Income-loss awards for unprotected strikes must gather pace – Business Day, 13 July 2015

Jul 14, 2015
DESPITE the fact that South African labour law makes it easy for trade union officials to call workers out on strike, and that strikes enjoy legal protection, more than half of the strikes that occur in the country are "unprotected".

By John Kane-Berman 

DESPITE the fact that South African labour law makes it easy for trade union officials to call workers out on strike, and that strikes enjoy legal protection, more than half of the strikes that occur in the country are "unprotected".

This means unions often ignore the procedures required for a strike to enjoy protected status and simply strike regardless.

They often do so with impunity. Judicial interdicts are ignored and workers who refuse to strike are done to death.

One of many reforms needed to restore balance in our industrial relations is to make secret strike ballots compulsory. No strike not authorised in advance by a two-thirds majority should enjoy protected status.

Secret ballots should also be held regularly during a strike to verify continued support. If support drops below two-thirds, the protected status should lapse and striking workers should be liable for lawful dismissal.

Such a reform would introduce some sorely needed democracy into decision-making about strikes.

More rigorous enforcement of the law is also required, both against violence and intimidation in the course of strikes and for damage caused by strikers.

This includes not only physical damage, but also loss of earnings by the target company. This last issue was dealt with by an order recently handed down by the labour court in Port Elizabeth.

In a case brought by the Algoa Bus Company, a transport union known as Thor-Targwu and some of its members were ordered to pay R1.4m in damages to compensate the company "for economic loss sustained as a result of an unprotected strike" in 2013 by the union and its members, who

were employed as drivers by the company. The union and its members carried on with their strike even after it had been interdicted and the company had warned

them that it might seek to recover financial losses.

These included lost revenue from fares and loss of government transport subsidies during the course of the seven-and-a-half-day strike.

The court ordered that the union pay the company R5,280 per month and that each of the union members who were sued have R214 deducted from their wages until the entire capital sum of R1.4m had been paid.

Even though Thor-Targwu claimed it was "barely scraping by" financially, the court said this did not mean it could "expect to remain immune from financial consequences of reckless conduct by its members or office bearers".

Algoa is awaiting clarification of various legal matters, so has not yet made the deductions from workers' pay that the court authorised.

This is not the first award that the company has obtained against trade unions.

In an order handed down by the same court last year against three transport unions and their members, Algoa won R10.35m in compensation for revenue lost in unprotected strike action in 2011.

Deductions of part of the award from wages were also authorised in that case.

A judgment debt was subsequently granted against the unions. However, no further action has been taken pending the outcome of union court actions.

Although the right to strike is protected by the Constitution, South African trade unionists frequently abuse it.

They have become accustomed to having things both ways, relying on their legal rights when it suits them but ignoring both their obligations and the rights of others when it does not.

This modus operandi has gone on for so long that changing this culture of impunity will be a major challenge for the country.

However, if more and more unions find themselves having to pay up when they embark on unprotected strikes or other damaging and unlawful activity, we might begin that long and difficult journey.

• Kane-Berman is a consultant at the South African Institute of Race Relations. 

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