Should it be suggested, let alone form the basis of a Labour Court judgment, that dispute resolution and power-play in collective bargaining in the form of a lockout is analogous to a boxing match where the parties are intent on knocking each other out?

According to a very recent judgment of the Labour Court, relying on a High Court decision of 1991, this appears to be the way such power struggles are viewed with the aim being “to inflict as much pain on the other as possible”!

In NASECGWU v Donco Investments (Pty) Ltd [2010] 3 BLLR 271 (LC) (J 1149/09 dated 20.11.2009) Basson J is reported to have said:

“[8]       Conradie J in Metal & Electrical Workers Union of SA v National Panasonic Co (1991) 12 ILJ 533 (C) aptly refers to the power struggle between employers and employees in the workplace as a boxing match.   Once parties resort to industrial action they are given boxing gloves to engage in a boxing match with the aim of inflicting as much pain on the other as possible.   The sole aim of this contest is to bring the other party to submission by exerting as much economic power on the other as possible.   Conradie J also correctly points out that there are rules to be observed and that this Court, who acts as a referee in labour disputes, will as a rule not intervene and will only do so in limited circumstances.   The precondition for entering the boxing arena is compliance with the procedural requirements as set out in section 64(1) of the LRA.   Where one of the parties has not complied with the procedural requirements their action will be unlawful and this Court as referee will intervene.   This is exactly what the Applicants in this case are asking the Court to do.   The Applicant are arguing that the lock-out is illegal as the lock-out notice issued to them did not comply with section 64(1)(c) of the LRA”.

To the best of my knowledge that 1991 judgment of Conradie J (a highly respected judge and later to become a prominent member of the Labour Appeal Court and ultimately the Supreme Court of Appeal) has never been referred to in that context again.   Those were very early days and lawyers and judges were struggling to understand how unlawful conduct at common law could be regarded as lawful and protected when the parties were engaged in legitimate power-plays (strikes and lockouts) to resolve disputes of “interest”.

I suggest that a more appropriate analogy is a team game such as soccer or rugby.   Unlike boxing, with only 2 protagonists, team games are “collective” and  there is always a ball involved together with a neutral referee to ensure compliance with the rules.   The focus must be on the ball and the winner uses the ball to achieve success and win the contest.   It must be conceded that during a rugby match players are allowed, nay exhorted, to tackle the opposing player who is carrying the ball.   However it is essential to appreciate that the intention can never be to hurt an opposing player.   The purpose must be to gain possession of the ball and score points and the rules of the game make that very clear.   Obviously players do get hurt in the process but the rules severely punish any player whose sole purpose is to inflict pain or to injure a player or to tackle a player without the ball.

The only permissible purpose of any strike or lockout is to resolve an existing “interest” dispute that has been the subject of prior negotiation and conciliation.   In terms of LRA s67(2) persons engaged in a protected power-play do not commit a delict or breach of contract.   However, in terms of LRA s67(8) such protection is forfeited when a criminal offence is committed.   This would include trespass, assault, intimidation, vandalism and the like.   Once the dispute of “interest” is resolved the “game” must stop.

Any suggestion to the effect that employers and trade unions only embark on strikes and lockouts with the sole purpose of “inflicting as much pain as possible” borders on the irresponsible and demonstrates a serious lack of appreciation of the true nature of collective bargaining and the resolution of  disputes of interest.

This opinion is expressed with the greatest respect to Basson J who correctly held that the employer’s purported lockout was unlawful and ordered the employer to pay the employees the remuneration they should have received during the unprotected lockout.