Name of presenter: John Brand

SASLAW SEMINAR 31 JANUARY 2012 Name of presenter: John Brand Title of Presentation: Lessons from the 2011 Strike Season – The Role of Labour Law

Introduction • TOPIC • PURPOSE John Brand : Bowman Gilfillan – 31 January 2012

Content • Bargaining statistics • The problems • What needs to be done • Conclusion John Brand : Bowman Gilfillan – 31 January 2012

Statistics in public sector bargaining John Brand : Bowman Gilfillan – 31 January 2012

Statistics in public sector bargaining (cont.) John Brand : Bowman Gilfillan – 31 January 2012

Statistics in private sector bargaining John Brand : Bowman Gilfillan – 31 January 2012

Statistics in private sector bargaining (cont.) John Brand : Bowman Gilfillan – 31 January 2012

The problems • The frequency and extent of strike action • Lack of industrial democracy • Strike violence • Contempt of Court • The quality of collective bargaining John Brand : Bowman Gilfillan – 31 January 2012

The problems (cont.) • The quality of conciliation • The structure of collective bargaining • Prevalence of conventional unfair labour practices • Strikes in essential services John Brand : Bowman Gilfillan – 31 January 2012

The frequency and extent of strike action Working days lost John Brand : Bowman Gilfillan – 31 January 2012

The frequency and extent of strike action (cont.) Working days lost per 1000 employees John Brand : Bowman Gilfillan – 31 January 2012

The frequency and extent of strike action (cont.) Wages lost John Brand : Bowman Gilfillan – 31 January 2012

The frequency and extent of strike action (cont.) Working days lost through industrial action per 1,000 employees, annual average 2005–2009 Source: EIRO John Brand : Bowman Gilfillan – 31 January 2012

Working days lost comparison • All European countries 2005 – 2009 • Average 30.6 working days lost per 1,000 employees • Maximum 159.4 • Minimum 0.1 • South Africa 2006 – 2010 • Average 567 working days lost per 1,000 employees • Maximum 1593 • Minimum 36 John Brand : Bowman Gilfillan – 31 January 2012

Working days lost comparison (cont.) • 20 674 737 working days lost in 2010 in South Africa • More than 30 000 000 working days estimated to be lost in 2011 in South Africa • Estimated to be the highest in the world • 2012? John Brand : Bowman Gilfillan – 31 January 2012

Working days lost comparison (cont.) • “This is not good for the worlds least employed nation, with exceptions of some war zones. SA is becoming the perfect example used in economic history classes showing that high strike levels and inflexible labour markets cause extremely low employment levels.” – Mike Schüster - Economist John Brand : Bowman Gilfillan – 31 January 2012

Lack of industrial democracy • 2011 Municipal strike example • “At no stage did more than 20 per cent of the workforce heed the strike call” Tokiso Dispute Resolution Digest 2011 • Section 67(7) of the LRA • “The failure by a registered trade union or a registered employers’ organisation to comply with a provision in its constitution requiring it to conduct a ballot of those of its members in respect of whom it intends to call a strike or lock-out may not give rise to, or constitute a ground for, any litigation that will affect the legality of, and the protection conferred by this section on , the strike or lock-out” John Brand : Bowman Gilfillan – 31 January 2012

Strike violence • Judge Basson said in the Labour Court: • “In summary, this strike was marred with the most atrocious acts of violence on non-striking employees. The individuals who perpetrated these acts clearly had no respect for human life, the property of others or the rule of law. What makes matters worse is the fact that it appears from the evidence that the police and the criminal justice system have dismally failed these defenceless non-strikers. Although criminal charges were laid against certain individuals, nothing happened to these charges. The non-strikers were completely at the mercy of vigilante elements who did as they pleased and who had no regard for the life and property of defenceless individuals. It must be pointed out that although a certain measure of rowdiness and boisterousness behaviour are expected or typical to most strike actions, the acts that marred this particular strike were particularly violent and senseless and stretched far beyond the kind of conduct that normally occurs during a strike” – FAWU & Others v Premier Foods Limited t/a Blue Ribbon Salt River 2010 (LC) John Brand : Bowman Gilfillan – 31 January 2012

Strike violence (cont.) • The Judge concluded that: • “Strikes that are marred by this type of violent and unruly conduct are extremely detrimental to the legal foundations upon which labour relations in this country rest. The aim of a strike is to persuade the employer through the peaceful withholding of work to agree to their demands. As already indicated, although a certain degree of disruptiveness is expected, it is certainly not acceptable to force an employer through violent and criminal conduct to accede to their demands. This type of vigilante conduct not only seriously undermines the fundamental values of our Constitution, but only serve to seriously and irreparably undermine future relations between strikers and their employer.” – FAWU & Others v Premier Foods Limited t/a Blue Ribbon Salt River 2010 (LC) John Brand : Bowman Gilfillan – 31 January 2012

Strike violence (cont.) • Inaction/encouragement by union leadership • Failure to marshal • Inaction by SAPS • Failure of the justice system • Contempt of Court John Brand : Bowman Gilfillan – 31 January 2012

