Industrial Employees

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MAIN AGREEMENT NEGOTIATIONS: ****

STRIKE, PICKETING AND LOCK-OUT

HANDLING GUIDELINES

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MAIN AGREEMENT NEGOTIATIONS: 2017

STRIKE, PICKETING AND LOCK-OUT HANDLING GUIDELINES Introduction

SEIFSA member companies will be aware that the Main Agreement Wages and Conditions of Employment Negotiations are currently under way. Two full-day sessions took place on 7 and 8 June 2017.

It is anticipated that the trade unions will declare a dispute against the employer parties on 15 June 2017. Should this occur, the employer parties will counter with the declaration of a dispute against all the trade union parties, triggering the dispute resolution provisions contained in the Bargaining Council’s Constitution and those set out in Section 64 of the Labour Relations Act. Traditionally the unions have orchestrated the declaration of their disputes 30 days prior to the expiry of the current Main Agreement on 30 June (i.e. normally by the end of May or the beginning June), thereby allowing for a 30-day window to process the dispute both in terms of Section 64 of the LRA and the Bargaining Council’s Constitution. This process has always been tightly managed by the trade unions in order for them to be able to proceed on protected industrial action from 1 July.

Before protected industrial action and the issuing of the requisite 48 hours’ notice can take place, Section 64 of the LRA envisages a cooling-off period of 30 days to allow the disputing parties an opportunity to attempt to resolve the dispute, failing which any party to the dispute may call for the issuing of a certificate confirming that the dispute remains unresolved. This can take place once the 30- 3

day period has lapsed or during the 30-day period if any party to the dispute is of the view that the continuation of efforts to settle the dispute is futile. The Bargaining Council’s Constitution requires the disputing parties to trigger the dispute settlement procedures of the Council’s Constitution (a legal requirement when it comes to industry collective bargaining) by the convening of a Management Committee Meeting within 14 days of the declaration of a dispute. The Management Committee must attempt to resolve the dispute by:

Appointing a sub-committee to meet and deal with the dispute;

Referring the dispute to conciliation;

Referring the dispute to arbitration; or

Instructing the General Secretary to issue a certificate stating that the dispute remains unresolved.

The Bargaining Council’s Constitution also refers to the issuing of a certificate confirming that the dispute remains unresolved either during or after the 30-day window.

Should a dispute be declared on the 15th June and a process be agreed upon to deal with the dispute (i.e. after the Management Committee has convened to agree upon which process to follow), it is again highly probable that a certificate confirming that the dispute remains unresolved will be requested and the requisite serving of the 48 hours’ advance notice of intended strike action on SEIFSA will be done on time (i.e. on 30 June) to open the way for protected industrial action from 3 July 2017.

Should the trade unions declare a dispute on the 15th June, SEIFSA will, on behalf of all its member Associations, declare a counter-dispute, thereby 4

reserving the rights of the membership to implement company-level, lock-out action, should it become necessary to do so.

In the interim, working with all stakeholders, SEIFSA is doing everything reasonably possible to reach a settlement between the parties, in an endeavour to avoid the prospect of industrial action.

However, this notwithstanding, SEIFSA believes that member companies should realistically anticipate that various forms of protest and industrial action, including strikes and production disruptions, may well be experienced during the course of late June and early July.

In order to assist member companies to understand all the legal implications of possible industrial action, SEIFSA’s Industrial Relations and Legal Services Division has prepared this Strikes, Picketing and Lock-Out Handling Guidelines for use by the membership.

It is imperative that member companies keep fully abreast of all developments in the negotiations. This is easily achieved by accessing the regular reports and updates posted on the SEIFSA website (www.seifsa.co.za). The staff of the SEIFSA Industrial Relations and Legal Services Division should also be contacted for any advice or assistance in this regard on (011-***-****. Kaizer Nyatsumba

Chief Executive Officer

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MAIN AGREEMENT NEGOTIATIONS: 2017

STRIKE, PICKETING AND LOCK-OUT HANDLING GUIDELINES 1 GENERAL INTRODUCTION

1.1 One of the important objectives of the Labour Relations Act, 66 of 1995, as amended ("the LRA") is to "regulate the right to strike ... in conformity with the Constitution".

