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BOOK REVIEW Hepple B, Le Roux R and Sciarra S (eds) Laws against Strikes – The South African Experience in an International and Comparative Perspective (Juta Kenwyn 2016) ISBN: 9788891724151 M Laubscher*

Author Marius Pieterse Affiliation University of the Witwatersrand South Africa Email Marius.Pieterse@wits.ac.za Date Submission Date Revised Date Accepted Date published 7 January 2019 Editor Prof W Erlank How to cite this article   Lauscher M "Hepple B, Le Roux R and Sciarra S (eds) Laws against Strikes – The South African Experience in an International and Comparative Perspective (Book Review)" PER / PELJ 2019(22) - DOI http://dx.doi.org/10.17159/1727-3781/2019/v22i0a4401 Copyright DOI http://dx.doi.org/10.17159/1727-3781/2019/v22i0a4401

 

Abstract

This contribution reviews the book entitled Laws against Strikes – The South African Experience in an International and Comparative Perspective edited by Bob Hepple, Rochelle le Roux and Silvana Sciarra.

Keywords

Labour law, right to strike, South Africa, Italy.

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INTRODUCING A SERPENT INTO THE GARDEN OF COLLECTIVE BARGAINING: A CASE ANALYSIS OF NUMSA OBO MEMBERS V ELEMENTS SIX PRODUCTIONS (PTY) LTD [2017] ZALCJHB 35 (7 FEBRUARY 2017)*

NT Rwodzi**

N Lubisi***

Abstract

This case note is an analysis of Numsa obo Members v Elements Six Productions (Pty) Ltd 2017. The jurisprudence advanced in this case is pertinent to balancing the empoyer and employee’s rights in the context of collective bargaining. The worker’s right to strike is one the rights entrenched in the South African constitution. In addition, this right to strike should not be directly or indirectly undermined without a just cause. The preamble of South African constitution seeks to redress the unjust laws of the past including the ones experienced in the employment arena. Furthermore, unfair discrimination is also one of the prohibited practices which are not only domestically sanctioned, but internationally as well in terms of the International Labour Conventions. This note contributes immensely to the existing literature of labour law by critically analysing the decision reached by Tlhotlhalemaje J.

Keywords

Right to strike; collective bargaining; unfair discrimination; employer’s rights and employee’s rights

1     Introduction

Does offering bonuses to non-striking employees who went beyond the call of duty and performed the duties of the striking employees contravene section 5 of the Labour Relations Act 66 of 1995 (LRA)? How compelling is the contention that the employer is simply rewarding volunteers for their efforts in ensuring that it fulfils clients' demands during a crippling strike? More accurately, what is significant here is that without non-strikers going the extra mile, the employer would have lost market shares as well as suffer reputational damage. From a different perspective, can it be argued that the interests of the employer in safeguarding the viability of the enterprise overrides concerns about disproportionate treatment of striking employees?

Sitting on equal plane in terms of importance, are the keenest objections from striking employees and their union about extra payment to non-strikers. At the core is the likely detrimental effect on future strikes as striking employees would be dissuaded from joining strikes based on the lure of reward. To this should be added that the practice has the effect of weakening the employees' collective bargaining effort, or at most sowing discord and disunity among members of a union and the workforce in general. In this sense, additional payments undermine the right to strike and invariably tilt the scales of power in favour of the employer. It also raises the free-rider problem: if the striking employees' demands are met, the non-striking employees who are within the bargaining component, and who had performed the tasks of those on strike in addition to their own, would end up benefiting twice. Firstly, non-strikers would receive salary increment as a result of the sacrifices made by their colleagues, and secondly, from an extra income derived from the strike action.

