Labour Law Amendments Presented by Jan du Toit

Transcription

1 Labour Law Amendments 2019 Presented by Jan du Toit

2 Amendments to the Labour Relations Act

3 Section 32 Extension of Bargaining Council agreement to non-parties by Minister No longer a requirement for both a union and employers organisation to hold majority only one Notice period extended to 90 days instead of 60 where parties are only sufficiently representative The Registrar of Labour Relations to determine level of representation, valid for two years (amended section 49 of the Act) not every time a request for extension is submitted 32A Funding agreement expired or failure to reach an agreement 90 days before expiry application to minister to extend for 12 months where it may undermine collective bargaining

4 Section 69 - picketing Bulk of the amendments in an attempt to curb protracted and violent strikes Dispute 30 days conciliation, no picketing agreement, conciliating commissioner must establish rules No agreement or rules no picket Commissioner must consider default picketing rules published Rules established may be extended to third parties Commission may determine rules on direct application if: - Employer made unilateral changes to employment conditions - Employer gave notice or commenced with unprotected lockout Material breach of agreement / rules LC - Comply - Vary - Suspend Bargaining Council commissioners included

5 Section 72 minimum service Section 75 maintenance service Minimum service is defined Also clarifies that minimum service agreement may be ratified or determined by the panel appointed by the ES Committee Maintenance service panel appointed by ES Committee may on own accord / employer application / trade union application, cancel designation of a service as a maintenance service.

6 Section 95 registration of union / employers organization Minister may after consultation with NEDLAC issue guidelines to determine whether a union or employers organization should be registered or not. Guidelines have been published

7 Section 99 record keeping Trade union / Employers Organization must keep record of minutes AND attendance registers for three years. Same requirement for ballots

8 Section 135 conciliation If necessary, any party to a dispute may apply to CCMA director for extension of 30 day conciliation period for an additional five days; May only be extended if director is satisfied that: - Extension is necessary for meaningful conciliation; - Refusal to agree to extension is unreasonable; - Reasonable prospects of reaching an agreement. 8

9 Section 150A advisory arbitration panel in public interest Director of CCMA may appoint advisory arbitration panel in public interest to make advisory arbitration award; May be done on director s own accord or application of one of the parties to the dispute; Advisory arbitration panel may be appointed any time after certificate or notice of strike/lockout; Minister of Labour may direct the establishment of advisory arbitration panel or ordered by Labour Court; The Director may only appoint the panel if: Strike/lockout is no longer functional to collective bargaining continued for protracted period; Imminent threat to constitutional rights being violated by participants violence, threat of violence, damage to property; Strike/lockout causes or may potentially cause national or local crisis effecting social and economic functioning. 9

10 Section 150A advisory arbitration panel in public interest - continued No party may apply to any court of law to stay or review proceedings of advisory arbitration panel until panel has issued it s award 10

11 Section 150B composition of advisory arbitration panel A senior commissioner as chairperson; An assessor appointed by the employer party; An assessor appointed by the trade union party; If employer or trade union fails or refuse to appoint assessor director must appoint assessor from list of assessors; NEDLAC to provide director with two lists of assessors, one for employers and another for trade unions; If employer or trade union fails or refuses to participate director to appoint a person to represent interests of that party; Arbitration to be conducted with minimal formalities; Panel to conduct proceedings and issue award within seven days of the arbitration hearing or any reasonable period extended by director; The appointment of panel does not interfere with the right to strike or to lockout. 11

12 Section 150C advisory arbitration award The award must be in prescribed form and addressed factual findings recommendations for the resolution of the dispute, motivation as to why the parties should accept and seven days to indicate acceptance of rejection of award; If no consensus with assessors, chairperson will have final say; Seven day period to accept or reject may be extended with five days; Failure to accept or reject deemed to have accepted the award; If rejected must be motivated; Before rejecting consultation with members must take place; Within four days after award issued Minister to publish for public dissemination; Public pressure; Any party may request panel to reconvene for explanation, mediate settlement or variation of award. 12

