand, could be discussed further in the IPF process. It demanded that employers agree that the matter of a Peace Accord be dealt with together with all other demands, failing which the negotiations would be deemed to have collapsed and the parties would be deemed to have reached a deadlock.

MEWUSA and CEPPWAWU aligned themselves with the NUMSA position.

The employers requested a caucus.

After the caucus, the leader of the employer delegation reiterated employers’ full and unwavering commitment to the collective bargaining process, but indicated that in terms of their mandate, the employers had no lee-way to continue negotiations on all other demands unless there was a commitment to concluding a Peace Accord.

In response, NUMSA – which was growing increasingly aggressive in the course of the day – said that if this was the case, then it would seem that the parties had reached a deadlock. The union reiterated that the only document that it was prepared to take back to its constituency is the facilitator’s original draft Peace Accord, not a consolidated one that would contain employers’ inputs. NUMSA again stated that it was not prepared to commit to an upfront undertaking on the Peace Accord.

The Facilitator then tabled a Facilitator’s Proposal, with a view to moving the process forward.


The Facilitator’s Proposal embodied the following elements: 
1. The Facilitator has tabled a proposed Peace Accord; 
2. The employers have undertaken to make amendments to the document and the employer-amended document will be shared with the trade unions; 
3. Theemployer-amendeddocumentwillbetreatedbythetradeunionsastheysee fit; 
4. The matter becomes an issue for continued engagement in the forward process.

NUMSA again stressed that it would take back only the Facilitator’s original document to its structures, with the employer-amended document treated separately.

At that stage employers again requested a joint employer caucus, at which it was agreed that, in light of the mandate given to them, the employers’ negotiating team could not continue to participate in the process and could not make any undertakings. Upon returning from the caucus, the leader of the employer delegation reported back that the negotiating team had no mandate to respond to the Facilitator’s proposal. However, employers would meet the following morning in an employer caucus to consolidate employers’ demands, wherever possible, and the Facilitator’s proposal and the position of the trade unions would be taken back to the respective employer constituencies.