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Conferences  |  Policy Documents

COSATU Collective Bargaining, Organizing and Campaigns Conference 2013

Significant Issues for the Trade Union Movement-Input at Collective Bargaining, Organizing and Campaigns Conference

Shamima Gaibie, 13 March 2013

Essential Services

The legislative provisions

  • In South Africa the right to strike is guaranteed by section 23(2)(c) of the Constitution.
  • As with all rights, this right may be limited by national legislation.
  • One limitation on the right to strike is contained in section 65(1)(d)(i) - employees who render “essential services” cannot strike.
  • Such employees must refer all disputes, including “interest” disputes for conciliation, and if necessary, arbitration – section 74(3) and (4).
  • Section 213 defines an essential service as a –
    “service the interruption of which endangers the life, personal safety or health of the whole or any part of the population.”
  • The parliamentary service and the police services are the only services that are deemed to be essential services in terms of section 71(10).
  • For the rest it leaves the task of determining and designating essential services to the Essential Services Committee (“ESC”) – section 71
  • There is one exception to the prohibition on strikes in essential services – where an employer and a recognised trade union conclude a “minimum services agreement” (“MSA”) which is ratified, all employees in that service excluding those who will render the minimum service are entitled to strike.
  • What is the purpose of a MSA?
    • To enable essential services employees to embark on strike action, while their colleagues keep working so that the essential service can continue operating.
  • What if the trade union seeks to negotiate a MSA and the employer refuses to do so? Or what if the parties commence discussions on such an agreement but are unable to reach agreement?
    • Can the trade union refer the dispute to arbitration? Or does the LRA provide a mechanism for the resolving disputes related to minimum services? Not explicitly.
  • How are disputes – in essential services - relating to “rights” and “interests” dealt with in terms of the LRA?
    • The dispute must be referred to compulsory arbitration. The outcome of the arbitration process, in the form of an award, is imposed on the parties by an arbitrator, without either party being able to resort to industrial action.
  • Should this dispute resolution process – applicable to rights and interest disputes - apply to disputes in relation to minimum service agreements?

The Eskom matter

  • This was the question that was before the LC, the LAC and most recently the SCA in Eskom Holdings Ltd v National Union of Mineworkers & Others (2012) 3 BLLR 254 (SCA).
  • In 2007, NUM and NUMSA, after trying in vain for some years to conclude a MSA with Eskom, referred the dispute to the CCMA.
    • o Eskom, as a whole, was declared an essential service by the ESC in 1997.
    • o In discussions about a MSA the parties were far apart in relation to the number of employees that were necessary to maintain a minimum service.
      • § Eskom was of the view that almost its entire workforce was required for that purpose and the unions were of the view that only 10% of the workforce was required.
    • o Eskom argued that the LRA did not provide any mechanism for the resolution of such disputes and that the unions should approach the ESC to narrow the existing designation.
    • o The CCMA disagreed and held that it had jurisdiction to determine the dispute, and to impose a MSA on the parties via an arbitration award.
    • o The SCA agreed with the ESC’s contention that it had the right to determine such disputes in terms of section 73, that section provides that:

    (1) any party to a dispute about either of the following issues may refer the dispute in writing to the essential services committee –

    a. whether or not a service is an essential service; or
    b. whether or not an employee or employer is engaged in a service designated as an essential service.

    • o Having regard to the obligation to interpret statutes in light of: 1) the Bill of Rights; and 2) to read legislation “in ways which give effect to its fundamental values”; and 3) of the injunction to interpret the LRA in such a way that preserves, rather than excludes or limits the right to strike - the SCA held that any disputes relating to a MSA must be referred to the ESC in terms of this section.
  • · Is the SCA correct?
    • o The SCA had to stretch the language of section 73 to give effect to the right to strike.
    • o Section 73 deals with disputes about –
      • § Whether or not a service is an essential service; or
      • § Whether or not an employee or employer is engaged in an essential service.
    • o It does not explicitly include disputes concerning the conclusion of a MSA.
  • · How will the ESC determine what is a minimum service?
    • o None of the courts involved in this matter considered this issue.
    • o However, the SCA suggested, without determining the principle, that Eskom employees such as those working in the company’s gardens might not be rendering an essential service.

The POPCRU matter

  • · This issue received consideration in the Constitutional Court’s judgment in SAPS v POPCRU 2011 (9) BCLR 992 (CC).
  • · About a week after the commencement of the general public service strike in 2007, POPCRU called on its members employed in the SAPS to join the strike. The SAPS launched an urgent application and sought orders declaring that all its employees were engaged in an essential service.
  • · The Labour Court granted the orders in relation to POPCRU members who were employed under the SAPS Act, and not in respect of its members who were employed in terms of the Public Service Act (“PSA”). The Constitutional Court upheld the decision of the Labour Court.

