Strikers, all too frequently, fail to comply with picketing rules, and elect, on the contrary, to behave in a violent and unlawful manner, causing mayhem. This was the backdrop to the recent Labour Court case in Dis-Chem Pharmacies Ltd v Solly Malema and the National Union of Public Service & Allied workers Case number J4124/18, with the Court eventually starting to show some steel in dealing with unlawful and violent strike related behaviour.
The facts of the case were quite simple. The union had recruited 11% of the employer’s workforce. Regardless of its slim minority membership, it sought collective bargaining rights to negotiate wages and conditions of service on behalf of its’ members. Unsurprisingly, the employer refused to grant the union the collective bargaining rights it sought. Employers typically refuse to grant minority unions collective bargaining rights, as they run the untenable risk of union proliferation, resulting in multiple collective bargaining arrangements in the same workplace or bargaining unit.
The dispute proceeded to the CCMA, and an advisory arbitration award was issued paving the way for the union to embark upon a protected strike to compel the employer to accede to its collective bargaining demands. Picketing rules were ultimately issued by the CCMA, and made an order of Court, after which the protected strike began.
The Labour Relations Act has a Code of Good Practice relating to picketing which, at paragraph two, states that “Section 17 of the Constitution recognises the right to assemble, to demonstrate, to picket and to present petitions. This constitutional right can only be exercised peacefully and unarmed. Section 69 of the Labour Relations Act, No. 66 of 1995, seeks to give effect to this right in respect of a picket in support of a protected strike or a lock-out.”
Needless to say, the strikers completely disregarded the picketing rules, and their obligation to picket peacefully, and “remained steadfast in their conduct of violence, intimidation and unlawful behaviour” noted the Labour Court judgment, which continued that the union “either had no control over (the strikers), or did not want to control them”.
The range of unlawful conduct on the part of the strikers included the intimidation and serious assault of non-strikers, the damage to the property (homes and vehicles) of non-striking employees, blockades of shopping malls, and the assault of members of the public. In many instances, the SAPS needed to be summonsed to restore order, “bring the striking employees under control, and protect persons and property”.
The Labour Court judgment, in its analysis, noted that “It has become an almost common place occurrence that where there is a protected strike, violence and unlawful behaviour inevitably follows. It is almost as if striking employees believe this is how things should be done. One only has to spend a week in the urgent Court in this Court to appreciate the gravity of the problem. A significant portion of the urgent roll is devoted to interdicting violence and unlawful behaviour during strikes. The situation perpetuates because it seems that there is very little consequence for transgressors, despite picketing rules and interdicts by this Court being issued”.
This steely stance adopted by the Labour Court is refreshing, and this show of back-bone on the part of the Court, whilst overdue, is to be welcomed.
It is arguable that the all too common cycle of unlawful and violent strike conduct, should rob a protected strike from its protected status? Section 69 (1) of the Labour Relations Act is clear, a picket must be “for the purposes of peacefully demonstrating”, and not, as we so often see, carte blanche license to cause public mayhem.
The Labour Court judgment continued that “It follows that it cannot be seen to constitute a violation of a fundamental right where employees are held accountable for failing to exercise their right to picket in a peaceful manner as required by way of a suspension or forfeiture of those rights …. those who commit acts of criminal and other misconduct during the course of strike action in breach of an order of this court must accept in future to be subjected to the severest penalties that this court is entitled to impose. The right to protect, picket and assemble is directly linked to it being exercised peacefully”.
The judgment suspended the picketing rules, and interdicted and restrained the union from continuing to picket, or to gather, protest or assemble at any of the employer’s premises.
The right to strike is recognised in most so-called western democracies, and is considered to be a necessary element of a trade union’s options when a deadlock is reached with an employer on various agenda items such as wage negotiations.
Some commentators would argue that the right to strike is necessary and entirely legitimate, in order to address the in balance of power between employers and employees in collective bargaining, and other dispute areas. This world view justifies this position on grounds that socio-economic forces disadvantage labour, and therefore warrant a right to strike apply pressure on employers to acquiesce in certain labour disputes.