This paper engages with these difficult and interesting questions against the backdrop of NUMSA obo Members v Elements Six Productions (Pty) Ltd.[1] It also reflects on the conundrum created by the lacuna in the LRA left unattended despite recent amendments. This is also underlined by a harmonious pronouncement in NUM v Namakwa Sands (A Division of Anglo American Corporation Ltd).[2]

2       The facts in Element Six Productions

Since the foundational cases of CWIU v BP SA^[3] and OK Bazaars (1929) Ltd v SACCAWU,^[4] recourse by employers to defeat a protected strike by paying inducement, incentives or bonuses to non-strikers though dressed up as "innocent" rewards for "hard work" has been and still is, a veritable ground for litigation. The facts of Elements Six Production were straightforward. Members of NUMSA, UASA and SAEWA had embarked upon a protected strike in pursuit of their wage demands. As to be expected, not all employees joined the protected strike. During the strike some of the non-striking employees performed extra duties, thereby enabling the employer to sustain production at a level sufficient to meet clients' demands. In appreciation of the non-striking employees' efforts in going the extra mile, the employer decided to pay them an additional pay termed "a token of appreciation".^[5] In the aftermath of the strike, striking employees were naturally aggrieved by selective payment bonuses. It is this dispute over payment of bonuses to non-strikers that found its way to the Labour Court.

The core issue before the Labour Court was whether the payment of bonuses to non-strikers amounted to an unfair discrimination against striking employees. It was contended by the applicants that rewarding non-strikers discriminated against striking employees for exercising of a right as contemplated by the LRA in terms of section 5(1) of that Act or constituted a prohibited advantage or promise of advantage for a person not utilising any right granted by the Act or for not engaging in any proceedings in terms of the Act as contemplated by section 5(3). On the other hand, the respondent retorted that it did not breach the provisions of section 5 and its payments were not discriminatory on any specified or unspecified ground.^[6] The employer's second line of defence was that the criteria it had applied in making payments was objective and rational and did not contain any corrosive effect on future strikes.^[7]

2.1    The labour court judgment

The court ruled that the payment of a "token" made to non-striking employees constituted differentiation, which amounted to discrimination within the context of section 5(1), 5(2)(c)(iii) and 5(2)(c)(vi) of the LRA.^[8] And that the discrimination was unfair in that the striking employees were prejudiced for their participation in the lawful activities of their trade union, and the exercise of their right to strike. A declaratory order was made prohibiting the employer from ever engaging in such an activity. The reasons advanced by Tlhotlhalemaje J for concluding that the employer had engaged in conduct prohibited by both subsections 5(1) and 5(3) and a declaratory order deserve a detailed analysis.

3     The lacuna

The labour court decision recapitulates the pitfalls of tokens of appreciation to non-striking employees. There is no scintilla of doubt that non-striking employees cannot be forced by their employers to do the task of striking employees. However, the LRA is silent on whether an employer can politely request non-striking employees to voluntarily perform such task. There is nothing in the LRA or any other statutory provision that prohibits an employer from utilising the services of its non-striking employees to perform work ordinarily performed by striking employees, and rewarding them for going the "extra mile".^[9] In addition, no consequences are visited upon an employer that has politely asked non-strikers to volunteer to perform work ordinarily performed by striking employees.[10] However, it is unlikely that the court would prohibit payment of "tokens" for work done during an unprotected strike, given the fact that there is no lawful right to strike that requires protection. Furthermore, the provision of section 10 of the Basic Conditions of Employment Act^[11] equally escaped the attention of the drafters during its recent amendment in regards to these vexed issues. Although consented overtime work is allowed, section 10 of the BCEA does not address the issue whether such overtime work should include work ordinarily performed by striking employees.^[12]

4     The constitutional and statutory edifice

In any discussion of the complex issue of discrimination in employment, the starting point is to look at the constitutional and statutory edifice. In that regard it is important to appreciate the trilogy of rights: the right to freedom of association,^[13] the right to engage in collective bargaining^[14] and the right to strike.^[15] The LRA sets out to amplify the said fundamental right of freedom of association^[16]. At the core of the LRA's guarantee of the fundamental right of freedom of association is the right of every employee to take part in the formation of a trade union and to become a member of a trade union.^[17] A corollary of trade union membership is the right to participate in lawful activities of the union.^[18] This brings to the fore the pivotal provisions of section 5(1) and 5(3) which reads as follows:

(1)        No person may discriminate against an employee for exercising any right conferred by this Act…

(3)        No person may advantage, or promise to advantage, an employee or a person seeking employment for that person not exercising any right conferred by this Act for not participating in any proceedings in terms of this Act. However, nothing in this section precludes the parties to a dispute from concluding an agreement to settle that dispute.

