Muscle may be added to LRA

Feature article….

BS000318LRA needs beefing up, says DA ….

A political confrontation is no doubt about to occur and possibly street unrest regarding the parliamentary notice now gazetted tabling a Bill proposing changes to the Labour Relations Act (LRA).

It also proposes empowering  labour courts to declare the cessation of a protected strike or to refer the protected strike for arbitration in the event of riot damage.

Public comment to Parliament was allowable until December 7 on the Labour Relations Amendment Bill PMB2-2014, which DA MP, Ian Ollis, intends introducing a private member’s bill.

Responsibility for violence

The opening wording of the gazetted notice stated that notice of an intention to “amend the Labour Relations Act (No. 6 of 1995) to make provision for trade unions to be accountable in the event of violence, destruction of property and intimidation by union members during a protected strike, and comments are requested.”

The background to the Bill notes that “statistics from recent protest action in the metal and engineering sector show that in the first two weeks of the strike, 246 cases of intimidation, 50 violent ‘incidents’ and 85 cases of vandalism were recorded.”

Views of Cosatu

Cosatu spokesperson Patrick Craven said, in response to DA statements issued as result of the gazette being published, “COSATU will campaign relentlessly, thorough the alliance, in Parliament, at the Constitutional court and in the streets, to ensure that such a law is defeated.”

By “alliance”, Craven is presumably referring to factors such as whether ANC MPs will join ranks and vote against the Bill at portfolio committee level when introduced.   This meeting will not occur until at least February and March 2015.

It is to be noted that as a private member’s Bill, this Bill is not tabled by the minister of labour, nor is associated in any way to any draft or proposal emanating from the department of labour.

How to strike properly

 The Bill, as proposed, provides for the accountability of trade unions in the event of violence, destruction to property and intimidation by union members during a protected strike.  The legislation also requires unions to educate workers regarding violence and on labour law procedures before strikes and by law unions are to provide marshals for crowd control who have been

ian ollisOllis, who is shadow minister for labour, says that his Bill also proposes that “courts would be empowered to stop a strike that is  properly trained for such and “to prevent criminals infiltrating union ranks”.excessively violent by forcing the parties into arbitration, to declare a violent strike as unprotected and to award damages against unions that have not implemented  such processes.

Bill not needed

The proposals also state that courts would be empowered to award damages against unions that have not implemented the law’s required staff education and crowd marshal training.

Cosatu flatly rejects the Bill. Says Craven, “Cosatu has consistently opposed violence, intimidation and damage to property during strikes and demonstrations, all of which are offences under existing laws and therefore require no new law to deal with them.”

The difficulty is holding unions to account for violence, a matter which is being attempted to be defined by Ollis, outsiders asking whether laws passed by Parliament are the answer or the problem.

There also appears to be two arguments, or camps of thought, on violence associated with strike action in South Africa.  Many commentators and a wealth of labour lawyers and have pronounced upon these arguments and no doubt they will emerge in Parliament in more detail should the Bill get to the point of being debated.

Two views

The points seem to be the extent to which community poverty and frustration extend into the situation, whether the answer to solve violence exists in the workplace and whether the ability of any law to criminalise contraventions of labour relations tenets can work and if this is the answer.

The kind of frustration that is evident become obvious, as media reported, when a union member exclaimed during the NUMSA metalworkers strike, “If we settle the strike and we get back to work we can save our company and we won’t lose our houses and our cars.   Why on earth would we go to court and start fighting again, risk everything, to get maybe a little bit of money compared to losing all our belongings?” he asked.  This point is raised by Ollis.

But damage to property is the least of the problems, says UCT’s humanities dean, Sakhela Buhlungu, in a speech in Cape Town recently. “The real thing is the loss of lives. With damages, in fact the beneficiaries, if this Bill goes through, will be the people who own property.   It is the poor people who will be caught in the crossfire because they are viewed as  scabbing. How do you compensate those people?  Do you say the unions must pay for lost lives?  You can’t quantify that”, she told her audience.

Poverty driven

Clearly the violence is well outside the arena of whether collective bargaining is working or not but the one view is that it is another manifestation of community frustration amongst those living below the breadline.

Buhlungu said to her audience, “Look at domestic violence; it is out of control.  Look at child rape; it is out of control.  Look at violence by the police against the public; it is out of control.  Violence is so pervasive that, in fact, it would be a surprise if a strike were not violent.”   Clearly, she said, the passing of laws will not resolve such issues.

On the same side of the coin also is the pragmatic view noted by Graeme Simpson, renowned labour writer of many years who in 1994, the year of independence, wrote, “The potential of the workplace as an agency for social change is severely under-utilised, and the narrowly conceived strategies to insulate industrial relations thus actively undermine the potential for relative peace (in the workplace).”

In the context of the violent strikes at that time (Checkers etc), Simpson said, “The vision of most employers has remained rather conservatively limited to futile attempts to insulate or protect the workplace from encroaching violence, rather than engaging in any way with the origins of the problem beyond the factory gates.”

Township stress

Simpson noted that research conducted then by the Centre for the Study of Violence and Reconciliation had shown that community-based violence (whether political or criminal) and the trauma associated with victimisation and stress resulting from potential or indirect victimisation, had the effect of broadly polluting workplace relationships.

