collective labour law : strikes and liabilities of trade unions and shop stewards

2. collective labour law : strikes and liabilities of trade unions and shop stewards • irvin lawrence

3. introduction • requirements for a protected strike clearly established in our law • these included:- • the existence of a dispute of mutual interest • between an employer and its employees • a referral of that dispute to conciliation – in bargaining council or ccma • the dispute must be unresolved or a period of 30 days must elapse from date of referral • 48 hours notice of commencement of strike – in writing to be given to the employer • there are some exceptions to this rule for example:- • an agreement requires the issue in dispute to be referred to arbitration

4. what happens if there is an unprotected strike? • generally an employer can obtain an interdict see section 68(1) • employer can also obtain an order for the payment of just and equitable compensation for losses resulting from the strike see section 68(1)(b) • court will order compensation having regard to:- - the attempts by the employees to comply - whether strike premeditated or in response to unjustified conduct

5. employer can also lock-out if strike has not properly been referred to conciliation see section 64 • where there is misconduct the misconduct can be interdicted on less than 48 hours notice even if strike is protected • employer can take disciplinary action subject to complying with schedule 8 item 6 of the code of good practice to the LRA if employees engage in unprotected strike • also the possibility of criminal charges against striking employees who intimidate, threaten, assault of perpetrate criminal activities

6. the right to strike • is guaranteed by the Constitution and the LRA see section 64 of the LRA and section 17 of the Constitution see num v namakwa sands – a division of anglo operations limited • non-striking employees received daily ration packs from kentucky fried chicken (in total cost of about R270 000) • were given the chance to work more overtime than normal • were also given a R300 relocation allowance (cost to the company in excess of R1million) • union argued that non-strikers received the incentives during the strike • argued that striking employees were discriminated against and the discrimination was unfair because incentives were given to non-strikers and were calculated to break the power of strikers

7. the right is subject to certain limitations see the limitation clause – section 36 of the Constitution • the LRA indemnifies protected strikes from civil or delictual claims see section 67(2) “a person does not commit or delict or breach of contract by taking part in a protected strike….. or conduct in furtherance of a protected strike”

8. the LC and LAC consistently have held that protected strike is not a breach of employment contract see Lomati Mill Barberton a division of Sappi Timber v PPWAWU & others • what if striking employees misconduct themselves in a protected strike or during picketing? see Langeveldt v Vryburg Transitional Local Council where the LAC indicated that criminal acts such as intimidation, assault and damage to property may result in claims in delict as they are not in furtherance of a strike or strike action

9. indemnity from civil liability • only applies if strike is protected or conduct is in furtherance of a protected strike • such conduct includes go slow and picketing • important to bear in mind that picketing has its own requirements eg may only be called for by a registered trade union for the purposes of peaceful demonstration • must also be in support of protected strike

10. see Fourways Mall v SA Commercial Catering and Allied Workers Union • involved a protected strike at a shopping mall • the mall owner complained about unlawful acts at entrance to shopping mall and applied for High Court interdict • High Court granted interdict to stop acts that affected other businesses in the mall or members the public having free access into the mall see Picardi Ltd v FGWU & Others where LC stated picketing does not include violent or intimidatory actions

11. lawful picketing limited to:- - standing outside the gates if a public area and if in furtherance of a strike - holding, displaying and waiving placards to public or those having dealings with employer but must not contain any criminal commentary - speaking to those temporary labour or replacement labour to persuade them not to work for employer - communicating with members of public or customers to show support - singing, chanting and dancing to draw public’s attention to strike

12. See Growthpoint Properties v SACCAWU • LC granted an order to Growthpoint Properties interdicting picketing that interfered with its rights and other users of the mall • based this upon the right of Growthpoint Properties’ constitutional rights to property and on the common law of nuisance • LC found the noise made by picketers was persistent, intolerable and unacceptably high see Garvis & Others v SATAWU • protest organised by trade union degenerated into a riot • damages resulted to certain property owners in Cape Town • employees argued that they were entitled to gather and were protected from civil liability by the constitutional right to assembly and to demonstrate in section 17

13. SCA found that where conduct does not fall within the objectives of peaceful demonstration it was entitled to grant damages where these resulted in losses and destruction of property see comment by COSATU President Sibusiso Dlamini – October 12, 2011 Cape Argus “Court rulings turns union into zombies” see representations by South African Local Government Association for amendments to LRA • want s68(1) of the LRA to be amended to give Municipalities the power to sue unions when striking workers loot and damage properties • clearly as a result of massive public sector and Municipal strikes that took place in SA in 2010 and 2011

