Home

The extension of the employer’s right to engage in a lock out against employees who are not participating in a strike

By Bradley Workman Davies, Director and Kerry Badal, Associate, Werksmans Attorneys

 

Summary

Section 64 of the Labour Relations Act, 66 of 1995 (“LRA”), confers upon an employer the right to ‘lock out’.

 

The right to lock out may be utilised by the employer in an offensive or a defensive manner. In the case of offensive lock outs, the employer elects, of its own accord, to lock employees out in response to a dispute of mutual interest in accordance with the procedure set out in section 64(1) of the LRA. On the other hand, a defensive lock out occurs when an employer effects a lock out in response to a strike engaged in by its employees.

 

Court’s decision

In the case of PUTCO Proprietary Limited v Transport and Allied Workers Union of South Africa and others (JA106/13) [2015] ZALAC 14 (5 May 2015) (“the PUTCO case”), the Labour Appeal Court (“LAC”) pronounced upon the issue of whether an employer has the right to institute a lock out against all its employees in the relevant bargaining unit, including those employees who do not intend to strike and who are not a direct party to the negotiations regarding the dispute of mutual interest which gave rise to the strike and/or lock out.

 

The PUTCO case was an appeal against the decision taken by the Labour Court to interdict the appellant (“PUTCO”), from continuing with a lock out in respect of the first respondent’s (“TAWUSA”) employees. Two other unions (SATAWU and TOWU) had declared a dispute of mutual interest against PUTCO and intended on embarking on a strike in respect of such dispute. TAWUSA was not a party to this dispute. In response to the impending strike, PUTCO notified all three trade unions that it intended to engage in an offensive lock out of all the employees in the bargaining unit. TAWUSA argued that PUTCO had no right to lock out its members as its members were not participating in the strike.

 

Though TAWUSA was not a party to the relevant bargaining council structure under the auspices of which wage negotiations were underway and which gave rise to the dispute of mutual interest, the outcome of the collective bargaining process would have had an effect on TAWUSA given that the collective agreement concluded in the bargaining council structure would be extended to non-parties in the industry. As such, the matter of mutual interest would impact on the terms and conditions, and wages of the members of TAWUSA.

 

The LAC in the PUTCO case accepted that an employer in a mutual interest dispute can lock out non-striking employees who are members of TAWUSA (a non-party union) in order to compel them to accept the employer’s demand.

 

Importance of this case

An employer may lock out non-striking employees in a dispute of mutual interest as a means of placing additional pressure on striking employees and trade unions. This right will bolster the employer’s bargaining power. Were it not for the right of the employer to lock out non‑striking employees, an employer may experience economic loss occasioned by the employer having to remunerate the portion of its workforce that is not participating in a strike but who may at any stage join the strike to the detriment of the employer and who will also benefit from the outcome of the collective bargaining engaged in by the striking employees.

 

For more information please contact Bradley Workman Davies at [email protected] or Kerry Badal at [email protected]

Article published with the kind courtesy of Werksmans Attorneys www.werksmans.com   

 

 

 

 

What does POPI compliance mean?

By Jan du Toit

 

Latest developments – Registration of Information Officers:

 

On 17 May 2021 the Information Regulator’s long awaited online portal went live for the registration of Information and Deputy Information Officers.

 

The Information Officer of a Responsible Party is the person at the head of your company (CEO or MD) or any person acting in such capacity, or specifically appointed by the MD or CEO to be the Information Officer. Registration must be completed before the end for June 2021.

 

The address for the portal is  https://justice.gov.za/inforeg/portal.html   

 

The following information is required to successfully register: 

  • Company name.

  • Company registration number.

  • Company type.

  • Company physical and postal addresses.

  • Company telephone and fax numbers.

  • Information Officer gender, nationality, full name and surname, ID or passport number.

  • Deputy Information Officers same details as per above.

 

POPIA Compliance – what must be done?

With a little more than a month left before POPI becomes fully effective, many employers may find themselves out of time to become fully compliant to amongst other considerations, the 8 processing conditions prescribed in the Protection of Personal Information Act.

 

To be considered compliant the following must be considered and applied in the business of a Responsible Party before 1 July 2021. 

  1. POPI training / awareness sessions for the CEO / MD, managers and others tasked with the company’s POPI compliance project. Have a look on our website for the next POPIA training dates.

