Wildcats, ballots, interdicts and damages

1. Wildcats, ballots, interdicts and damages Strike law under siege

2. Strikes: extent, illegality and violence • Strike rates dropped after 1995 LRA • 4 million work days lost pre 1995 to 650 000 in 1997 • Started rising again from 2002 • 20 million work days (public sector strike) in 2010 • 2 million work days in 2011 • Illegal strikes • Illegal strikes dropped significantly after 1995 • Started rising from 2002 • 45 of 99 strikes in 2012 illegal • Violence • Last 13 years • 181 killed/313 injured/3000 arrested for pubic violence • 2009 to July 2011 • 1377 arrested for public violence/217 charged/9 convicted

3. Outline • International law and the Constitution • LRA’s approach to strikes and pickets • Increase in extent and illegality of strikes and violence • Legislative responses • Judicial responses

4. International law and the Constitution • Constitutional Court in Numsa v Bader Bop • Whether minority union can strike for organisational rights • Section 23 guarantees a worker’s right to join a union a union and the right to strike • Interpreted in the light of ILO Conventions 87 and 98 and the principles developed by the ILO supervisory machinery • Constitution and International law constitutes the framework to evaluate responses to illegal strikes

5. International law framework • SA has ratified Convention 87 on Freedom of Association • That Convention has been interpreted to include the right to strike even thought the right is not specifically mentioned • By the ILO Committee on Freedom of Association, an ILO body established to hear and recommend action in respect of Freedom of Association complaints • By the ILO Committee of Experts on the Application of Conventions and Recommendations • The observations and decisions of these two committees hold- • The right is not absolute • The right may be curtailed in relation to circumstances, participants, object, and procedure • If curtailed, there must be compensatory guarantees

6. LRA’s approach to strikes • LRA drafted in accordance with Convention 87 and section 27 of Interim Constitution (now section 23) • To give effect to the right to strike • To encourage orderly, rational and lawful strikes • To harness it principally to collective bargaining • To limit the economic and social damage

7. LRA’s approach to strikes • Simple strike procedure • To limit interdicts on technicalities • Separate procedures for secondary strikes and protest action • Compulsory conciliation • To facilitate negotiation • Agreed picketing rules • Regulation of replacement labour • Prohibition of strikes in essential services and minimum services

8. Legislative responses • Threatened legislative responses • Declaring education to be an essential service • Making a strike ballot a requirement for a protected strike • LRA amendments • Only members can now picket (removal of supporters) • Court power to suspend strike or picket or suspend use of replacement labour • Restructuring of the essential services committeewith the power to appoint panels • Power of a panel to determine a minimum service in the absence of a collective agreement

9. What is an Essential service? • Committee on Freedom of Association definition • A service the interruption of which would endanger the life, personal safety or health of the whole or part of the population • Examples: air traffic control, telephone services, fire-fighting services, health and ambulance services, the security services, water and electricity services • What is not an essential service • Radio & TV, petrol sector, ports, banks, computer services, postal services, refuse collection….education sector • But the CFA has held that it is permissible to limit the right to strike of school principals or vice-principals

10. What is a minimum service? • The Committee on Freedom of association has recognised that minimum services may be established in essential services and in public services of fundamental importance • Minimum service must be- • Limited exclusively to the operations strictly necessary to meet the basic needs of the of the population or minimum requirements of the service • One that is defined with the participation of the unions involved • Disagreements must not be resolved by the government but by an independent body • CEACR has considered that it is permissible to have a minimum service for public education.

11. LRA and essential and minimum services • Essential services • CFA definition • Police • Parliament • Minimum services • Only within an essential service • By collective agreement ratified by the essential service committee

12. Education • Constitutional right to education – section 29 of the Constitution • Constitutional right to education is concerned with education as a whole • Such as closing schools or failing to establish schools where no schools are available • Beauvallon Secondary School case • Access to schools – refusing to allow learners to enter schools on grounds of language • Mikro case and Ermelo Hoerskool case

13. Education • A strike although it interrupts education does not deny learners their right to education • No different from public holidays, World Cup extension of holidays, sick leave • Not an essential service because the interruption of education does not in the ordinary course endanger the health and safety of the population • However a case may be made out for a minimum service to ensure that learners that come to school are supervised for their protection • That would be permissible under section 72 of the LRA