There is a vital need – with attendant advantages – for business and trade union leaders, said Simpson, to engage jointly in interactive planning to harness the potential of the working environment as a proactive arena of peaceful social change, whilst simultaneously addressing the concrete needs of the most victimised township communities in general.

In the meanwhile the Centre for the Study of Violence and Reconciliation has evolved a four-pronged approach, it says on its current website, for dealing with the impact of violence on industrial relations. These programmes include the idea that the workplace is a place where violence-related trauma can be treated and training must be given to support and counsel traumatised co-workers.

Bigger business role

Communication, says the Centre, to generate information and sensitivity to the shared problems of violence and their influence on industrial relations is much required and importantly all companies should engage in community development and upliftment involving violence monitoring and conflict resolution processes beyond the shop-floor.

Also the Centre sees as an imperative that there have to be more community development initiatives from all businesses with workforces where worker or community representatives are party to decisions on allocating resources for corporate social upliftment programmes.

The second camp of thought clearly see Marikana as a Rubicon that was crossed which has so totally changed the labour environment that labour courts must have more powers to administer their decisions and that it is the unions that must change. The Bill proposes changes by criminalising failure to adhere to such amendments to the Labour Relations Act or at least making perpetrators culpable. Enough is enough, is the thought pattern.

Said Ollis in a DA statement as the Bill was tabled in Parliament by the Speaker, “A law is needed to ensure that unions be held responsible for all conduct that could potentially cause foreseeable damage to property, result in injury or loss of life.”

“Members of the public and business owners should thus exercise their rights and hold unions accountable for damage to property resulting from strike action,” he concluded.

Round the corner from Parliament, JP Smith, who is responsible for safety and security on the Cape Town mayoral committee said angrily a week or so ago, when accounting for all the damage done by strikers was being accounted for, whether by union members, just frustrated poor people or Cape skollies, “It is about highlighting the individuals, prosecuting them, exposing them to the media. What we need is for actions to have consequences for individuals.”

President’s response

Meanwhile, when speaking in Parliament, President Zuma did indeed condemn the violence associated with the Numsa strike but he gave no indication that concern about violence would result in fundamental changes to policy or legislation, as proposed by Ollis.

“We have enough instruments in our labour relations machinery to resolve labour disputes,” said Zuma to the National Assembly.

According to Patrick Craven of Cosatu, the “draconian principle” of criminalizing unions by default ignores the fact that employers are also at fault and he sees the threat to award financial damages against a union as having the potential to bankrupt unions and force them to disband, “which is surely what the DA, and its friends in business, want”, he added.

Most discount this argument as an exaggeration although it might appeal to Craven’s own audience.

COSATU needs collective bargaining

Craven added that in Cosatu’s view by empowering courts to force employers and unions into arbitration where strikes are excessively violent, or declare such a strike unprotected “would give the state unparalleled power to undermine collective bargaining and the basic human right to withdraw one’s labour.”

The department of labour recently released its Annual Industrial Action Report and this makes for compelling reading, says Johan Botes, director at Cliffe Dekker Hofmeyr, who no doubt will make submissions to Parliament on the subject of the new Bill.

“Most worrying,” notes Botes “is the fact that the percentage of unprotected strikes has increased from 2012 to 2013.   The report indicates that during 2012, 54% of strikes were protected whilst this number fell by 6% in 2013.”

“This may suggest a number of troublesome issues, including lack of regard for the law or the consequences of unlawful conduct, growing frustration and antipathy towards employers, or further support for the view that our collective bargaining processes and (SA labour) practices are in dire need of an overhaul.”

More jobs lost

Botes says it also worrisome that large groups of employees are being exposed to dismissal as result of their participation in unprotected industrial action whereas focus surely ought to be on how to save jobs and limit or prevent unnecessary dismissals.”

“The need for greater compliance with legal requirements before embarking on industrial action should be more emphasized, when considering the alarming reports of other unlawful activities connected with strikes, whether protected or unprotected, and which activities include assault, intimidation and causing damage to property,” he notes.

The ANC, as a party or alliance, has not made its views known at this stage on the Bill, nor any stance to be adopted by its party whips.
Ollis of the DA is convinced that Parliament must pass such an amendment to the LRA “where action could result in injury or loss of life”, thus ratcheting the parliamentary argument up a notch or two.

Fall back

Last word goes to the background of the Bill itself which states, “Though the Regulation of Gatherings Act 1993 the law imposes restrictions and prohibitions upon gatherings and demonstrations that cause “riot damage” to third parties, the current provisions within the legislation fail to address instances where damage caused to persons and property by strikers in the course of promoting the objects of the strike and which does not necessarily occur within the structures of a gathering or demonstration.”

Ollis says, “Indeed, harm caused by strikers often occurs underhandedly at strike-breakers’ homes and as strike participants move to and from strike locations – violence and damage to persons and property therefore occurring outside the formal strictures of a sanctioned strike or gathering, yet acting in furtherance of union-supported collective action.”

He concludes, “This Bill thus seeks to provide a statutory duty on trade unions to take reasonable steps to prevent harm to persons and property within the Act.”
Other articles in this category or as background
http://parlyreportsa.co.za/labour/labour-committee-turns-away-strikes/
http://parlyreportsa.co.za/labour/labour-relations-act-changes-passed/
http://parlyreportsa.co.za/bee/rumblings-in-labour-circles-on-bee/

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