13 Section 150D effect of advisory arbitration award Advisory arbitration award only binding if one or more trade unions accepted or deemed to have accepted award or same for employer s organizations; The binding nature of advisory arbitration award equals collective agreement as per Section 23 of the act; If parties to dispute are parties to a bargaining council, Section 32 may be executed. 13

14 Transitional provisions Registrar 180 days to consult with unions and employer s organizations without ballot procedures in their constitutions; Until union/employer s organization complies with directive issued by Registrar of Labour Relations, secret ballot must be conducted before strike/lockout. 14

15 BCEA Amendments

16 Section 9A daily wage payment Most of the amendments cosmetic and to accommodate newly introduced National Minimum Wage Act; Employee or worker in terms of National Minimum Wage Act that works for less than four hours any day, must be paid for four hours; Only applicable to employees or workers earning below the earnings threshold R

17 Section 51 Wages prescribed in terms of sectoral determinations that are higher than national minimum wage to be proportionally increased if national minimum wage is increased; Notwithstanding provisions of sectoral determination learner must be paid as per Schedule 2 of the NMWA. 17

18 Section 52, 53 and 54 A commission to investigate conditions of employment in a sector - no longer Director General of Labour. 18

19 Section 64 labour inspectors Labour inspector may refer to the CCMA disputes about failure to comply with this Act, NMW Act, Unemployment Insurance Act and Unemployment Insurance Contributions Act; May appear on behalf of Director General at the CCMA or Labour Court concerning failure to comply with legislation. 19

20 Section 68 undertakings Labour inspector may allow for a written undertaking by employer to comply with provisions of BCEA, NMWA, UIA; If employer fails to comply with undertaking inspector no longer required to approach Labour Court, CCMA to make undertaking an arbitration award; Effect of an arbitration award section 143 of LRA. 20

21 Section 69 compliance orders Inspector may issue compliance order in terms of BCEA, NMWA and UIA; Employer must comply with order unless employer refers a dispute to the CCMA within the compliance period; Noncompliance with order Director General to the CCMA for order to be made an award; CCMA may issue award requiring employer to comply if satisfied that compliance order was served and employer has not referred a dispute. 21

22 Section 70 - limitations Inspector may not issue compliance order for an amount owing in terms of the BCEA or NMWA if: - Employee earns above earnings threshold. - Steps have already been taken to recover the money (CCMA or court) - Has been outstanding for more than 36 months.

23 Section 73A claims for failure to pay any amount Nonpayment of any benefit in terms of BCEA, NMWA, a contract of employment, sectoral determination, collective agreement may be referred to the CCMA; Only applicable to employees earning below the earnings threshold; Employees earning above the earnings threshold may institute a claim at the Labour Court, High Court or subject to jurisdiction of Magistrate s Court or Small Claims Court (R15k); CCMA to appoint commissioner to resolve dispute conciliation followed by arbitration must be con/arb. 23

24 Section 75 payment of interest Provides for the payment of interest on any amount due and payable in terms of the BCEA or NMWA; Rate of interest prescribed in terms of Section 1 of the Prescribed Rate of Interest Act,

25 Section 76A fine for noncompliance with NMWA Fine for paying an employee less than national minimum wage: Twice the value of underpayment, or; Twice employee s monthly wage whichever is the greater. Second or further noncompliance's thrice the value of underpayment or thrice the employee s monthly wage; Department of Labour to maintain and publish on its official website, quarterly basis, blacklist. 25

26 Regulations published: - New BCEA 1A - Written undertaking and compliance order.

27 Labour Law Amendment Act

28 Definitions Prospective Adoptive Parent means a person who complies with the requirements set out in The Children's Act of 2005: Fit and proper to be entrusted with full parental responsibilities; Willing and able to undertake exercise and maintain those responsibilities; Must be over the age of 18 years; Properly assessed by an adoption social worker. Adoptive Parent means a person who has adopted a child in terms of any law. 28

