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Can a union or employer resort to power play to resolve a wage
dispute after negotiations have broken down?
At a certain time of the year, known as the strike season,
employers and trade unions enter into wage negotiations.
Often these wage negotiations result in the parties reaching a
deadlock, forcing one party to make a move to break the deadlock.
One such move is for the employer to unilaterally implement the
final wage offer to the union.
When parties reach deadlock, they have the option of referring
the matter to conciliation at the Commission for Conciliation,
Mediation and Arbitration (CCMA) in terms of the Labour Relations
Act (LRA).
If the matter remains unresolved after conciliation the union
has the option to go out on strike on proper notice to the
employer, while the employer has the option of invoking a lockout
after giving proper notice to the union of its intention to do
so.
The courts have held that where a wage dispute remains
unresolved at the CCMA then the power play of the respective
parties will determine the outcome. Power play is often in the form
of a strike by union members or a lockout by employers.
In a recent labour court case the trade union - the members of
which are part of the essential services - sought to interdict the
employer from unilaterally implementing its final wage offer after
the dispute remained unresolved at the CCMA.
The court held that once negotiations become deadlocked, lawful
unilateral action constitutes one form to break the deadlock and
may be utilised only once the parties have exhausted the duty to
bargain in good faith.
Furthermore, the court held that the duty to bargain in good
faith is not catered for in the LRA, and once the parties are
deadlocked, bargaining time is over. The application for an
interdict was therefore dismissed and on the facts of the case, the
employer was allowed to unilaterally implement its final wage
offer.
In another decided case the Labour Appeal Court held that the
unilateral implementation of a final wage offer could only amount
to an unfair labour practice if it undermined the integrity of the
collective bargaining process.
The Labour Appeal Court further held that disputes about wages
and conditions of service were subject to the collective bargaining
process and the power play that goes along with collective
bargaining.
Accordingly, if an employer emerges victorious at the end of the
power play, a court cannot interfere on the basis that the employer
was financially capable of making a better final offer but chose
not to.
Deadlocks in wage negotiations can be resolved in numerous ways,
one of which is the unilateral implementation of the final wage
offer by the employer.
Parties therefore have the option of approaching the CCMA to
attempt to resolve the dispute, failing which the power play of the
parties will determine the outcome of the dispute.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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