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Johan Olivier

By Johan Olivier, Partner at Webber Wentzel

In one of its most recent surveys, the Chamber of Mines estimated that the mining industry was responsible for creating approximately 450,000 direct jobs in South Africa. The most recently published Fraser Institutes research also reported that South Africa had Labour Regulations/Employment Agreements and Labour Militancy/Work Disruptions which could act as a relatively high deterrent to investment. One of the key contributors to this figure is likely to be strike actions. In a time where unemployment rates are escalating, the need to ensure growth and stability of the mining industry, including its labour relations, has never been more acute.

Although the right to strike is a sign of a healthy democracy and serves to balance the power of employees and firms through collective bargaining, protracted and/or violent strikes are likely to be a disincentive to potential mining investors. Research published by the Mandela Initiative, suggests that although the frequency of strikes has decreased substantially in South Africa since 2000; it appears that when they do occur, they do more intensely.  This trend has played itself out clearly in the mining industry.

In a bid to address this issue in the mining industry, the National Economic Development and Labour Council (NEDLAC) negotiations of 2016, resulted in the creation of the NEDLAC Accord on collective bargaining and industrial action (the Accord) as well as the Code of Good Practice: collective bargaining, industrial action and picketing.

The parties to the Accord are the Government (including State Institutions like the CCMA and Bargaining Councils), employers’ organisations and trade union federations and their members.  In its broadest terms, these parties have undertaken to ensure that, should violence, intimidation or the threat of harm occur in strikes, they will do everything in their power to ensure that the strike is solved as promptly as possible. The Code details the practical application of the Accord. It will provide guidance on collective bargaining and dispute resolution among others. In terms of their effect, anyone interpreting the Labour Relations Act (LRA) must take the Code into account as well. As things currently stand, however, the trade union federation, SAFTU (of which NUMSA is a member) and the trade union AMCU have not signed the Accord. As such, the full benefit of the Accord and the Code at addressing violence and improving effectiveness of collective bargaining has not yet been felt.

This may, however, be addressed in part by the coming into force of the Labour Relations Act Amendment Bill (Amendment Bill), published in November 2017 and likely to come into force in 2018. The Amendment Bill reflects in part the agreement reached on the employer demands regarding the introduction of legislation to curb violence during the course of a strike. To the extent that these are passed into law, they will be binding on all employers and employees.

Two key ways which the Amendment Bill will curb violence during the course of a strike is through:

  • First, the introduction of an advisory arbitration panel by the Director of the CCMA in prescribed circumstances. An advisory panel will consist of a Senior Commissioner of the CCMA and two assessors, one appointed by the employer party and one by the trade union party.  The arbitration can be conducted in a manner that the Chairperson deems appropriate in order to make an advisory award fairly and quickly. The panel must issue an award within 7 days of the arbitration hearing.  If the Chairperson is unable to secure the agreement of both assessors the Chairperson must issue the award on behalf of the panel. The parties then have 7 days within which to indicate that they accept or reject this award.  Should they accept the award the award will be binding and it could also be extended in terms of sections 23 or 32 of the LRA to non-union members and other parties. The parties are bound by the award and cannot then strike in terms of section 65(3) of the LRA.  A party who rejects the award must motivate the rejection and the Minister of Labour can then publish the award for public dissemination.
  • Second, amendments to picketing rules which envisage that employer and trade unions can enter into collective agreements regulating picketing which not only deal with a particular dispute but will have a more general application in the sense that it can apply to all future strikes and lockouts. Conciliating Commissioners at the CCMA will also be able to address the issue of picketing rules during the course of a conciliation process.  The conciliator will not only seek to conciliate the dispute that gives rise to the strike but also to secure an agreement between the parties on the rules that will apply to any picket.  If the parties cannot agree in a general collective agreement on the picketing rules, the conciliating Commissioner may determine the picketing rules him/herself referring to the Code which provides for default picketing rules. The amendments also provide that no picket may take place unless picketing rules have been agreed to in a collective agreement or the picketing rules have been determined by the Commissioner.  Should any party breach the collective agreement or rules established by the Commissioner, the Labour Court can order the suspension of the picket.  Any party to the agreement may also approach the Labour Court for an interdict if there is a breach of picketing rules. 

Unfortunately, the amendments do not include specific provisions requiring a ballot before strike action is embarked upon as trade union opposition thwarted attempts to include these.

Although there are a number of problems with the way in which the amendments have been drafted, they should nonetheless be welcomed by employers as a positive step towards curbing lengthy and drawn out strikes which may lead to violence. From the employer's perspective, they should now seek advice on incorporating the provisions of the Accord and the Code as well as the amendments to the LRA in their recognition agreements.  The training of negotiators sufficiently skilled to avoid drawn out strikes and disputes should also be supported.  Employers should also look at more creative ways to settle wage disputes before they turn into strikes.

The real sweetener to this positive development would be if we could all work together to get all trade unions to sign the Accord and support the Amendment Bill and the Code.

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