What are the nature of the functions performed by SAPS

  • · The functions of the SAPS are set out in the Constitution in the following terms:

“ ...... to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property and to uphold and enforce the law.” (‘the policing functions’)

Who performs these functions?

  • · The Constitution read with the SAPS Act indicate that it is the ‘members’ who are appointed in terms of the SAPS Act who are authorised to exercise or perform such functions.
  • · Based on the legislative distinction between those who perform the ‘policing functions’ and those who don’t, the Constitutional Court held that it is those members who are appointed in terms of the SAPS Act, rather than those who are appointed in terms of the PSA, that perform the policing function.

What functions are performed by the employees appointed in terms of the PSA?

  • · The Constitutional Court judgment records that they perform general duties such as procurement, secretarial work, general administration and cleaning, operating emergency call centres and crime information systems, capturing data in crime intelligence administration, and other tasks normally associated with policing.
  • · There was however no investigation as to whether these functions are integral to the policing function or whether they are supportive or ancillary thereto.
  • · The Court was however happy to make the assumption that there existed a legislative distinction between the two types of employees and based on that distinction concluded that those appointed in terms of the PSA performed supportive functions.

Other pertinent issues raised by the Eskom and POPCRU judgments

  • · In essential services, it is often the case that some or most of the employees are employed in rendering the essential service, and others are not.
  • · In the statutory dispute resolution scheme, this must mean that essential service employees must resolve their dispute via compulsory arbitration, and non-essential employees may resolve their interest disputes by strike action.
  • · It is possible therefore, in one establishment, for some employees to refer the same interest dispute to arbitration and for others to embark on strike action.
  • · In City of Cape Town v SALGBC and Others [2011] 5 BLLR 504 (LC), the Union called its “non-essential service” members out on strike and simultaneously referred a dispute for arbitration in terms of section 74 of the LRA in respect of its members who were engaged in the essential service.
  • · The arbitrating Commissioner, on the basis of an limine point raised by the City, ruled that the Council had jurisdiction to entertain the claim.
  • · On review the Labour Court:

    o Held that where a dispute has been referred for conciliation under section 64 of the LRA, the Union did not have to refer a separate dispute for conciliation on behalf of essential services employees before referring a dispute on their behalf for arbitration;

    o Accepted that when Union members comprised both essential and non-essential employees, the Union does not have to elect whether to engage in strike action or arbitration;

    o Found that there was nothing in the LRA to suggest that essential service employees lose their right to refer an interest dispute for arbitration simply because their non-essential colleagues embarked on strike action;

    o Also held that non-essential service employees retained their right to strike even though a dispute has been referred for arbitration by the essential service colleagues;

  • · The above issues raised further questions such as:
    • o Does any agreement concluded in relation to essential services apply to non-essential service employees?
    • o Will such an agreement in relation to essential service employees trump an arbitration award achieved by the non-essential employees?
    • o If the arbitration award is issued while the strike is still in progress, would the non-essential employees be entitled to rely on the award to enforce their demands?

The Labour Relations Amendment Bill

  • · The following proposed amendments are aimed at dealing with some of the issues that have arisen in light of the Eskom judgment:
    • o Section 70 will be deleted and will be substituted by a new section 70A-F;
    • o The new sections provide that the ESC will be differently constituted, and may be headed by a senior CCMA Commissioner with designated support staff;
    • o The powers of the ESC are more defined and more extensive;
    • o The ESC may ratify maintenance and minimum services agreements, it may conduct investigations and determine whether the whole or part of the service is essential and “the minimum services required to be maintained in the service that is designated as an essential service”;
    • o Provision is made for a panel which may mediate the parties efforts to establish minimum services, particularly in the public sector, and if that attempt fails, to determine the minimum services required;
    • o The panel may also vary or cancel the designation of the whole or a part of the services in the public sector as essential;
    • o The panel may direct parties to negotiate minimum services agreements within a specified period or, failing that, determine the minimum services required.
  • · The amended section 73 will include two new issues which may be referred to the ESC:
    • o First, whether an essential service employer and a registered union should conclude maintenance or minimum services agreements;
    • o Second, the terms of such agreement.
  • · These amendments at least take care of some of the gaps in the law. It falls short however of dealing with the issues raised in the City of Cape Town matter.

Pickets

  • · There have been relatively few decisions on picketing and there is only one case which was decided in 2006 that raises significant issues for the trade union movement.