1.2 Strikes are no longer distinguished as being "illegal" or "legal" because the LRA, when it was introduced in 1996, sought to de-criminalize participation in strike action.

1.3 The purpose of these strike handling guidelines is to distinguish a strike from a work stoppage, unprotected strike action from protected strike action, and to provide a strike plan in order to deal with misconduct during a strike, sympathy strike action, picketing and when it is appropriate to approach the Labour Court for urgent relief. 1.4 These guidelines are intended to provide employers with a practical strategy which is sufficiently flexible to allow them to achieve their primary objective of persuading employees to remain at work and not participate in the industrial action, alternatively to achieve the earliest possible return to normal work.

1.5 Industrial action can take a number of different forms and it is essential that employers identify whether the industrial action constitutes a strike or whether the action is a work stoppage only. This is important in assisting employers to co-ordinate proper responses to the industrial action in conjunction with the SEIFSA Industrial Relations and Legal Services Team.

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1.6 Members of management (“designated officials”), who are tasked with various duties in handling the industrial action, need to be familiar with this plan as it saves valuable time and assists the employer effectively to decide its best course of action in response to a strike or work stoppage. 1.7 The aim of the strike plan is to identify –

1.7.1 the nature of the possible industrial action; 1.7.2 establish managerial objectives;

1.7.3 establish a strike handling committee and a command centre, together with report line structures, roles and responsibilities; 1.7.4 implement techniques to gather precise information and the articulation of grievances;

1.7.5 tips on how to maintain a strike diary;

1.7.6 dealing with the SA Police Services;

1.7.7 dealing with the media, communicating information to the relevant trade unions and the strikers, which includes keeping precise contact details of relevant parties.

2 INDUSTRIAL ACTION STRIKE vs. WORK STOPPAGE

2.1 The starting point is to understand what constitutes a strike. Section 213 of the LRA defines a strike to mean:

“the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee 7

2.2 Importantly, what distinguishes a strike from a work stoppage is that a demand is made by strikers which is rejected by the employer associations. A demand which is not met gives rise to a dispute between the parties. Where the industrial action takes the form of a work stoppage only, the distinguishing factor is that no demand is made by the participants. For example, a work stoppage in response to an employer’s breach of contract does not constitute a strike as contemplated by the LRA. The work stoppage must be for the purpose of remedying a grievance or resolving a dispute if it is to conform to the definition of a strike contained in Section 213 of the LRA. If no evidence of the purpose of the work stoppage is tendered then the employer associations may not be able to claim that it constitutes a strike.[1] It may amount to nothing more than a breach of contractual obligations, unless indirectly the industrial action aims to exert pressure on an employer to perform a particular act or refrain therefrom.

2.3 This distinction is relevant if employer associations intend to pursue an interdict in the Labour Court to declare a strike unprotected and to force a return to work by obtaining an appropriate Order of Court. If the work stoppage does not constitute a strike, it means that such an interdict could fail. This places a direct obligation on any strike handling team to ensure that they gather sufficient information to prove the existence of the grievance or dispute giving rise to the industrial action. 3 PROTECTED vs. UNPROTECTED STRIKE ACTION

3.1 For a strike to be protected in terms of Section 64 of the LRA, the dispute must have been referred to the MEIBC for conciliation. Where a certificate, confirming that the dispute remains unresolved, has been issued by the MEIBC, alternatively 30 days has lapsed since the dispute was first referred to it (or such longer period as has been agreed upon by

[1] Floraline vs. SASTAWU (1997) 9 B

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the parties), the relevant trade unions and their members can give 48 hours’ notice to commence a protected strike.

3.2 There are limitations placed on the right to participate in a protected strike. If the strike does not comply with Section 64 it will be an unlawful strike. If the strike contravenes a collective agreement that limits the opportunity to strike on the issue in dispute, the strike will be unprotected. Likewise where the strike concerns a rights dispute (e.g. an unfair labour practice or unfair dismissal) and the LRA prescribes that the dispute is capable of arbitration or adjudication, such a strike about a rights issue will be unprotected.