29 Section 25A parental leave Employee that is the parent of a child entitled to at least ten consecutive days parental leave; May commence on day the employee s child is born, or date on which adoption order is granted, or when the child is placed in the care of prospective adoptive parent by a competent court; Employee must notify employer in writing of the date such leave is to commence and when the employee will return to work; Such notice must be given one month before the child is expected to be born or the date the adoption order is granted, or child is placed in care of prospective adoptive parent; Payment will be determined by Minister of Labour in terms of Unemployment Insurance Act; 66% of earnings subject to maximum income threshold contributor will not be entitled to benefits unless in employment for at least thirteen weeks before application for parental benefits. 29

30 Section 25B adoption leave Adoptive parent of child below the age of two is entitled to adoption leave of at least ten weeks consecutively, or; The parental leave as per previous slide; Adoption leave may commence on date adoption order is granted or child is placed in care of prospective adoptive parent by a competent court; Employee must notify employer in writing of date leave is to commence and end; Notification of one month is required; Payment will be determined by Minister of Labour in terms of Unemployment Insurance Act; If adoption order is made in respect of two adoptive parents, one may apply for adoption leave and the other for parental leave. 30

31 Section 25C commissioning parental leave Commissioning parent means a person who enters into a surrogate motherhood agreement with a surrogate mother; Surrogate motherhood agreement means surrogate mother artificially fertilized, to bear a child for commissioning parent; An employee that is a commissioning parent in a surrogate motherhood arrangement is entitled to: Commissioning parental leave of at least ten weeks consecutively, or; Parental leave as per previous slides. Leave may commence on date child is born; Employee must notify employer in writing of commencement and end dates - one month notice is required; Payment will be determined by the Minister of Labour in terms of the Unemployment Insurance Act; If surrogate motherhood arrangement has two commissioning parents, one entitled to commissioning parental leave, the other to parental leave. 31

32 Section 27 repealed Employees no longer entitled to three days family responsibility leave when child is born. 32

33 Section 49 variation by agreement A collective agreement may not reduce the ten days entitlement as per sections 25A, 25B and 25C. BC Agreements? 33

34 National Minimum Wage Act

35 Purpose of the act To improve wages of lowest paid workers; Protect workers from low wages; Preserve the value of the national minimum wage; Promote collective bargaining; Support economic policy. Act applies to all workers, employees and employers except volunteers, SANDF (South African National Defense Force), NIA (National Intelligence Agency) and SASS (South African Secret Service). 35

36 Section 4 national minimum wage Minimum wage to be adjusted annually; Commission within eighteen months to review national minimum wage (Minister/NEDLAC appoint chairperson and three independent experts plus three members nominated by organized business, community and labour); National minimum wage for workers in extended public works program to be increased proportionally to any adjustment in NMW; No worker may be paid less than minimum wage; National minimum wage cannot be waived, takes precedence over contrary provision in contract/collective agreement/sectoral determination or law; National minimum wage must constitute term of workers contract except where more favorable wage is applicable; Unfair Labour Practice to unilaterally alter wages, hours of work or other conditions of employment due to NMWA; Sections 32, 33 and 34 of the BCEA (payment of remuneration, pay slip, deductions). 36

37 Section 5 calculation of wage Calculation of wage is amount payable in money for ordinary hours of work, excludes: Payments to enable worker to work (transport, equipment, tool, food or accommodation allowance); Payment in kind; Gratuities (bonuses, tips or gifts); Any other prescribed category of payment. Worker is entitled to NMW for number of hours worked on any day minimum four hours; If worker paid on basis other than number of hours worked, worker may not be paid less than NMW for the ordinary hours of work (commission earners). 37

38 Section 15 exemptions Employer or employers organization may apply for exemption from paying NMW; Exemption granted: Must specify period (not more than a year); Specify wage to be paid; Other relevant information. Regulations pertaining to exemption applications have been published. 38

39 Schedule One National minimum wage is R20 per ordinary hour worked; Farm workers R18 per hour; Domestic workers R15 per hour; Expanded public workers expanded public works program - R11 per hour; Learnership agreements (Section 17 of Skills Development Act) as per Schedule Two of the act (R R for minimum allowance per week). 39

