BusinessDay today has a report by Bheki Mpofu Minister steps in to try (to) end strike, but it not clear what role the Minister intends to play as he is unlikely to be regarded as a neutral mediator or third party.

The resolution of disputes of ‘interest’, such as wages and matters of mutual interest, are resolved through collective bargaining as opposed to disputes of ‘right’ (alleged unfair terminations and the like) that are resolved by arbitration and adjudication.   In the absence of agreement to resolve an interest dispute the parties are fully justified in resorting to power-play in the form of strikes and lockouts.   The courts, including the labour court, are prohibited by law from interfering in such power-play provided it is protected.

Employers who are unable to tolerate such methods of resolves interest disputes should conclude agreements to refer such disputes to private arbitration, but not discretionary arbitration but ‘final-offer’ or ‘pendulum’ arbitration.

Employees who strike appreciate that they will not receive any remuneration because ‘no work no pay’ applies.   However, they may not appreciate that employers have the right to terminate the employment of protected strikers provided the employers follows the statutory procedures in the Labour Relations Act, section 189 & 189A and can prove that there is a fair reason to terminate employment based on genuine operational requirements.

The LRA also provides for the appointment of a facilitator by the CCMA to assist the parties in resolving the issues in dispute and avoid the destruction of jobs.   If the Minister is unable to assist the parties in resolving their disputes the parties should seriously consider the option of appointing a mediator or facilitator to assist them in resolving all outstanding issues as quickly as possible in the interests of the country as a whole.