A new remedy for violent strikes?

By Neil Coetzer, Senior Associate, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys

labour-guideA glance through the law reports will leave one with the distinct impression that violence has become synonymous with strikes in South Africa.

The Labour Relations Act (“the LRA”) does not specifically address strike related violence and this issue has been a prominent topic of discussion amongst labour lawyers for several years.

In particular, the idea that protected strikes could lose their statutory protection in the event that they descended into violence has been mooted.

In 2012 Professor Alan Rycroft suggested that the Labour Court had indicated in its judgment in Tsogo Sun Casinos t/a Montecasino v Future of SA Workers Union & Others (2012) 33 ILJ 998 (LC) that it could be persuaded that such protection should be forfeited in specific circumstances, namely where the violence engaged in during a strike is of such a nature as to render the strike dysfunctional to collective bargaining.

The idea is, by some accounts, a controversial one due to the constitutional protection of the right to strike and the generally accepted understanding that the right should not be curtailed unnecessarily.

However, in National Union of Food Beverage Wine Spirits & Allied Workers & Others v Universal Product Network (Pty) Ltd (2016) 37 ILJ 476 (LC) the Labour Court was specifically asked to make an Order to the effect that the strike engaged in by the Union was unprotected on the basis that it was no longer functional to collective bargaining as a result of the levels of violence and the political nature of the strike.

In this matter, the Court was faced with a situation where banners had been displayed which criticised the employer’s holding company for doing business with Israel, Palestinian flags were waved and officials and members of the Economic Freedom Fighters (“EFF”) became involved in the strike in various ways.  In addition, the Union’s members engaged in several acts of violence.

The Court lamented the violence which is normally associated with strikes in South Africa in the following terms:-

“[37]     In relation to the acts of violence in respect of which the applicant seeks to have the strike declared unprotected, it is regrettable that acts of wanton and gratuitous violence appear inevitably to accompany strike action, whether protected or unprotected. Strike related misconduct is a scourge and a serious impediment to the peaceful exercise of the right to strike and picket. More than that, it is a denial of the rights of those at whom violence is directed, typically those who elect to continue working and suppliers of those employers who are the target of strike action, and poses serious risks to investment and other drivers of economic growth. A week in the urgent court where employers seek interdicts against strike related misconduct on a daily basis bears testimony to this…”

Of importance, however, was the Court’s finding that it would in appropriate circumstances declare an initially protected strike to be unprotected ‘on account of levels and degrees of violence which seriously undermine the fundamental values of our Constitution’.

The Court was however quick to caution that such a conclusion should not be reached lightly, as such a conclusion infringed on the right to strike and that the Court should not adopt an interpretation of the LRA which unnecessarily limits the right to strike.

Returning to the facts of the matter, the Court found that the nature and degree of the violence was not so severe that it could be said that the strike was no longer functional to collective bargaining. In particular, it found that the Union had made efforts to curb the acts of violence and to disassociate itself from those acts.

It also found that the involvement of the EFF did not disturb the fact that the issues which formed the basis of the strike still concerned matters of mutual interest.

Despite condemning the violence which occurs during strikes, the conclusion reached by the Court on this issue seems to imply that a strike’s protected status is only capable of being impugned if and when the levels of violence pass a certain threshold.

The exact threshold is, however, not clear. It appears from the judgment that the Court will be slow to intervene in circumstances where the strike remains functional to collective bargaining, even in the presence of violence.

It will be interesting to see how this body of jurisprudence develops and, in particular, whether the legislature will respond to these attempts by the judiciary to deal with violence.

For more information please contact Neil Coetzer at ncoetzer@chlegal.co.za or (011)  783 8711 /(011) 048 3000

Article published with the kind courtesy of Cowan-Harper Attorneys www.cowanharper.co.za

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