The retailer Dis-Chem has made headlines with a worker strike that resulted in the Labour Court barring union members from picketing and protesting outside the retailer’s stores until 27 February 2019. This ruling made a statement on the transformation of collective bargaining in South Africa.
Labour laws in practice
The right to picket can be traced back to Section 17 of South Africa’s Constitution (1996) which provides that everybody (strikers and their supporters) has the right to collect, demonstrate, picket and present petitions in a non-violent, unarmed manner. The purpose of a picket is to “peacefully encourage non-striking employees and members of the public to oppose a lock-out or to support strikers involved in a protected strike, to encourage employees not to work during the strike or lock-out, to discourage replacement labour from working, and to convince members of the public or other employers and their employees not to do business with the employer”.
Section 69 of the Labour Relations Act (LRA) pertains to picketing rules. However, a major stumbling block that employers faced, particularly in the past, was that a protected strike may have been authorised by the Commission for Conciliation, Mediation & Arbitration (CCMA) without the establishment of defined picketing rules. The practical and legal anomaly was that employees were permitted to commence and participate in a protected strike, but the establishment of defined picketing rules would only be introduced at a much later stage, and after much damage and destruction had already ensued.
Due to the violent nature of strikes in South Africa the Labour Relations Act was amended, and included the amendment to Section 69 of the LRA.
The amendments to the LRA envisage that the issue of picketing rules would be addressed during the conciliation process of the wage negotiation and that employers would not be in peril after the conciliation process has been finalised.
Just in time for Dis-Chem
This mentioned amendment come in time for Dis-Chem where their workers participated in lawful strike that started on 16 November 2018, but it was characterised by incidents of violence across the country.
As violent protests by workers surge, the Labour Court in Johannesburg has made an unprecedented ruling that bars Dis-Chem workers from picketing and protesting outside the retail pharmacy’s premises.
The court ordered Dis-Chem employees affiliated to the National Union of Public Service & Allied Workers (Nupsaw) last week to stop wage demonstrations until 27 February 2019, when the parties are due to meet again. Acting Labour Court judge AJ Snyman said the matter is an example of workers flagrantly disregarding the CCMA picketing rules intended to establish peaceful protest. It has become a “common occurrence that where there is a protected strike, violence and unlawful behaviour inevitably follows”, Snyman said. The only way to deal with the problem is to “make consequences happen”.
The Labour Court based their ruling on the amendments to Section 69 that stated that If a party has referred a dispute, the Labour Court may, in addition to any relief contemplated in Section 68(1), grant relief, including urgent interim relief, which is just and equitable in the circumstances and which may include an order—
- [an order] directing any party, to comply with a picketing agreement or rule; or
- [an order] varying the terms of a picketing agreement or rule; or
- suspending a picket at one or more of the locations designated in the collective agreement, agreed rules contemplated in subsection.
It would be interesting to see what unfolds and the reaction of Trade Unions after the mentioned ruling and how the rest of the Labour community will react. However, it is clear that collective bargaining has become more technical in character and far removed from the control and direction of workers as in the past.
ABOUT THE AUTHOR
Hendrik van Niekerk obtained his LLB degree from the University of Pretoria in 2008 and was admitted as an attorney in 2010. Mr. van Niekerk joined SEESA Labour on 1 April 2010 as a legal advisor and was promoted to a senior legal advisor in 2012.