Any strike action that members of a trade union embark on has to comply with statutory requirements as set out in the Labour Relations Act.

In compliance with the relevant provisions of the Act, a union and an employer will engage in various negotiations and refer the matter to conciliation should the need arise.

Should the parties fail to have the dispute resolved at conciliation, the union may issue a notice on behalf of its members of its intention to call its members out on strike. If the workers go on strike, the strike must also comply with the requirements of the law. To this end, the Gatherings Act 205 of 1993 and the regulations promulgated thereunder will apply.

The purpose of the Gatherings Act is to regulate the holding of public gatherings and demonstrations.

Section 11 of the Act creates a statutory liability on the organisers of a gathering in the event of any damage arising from the strike. Section 11(1) of the Act reads as follows:

"(1)    If any riot or damage occurs as a result of;

(a)    a gathering, every organisation on behalf or under the auspices of which that gathering was held, or if not so held, the convener,

(b)    a demonstration, every person participating in such demonstration,

shall jointly and severally liable for that riot damage as a wrongdoer ...together with any other person who unlawfully caused or contributed to such riot damage and any other organisation...."

The essence of this section is to ensure that trade unions take measures to avoid any form of damage to property likely to be caused during a strike.

The courts have had occasion to consider the application of the provisions of section 11(1) of the Gatherings Act against trade unions where members embarked on a legal strike.

In a recent judgment, the Supreme Court of Appeal dealt with the liability of the trade union resulting from a riot during a protected strike when union members allegedly vandalised properties belonging to the public.

The court accepted the principle that assemblies, pickets, marches and demonstration are essential instruments of dialogue in society.

However, it held that the struggle for workers' rights should take place within prescribed legal limits and with due regard to the rights of others.

Before the Supreme Court of Appeal judgment, the Labour Court previously imposed a fine on a trade union for failing to prevent its members from harassing, assaulting and or intimidating those employees who were not on strike.

The lessons to be learned from these cases are that trade unions may be held liable for any damage that is caused by the unlawful actions of its members during a protected strike.

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