The right to strike in South Africa is enshrined in the Consitution, which states, at section 23(2)(c) that “Every worker has the right to .. strike”. It is however, not an unfettered right, and our law obligates trade unions to comply with a mandatory pre-strike procedure before a strike is ‘protected’.
So, what is a strike? Section 213 of the Labour Relations Act stipulates that a strike “means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it is voluntary or compulsory”.
One frequently still hears erroneous references to ‘legal’ and ‘illegal’ strikes. The notion of ‘legal’ and ‘illegal’ strikes ended approximately twenty-three years ago, with the introduction of the Labour Relations Act, to replace the then ‘old’ Labour Relations Act.
Simply put, strikers will be protected from dismissal if the trade union has complied with two relatively straight forward mandatory pre-strike procedures. Firstly, the trade union must allow for a conciliation process, typically under the auspices of the CCMA or a Bargaining Council, and thereafter, if the conciliation/mediation process fails to resolve the dispute, give the employer forty-eight hours’ written notice of its intention to strike.
If these two mandatory steps are followed, the strike is ‘protected’, and strikers are then protected from being dismissed for participating in the ‘protected’ strike. On the other had, should these two mandatory pre-strike steps not be followed, a subsequent strike would be ’unprotected’, meaning that the strikers are not protected from being dismissed for participation in the ‘unprotected’ strike.
Employers typically, and predictably, treat both protected and unprotected strikes as unpaid; no work no pay.
Section 65 of the Labour Relations Act places certain limitations on the right to strike. For example, striking is prohibited in the event that the issue in dispute can be referred for adjudication by way of arbitration or the Labour Court.
Strikes are also prohibited in so-called essential services. The International Labour Organisation recognises that it is proper to prohibit strikes in essential services, as strikes essential services would harm the population, and be detrimental to life, health and safety. The Essential services Committee, established per the provisions of the Labour Relations Act, have declared various essential services to include air traffic control blood transfusion services and power generations institutions, such as Eskom.
Even though strikers in a protected strike are protected from being dismissed for participating in the protected strike, they are not protected from being dismissed for strike-related misconduct. For example, and striker in a protected strike who assaults a non-striker, will still be liable for dismissal on grounds of misconduct.
Strikers participating in an unprotected strike can be interdicted by the Labour Court. However, the dismissal of unprotected strikers would be unfair if the unprotected strike was in response to some or other unjustified act on the part of the employer.
In the absence of such unjustified employer conduct, unprotected strikers can be disciplined for misconduct, and potentially dismissed if they fail to return to work after receiving reasonable ultimatums from the employer to do so. That said, the mass dismissal of unprotected strikers requires much contemplation given the industrial relations consequences of such a mass dismissal.
What are more commonly referred to as sympathy strikes, are referred to as secondary strikes in the Labour Relations Act. In order for a secondary strike itself to be protected, it must have the capacity to influence the employer in the primary strike, and the seven days’ written notice must be served prior to the commencement of a secondary strike.
Various myths and facts are associated with strike activity, especially given the heightened emotions and tension which accompanies strike action.
To begin with, it is roundly assumed by employers that employees choose strike quite willingly and without consideration of the consequences. Whilst strikers frequently strike with zeal, it must be borne in mind that a decision to strike is not always necessarily an easy one, as the economic consequences of workers striking are significant.
In addition, strike ballots invariably result in certain workers opposing a proposed strike, yet they are outvoted and compelled to participate in the strike.
Voting to strike in a strike ballot is one thing, sustaining the strike is quite another. It is a truism that worker support for strike activity begins to wean from the onset of the strike, and strikers become fragmented in their support from the continuance of the strike activity.
Maintaining support for strike over time becomes increasingly difficult, especially as the economic hardship of prolonged lack of income evolves. There is the added consideration of the the increasing capacity and ability of employers to successfully implement contingency plans in response to strike action.