  2. Compliance audit to be conducted company-wide per department / division to determine the current processing practices within the organization and to establish what needs to be done to be compliant.

  3. Correction of contraventions as identified, and to introduce reasonable technical and organizational measures to prevent the loss or unauthorized access of Personal Information.

  4. Introduction of Data Subject rights and consent in the business through policies and consent clauses / paragraphs / contracts.

  5. The introduction of a PAIA manual (Promotion of Access to Information Act) that incorporates data subject rights and participation in terms of POPIA. This manual must be published on one of the company’s websites. It is also important to note that the current exemption granted by the Minister of Justice for some business to not have such a manual in place currently, expires at the end of June 2021.

  6. General staff POPI policy and legislation awareness training.

  7. Registration of the company’s Information Officer (the CEO, MD or any person acting in such position).

  8. Follow-up assessment on compliance measures and adherence thereto.

 

It is important to note that no institution, not even the Information Regulator, can “accredit” any Responsible Party in South Africa to be compliant in terms of legislation. Compliance (or otherwise) will only be determined should an investigation be launched by the Information Regulator following a complaint. Should such an investigation confirm a lack of compliance, consequences such an administrative fine not exceeding R10m may follow (which one may luckily pay off in instalments). Further to this those whose rights are infringed upon by a Responsible Party not adhering to the requirements of POPIA, may also institute civil proceedings. Such  proceedings may result in compensation being awarded for loss, as well as aggravated damages determined at the discretion of the court.

 

In terms of section 19 of the Act, the Responsible Party (business owner / employer) is required to introduce reasonable organizational and technical measures to secure the integrity and confidentiality of Personal Information. The organizational measures referred  to above includes inter alia both internal and external policies to introduce the principle of protection of personal information in the workplace, as well as the rights of data subjects.

 

To allow you more time to focus on your business, the author of this article compiled a bundle of detailed policies for your business, ready to use. This includes all relevant forms to be used and a template document with draft consent clauses / paragraphs / rules  to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages, and Independent Contractor agreements.

 

Also included is an Operator Agreement as required in terms of section 21 of the Act and a consent letter for existing clients / service providers, to agree to the continued processing of their Personal Information beyond June 2021.

 

The policies bundle includes: 

  • Privacy notice template to be published on your website.

  • Personal information protection policy.

  • Personal information retention policy.

  • Data breach policy.

  • Data breach register - form.

  • Data breach report - form.

  • Data security policy.

  • Data subject access request policy and procedures.

  • Data subject access request forms.

  • Processing agreement with third parties as Operators - contract.

  • Data subject participation - draft consent paragraphs / clauses to be incorporated into service and employment contracts, job applications, credit and other applications forms, WhatsApp and Facebook groups / pages and Independent Contractor agreements

  • Guidelines on the appointment of deputy information officers, inclusive of appointment letter.

 

For only R3750 you can now order you set of POPI policies, ready to use. Contact Jan du Toit for further assistance at [email protected]

 

 

 

 

 

 

 

 

Courses and Workshops

 

                   

Strategic Human Resources Management (HRM) and - Business Partnering

27, 28 & 29 October 2021 (08:30 - 16:00)

Interactive Online Course

Employment Equity Committee Training

27 October 2021 (09:00 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

28 October 2021 (08:30 - 16:00)

Interactive Online Course

Managing Day to Day Issues/ Problem Employees Full day workshop

28 October 2021 (09:00 - 16:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

29 October 2021 (09:00 - 12:00) (Fully Booked)

Interactive Online Course

19 November 2021 (09:00 - 12:00)

Interactive Online Course

Management and Leadership Skills

10, 11 & 12 November 2021 (08:30 - 16:00)

Interactive Online Course

Basic Labour Relations

12 November 2021 (09:00 - 16:00)

Interactive Online Course

The OHS Act and the Responsibilities of Management

18 November 2021 (08:30 – 16:00)

Interactive Online Course

AARTO and the Impact on Your Business

19 November 2021 (09:00 - 12:00)

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

25 November 2021 (08:30 - 16:00)

Interactive Online Course

POPIA: Protection of Personal Information Act

26 November 2021 (09:00 - 12:00)

Interactive Online Course

 

 Our Clients 

 

Android App On Google Play

Android App On Google Play