Q&A: UNDERSTANDING THE AMENDMENTS
Q: Has anything changed around how trade unions refer disputes?
A: No, a dispute referral must still be made to the CCMA or relevant Bargaining Council and there is still a compulsory 30-day conciliation period.
Q: What happens during the compulsory 30-day conciliation period?
A: The commissioner will not only attempt to conciliate the dispute, but will under the proposed amendments, also have to consider whether the parties have any binding collective agreement between them, which contains picketing rules. If no such picketing rules exist, the commissioner will attempt to secure an agreement between the parties.
Q: What if no agreement is secured?
A: The commissioner will then be obliged to determine picketing rules in accordance with any such picketing rules published by the CCMA and any code of good practice.
Q: Can the 30-day conciliation period be extended?
A: Yes, but only if:
- its extension will lead to a meaningful conciliation process;
- an agreement appears likely; and
- that any such request to extend the 30-day period is not unreasonably withheld.
Q: When determining the rules, is the commissioner obliged to consider any other factors?
A: Yes, the commissioner must consider:
- the nature of the premises/workplace and where the employees intend to picket;
- the Code of Good Practice: Picketing; and
- the representations made by either party.
Q: What happens if your staff deployed at third party sites want to picket at those third parties’ sites?
A: This is possible however, the party who owns or controls that third party site must now be given an opportunity to make prior representations on the picketing rules and importantly, on where the designated area may be.
Q: Can the commissioner issue picketing rules that permit employees to picket on the employer’s premises?
A: Yes, but only if the employer unreasonably withholds its consent and in such cases, regard must still be had to the nature and circumstances of the premises. Health and safety factors will also be relevant factors to take into account.
Q: When will the commissioner issue the picketing rules?
A: Currently, the absence of picketing rules is not a bar to the commencement of strike action, however and under the proposed amendments, the commissioner will have to issue the picketing rules before issuing a certificate of non-resolution.
Q: Under what other circumstances will a commissioner issue picketing rules?
A: A commissioner will be called upon to urgently issue picketing rules in cases of:
- strike action that is carried out as a result of a unilateral change to terms and conditions of employment by the employer; or
- where a strike is carried out in response to an unprotected lock-out by the employer.
Q: What happens if there are no picketing rules in place when the strike starts?
A: In terms of the proposed amendments, no picketing will be permitted unless:
- there is a collective agreement in place regulating picketing ie picketing rules;
- an agreement has been reached on picketing rules between the parties; or
- the commissioner has issued picketing rules.
Q: What recourse is available in the event that the picketing rules are breached?
A: In terms of the proposed amendments, the Labour Court may through an interdict:
- compel compliance with the picketing rules;
- vary the terms of the picketing rules; and
- suspend the picket.
Q: What further remedies are available to employers who experience strike action, other than seeking certain interdictory relief from the Labour Court and reserving its rights to implement discipline?
A: Where it is in the public interest, the proposed amendments seek to introduce the establishment of an advisory panel which will attempt to facilitate a resolution of the dispute. The advisory panel can be appointed upon application from either party, by the CCMA on its own accord, or pursuant to a Labour Court order.
Q: What facts would give rise to the appointment of an advisory panel?
A: Where the strike or lock-out:
- is no longer conducive to collective bargaining, ie it has continued for a protracted period of time with no end in sight;
- brings about an imminent threat that constitutional rights may or are being violated or there is a threat of damage to property and/or violence;
- has the imminent potential to cause or exacerbate an acute national or local crisis affecting the conditions for normal social and economic functioning of the community or society.
Q: Can any party interdict, stay or review the proceedings of the advisory arbitration panel?
A: This will not be possible until such time as an advisory award has been issued.
Q: Who makes up the advisory award panel?
A: A senior commissioner who will be the chairperson, together with one assessor appointed by the employer and one assessor appointed by the trade union.
Q: What happens if one of the parties fails or refuses to participate in the advisory arbitration?
A: The director of the CCMA will then appoint a person with the requisite experience to represent the interests of that party during the proceedings.
Q: What are the powers of the advisory arbitration panel?
A: The panel will have the same powers as a commissioner but must deal with the substantial merits of the dispute and can order the disclosure of relevant information, provided that information is necessary in order to make a factual finding.
Q: How long does the panel take to issue the advisory arbitration award?
A: This should be issued within 7 days.
Q: If an advisory arbitration panel is appointed, does this suspend the right to strike or lock-out?
A: No, the strike and lock-out can continue during this period.
Q: What would the advisory arbitration award seek to address?
A: It would include a report on the findings, recommendations for the resolution of the dispute and a motivation as to why the recommendations ought to be accepted.
Q: Is the advisory arbitration award binding?
A: An award is only binding on a party to the dispute if the parties have accepted or are deemed to have accepted the award. In certain circumstances, the advisory arbitration award can be extended as if it were a collective agreement, but subject to the requirements thereof.
Q: Under what circumstances will a party be deemed to have accepted the advisory arbitration award?
A: The parties have to make such an election within 7 days. If a party to the dispute fails to indicate either its acceptance or rejection of the award within the aforesaid period, the party is deemed to have accepted the award.
Q: Are there any additional requirements if a party rejects the advisory arbitration award?
A: Yes, the party must provide a motivation for its rejection in the prescribed manner.
Q: Can a party strike or lock-out once it becomes bound by the advisory arbitration award?
A: No, the advisory award then binds the parties.