30 March 2012

South Africa: Amendment to Act Will Require Balloting By Unions

The proposed amendment of section 64 of the Labour Relations Act (LRA), re-introduces the requirement of a union to conduct a ballot before commencing with a strike.

Balloting requirements were contained in the repealed Labour Relations Act, 28 of 1956, but these requirements were not retained in the Labour Relations Act, No 66 of 1995 (the current LRA).

"In order for a strike or lock-out to be protected, the trade union or employers' organisation must conduct a ballot of its members in good standing who are entitled to strike or lock-out in respect of the issue in dispute and a majority of the members of that trade union or employers' organisation who voted in that ballot, must have voted in favour of the industrial action," says Fiona Leppan, director in the employment practice at Cliffe Dekker Hofmeyr.

"This proposed amendment aims to prevent industrial action from taking place in circumstances where it does not enjoy majority support. The purpose is to quell violence and intimidation against non-strikers," she notes.

Democratising the procedure

This amendment seeks to 'democratise' the procedure to be followed leading up to protected industrial action. At present, minority members of a trade union or an employers' organisation are able to stage industrial action regardless of the will of the majority, by simply complying with the requirements of the current Section 64 of the LRA. This amendment seeks to change this state of affairs.

Ndumiso Zwane, associate in the employment practice says that current LRA limits the right to strike if the issue in dispute is one that a party has the right to refer to arbitration before the Commission for Conciliation, Mediation and Arbitration (CCMA) or bargaining council, or to adjudication before the Labour Court, but only where that right to arbitrate or adjudicate is provided in terms of the current LRA.

"This current statutory limitation will be broadened to include any right to refer the dispute to arbitration or adjudication in terms of any other employment legislation. The proposed amendment would allow the director of the CCMA to intervene in a mutual interest dispute, even in circumstances where statutory conciliation has already been attempted. The CCMA could intervene without the consent of the parties. The purpose of such an amendment will give the CCMA the power to intervene in protracted disputes to secure the resolution of the protected industrial action in the public interest," he says.

Picketing rules are binding on third parties

Leppan notes that the proposed amendment also removes protection against civil liability for damages resulting from a conduct in breach of picketing rules or picketing agreement. The amendment also envisages regulating picketing in respect of third parties, for example, by making picketing rules binding on third parties such as the landlords of employers, which would have application in the retail industry involving strike action at shopping malls.

"However, this will only be permitted where the third party has consented to the picketing rules or was given an opportunity to be heard before the rules were established. Another important proposed amendment is that the Labour Court would be empowered to order compliance with picketing rules, or to vary them, or to suspend the picket or strike in appropriate circumstances, for example to quell violence. The Labour Court would also be empowered to suspend a lock-out or suspend an employer from engaging replacement labour during the industrial action," she concludes.

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