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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.’
11
COURT ORDERS TO CONTROL STRIKE VIOLENCE?](https://image.slidesharecdn.com/controllingstrikeviolence-advocateantonmyburghsc-140919092633-phpapp01/75/Controlling-Strike-Violence-Advocate-Anton-Myburgh-SC-11-2048.jpg)
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Controlling Strike Violence: Advocate Anton Myburgh SC
This document discusses the use of court orders to control violence during strikes in South Africa. It notes that some studies have shown many union members believe violence is necessary to achieve strike demands. Court cases have established that violence distorts collective bargaining and places undue pressure on employers. The courts have increasingly called for union accountability and have issued "ensure compliance orders" requiring unions to take reasonable steps to prevent unlawful behavior by members. However, prosecuting unions for contempt of court has been difficult, as union complicity or a legal duty to act must be proven. "Ensure compliance orders" that clearly specify a union's obligations may help establish accountability and reduce strike violence.
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Controlling Strike Violence: Advocate Anton Myburgh SC
- 1. Ensure compliance andcontempt of court orders: a viable means to control strike violence? ANTON MYBURGH SC
- 2. COURT ORDERS TOCONTROL STRIKE VIOLENCE? COSATU study (2012) • 60% of members believe that strike demands will not be achieved without violence 2
- 3. Two flash points • Early on in the strike – directed against employer • When support wanes – directed against employees Does this serve to lengthen strikes? 3 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 4. Violence is aform 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 4 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 5. 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.’ 5 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 6. 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.’ 6 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 7. How can thisdynamic be changed? • Better industrial relations • Legislative amendment • Develop the law within its existing framework to hold unions accountable 7 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 8. The courts arecalling for union accountability • They have seen too much violence • They are looking for ways to hold unions accountable 8 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 9. 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.’ 9 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 10. 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.’ 10 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 11. 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.’ 11 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 12. Problems with establishingunion 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 12 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 13. Ensure compliance orders • Xstrata (LC) – the facts 13 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 14. 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 14 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 15. 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.’ 15 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 16. 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 16 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 17. 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.’ 17 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 18. Crafting ensure complianceorders • 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 18 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 19. Union disobedience withensure compliance orders • Possibility of contempt of court applications arise 19 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 20. Contempt of court • Requirements: o Order o Service o Non-compliance o Wilfulness and mala fides (presumption) 20 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 21. Four recent judgmentswhere 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 21 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 22. Two cases wherecontempt applications succeeded • Security Services Employers’ Organisation (LC) • Supreme Spring (LC) Fines up to 500k 22 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 23. Other means ofcurbing strike violence • Claims for civil damages • Claims for compensation – section 68(1)(b) 23 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 24. Conclusion • Definingthe future: union accountability for strike violence • May go some way to reducing incidences of strike violence 24 COURT ORDERS TO CONTROL STRIKE VIOLENCE?
- 25. THANK YOU 18September 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. © 2014 Werksmans Incorporated trading as Werksmans Attorneys. All rights reserved.