Legislative provisions

  • · Pickets that comply with section 69 of the Act have been protected and enjoy the same protections as strikes that conform to the Act.
  • · A picket can occur in any place near the employer’s premises to which the public has access but can only be staged on or within the employer’s premises if the employer agrees to this.
  • · The Act does not regulate in any detail how a picket must be conducted and it is in the main left to the parties to fashion rules to cater for such an eventuality.
  • · Generally speaking such an agreement should set out when the picket will take place, where it will place, how many persons will participate in it and all ancillary matters.

Where to picket

  • · The place of the picket remains a difficult and contentious issues.
  • · For picketers, the main consideration is to make the greatest possible impact in communicating its demands and persuading other employees to join the strike.
  • · For the employer the primary concern is to ensure that the picket is conducted peacefully, that it does not obstruct entrances, or hamper deliveries or turn away customers.
  • · It is in the end about achieving a balance between the two competing interests.
  • · In Shoprite Checkers (Pty) Limited v CCMA and Others (2006) 27 (ILJ) 2781 (LC), the court dealt with the circumstances in which a commissioner may make rules in relation to in-store picketing.
  • · In that case the provisions of section 69 were relevant. This provision provides as follows:

    “(2) Despite any law regulating the right of assembly, a picket authorised in terms of sub-section (1), may be held-

    (a) in any place to which the public has access but outside the premises of an employer; or

    (b) with the permission of the employer, inside the employer’s premises.

    (3) The permission referred to in sub-section 2(b) may not be unreasonably withheld.

    (4) If requested to do so by the registered trade union or the employer, the Commissioner must attempt to secure an agreement between the parties to the dispute on rules that should apply to any picket in relation to that strike or lockout.

    (5) It there is no agreement, the Commission must establish picketing rules, and in doing so must take account of-

    (a) the particular circumstances of the workplace or other premises where it is intended that the right to picket is to be exercised;

    (b) any relevant code of good practice;

    (6) The rules established by the Commission may provide for picketing by employees on the employer’s premises if the Commission is satisfied that the employer’s permission has been unreasonably withheld.”

  • · The issue in this case was the Union’s demand that it be permitted in-store picketing. The Union wanted 20 such pickets. The employer refused to agree to this. This dispute had to be considered by the CCMA in terms of section 69, and the Commissioner decided to permit a maximum of 6 in-store picketers. The employer took this decision on review to the Labour Court.
  • · The Labour Court held that:

    (1) The section 69 procedure commences with a consensus seeking exercise.

    (2) Rules can be made only if this process fails, and any such rules entail a rational decision made by a CCMA Commissioner which must be based on relevant and reliant information placed before the Commissioner.

    (3) The rule making process flows from the consensus seeking process and the deliberations during the first process are not automatically confidential or without prejudice.

    (4) Parties should know that the information disclosed during the first stage of the process may be taken into account to reach a decision in the rule making stage.

    (5) The decision of the CCMA Commissioner cannot be taken from thin air and the submissions of the parties must be weighed and evaluated.

    (6) In respect of where the picket should be held, the Court agreed that the union bore the onus of proving that the employer’s refusal to grant in-store picketing by 20 workers was unreasonable.

    (7) Before a Commissioner makes a decision permitting picketers on the employer’s premises, the Commissioner must undertake an enquiry into the reasonableness (and the finding of unreasonableness) of the employer’s refusal to permit picketing on its premises.

    (8) In this case the Court held that the Commissioner’s failure to determine the reasonableness of the employer’s refusal to permit picketing in-store was held to be fatal to the Commissioner’s decision: In the other words, the Commissioner could only exercise its discretion to allow picketing on Shoprite Checkers premises only if it was found that the employer’s refusal was unreasonable.

Issues raised by this case

  • · The decision is indicative of the fact that trade unions who attempt to obtain picketing rights on the employer’s premises bear an onerous job to demonstrate that the employer’s refusal is unreasonable.
  • · It is important in light of this decision and the proposed amendments to the Labour Relations Act that trade unions attempt to negotiate and conclude agreements on picketing well in advance of any proposed strike.

Proposed amendments to the LRA

Section 69(1)

  • · This provision currently provides that a registered trade union may authorise a picket by its members and supporters for the purposes of peacefully demonstrating in support of a protected strike.
  • · This provision will be amended so that pickets will include members of trade unions only and not supporters.
  • · This proposed amendment is extremely restrictive given that the Constitutional Court decision in the SATAWU and Equity Aviation matter indicated that a strike notice by a trade union covers all members and non-members at a particular workplace. This provision, unlike the effect of the Constitutional Court judgment, restricts picketing to trade union members and does not include any non-members or employees employed by the same employer.