3.3 These distinctions are important in order to understand when an employer is entitled to opt for an urgent interdict to prevent a threatened strike or to put an end to a strike that is in progress. 3.4 If a strike is protected, then participation in the strike does not in itself constitute misconduct. However, unacceptable behaviour during the course of a protected strike should obviously be the subject of appropriate discipline. Please bear in mind that an employer's disciplinary code and procedure is not suspended during a protected strike.

3.5 A strike may not necessarily take the form of an entire withdrawal of labour by the workforce. The definition of “strike” in the LRA also covers partial strikes, overtime bans or go slows in which only a section of the workforce might participate.

3.6 Under the old LRA, the question whether, and in what circumstances, strikers could be fairly dismissed spawned a wealth of complex and frequently inconsistent jurisprudence. The current LRA has attempted to codify what is regarded as best practice contained in the Code of Good Practice: Dismissal ("The Code") and, in particular, Item 6 thereof which 9

deals with dismissals for participation in industrial action:

"Item 6: Dismissals and Industrial Action

(1) Participation in a strike that does not comply with the provisions of Chapter IV (of the LRA) is misconduct. However, like any other act of misconduct, it does not always deserve dismissal. The substantive fairness of dismissal in these circumstances must be determined in the light of the facts of the case, including -

(a) the seriousness of the contravention of this Act;

(b) attempts to comply with this Act; and

(c) whether or not the strike was in response to unjustified conduct by the employer."

3.7 Item 6 of the Code constitutes a guideline that presents some of the key considerations that should be taken into account in respect of dismissals due to unprotected strike action. The Code endorses that dismissals generally can be challenged on both substantive and procedural grounds.

3.8 In past mutual interest disputes before the MEIBC, about substantive issues at a central industry level, have been conducted on a lawful basis and strike action has been of a protected nature.

3.9 The substantive negotiations in 2017 will not be an easy ride. The trade unions are demanding above inflation wage increases and the propensity for strike action is evident, which could result in sporadic unprocedural strikes which are of necessity unprotected. SEIFSA does not advocate that its employer members embark upon any dismissal in terms of the 10

LRA. Employers may not be able to dismiss where the strike is in fact lawful, procedural and protected, because a dismissal in those circumstances would constitute automatically unfair dismissals in terms of the LRA.

3.10 Appropriate responses to these types of industrial action will be debated in these guidelines, as well as by the employer associations, their strike management teams in conjunction with SEIFSA.

4 WHEN DOES A STRIKE QUALIFY AS A PROTECTED STRIKE? 4.1 There must be an issue or issues in dispute. The Labour Court has recently accepted that the CCMA, or Bargaining Council, cannot consider a matter if the parties are not in dispute. This would also extend to the argument that there could never be a strike where there is no dispute. See: Contemporary Labour Law (CLL) Vol 20 No. 8 at page 77 4.2 In the case of City of Johannesburg Metropolitan Municipality vs. SAMWU and Others (2007) JOL 20883 (LC), the Judge of the Labour Court said the following at paragraph 18;

"I am of the view that, although it is not a pre-requisite that one of the disputing parties must formally or even expressly declare a dispute (as was the case under the previous Labour Relations Act), then at the very least the issue referred to conciliation must be an issue over which the parties have reached a "stalemate" in the sense that the employer has had the opportunity to reject or accept a demand put forward by the employees or their representatives." and

"To hold otherwise may, in my view, give rise to a situation where employees may refer any issue to conciliation without first having afforded the employer an opportunity to formulate a negative 11

response or to reject a demand or grievance put forward by the employees At the very least, the employer should know what the dispute is about and what is required to resolve the demand or dispute. I am of the view that this is in accordance with the purpose of the LRA which is to promote orderly collective bargaining and is in accordance with the spirit of the LRA which is to promote the effective resolution of disputes. Once the employer has rejected or indicated through its conduct that it is not willing, for whatever reason, to accede to a demand then the parties will have reached a stalemate to the extent that it may be concluded that there is now