Freedom of association is further buttressed by section 187 of the LRA concerning automatically unfair dismissals. Section 187(1)(a) of the LRA provides that:

A dismissal is automatically unfair if the employer, in dismissing the employee, acts contrary to section 5 or, if the reason for the dismissal is (a) that the employee participated in or supported, or indicated an intention to participate in or support, a strike or protest action that complies with the provisions of Chapter IV.

As per the above provision, to dismiss an employee for joining or participating in the affairs of a union is therefore automatically unfair.

The endorsement of trade union rights within the Constitution,^[19] as well as the LRA,^[20] essentially provided for stronger protection of the rights of employees.^[21] A trade union can be described as the in-between body that bridges the gap between an employer and an employee.^[22] Essentially the role of a trade union is to safeguard the existing rights of its members and also improve and enhance these rights.^[23] All employees are entitled to join and participate in trade union activities.^[24] Therefore, trade unions are essential to the furtherance of the concepts of equality and democracy in the workplace as they promote the interests of employees by ensuring that employees are placed in an equal position to their employers.^[25]

The court's enforcement of the LRA's dispute resolution framework is further illustrated in Mackay v ABSA Group,^[26] where the court stated that:

All disputes arising from the employer-employee relationship must be effectively resolved. Such disputes are resolved through conciliation, arbitration and adjudication, and those of a collective nature through collective bargaining. It is clear that it could never have been intended that some disputes arising out of the employer-employee relationship are incapable of resolution in terms of the Act.^[27]

The court envisioned that the labour dispute resolution framework is deemed effective in protecting the rights of employees.^[28] Furthermore, the protection of employees' rights is enforced through the process of collective bargaining within the dispute resolution system.^[29] In National Police Services Union v National Negotiating Forum,^[30] the court pointed out that the LRA does not place any duty on either the employer or the employee to engage in the bargaining process. The courts are not given authority to determine or influence the result of the bargaining process. The outcome of such negotiations is entirely dependent on the parties themselves.^[31] This ruling essentially portrays that both parties to the bargaining process must be given equal power which instils democracy within labour relations.^[32]

It is undisputed that the balance of power in employment relationships favours employers over employees, so strikes are used as tools by employees to bring some sort of balance.^[33] Botha^[34] argues that refusal to work grants employees a significant voice regarding what goes on in the workplace. Similarly, Estreicher^[35] opines that "without the right to strike, collective bargaining becomes collective begging". In the same spirit, Chicktay^[36] advances that a strike action enables employees preserve their dignity by staging or presenting to the employer that they are "not just cogs in a machine". In addition, the Constitution entrenches the right of workers to go on strike.^[37] The right to strike is not only recognised domestically, but also through International Labour Organisation (ILO) conventions such as the Freedom of Association and Protection of the Right to Organise[38] and the Right to Organise and Collective Bargaining,[39] which advocate for the protection of workers' rights.

4.1    Did the discrimination amount to an unfair discrimination

In Elements Six Productions, there was a high demand for the employer's products and in order to meet the demands of the clients during the looming strike, the employer had to increase overtime shifts, for which employees were remunerated.^[40] The employers contended that stocks had almost depleted whilst the demand for products continued hence the need to come up with measures to continue with production in order to meet its clients' demands.^[41] However, the questions dealt with in Elements Six Productions are: how realistic is it that employees had assisted the employer voluntarily without inducement or incentives of financial gain?^[42] And would ordinary non-striking employees volunteer to perform the tasks of striking employees without an expectation of some form of reward?^[43] This article agrees with the court's finding that there was no way employees could volunteer to save the business of an employer without an expectation of a reward.

Furthermore, in Elements Six Productions, employees felt that they lost out by going on strike, as they did not get the token and were also not paid for the duration of that strike. The employees were also concerned with the fact that the non-strikers benefitted from the increase in wages attained as a result of the strike action, and the employer therefore discriminated against the striking employees by not equally paying them the token.^[44] Employees in Elements Six Productions argued that in the case of FAWU v Pets Products, once it was established that there was discrimination against employees for exercising any right conferred in the LRA, it should be presumed that the discrimination was unfair, until the contrary was established.^[45]

On the contrary, employers argued that the courts in FAWU and NUM v Namakwa Sands^[46] erred in concluding that discrimination against employees for striking was discrimination on a listed ground. This was so in that striking was not listed in section 9(3) of the Constitution of the Republic and the court in Namakwa Sands did not concede that striking was a listed ground of discrimination.^[47] It was further contended that if the employer's motive is not to unfairly discriminate, then the discriminatory conduct complained of cannot be seen as unfair.^[48] More so, if an employer can show that there was rational and objective criteria for the payment of the bonus, the employer can be justified for such discrimination.^[49] What is worrisome though about the employer's arguments is that they refused to disclose payments made to non-strikers which questions the transparency of the "rational and objective criteria" that was used.

