Strike action – friend or foe
Johanette Rheeder

“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).

The purpose of setting up a trade union or belonging to one is that collective power is a fundamental concept of a trade union. An employee achieves very little when he or she is a “one man show”. A single employee can, for instance, not embark on a protected strike. Employees therefore organize themselves in trade unions in order to maximize their collective power in what we call “power play” against the employer. This ensures greater participation by employees in the regulation of their workplace matters. It is this positive effect of power-play that has been recognized by the legislature and embodied in law. The more powerful the union gets, the more rights it become entitled to and the stronger the bargaining power. This principle is called majoritarianism. Naturally speaking, the more members the union has, the more powerful it is and the more effective it becomes in the power play with the employer or employers in an industry. Naturally therefore, in these processes, the union officials and shop stewards never lose sight of their collective power, therefore its representivity with the employer. If it loses members, it stands to lose its representivity, giving the employer the right to cancel its collective agreement or to even cancel recognition altogether. Minority unions will fight for majority status – more members – which is often coupled with promises which are not easy to fulfil, such as an income of R 12 500.00. Expectations are created with members and the “fight” is layered between the unions amongst themselves for membership and with the employers for better conditions.

The purpose of a trade union is not only to be in an adversarial relationship with the employer. In order to achieve the purpose of the Labour Relations Act, it must also seek labour peace and engage in joint and meaningful consensus seeking processes. Trade unions also play an important role in workplace safety. The right to bargain collectively and to strike are constitutional rights. However, in our law, there is no reciprocal duty to bargain. Employees must enforce this right through collective power.

When negotiating, the objective is to find an expedient, mutually acceptable solution that partially satisfies both parties. Compromising might mean splitting the difference, exchanging concessions, or seeking a quick middle-ground position. Different negotiation tactics will then be applied to achieve settlement as close as possible to that parties’ mandate. If the parties cannot settle, strikes, protest marches, picketing and secondary strikes are used to force the hand of the employers. Various types of destructive collective bargaining behaviour can take place during these processes such as intimidation, violence, assault, damage to property and common misconduct – as has been rife in the last months.

Post 1994, South Africa adopted various new labour legislation, including the Labour Relations Act of 1995. In the previous dispensation, strike action which did not comply with the old 1956 Labour Relations Act, were illegal strikes. This meant that a criminal sanction attached to illegal strikes. Post 1994, the right to strike and to form and belong to a union was included in our Constitution and strike action was decriminalised. Employees and unions need to follow section 64 of the Labour Relations Act to participate in a “protected strike”, failing which the “unprotected strike” can lead to disciplinary hearings and ultimately to dismissal. Employees participating in a protected strike cannot be charged or dismissed for their participation in the protected strike whereas the employee embarking on an unprotected strike may face dismissal, as has been warned by Anglo in recent days.

The question as to how far a Union, its officials, members and representatives can go to protest or protect the interests of its members has also been forced to our attention lately by the Marikana debacle. Once cannot but wonder how much different the outcome of this unprotected strike would have been had it not been for the massacre that took place on that fateful day.

Often these rights as discussed above, as enshrined in the Constitution and the Labour Relations Act, are confused with common acts of misconduct as perceived by union officials, representatives and employees to be their right in the name of collective power as part of the bargaining process. It is not disputed that Unions, officials and shop stewards alike, ought to be protected from certain liabilities in order to enable them to effectively perform the functions assigned to them by the LRA. However, employees committing crimes or misconduct such as we have recently seen in the transport industry, are not protected from civil or criminal action or disciplinary action and even dismissal, emanating from their behaviour during strike action, including a protected strike.

The LRA, section 97(3), indemnifies union representatives (shop stewards) from civil liability for acts conducted in the furtherance of their lawful duties and prohibits victimisation. Such action can constitute automatic unfair conduct on behalf of the employer. However, as employees they are still subject to the usual disciplinary rules of the employer, including the need to subordinate themselves to the authority of the employer and its managers, which is sometimes in conflict with their functions as shop stewards where they are required to assume an ‘equal’ role in the representative and collective bargaining context against the same managers! This poses excellent opportunity for conflict and the fine line between misconduct and fulfilling their mandate is easily crossed. There is no doubt that a shop steward that goes beyond the acceptable bounds of conduct in fulfilling his duties can be disciplined and dismissed for misconduct.

A union cannot escape the conduct of its members, officials and shop stewards and can be held liable for delictual damages due to the fault of the union which caused a loss to the employer. A union can be held liable for the acts of its members, if the employer can prove that there was a wrongful act committed by the its employees, the union members, and that the union was legally liable for its member’s actions (vicarious liability). The wrongful act must constitute an offence and must have caused a loss to the employer. The employer will also have to prove that the union, or its shop stewards, authorized, instigated or ratified the commission of the wrongful act, before the union could be held liable.

An unprotected strike or illegal conduct can be barred by way of an interdict in the labour court and if breached can lead to contempt proceedings in the labour court, which is penal in effect. Claims of damages can also be brought by employers, third parties and the public who fall prey to unprotected strikes or to criminal behaviour of union members whilst on strike. The labour court has exclusive jurisdiction to order just and equitable compensation to employers for any loss attributable to the strike, lock-out or conduct, after having regard to certain factors. The purpose of this is not punitive but to compensate the employer for losses actually suffered. The employer will have to prove the extent of the loss.

In so far as cost orders in the labour court are concerned, various factors are considered such as the conduct of the parties and fact that the parties are soon to be engaged in a reconciliation process and whether it would not be prejudicial to the situation between the parties if a cost order is granted.

Johanette Rheeder
Director: Johanette Rheeder Incorporated