“The freedom to strike is one of the basic freedoms enshrined in section 27 of the constitution. It is a right found in all free-market democracies. Without the freedom to strike there can be no free market and, paradoxically, without the threat of industrial conflict, there can be no labour peace. Labour peace depends on effective collective bargaining and without a measure of equilibrium between employers and unions at the negotiation table, collective bargaining can have no substance”.
John Brand, a partner of Bowman Gilfillan, a vastly experienced and highly respected attorney and one of the speakers at the recent 23rd Labour Law Conference, has written an important article in Business Day today. View or download Limit the right to bad-faith bargaining and violent strikes.
It is important to read the entire article where an earnest plea is also made for mutual-gain negotiation. Here are some extracts from the article.
Conventional pre-strike conditions
“In conventional employment law in free-market democracies, the right to strike is conditional on the strike being preceded by good-faith bargaining; on disputes procedures being exhausted; on democratic decisions being taken to strike; and on the strike action being non-violent.
At the core of the freedom to strike is the threat of a peaceful withholding of labour to encourage the employer to negotiate seriously and, if good-faith negotiation fails, then to use peaceful strike action to assist in resolving a dispute. A violent class war by workers against employers is not the kind of conflict the constitution intends to protect. Unfortunately, in SA, the Labour Relations Act does not do enough to make the freedom to strike contingent on these conventional conditions. The act does not impose a duty to negotiate in good faith and it expressly prohibits employers from challenging a strike on the basis that it is not supported by the majority of union members or employees affected by it. The act also does not provide that a strike may be declared unprotected if it is accompanied by high levels of violence”.
Need to eliminate violence in South Africa
“Although strike violence is antithetical to the idea of orderly collective bargaining and the freedom to strike, it is common in SA. The picket line becomes a place of violent conflict, with strikers pressuring non-striking workers to participate, and persuasion often evolves into intimidation. Frequently, the picket line becomes a war zone. Employers have responded to violence with court interdicts and orders limiting workers’ rights to picket in the vicinity of the employer’s premises. This moves the violence to the homes of managers and replacement workers”.
Mutual-gain negotiation
“To avoid these suboptimal outcomes, enlightened employers and unions are increasingly turning to mutual-gain negotiation. Modern negotiation theory and best practice teaches us that parties are able to reach excellent mutual-gain outcomes in negotiations without strike action. Such parties acknowledge each other as legitimate stakeholders in a pluralist society rather than as enemies to be defeated in a class war. They commit to freedom of association; exhaustion of dispute procedures; industrial democracy; picket rules; non-violent action; and to mutual-gain negotiation”.
Meticulous preparation
“Experience demonstrates that parties that are pro-active and take the time and trouble to prepare generally find that the preparation for industrial war produces industrial peace and that prevention proves better than cure. The key to avoiding unnecessary strike action is meticulous preparation and not passive reliance on the law”.