14. liability of delictual damages • right to strike and picket is limited and must be exercised in accordance with the LRA • can shop stewards and the union be liable for losses that flow from non-compliant conduct? • delictual liability relates to a common law claim by a party suffering loss for payment of those losses by the party causing the injury • s67(2) protects strikers from delictual claims if the strike is protected ie it complies with the procedural requirements of the LRA • if it is unprotected or misconduct results in losses an employer may claim damages for compensation against those responsible for causing the loss or damage

15. that would include the employees individually and shop stewards and even possibly the union • shop stewards are often appointed marshals during strikes and pickets • occupy a leadership role in the strike see Jada & Others v SA Municipal Workers Union • involved the Springs City Council • work stoppage ensued • employees lost wages • as a result of the union inciting them to engage in strike action employees instituted action against the union • court found that union was liable in delict as union organiser instigated the strike

16. important for shop stewards to not incite employees to engage in unprotected strike action or conduct not in furtherance of a strike that results in loss or damage eg wild cat strikes • these can often result in production losses • s68(1) (b) permits employers to seek just and equitable compensation (delictual damages against those causing damages) see Rustenburg Platinum Mines Ltd v Mouthpiece Union • involved unprotected strike resulted in losses to the mine through a wildcat strike called by the union • was clear evidence of the union official exhorting workers to down tools • court granted damages

17. see Mondi Ltd v CEPPWAWU where criminal offence and delicts had taken place and resulted in damage • court in principle found that it had the power to grant damages even though these acts of misconduct had taken place during a protected strike and which would normally have protected strikers from delictual claims (s67(2) of LRA)

18. vicarious liability general principles • applies when it can be shown that conduct of the wrongdoer that has resulted in loss or damage should be attributed to another party • generally applies when persons are acting in the scope of employment or as agents on behalf of that party • it is not necessary for the party to have authorised wrongful act • all that needs to be shown is that the party should be legally liable because of its relationship with the wrongdoer

19. see Mangaung Local Municipality v SAMWU • employer sued for losses as a result of an unprotected strike • loss arose from blockade of workplace • union had not incited the strike • union had not however sent officials to resolve the dispute • left the matter to shop stewards who were active participants in the strike • court found that by failing to send officials and leaving it shop stewards union had breached its duty to ensure compliance by its members with the provisions of the LRA • award damages against union on basis of vicarious liability

20. see Mondi Ltd v CEPPWAWU (supra) • involved a protected strike • criminal conduct took place involving switching off of machinery by members of the union during the strike • losses of R673 855 • company sued union on basis of vicarious liability • court found to prove vicarious liability company had to show a wrongful act by someone other than the union but for which the union was legally liable • had to show that loss was foreseeable • court found that on the evidence it could not be established who the people responsible for shutting the machinery down were

21. court also found that there was no evidence that the shop stewards council which the courts stated where the agents of the union at the mill were involved in the conduct • important to note that s67 protects procedural strikes but does not offer protection for strike that constitutes a criminal offence • in Mondi case (supra) court observed that if it could be established that shop stewards council was involved they would be liable • important to note that vicarious liability means joint and several liability • this means both the union and individuals could be sued for delictual claims • in any event where conduct is of a criminal nature (such as assault or damage to property) vicarious liability would generally not apply • what this means is that if a shop steward incites or personally engages in damage to property – very high likelihood for the shop steward to be personally liable as it may be difficult to show that this was done in the course and scope of the shop steward’s agency mandate

22. some interesting statistics • the trend in unionisation since 1996 to the present is interesting • originally in 1996 union membership was 3 016 933 • increased to over 4 069 000 in 2002 • has continually decreased to 3.2 million progressively since 2002 to 2010 • days lost to strike action have however increased as unionisation has decreased • in 2002 only 616 000 man days were lost through strike action and there were only some 47 strikes • in 2010 this increased to about 20 674 737 lost man hours with there being some 74 strikes • in 2011 strikes statistics are similar

23. strikes / lost working days

24. between 2009 and 2011 the number of working days lost increased by more than ten times the figure in 2009 • in 2009 South Africa in a survey done by the economist had the second highest number of strike days in the world and was second only to Canada who had 2.2 million days lost to strike action • in 2010 SA had the highest number of strikes in the world • public sector strike had more than 1 million participants lasting for 18 days • big strikes in local government, northam platinum strike, transnet and prasa strike, dischem strike