Controlling Strike Violence: Advocate Anton Myburgh SC

Ensure compliance and contempt of court orders: a viable means to control strike violence?ANTON MYBURGH SC

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COURT ORDERS TO CONTROL STRIKE VIOLENCE?

COSATU study (2012)

• 60% of members believe that strike demands will not be achieved without violence

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Two flash points

• Early on in the strike – directed against employer

• When support wanes – directed against employees

Does this serve to lengthen strikes?


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Violence is a form of economic duress

• It skews collective bargaining power

• It disturbs the forces of demand and supply

• It places undue pressure on employers to settle

• It frightens employers into settlement


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Premier Foods (LC)

• ‘The aim of a strike is to persuade the employer through the peaceful withholding of work to agree to their demands. … although a certain degree of disruptiveness is expected, it is certainly not acceptable to force an employer through violence and criminal conduct to accede to their demands.’


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Tsogo Sun (LC)

• ‘When the tyranny of the mob displaces the peaceful exercise of economic pressure as the means to the end of the resolution of a labour dispute, one must question whether a strike continues to serve its purpose and thus whether it continues to enjoy protected status.’


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How can this dynamic be changed?

• Better industrial relations

• Legislative amendment

• Develop the law within its existing framework to hold unions accountable


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The courts are calling for union accountability

• They have seen too much violence

• They are looking for ways to hold unions accountable


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In2Food (LC) and (LAC)

• ‘The time has come in our labour relations history that trade unions should be held accountable for the actions of their members. For too long trade unions have glibly washed their hands of the violent actions of their members.’


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In2Food (LAC)

• ‘The … thesis that a trade union … has a duty to curb unlawful behaviour by its members indeed enjoys merit. Indeed, the principle of union accountability for its actions or omissions is beginning to gain recognition.’


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Tsogo Sun (LC)

• ‘This court must necessarily express its displeasure in the strongest possible terms against the misconduct that the [strikers] do not deny having committed, and against unions that refuse or fail to take all reasonable steps to prevent its occurrence.’


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Problems with establishing union accountability

• Unions are not per se accountable for conduct of their members

• Need to establish a causal link between members’ conduct and the union – i.e. union complicity

• Or the union must be under a positive legal obligation to take action

• One way of creating union accountability is through ensure compliance orders


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Ensure compliance orders

• Xstrata (LC) – the facts


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Xstrata (LC)

• Four legal grounds for ensure compliance orders:

o Section 17 of the Constitution

o Relationship of guardianship

o Collective bargaining relationship

o Process of engagement


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Xstrata (LC)

• ‘AMCU cannot … when it is required to account for the actions of its members, wash its hands of them in the mould of the proverbial Pontius Pilate … Orders obligating unions to ensure that their members acted in a lawful and peaceful manner during strikes are meant to reinforce what the unions should know and do. In view of the volatility associated with strikes … in the workplace, employers are bound to depend on the courts to issue such orders.’


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Xstrata (LC)

• To comply with an ensure compliance order:

o Union must take reasonable steps and measures to ensure that its members comply

o Union must do whatever is necessary, and within its means and powers, to ensure compliance by its members


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Xstrata (LC)

• ‘The policing function can be done by the shop stewards, and the union’s national leadership can provide a supporting role. … In the same fashion that the shop stewards were used by the union to organise the action in question, they can and should be used to control it. … this is not too much to ask from a union in the bigger scheme of things, especially where the action in question has turned violent.’


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Crafting ensure compliance orders

• To be enforceable they must specify a union’s obligations

• For example, the union may be required to:

o Assist with service – loud hailers

o Display the court order at its offices

o Issue a public statement

o Hold a mass meeting

o Despatch marshals to hot spots

o Set up a hot line

o Report back to court on steps taken


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Union disobedience with ensure compliance orders

• Possibility of contempt of court applications arise


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Contempt of court

• Requirements:

o Order

o Service

o Non-compliance

o Wilfulness and mala fides (presumption)


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Four recent judgments where contempt applications failed

• In2Food (LAC) – union complicity not established

• Xstrata – service, and wilfulness / mala fides not established

• Ciro Business Solutions – service not established

• Anglo Platinum – order ambiguous


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Two cases where contempt applications succeeded

• Security Services Employers’ Organisation (LC)

• Supreme Spring (LC)

Fines up to 500k


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Other means of curbing strike violence

• Claims for civil damages

• Claims for compensation – section 68(1)(b)


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Conclusion

• Defining the future: union accountability for strike violence

• May go some way to reducing incidences of strike violence


THANK YOU18 September 2014

Legal notice: Nothing in this presentation should be construed as formal legal advice from any lawyer or this firm. Readers are advised to consult professional legal advisors for guidance on legislation which may affect their businesses.

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Controlling Strike Violence: Advocate Anton Myburgh SC

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