Contempt of Court • Recent COSATU statement: • “The Congress of South African Trade Unions in North West province will not be intimidated by the interim order that Sun City and its racist service providers have obtained from the labour court. Indeed this is what we expected. At no point did we expect the labour court to rule in our favour, as the courts in this country are still loyal to the capitalist bosses who exploit workers on a daily basis. And indeed we expected that the employers, as they failed to put their argument through at the table, will run to big brother, which is the labour court.” John Brand : Bowman Gilfillan – 31 January 2012

The quality of collective bargaining • Lack of knowledge and skill • Failure to negotiate in good faith – i.e. • to meet, confer and negotiate with a view to reaching agreement • refusal to meet at reasonable times • insisting on discussing non-bargainable matters • lack of an open mind and desire to reach agreement • lack of a sincere effort to reach common ground John Brand : Bowman Gilfillan – 31 January 2012

The quality of collective bargaining (cont.) • Failure to negotiate in good faith – i.e. (cont.) • “Boulwarism” – formulating a single demand and refusing to deviate or compromise on it • surface bargaining – just going through the motions • failure to provide relevant information • inadequate negotiators – persons who are unqualified or not readily available John Brand : Bowman Gilfillan – 31 January 2012

Quality of conciliation • Lack of sufficient knowledge and skill John Brand : Bowman Gilfillan – 31 January 2012

The structure of collective bargaining • Over-Centralisation • Lack of appropriately designated bargaining units John Brand : Bowman Gilfillan – 31 January 2012

Prevalence of conventional unfair labour practices • Bad faith bargaining • Absence of ballots • Threats and intimidation • Use of violence • Failure to marshal picket lines • Strikes in essential services John Brand : Bowman Gilfillan – 31 January 2012

Strikes in essential services • Essential service alternative to the right to strike is interest arbitration • Arbitrator to determine the dispute as it would have been determined if a strike were permissible • Need for leverage and equilibrium John Brand : Bowman Gilfillan – 31 January 2012

Strikes in essential services (cont.) • LRA and Bargaining Council Constitutions require interest arbitration in essential services • Yet requirement largely ignored John Brand : Bowman Gilfillan – 31 January 2012

Strikes in essential services (cont.) • Research indicates “...rates of dependence on arbitration declined considerably, the effectiveness of mediation prior to and during arbitration remained high, the tri-partite arbitration structure continued to foster discussion of options for resolution among members of the arbitration panels, and wage increases awarded under arbitration matched those negotiated voluntarily by the parties. Econometric estimates of the effects of interest arbitration on wage changes in a national sample suggest wage increases between 1990 and 2000 in States with arbitration did not differ significantly from those in States with non-binding mediation and fact finding or States without a collective bargaining statute.” – The Long-Haul Effect of Interest Arbitration: A case of New York States Taylor Law John Brand : Bowman Gilfillan – 31 January 2012

What needs to be done • Use of delictual or contractual claims • in terms of the LRA • in terms of the Common Law • realise limitations • Use of interdicts • realise limitations • Punishment for contempt of Court • at parties instance • at Court’s instance John Brand : Bowman Gilfillan – 31 January 2012

What needs to be done (cont.) • Suspension of performance • access • deduction of union dues • Duty to bargain in good faith claims • reliance on recognition agreements • use of the mandamus • interdicts against bad faith • Interdicts against progressing a dispute until the duty is exhausted John Brand : Bowman Gilfillan – 31 January 2012

What needs to be done (cont.) • Duty to exhaust procedures • use of the mandamus • interdicts against breach • Criminal prosecution • use of private investigators • private prosecutions John Brand : Bowman Gilfillan – 31 January 2012

What needs to be done (cont.) • Restructure collective bargaining • reform or withdrawal from centralised forums • prioritise enterprise level or two tier bargaining • Embrace modern negotiation theory and practice • joint training • training of conciliators John Brand : Bowman Gilfillan – 31 January 2012

What needs to be done (cont.) • Amendments to the LRA – need for: • Amendments to Section 186 of the LRA – effect to be given to Section 23 of the Bill of Rights by introducing a conventional, balanced and flexible unfair labour practice regime including • a statutory duty to negotiate in appropriate bargaining units • a statutory duty to negotiate in good faith John Brand : Bowman Gilfillan – 31 January 2012

What needs to be done (cont.) • Amendments to LRA – need for (cont.): • a duty to act democratically • need to amend Section 67(7) of the LRA • the Labour Court to be given the power to suspend or terminate a strike in breach of the duty • a duty to strike and picket peacefully • the Labour Court to be given the power to suspend or terminate a strike in breach of the duty • duty to respect essential services • the Labour Court to be given the power to suspend or terminate a strike in breach of the duty John Brand : Bowman Gilfillan – 31 January 2012

What needs to be done (cont.) • Need to improve status and quality of interest arbitration • perhaps house it in the Labour Court John Brand : Bowman Gilfillan – 31 January 2012

Conclusion • There is a crisis • The issues are complex • There is a need for bold change • There is a need for proper analysis and recommendations by experts • The role of politicians, employers and trade unions is important but not determinative • The Government must govern John Brand : Bowman Gilfillan – 31 January 2012

Name of presenter: John Brand