10 August 2010

The rights of non-striking workers

The Constitution grants every worker the right to strike. But what is the position of those workers who do not wish to strike?

Media reports of intimidation of non-striking workers are rife, with non-striking workers being barred access to their workplace, intimidated with threats of violence and actual violations of person and property.

Does the right to strike trump the rights of non-strikers to physical integrity, freedom of association or freedom of speech?

Striking in the employment context refers to the withholding of employment by workers. It has been said that without the right to strike, collective bargaining will be reduced to collective begging. Strikes and other forms of industrial action, and social disobedience played a significant role in achieving democratic reform in our country. However, as more strikes turn more violent, has the time not come for the focus to shift on the rights of those who do not wish to partake in such action?

The right to withhold labour does not include the right to block access of colleagues or clients form the premises of an employer. Picketing is a legitimate form of strike action where workers gather to express their grievances and demands.

The Code of Good Practice on Picketing stipulates that the purpose of picketing is to "...,peacefully encourage non-striking employees and members of the public to oppose a lock-out ..." or not do business with the employer or support the strike. It recognises that picketers may "... encourage employees not to work ..." and "... discourage replacement labour from working." All of this falls under the banner of "peaceful encouragement".

Assaulting non-strikers, intimidating replacement labour with threats of physical violence or even death can never be seen to be complying with the requirement that picketing must be peaceful, apart from the fact that it violates the non-striking employees or replacement labour's conational rights to physical integrity, freedom of association or freedom of speech.

The Code further prescribes that a picket may only take place on the premises of an employer where the employer agrees thereto, although such permission may not be unreasonably withheld. This is one of the issues that the employer should discuss with the striking workers in an aim to agree on picketing rules. The parties can agree on where the picket will take place, the timing of the picket, practical arrangements such as permitting picketers to use the bathroom on the employer's premises or making arrangements nor temporary facilities to be made available, and prior notice to be given before picketing commences. A prudent employer may negotiate and agree on picketing rules long in advance to strike action, thus permitting it to make contingency plans to safeguard non-striking workers, replacement labour and clients or customers during strike action.

Employers have a duty to ensure the safety of employees at the workplace. What should they do where unions threaten to prevent employees from working and violence can be expected?

Where striking or picketing employees do not behave peacefully, companies are not left without recourse:

  • It may bring an urgent application to the Labour Court to interdict the trade union and/or striking workers from unlawful acts such as intimidation, assault or damage to property;
  • It may seek to interdict the strike and/or picket if the strike is not protected under the Labour Relations Act (the LRA) as the LRA and the Courts have imposed a number of restrictions on industrial action which may render a strike unprotected in the event of non-compliance - if the strike is not protected, the picket cannot be protected either;
  • It may institute civil action against employees and/or trade unions who damage property or unlawfully disrupt its business;
  • It may take disciplinary action which may result in the dismissal of employees who behaved unlawfully during the strike or picket;
  • It may report any unlawful conduct to the South African Police Service who can take action against wrongdoers who, for instance, participate in violent conduct or attend pickets armed with dangerous weapons;
  • It can approach the Commission for Conciliation, Mediation and Arbitration (the CCMA) with a request to assist it and the trade union/s to agree to picketing rules or, if not possible, ask the CCMA to establish picketing rules; or
  • Mobilise public opinion against the conduct.

The right to strike is a cardinal pillar in our collective bargaining and employment relations dispensation. It balances the power imbalance existing between employers and employees. Where it is not exercised judiciously and with due recognition of the effect it has on the employment relationship, it can cause employees more harm than the good it may achieve. Employers should take cognisance of the options open to them in seeking to protect their businesses and non-striking employees from the unlawful conduct of striking workers.

Johan Botes, Director, Employment Law

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