HAND-BRAKE ON STRIKES: What do you do if a strike goes on for too long and becomes violent?
Purpose of strikes
The purpose of a strike or lock-out is to exert enough economic pressure on an employer to agree to specific demands – usually for better pay and benefits. Workers will be protected from dismissal if they follow the legal procedures and play by the rules of the game. The business comes to a stand-still and workers sacrifice their wages. The longer this stand-off lasts, the more tensions grow – who will blink first?
Sadly, the tensions often lead to violence, damage to property and hostile working relationships. And worse – the longer a strike lasts, the less likely, it will produce worthwhile results. Research has shown that a strike starts to become dysfunctional after one week. And usually workers lose out the most after a week of lost wages.
The recent NEDLAC Code of Good Practice is designed to promote more constructive collective bargaining and stop violent strikes. It introduces the notion of peaceful strikes to the existing procedural requirements for a protected strike.
Now there is a new effort to put a hand-brake on protracted or violent strikes – advisory arbitration. The LRA Amendment Bill 2017 proposes the establishment of an advisory arbitration panel. In terms of the proposed new s150A-D, a party to the dispute or the Director of the CCMA can appoint an advisory arbitration panel. The panel must urgently investigate the cause and circumstances of a strike or lock-out and make an advisory award to assist the parties to resolve the dispute.
Unless agreed between the parties, the Director may only appoint the panel if –
- The strike or lock-out is no longer functional to collective bargaining, having continued for a protracted period with no resolution imminent;
- There is an imminent threat of constitutional rights being violated though violence or damage to property;
- The strike or lock-out has the potential to cause a national or local crisis.
The panel must issue the award within 7 days of the arbitration hearing. The parties will have 7 days to indicate acceptance or rejection of the award. If they do not indicate, they are deemed to have accepted it. The parties must consult with their members before rejecting an award. If they reject it – they must motivate why they reject it.
This is a welcome innovation. Its success will depend on how quickly the arbitration process can be completed from the date of appointing the panel to the date of issuing the award. If it’s quick – it will be an effective hand-brake. If it’s too slow – it could have the reverse effect.
TIP: Employers and unions would be well advised to take heed of the spirit and letter of this new effort to curb lose-lose strikes and lock-outs. They could consider rules on how they could conduct peaceful action. And they could agree to apply for advisory arbitration if they have not resolved their dispute after a fixed period of strike or lock-out action.
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Source: Deale Attorneys