CONTEMPTIBLE ACTIONS
Strikes are often very violent in SA, and it’s time that companies change tack to hold unions responsible for the damage
Violence around strikes is a huge and growing problem. That much is clear from labour court judgments in which there is regular evidence of what a judge last week called “barbaric and violent actions” strewn like buckshot across the pages.
Court orders that strikers may not engage in violence are often ignored. One judge speaks of how it is “not uncommon” for a court to hear that when its orders were served on the strikers, they did not accept them, “or threw them to the ground and trampled on them”.
This week’s decision by judge Anton Steenkamp concerning a strike in Atlantis, near Cape Town, had particular force. The labour action at GRI Wind Steel SA involved members and leaders of the Association of Mineworkers & Construction Union (Amcu), and though it was a protected strike, it quickly deteriorated. Strikers blockaded entrances and exits, set tyres alight and prevented non- striking workers from entering, brandishing knobkerries, hammers and steel bars. They assaulted and threatened nonstrikers, threw beer bottles and other objects at vehicles coming onto the premises and made fires on a private road.
The judge commented on the
“all too common SA context” of a protected strike turning violent, striking workers committing unlawful acts, and the police just standing by.
In this case, management asked the court to find Amcu and some shop stewards in contempt of court for not obeying an earlier court order. The judge was scathing about the violence that characterised the strike and questioned the behaviour of the union leaders. But they wriggled out of a contempt order because of the high threshold of proof required.
The judge was concerned that “perpetrators of violent acts have come off scot-free”, something for which he largely blamed the police, “who have not acted and arrested” those responsible.
Apart from a growing sense of alarm about uncontrolled — perhaps uncontrollable — violence, I found two important takeaways from the judgment.
First, unions have an Achilles heel in relation to violent strikes, but management and their lawyers have not focused on it. Several unions and their leadership have been found in contempt of court, sometimes with significant fines imposed. But these fines have generally been suspended on condition that the union is not again found to have acted in contempt of a court order. Now a sword hangs over a number of unions: members must act lawfully, since another contempt conviction will trigger fines of R1m or more.
Against this background, management ought to ensure that its court orders to halt violence are better drafted, with an eye to a possible contempt application if violence continues.
A change in strategy
Where a court order instructs union leaders to take concrete action, like putting up anti-violence notices or addressing members via loudhailers, and they fail to do so, contempt will be far easier to prove. As the court said in this week’s case: the initial interdict should be drafted in terms that hold the responsible trade union accountable. From my reading, orders are too often merely negative in what they aim to achieve, rather than considering the possibility of later contempt proceedings. A change in strategy here might make a significant difference.
The second point is the handsoff role played by the police. This seems another factor for employers to investigate, perhaps through serious sectoral consultations with the new police commissioner.
If that doesn’t work, employers could learn from the litigation strategy that forms part of many campaigns in SA. It hasn’t been tried before, but a carefully crafted test case, suing the police for damage caused by their inaction, would be worth investigating.
The judge was concerned that ‘perpetrators of violent acts have come off scot-free’, something for which he largely blamed the police