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.

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.