Section 69(2)(b) and section 69(6)

  • · The LRA allows for picketing rules established by the Commission to provide for employees picketing at the premises of an employer who unreasonably withholds permission.
  • · This provision remains unchanged but has been amended to allow for picketing to take place on property controlled by a third party if that party had the opportunity to make representations to the Commission before the rules were made. This amendment therefore allows for picketing to be held on the premises of the employer’s landlord.
  • · It is unclear from this proposed amendment whether any agreement reached in advance between the employer and the trade union for picketing to take place on the landlord’s property is permissible.

Section 69(8)

  • · The LRA currently allows parties to the dispute to refer matters listed in section 69(8) to the Commission. The proposed amendment now extends that right of referral to the third party on whose premises the picket will taking place.

Various forms of interim relief

  • · The proposed amendments allow for access to the Labour Court as well as interim relief for disgruntled parties. The amendment will extend parties’ access to the Labour Court in respect of disputes over compliance with picketing agreement rules. The proposed amendments set out various forms of interim relief including a suspension of the picket or the strike.

Damages Claims

  • · In light of the recent events it is apparent that employers are beginning to think about novel ways of holding Trade Unions liable for losses sustained by them. We look at the basis upon which such claims can be lodged.
  • · Sections 67 and 68 of the LRA envisage that if employees embark on unprotected strike action, they or the Union can be held liable for losses suffered as a result of the strike.
  • · This claim can be lodged in the form of a common law delictual claim for damages or a statutory claim for compensation in terms of section 68 of the LRA.
  • · The losses that are suffered by the employers can arise either from the strike itself, or the acts or omissions of members of the Unions during the course of the strike.
  • · In most cases it would be the employer who would seek to recover the loss suffered.
  • · The question is whether the LRA or any other law envisages the possibility that other parties, besides the employer, could also recover losses suffered by them as a result of such action?
  • · In a straight forward action for damages either based on the common law or on section 67 and 68 of the LRA, the employer or the claimants have the very difficult hurdle of establishing that the Union should be held liable for the acts of its members especially in situations where Union officials did not authorise the strike or the acts that led to such losses.
  • · In light of the recent spate of unprotected strikes in the mining industry Unions must anticipate claims for damages or compensation either in terms of the common law or the LRA.

The Regulation of Gatherings Act

  • · The extent of Union liability in relation to losses suffered as a result of a gathering was recently dealt with by the Constitutional Court in SATAWU and COSATU v Garvas & Others2.
  • · This case dealt with the liability of organisers and convenors of marches and demonstrations for any damage that emanates from such events.
  • · This matter was fought by SATAWU on the basis that section 11(2) provided an illusory and non-existent defence to any claim for damages lodged against the Trade Union.
  • · Section 11(1) provides that:

“If any riot damage occurs as a result of-

(a) a gathering, every organisation on behalf of or under the auspices of which that gathering was held, or, if not so held, the convenor;
(b) a demonstration, every person participated in such demonstration, shall...be jointly and severally liable for riot damage...;

  • · In terms of section 11(1), the liability of the organiser of a march is a strict one which requires a plaintiff simply to prove that “riot damage” emanated from a march.
  • · The organiser can only avoid such liability if it proves one of the defences set out in section 11(2).
  • · Section 11(2) reads as follows:

“It shall be a defence to a claim against a person or organisation contemplated in sub-section 1 if such a person or organisation proves –

(a) that he or it did not permit or connive the act or omission which caused the damage in question;
(b) that the act or omission in question did not fall within the scope of the objectives of the gathering or demonstration in question and was not reasonably foreseeable; and
(c) that he or it took all reasonable steps within his or its power to prevent the act or omission in question...”

  • · COSATU and SATAWU argued that section 11(1) places strict liability on the organisers of a march or demonstration, and that section 11(2) is internally contradictory and irrational.
  • · For instance, if an organiser of a gathering takes reasonable steps to guard against the act or omission occurring he would never be able to prove that these acts were not reasonably foreseeable.
  • · The Court rejected this argument. In short, the Constitutional Court did not see any problem with the way in which this section was drafted. It held that if the steps taken by the organiser are reasonable to prevent what was foreseeable, the taking of those steps would render the act or omission that subsequently caused the riot damage reasonably unforeseeable.
  • · According to the Constitutional Court the legislature had made a policy choice and the Court articulated that policy choice as follows:

“The approach adopted by Parliament appears to be that, except in the limited circumstances defined, organisations must live with the consequences of their actions, with the result that harm triggered by their decision to organise a gathering would be placed at their doorsteps”.

  • · But the problem with the Act is not limited to the provisions of section 11(2).
  • · The Act places liability for any riot damage that arises from the march on the organiser.
  • · Secondly, riot damage is extensively defined in the Act as:

“Any loss suffered as a result of any injury to or the death of any person, or any damage to or destruction of any property, caused directly or indirectly by, and immediately before, during, or after, the holding of a gathering”.