"an issue in dispute which is capable of being conciliated ... and, if unsuccessful, be the subject matter of strike action." 4.3 Once such stalemate is reached, a party may refer the dispute to conciliation by the MEIBC. If such a mutual interest dispute, regarding wages and other substantive conditions of employment, is referred to the MEIBC, the LRA does not require that the dispute be conciliated, as a pre-requisite before a certificate of non resolution of the dispute can be issued. Nor does the LRA require that such a certificate be issued prior to a party giving 48 hours' notice to strike to the other party / parties to the dispute.

4.4 All that Section 64 of the LRA requires is that 30 days must have lapsed since the date of the referral, at which point a party can elect to give 48 hours' notice of an intention to strike or to impose a lock-out (where the party making the referral is the employer).

4.5 The giving of such 48 hours' notice by one party to the other is often regarded as "the strike notice". Recent case law has turned on the inadequacy of the wording of a strike notice, based on an employer's submission that it is entitled to know what the employees are going to strike about and who will be involved.

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4.6 In the dissenting judgment of Zondo JP in Equity Aviation Services

(Pty) Ltd vs. SATAWU and Others (2009) 10 BLLR 933 (LAC), it was said that -

whatever the union issuing the strike notice chooses, it must make the notice sufficiently clear to enable the employer to know which employees are covered by the strike, which notice will, therefore, also advise of the commencement a strike on a given date. This does not necessarily mean that the union should furnish the employer with the names of the workers who will take part in the strike

4.7 Obviously, if short notice is provided, the strike will not be protected until that notice period has expired and then the strike must commence again at the correct time.

See: City of Matlosana vs. SALGBC and Others (2009) JOL 23154 (LC)

4.8 In the early case of Ceramic Industries Ltd t/a Betta Sanitaryware vs. NCBAWU (2) (1997) 18 ILJ 671 (LAC), the Labour Appeal Court supported the view that the purpose of giving proper and timeous notice of a strike was to "warn" the employer of pending collective (strike) action and when it is going to happen so that the employer has a fair and proper opportunity to deal with it and plan for it.

5 LOCK-OUTS

5.1 The concept of a protected lock-out is provided for in Section 64 of the LRA.

5.2 A lock-out is the employer’s equivalent of a strike. In particular, the lock- out provides a mechanism for an employer to refuse to accept the tender of services by its employees, and thus effectively exclude them from the 13

workplace, in order to compel them to accept a demand of the employer relating to a mutual interest issue.

5.3 For a lock-out to be protected, four conditions precedent are required. These are –

5.3.1 an exclusion of employees from the workplace; 5.3.2 the dispute in question must relate to a matter of mutual interest; 5.3.3 the statutory requirements prescribed in Section 64 of the LRA must have been complied with;

5.3.4 a demand must exist.

5.4 These aspects shall be dealt with in turn below. 5.5 Exclusion from the workplace

This is a factual issue. The employer, in imposing a lock-out, may physically refuse employees access to the workplace, unless there is a collective agreement, such as a picketing agreement to the contrary. This exclusion may remain in place for the duration of the lock-out. 5.6 Mutual interest dispute

The issue in dispute giving rise to the lock-out must be a matter of mutual interest. Usually the dispute is one of mutual interest, being an amendment to terms and conditions of employment.

5.7 Compliance with statutory requirements

Section 64 of the LRA provides that a lock-out will be protected if –

“(1)(a) the issue in dispute has been referred to the Commission, and

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(i) a certificate stating that the dispute remains unresolved has been issued; or

(ii) a period of 30 days or any extension to that period agreed to between the parties has elapsed since the referral was received by the Commission.

