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Trade union liability for collective action – Labour Relations Amendment Bill

Nov 7,2014

On 5 November 2014, a Notice was published in the Government Gazette that the Democratic Alliance (DA) shadow Minister of Labour will table a Private Member’s Bill relating to the amendment of the Labour Relations Act 66 of 1995 (as amended) (the LRA). The Bill proposes amendments of the LRA aimed at preventing violence during strike action. The Notice invites interested parties and institutions to submit written representations on the Bill within 30 days of the publication date. The proposed amendments seek to address violence during protected strikes – i.e. strikes that are conducted in compliance with the provisions and requirements of the LRA – as opposed to unprotected strikes. The Bill appears to be a response to instances where protected strikes degenerate into violence, vandalism and intimidation. The Bill proposes to achieve the following: 1. Placing a positive duty on trade unions to limit harm caused by collective action.  Any person – including an organ of state – will be able to institute a civil claim action against a trade union if it can be shown that:

  • It suffered loss or damage due to the collective action;
  • The trade union expressly or tacitly facilitated, called, endorsed, supported or ratified a strike or collective action;
  • The trade union did not take reasonable steps to prevent, repair or remedy injury, loss or damage to property caused by acts or omissions constituting a delict, breach of contract or crime committed in contemplation or furtherance of collective action.

Trade unions will be under a duty to limit harm caused by collective action and not merely during “strikes” as defined in the LRA. It may therefore be argued that harm caused during picketing or similar action may also be covered. 2. Affording the Labour Court additional power and authority to make any of the following orders:

  • Interdicts which may include directives to ensure the relevant trade union takes reasonable steps to prevent, repair or remedy injury, loss or damage to property;
  • Awards for damages, including punitive damages for breach of the duty;
  • Declarations that a protected strike will cease to be protected; and
  • Refer the issue in dispute to arbitration.

The notion of holding a trade union responsible for damage or loss caused by its members is not new to South African law. In the case of SATAWU & another v Garvis & Others[1] the Constitutional Court held that a trade union can be held liable for losses and damages caused by unruly members during a march or gathering on public land. This liability was however limited as it did not include liability for losses and damages suffered during strike action (whether protected or unprotected). It related only to incidents which occurred during formal marches or gatherings organised in terms of the Regulation of Gatherings Act 205 of 1993 (as amended). The Bill was originally introduced in October 2010 and received wide support from the Committee for Private Members Legislative Proposals and Petitions. However, during December 2010, the Minister of Labour published comprehensive proposed changes to various pieces of labour legislation under the Labour Relations Amendment Bill of 2010 which included (through its various versions) provisions proposing strike ballots be undertaken before a trade union and its members could embark on protected strike action. The Bill was not pursued at that time and, due to changes and reforms to the process for the introduction of Private Members’ Bills, it lapsed[2]. [1]CCT 112/11 [2012] ZACC 13 [2]DA introduces Bill to curtail strike violence. 14 October 2014. Available from: https://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=746246&sn=Detail (accessed on 6 November 2014).

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