Any strike action that members of a trade union embark on has to
comply with statutory requirements as set out in the Labour
Relations Act.
In compliance with the relevant provisions of the Act, a union and
an employer will engage in various negotiations and refer the
matter to conciliation should the need arise.
Should the parties fail to have the dispute resolved at
conciliation, the union may issue a notice on behalf of its members
of its intention to call its members out on strike. If the workers
go on strike, the strike must also comply with the requirements of
the law. To this end, the Gatherings Act 205 of 1993 and the
regulations promulgated thereunder will apply.
The purpose of the Gatherings Act is to regulate the holding of
public gatherings and demonstrations.
Section 11 of the Act creates a statutory liability on the
organisers of a gathering in the event of any damage arising from
the strike. Section 11(1) of the Act reads as follows:
"(1) If any riot or damage occurs as a
result of;
(a) a gathering, every organisation on behalf or
under the auspices of which that gathering was held, or if not so
held, the convener,
(b) a demonstration, every person participating
in such demonstration,
shall ...be jointly and severally liable for that riot damage as a
wrongdoer ...together with any other person who unlawfully caused
or contributed to such riot damage and any other
organisation...."
The essence of this section is to ensure that trade unions take
measures to avoid any form of damage to property likely to be
caused during a strike.
The courts have had occasion to consider the application of the
provisions of section 11(1) of the Gatherings Act against trade
unions where members embarked on a legal strike.
In a recent judgment, the Supreme Court of Appeal dealt with the
liability of the trade union resulting from a riot during a
protected strike when union members allegedly vandalised properties
belonging to the public.
The court accepted the principle that assemblies, pickets, marches
and demonstration are essential instruments of dialogue in
society.
However, it held that the struggle for workers' rights should
take place within prescribed legal limits and with due regard to
the rights of others.
Before the Supreme Court of Appeal judgment, the Labour Court
previously imposed a fine on a trade union for failing to prevent
its members from harassing, assaulting and or intimidating those
employees who were not on strike.
The lessons to be learned from these cases are that trade unions
may be held liable for any damage that is caused by the unlawful
actions of its members during a protected strike.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