(b) in the case of a proposed lock-out, at least 48 hours notice of the commencement of the lock-out, in writing, has been given to any trade union that is a party to that dispute.” 5.8 Should the employer seek to follow the route of a protected lock-out, it is crucial that the dispute of the employer is limited to the ambit of the dispute originally referred by the employees. Usually the issue under consideration, i.e. the issue in dispute declared by the union, is about terms and conditions of employment. An employer seeking to commence a protected lock-out would be required to issue a 48 hour notice and piggy back on the dispute already referred to the CCMA or MEIBC by the union(s). The timing of the issue of this notice is relevant. There is no need for the employer to declare a separate dispute over any substantive items which are already the subject of dispute. 5.9 An employer may institute a protected lock-out, provided that the demand of the employer (discussed below) does not go beyond those issues declared by the Union in its dispute and which were the subject of conciliation. If the employer wishes to introduce further demands on issues of dispute not referred to the CCMA by the union, then the employer must comply with the provisions of Section 64(1)(a) of the LRA, i.e. a new dispute referral for conciliation must be made. 5.10 Demands

5.11 A lock-out, to enjoy legal protection, must be accompanied by a demand. This demand must be related to an issue of mutual interest between the 15

parties.

5.12 A lock-out will stipulate that the employer shall lock-out, and exclude employees from the workplace, until such time as the demand of the employer has been acceded to by the employees.

6 LOCK-OUT: DEFENSIVE OR OFFENSIVE

6.1 The LRA does not create the distinction between an “offensive and a defensive lock-out”. However, informal practice has evolved to describe a defensive lock-out as a situation where the lock-out is effected in response to a strike notice, where the “offensive lock-out” predates any declaration of a dispute by the employees.

6.2 The distinction between these concepts is vital, in that an employer can utilize replacement labour in a situation where the lock-out is imposed in response to a strike. Where the lock-out is used as an offensive tool, this right is not afforded to employers.

6.3 Section 76 of the LRA, dealing with this issue, stipulates as follows –

“(1) An employer may not take into employment any person –

(a) to continue or maintain production during a protected strike if the whole or part of the employer s service has been designated a maintenance service; or

(b) for the purpose of performing the work of any employee who is locked out, unless the lock-out is in response to a strike.

(2) For the purpose of this section take into employment includes engaging the services of a temporary employment service, or an independent contractor.”

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6.4 It is obviously vital to obtain clarity on when a lock-out will be imposed “in response to a strike”. The Labour Appeal Court, in the judgment on point of Technicon SA vs. NUTESA [2001]1 BLLR 58 (LAC) states that the lock-out notice must be done in response to the strike notice of the union. Accordingly, it is irrelevant whether the actual strike action contemplated by the employees in their Section 64 notice has commenced. The moment that the strike notice is issued, the employer can issue a defensive lock-out notice. The lock-out may thus commence before, simultaneously with, or after the commencement of the strike. The employer should take care to ensure that it complies with the provisions of Section 64(1)(b) i.e. the employer must in any event give 48 hours’ notice.

6.5 The Labour Appeal Court issued a warning to employees in the NUTESA judgment; if the employees embark on power play, they must be prepared to bear the consequences of their decision. 7 DURATION OF LOCK-OUTS

7.1 A lock-out, if legal, will continue until such time as an agreement on the issue or issues in dispute has been reached, alternatively until the lock- out is terminated by the employer.

7.2 Accordingly, and even if the lock-out is declared in response to a strike notice by the employees, and the employees subsequently abandon their strike action and tender their services to the employer, the employer is not obliged to accept that tender. It can do so for the duration that the employer’s demands have not been met by the employees. Also, the nature of the lock-out does not change from “defensive” to “offensive” if the primary strike of the employees has been abandoned. The right to utilize replacement labour will be determined at the time that the lock-out notice is issued. If the employer has the right to utilize replacement labour at that time, the employer will remain entitled to that right, 17

notwithstanding the abandonment of the strike action by the employees. 8 PARTIAL TENDER OF SERVICE

8.1 Instances occur where a strike has been called by the union, but the employees indicate that they are willing to tender partial, but not complete services to their employer.

