The Minister of Labour has recently submitted amendment bills in respect of the Labour Relations Act 66 of 1995 (“LRA”) and the Basic Conditions of Employment Act (“BCEA”) to the Cabinet Committee on 14 March 2012. One of the key issues which the amendments seek to address is the increasing levels of unprotected industrial action and the unlawful acts of violence and intimidation which have become synonymous with strikes. This article examines whether the implementation of the proposed changes will achieved its intended purpose – a decrease of unprotected strikes and associated violence and intimidation.

1. REQUIREMENTS FOR A PROTECTED STRIKE

Under the current legislation, section 64 provides for two essential requirements to be met before a strike will be protected. Firstly, the dispute must be referred to a council or commission and the council / commission must issue a certificate stating that the dispute remains unresolved. Alternatively, a period of thirty days must have lapsed since the referral. Secondly, the employer must be given at least 48 hours notice of the intended strike.

The proposed amendments, whilst maintaining the above requirements, proposes additional requirements which must be met before a strike is conferred with the protection offered under the LRA.

One such requirement is that a trade union must conduct a ballot vote of its members in good standing who are entitled to strike in respect of the issue. A strike will only be regarded as protected if a majority of the members have voted in favour of the strike.

In addition, proof of compliance with the ballot provisions must be obtained by way of the issuing of a compliance certificate by a council, commissioner or accredited agency.

It is interesting to note that the “majority vote ballot provision” was previously included in the 1965 LRA, but after extensive debate it was eventually excluded from the 1995 LRA. A further point to note is that section 67(7) of the LRA provided that even where a trade union failed to comply with its constitutional requirement to hold a ballot vote, the protection or legality of the strike would not be affected.

The proposed amendment now makes ballot provisions mandatory in terms of section 64. However the proposed amendment of section 67(7) fails to take cognizance of this. It provides that, despite section 64, the failure of a trade union to comply with its constitutional requirement to hold a ballot vote, will not affect the legality or protection of the strike. These two provisions appear to be contradictory and, if the amendments are passed, will undoubtedly have to be reviewed.

2. LIMITATIONS ON TAKING STRIKE ACTION

Section 65 of the LRA sets out the limitations imposed on a party wishing to participate in a strike. Section 65(1)(c) provides that a person may not participate in a strike if the issue in dispute is one that the party has a right to refer to arbitration or to the Labour Court in terms of the LRA.

In terms of the LRA amendment bill, section 65(1)(c) now provides that no person may participate in a strike if that party has a right to refer the dispute to arbitration or to the Labour court in terms of the LRA or any other employment law. (our emphasis).

The proposed amendments will therefore broaden the restrictions on employees and trade unions taking strike action.

3. CIVIL PROCEEDINGS INSTITUTED AGAINST STRIKERS

Section 67(2) of the LRA states that a person participating in a protected strike does not commit a delict or breach of contract. Section 67(6) also states that civil proceedings may not be instituted against a person who is participating in a protected strike.

Section 67(8) states that subsections (2) and (6) do not apply to any act committed in the furtherance of a strike if that act amounts to an offence.

The proposed amendment further restricts the circumstances within which strikers will be protected from civil proceedings being instituted against them. The proposed amendment states that strikers will be open to civil proceedings being instituted against them not only where an act committed in furtherance of the strike amounts to an offence, but also where it constitutes a material breach of a picketing agreement or a picketing rule.

4. PARTICIPATION IN PICKETS

In terms of the LRA, section 69(1) provides that a registered trade union may authorize 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’.

The LRA allows for picketing rules established by the Commission to provide for employees picketing at the premises of the employer where the employer unreasonably withholds permission. The proposed amendment remains unchanged on this point, but has been amended to allow for picketing to take place on property controlled by a third party if the third party had the opportunity to make representations to the Commission before the rules were made. This then allows for picketing to be held on the premises of the employer’s landlord.

The LRA currently only 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 is taking place.

The proposed amendments will allow for increased access to the Labour Court as well interim relief for disgruntled parties. As it stands parties were allowed to refer a matter to the Labour Court where the main dispute remained unresolved. The proposed amendment will extend parties’ access to the Labour Court in respect of disputes over compliance with picketing agreements or rules. The proposed amendments set out various forms of interim relief including a suspension of the picket or strike.

5. DISCUSSION

It seems that the proposed amendments have sought to address the increasing levels of unprotected strikes and associated violence in four ways: Firstly, by increasing the requirements to participate in a protected strike. This however begs the question whether further regulation to strike action will assist in the reduction of unprotected strikes. If strikers cannot comply with the current minimum requirements of a protected strike, one wonders whether imposing additional requirements will remedy this problem?

A further manner in which the proposed amendments intend to achieve its purpose is by further limiting the circumstances within which strike action can be taken. If the dispute is one which can be referred to arbitration or the Labour Court in terms of any employment law, strike action is prohibited.

The third instance is by endeavouring to increase the scope of civil proceedings being instituted against strikers who engage in unruly behavior. Strikers who engage in conduct which amounts to an offence or a material breach of a picketing agreement or rule will open themselves to civil litigation.

Lastly, the amendments seek to regulate the way pickets are conducted. Trade unions may no longer authorize non-members to participate in pickets. The amendments also allow access to the Labour Court in respect of disputes over compliance with picketing rules and agreements, and further provide interim relief for third parties against non-compliance.

In conclusion, whilst the Labour Relations Amendment Bill 2012 attempts to create some form of structure regarding the purpose of and execution of industrial action, as with any proposed amendment, ambiguity must first be eradicated to ensure successful implementation of the suggested changes.

Written by Liesl Brookshaw, associate, and Alissa Nayanah, candidate attorney, with the Commercial, Property and Litigation department, Adams & Adams. The supervising partner was Manisha Maganbhai-Mooloo.