THE ADVISORY ARBITRATION PANEL: A CURB TO INTRACTABLE VIOLENT STRIKES?

On the 25th of April 2018, thousands of workers took to the streets in a protest against the proposed amendments to the country’s labour legislation. One of these amendments includes the proposed amendment to curb intractable violent strikes, through the establishment of an advisory arbitration panel. Following incidents like Marikana, it has become necessary for the legislature to enact legislative provisions to address violence during strikes, particularly protected strikes.

The previous labour legislation amendments in 2015 saw a proposal made for the Labour Court to order the suspension of a strike in certain circumstances. However, this amendment was halted at the Council of Provinces and, ultimately, not promulgated into law.

In an effort to resolve strikes or lockouts that are intractable, violent or may cause a local or national crisis, the current proposed amendments provide for the establishment of an advisory arbitration panel (“the Panel”) which investigates the cause and circumstances of the strike or lockout on an expedited basis and makes an advisory award in order to assist the parties to resolve the dispute.

The above process will be implemented under the guidance of the Director of the CCMA who can only establish the Panel if directed to do so by the Minister of Labour or the Labour Court. This process can be effected by way of application by a party to the dispute or by agreement by parties to the dispute and if one of the following circumstances are present:-

  • The strike or lockout is no longer functional to collective bargaining, it has continued for a protracted period and no resolution appears imminent; or
  • There is an imminent threat that Constitutional rights may be or are being violated by those participating or supporting a strike or lockout through the threat or use of violence or damage to property; or
  • The strike or lockout is causing or may cause an acute national or local crisis affecting the conditions for the normal social and economic functioning of the community or society.

All three circumstances are recognised by the International Labour Organisation (“the ILO”) as grounds for intervention by the State. The intervention, in accordance with ILO jurisprudence, is advisory in nature and only binding if agreed to or deemed to be agreed to by the parties to the dispute.

The appointment of the Panel does not interrupt or suspend the right to strike or the recourse to lockout. The Labour Court may only make an order directing the Director of the CCMA to establish a Panel if it is satisfied that the latter two of the three circumstances exist and the application is made by a person or association of persons that are or will be materially affected by those circumstances. By making provision for “persons that are or will be materially affected by those circumstances” creates a loophole for any person who is affected by the strike to approach the Labour Court in order to seek relief whilst not being directly related to the dispute.

Furthermore, the advisory arbitration is to be conducted in a manner that the chairperson considers appropriate in order to make an advisory award fairly, quickly and with minimum legal formalities.

The Panel must conduct its proceedings and issue an advisory award within 7 days of the hearing, although provision is made for the Director to extend that period taking into account the urgency of the resolution of the dispute.

The advisory award must report on the factual findings with recommendations motivating why it should be accepted. If the chairperson is not able to secure consensus of both assessors, the chairperson issues the advisory award on behalf of the Panel.

The advisory award must be served on all the parties to the dispute and the Minister must publish the award in the prescribed manner for public dissemination within 4 days of its issue.

The parties to the dispute are required to indicate their acceptance or rejection of the advisory award within 7 days of the award or, if extended, a maximum of 13 days. Failure to do so will result in the parties being deemed to have accepted the award. Before a party to the dispute rejects an award, it must consult with its members in accordance with its constitution and must motivate its rejection in the prescribed manner.

It is also proposed that an advisory award can be extended to employees who are not members of the trade union parties to the dispute. Therefore, it is important to note that the significance of the proposed amendment lies in the effect of the advisory arbitration award and while this amendment may seek to bring a halt to intractable violent strikes, it may present certain obstacles where parties seek to obtain urgent relief.

Gershwin Boonzaaier
Associate

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Note: This information is published for general information purposes and is not intended to constitute legal advice. Specialist legal advice should always be sought in relation to any particular situation. BLC Attorneys will accept no responsibility for any actions taken or not taken on the basis of this publication.

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