8.2 The definition of strike action in the LRA includes “the partial or complete concerted refusal to work, or the retardation or obstruction of work

8.3 The Labour Appeal Court, in the matter of 3M (Pty) Limited vs. SACCAWU [2001]5 BLLR 483 (LAC) has endorsed the right of the employer to refuse to accept a partial tender of services. The employer has the right to refuse a partial tender, and not pay the striking employees any remuneration, in accordance with the principle of “no work, no pay”. Significantly, however, the employer may refuse only for so long as the tender is partial. Once a total tender of services has been made, and the employer rejects that tender in the absence of a legally protected lock-out, the employer becomes liable to remunerate the employees from the time that the tender is made.

9 SHUT-OUTS

9.1 A shut-out can be effected by an employer without relying on any of the provisions of the LRA. In essence, a shut-out amounts to no more than an employer refusing the right of access to those employees who have indicated, through strike action, an intention not to tender their services in accordance with their contracts of service.

9.2 This position will be altered if there is a valid picketing agreement (either agreed to collectively between the employer and its employees, or imposed by the CCMA). Should the picketing agreement provide that 18

employees are entitled access to the premises (albeit on a limited basis) such agreement must be adhered to.

9.3 The shut-out is reactive in nature and application. The shut-out can only be implemented when it is clear that the employees will not tender their services. As soon as the employees tender services (even if there is no undertaking to discontinue the strike action totally), the employer must accept that tender, alternatively pay employees for the period from which the tender was made.

9.4 Critically, no demand may accompany this shut-out procedure. The moment the employer issues a demand (I will not allow you access, until you accept an X% wage increase and unconditionally call off the strike), the nature of the action of the employer changes from a shut-out to a lock-out. If the employer has not complied with all the statutory requirements, alternatively if the demand is different to that raised by the union initially, the lock-out will be unlawful. In such event, the lock-out can be interdicted, alternatively the employees are entitled to claim from the employer the wages they would have earned from the time their services were tendered.

9.5 The utilization of a shut-out also makes the employer vulnerable to the concept of “grasshopper” strikes, alternatively the consequences of “go slow” action. Grasshopper action is where the strike will run for a certain number of days, employees will then return to work for a number of days without terminating the strike itself, and later continue with the strike action. This process can be repeated until such time as the employees’ demands are met. The advantage for the employees is that they could earn some income, but severely affect the economic viability of the employer. The possibility of sabotage in these circumstances is also enhanced.

9.6 Go slow action is similarly problematic as the employer will be unable to 19

accurately gauge whether employees are on the premises to work in accordance with their employment contract, or whether they intend to participate in the industrial action.

9.7 For the reasons stated above, the “shut-out” should be used as a short term reactive measure, primarily in a situation where there is a full strike, and the employer wishes to prevent access to its premises because of fear of violence or damage to property.

10 SECONDARY STRIKE ACTION

10.1 Secondary strikes are often referred to as sympathy strikes, but what does this mean? Section 66(1) of the LRA defines a secondary strike as:

"a strike, or conduct in contemplation or furtherance of a strike, that is in support of a strike by other employees against their employer but does not include a strike in pursuit of a demand that has been referred to a council if the striking employees, employed within the registered scope of that council, have a material interest in that demand". 10.2 In the Contemporary Labour Law (Vol 18 No 3 of October 2008), such action is defined as:

a secondary strike is a strike in which the employees of one employer (the secondary employer) express their support for the striking workers of another employer (the primary employer) in circumstances where they have no mutual interest in the issue giving rise to the primary strike and do not bear the consequences, or enjoy the benefits, of the outcome of the primary strike". 10.3 There are three elements that need to be satisfied first before a secondary strike is protected:

10.3.1 the primary strike must be a protected strike; 20

10.3.2 there must be seven days' notice given to the secondary strike employer: and

10.3.3 the "nature and extent" of the secondary strike must be reasonable in relation to the effect that it has or would have on the primary employer. 10.4 A secondary strike would fail to be a protected strike if, in fact, its effect on the primary employer was tenuous. This could occur where the secondary employer's influence on the primary employer is of little significance.

10.5 In the case of Samancor Ltd and another vs. NUMSA (1999) 20 ILJ 2941 (LC), the Labour Court found that if the relationship between the primary and secondary

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