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Pressure Mounts For Labour Reforms In The Form Of Protest Action

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Pressure Mounts For Labour Reforms In The Form Of Protest Action

23rd April 2018

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The South African Federation of Trade Unions (SAFTU) will be urging all its members and supporting workers to be part of the National Stay-away and Protest Actions planned for the 25th April 2018 in pursuit of demands relating to a significant increase to the proposed national minimum wage of R3 500 per month, as well as to demonstrate opposition to proposed changes to labour laws which may affect the right to strike, and generally in opposition to what have been labelled as Reaganomic economic policies and Thatcherist political attacks on workers' rights.
 
The protest action will be a protected form of collective bargaining, in that the Labour Relations Act, 66 of 1995 provides that participation in the protest, or staying away from work on the day, cannot be the basis for disciplinary action being taken against employees.  This protection against dismissal for participation requires that the protest action has protected status; in the same way that a strike can be either protected or unprotected, and whereas employees cannot be dismissed merely for participating in a protected strike, but this is not the case where the strike is unprotected, participation in protest action is either protected or unprotected.  
 
Protest action gains protection provided that the relevant procedural requirements of section 77 of the LRA have been complied with.  These are that a registered trade union or federation of trade unions has called for protest action, has served a notice on NEDLAC, and after NEDLAC failing to resolve the matter, the trade union or federation of trade unions has issued a notice to commence protest action, not less than fourteen days before commencement of the protest action.
 
As is the case with strike action, any employees who are engaged in essential or maintenance services may not participate in the protest action, in order to ensure that critical components of infrastructure and civil society continue to function.
 
Protest action bears further resemblance to strike action in that employers are not obliged to remunerate or otherwise pay the salary of an employee for services that the employee does not render during a protected strike or a protected lock-out.  As such, the usual strike principle of "no-work no-pay" applies.  However, this is subject to a condition that if the employee’s remuneration includes payment in kind in respect of accommodation, the provision of food and other basic amenities of life, the employer, at the request of the employee, must not discontinue the payment in kind during the protest action.
 
It is also important for employers to note that protected protest action does not grant employees carte blanche to misbehave.  Section 77 does not preclude an employer from fairly dismissing an employee for a reason related to the employee’s conduct during the protest action, or an operational requirement which arises during the protest action.  As such, if employees go beyond the bounds of peaceful protest action and engage in violence, intimidation or other forms of unacceptable conduct during or related to the protest action, they lose the protection against dismissal and may be discipline din the ordinary course.  Unions organising protest action should also ensure that their members adhere to peaceful protest action rules or guidelines, as unions may be held liable for damages caused by their members who have embarked on protest actions which crosses the bounds of peacefulness and which results in damage to employers or third parties.
 
The essential difference between strike action and protest action is that strike action is aimed at exerting pressure on a particular employer of defined group of employers, in order to compel them to accede to a demand that has been made by the union, and which is capable of being given effect to by the employer. For example, a demand for a wage increase by an employer is, theoretically, capable of being agreed to by a specific employer and as such, the is proper subject matter of a dispute of mutual interest and the subject of a strike.  
 
As can be seen from the SAFTU matters which are the subject of the protest action, there is no individual employer or employer organisation which can accede to a demand to implement a higher national minimum wage, or to divert larger national economic policy, but the protest action is intended to exert pressure on legislators responsible for drawing up the pending legislation in regard to minimum wage, or government when considering economic policy, to take cognisance of the collective will of the workers who engage in the protest action.  The LRA recognises these general interests and allows the workers voices to be heard through the protected protest action mechanism, to allow unions to promote or defend socio-economic interests of workers.

Written By Bradley Workman-Davies, Director at Werksmans Attorneys

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