You get the feeling that Katishi Masemola, secretary-general of the Food & Allied Workers Union (Fawu), would prefer not to be fighting this battle. But the circumstances around the Anheuser-Busch InBev bid for SABMiller have upped the ante for everyone. And so he has been dragged into territory that is far more

familiar to executives who spend huge amounts of time fighting for the last million or so rand to which they are " entitled" in terms of the contracts they drew up.

A week ago the megamerger looked like a done deal. But even as economic development minister Ebrahim Patel was announcing the details of all he had extracted from the merging parties, including attractive employment-related commitments and a R1bn investment fund, signs were emerging that things were not as tightly sewn up as Patel and the AB InBev team might have thought.

In all its pre-deal preparation AB InBev had evidently not anticipated the employee members (tavern members may come later) of SAB’s Zenzele BEE deal demanding to be treated like management.

This was a reasonable oversight by an outsider. It highlights the paternalistic nature of SAB’s empowerment scheme, particularly as it relates to employees.

In this its thinking is little different from that of other companies; the nature of employee BEE schemes is that they are a "gift" from management and shareholders to workers. The "gift" will be awarded on terms decided by management.

This should not be confused with share schemes awarded to management; as far as management is concerned these shares are not gifts, they are earned.

The dominance of management’s role in the scheme is evident in the profile of trustees. Only two are appointed by the workers; four are management appointees. It is also evident from the difficulties Fawu has had in accessing information about the scheme and its decision-making processes.

Have the trustees given approval for a transaction that will see a fundamental change in the terms of the scheme — will the SAB Zenzele shares be exchanged for AB InBev shares and not SABMiller? Can the trustees make this decision or does it have to be referred to the members?

That so many BEE schemes are paternalistic is testimony to the failure of the corporate sector to devise more constructive ways to involve workers in corporate governance.

In a recent review of the "new" Companies Act, leading lawyer Michael Katz referred to the act representing a major effort to bring SA into the top ranks of countries (most notably Germany) promoting employee participation in governance. "Surprisingly this does not appear to have been reflected in practice yet," wrote Katz.

All of this goes to the essence of Masemola’s current demands: workers must be treated equally. Perhaps AB InBev will be able to bring much-needed fresh thinking to the tired old approach.

The tensions between Fawu and AB InBev will not prevent the deal from being completed: the worst they can do is delay completion. That will suit all SABMiller shareholders (who then stand a chance of picking up SABMiller’s $1.5bn dividend) .

AB InBev has made what would have looked like a generous offer (in most circumstances) to the employee members of SAB’s Zenzele scheme.

The scheme members will benefit with an advance dividend payment and in 2020, when the scheme matures (and SAB shares were due to be exchanged for SABMiller shares, now AB InBev shares), the rate of exchange will be underpinned by the £44 offer for SABMiller and adjusted for inflation.

The only reason this doesn’t look generous is when it is put alongside the accelerated payment of management’s share option schemes. As one political analyst pointed out, it’s easy to see that management drew up both the share option contract and the Zenzele contract.

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