40 CCMA Rules 2019

41 Purpose of the amendments Legislative compliance in terms of Section 115(1)(E) of the LRA review rules every second year; Alignment with developments in courts; Address gaps in existing rules. 41

42 Legal documents considered National Minimum Wage Act; Basic Conditions of Employment Amendments; Labour Relations Amendment; Code of good practice Collective Bargaining; Labour Court rules; Uniform Court rules; Regulations to the LRA; Recent judgements from various courts. 42

43 Rule 1: How to contact the Commission recognized method of service. Rule 2: When are the offices of the CCMA open Service through fax and any time and day of the week, not subject to sub-rule one. Rule 5: How to serve documents on other parties Method of service set out in rule 5 not applicable to service of subpoenas. Rule 7: How to file documents with the Commission May no longer be filed through the Department of Labour s fax and postal addresses; Direct fax or snail mail (post) to CCMA; Failure to file original document as directed may not rely on document, unless otherwise directed. 43

44 Rule 11: When must the Commission notify parties of conciliation Shortened notice period provided for conciliation in matters of mutual interest, Section 189A(8) disputes seven days; Allow sufficient time to deal with complex nature of such disputes; Allow sufficient time for development of picketing rules. 44

45 Rule 13: What happens if a party fails to attend conciliation It applies whether or not a party refers a dispute directly or through representative; Not in default if representative is present; If other party not present certificate issued. Rule 14: How to determine whether a Commissioner may conciliate Jurisdictional issues requiring evidence may be dealt with at conciliation (in limine); Option to defer jurisdictional issue requiring evidence to arbitration has been removed. 45

46 Rule 14A (new): Extension of conciliation period S135(2A) Allows for and sets out procedure for extension of conciliation process; Application by either parties or conciliating commissioner; Application to be made before expiry of conciliation period (30 days); Director to respond within 48 hours of receipt. Rule 16: Conciliation proceedings may not be disclosed In line with jurisprudence arbitrating commissioner may order witness to testify about what transpired during conciliation, includes conciliating commissioner; 46

47 Rule 17: Conduct of CON/ARB in terms of Section 191(5A) CON/ARB mandatory disputes referred in terms of BCEA Section 69(5) and 73A of BCEA (objection to compliance orders, disputes relating to monies owed); CON/ARB to be finalized as one event; Non-mandatory CON/ARB conciliation to continue whether or not there is an objection; Mandatory CON/ARB or no objection commissioner to commence with arbitration immediately after conciliation; Commissioner that commenced arbitration, may adjourn proceedings to a later date. 47

48 Rule 20: When the parties must hold a pre-arbitration conference Pre-arb minutes must be filed at least seven days before the date of hearing (not within seven days after the pre-arb); Ensure that pre-arbs are convened timeously and commissioner given time to consider outcomes; Non-compliance with rule 20 commissioner may proceed with arbitration, but consider non-compliance in terms of costs at conclusion of the hearing; Parties must hold pre-arb conference: If both parties are represented by a trade union, employer s organization, legal practitioner and/or candidate attorney; Both parties agree to pre-trial conference; Directed so by Convening Senior Commissioner. 48

49 Rule 25: Representation before the Commission Legal representation in BCEA related matters only by application; DoL may be represented in any of the processes by employees / officials; Candidate attorneys may represent parties; In line with jurisprudence any other person other than those provided for in rule 25, may apply to represent a party at arbitration; Such a person may not charge a fee for representation; Commissioner may grant permission after considering the following factors: Whether it is unreasonable to expect applicant to deal with dispute without representation after considering the complexity thereof, questions of law, comparative abilities; Reasons for being unable to be represented by authorized individuals in terms of rule 25, including affordability; The ability of proposed representative to meaningfully represent the applicant; Whether proposed representative is subject to oversight and discipline of professional or statutory body; Whether proposed representative will contribute to the fairness of the proceedings and expeditious resolution of dispute; Prejudice to the other party; Any other relevant factors. 49