In the case of unprotected strikes, employers are often of the mistaken belief that participants in unprotected strike action can be quickly dismissed by virtue of the unprotected nature of the strike; nothing could be further from the truth.
Case law abounds with judgments which have declared the dismissal of strikers during unprotected strikes as having been unfair, with the dismissed unprotected strikers being reinstated.
Employees who embark on strike action without completely following the necessary pre-industrial action steps outlined in the Act participate in “unprotected” versus “protected” strike action. Participation in such unprotected strike action amounts to misconduct and “may constitute a fair reason for dismissal” [section 68(5) of the Act].
The remedies available to employers faced with unprotected strike action are:
1. Interdicts or Restraining Order
2. An application to the Labour Court for compensation for any losses attributable to the unprotected strike action
3. Dismissal of strikers for participation in the unprotected strike action, ensuring compliance with the pre-dismissal procedures outlined in Schedule 8 of the Act, the Code of Good Practice: Dismissal.
Primary considerations should be:
1. Was the unprotected strike spawned by unjustified conduct on the part of the employer?
2. The employer must promptly engage the union, outlining its intended course of action.
3. Prior to the dismissal of unprotected strikers, the employer must have issued an ultimatum to the strikers “in clear and unambiguous terms that should state what is required of the employees and what sanction will be imposed if they do not comply with the ultimatum”.
4. “The employees should be allowed sufficient time to reflect on the ultimatum and respond to it, either by complying with it or rejecting it”.
Finally, regarded must be had for recent amendments to the Labour Relations Act which quite significantly change striker picketing rights, especially in the event that the employer is a tenant of a landlord who may disapprove of picketing taking place on their property.
Section 69 of the LRA deals with the rights of strikers, and their supporters, to picket, which is further dealt with in the LRA Code of Good Practice on Picketing.
This right to picket can be traced back to section 17 of the Constitution which provides that everyone (strikers and their supporters) have the right to assemble, demonstrate, picket and present petitions in a peaceful, unarmed manner.
More precisely, the purpose of a picket is to “peacefully encourage non-striking employees and members of the public to oppose a lock-out or to support strikers involved in a protected strike, .. to encourage employees not to work during the strike or lock-out, .. to dissuade replacement labour from working, and to persuade members of the public or other employers and their employees not to do business with the employer”.
The LRA gives effect to this right as a legitimate right associated with strike action.
Importantly, this right to picket is limited to protected industrial action (ie: a protected strike or protected lock-out), and does not apply in cases of, for example, unprotected (so-called ‘wild-cat’) strike action.
Pickets may only be authorised by a registered trade union, and may only be held in a public place “but outside the premises of an employer”, or with the permission of the employer, inside the employer’s premises. Importantly, the employer may not unreasonably withhold permission for a picket on its premises.
Section 69 of the LRA also makes provision for the trade union or employer to approach the CCMA to facilitate picketing rules, and in the absence of agreement on the rules, to “establish picketing rules, and to provide for picketing on the employer’s premises if the Commission is of the view that the employer’s refusal to permit onsite picketing is unreasonable”.
Procedural or recognition agreements frequently include picketing rules for implementation during protected industrial action, as it is invariably difficult to reach agreement on picketing rules during the normally tension-filled pre-industrial action period.
Picketing rules would typically be drafted according to the following structure:
Conduct during a picket can become troublesome. The LRA Code of Good Practice on Picketing states, at section 6, that “picketers must conduct themselves in a peaceful and lawful manner, and must be unarmed”. In addition picketers “may not physically prevent members of the public, including customers, other employees and service providers, from gaining access to or leaving the employer’s premises”. In so far as they do, they would be subject to the employer’s disciplinary procedure and could render themselves liable for dismissal given the gravity of the picketing-related misconduct.
Finally, picketing rules should also include a clear prohibition of violent and threatening conduct.