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It is widely reported that South Africa is gearing up for major showdowns between workers’ unions and employers in the weeks ahead, as both sides take a hard stance on wage negotiations.  Workers in the mining industry have already embarked on a three-month-long strike but they will soon be joined by the steel industry and public service workers at the South African Revenue Service (SARS).

In a submission to government Cofesa called for the implementation of ‘Pendulum Arbitration’ as an alternative practical way of resolving labour disputes. 

‘We need to ensure that legal strikes are both peaceful and of shorter duration, without causing further damage to the economy. We submit that the introduction of compulsory “Pendulum arbitration’’, an internationally recognized mechanism, would ensure this ideal. This forms part of our proposals for a MODERN INCLUSIVE ECONOMY FOR A NEW GENERATION’ say Dr Lawrence McCrystal, Chairman and Adv Hein van der Walt Director of Cofesa.

‘Pendulum arbitration provides an alternative practical way of resolving disputes and compulsory  ‘pendulum arbitration’ for some industries and SMME’s, even for institutions such as the Post Office, will avoid prolonged strike action’ they say. 

For this an arbitrator is required to make an award in favour of either the employer's final offer or the union's final demand taking into account the interest of both parties. Thus the arbitrator's terms of reference require a straight choice between the parties' final positions and the award then becomes legally enforceable on all parties. Pendulum arbitration is designed to give each party an incentive to make proposals which the arbitrator will regard as fairer and more reasonable than the other side's suggestions. It has proved to be highly successful. Obviously much depends on the credibility and independence of the appointed arbitrator(s).

How it works: 

Step 1:

Firstly, an offer is made to the union(s) by the employer providing an in-depth analysis of their position in terms of profitability, inflation, product research and development, capital expenditure and the general outlook of the company. 

Step 2: 

The Union then has two weeks to accept the offer. If not, it must submit a written, objectively based, motivation of their own claim. 

Step 3: 

The Employer then has two weeks to either accept or reject the union's claim, giving substantive reasons for its position. 

Step 4:

If agreement cannot be reached, then both sides have to sit down with a mediator for a period of two weeks to try and get an agreed settlement.

If a settlement cannot be reached, then the most important point of the Pendulum approach is for an umpire (not an arbitrator) to be appointed. 

His role is not to compromise. His brief is to carefully consider the positions of both sides. He decides on only one of the positions. His decision is final.

Issued by Dr Lawrence McCrystal chairman and Adv Hein van der Walt Director