Verulam Sawmills (Pty) Ltd v Amcu (J1580/15) [2015] ZALCJHB 359; [2015] 12 BLLR 1266 (LC) (20 October 2015) per Myburgh AJ.

The Labour Court interdicted Amcu by consent and awarded punitive costs against the trade union for failing to take all reasonable steps to ensure compliance with picketing rules and prevent members from breaching them during a strike.  Myburgh AJ examined the principles for holding trade unions accountable for such breaches.

Excerpts

Union accountability for the conduct of its members

[10]     This court has previously indicated that unions are at risk of a punitive costs order where their members conduct themselves unlawfully during a protected strike, and where the union itself does not take all reasonable steps to prevent this. As Van Niekerk J put it in Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union & others (2012) 33 ILJ 998 (LC):

“This court must necessarily express its displeasure in the strongest possible terms against the misconduct that the individual respondents do not deny having committed, and against unions that refuse or fail to take all reasonable steps to prevent its occurrence. Had the applicant not specifically confined the relief sought to an order for costs on the ordinary scale, I would have had no hesitation in granting an order for costs as between attorney and own client.”[1] (Own emphasis.)

[11]     This dictum accords with others in which this court and the LAC have endorsed the principle of union accountability for the unlawful conduct of its members during the course of a strike. The following quotes from some of the more well-known judgments will suffice.

a)     In In2Food (Pty) Ltd v Food & Allied Workers Union & others (2013) 34 ILJ 2589 (LC), Steenkamp J held:

“The time has come in our labour relations history that trade unions should be held accountable for the actions of their members. For too long trade unions have glibly washed their hands of the violent actions of their members.”[2]

b)     On appeal to the LAC in Food & Allied Workers Union v In2Food (Pty) Ltd (2014) 35 ILJ 2767 (LAC),[3] Sutherland AJA (as he then was) held:

“The respondent’s thesis that a trade union, as a matter of principle, has a duty to curb unlawful behaviour by its members indeed enjoys merit. Indeed, the principle of union accountability for its actions or omissions is beginning to gain recognition[4] …

The sentiments expressed by the court a quo which are cited above [see above] have been rightly described by Alan Rycroft as a ‘significant moment of judicial resolve’.[5]… Indeed, the sentiments deserve endorsement, and are adopted by this court.”[6]

c)     In Xstrata SA (Pty) Ltd v AMCU & Others (J1239/13) [2014] ZALCJHB 58 (25 February 2014), Tlhotlhalemaje AJ held:

“It has become noticeable that unions are readily and easily prepared to lead employees out on any form of industrial action, whether lawful or not. The perception that a union has no obligation whatsoever to control its members during such activities, which are invariably violent in nature cannot be sustained.”[7]

[12]     These judgments make it abundantly clear that, in the context of the pandemic of unprotected strike action and strike violence in South Africa, the courts are inclined to hold unions accountable for the unlawful conduct of their members, and impose on them obligations to control their membership. This being a potential means of attempting to address the pandemic.

[13]     This approach of union responsibility accords with the approach adopted in other jurisdictions. In the USA, for example, the National Labor Relations Board has held as follows:

“Where a union authorizes a picket line, it is required to retain control over the picketing. If a union is unwilling or unable to take the necessary steps to control its pickets, it must bear the responsibility for their misconduct. Similarly, if pickets engage in misconduct in the presence of a union agent, and that agent fails to disavow that conduct and take corrective measures, the union may be held responsible.”[8]

[14]     Reverting to the position locally, while the precise legal basis upon which a union may be held accountable for the unlawful conduct of its members is not settled in all instances, where a picketing rules agreement is in place, the union’s legal obligations and potential liability for a breach thereof arise from the agreement itself. Notwithstanding the express terms of a picketing rules agreement, it seems to me that it is implicit in any such agreement that a union is obliged “to take all reasonable steps” (to borrow from the words of Van Niekerk J in Tsogo Sun[9]) to ensure compliance by its members with the terms of the agreement.

[15]     To my mind, this is a fundamentally important obligation. Not only are picketing rules there to attempt to ensure the safety and security of persons and the employer’s workplace, but if they are not obeyed and violence ensues resulting in non-strikers also withholding their labour, the strikers gain an illegitimate advantage in the power-play of industrial action, placing illegitimate pressure on employers to settle. Typically, one of two things then happen – either the employer gives in to the pressure and settles at a rate above that reflecting the forces of demand and supply (which equates to a form of economic duress) or the employer digs in its heels and refuses to negotiate or settle while the violence is ongoing (which inevitably causes strikes to last longer than they should). Either way, the orderly system of collective bargaining that the LRA aspires to is undermined – and ultimately, economic activity and job security is threatened.

[1] At para 14.

[2] At 2591 H-I.

[3] In this judgement, the LAC reversed this court’s decision that the union was in contempt of court. It did so essentially on the basis that while a union may be vicariously liable for the unlawful acts of its members, it cannot be vicariously liable for contempt of court – the union itself must be in contempt, with this not having been established on the facts. But this, in my view, does not detract from the important statements (quoted above) that the LAC went on to make about union accountability generally.

[4] The LAC referred here to FAWU v Ngcobo NO & another (2013) 34 ILJ 3061 (CC), where FAWU was held liable to its own members for failure to prosecute the members’ interests properly in litigation.

[5] Rycroft, A “Being Held in Contempt for Non-compliance with a Court Interdict: In2food (Pty) Ltd v FAWU & Others (2013) 34 ILJ 2589 (LC)” (2013) 34 ILJ 2499.

[6] At paras 18-19.

[7] At para 35. The court went on to find (in paras 36-40) that there exists four legal grounds upon which a union is obliged to police its members during the course of a strike / picket. Firstly, the obligation arises from section 17 of the Constitution, which guarantees everyone the right, peacefully and unarmed, to assemble, demonstrate and present petitions. As far as the court was concerned, while the right accrues to union members, the responsibility to ensure that they comply with the limitations implicitly falls on their union. Secondly, the obligation arises from the relationship of guardianship between the union and its members. Thirdly, the obligation arises from the collective bargaining relationship between unions and employers. Fourthly, the obligation arose on the facts from the process of engagement between the parties, including the fact that AMCU had called the strike, various meetings had been held between the parties, and the fact that AMCU had not distanced itself from its members and continued to represent them.

[8] Plumbers, Local 195 (McCormack-Young Corp) 233 NLRB 1087 (1977), quoted in Gorman et al, Labour Law Analysis and Advocacy (Juris Publishing, 2013) at 353, para 10.6. See for a comparable UK case, the judgment of the Employment Appeal Tribunal in News Group Newspapers Ltd and others v SOGAT ’82 and others [1986] IRLR 337, commented on by Deakin et al, Labour Law (Hart Publishing, 2012) at 1059, para 11.22.

[9] See para 10 above.