Lonmin wants ballot on union majority

2013-07-07 14:00

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Mining house goes to court with radical proposal to end conflict

Lonmin has approached the courts with a radical and dangerous proposal to end the union rivalry at its operations once and for all.

The company wants to in effect tear up employees’ union membership and hold an “independent and closed ballot?.?.?.?in order to determine to which trade union, if any, the employees are affiliated”.

In the meantime, the company offers to suspend its termination of the National Union of Mineworkers’ (NUM’s) recognition agreement, a move that will further enrage the Association of Mining and Construction Union (Amcu), which is currently considered to represent 70% of Lonmin miners.

Lonmin made the unprecedented proposal in a replying affidavit filed in the Labour Court on Friday morning to head off the hearing of an application by the NUM to interdict its imminent derecognition and loss of its offices at Lonmin on July 16.

In that application, the NUM asked the court to declare all stop orders, whereby workers at Lonmin resigned from the NUM to join Amcu since May 2012, invalid – a move that would also almost certainly cause a new explosion at the platinum mine.

The NUM’s papers go further and ask the court to restore all the NUM’s lost members, about 10?000, to it.

The NUM’s coordinator at Lonmin, Timmy Timbela, filed an affidavit listing numerous instances of intimidation, coercion and murder, which the union argues demonstrate there is no effective freedom of association at Lonmin.

Perhaps more importantly, the NUM has employed a firm of forensic accountants and a handwriting expert to analyse altogether 12?097 stop orders.

According to the NUM, at least half of them are invalid due to various defects.

Lonmin is now pleading with the court to accept its alternative proposal to spare the company the obligation to “deal with the allegations made in Timbela’s founding affidavit, which will only further polarise an already tenuous and fragile labour environment”.

Lonmin is proposing that a company called The Elexions Agency, which originated as an elections manager in South Africa and other African countries, conduct the ballot “within 20 days of the date of the order of court”.

The company goes on to say the police will be notified in order to provide security while The Elexions Agency will complete the count in five days.

The gambit by Lonmin is unprecedented and both the NUM and Amcu have until Wednesday to respond.

“It has never been done before,” the NUM’s lawyer, Shamima Gaibie, told City Press.

The union had not yet given its legal team instructions on how to respond, she said.

Amcu only filed a reply to the NUM’s initial application on Friday – arguing strenuously against the allegations of fraud and intimidation.

In an affidavit, the union’s treasurer, Jimmy Gama, says that “at the outset, I submit that this application is simply a delaying tactic by the NUM and a belated attempt to deprive Amcu, as the majority union at Lonmin, of its right to engage in collective bargaining with Lonmin”.

He calls the NUM allegations “opportunistic, patently false, as well as bald and entirely unsubstantiated”.

“Amcu does not support violence ... But I fear if the relief sought is granted, havoc and confusion will ensue,” Gama adds firmly.

Gama also counters the NUM allegations with his own about armed NUM members intimidating Amcu and a list of incidents where Amcu members were attacked. “The NUM does not approach this court with clean hands,” he says.

The situation at Lonmin was already tense, with the company fighting Amcu’s proposed new recognition agreement.

Mathunjwa on Friday told City Press that Amcu would “definitely call out a strike at Lonmin” if there was no speedy resolution to the dispute.

Amcu had agreed to hold off on its lawful and protected strike around the dispute until Deputy President Kgalema Motlanthe’s new framework agreement was finalised.

That has now happened and it is all systems go for what is the way forward.

Amcu president Joseph Mathunjwa. Picture: Felix Dlangamandla

Forensic accounting firm and handwriting expert steps in

The NUM received all the stop orders processed by Lonmin between May 2012 and May this year on June 3.

It employed a forensic accounting firm, Accountants @ Law, and the handwriting expert, Professor Paul Fatti, to inspect these stop orders for flaws. There were 12?097 stop orders in all.

Among the findings listed in the court papers are:

»?Even accepting all the stop orders at face value, Amcu’s membership, as given by Lonmin, is “overstated by 21%”;

»?At least 90% of the stop orders were not signed by any representative of Lonmin to acknowledge receipt;

»?The remaining 10% were just stamped, not signed;

»?At least 50% of them are otherwise “not valid” due to a variety or problems like mismatched handwriting, missing signatures and nonexistent ID numbers; and

»?At least 1?060 of them had the same ID number on them.

This “litany of irregularities” shows that Lonmin “blindly implemented stop orders in favour of Amcu”, says the NUM.

The fact that no one from Lonmin individually signed every stop order has a “simple explanation”, says Gama in his replying affidavit.

“When Amcu hands in stop orders, it generally does so in bulk. Instead of Lonmin signing each and every notice, Lonmin signs or stamps acknowledgement of receipt on one singular form,” he says.

According to him, Amcu has received hundreds of stop orders back from Lonmin that were rejected for some or other defect. This shows Lonmin does conduct its own internal verification, he argues.

Amcu hasn’t seen all the stop orders the NUM analysed and cannot comment on them, he says.


Rivals and mining executives have constantly complained that Amcu has very few actual union structures after its astonishing growth to claim up to 100?000 new members in less than a year.

It has been described as “five guys and a fax machine”, with little control over its branches in the platinum and gold mines.

“We are doing fine,” says Mathunjwa.

He admits that Amcu lacks branches and full-time shop stewards, but blames that on the mines that refuse to grant it recognition agreements.

“It’s like sabotage,” he says. “You cannot establish branches and have full-time shop stewards without a recognition agreement.”

This means Amcu officials can’t take time off work to attend training or do other union work. “It has to be outside work hours. It’s very challenging,” he says. “They say we have no capacity, but they are the reason we don’t.”


Amcu has rapidly made enemies of the established minority unions in the mining industry, Uasa and Solidarity, by trying to negotiate them out of Lonmin as well.

According to Mathunjwa, Amcu will in principle seek recognition agreements that practically undermine these small, historically white, unions wherever it has the majority.

The agreement Lonmin has been loath to sign would immediately cost these two unions their recognition as it collapses the entire workforce into a single bargaining unit.

That would require the small unions to either raise their membership to 35% of Lonmin’s total workforce, or lose recognition.

“We do not want to kick out any union, but this separation of bargaining units is a long-standing apartheid system. It is divide and rule,” says Mathunjwa.

“What we are demanding is nothing new. If you go to the chamber (Chamber of Mines bargaining forum for gold and coal mines), everyone is sitting

under one roof.

“NUM does it, so why is it now a problem if Amcu does it. With us it is even better. We’re saying the threshold should be 35% for recognition and 45% for bargaining. The NUM made it 50% – winner takes all.

“We cannot keep on building Orania in the mines. If they want recognition, they must go recruit members across the board. They must transform.

“One animal cannot be more equal than the other.”

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