PROTEST ACTION AND THE LABOUR RELATIONS ACT
The Labour Relations Act (LRA) permits registered trade unions, such as NUMSA to undertake protected protest action to promote the social and economic interests of workers provided that they observe the procedural requirements contained in Section 77 of the LRA.
The primary respondent in the Section 77 application brought by NUMSA is Government, specifically National Treasury. However, Business has also been cited as a respondent.
NEDLAC received a notice of possible protest action on 8 July 2015 from NUMSA. The notice outlined NUMSA’s demands in respect of the increasing levels of corruption in South Africa, and cited the following respondents:
- Government: The Presidency and National Treasury; and
- Business Unity South Africa
The NEDLAC Section 77 Standing Committee met with NUMSA on 20 July 2015, in order to obtain further details on the notice. A revised notice was submitted by NUMSA on 5 August 2015. The Committee subsequently determined the notice to be compliant with the administrative requirements of the LRA.
The Committee convened a meeting, to consider the notice, jointly with NUMSA on 4 September 2015. At this meeting the Committee concluded that this matter could not be deemed as having been sufficiently considered.
The Standing Committee met again with NUMSA on 25 September 2015. At this meeting the Committee confirmed the notice as having been considered in compliance with Section 77 (1)(c) of the LRA.
The Committee further confirmed that should NUMSA wish to engage in any form of protected protest action, the requisite 14 day notice must take place within 14 days or later from today – 25 September 2015.
It is important to note that protest action in terms of Section 77 of the LRA is only protected if the issue in dispute has been considered by NEDLAC and the union concerned has given 14 days’ notice of its intention to proceed with such protest action on NEDLAC. In the absence of these conditions, any protest action would not be protected.
Consequently employees participating in any form of stay-away or protest activity on 30 September will not be protected by the normal rules regarding protected protest action to promote or defend socio-economic interest of workers, namely: no-work-no-pay and no-disciplinary action.
RECOMMENDED MANAGEMENT ACTION
In the absence of an urgent NUMSA review application to the Labour Court seeking to overturn this position, SEIFSA recommends that management adopt the following course of action in dealing with any stay-away and/or protest activity on 30 September 2015:
Inform all workers that any absences related to the protest action will be treated on the following basis:
- ‘No work, no pay’;
- A shift for leave pay and leave enhancement pay qualification purposes will be lost in respect of the day’s absence;
- Any overtime worked during the course of the week will be paid at ordinary rates to make up for the lost ordinary working hours from Wednesday, 30 September 2015; and
- Management reserve the right to take appropriate disciplinary action against employees who absent themselves from work without the proper permission and/or authorisation
SEIFSA will update this management brief if any further information comes to hand on the status of this matter.
The staff of SEIFSA’s Industrial Relations and Legal Services Division are available to provide further advice or assistance to management in this regard.