MAIN AGREEMENT NEGOTIATIONS: 2010 Strike Handling Guidelines 2010
MAIN AGREEMENT NEGOTIATIONS: 2010 STRIKE HANDLING GUIDELINES Introduction Members are by now well aware of the dispute which currently exists between RMI/FRA and NUMSA/MISA. As per our previous advices, although both NUMSA and MISA are both in dispute with the RMI/FRA it is only NUMSA who has served the strike notice to commence strike action on 1 September 2010. Members are requested to contact the nearest RMI Office and speak to either the General Manager or IR Specialist in the Region for advise and assistance during industrial action at all times as well as keep abreast of developments by visiting our website at www@rmi.org.za at all times for up to date information. Attached herewith, is a STRIKE HANDLING GUIDELINE FOR YOUR INFORMATION, together with the agreed PICKETING RULES.
MAIN AGREEMENT NEGOTIATIONS: 2010 STRIKE HANDLING GUIDELINES STRIKES As a basic background, one of the objectives of the Labour Relations Act, 1995, is to regulate the right to strike in conformity with the constitution. In regulating this right the following important aspects relating to the definition and status of strikes is important: Strikes are no longer distinguished as being legal or illegal. The LRA now refers to protected or unprotected strikes. NUMSA has given the RMI/FRA 48 hours notice, and the strike at hand constitutes a protected action in terms of the Act. Protected strikers have the right to picket in terms of the Act within clearly defined limits. The Act does not permit an employer to dismiss an employee engaged in a protected strike. This action will constitute an automatically unfair dismissal unless such dismissal is based on serious misconduct or is based on operational grounds. The definition of strike includes the total and partial withdrawal of labour, as well as overtime bans and secondary strikes. Frequently Asked Questions Q: What is a strike? A: A strike is the refusal/retardation to work pursuant to a legitimate demand. The Labour Relations Act defines a strike as follows: Strike means 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 of any matter of mutual interest between employer and employee, and every reference to work in this definition includes overtime work, whether it is voluntary or compulsory. Q: What form can a strike take? A: A strike can take the form of a total, or partial, refusal or retardation of work.
A strike can thus be a complete withdrawal of labour, or can also take the form of a go-slow where employees are at work, but are deliberately working slowly (below their normal production levels) in order to place pressure upon the employer to comply with a demand. The strike can also be continuous, or can take the form of grasshopper action, whereby employees strike for a certain number of days, then return to work, and then resume the strike thereafter. Q: When is a strike protected? A: To be protected, a strike must comply with two principle provisions, namely that the subject matter of the strike is legitimate, and that the proper procedures have been followed. For a lawful strike, the strike must relate to a dispute that is not capable of being adjudicated by either the CCMA or the Labour Court. Accordingly, a party cannot strike on a rights dispute. The dispute must relate to an interest dispute, whereby one party cannot enforce its will on another through operation of law, and must thus resorts to power play. The classic disputes of interest are demands for increase to terms and conditions of employment. To be procedurally fair, the strike must have complied with the relevant procedures in terms of the Labour Relations Act or alternatively, as in this case, it must be compliant with the Bargaining Councils Dispute Resolution processes, which have now been complied with. Q: If there is a strike, is the employer required to pay the employees? A: No. The principle of no work no pay has been established in section 67(3) of the Labour Relations Act. For that reason, an employee is not entitled to receive any remuneration for the duration that such employee is on strike. This principle applies not only to monthly remuneration but also to other benefits entitled to be received during the currency of the strike action. For that reason, and should an employer provide housing or feeding to employees in the ordinary course, the employer is entitled to suspend such services at the commencement of the strike. However, should the employees (or their union) specifically request a continuation thereof, these services should be continued, with the proviso that the employer can deduct, at the end of the strike, the value of the benefits so provided to employees during the currency of the strike.
. Q: What is a work to rule? A: A work to rule can constitute a form of strike, if the work to rule is done in support of a demand. Work to rule implies that the employees provide their services strictly in accordance with the terms and conditions of their employment. They refuse to perform any duties that are not strictly encapsulated within the terms of their agreement, and refuse to work overtime. A work to rule can constitute a type of strike action, if the employees have historically in the past, and as a matter of practice, worked beyond the strict confines of their employment contracts, and have in the past worked additional hours. Q: What is an overtime ban? A: An overtime ban is a form of work to rule, where employees act in concert to refuse to work any voluntary or compulsory overtime. This is also done in support of a demand. Q: Does the settling of one of the issues in dispute settle the strike as a whole? A: No. A union is entitled to strike on individual issues in dispute, or on a basket of issues. Accordingly, and if one of the issues in the basket is resolved, the strike as a whole can continue, until such time as the basket of disputes has been resolved. Q: Does the fact that one of the issues raised by a trade union in its dispute referral is a rights dispute, make the entire underlying strike unlawful? A: No. If within the basket of disputes referred to mediation there is one dispute relating to a dispute of right (e.g. a claim that the dismissal of a particular person was unfair, and that such would be withdrawn) the strike as a whole is not rendered unfair. This is an issue that can be withdrawn from the dispute by the union and if withdrawn, the strike would remain lawful and protected, provided that the other issues in the basket are in fact interest issues, and that the proper procedures have been followed.
