Contact Serr Synergy Have a consultant call me

The impact on strikes as per the proposed amendments to the Labour Relations Act

On 17 November 2017, the Minister of Labour published the Labour Relations Amendment Bill for information purposes and comment.

Labour Relations Act

The Bill reflects agreements concluded by Employers regarding the introduction of pertinent Amendments to curb violent and unduly long protracted strikes. The proposed Amendments stem from Sections 150A to 150D.

The Amendments envisage the establishment of an Advisory Arbitration Panel:

  • Section 150A(1) specifies that a panel may be appointed by the Director of the CCMA to make an Advisory Arbitration Award to facilitate a dispute relating to strikes or lockouts.
  • Section 150A(3) designates the circumstances in which the panel may be established by the Director of the CCMA, namely–

a) if the Minister of Labour directs the Director to do so;

b) if the Labour Court directs the Director to appoint a panel;

c) if the parties to the dispute agree to the establishment of a panel; and

d) on application by a party to the dispute.

  • However, Section 150A(4) states that the Director may appoint the panel in terms of Sub-Section 150A(3) only if the Director has reasonable grounds to believe that the following exists–

a) The strike or lockout is no longer functional to collective bargaining in that it had continued for a protracted period of time and resolution of the dispute does not appear to be imminent;

b) There is an imminent threat that constitutional rights may be or are being violated by persons participating in or supporting the strike or lockout through the threat or use of violence or the threat of or damage to property; or

c) The strike or lockout causes or has imminent potential to cause or exacerbate an acute national or local crisis affecting the conditions for the normal social and economic functioning of the community or society.

The purpose of the Advisory Arbitration Panel, in terms of Section 150B, is to make an Advisory Arbitration Award.

This must be done in a manner which the Chairperson of the Panel considers is appropriate for making an Advisory Arbitration Award fairly and quickly but must deal with the substantial merits of the dispute.

In terms of Section 150D, the effect of the Advisory Arbitration Award is only binding on a party to the dispute and its members (a trade union or employers’ organisation) if–

a) one or more of the Trade Union parties to the dispute have accepted or are deemed to have accepted the Award;

b) the Employers’ Organisation party to the dispute has accepted or is deemed to have accepted the Award; or

c) the award may be made in terms of Sections 23 and 32 of the Labour Relations Act depending on whether the parties to the dispute are parties to a bargaining council.

Although the Amendments do not categorically and explicitly state so, it can be assumed that a party bound by the Award and/or its members, as well as any other person to whom the award has been made, may not strike or effect a lockout concerning the subject matter of the Award.

This is in line with and conducive to compliance with the provisions of the Labour Relations Act pertaining to the limitation of the right to strike. Section 65(3) states that no person may take part in a strike or a lockout or in any conduct in contemplation or furtherance of a strike or lockout if that person is bound by an Arbitration Award or a collective agreement that regulates the issue in dispute.

SERR Synergy guides businesses with regard to the required processes and procedures in a practical and supportive way to ensure compliance with labour legislation and to minimise the risk to which the business is exposed when employing staff. We also assist businesses during the wage negotiation process, which may sometimes lead up to a potential strike, the procedure during a strike and the prospects of success in obtaining an interdict to prevent a strike.

About the Author: Jared Francis joined SERR Synergy in October 2016, and currently holds the title of KZN Labour Manager. He is an admitted attorney who has practised in KZN and Gauteng. He holds an LLB degree, a Post-Graduate Diploma in Industrial Relations and a Post-Graduate Certificate in Forensic Investigation from the University of KwaZulu-Natal. He also holds Post-Graduate Certificates in Advanced Labour Law, Corporate Law, Advanced Human Resource Management and Health and Safety from UNISA and has more than 10 years’ experience in the legal and industrial relations fields respectively.