By: Amandla! correspondent
From: Amandla! Issue No.49/50 DECEMBER 2016
Section 23 of the 1996 Constitution entrenches the right of every worker to strike.
The Labour Relations Act (LRA ) gives content to this right, and takes it further: as long as workers first give the CCMA up to 30 days to try to mediate the issue in dispute, and give 48 hours’ notice of the strike, the strike will be protected. During a protected strike:
• strikers may not be dismissed;
• non-strikers cannot be disciplined for refusing to do the work of strikers; and
• strikers and their unions are not liable to the employer for “damages” (such as lost production, or lost customers).
There is no such thing as an illegal strike; only an unprotected one.
Because the right to strike is entrenched in the Constitution, there is no such thing as an illegal strike. “Wildcat” strikers – those who don’t follow the CCMA procedure – still have the right to strike. Their risk is that they might be dismissed for breaching their employment contracts. Even so, the Labour Court reinstates wildcat strikers if the employers were unfair – for instance, if they provoked the strike, or if they didn’t give the strikers notice that they might be dismissed and sufficient time to take advice and reconsider their options.
So why do we constantly hear about strikes being interdicted by the Labour Courts? Can the Labour Court order strikers back to work? Can they declare a strike to be illegal?
No, clearly not. And this is not always properly understood.
During a protected strike the employers frequently make their opening move in the form of a Labour Court interdict. Because they can’t interdict the strike, they try to interdict unlawful conduct during the strike. Strikers, being citizens of South Africa, must obey the law – they can be prosecuted if they assault, threaten or intimidate scabs, if they destroy property or block public roads, if they march without permission, and so on.
So it has become trendy for the employers to rush to the Labour Court, on day two or three of a protected strike, claiming that strikers are doing such things. The Labour Courts habitually oblige by:
• agreeing that the matter is urgent (so they hear it immediately, ahead of other cases that have been waiting for months to be heard); and
• giving the employers a ‘rule nisi’ (which is an interim Order “restraining” strikers from doing anything unlawful), pending a return date: a date on which the strikers can come to court and tell their side of the story.
This sort of Order is an extraordinary one, because it is issued ex parte – that is, without the Court hearing the strikers’ side of the story. Courts usually grant this sort of unusual Order only when it is essential to “freeze” a situation in an emergency, until everyone has had enough time to prepare their case and come back to court to argue it.
The employers say: “these striking workers are violent and unruly, they are threatening our business, our managers and our scabs!”
The strikers say: “we are not doing anything unlawful! We are allowed to picket, to sing and dance, and to peacefully dissuade scabs and customers.”
The Labour Court says: “if you are behaving lawfully, then you have nothing to fear – so why are you opposing the Order?”
BUT … why must the Labour Court make an order telling strikers not to break the law? The law is already the law. Turn it around: would the Labour Court give protected strikers an order “restraining” the employers from unlawfully dismissing them?
The real purpose of the interdict
Why do the employers choose to spend thousands of rands in legal fees to get a Labour Court Order to confirm what everyone already knows: that nobody is allowed to break the law? It’s puzzling, especially considering that the employers always make sure that the police are in attendance to monitor strikers. Why don’t the employers simply rely on the police to arrest any striker who breaks the law?
The answer is that the interdict technique is a strategy designed to strengthen the employers in the strike:
• by drawing worker leaders into time consuming consultations with lawyers, and court appearances, they take energy and vision away from the site of the strike;
• by making the strike expensive for the union, they hope to split the leadership from the strikers;
• by publicising the interdict in the media and in public they create the impression that they are in the right; and
• by using the Order, they can sometimes get the Labour Court to jail strikers: if the Labour Court is persuaded that strikers have breached its Order, it can jail or fine them for contempt of court.
The Labour Courts have increasingly been cooperating with the employers and giving restraining orders against strikers and unions, although there are other ways to deal with genuinely unlawful conduct (the police can arrest people who break the law, and employers can sue for damages if their property is hurt).
The increasing weight of Labour Court decisions sanctioning strikers and unions entrenches an anti-strike culture. It takes courage and discipline to lead concerted worker action. It should be supported and promoted. Allowing the employers to bully strikers frustrates strikes, making it more likely that strikers will bully one another. The LRA supports self-regulation: workers and employers should engage and negotiate. We have a comprehensive network of institutions to support this: bargaining councils, the CCMA , hundreds of Commissioners trained in conciliation, codes of good practice on picketing.
The LRA approach is:
• Agree picketing rules;
• Form a strike committee with representatives of both sides which can quickly resolve any problems on the ground (which will inevitably occur during a strike);
• Negotiate, and call for CCMA assistance if negotiations break down;
• Reach a collective agreement.
The employers’ approach is
• Interim interdict
• Final interdict
• Contempt of court
• Jail leaders, or cripple the union through a fine
By intervening too easily in strikes, the Labour Court supports the employers’ approach. In doing this, it lays the basis for the next step, which is the introduction of further limitations on the right to strike. Given the struggles of workers in the eighties and nineties that gave birth to the LRA , the Labour Court should be protecting protected strikes, not destabilising them.