The court referred to the case of Mbana v Shepstone & Wylie^[50] where the Constitutional Court held that within the context of employment law, the test for unfair discrimination is commensurate to that laid down in Harksen v Lane.^[51] The initial step is to establish whether the employer's policy differentiates between employees. The second step entails establishing whether that differentiation amounts to discrimination and the third step involves determining whether the discrimination is unfair.[52]

Tlhotlhalemaje J observed that employees discharged the onus placed on them by demonstrating that there was indeed differentiation which amounted to discrimination, and that in return, the employer has not been able to demonstrate that its conduct did not infringe on the rights of the employees as they had contended, nor have it demonstrated that the discrimination was fair.^[53] Tlhotlhalemaje J further observed that it is very unlikely for employees to volunteer working shifts without an expectation of a reward.^[54] More so, the veil of secrecy surrounding these payments, leads to an inference that they were not merely made as a token.

4.2    Undermining the Holy Cow of collective bargaining

In terms of what transpired in Elements Six Productions, there is a great likelihood of employers gaining an upper hand and turning collective bargaining into collective begging. In future, no members will take heed of the call of going on strike and this indirectly limits the constitutional right to strike. In addition, the practice of only awarding bonuses to non-striking employees has the effect of weakening the employees' collective bargaining effort, or at most causing discord and disunity amongst members of a union, thus undermining the right to strike and invariably tilting the scales of the power play in favour of the employer.^[55] In a similar vein, when non-striking employees perform the tasks of striking employees, it means employers can continue with the business as usual attitude. Such practices can be used as a strategy by employers to negate and dilute the intended effects of the protected strike action embarked upon by employees.^[56] This undoubtedly degrades the status of collective bargaining as a constitutional tool to resolve disputes; it defeats the purpose of the LRA as identified in its section 1; and undermines the rights of employees to freely associate and take part in the lawful activities of their unions.^[57]

Non-striking employees who are asked to perform the tasks of those on strike in addition to their normal tasks can view this as an opportunity to supplement their salaries during the duration of the strike. This can induce them to refrain from joining strike actions, or abandon the strike midstream, or be deterred from taking part in strike actions in future.^[58] Additionally, the exercise of a right to strike with a view to advancing and addressing employees' legitimate concerns might be rendered ineffective, if not nugatory. In the alternative, if in the end, the striking employees' demands are met, the non-striking employees who fall within the bargaining unit, and who had performed the tasks of those on strike in addition to their own, would end up benefitting twice, that is, an increase in salary as a result of the sacrifices made by their colleagues, and from an extra income derived from the strike action. This clearly cannot be a fair labour practice.^[59]

The consequences that flow from such disunity may be dire for non-striking employees, given the common knowledge that strikes normally tend to turn violent at or near workplaces. "It is not uncommon for strike violence to spiral into communities and the courts would be remiss and imprudent in not acknowledging these far-reaching consequences".^[60] For example, in the case of Transnet SOC Ltd v SATAWU,^[61] "a non-striking truck driver lost his life after a brick was thrown at his truck and hit him on the head".^[62] Additionally, in SATAWU v Ram Transport South Africa (Pty) Ltd,^[63] employees participating in a protected strike, threatened replaced employees in terms of section 76(1)(b) of the LRA with sticks and forced them to vacate the workplace.