  • · The repetitive use of the word “any”, which ordinarily would include each and every type of loss or damage, is indicative of the breadth of liability that is intended to be imposed on organisers. Such loss may include not only patrimonial loss but also non-patrimonial loss, such as general damages for injury and any consequential damages.
  • · The use of the expression “directly or indirectly”, indicates that the causal chains of cause and effect need not be proved, as long as one can establish that the damage emanated from the march irrespective of how it was caused.
  • · For example, assume that a delivery van delivering fresh food or produce to restaurants is stopped, damaged or burnt. Given that the damage occurred or emanated from the march, one must ask in light of the definition of riot damage indicated above whether, this section permits a claim for the cost of replacing the food and repairing the damage to the delivery van, or does it extend to a loss of profits by the restaurants who were affected by the non-delivery of such products.
  • · Given the manner in which section 11(1) is drafted, it appears that as long as the damage emanated from a march, the organisers will be held liable for such damages.
  • · The definition also indicates that if the damage was caused before, during or after the gathering, the organiser will be held responsible for such damages. So for example, any damage caused while workers are in the process of assembling for the march or indeed during the period when they are dispersing from the march is, in terms of this section, a recoverable loss.
  • · For example, if a single worker on his way to the march assaults a DA supporter on the train, is that damage or injury caused before the march, or an injury that occurred as a result of it?
  • · Would it make a difference if the assault occurred or was perpetrated by a group of workers on their way home from a march?
  • · These examples indicate that the language of this section is intended to capture all of the damages associated with the march whether it occurred before or after the event.
  • · What action or steps must a trade union take in order to alleviate or avoid any foreseeable damage? That question was not answered by the Constitutional Court in definitive terms. However it is necessary to look at the Act and the mechanisms that are put in place in terms of the Act to enable organisations to hold marches.
  • · The Act provides for the right and not the privilege to organise a march.
  • · It provides for “notification” of a march to the relevant municipal authority and does not indicate the need to apply for permission.
  • · Upon receipt of notification, the municipality is required to assess the situation and to call a meeting between itself and the organisers and the South African Police. If necessary it may impose wide ranging conditions and together the parties determine the steps that need to be taken to secure the safety and security of those who will participate.
  • · In that context, the SAPS are given wide ranging powers including the right to stop the march and to take any other action necessary to enable individuals to exercise their right to march.
  • · In reality, it is inconceivable what other additional steps an organiser can take once the parties have agreed on the reasonable measures that must be taken prior to the march.
  • · It is against that background, that most international jurisdictions do not place liability on the doorsteps of the organisers of marches. It is our view that the legislation must be brought in line with international jurisdictions and that the trade union movement should consider the lobbying for an amendment to section 11 and other offensive provisions of the Act.

Strike Violence & Dismissal

  • · Recent strikes have involved excessive acts of violence and intimidation.
  • · Apart from urgent interdictory relief, and a possible claim for damages, the employer is also entitled to take disciplinary action against employees who have committed gross acts of misconduct.
  • · In order to secure a dismissal against such employees, the employer will be required to present credible evidence of the misconduct, the details and identities of the employees who were involved in such conduct supported by evidence given by witnesses and by-standers.
  • · Employers have always found it difficult to find sufficient evidence in such circumstances to sustain a finding of guilt against such employees let alone establish the basis for the dismissal.
  • · Can an employer in the circumstances dismiss employees not on the basis of misconduct, but on the ground of operational requirements?
  • · In FAWU obo Kapisi & Others v Premier Foods Limited t/a Nlue Ribbon Salt River (CA7/2010, 16 March 2012), the Labour Appeal Court, found the dismissal of 31 employees substantively and procedurally unfair and ordered the employer to pay them compensation. The Labour Court however indicated that an employer may in certain circumstances dismiss employees on the basis of operational requirements if disciplinary charges cannot be proven. The list of violent incidents in this matter was extensive and included the following:
    • o a neighbour of one of the victims who was in a position to identify those responsible for violence, was shot and killed near his home;
    • o homes were destroyed and other houses were petrol bombed;
    • o senior managers received death threats;
    • o some employees and senior management were provided with security guards;
    • o entrances and exits to the company’s premises were blocked and some employees were robbed of their personal possession;
    • o the employer’s key witness, disappeared five years later and on the date of the Labour Appeal Court hearing he had still not reappeared;
    • o there was a general unwillingness of the witnesses to speak out against those responsible for the violence.
  • · The planned disciplinary proceedings could not be pursued and was abandoned. Thereafter, the employer dismissed the employees not on the basis of misconduct, but on the ground of operational requirements (that the employees were linked to the violence and intimidation during the course of the strike).

