Protracted and destructive strikes vs. public interest

Due to a drastic increase in the levels of violence during industrial action in South Africa, combined with such action typically becoming protracted and destructive, sections 150 A to D were introduced in 2019 (effective 1 January 2019) to amend the Labour Relations Act.

2022/05

By Jan du Toit

In terms of the aforementioned sections of the LRA, the director of the CCMA may be ordered by the Labour Court or the Minister of Labour, to establish an advisory arbitration panel in public interest and to make an advisory arbitration award. Such panel may only be appointed if:

1. the strike or lockout is no longer functional to collective bargaining or where it has continued for a protracted period;

2. where there is an imminent threat to constitutional rights being violated by participants;

3. where the strike or lockout may cause or potentially cause a national or local crisis affecting social and economic functioning.

No party to such proceedings may apply to any court of law to stay or review proceedings of the advisory arbitration panel until the panel has issued its award.

From the three points above one can initially assume that the newly introduced sections of the Labour Relations Act will place public interest above the right to strike or lockout. This is however not the case. The appointment of the panel cannot interfere with the right to strike or lockout.

Such an advisory arbitration panel must consist of a Senior Commissioner as the chairperson with one assessor appointed by the employer party and another by the trade union party. Should either the employer or trade union fail or refuse to appoint an assessor, the director may appoint an assessor from a list of assessors provided by Nedlac.

Should either the employer or the trade union fail or refuse to participate in the advisory arbitration panels' proceedings, the director may appoint a person to represent the interests of such a party that refuses to participate. Arbitration is required to be conducted with minimal formalities and the award is to be issued within seven days of the arbitration hearing.

The award must be issued in the prescribed form and must address factual findings and make recommendations for the resolution of the dispute. It should also motivate as to why the parties should accept the advisory arbitration award and that they have seven days to indicate either exception or rejection of the award. If no consensus is reached between the chairperson and assessors regarding the award, the chairperson will have the final say.

The seven-day period to indicate whether the award is accepted or rejected, may be extended with an additional five days. Should any one of the parties fail to indicate as to whether they accept or reject the award, it will be assumed that the award was accepted by the relevant party. Before the award can be rejected there must be proper consultation with members of either the trade union or employer's organisation and such rejection must be fully motivated.

Within four days after issuing the award, the Minister of Labour must publish the advisory arbitration award for public dissemination. This is presumably to put public pressure on the parties to resolve the dispute.

The advisory arbitration award will only become binding if accepted by one or more of the trade unions or employers’ organizations party to the dispute. Alternatively, if the parties are deemed to have accepted the award by failing to indicate the rejection thereof.

An advisory arbitration award that has been agreed to between the parties, or is assumed to have been accepted by the parties, will have the same standing as a collective agreement in terms of the Labour Relations Act. Should the dispute emanate from a bargaining council level, the Minister of Labour may extend such an advisory arbitration award after acceptance to non-parties.

Although such intervention in public interest and the advisory arbitration process may well assist the parties in finding common ground, should any of the parties to the dispute not accept the advisory arbitration award, it will have no binding effect. Employees will therefore be allowed to continue to strike and employers to lock out employees.

This begs the question as to whether public interest is indeed placed above the right to strike or lockout. Should there for instance be only one trade union party to  the dispute and such trade union rejects the advisory arbitration award, public interest that includes the actual or potential violation of constitutional rights, will again fall back to second place with the right to strike or lockout triumphing.

Jan du Toit is a director at Labour Guide 

This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.