14. Strike ballot • LRA’s approach to strike ballots • Constitution of every registered trade union must require a ballot of affected members before a strike • No member may be disciplined for failure to participate in a strike if no ballot was held or, if held, a majority of those who voted did not vote in favour • The failure to hold a ballot does not constitute grounds for any litigation affecting the legality or protected status of a strike • LRA amendment to make it a requirement for a protected strike withdrawn

15. Strike ballot • Committee of Freedom of Association • Permissible to require a strike ballot of members • Permissible to set the quorum provided that it does not require an absolute majority of workers affected • Normally set at the majority of those who voted rather than the majority of members affected • In other words the amendment would have been ILO compliant

16. Picketing • LRA’s approach • Registered union can authorise a picket by members and supporter to peacefully demonstrate support for a protected strike • Held in any public place outside employer premises or with the employer’s permission inside the premises • If requested, Commission must facilitate agreed picketing rules failing which must determine the rules • Disputes concerning picketing to be referred to CCMA and if not resolved to the Labour Court

17. Picketing • LRA amendments • Only members can now picket in terms of the LRA • Supporters would not be protected unless they were given permission under the Regulation of Gatherings Act • Court’s power to suspend a strike, picket, lockout or use of replacement labour in picketing disputes • Although picketing disputes are broadly defined, the power to suspend a strike should only be used in cases of violence or intimidation • Suspension of picketing could be justified in cases of violence or intimidation or in the absence of picketing rules • Although suspension of picketing should go together with an order to prohibit the use of replacement labour to ensure that the power dynamic is not affected by the intervention

18. Picketing • Effect of suspension of a strike • Courts are likely to interpret the effect of suspension as a temporary lifting of protection for the duration of the suspension • If not, a failure to return to work would nevertheless be a breach of contract and if deliberate contempt of court • If not, a continuation of the strike by the union would be contempt of court

19. Picketing • Committee on Freedom of Association • Prohibition of picketing only justifiable if strike ceases to be peaceful • Permissible to prohibit pickets from disturbing the public order or threatening non-strikers • ‘The exercise of the right to strike the freedom of non-strikers… as well as the right of management to enter the premises of the enterprise’.

20. Judicial response: interdicts • Interdicts • Although interdicts are an important tool of ensuring the rule of law, their use in industrial relations is often an exercise of power play • Increases the pressure on unions and members to return to work or settle because • Non-compliance constitutes an additional ground for dismissal • Contempt carrying with it the threat of imprisonment or a fine • The indiscriminate use of interdicts threatens the legitimacy of the courts and the law as a whole

21. Judicial response: interdicts • LRA’s approach • Permissible to interdict unprotected strikes • Notice has to be served on the union • As the number of illegal strikes have increased, so has the resort to urgent interdicts • Courts should be aware of the effect of an interdict particularly a temporary interdict on the power dynamics

22. Judicial response: contempt • Ram Transport v SATAWU and others • Commission of criminal acts and other strike related misconduct in breach of an order of court will be subject to the ‘severest penalties’ the court can impose • Security Services Employers Organisation v SATAWU and others • Disobedience of court order inimical to the foundational values of the Constitution

23. Judicial response: compensation • Committee on Freedom of Association • No penalty for a legitimate peaceful strike • Compensation must be proportional • LRA’s approach • Compensation taking into account • Attempts to comply • Whether premeditated • Whether in response to unjustified conduct of the employer • Compliance with interdict • Interests of orderly collective bargaining • Duration of the strike • Financial position of employer, union and employees

24. Judicial response: compensation • Rustenberg Platinum Mines v Mouthpiece Workers Union • 15 million lost profits - R100 000 compensation ordered • Algoa Bus Company v SATAWU • R460 000 loss – R100 000 compensation ordered against employees who participated

25. Judicial response: delictual damages • LRA’s approach • Protected strike and conduct in furtherance of a protected strike is not a delict or breach of contract • Does not apply to conduct which constitutes an offence • Mondi v CEPPWAWU • Confirms that labour court can hear a delictual claim