The LAC’s findings

  • · The Labour Appeal Court assumed that the employer in this case was unable to hold the disciplinary enquiries; that the dismissals were based on the employer’s operational requirements and that operational requirements dismissals do not require the employer to prove that the dominant purpose of the retrenchment was to secure the economic viability of the business.
  • · The entire decision of the Labour Appeal Court turned on whether the employer had applied the selection criteria fairly: That the employees who were identified for retrenchment were linked to the violence and intimidation during the course of the strike.
  • · The LAC had to determine whether the employer had acted fairly in selecting employees for retrenchment on the basis of untested allegations of misconduct. For that the employer had relied on affidavits and the fact that the employees had refused to undergo polygraph tests.
  • · The LAC found that the employer had not acted fairly in selecting the employees for retrenchment as there had not been sufficient proof of their involvement in specific acts of misconduct.
  • · It is apparent from this judgment that there is some scope for an employer to dismiss employees on the basis of operational requirements instead of dismissing them for misconduct.

REPLACEMENT LABOUR DURING STRIKE ACTION

  • · This issue is governed by section 76 of the LRA. In terms of this provision an employer may hire replacement labour during strike action. There are only two limitations on this right. The employer may not do so-

    (a) ...........during a protected strike if ..... the employer’s service has been designated a maintenance service;
    (b) for the purposes of performing the work of an employee who is locked out, unless the lockout is in response to a strike.

  • · There are numerous international jurisdictions where replacement labour is prohibited during a protected strike.
  • · Examples of such clauses are attached at the end of this presentation
  • · The latest Digest of Decisions by the ILO Committee on Freedom of Association is also attached.
  • · In many European countries there are no such provisions because there is a very strong tradition of not crossing the picket line. The lesson from these countries is that trade unions don’t need such laws if there is no mass unemployment and a tradition of solidarity.

NATIONAL KEY POINTS ACT 102 OF 1980 (“the Act”)

Introduction

  • · The Act is thin on content, awards far too much discretion to the Minister and is vague in numerous respects.
  • · The purpose of the Act is to provide for “National Key Points and the safeguarding thereof and for matters connected therewith”.

What is a national key point?

  • · The Minister of Defence (“the Minister”) may, in terms of section 3, declare any place or property a NKP if –
    • o he considers it necessary or expedient –
      • § for the safety of the Republic;
      • § in the public interest; or
    • o it appears to the Minister that any place or area is so important that its loss, damage, disruption or immobilization may prejudice the Republic.
  • · The Minister’s powers are written in ‘subjective mode’ and he or she is entitled to exercise it without advice and without the need to hear the owner of the property before such a declaration is made.
  • · The Minister is not required to offer any reasons for such a declaration and there is no need to gazette or record, for the benefit of the public, such declarations. The only obligation is for the Minister to notify the owner of the property in writing, of such declaration – section 2(2).
  • · This power is vast, and it is, on the face of it, unfettered.

What happens after such a declaration?

First step

  • · After receipt of such notification, the owner must after consultation with the Minister, at his own expense take steps in respect of security of the NKP to the satisfaction of the Minister – section 3(1)

Second step

  • · If the owner fails to do so, the Minister may –
    • o order him to do so, and if he refuses to comply with the order, he will be guilty of an offence and liable on conviction to a fine or imprisonment or both;
    • o implement such steps and recover the costs from the owner.
  • · The Minister may take these steps without any consideration as to whether or not such measures are feasible, reasonable or indeed affordable by the owner.

How does the Minister fund such expenses?

  • · The Act provides for the creation of a Special Account for the Safeguarding of the National Key Points, and directs that such monies are to be utilized for any loans or financial assistance to the owner of property, at the discretion and on the conditions to be determined by the Minister – section 3B.
  • · The Minister together with the Minister of Finance are entitled to designate a person in the service of the state as the accounting officer for the account – section 3B(3).

Prohibition against the publication of any information regarding NKPs

  • · Section 10 creates a criminal offence in respect of the release of “any information relating to the security measures, applicable at or in respect of any NKP or in respect of any incident that occurred there”.

Power of entry without owner’s consent

  • · The Minister, or any person authorized by him may enter any place or area to, inter alia –
    • o exercise any power granted to him in this Act;
    • o gather information, or check whether any steps have been taken in terms of this Act.

Does the exercise of the powers by the Minister in terms of the Act constitute administrative action?

