Labour & Public Enterprise Conduct During Strikes: SALGA Perspective

1. PRESENTATION TO SELECT COMMITTEE ON LABOUR & PUBLIC ENTERPRISE CONDUCT DURING MUNICIPAL WORKERS’ STRIKES: SOME PERSPECTIVES OF SALGA 26 OCTOBER 2011 Councillor S Mashilo SALGA NEC Member

2. PURPOSE A. The presentation is made for balancing the rights of Unions to strike with the attendant responsibilities and obligations they must have to: • Municipal property, Government and private property • Rights of ordinary people including hawkers, members of public and none striking workers. • Health and environmental issues arising during strike

3. PURPOSE Cont… B. To propose amendment of Sect 68 ((1) (a) (ii) of LRA to provide for compensation for damages during a lawful strike. C. To propose that all refuse be designated , in law, as essential services. D. To propose that Local Government be represented directly at NEDLAC and ILO, by SALGA and revision of commissioner selection process at SALGBC

4. LEGAL EXPOSITION • In the course of strikes and the emptying of rubbish bins and the emptying of contents thereof, is the whole question of the definition of Essential Services whereby in law, refuse removal only becomes an essential service once 14 days of continuous none collection occurs. • During the press conference at the signing of the current local government wage and salary agreement, in July 2009, members of the press asked the question around the acceptability of damage to property and trashing of rubbish bins. A Union leader responded, by asking “is there a law that prohibits it”? This is despite Municipal by - laws prohibiting littering.

5. LEGAL EXPOSITION • The unacceptable levels of crime in the exercise of legitimate democratic and constitutional rights continue to threaten peace and stability and undermine economic growth and tarnish the image of the Republic and local government sphere • Responsibility needs to be assigned by law to act responsibly in the context of a lawful activity – • The two issues of damage to property and refuse strewn in street and lakes are pictorially exemplified below !

7. LEGAL EXPOSITION cont... • The RSA Constitution and LRA guarantees workers the right to strike. • The definition of strike in the LRA is an act of ‘withdrawal, withholding of one’s labour’. However, in some instances, actual acts of striking, as a physical act, have seen people being thrown out of trains, trucks and drivers/occupants burnt, dustbins and dirt emptied in streets, libraries and property damaged, streets barricaded , councillors and members of public and none striking workers killed etc. • There are instances where employees who are, in law, barred from striking, e.g. essential service workers, lead marches and protests – thereby participating in such strikes illegally • This despite the LRA providing that every worker has a right to participate in the LAWFULactivities of its Union and every Union has a right to plan and organize LAWFUL activities. • The LRA, (Sec 68 (1) ((a) (ii)) presently, only makes a Union liable for damage to property, or pay compensation, if the strike was unlawful and unprotected.

8. LEGAL EXPOSITION CONT… • There are instances where, in law who are barred from striking, e.g. essential service workers, in the lead of marches and protests – thereby participating in such strikes illegally • The LRA is clear that every worker has a right to participate in the LAWFULactivities of its Union and every Union has a right to plan and organize LAWFUL activities. • The LRA, ( Sec 68 (1) ((a) (ii)) presently, only makes a Union liable for damage to property, or pay compensation, if the strike was unlawful and unprotected.

9. LEGAL EXPOSITION cont… • The question is what are the consequences of unlawful conduct during a lawful strike? • Does a lawful protected strike protect unlawful conduct during same? • As the LRA stands, the answer can be in the affirmative, that what attracts damages claim etc if unlawfulness of the strike not the unlawfulness of the conduct. • Why should an illegal act ( damage to property) carried out within a context of a legal strike not attract the same punishment?

10. LEGAL EXPOSITION Cont… • The recent SCA decision SATAWU V GARVIS AND OTHERS, delivered on 27 Sep 2011, based on section 11 (2) of the Regulation of Public Gatherings Act 1996 ,says yes to damages claim against damage to property during protest action including a lawful protest action. • Is there possible prevailing of LRA against this section 11 (2) above?

11. LEGAL EXPOSITION- OPINION • SALGA advocates for the amendment of section 68 (1) (b) of the LRA to make provision for compensatory damages even in strikes that comply with the requirements of the Act i.e. even in lawful strike actions. • ILO Conventions and /or exposition on this permit countries to make laws to provide for criminal and civil/damages sanction for abuse of right to strike.