50 Rule 25: Representation before the Commission Facilitation large scale retrenchments no legal representation Dismissal for misconduct / incapacity legal representation not an automatic right 50

51 Rule 26: How to join or substitute parties to proceedings Expand the requirements for joinder in line with court rules; The right of the referring party to relief depends on substantially the same question of law or fact: If dispute was to be referred separately against person sought to be joined, would give rise to a separate claim; The party to be joined has substantial interest in the matter, or Party to be joined may be directly impacted or prejudicially effected by outcome. Rule 28: When the Commission may consolidate disputes Where relief sought in terms of separate disputes depends on similar or substantially the same questions of law and fact; No substantial prejudice on party/parties sought to be joined through consolidation order; Balance of convenience favors such consolidation; CCMA has jurisdiction on all disputes sought to be consolidated; 51

52 Rule 29: Disclosure of documents Provides for a prior request for disclosure of documents and filing of bundles; Requests may be made at any time after LRA 7.13, but not less than 14 days prior to arbitration; Party that must disclose, must comply within 5 days from receipt of request; Disclosure of documents may still be ordered by Commissioner any time before conclusion of proceedings on own accord or on application; Parties may still voluntarily disclose documents. 52

53 Rule 31A(new): How to apply for picketing rules or related disputes Sets out procedures relating to picketing rules or disputes; To be dealt with on an urgent basis; Rules applicable applies to: Applications for picketing rules; Disputes relating to application or interpretation of picketing agreement or rules; Disputes relating to any issue concerning picketing; Application must be done through filing of LRA 7.11 and annexure A; CCMA to set down application within 48 hours of receipt, unless parties otherwise agreed. 53

54 Rule 31B(new): How to apply for enforcement of written undertakings and/or compliance orders Outlines procedures for new CCMA jurisdiction in terms of BCEA (undertakings, compliance orders); Requests for undertakings/orders to be made arbitration awards by application; Application in prescribed form; Service to all relevant parties; Supporting documents must be attached; Employer may object within 5 days from date of application applicant to reply within 3 days; CCMA to allocate Commissioner upon receipt of reply, or 3 day period has lapsed; 54

55 Rule 33(6 Clarity): How to apply to refer a dismissal dispute to the Labour Court Party that applied must initiate the referral after receiving Director s approval; In line with Rule 11 of Labour Court. Rule 35: Condonation for failure to comply with the rules and form Condonation with non-compliance in terms of Rule 25 is specifically excluded. 55

56 Rule 37: How to have a subpoena issued and served Sets out requirements for service of subpoena; Must be served at least 7 days prior to arbitration date: Delivering a copy to the person subpoenaed personally; Registered post to residential address, place of business or employment, or post office box or private bag number; Leaving a copy at place of residence, business or employment with a person who apparently is at least 16 years of age and is residing or employed there. Rule 5 not applicable to service of subpoenas ( , fax). Rule 39: Order of costs in an arbitration Individual applicants appearing in person eligible for cost order limited to disbursements; Increase in cost orders for legal practitioners: First day of arbitration R7000 (VAT inclusive); Each additional day R4700 (VAT inclusive); Candidate legal practitioner 50% of above; Cost orders no longer subject to taxation; Disputes relating to cost orders to be referred to Labour Court, no longer CCMA. 56

57 Rule 40: Certification and enforcement of awards Introduces empowering provision for the Sheriff and/or CCMA to collect interest on monies owed and enforcement costs from employers / employees; Enforcement of award by Sheriff must include: Amount order to be paid in terms of award; Award of costs; Arbitration fee; Interest on the amount set out in the award; Sheriff s costs permitted in terms of Magistrate s Court Tariff for Sheriffs If CCMA financially assisted the party in whose favor the award was granted, in the enforcement or execution thereof CCMA may recover such costs with interest directly from defaulting party. 57

58 Rule 40A (new): Payment of an arbitration fee in terms of Section 140 Commissioner having found dismissal was procedurally unfair, may order payment for arbitration in terms of Section 140(1) of the Act; Employer must pay within 14 days after receipt of order; May be paid by bank guaranteed cheque delivered to any of the CCMA offices, or EFT. R2895 R6568 Rule 41: Definitions Inclusion of candidate legal practitioner in the definition of legal practitioner.

