LONG AND VIOLENT STRIKES CRITIQUE ON ADVISORY ARBITRATION

LONG AND VIOLENT STRIKES: CRITIQUE ON ADVISORY ARBITRATION Anton Myburgh SC 5 October 2019

CRITIQUE ON ADVISORY ARBITRATION The right to strike Ø S 23 of the Constitution Ø Substantive limitations in LRA s 65 – cannot strike if: 2 • engaged in essential or maintenance service • collective agreement prohibits strike • issue in dispute is regulated by a collective agreement, arbitration award or wage determination • issue in dispute involves a dispute of right

CRITIQUE ON ADVISORY ARBITRATION Long & violent strikes in mining industry Ø 2012 Marikana massacre at Lonmin Ø 2014 strike in platinum sector Ø 2019 strike at Sibanye Gold 3

CRITIQUE ON ADVISORY ARBITRATION Sibanye Gold strike: unduly protracted Ø 5 months Ø Reported that workers will have to work for 15 years to make up losses Ø Company lost R 19 million per day – R 2 billion in total Ø Dysfunctional strike 4

CRITIQUE ON ADVISORY ARBITRATION Sibanye Gold strike: typically violent Ø 110 incidents of violence Ø 10 deaths (1 every fortnight) Ø 78 homes burnt Ø 15 vehicles damaged Ø 291 employees dismissed 5

CRITIQUE ON ADVISORY ARBITRATION Pandemic of strike violence in SA Ø In a 2012 poll, half of COSATU members surveyed saw violence “as necessary to achieve an acceptable result”. Ø UPN (2016 LC per Van Niekerk J): “It is regrettable that acts of wanton and gratuitous violence appear inevitably to accompany strike action, whether protected or unprotected. A week in the urgent court where employers seek interdicts against strike-related misconduct on a daily basis bears testimony to this. ” 6

CRITIQUE ON ADVISORY ARBITRATION Interdicting protected strikes on account of violence Ø Tsogo Sun (2012 LC per Van Niekerk J) “When the tyranny of the mob displaces the peaceful exercise of economic pressure as the means to the end of the resolution of a labour dispute, one must question whether a strike continues to serve its purpose and thus whether it continues to enjoy protected status. ” 7

CRITIQUE ON ADVISORY ARBITRATION Ø UPN (2016 LC per Van Niekerk J) “While this court will in appropriate circumstances declare an initially protected strike unprotected on account of levels and degrees of violence which seriously undermine the fundamental values of our Constitution, this is not a conclusion that ought lightly to be reached. A conclusion to this effect itself denies the exercise of fundamental labour rights, and as the [CC] pointed out in [Moloto] this court ought not to easily adopt too intrusive an interpretation of the substantive limits on the exercise of the right to strike. ” 8

CRITIQUE ON ADVISORY ARBITRATION Ø Dis-Chem (2019 LC per Snyman AJ) “But I struggle to think of any judge brave enough to actually go down this road. The reason for this is that the limitation of the right to strike is specifically regulated by the LRA itself, in the form of substantive limitations in s 65, and procedural limitations in s 64. It must therefore follow that if it cannot be shown that the conduct or issue in dispute or any aspect relating to the strike falls foul of any of these provisions, then there simply exists no basis upon which to limit the right to strike. And unfortunately, unlawful conduct and violence and intimidation do not resort under any of these limitations. ” 9

CRITIQUE ON ADVISORY ARBITRATION Ø COGP collective bargaining, industrial action & picketing (2018) “Prolonged and violent strikes have a serious detrimental effect on the strikers, the families of the strikers, the small businesses that provide services in the community to those strikers, the employer, the economy and community. Serious measures are needed to induce a behaviour change in the way that trade unions and employers engage with each other in the pre-negotiation, negotiation and industrial action phases of collective bargaining. ” 10

CRITIQUE ON ADVISORY ARBITRATION LRA s 150 A-D: advisory arbitration (wef 1/1/2019) Ø Ø Establishment of an advisory arbitration panel Appointed by CCMA director: • • • 11 on his own accord by agreement between the parties on application of one of the parties if directed by the Minister if ordered by the LC

CRITIQUE ON ADVISORY ARBITRATION Ø Appointed at any time after issue of conciliation certificate or notice of strike / lock-out Ø Appointment of panel does not interrupt or suspend the strike / lock-out Ø Advisory award is issued and parties given 7 days to accept Ø Minister must publish award within 4 days of it being issued Ø S 23 and s 32 applicable to the extension of the award (collective agreement) 12

CRITIQUE ON ADVISORY ARBITRATION Three triggers for appointment of panel Ø “the strike or lockout is no longer functional to collective bargaining in that it has continued for a protracted period of time and no resolution of the dispute appears to be imminent; Ø there is an imminent threat that constitutional rights may be or are being violated by persons participating in or supporting the strike or lockout through the threat or use of violence or the threat of or damage to property; or Ø the strike or lockout causes or has the imminent potential to cause or exacerbate an acute national or local crisis affecting the conditions for the normal social and economic functioning of the community or society. ” 13

CRITIQUE ON ADVISORY ARBITRATION Constitutionally compliant? Ø SAFTU 14 • “The bosses’ propaganda already claims this about every strike! Now their biased point of view will be given legal standing. ” • “The amendment curbs the right to strike. ”

CRITIQUE ON ADVISORY ARBITRATION Constitutionally compliant? Ø An amendment setting the 3 triggers as substantive limitations to the right to strike would probably not have passed constitutional muster Ø Advisory arbitration is a clever middle road Ø But it nevertheless amounts to a soft intrusion on the right to strike (and our voluntarist system of collective bargaining) as unions can be called to account 15

CRITIQUE ON ADVISORY ARBITRATION Constitutionally compliant? Ø Explanatory memorandum “All three circumstances are recognised by the ILO as grounds for intervention by the State. The intervention, in accordance with ILO jurisprudence, is advisory in nature and only binding if agreed or deemed to be agreed to by the parties to the dispute. The appointment of the panel does not interrupt or suspend the right to strike or the recourse to lock-out. ” 16

CRITIQUE ON ADVISORY ARBITRATION Sibanye Gold strike: no appetite for advisory arbitration Ø Theoretically the matter cried out for advisory arbitration Ø Why was neither party interested? 17 • parties were far apart • both had adopted an intransigent approach • there was a bigger agenda • there was inter-union rivalry

CRITIQUE ON ADVISORY ARBITRATION The future of advisory arbitration Ø Could section 150 A become redundant like provisions dealing with workplace forums? Ø It might only be attractive and successful where: 18 • parties have a mature bargaining relationship • parties do not have mixed agendas and are not driven by principle • parties are close to settlement • there are no rival unions

CRITIQUE ON ADVISORY ARBITRATION Questions and comments 19

CRITIQUE ON ADVISORY ARBITRATION Citations and authorities Ø Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union & others (2012) 33 ILJ 998 (LC) Ø National Union of Food Beverage Wine Spirits & Allied Workers & others v Universal Product Network (Pty) Ltd (2016) 37 ILJ 476 (LC) Ø Dis-Chem Pharmacies Ltd v Malema & others (2019) 40 ILJ 855 (LC) Ø Anton Myburgh SC “Interdicting Protected Strikes on Account of Violence” (2018) 39 ILJ 703 20