Violent strikes ruling is far-reaching
The labour court ruling barring striking Dis-Chem workers from protesting and picketing outside the retail pharmacy group’s premises will have a lasting effect on the power dynamic between employers and unions in strikes.
As more trade unions resort to violent strike action in their efforts to pressure employers to concede to their demands, which are mostly wage related, the labour court has served as a last resort for frustrated employers.
While the court would ordinarily stop short at issuing interdicts in urgent cases related to the nature and lawfulness of the strike itself, the extraordinary ruling delivered last week in the matter between Dis-Chem and the National Union of Public Service and Allied Workers (Nupsaw) is farreaching.
In explaining why the union had forfeited the right to conduct a picket or protest as part of strike action, acting judge Sean Snyman told Nupsaw that if its members “cannot behave, they cannot play”.
The union’s members were engaged in a violent protected strike over wages and recognition rights at the company when nonstriking workers were assaulted and intimidated.
As Nupsaw does not have a recognition agreement with Dis-Chem, it has been unable to negotiate its demands.
Labour consultant Tony Healy said that in most similar disputes over organisational rights most employers were willing to enter into negotiations only with unions with majority representation.
Nupsaw members make up 13% of the company’s workforce. The union, however, still has the right to declare a dispute with Dis-Chem over the workers being stripped of their rights.
“In no universe can assaulting and intimidating fellow employees, blockading roads and premises and damaging property and wielding weapons be seen as peaceful protest,” Snyman found.
Dis-Chem and Nupsaw had appeared before the court in the past in cases involving the stipulation of picketing rules. But despite this, the union’s members did not play according to the rules.
The ruling means any employer who can prove that the workers broke the rules stipulated by the Commission for Conciliation, Mediation and Arbitration upon issuing a strike certificate can approach the court for interim relief.
In the case of Dis-Chem, the judge suspended the action until February 27, by which time the dispute could have been resolved.
A senior associate at Baker McKenzie’s employment and compensation group, Lauren Salt, said that the ruling confirmed that employers might seek urgent relief pending the outcome of a dispute related to an alleged breach of picketing rules, “which can include forfeiture or suspension of the right to picket”.
The striking workers would now have to find other creative ways to demonstrate their discontent with Dis-Chem.
In Snyman’s view, the only way to stop the violence and intimidation from continuing is to attach “consequences”, by which employees and trade unions that act unlawfully should forfeit their rights under the Labour Relations Act. The act upholds lawful picketing during strikes.
However, behaviour such as that engaged in by Dis-Chem employees at Canal Walk in Cape Town last week, when they clashed with other workers and the police, flies in the face of such action.
Snyman described the violence as “deliberate, calculated and persistent”.
Although the judgment was informed by a previous ruling in the same court dealing with picketing rules, Salt says the bigger picture relates to the right to strike in its entirety.
ACTING JUDGE SEAN SNYMAN TOLD NUPSAW THAT IF ITS MEMBERS CANNOT BEHAVE, THEY CANNOT PLAY