  • · Administrative action means any decision of an administrative nature made under an empowering provision, ....... or exercising a public power or performing a public function in terms of any legislation .... which adversely affects the rights of any person [or has the capacity to affect such legal rights] and which has a direct, external legal effect[1].
  • · The Minister’s decision, if any, to declare a place or a property as a NKP, is made in the course of an exercise of a public power conferred by legislation, in the course of declaring private and non-private property as NKPs for the benefit of the country, and with immediate and direct legal consequences for affected property owners.
  • · Any decisions taken by the Minister in terms of this Act falls squarely within the definition of administrative action, as defined in PAJA, and confirmed in the decision on the SCA in Greys Marine Hout Bay (Pty) Ltd.
  • · Accordingly, any rights accorded to the Minister in terms of the Act must be exercised or asserted within the framework of PAJA. That means that the Minister’s actions must be lawful, reasonable and procedurally fair.

Lawful administrative action

  • · This means that the Minister’s exercise of power must be authorised by the law[2]. In making the declaration of a NKP, the Minister will be obliged to demonstrate that he has met the requirements of section 3. In other words, and by way of example, if the Minister has made the declaration ‘in the public interest’, he will be required to demonstrate precisely what constituted the ‘public interest’.
  • · If the minister is unable to do so, his decision might be attacked on the principle of legality or on the basis that it is arbitrary, capricious or mala fides[3].

Reasonable administrative action

  • · This means in essence that the Minister’s decision or declaration must be supported by the evidence and information before him, as well as the reasons given for it.
  • · O’Regan J in Bato Star v Minister of Environmental Affairs[4] indicated that what is reasonable in a particular case depends on the circumstances, and went on to list the factors relevant to determining whether a decision is reasonable:

The nature of the decision, the identity and expertise of the decision maker, the range of factors relevant to the decision, the reasons given for the decision, the nature of the competing interests involved and the impact of the decision on the lives and well-being of those affected.

Procedurally fair administrative action

  • · Section 3(2)(b) of PAJA reads as follows:

In order to give effect to the right to procedurally fair administrative action, an administrator, subject to subsection (4), must give a person referred to in subsection (1) –

(i) Adequate notice of the nature and purpose of the proposed administrative action;

(ii) A reasonable opportunity to make representations;

(iii) A clear statement of the administrative action ......

  • · These provisions will apply where the relevant legislation is silent on the subject of fair procedures[5].

Provisions relating to Replacement Labour

British Columbia, Canada

Section 68 of the Labour Relations Code

Replacement workers

68 (1) During a lockout or strike authorized by this Code an employer must not use the services of a person, whether paid or not -

(a) who is hired or engaged after the earlier of the date on which the notice to commence collective bargaining is given and the date on which bargaining begins;

(b) who ordinarily works at another of the employer`s places of operations;

(c) who is transferred to a place of operations in respect of which the strike or lockout is taking place, if he or she was transferred after the earlier of the date on which the notice to commence bargaining is given and the date on which bargaining begins; or

(d) who is employed, engaged or supplied to the employer by another person; to perform

(e) the work of an employee in the bargaining unit that is on strike or locked out; or

(f) the work ordinarily done by a person who is performing the work of an employee in the bargaining unit that is on strike or locked out;

(2) An employer must not require any person who works at a place of operations in respect of which the strike or lockout is taking place to perform any work of an employee in the bargaining unit that is on strike or is locked out without the consent of the person;

(3) An employer must not -

(a) refuse to employ or continue to employ a person;

(b) threaten to dismiss a person or otherwise threaten a person;

(c) discriminate against a person in regard to employment or a term or condition of employment; or

(d) intimidate or coerce or impose a pecuniary or other penalty on a person; because of the person`s refusal to perform any or all of the work of an employee in the bargaining unit that is on strike or locked out.

Canada (Federal)

Federal Labour Code

Section 94

Prohibition relating to replacement workers

(2.1) No employer or person acting on behalf of an employer shall use, for the demonstrated purpose of undermining a trade union’s representational capacity rather than the pursuit of legitimate bargaining objectives, the services of a person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given and was hired or assigned after that date to perform all or part of the duties of an employee in the bargaining unit on strike or locked out.

Quebec

Quebec Labour Code

Section 194

For the duration of a strike declared in accordance with this Code or a lock-out, every employer is prohibited from

(a) utilizing the services of a person to discharge the duties of an employee who is a member of the bargaining unit then on strike or locked out when such person was hired between the day the negotiation stage begins and the end of the strike or lock-out;

(b) utilizing, in the establishment where the strike or lock-out has been declared, the services of a person employed by another employer or the services of another contractor to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out;

(c) utilizing, in an establishment where a strike or lock-out has been declared, the services of an employee who is a member of the bargaining unit then on strike or locked out unless

(i) an agreement has been reached for that purpose between the parties, to the extent that the agreement so provides, and, in the case of an institution contemplated in section 111.2, unless the agreement has been approved by the Commission;

(ii) in a public service, a list has been transmitted or, in the case of an institution contemplated in section 111.2, approved pursuant to Chapter V.1, to the extent that the list so provides;

(iii) in a public service, an order has been made by the Government pursuant to section 111.0.24.

