BUSINESS
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 will 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.
The Amendment Bill will curb violence
during the course of a strike in two key ways:
through the introduction of an advisory
arbitration panel, and through amendments to
picketing rules.
Advisory arbitration panel
The first measure that will help to curb
violence is 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 to make an advisory award fairly
and quickly. The panel must issue an award
within seven 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 seven 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 publish the award for
public dissemination.
Amendments to picketing rules
The second measure is 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 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 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 is if we all work together to
get all trade unions to sign the Accord and
support the Amendment Bill and the code.
ABOUT THE AUTHOR
Johan Olivier is a partner at South African
law firm Webber Wentzel.
Johan Olivier is a partner in the
Employment, Health and Safety Practice at
South African law firm Webber Wentzel.
He is an expert in employment and
employee benefits law as well as health
and safety, and has extensive experience
in corporate restructuring, dealing with
collective bargaining cases, strikes, lock
outs, discrimination law, disciplinary and
litigation proceedings.
Johan's expertise has been recognised
by various international research
organisations including Chambers Global,
Legal 500, Who’s Who Legal and Best
Lawyers. Johan has BA and LLB degrees
from Stellenbosch University and an LLM
degree, awarded with distinction, from
Rand Afrikaans University. He also has a
Higher Diploma in Arbitration from the
Association of Arbitrators. ■
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