Q: If the employees do not commence the strike on the time stipulated in the 48-hour strike notice, have they waived or lost their right to strike? A: No. The Labour Court has held that this would be an overly formalistic and legalistic manner of approaching dynamic industrial relations. Again, the courts have held that the entitlement to strike would be waived only upon proper waiver principles being applied e.g. if the union has indicated that it no longer intends to strike, or if, it can be held that the union has waived its right to commence with strike action through the passing of an extensive period of time. The courts have in fact held that a delay of almost 12 months constitute a waiver of a right to strike. Q: If the strike runs for three days, and is then abandoned without agreement on the issues that formed the subject matter of the strike, can the union re-initiate its strike? A: Yes. Accordingly, it is in the interests of all parties to ensure that, when employees tender to return to work, an agreement has been concluded so that the strike is over. Failing such agreement, the union can thereafter call its members out on strike again, without having to follow the procedure stipulated in section 64 (the waiting of 30 days and a further issue of a 48-hour notice). Q: Once a strike has been called by one union, are members of another union entitled to go out on strike in support of the same issue in dispute? A: It is a well established principle that all the employees of an employer may participate in a strike against that employer once all the procedural requirements (Section 64(1) of the LRA) have been met. It does not matter whether the employees are inside or outside the bargaining unit. It would not matter if the employees work in a different division of the same employer. It would not matter if the strikers were not affected by the outcome of the dispute. A very recent decision of the Labour Court has found that it matters not if some of the strikers are members of a different trade union that is not a party to the dispute. Q: Does the resignation of an employee from a union impact upon the position of the Company? A: No, Section 64(1) of the LRA (as endorsed by the Constitution) provides that every employee has a right to strike. This means that as long as a mutual interest dispute has been referred in compliance with Section
64(1) of the LRA every employee (regardless of union membership) can join the strike unless that employee s participation is limited on another basis in terms of Section 65 of the LRA. Q: Can a trade union discipline its members if they do not support a strike? A: Yes, if the strike was preceded by a ballot, supported by at least a majority vote of the members. Q: Can the employer reward employees for not participating in strike action? A: No. The employer is not entitled to grant no strike bonuses, or rewards to employees who do not strike. Non-striking employees are however entitled to their ordinary terms and conditions of employment, such as remuneration. If these employees, in the ordinary course, are entitled to incentive or production bonuses, such bonuses can continue, provided that they are not more advantageous during the strike. Q: Can the Company give interim increases and await the conclusion of final centralised wage negotiation, as a means of avoiding strike action? A: In law, this may be possible. However, this is not recommended as it undermines centralized bargaining. Q: What steps can an employer take if there is misconduct during the course of a strike? A: Any acts of misconduct during the course of a strike can be dealt with in terms of the ordinary disciplinary code. Accordingly, acts of violence or sabotage can be strictly dealt with if they took place during the course of the strike. This is exacerbated if it is done in support of the strike action, or is geared at intimidating non striking employees. The timing of the disciplinary action is naturally contentious. It is naturally difficult to formally suspend employees during the course of a strike. It is even more difficult to attempt to schedule disciplinary hearings during the course of the strike action, and this is strongly discouraged. The court has ruled that disciplinary action should be taken as soon as possible after the strike has ended.
It is however good industrial relations practice to notify the union as soon as acts of misconduct have taken place and further notify the employee that the Company has noted these acts, and shall take disciplinary action upon the termination of the strike action. The objectives sought to be promoted during strike action are separate and distinct from misconduct that took place during the strike action. As such, discipline should not be used as a power play instrument to obtain a settlement of the issues in dispute. Q: What steps can be taken by an employer if the strike action has the effect of crippling the employer financially? A: Strike action is a form of power play. The intention of strike action is thus to inflict financial damage upon the employer in order to coerce the employer to exceed to the demands put forward by the strikers. In turn, the employer inflicts financial pressure on the employees to ensure that the demands made by employees are reduced. Mere financial inconvenience, or even pain, is thus not sufficient reason to stop a strike. Further, the fact that a strike is no longer functional (e.g. that the demand is not one that the employer can realistically meet) is also not sufficient to render the strike unlawful or unprotected. There are certain remedies however that employers can utilise where dismissals become necessitated through operational requirements during the currency of strike action. The exact steps, and the nuances associated therewith, are however exceptionally complicated, and advice should be sought by any employer prior to embarking upon this action. Q: What is the position if the trade union calling the strike is not the majority trade union at the employer s premises? A: The fact that the trade union calling the strike may not be in the majority does not affect the legality of the strike action. At best, the effectiveness of the strike would be reduced. As recorded above, once a strike has been called by a trade union, all the members of that trade union who are employees of the employer and all other employees (whether unionised or not) are entitled to embark upon legitimate strike action.
