LRA AMENDMENTS 2018
Early in this year the Department of Labour will be amending the Labour Relations Act to provide for picketing by collective agreement or by determination by the CCMA in terms of picketing regulations.
Furthermore, the legislative bill, which will be passed early in 2018, says that no picket in support of a protected strike or opposition to a lockout may take place, unless picketing rules are agreed to in a collective agreement or in a separate agreement.
Over and above this, businesses who are in a designated essential service must have a minimum number of employees who may not strike to ensure that the life, personal safety or health of whole or part of the population, is not endangered.
The CCMA may appoint an advisory arbitration panel in the public interest. The commission must facilitate a resolution of a dispute at any time after the commissioner has issued a certificate of an unresolved dispute or a notice of commencement of a strike or lockout.
The panel of the commission may only facilitate a resolution of the dispute if directed to do so by the minister of labour, or on application by a party to the dispute, or if ordered to do so by the Labour Court.
Likewise, the parties can agree to refer the dispute for facilitation ifa strike or a lockout is no longer functional to collective bargaining in that it has continued for a protracted period of time and no resolution of the dispute appears to be imminent, or if there is an imminent threat that constitutional rights may be or are being violated by persons participating in or supporting the strike or lockout through the threat or use of violence or the threat of/or damage to property.
Furthermore, if the strike or lockout causes, or has the imminent potential to cause an acute national or local crisis affecting the conditions of a normal social and economic functioning of the community or society.
This means that the bill will allow for the government to intervene in the case of a strike that has become destructive and no longer functional.
The strikes seen on the platinum belt, which became violent and destructive, will no longer be allowed to occur.
The disaster seen at Marikana during the platinum strike would be avoided in the future. The Department of Labour will receive assessors in order to assess whether the strike is destructive and or non-functional.
The employer list of assessors will be determined by organised business, while the trade union list will be determined by organised labour.
The National Economic Development and Labour Advisory Council will oversee these lists.
Should either the employers or employees fail to provide a list of assessors, the director will appoint a person with the requisite expertise to represent the interests of that party and the proceedings.
DISSENT: Workers at the Passenger Rail Agency of South Africa march to Prasa’s offices in Pretoria in protest against outsourcing. Picture: Bongani Shilubane/African News Agency/ANA
The chairperson of the panel of assessors, after consultation with the assessors, may conduct an arbitration in order to make an advisory award fairly and quickly, but it must deal with the substantial merits of the dispute, with the minimum of legal formalities.
The panel must conduct its proceedings and issue an award within seven days of the arbitration hearing or any reasonable period extended by the director, as the case may be taking into account the urgency of a resolution of the dispute arising from the circumstances.
The appointment of this panel does not at that stage interrupt or suspend the right to strike. However, the advisory arbitration award can make a report on the factual findings and recommendations for the resolution of the dispute.
The chairperson must serve the advisory award on the parties to the dispute, to allow them to consider the award and consult and take measures as may be necessary, to ensure that the award is not made publicly available before the minister has published the award.
It is perfectly understood that our constitution gives all employees the right to go on a protected strike, if the proper procedures are followed. However, if the strikes become destructive to both the employees and the employers and to the state, then the Labour Ministry will have the right in terms of the proposed legislation to ensure that these rights are kept intact and that the strike is brought to a timely end.
* Michael Bagraim, MP and Shadow Minister of Labour.