The function of collective bargaining is to ensure that parties come to an understanding about the issue in dispute and that the dispute will not necessitate industrial action or lock-outs to reach a resolution.^[64] This would benefit both the employer and the employee in that the employer would save on production time lost and the employee would not forfeit the right to be paid. In Ceramic Industries Ltd t/a Betta Sanitary Ware v NCBAWU,^[65] the court stated that the objectives of the LRA must be interpreted in conformity with international law and the Constitution.^[66] It must be understood that the Constitution was enacted to redress the injustices of the past not only within society but also within the field of labour. It is for this reason that the LRA has the dual function of inculcating transformation in the workplace as well as in society at large because an injustice to an employee at a workplace adversely affects his family and a community that he resides.

In Foodgro (A division of Leisurenet Ltd) v Keil,^[67] the Labour Appeal Court acknowledged that unjust laws that govern society negatively impact on labour relations.^[68] In addition, labour peace essentially entails the elimination of strife which takes the form of strikes and lock-outs. By engaging in collective bargaining, parties would be able to resolve disputes amicably and speedily rather than resorting to strikes and lock-outs.^[69] This, in turn, would result in a decrease of work days lost and greater productivity.^[70]

4.3    The Sword of Damocles[71]

Granted that an employer is statutorily prohibited from using economic incentives to defeat a protected strike, does that mean an employer is emasculated from taking measures aimed at ensuring the viability of its business? It bears repeating that strikes are intended to cause financial loss.[72] A careful reading of the strike provision indicates that the answer is no. This is because section 67(5) provides an escape route in the face of a crippling protected strike. Even in the context of a protected strike, an employer still possesses the ultimate weapon of last resort under section 67(5). If it can be proved that the economic harm caused by an industrial action had become unbearable, dismissal of protected strikers on the grounds of operational requirements[73] may be justifiable. Put simply, dismissal only becomes a weapon in exceptional circumstances, when operational requirements dictate its use.[74]

The LRA recognises that an employer may dismiss employees if the operational requirements of its business make such a dismissal unavoidable.^[75] This is supported by the recent case of SATAWU v G4S Aviation Secure Solutions.[76] Section 213 of the LRA defines operational requirement as one based on "the economic, technological, structural or similar needs of the employer". However, failure by the employer to prove that the reason for dismissal is a fair reason based on the employer's operational requirements will result in the dismissal failing the substantive test.^[77] In addition, courts will uphold a dismissal as fair only where such dismissal was both substantively and procedurally fair.^[78] Du Toit^[79] argues that "a fair reason for dismissal is not limited to efforts to save a business but may be related to any legitimate business objective, including bona fide attempts at improving its efficiency, profitability or competitiveness". Furthermore, a measure of last resort in pursuing the objective needs to be demonstrated by the employer and by showing that all alternative steps have been considered to prevent retrenchments.^[80]

On the other hand, dismissal of an employee because of his or her participation in a protected strike will be labelled as an "automatically unfair dismissal".^[81] In the same vein, section 67(4) of the LRA provides that "an employer may not dismiss an employee for participating in a protected strike". However, section 67(5) states that "it is lawful to dismiss a striking employee for reasons based on the employer's operational requirements". Whilst section 77(3) provides that:

A person who takes part in protest action or in any conduct in contemplation or in furtherance of protest action that complies with subsection (1), enjoys the protections conferred by section 67.

The court in SA Chemical Workers Union v Afrox Ltd,^[82] was faced with an enigma created by the LRA whereby section 67(4) read together with section 187(1)(a), contradicts section 67(5) which does not prohibit an employer from fairly dismissing an employee for reasons based on an employer's operational requirements. The court then referred to the case of Johnson and Johnson v CWIU,^[83] which stated that a strike becomes counter-productive if it threatens the very existence of the enterprise against which it is directed.^[84] However, the question still remains, does this not undermine the purpose of a strike and its intended consequences?

The vital question is: how much economic hardship an employer is required to tolerate before it is entitled to retrench striking workers? It is trite that economic harm through industrial action is both expected and accepted by all parties involved in collective bargaining.[85] The complex issue of retrenchment of strikers involved in a legal strike is freighted with history.[86] However, the power of the employer to inflict "capital punishment" on the strikers who partake in a protected strike is constrained by the fact that such dismissals are categorised as automatically unfair.[87] The vexed question that arises in each case is whether the employees were dismissed for participating in a protected strike or whether they were dismissed for operational requirements of the employer. Where the reason for the dismissal is participation in a protected strike, and not the employer's operational requirement, then the dismissal will be branded as automatically unfair in terms of section 187(1)(a).

