SAFCEC STRIKES OUT

Is unprotected strike action part of employees’ right to collective bargaining? A judge says not, which has left some workers short of a year-long project bonus

Unlawful strikes pose such a threat to SA business that some employers, especially those vulnerable to work stoppages, have devised a bonus system to encourage workers not to join in.

Among them, the SA Forum of Civil Engineering Contractors (Safcec) and the Constructional Engineering Association of SA have a deal with the National Union of Metalworkers of SA (Numsa) and other unions. The “project labour

agreement”, finalised in 2010, commits both sides to using fair and proper channels and practices to resolve differences.

Though it deals with a range of issues, its “project bonus” for workers is particularly significant. The bonus is equal to 15 hours of wages for every completed month worked on a project, and it is paid “upon demobilisation”, or when the employee’s services on a project are terminated. However, no bonus is payable if an employee is dismissed, resigns or absconds.

But what about workers who engage in an unprotected strike during the life of a project? Would they lose their bonus for the month in which they unlawfully stopped work, or would they forfeit the bonus for the whole year?

In the case of Civil & Power Generation Projects, a member of Safcec, the employer interpreted the agreement to mean a whole year’s bonus payments would be lost. So when more than 200 Numsa members involved in a project began unprotected strike action in October 2014, the company refused to pay those employees the year’s project bonus.

Numsa, however, said the bonus loss applied to just the month in which the unauthorised strike took place.

On referral to the Commission for Conciliation, Mediation & Arbitration, commissioner Sipho Talane upheld the union’s interpretation of the agreement.

The employer then turned to the labour court to reconsider Talane’s finding.

In his analysis, acting judge

Sean Snyman said he was “unfortunately compelled” to say that, in this case, the commissioner had not remained objective. After carefully examining Talane’s reasoning, he said the court was convinced Talane “simply found it unpalatable that employees should forfeit their entire project bonus for the year for one incident of unprotected strike action”.

“It just did not sit right with him, and he adapted his interpretation [of the agreement] accordingly.”

However, said Snyman, personal views of what is fair are not a permissible basis on which to interpret an agreement — particularly when a decision has implications for the whole industry.

Perhaps the most telling of the commissioner’s findings, he said, was the view that unprotected strike action should be seen as part of employees’ right to collective bargaining. This was “completely unsustainable and a misdirection”.

Letter of the law

The Labour Relations Act (LRA), said Snyman, is aimed at “orderly and legitimate collective bargaining”. An unprotected strike would run counter to this and constitute “very serious misconduct”. No-one acting in a way prohibited by law could be said to be exercising his or her right to collective bargaining.

The only construction of the agreement satisfying its “clear language” is that employees would forfeit their entire project bonus if they were to embark on an unprotected strike, said Snyman. The agreement is “squarely aimed” at unprotected strike action and makes it clear that a single transgression could lead to the entire bonus being forfeited. “It serves as the strongest discouragement possible” not to flout the LRA.

“A proper interpretation of the [agreement] leaves me convinced that it was intended as a measure to discourage unprotected strike action in the strongest possible terms [with] a total forfeiture of the project bonus where there is unprotected strike action.”

Talane’s interpretation negated the intended consequences of violating the agreement’s “strict prohibition” of unprotected strike action, and was “subjectively intended” to cause the “least possible prejudice to employees”.

Some employers have devised a bonus system to encourage workers not to join unlawful strike action