59 Code of Good Practice: Collective Bargaining, Industrial Action and Picketing

60 Intention and interpretation To provide practical guidance on collective bargaining, resolution of disputes of mutual interest; Any person interpreting the LRA must take this code into account; Interpretation of the code always subject to the decisions of courts. 60

61 Context Violence during strikes and lockouts requires serious measures to prevent such; Introduce behavioral change in way employees, employers, SAPS and private security engage; The role and conduct of SAPS and private security services during strikes clarified; The measures must promote orderly and effective collective bargaining; Must include measures to proactively and constructively resolve disputes prior to industrial action. 61

62 Purpose To strengthen and promote orderly collective bargaining by Promoting trust and mutual understanding; Constructive engagement; Maximum involvement of workers in negotiations. Promote proactive, effective, constructive and speedy resolution; Promote peaceful resort to a strike, free of intimidation and violence; Promote steps to avoid or prevent prolonged or violent strikes. 62

63 Collective bargaining and disputes of mutual interest Code recognizes collective bargaining is a voluntary process; Code recognizes that there is no constitutional or statutory duty to bargain. 63

64 Fundamental commitments Measures to ensure competence of negotiators; Adhere to principles of good faith bargaining; Violence, intimidation, damage to property, use of dangerous weapons during collective bargaining and industrial action must be condemned and not tolerated in the workplace / picket lines; Parties commit to prioritize and deal with violence during bargaining and industrial action; Dangerous weapon any object that could be used to injure or threaten a person or damage property; In the context of a picket, if there is no justifiable use for the possession or display of such object. 64

65 Promotion of collective bargaining In terms of ILO Convention 98 on collective bargaining governments to take measures to promote voluntary negotiation between employers and employees; The LRA promotes collective bargaining by Collective bargaining at sectoral level / bargaining councils; Collective bargaining in single and multi employer workplaces; Organizational rights in the workplace. 65

66 Principles of good faith bargaining Good faith bargaining / mutual respect; Disclosure of information; All demands / responses must be in writing; New demand may not be introduced during negotiations unless to secure settlement and only with agreement of the other party; Employer not to unilaterally alter employment conditions during negotiations prior to deadlock being reached: No industrial action: If collectively agreed dispute resolution procedure, or; Before 30 (thirty) days lapsed after referral to the CCMA or bargaining council, or; Certificate of non-resolution issued. 66

67 Principles of good faith bargaining - continued Disruptive or abusive behavior must be avoided; Parties not to frustrate the process; Parties must be flexible in their demands and responses; Negotiators, as far as possible, to remain the same: Responses must be presented accurately to employees; Employer not to bypass recognized trade union, only deal with employees directly after deadlock or reasonable period for union to meet with employees after deadlock in terms of matters that are subject to negotiations; Parties to consider escalating negotiations to higher level of management / union office bearers to avoid deadlock; 67

68 Development and support for negotiators Employers / trade unions to develop competent negotiators establishing training courses by recognized training institutions; Specific individuals to be identified for training as negotiators; Employer to grant reasonable paid time off for such individuals to be trained; Negotiators of employers / trade unions to regularly attend training courses using the same training material. 68

69 Preparation for negotiations Proper research economy / sector / ability of employer / impact on business / impact on health, safety, welfare of employees; Establish whether there is a need for disclosure of information, obtain advice from labor market experts / settlement rates generally and specific to the sector; Consider reconfiguration of demand by linking increases to productivity or illuminating vertical inequality by agreeing to longer term agreements; Sense of realism on part of members must be ensured information / responses must be conveyed to members for mandate; Formally appoint negotiators ensure that they participate in preparation for negotiations; Parties to be informed of names of negotiators in advance; 69

70 Submission of demands and responses Demands and responses to be communicated in writing, in good time; Must be clear and concise; Proposed timetable for negotiations; Alternative dates and times for pre-negotiation meetings; The names and details of appointed negotiators; Responses may include demands. 70

