Insight
Measures to contain
violent strikes
A new code of good practice governing various aspects of strike
action came into effect on 1 January 2019. It is a welcome step
towards eliminating violent and damaging strikes, but its effectiveness
remains to be seen in practice, writes Johan Olivier and Lizle Louw.
I
n the past five years, South Africa’s mining
industry has faced some of the country’s
most prolonged and violent strikes over
wages. For example, in the five-month strike
in the platinum industry in 2014, nine people
were killed. So far, in the strike at the Sibanye-
Stillwater gold mines, which began in late
November, three people have been killed.
Yet, wage increases won after such
confrontations are often followed by job
losses. Between 2007 and 2017, the country’s
mining output fell 8% and mining employment
dropped 6%. In contrast, Australia’s output grew
70% and its mining employment rose 34%.
Chile’s output grew 2% in the same period with
a 42% increase in mining employment.
In an effort to curb the loss of lives, injury,
and damage to property arising from violent
strikes, a declaration was signed by parties to
Nedlac in Ekurhuleni in 2014, which has given
rise to the Code of Good Practice: Collective
Bargaining, Industrial Action and Picketing.
The code was signed by the minister of labour
on 12 December and came into effect on
1 January 2019.
This is a positive sign that South Africa’s
labour law is becoming more balanced, despite
unions’ resistance at Nedlac to any watering
down of their ‘unfettered’ right to strike.
While we welcome the code, it remains to be
seen whether it will have any effect on violent
strikes. It commits all parties to good faith
in collective bargaining, appropriate conduct
during negotiations, timeously submitting
demands, not to engage in any violence
during a strike, and to enter into appropriate
picketing arrangements before embarking on
strike action. Although the code is not law,
the Labour Court hearing an application for a
strike interdict must take it into account.
The code introduces three critical new
elements, relating to balloting, picketing, and
advisory arbitration.
[40] MINING MIRROR APRIL 2019
Balloting
Instead of an absolute requirement that
unions hold a secret ballot before embarking
on a strike, the code offers a watered-down
version. It requires unions to include in their
constitutions a provision for a strike ballot,
but if they do not hold the ballot, it cannot be
used as a reason for an employer to secure an
interdict against the strike. Employers have
no right to monitor the ballot process. This
is problematic. We often hear union leaders
calling for a strike, but it is hard to know if
union members support it because they agree or
because they are intimidated.
Pickets
According to the code, no picketing may occur
without a prior agreement on it. If a picket
is formed, and there are no picketing rules in
place, the employer may apply to the Labour
Court to interdict the strike for this reason.
We believe this is a positive step because the
first few days of strikes are often chaotic and
picketing rules may help to apply restraint.
The code also provides more guidelines for
the South African Police and private security
companies in relation to picketing. It requires
unions to appoint a strike convenor, to set up
their pickets only at designated locations, and
not to interfere with the access of suppliers or
clients, or to engage in intimidation or carry
dangerous weapons. Contravention of any of
these provisions would allow the employer to
apply for an interdict to stop the picket.
Advisory arbitration
The Labour Relations Act now provides
that the director of the CCMA may appoint
an advisory arbitration panel in certain
circumstances. For example, when the strike
has become protracted and violent, the director
can appoint the panel either on his or her own
accord or on application
by one of the parties to the
dispute or, interestingly, on
application by anyone who is
affected by the strike. That could
include communities or members
of the public.
The advisory arbitration award will not be
binding on any party to it unless the party
accepts the award. It seems unlikely that any
party whose interests are not served by the
award would accept it. The award may however
be published, which could reduce public
sympathy, or the support of union members,
for a party who rejects a reasonable award that
could end the strike.
Use of facilitators for wage
negotiations
The code encourages parties to collective
bargaining to make use of facilitators for this
process. This is not a novel concept and many
employers have made use of facilitators agreed
between the collective bargaining parties. It
would, however, be valuable if the CCMA
could establish a panel of specially trained
commissioners who could fulfil this role, much
like those provided by the CCMA to facilitate
large-scale retrenchment consultations.
The code is a welcome development and
a valiant attempt to establish more balanced
strike law. Unfortunately, it is toothless when
it comes to the key issue of interdicting violent
and protracted strikes. It does, however, set
South African strike law on the right path and
provides employers with more legal options to
counter strike action.
Johan Olivier and Lizle Louw are partners at
Webber Wentzel and specialists in employment
law.
www.miningmirror.co.za