Collective Rights and Collective Bargaining
Strikes | South Africa | Labour Law

Collective rights are typically those rights that employees claim as a collective group and are distinguishable from those rights that are concerned with the individual employee. Individual rights may refer to the right to a fair disciplinary hearing or a fair incapacity process. Employees can form collective groups through unions or workplace forums where these collective rights can be negotiated or bargained on. Typical examples of collective rights are wage or salary increases, changes to leave regulations or benefits or the creation of new benefits such as medical aid, travel allowances or pension fund benefits. The LRA promotes collective bargaining which is the process that is followed to change the claim or demand of the collective group into a right by way of agreement between employees and the employer. Demands must be distinguished from rights. An employee or group of employees have a right to fair labour practices or any right which are embodied in a collective agreement or an employment contract. However, there are certain demands which are not rights yet. a typical example are wage demands. The employees do not have a right to claim a certain percentage of wage increase and will therefore negotiate with the employer on the wage demand. If agreement is reached, it becomes a right. If there is no agreement, the employees will collectively try and force the employer into agreement through collective power (strike), which is called collective bargaining.

Strike, Secondary Strikes | Lock Outs | Constitution

If a demand or claim or dispute declared by the employees (through a union) constitutes an interest dispute (this is a dispute that employees have no legal right to by virtue of a collective agreement, contract or law), then the employees must engage in collective bargaining and if unsuccessful, call out a strike to force the employer to agree to their demand. Employees of a secondary employer can even call out a secondary strike in support of the primary strike. If the claim or dispute is about a right, then the matter must be referred to the CCMA or the Labour Court for adjudication. South Africans have the right to strike, which right is protected by the Constitution. One employee cannot strike as the LRA defines a strike as a right that a collective body of employees has. There is no criminal sanction to unprocedural strike action in South Africa and we do not refer to an illegal strike, but to a procedural or protected strike. A strike is unprotected if it does not comply with section 64 or 65 of the Labour Relations Act. Employees cannot be dismissed for participating in a protected strike, unless they commit some form of misconduct during the strike. They are then dismissed for misconduct, but never for participation in a protected strike, as participation in a protected strike is a Constitutional right. Participation in an unprotected strike may lead to dismissal after the employer has followed a procedurally and substantively fair procedure.

Strike action must comply with the stipulations of section 64 of the Labour Relations Act, to be a protected strike. In terms of section 67(2) and (6), a person does not commit a defect or a breach of contract by taking part in a protected strike, protected lock-out or any conduct (which may not be an offence) in contemplation or in furtherance of a protected strike or lock-out, nor may an employer institute civil proceedings against such an employee. An employee may also not be dismissed for taking part in a protected strike. A dismissal for participation in a protected strike is an automatic unfair dismissal. Therefore, employees participating in a protected strike are immune from civil and delictual liability and their conduct also does not constitute a breach of the employment contract. Similarly, unions are indemnified from civil liability for their conduct in contemplation of or furtherance of a protected strike in order to enable the union to carry out its legitimate functions.

Secondary Strike action must also comply with the stipulations of section 64 of the Labour Relations Act, to be a protected strike. Secondary strikes must be reasonable. This happens when employees of another employer strike in support of the main strike. There must be a link or relationship (nexus) between the primary and secondary strike, therefore the secondary strike must be able to make a difference or have a direct or indirect effect on the primary employer. The pressure put on the secondary employer must therefore also place pressure on the primary employer.

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Extension of Collective Agreements in Term of Section 23(1)(d) of The Labour Relations ACT1 with a Specific Focus on Retrenchments
By Alex Davies

1. INTRODUCTION:

1.1. The principle of application of majoritarianism as endorsed by the Labour Relations Act (“LRA”) is trite. The principle essentially prescribes that the view of the statistically dominant employees within a workplace prevails over the views of the minority.

1.2. This article provides a brief overview of the principles of extensions of collective agreements2 as well as the application thereof to instances relating to retrenchments.

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Protected strikes have since the first dawn of the strike day been plagued by violence, wrongful death, looting, protest marches, damage to property and intimidation. The Marikana inquiry is still not finalised with shocking accounts of murder and violence, stunning many with surprise at the price people are paying for better wages and the seemingly unbridgeable gap between demand and offer, sometimes rendering the intended power play of the Labour Relations Act (LRA) foul of its intention of peacefully balancing rights, for the benefit of employee and employer.

Strike action – friend or foe
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“Post Marikana” is the new buzz word in South African Industrial Relations circles! Demands by unionised and un-unionised employees, strike action and the most recent cases of violence, looting and protest marches have been on the forefront of the news on a daily basis, stunning many with surprise at the high wage demands and the seemingly unbridgeable gap between demand and offer.

The public are ever more perplexed and polarised between the arguments for better living wages, uplifting of the poor and the uneducated in the labour environment and the effect it has on the economy. The climbing wage bill of employers are counter acted by big scale retrenchment and one can honestly ask whether there is a lack of common understanding and failed relationships between employers and employees in South Africa? This relationship is regulated by a process of collective bargaining, which is reliant on power play. To understand the power play and the process of position bargaining, one has to understand the purpose of a trade union. A trade union is in essence an association of employees with its principal purpose to regulate relations between the employer and the employees on matters of mutual interest. This includes collective-bargaining, dispute resolution, the representation of employees in disputes and effectively working together in achieving labour peace in the workplace and increasing employee participation in workplace matters. (As is so eloquently put in the preamble of the Labour Relations Act, 66 of 1995).

Trade Unions - How to deal with power play and position bargaining?
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Demands by unions, strikes and the most recent cases of violence and protest marches have been on the forefront of the news in the last few months, stunning some with surprise at the high wage demands and the seemingly unbridgeable gap between demand and offer.

The test of reasonableness for secondary strikes
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Secondary strikes are used by employees of other employers to put pressure on the primary employer to accept the demand of the employees. However, its effect on the operations of the secondary employer cannot be denied. The question however is to what extend can it influence the primary strike?

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