Q: What is the position of employees who were, at the time of the protected strike, not members of the union who had called the strike? A: The purpose of the notice of the commencement of a strike is to inform the employer of the time of the strike. The union has no obligation to indicate the number of employees involved, nor does it have to indicate on whose behalf the notice is being given. Once the procedures laid down in Section 64 of the LRA, or in this case, the MIBCO Constitution, have been complied with and the employer knows of the impending strike, the employer is not entitled to anything else: it is not necessary for employees who do not belong to the union or who belong to other unions who are not recognised or who fall outside the bargaining unit to refer their own dispute. PARTIAL TENDER OF SERVICE Instances occur where a strike has been called by the employees, but the employees indicate that they are willing to tender partial, but not complete services. The definition of strike action in the LRA defines a strike to be the partial or complete concerted refusal to work, or the retardation or obstruction of work 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 the tender of a partial tender of services. The employer thus 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. WHERE TO PICKET First and foremost, the issue of where the picket takes place is something that may be agreed on by the employer and the union in the picketing rules. The LRA unequivocally places this responsibility for drawing up picketing rules on the employer and the union. But given the fact that the parties are locked in conflict, reaching consensus on where and how the picket will be conducted may be easier said than done.
If no consensus can be reached, Section 69(4) and (5) of the LRA provides that either the employer or the union may then approach the CCMA for assistance: the CCMA must attempt to secure an agreement between the parties on the picketing rules. The relevant provisions of Section 69 of the Labour Relations Act, 66 of 1995 read as follows: (2) Despite any law regulating the right of assembly, a picket authorised in terms of subsection (1), may be held (a) in any place to which the public has access but outside the premises of an employer; or (b) with the permission of the employer, inside the employer s premises. (3) The permission referred to in subsection (2) (b) may not be unreasonably withheld. (4) If requested to do so by the registered trade union or the employer, the Commission must attempt to secure an agreement between the parties to the dispute on rules that should apply to any picket in relation to that strike or lock-out. (5) If there is no agreement, the Commission must establish picketing rules, and in doing so must take account of- (a) the particular circumstances of the workplace or other premises where it is intended that the right to picket is to be exercised; and (b) any relevant code of good practice. (6) The rules established by the Commission may provide for picketing by employees on their employer s premises if the Commission is satisfied that the employer s permission has been unreasonably witheld. The Labour Court has indicated that the processes described in these provisions are not conciliation and arbitration: the Section 69 procedure commences with a consensus-seeking exercise. Rules can be made only if this process fails, but this rule rule-making is also a flexible process of decision making. It entails a rationale decision being made by a CCMA commissioner, a decision based on relevant and reliable information placed before the commissioner. Evidence may be led to ensure that the information is reliable. The rule-making process flows from the consensus-seeking process and the deliberations during the first process are not automatically confidential or without prejudice. Parties should know that the information disclosed during the first stage of the process may be taken into account to reach a decision in the rule-making stage.
In respect of where the picket should be held, the Labour Court has indicated that the union bears the onus of proving that the employer s refusal to grant permission to picket inside the employers premises is unreasonable. Before a commissioner can make a decision permitting picketing on the employers premises, there must be an enquiry into the reasonableness (and a finding of unreasonableness) of the employer s refusal to permit picketing on its premises. In the interests of all parties concerned, it is suggested that prior to the commencement of a protected strike, a picketing agreement should be reached with the affected union/s. it is in the company s interests that it is not prevented from carrying on its business, and that non striking employees, the production process and customers are not interfered with. It is in the interests of picketing strikers, however, to get as much exposure in terms of support for the strike, as possible. An agreement dealing with picketing at the company should cover: Specific provisions for authorisation, notice and control; What is acceptable behaviour; Numbers of pickets and their location; and Communication between marshals, employers and police. Strikes are by their nature unique and can be highly unpredictable. The time, rate, scale and sequence of events are infinitely variable. It is impossible to develop rigid guidelines for handling these events and there is no replacing the sensitive and sensible judgement of managers actually in the situation. Strikes are fundamentally emotional events. Workers often initiate a strike in a mood of high emotion. This tends to elicit an emotional response from management. A strike is an expression of power; hence the parties act and react under pressure. It is often difficult to retain a rational perspective under these circumstances, and for this reason it is vital that strike guidelines are discussed, adjusted to the company s situation and internalised by management before a strike takes place. Ultimately the objectives in handling a strike are to: Arrive at a settlement acceptable to both the industry/company and the striking employees in the shortest possible time; Restore order in production; Prevent injury to persons and damage to property; Diffuse management/employee tensions; and Emerge from the strike better equipped to handle similar future disputes.