Lockout vital function: Collective bargaining context

3 Comments

1. 

   GilesFiles on May 22, 2015 at 3:05 pm

   Extract from Comment by Prof Darcy du Toit that first appeared in IR Network from LexisNexis this week.

   Instead, the Labour Appeal Court decided the matter on a different basis. Going back to section 23 of the Constitution and the purposes of the LRA, the court restated the principle that an employers’ statutory right to lock out is not equivalent to an employees’ constitutional right to strike. This is so because employers dispose over an array of economic weapons, of which the lock-out is merely one, whereas strike action is an employees’ only means of putting pressure on employers in collective bargaining. However, once deadlock is reached, employers and employees both have the right to resort to industrial action in terms of section 64 of the LRA.
   In the present case the point was that deadlock was reached at the bargaining council, and the council’s constitution made it clear that any collective agreement will apply to “[a]ll eligible Employees in the employ of members of the above Employers’ Organisations [such as PUTCO] regardless of any Union affiliation” (para 48 of judgment). This, in turn, reflects the principle of majoritarianism. Musi JA summed it up as follows:
   “Although the will of the majority prevails, the minority would benefit if the negotiations yield positive results. Likewise the minority would be prejudiced or disadvantaged if the negotiations do not yield any fruit. The same would apply if the majority decides to strike and the strike puts enough pressure on the employer so that the latter accepts the workers’ demands. The minority would benefit from the fruits derived from the strike. Should the minority be spared when the employer decides to lock-out its employees?” (para 51)
   In the present case the lock-out notice was aimed at “all employees in the bargaining unit in support of the wage proposals of the employer tabled at the SARPBAC” (para 59). The definition of “lock-out” does not state that, when in response to a strike, it may be aimed only at striking employees. By the same token, employees who are not members of a union that has given strike notice may join the strike if they so wish without giving notice separately.
   Only if TAWUSA’s members had “tendered their services and accepted the employer’s proposal” would the employer have had “no reason to lock them out” (para 67).
   The industry-wide nature of the dispute, in short, meant that all employees and employers were in the same boat(s). “Strikes against non-party employers in the context of a bargaining council dispute are permitted.” Musi JA noted. “I can see no reason why … the same should not hold true for lock-outs” (para 69).
   This is another illustration of the logic of sectoral bargaining. While groups of employees may fall through the cracks, much the same applies in bargaining at plant level where collective agreements may likewise be extended to all employees, regardless of union status. There can be no doubt that a trade union is able to arrive at a better wage bargain than an individual employee. The message from the Labour Appeal Court is that individual employees should take the rough with the smooth.

2. 

   GilesFiles on July 15, 2015 at 6:57 pm

   Reported [2015] 8 BLLR 783; (2015) 36 ILJ 2048; [2015] JOL 33221 (LAC)
   Lockouts – Scope – Employer locking out all employees in response to strike notice by union parties to bargaining council – Employer entitled to lockout employees of union not party to council despite their tender of service because non-striking employees would benefit from centralised negotiations – Lockout of non-striking employees lawful

3. 

   GilesFiles on September 11, 2015 at 8:00 am

   The Constitutional Court is due to hear Tawusa’s application for leave to appeal and appeal in November 2015 under case number CCT94/15.
   A media summary will be posted when it is made available.
   This judgement is not cited in Labour Relations Law: A Comprenhensive Guide 6th ed (2015)