Peaceful Striking for Pressure
The right to strike is entrenched in section 17 of the Constitution – and it is provided for in the Labour Relations Act (the LRA).
The purpose of strike action is to exert pressure on an employer to concede to employee demands in the collective bargaining process. The demand must be one of “mutual interest” and the strike must be called by a representative union.
The striking employees will be protected from dismissal if proper procedures were followed before the strike begins. When the strike begins, so, too, does a test of relative economic strength. How much business value and financial losses can the employer endure?
How long can the employees survive without pay? Who will blink first? It is this test of relative economic pressure which lies at the heart of the right to strike. It is a legally legitimate weapon to balance the bargaining power between employers and employees when they negotiate the price of labour.
Peaceful Picketing for Extra Pressure
Labour laws also allow strikers to exert extra pressure on employers by giving them the opportunity to conduct picketing activities connected with their demands. This enables them to articulate their demands not just to the employer, but also to the general public and others associated with the business, such as customers, suppliers, admin staff etc. Scenes of strikers dancing and chanting with placards of written demands and statements are all too familiar.
The LRA recognises the value of picketing as a legitimate activity to supplement the primary strike action of withholding labour, and it enables strikers to ventilate and “publish” their demands to others who may be able to help persuade the employer to make concessions.
Informing the public and getting their moral support can be a powerful strategy to influence the employer’s decisions. It also helps strikers to “let off steam”.
As with strike action, there are well defined legal and practical rules to regulate picketing activities to ensure that they’re conducted peacefully, and that they don’t result in damage to property or interfere with the employer’s right to protect and to continue its business during the strike.
Violence in Strikes
It is obvious that violence associated with strikes breaks all the rules of law and acceptable labour relations practices, and that it’s morally repugnant and severely damaging to our country’s image as a safe and desirable investment destination.
Yet, we’ve seen so many strikes over the years in which violence seems to “go with the territory” in wage negotiations. Destruction of property, burning of cars, assaults, mob violence and even killings are all too familiar images of strike action.
Unions have typically condemned the violence and exempted themselves from any blame. Management provocation, worker anger and frustration – and even “third forces” are commonly blamed or used as justification for violence.
The Labour Relations Act
Chapter IV of the LRA creates the rules which unions, employees and employers must comply with to qualify for protected strike or lock-out action as envisaged by the Constitution.
Section 68 (1) (b) gives the Labour Court the power: “…to order the payment of just compensation and equitable compensation for any loss attributable to the strike or lock-out, or conduct, having regards to -…”. “Conduct” would include violence associated with a strike. For various reasons, employers have either not used the right to claim compensation or they have tried but not succeeded.
This is likely to change since the Labour Court’s latest pronouncement on the issue.
CASE STUDY: In2FOOD (Pty) ltd v FAWU, Madisha, RS and 470 others (LC J350/13), 1 March 2013
Employees embarked on an unprotected strike for two weeks at the company’s premises in February 2013.
On the first day of the strike, the company secured an urgent interdict from the Labour Court against FAWU and certain employees. The Order restrained the union and employees from continuing the unprotected strike, from harassing and intimidating non-striking employees, from carrying weapons and from coming anywhere within 300m of the company’s premises.
The union did not challenge the Order. The unprotected strike continued – and there were numerous acts of violent conduct. Strikers brandished weapons, stoned vehicles and buildings, set fire to a delivery vehicle and blocked vehicles from entering the property. The violence caused damage to the value of R16m for the company.
The company went back to the Labour Court to ask it to hold the union and certain employees guilty of contempt of court for their failure to comply with the original interdict Order.
It included a claim for the court to fine the union R500 000 and to order a prison sentence of 180 days for the named employees. The Court fully agreed with the company. It found that the violent conduct was totally unacceptable and that the union should be held accountable.
It ordered FAWU to pay a fine of R500 000 to the company as compensation, but did not impose a prison sentence on the named employees. The value of the fine was much less than the actual damage suffered – but it sends a clear message. The Court found that the union and its officials failed to take sufficient steps to dissuade and prevent its members from continuing with their violent and unlawful actions.
The union’s organiser merely stated in a communication to the company that the unprotected strike was “…as a result of your refusal to bargain. We will not be held responsible nor our members held liable for such action.” The Court rejected this statement as a defence in the strongest possible terms.
It said the following: “The time has come in our labour relations history that trade unions should be held accountable for the actions of their members. For too long trade unions have glibly washed their hands of the violent actions of their members. This is in a context where the Labour Relations Act of 1995, which has now been in existence for 17 years and of which trade unions, their office bearers and the members are well aware, makes it extremely easy to go on a protected strike, as it should be in a context in which the right to strike is a Constitutionally protected right.”
The Court has made it abundantly clear that it will no longer tolerate violence and lawlessness in the workplace. Unions and employees will in future be held to a much higher standard of accountability when they embark on a strike action. The same will apply to employers who initiate industrial action – or who respond to protected and otherwise peaceful strikes inappropriately.
Hopefully, the effect of the Court’s tougher approach will be to encourage parties to work harder to settle their disputes before resorting to strike actionand, if they can’t and do embark on strike action,to ensure that the action is conducted peacefully. There is every reason to believe that a protected and peaceful strike would be just as effective, if not more so, than a violent strike. There is certainly no need for violence.