13. LEGAL EXPOSITION – REFUSE MANAGEMENT • In terms of Government Notice No 1216 of 12 September 1997 – the following is, inter alia, provided; • COLLECTION AND DISPOSAL REFUSE OF ORGANIC NATURE • COLLECTION AND DISPOSAL REFUSE AT DISPOSAL SITE AND • COLLECTION OF REFUSE UNCOLLECTED 14 DAYS OR LONGER, INCLUDING DOMESTIC REFUSE ON PUBLIC ROADS AND OPEN SPACES • It will be noticed that there is no license that the first set of refuse may only be collected after some lapse of days while with the later there is a 14 day waiting period. The tendency is to empty rubbish into the streets thereby attracting the 14 day period • This is subverting the law and safety standards - an unlawful act. • It is submitted that the 14 day period, being rendered impractical by such actions, should be done away with and all refuse removal be designated as essential services.

14. LEGAL EXPOSITION – REFUSE MANAGEMENT • It will be noticed that there is no license that the first set of refuse may only be collected after some lapse of days while with the later there is a 14 day waiting period. The tendency is to empty rubbish into the streets thereby attracting the 14 day period • This is subverting the law and safety standards - an unlawful act. • It is submitted that the 14 day period, being rendered impractical by such actions, should be done away with and all refuse removal be designated as essential services.

15. ESSENTIAL SERVICES • Section 74 of LRA requires that disputes involving essential service employees be resolved through arbitration • Essential Services Commission in Government Notice No 1216 of 12 September 1997 designated the following as Essential Services: • MUNICIPAL TRAFFIC • MUNICIPAL HEALTH • MUNICIPAL SECURITY • SUPPLY AND DISTRIBUTION OF ELECTRICITY • GENERATION, TRANSMISSION and DISTRIBUTION OF ELECTRICITY

16. ESSENTIAL SERVICES • FIRE FIGHTING • MAINTENANCE AND OPERATION WATER BORNE SEWERAGE SYSTEM INCLUDING PUMPING STATION • MAINTENANCE OPERATION OF SEWERAGE PURIFICATION WORKS • COLLECTION AND DISPOSAL REFUSE OF ORGANIC NATURE • COLLECTION AND DISPOSAL REFUSE AT DISPOSAL SITE AND • COLLECTION OF REFUSE UNCOLLECTED 14 DAYS OR LONGER, INCLUDING DOMESTIC REFUSE ON PUBLIC ROADS AND OPEN SPACES

17. MINIMUM SERVICES AGREEMENTS • In terms of Sec 72 , LRA, Essential Services Committee may ratify minimum service agreements ( MSA) • Minimum agreement only legal once ratified by Essential Services Committee • Section 74 does not apply where minimum service agreements are in place (no compulsory arbitration) and employees can embark on strike and keep to minimum service agreement. • NUM & another v Eskom Holdings (Pty) Ltd & others the LAC found that the CCMA has the jurisdiction to arbitrate a dispute where parties failed to reach an agreement on a MSA.

18. NEDLAC, ILO AND SALGBC • The implementation of NEDLAC Act resulted in only Provincial and National Government representing Government. All other sectors, Labour and Business are represented. • As government is three spheres in terms of Constitution, none direct representation of Local Government, leaves this sphere’s voice unheard on critical matters.

19. NEDLAC, ILO AND SALGBC • The same is true of ILO, all others except Local Government, are represented. • Commissioners at SALGBC have all this time been appointed by parties (SALGA, SAMWU and IMATU). CCMA, correctly, has questioned the independence and impartiality of Commissioners whose continued employment depends on the same parties they must administer justice to fairly, ‘without fear, favor or prejudice.’

20. PROPOSED SOLUTION WITH REGARDS TO DAMAGE TO PROPERTY ; • SALGA proposes for the amendment of section 68 (1) (b) of the LRA to make provision for compensatory damages even in strikes that comply with the requirements of the Act i.e. even in lawful strike actions. • The terminology of the amendment, based on context, may well simply carry over the tone of section 11 (2) of the Regulation of Public Gatherings Act 1996, to the LRA

21. PROPOSED SOLUTION WITH REGARDS TO REFUSE MANAGEMENT; 2. SALGA proposes that, in law, than in decisions of Essential Services Committee, all refuse be designated as essential services and removable not after 14 days, as some is, per the current provision. WITH REGARDS TO REPRESENTATION TO NEDLAC AND ILO 3. SALGA to have a seat and represent Local Government directly on NEDLAC and RSA delegation to ILO. WITH REGRADS TO SALGBC FUNCTIONS 4.A Change to present Commissioner selection model by SALGBC parties to one where selection is done by independent bodies to the SALGBC parties (JSC Model a possible route or simply use CCMA accredited Commissioners appointed by the CCMA Governing Body).

22. Thank you