COLLECTIVE EFFORT AND CULTURE CHANGE CAN CURB VIOLENT STRIKES

While there is little likelihood of violent strikes being declared unprotected in South Africa any time soon, some tentative but encouraging steps are being taken to curb strike-related violence and its devastating effects on the economy. This was the cautiously optimistic tone which employment law experts struck at a seminar in Johannesburg on collective bargaining and strikes.

“There is an acknowledgement that the problem of strike-related violence goes deeper than an interdict... and at the same time that prolonged and violent strike action has the potential to cause serious harm,” said Chris Todd, head of the Employment and Benefits practice at pan-African law firm Bowmans, which hosted the seminar on 13 June. “We are sitting in a society where there is a lot of activity outside the rules, indicating a lack of buy in. At least now we have a substantial portion of the labour market making a public commitment as to how they will conduct themselves.”

He was referring to the new accord and code of good practice that the social partners at the National Economic Development and Labour Council (Nedlac) have signed on collective bargaining and industrial action.

The accord and code are an attempt to bring peace back to collective bargaining in South Africa and ensure that industrial action is free of intimidation and violence, including any violence and intimidation that may be associated with police action.

The signatories include the trade union and employer federations represented at Nedlac, government as an employer, and in time, government agencies such as the CCMA and bargaining councils, and private sector security federations and companies.

Some groupings conspicuous by their absence

Conspicuous by their absence from the accord, however, are some trade unions whose members have been linked to strike-related violence and destruction of property.

“Two key unions whose members have been involved in recent high-profile and violent strikes, AMCU and NUMSA, have not signed the accord. The new labour federation (the South African Federation of Trade Unions) is also not a signatory to the accord or the code,” said John Brand, consultant to Bowmans and Director of Conflict Dynamics.

This was troubling as it raised the very real challenge of how to deal with unions outside of the terms of the new accord, Brand said.

Another weakness of the new agreement was the lack of appropriate sanctions for breaches of the accord such as strike violence and failing to negotiate in good faith.

What was encouraging, on the other hand, was the strong emphasis in the accord on the need for negotiation training and preparation for negotiations, he said. “Research shows that the most successful negotiators spend far, far more time in preparation for negotiations than in the actual negotiations. The most unsuccessful negotiators spend the least amount of time on preparation and the most time in negotiation.”

Graham Damant, partner at Bowmans, agreed that the upskilling of parties to wage negotiations was a crucial theme of the accord on collective bargaining and strikes. “Bargaining councils have to upskill themselves,” he said, adding that bargaining councils were under attack from a variety of fronts. “Many employers feel the bargaining councils don’t cover their sector specifically, such as road freight, which includes everyone from long-distance hauliers to the person delivering pizza on a scooter.”

Small businesses in particular had difficulty with bargaining councils, Damant said. “Small businesses struggle to comply structurally, and also with the wage deals being done, such as inflation plus 3% or 4%. Bargaining councils are dominated by large employers that are heavily unionised. Small businesses are not unionised and those bigger deals are hurting them.”

Other topical issues raised at the seminar were pre-strike proceedings, particularly strike notices, and the intervention of police and private security when strikes turn violent.

Strike notices extended by 48 hours

Ros Davey, partner at Bowmans, drew attention to the new strike notice requirement in the code of practice on industrial action.

“The strike or lockout notice may only be issued a minimum of 48 hours after the issuing of the certificate of non-resolution or expiry of the 30-day period envisaged in the Labour Relations Act.” she said. “This is a departure from the current position which allows for the issuing of a strike notice immediately after the certificate of non-resolution has been issued or the lapse of the 30-day period. The aim is to allow the parties to get their houses in order to minimise damage from strikes and lockouts.”

Equally important, Davey said, is the requirement that the strike or lockout notice must be in writing and set out the actual start date and time of the strike. If the strike does not commence on the date set out in the strike notice, a fresh strike notice will need to be issued. “Also, the strike notice must set out the demands which the other party is required to meet.”

Khomotso Makapane, Bowmans partner, dealt with the new requirements for picketing, and particularly the role of the South African Police Service (SAPS) and private security.

“The police are bound by the code and know they are expected to enforce the law. If a picket line that is supposed to be peaceful turns violent, the police should not wait for a court order to intervene.” Makapane said that after the Marikana shootings, SAPS members had tended to avoid intervening when strike violence erupted, and so the void in public order policing had been filled by private security companies to some extent.

Understanding their roles and duties in preserving the peace is critical both for the police and private security firms, he said. “The accord and code of practice emphasise the importance of training so that we have police who know what to do and not to do at the picket line and adhere to the rules that govern them and their professional undertaking.”