(d) utilizing, in another of his establishments, the services of an employee who is a member of the bargaining unit then on strike or locked out;

(e) utilizing, in an establishment where a strike or lock-out has been declared, the services of an employee he employs in another establishment;

(f) utilizing, in an establishment where a strike or a lock-out has been declared, the services of a person other than an employee he employs in another establishment, except where the employees of the latter establishment are members of the bargaining unit on strike or locked out;

(g) utilizing, in an establishment where a strike or lock-out has been declared, the services of an employee he employs in the establishment to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out.

ILO Committee on Freedom of Association

Digest of Decisions

Back-to-work orders, the hiring of workers during a strike, requisitioning orders

632. The hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association.(See the 1996 Digest, para. 570; 302nd Report, Case No. 1849, para. 217; 306th Report;

Case No. 1865, para. 336; 307th Report, Case No. 1899, para. 81; 311th Report, Case No. 1954, para. 406; 327th Report, Case No. 2141, para. 322; 333rd Report, Case No. 2251, para. 998; and 335th Report, Case No. 1865, para. 826.)

633. If a strike is legal, recourse to the use of labour drawn from outside the undertaking to replace the strikers for an indeterminate period entails a risk of derogation from the right to strike, which may affect the free exercise of trade union rights.

(See the 1996 Digest, para. 571; 306th Report, Case No. 1865, para. 336; 318th Report, Case No. 2005, para. 183; and 333rd Report, Case No. 2251, para. 998.)

634. Whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful, if applied to a specific category of staff in the event of a strike whose scope and duration could cause such a situation. However, a back-to-work requirement outside such cases is contrary to the principles of freedom of association.

(See the 1996 Digest, para. 572; 320th Report, Case No. 2044, para. 452; 329th Report, Case No. 2195, para. 737; 332nd Report, Case No. 2252, para. 883; and 333rd Report, Case No. 2281, para. 634.)

635. The use of the military and requisitioning orders to break a strike over occupational claims, unless these actions aim at maintaining essential services in circumstances of the utmost gravity, constitutes a serious violation of freedom of association.

(See the 1996 Digest, para. 573; 308th Report, Case No. 1921, para. 575; 320th Report, Case No. 2044, para. 452; and 333rd Report, Case No. 2288, para. 831.)

636. The employment of the armed forces or of another group of persons to perform duties which have been suspended as a result of a labour dispute can, if the strike is lawful, be justified only by the need to ensure the operation of services or industries whose suspension would lead to an acute crisis.

(See the 1996 Digest, paras. 528 and 574; 321st Report, Case No. 2066, para. 340; 324th Report, Case No. 2077, para. 551; and 328th Report, Case No. 2082,para. 475.)

637. Although it is recognized that a stoppage in services or undertakings such as transport companies, railways and the oil sector might disturb the normal life of the community, it can hardly be admitted that the stoppage of such service could cause a state of acute national emergency. The Committee has therefore considered that measures taken to mobilize workers at the time of disputes in services of this kind are such as to restrict the workers’ right to strike as a means of defending their occupational and economic interests.

(See the 1996 Digest, paras. 530 and 575; 317th Report, Case No. 1971, para. 56; 335th Report, Case No. 1865, para. 826; and 337th Report, Case No. 2249, para. 1478.)

638. The requisitioning of railway workers in the case of strikes, the threat of dismissal of strike pickets, the recruitment of underpaid workers and a ban on the joining of a trade union in order to break up lawful and peaceful strikes in services which are not essential in the strict sense of the term are not in accordance with freedom of association.

(See the 1996 Digest, para. 576.)

639. Where an essential public service, such as the telephone service, is interrupted by an unlawful strike, a government may have to assume the responsibility of ensuring its functioning in the interests of the community and, for this purpose, may consider it expedient to call in the armed forces or other persons to perform the duties which have been suspended and to take the necessary steps to enable such persons to be installed in the premises where such duties are performed.

(See the 1996 Digest, para. 577.)

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[1] Para 21 – 24 in Greys Marine Hout Bay (Pty) Ltd v Minister of Public Works – Case No:347/04 (SCA)

[2] Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999(1) SA 374 (CC), para 58

[3] Johannesburg Stock Exchange v Witwatersrand Nigel Ltd 1988 (3) SA 132 (A AT 152 C-D)

[4] 2004 (4) SA 490 (CC), para 45

[5] Zondi v MEC for Traditional and Local Government Affairs 2005 (3) SA 589 (CC) paras 113 - 114

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