71 Commencement of negotiations Parties to consider pre-negotiation meetings to Agree to timeline; Decide whether facilitator to be appointed; To consider requests for disclosure of information; Commit to a good faith declaration (model declaration schedule A of the code). At first meeting parties to present full motivation for demands and responses; Consideration should be given to appoint facilitator if dispute is declared or industrial action commences. 71

72 Workplace, democracy and dialogue Develop a culture of mutual respect and trust between those that manage and those that work; Consult with employees in decision making process, other than those pertaining to collective bargaining. 72

73 Measures to promote employee participation and dialogue in the workplace Recognize employee representatives or shop stewards; Grant reasonable access to facilities to trade union officials; Promote employee participation in consultative forums: Health and safety; Employment equity; Skills development forums; Workplace forums. Consultative forums not to undermine collective bargaining; Clear distinction between matters of mutual interest and matters for consultation only; The differences between the aforementioned to be clearly explained; 73

74 Industrial action: strikes and lockouts The right to collectively bargain, strike and lockout is constitutionally protected; Right to strike/lockout equals right to cause economic harm; Prolonged, violent strikes have serious detrimental effect on: Strikers; Families; Small businesses; Communities; Employer; Economy. Employers and employees must recognize each other s constitutional rights. 74

75 Disputes in respect of which industrial action may be exercised Act distinguishes between three kinds of disputes: Disputes of rights; Disputes of mutual interest; Disputes involving socioeconomic interests. Two exemptions to above: Organizational rights; Section 189A. Not all mutual interest disputes may lead to protected industrial action: Parties in breach of peace clause collective agreement; Parties agreed to arbitration; Unlawful demand. 75

76 Strike notice Strike notice must be in writing 48 hours after certificate / 30 days; Notice must indicate date, time and demands (demands may not be different); Notice does not have to indicate which employees in which divisions; If strike/lockout does not commence on date stated in notice should issue further notice stating date and time; Failure to issue further notice may lead to inference, abandoned right to strike/lockout. 76

77 Who may strike Any employee, including non-union employees: Essential service workers excluded; Maintenance service workers excluded. If service declared Essential Service parties may agree on minimum services to be rendered during protected industrial action; If no agreement, ESC to determine minimum services. 77

78 Strikes/lockouts in respect of employee residing on employer premises Such employees entitled to exercise fundamental rights freedom of association, including in living quarters; During protected and peaceful strike at the request of employee, employer not to discontinue payment in kind in respect of accommodation, food, basic amenities; Employer may recover such payments from employee s wages; Freedom of association employees residing at the workplace means: The right to strike/not strike; Participate/not participate in response to lockout notice; To work/not work; Not be intimidated, threatened when entering workplace, commuting and in living quarters. 78

79 Strikes/lockouts in respect of employee residing on employer premises - continued Every employee must respect the right of freedom of movement: The right of management to enter and exit; The right of non-striking workers to enter and exit; The right of third parties to enter and exit; Employer s right to continue and maintain production; The right of the employer to continue with it s business. Parties must take reasonable steps to ensure members comply. 79

80 Picketing Only where agreement is in place or rules established by Commission and in support of protected industrial action; Picket must be authorized by a registered trade union; Only members and supporters may participate; To be peacefully demonstrate; May be held in public place outside employer s premises, with permission inside; CCMA may grant permission if employer unreasonably refuses access to workplace; Copy of the resolution authorizing picket ought to be served on employer before picket; Picket may be in response to protected and unprotected lockout. 80

81 Agreed picketing rules The nature of authorization and service on employer; Notice of commencement, place, time and extent of picket; Nature of the conduct in picket; Number of picketers and location; Communication between marshals' and employers; Picket on employer s premises; Default Picketing Rules must be considered; Parties may request assistance from CCMA; Picketing rules must be displayed and distributed to members. 81

