Current South African labour legislation is effective in dealing with strike action, however, the labour relations framework in which collective bargaining happens, needs to change.

This is crucial to addressing the increasing occurrence of spontaneous and unprotected strike action which is a very dangerous form of industrial action.

This is the view of Irvin Lawrence, director at law firm ENS (Edward Nathan Sonnenbergs), speaking at an employment law seminar in Durban this week.  According to Lawrence, unions need to become more proactive in servicing their constituencies, especially as collective bargaining arrangements currently used within the labour relations framework are not working. This issue was recently brought up at the Mining Lekgotla, which concluded this week in Sandton, where fears about current stability, labour and the regulatory environment in the mining sector was discussed.

“As unionisation decreases, the number of strikes increases, predominantly due to a rise in unprotected strike action and a loss of control over the bargaining process. We are currently seeing more unprotected strikes taking place spontaneously and fewer strikes being orchestrated by unions,” he says.

Lawrence explains that the last year saw an abnormally high rate of unprotected strikes, with 2012 recording the highest rate of service delivery protest action since 2004, 88% of which were violent.  More than R1.03 billion was lost in employee income due to ongoing strikes in various sectors during 2012.

“Statistically, in 2011, almost six million workdays were lost due to strike action, yet in 2012, only 3 million were lost, even though the industrial sector was marred by violent action.  Internationally, South Africa was ranked second in relation to the number of working days lost as a result of strike action during this period.”

According to Lawrence, in spite of this, the labour laws are fairly advanced in South Africa with significant respect entrenched for the worker in the SA constitution. “We have a sturdy labour law framework in place, but it’s the bargaining and union organization process that is not working. There is a definite need to reform the collective bargaining system in the country.”

Lawrence says erosion to the collective bargaining process has occurred over the past few years. As a result employees have lost faith in the system, and people on the ground have become disillusioned with the processes.

Lawrence points to the Labour Relations Amendment Bill, discussed at Parliament recently, which excludes a clause requiring strike ballots before workers embark on a strike. He argues that this proposed amendment would have been largely ineffective in curbing the current spate of industrial action and would probably have exacerbated the resort to unprotected strikes action. The amendments to Section 67 regarding picketing similarly may not be very effective, especially as there is not industrial action around this currently.

“The power of the court to intervene and stop a lockout, that is, excluding employees from their place of work until certain terms are agreed to, may be problematic in itself because it encourages further erosion of individual’s constitutionally guaranteed rights to strike. People will see this as another attempt to inhibit their rights, and we may see strikes increasing .”

He says that businesses who would like to protect themselves against unprotected strike action, can do so either by helping themselves, employing the use of the courts, lock-out procedures, or suing unions for production losses.  The “self-help way” includes dealing with the misconduct and dismissing people, whereas the lock-out process involves locking employees out of their place of work until they agree to certain terms.

“Using the recourse of the courts, that is gaining an interdict against unprotected strike action, is the most common, but, whether this is effective is difficult to say. This tends to deal with the symptoms rather than the actual underlying causes of unprotected strikes which may be socio-economic in nature.”

Lawrence believes that the solution does not lie in amending legislation, as many of the strikes are as a result of these socio-economic challenges, service delivery failure and poor conditions in which people live.

“The solution lies in the dynamic at play in the collective bargaining arena. It will depend on a host of social issues, as well as how unions react to these issues, and the fact that they have lost trust of their employee constituencies. If unions representing all members’ interests regain confidence, unprotected strike action may go down substantially.”

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