It is submitted that rather than contravening the safeguards in section 5(1) and (3), an employer confronted by prolonged and crippling protected strike, has a leeway of resorting to the dismissal of strikers on the ground of operational requirements. For instance, in NUMSA v Dorbly Ltd,[88] the retrenched employees were taking part in a protected national strike. The Labour Court had to determine whether their retrenchment constituted a dismissal for operational requirements or whether it was automatically unfair in terms of section 187(1)(a). An important question concerned the extent to which an employer is expected to endure the harm occasioned by industrial action before it is permitted to effect a dismissal for operational reasons. On the facts, the court found the dismissals to have been genuinely grounded in operational requirements, but held that they were procedurally unfair because the employer took the decision to close down the operation prior to engaging in proper consultations with the union.

At first glance, it would appear that an employer in a protected strike is statutorily emasculated. However, an employer can still invoke replacement labour in a more limited right for continuous production or retain the lethal power of dismissal. The employer can invoke operational requirements to dismiss employees engaged in a protected strike although it is not that simple. Therefore, while the LRA provides important safeguards with regard to freedom of association, collective bargaining and strike, it does not entirely insulate protected strikers from dismissal. We cannot also lose sight of the fact that the underlying purpose of labour law is to serve as a countervailing force against the power of the employer. Otto Khan-Freund's[89] aphorism still carries force: "The relations between an employer and an isolated employee or worker is typically a relation between the bearer of power and one who is not a bearer of power". Hence, preserving job security is one of the overarching objectives of the LRA and to the same extent the Constitution.[90] In a nutshell, employment vulnerability is an abiding feature of contemporary world of work.

4.4    A declaratory order

The court in Elements Six Productions deemed a declaratory order prohibiting repetition of similar conduct as appropriate.[91] The court reasoned that "it would be neither competent nor appropriate for this court to grant any monetary relief in this case".[92] The author however, disagrees with this court's declaratory order as it is hardly a slap on the wrist for employers. Although it is plausible for not awarding damages, but the courts could have considered compensation (no need to prove damages) for unfairly discriminating against the striking employees in terms of section 158(1)(a)(vi) of the LRA which reads: "The Labour Court may - (a) make any appropriate order, including – (vi) an award of damages in any circumstances contemplated in this Act." The author argues that compensation could possibly have a deterrent effect to employers who willy-nilly undermine collective bargaining in future.

5     Conclusion

Elements Six Productions invariably demonstrates that if employers, in a protected strike context, are allowed to pay incentives, rewards or bonuses to non-strikers benignly styled as "token of appreciation" for hard work, then, there is a real danger that one of the core objectives of the LRA, namely; promoting collective bargaining, may be defeated. In the same breadth, incentivising non-strikers also impedes speedy resolution of labour disputes.^[93] The author being cognisant of the employer's position of meeting the demands of their clients during the looming strike, and avoiding loss of market share, it is understandable that they had to increase overtime shifts, for which non-strikers were remunerated. Moreso, strikes in South Africa are becoming more common and it cannot be gainsaid that this adversely affects the profitability of the business and the economy at large. Inasmuch as the employer has the right to find means to keep his business afloat, we argue and maintain that the right to strike should not be undermined by means of an incentive innocently dressed as a token.

It is beyond doubt that payment of bonuses to non-striking employees unavoidably places strikers at a huge disadvantage. So NUMSA's complaints about payment of bonuses to non-strikers has the rigour of logical principle. Even so, they have practical force and some ethical appeal. Rewarding non-strikers would affect or influence a union member's decision whether or not to strike in the future. This is principally due to the fact that some strikers may feel that to strike is futile because the benefit of it is conferred also upon non-strikers, and moreover the non-strikers get something "extra" in any event if they work during the strike. The non-strikers may say that their decision not to strike was vindicated because firstly, they got what the strikers wanted in any event, that is, a higher wage. Secondly, they received additional remuneration in the form of overtime payment. Thirdly, they were rewarded for working during the strike in the form of additional payment. In short, there is no justification for giving rewards to non-strikers because they refrained from exercising their statutory right to strike.

