Mass retrenchments planned in parts of the mining industry would test the effectiveness of new requirements in the Labour Relations Act (LRA), labour law experts at Werksmans Attorneys said yesterday.

Sandile July and Bradley Workman-Davies, both directors at the law firm, said that employers and trade unions should also understand how choosing a particular course of action could restrict their choices.

The warning comes as Anglo American Platinum was expected to announce yesterday that it had put on hold for two months the group’s decision to restructure its South African operations, which could cut up to 14 000 jobs at its operations.

The lawyers said they believed that employers were likely to feel the pressure to appoint an independent facilitator to manage large-scale retrenchments as opposed to using a non-facilitated process.

July and Workman-Davies said that by opting for facilitation by the Commission for Conciliation, Mediation and Arbitration, employers and unions could not be accused of bias or selective disclosure in the retrenchment process.

“By taking the non-facilitated option, when the company is in charge of the retrenchment process, questions will undoubtedly be asked about the employer’s motives and objectivity,” they said.

July said the transparency associated with independent facilitation was an advantage that could overshadow its disadvantages for employers – the chief drawback being the length of time linked to a facilitation process. In a facilitated process, the employer was not allowed to give notice of its intention to retrench employees for a period of 60 days, compared with 30 days when there was no facilitator, he said.

Workman-Davies said the longer period for facilitation gave the parties sufficient time to look at all their options and come up with alternatives. By contrast, employers opting for the shorter, non-facilitated process might find their motives being challenged.

He said during the 30-day or 60-day notice, the employees or their unions could not simultaneously give notice of a strike and declare a dispute over the fairness of the retrenchments.

Workman-Davies said: “The two are mutually exclusive. The employees can either embark on a strike or refer a dispute but they cannot do both.” – Wiseman Khuzwayo