SASLAW SEMINAR
28 OCTOBER 2014
Anton Myburgh SC
“Ensure compliance and contempt of court orders:
a viable means to control strike violence?”
Court orders to control strike violence?
COSATU study (2012)
• 60% of members polled believe that
strike demands will not be achieved
without violence
Court orders to control strike violence?
Two flash points
•
Early on in the strike – directed
against employer
•
When support wanes
against employees
–
directed
Court orders to control strike violence?
Does violence serve to lengthen strikes?
Court orders to control strike violence?
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
Court orders to control strike violence?
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.’
Court orders to control strike violence?
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.’
Court orders to control strike violence?
How can this dynamic be changed?
•
Better industrial relations
•
Legislative amendment
•
Develop the existing law to hold unions
accountable
Court orders to control strike violence?
The courts have had enough
•
They have seen too much violence
•
They are looking for ways to hold
unions accountable
Court orders to control strike violence?
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.’
Court orders to control strike violence?
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.’
Court orders to control strike violence?
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.’
Court orders to control strike violence?
Problems with establishing union
accountability
•
Unions are not per se accountable for the 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
Court orders to control strike violence?
Ensure compliance orders
• Xstrata (LC) – the facts
Court orders to control strike violence?
Xstrata (LC)
•
Four legal grounds
compliance orders:
for
o
Section 17 of the Constitution
o
Relationship of guardianship
o
Collective bargaining relationship
o
Process of engagement
ensure
Court orders to control strike violence?
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.’
Court orders to control strike violence?
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
Court orders to control strike violence?
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.’
Court orders to control strike violence?
Crafting ensure compliance orders
•
To be enforceable they must specify a union’s
obligations
•
For example, the union may be required to:
o
o
o
o
o
o
o
Assist with service – loud hailers
Display the court order at its offices
Issue a public statement
Hold a mass meeting
Despatch marshals to hot spots
Set up a hot line
Report back to court on steps taken
Court orders to control strike violence?
Failure by unions to comply
with ensure compliance orders
•
Possibility of contempt
applications arise
of
court
Court orders to control strike violence?
Contempt of court
•
Requirements:
o
Order
o
Service
o
Non-compliance
o
Wilfulness and mala fides (presumption)
Court orders to control strike violence?
Four recent judgments where
contempt applications failed
•
In2Food (LAC) – union complicity not proven
•
Xstrata – service, and wilfulness / mala fides
not proven
•
Ciro Business Solutions – service not proven
•
Anglo Platinum – order ambiguous
Court orders to control strike violence?
Two cases where contempt
applications succeeded
•
Security Services Employers’ Organisation
(LC)
•
Supreme Spring (LC)
Fines up to 500k
Court orders to control strike violence?
Other means of curbing strike
violence
•
Claims for civil damages
•
Claims for compensation – section
68(1)(b)
Court orders to control strike violence?
Conclusion
•
Defining
the
future:
union
accountability for strike violence
•
May go some way to reducing
incidences of strike violence
THANK YOU