82 Conduct during picket Trade union must appoint conveners and marshals to monitor and control; Picketers may: Carry plaque cards Chant slogans; Sing and dance. Picketers may not: Forcefully prevent or intimidate suppliers, clients, customers, members of public, employees that are not striking, replacement labour from entering or leaving; Intimidate, threaten, assault or damage property; Incite violence; Wear masks; Have dangerous weapons or objects in their possession. 82

83 The role of the police Not to take view of merits of strike or lockout; No responsibility to enforce picketing rules; To uphold the law and keep the peace; May only intervene: Dangerous weapons or items; Committed or threatened to commit assault or damage to property; Intimidates or threatens any person entering or leaving; Unlawfully prevents employer or any other person from conducting their business or working; Blocks access; Break into or enter employer premises; Threaten or commits acts of public violence; Any action prohibited by a court order. Police should adopt non-threatening presence; Use minimal force; First attempt non-violent means to diffuse. 83

84 The role of private security Protect property of employer; Ensure safety of persons on the property; May not intervene in strike or picket, enforce the Act or picketing rules; May arrest in terms of Section 42 of the Criminal Procedures Act (Schedule 1 offense); Must be a registered security service provider; Must be adequately equipped to deal with Crowd Management; Must be familiar with the requirements of this Code. 84

85 General rights, obligations and immunity Participants in protected industrial action does not commit misconduct; Employer can therefore not sue employee or union for damages (loss of production); Employer may however sue for damage to property; Employer may discipline for misconduct committed during protected strike; Employer may discipline for participation in unprotected industrial action; Employer may discipline for participation in unlawful picketing. 85

86 Guidelines on balloting for strikes or lockouts

87 Introduction In terms of Section 95(5)(P) of the LRA, constitution of union must provide for a ballot before a strike or lockout; In terms of Section 95(5)(9) of the LRA, provides that ballot can be any system of voting as long as it is recorded and done in secret; Ballot may be conducted at the employer s premises, subject to Section 12 of the LRA; In terms of Section 19 of the LRA, automatic rights in terms of Section 12; No organizational rights, union may request permission to conduct ballot in workplace; Unless in a collective agreement, no requirement for employer to consent to ballot 87

88 Procedures to be followed - notice Reasonable notice to members of the ballot (SMS, notices three days) Notice must specify time and place of the ballot. 88

89 Procedures to be followed ballot papers The question that is the subject of ballot must be clearly phrased; The question must be consistent with the terms of the dispute referral; Ballot papers must be prepared in accordance with union s constitution Ballot may not contain information that would make it possible to identify voter. 89

90 Procedures to be followed voters role Ballot must be conducted in terms of a voters role members in good standing; May be derived from either union or employer s records; Measures to ensure only one vote per member; Electronic ballot by or SMS voters role must reflect addresses or mobile telephone numbers of members must be scrutinized and conducted by the CCMA or any independent organization; CCMA must keep records of balloting for three months, thereafter to union for three years; Postal ballot voters role must reflect postal addresses CCMA or independent organization to keep postal ballots for three months, thereafter to union for three years. 90

91 Procedures to be followed scrutinizers and observers Union may employ independent scrutinizers to conduct/observe ballot. No obligation to do so unless in collective agreement or trade union s constitution; No requirement on trade union to commit employer observers unless in collective agreement. 91

92 Procedures to be followed balloting and counting Union must provide ballot boxes for secret ballot; Members must be able to mark it in secret and place in unmarked ballot box; May be counted at voting place, union office or other place determined by independent scrutineer; If boxes are transported must be sealed. 92

93 Procedures to be followed records of ballot Records of voting must be retained for three years, including voters role, ballots in sealed ballot boxes and any other documents used to circulate the outcome of the ballot. 93

94 Transitional provisions Registrar of Labour Relations must within 180 days consult with unions and employers organizations where constitutions do not provide for secret ballot before strike or lockout; Issue directive stipulating period within which constitutions must be amended; Until such time union/employers organization comply, it must conduct secret ballot before strike or lockout; Model clause for constitution provided. POSITIVE? WILL IT WORK? SECTION 67(7) 94