The approach dictated by the Elements Six Productions court to the interpretation of the relevant provisions of the statute cannot be faulted and the case, particularly when read in tandem with antecedent Labour Court decisions, sends an unmistakable message that retaliatory economic measures to defeat a protected strike will not be countenanced. The last words, therefore belong very firmly to Arendse AJ:

If employers, in a protected strike context, are allowed to pay incentives, rewards or bonuses to non-strikers albeit that they are dressed up as 'innocent' rewards for 'hard work' then there is a very real danger that the Holy Cow called collective bargaining, may be undermined or compromised in the process. Indeed, in my view, in the context of a legal strike, payment of any reward, incentive, or bonus should be strictly prohibited. Such payment is unnecessarily provocative and fuels an adversarial approach to collective bargaining.

Since the LRA is mute on whether an employer can respectfully request a non-striker to perform the work of a striker, the legislature should consider adopting a provision which explicitly prohibits an employer from engaging in such conduct. If such conduct persists in contemporary labour environment, its effects are that the strikers would be deterred from striking in future, conversely, non-strikers would be encouraged not to go on strike at all. More so, an offer of a reward to non-strikers who go beyond duty should be per se prohibited, as this is done with an ulterior motive. Instead of luring employees with a reward, employers still have an option of invoking replacement labour or dismissal based on operational requirements.

 

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National Police Services Union v National Negotiating Forum 1999 20 ILJ 1081 (LC)

NUM v Black Mountain Mineral Development Co (Pty) Ltd 1997 4 SA 51 (SCA)

NUM v Namakwa Sands (A Division of Anglo American Corporation Ltd) 2008 29 ILJ 698 (LC)

NUMSA obo Members v Elements Six Productions (Pty) Ltd 2017 ZALCJHB 35 (7 February 2017)

NUMSA v Bader Bop (Pty) Ltd 2003 24 ILJ 305 (CC)

NUMSA v Dorbly Limited 2004 ZALC 47 (8 June 2004)

NUMSA v Vetsak Co-operative 1996 17 ILJ 455 (A)

OK Bazaars (1929) Ltd v SACCAWU 1993 14 ILJ 362 (LAC)

Pep Stores (Pty) Ltd v Laka 1998 19 ILJ 1534 (LC)

SA Breweries v CCMA 2002 23 ILJ 1467 (LC)

SA Chemical Workers Union v Afrox Ltd 1999 20 ILJ 1718 (LAC)

SACCAWU v Afrox Ltd 1999 20 ILJ 1718 (LAC)

Sali v National Commissioner of the South African Police Service 2014 ZACC 19 (19 June 2014)

SATAWU v G4S Aviation Secure Solutions 2016 ZALCJHB 10 (13 January 2016)

SATAWU v Ram Transport South Africa (Pty) Ltd 2014 ZALCJHB 471 (26 November 2014)

Sidumo v Rustenburg Mines Ltd 2007 28 ILJ 2405 (CC)

Steenkamp v Edcon Limited 2016 ZACC 1 (22 January 2016)

Transnet SOC Ltd v SATAWU 2012 ZALCJHB 107 (12 October 2012)

Legislation

Basic Conditions of Employment Act 75 of 1997

Constitution of the Republic of South Africa, 1996

Labour Relations Act 66 of 1995

International instruments

Freedom of Association and Protection of the Right to Organise Convention 87 (1948)

Right to Organise and Collective Bargaining Convention 98 (1949)

Internet sources

Collins English Dictionary 2018 https://www.collinsdictionary.com/dictionary/english/sword-of-damocles

Collins English Dictionary 2018 Sword of Damocles https://www.collinsdictionary.com/dictionary/english/sword-of-damocles accessed on 8 November 2018

 

LIST OF ABBREVIATIONS

BCEA	Basic Conditions of Employment Act
CILSA	Comparative and International Law Journal of Southern Africa
CLL	Contemporary Labour Law
ILJ	Industrial Law Journal
ILO	International Labour Organisation
Indian J Ind Relat	Indian Journal of Industrial Relations
JETEMS	Journal of Emerging Trends in Economics and Management Sciences
JMAS	Journal of Modern African Studies
LDD	Law, Democracy and Development
LRA	Labour Relations Act
Mich L Rev	Michigan Law Review
PELJ	Potchefstroom Electronic Law Journal

 

 

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