Two recent Labour Court decisions have highlighted the duty of trade unions and their officials to act to prevent unprotected strikes and unlawful actions during the course of a strike. These add to the growing list of decisions in which the court has indicated that it will hold unions accountable for unlawful acts by their members.
Algoa Bus Co (Pty) Ltd v Transport Action Retail & General Workers Union & Others (2015) 36 ILJ 2292 (LC)
This case involved a claim for compensation lodged against a union arising from an unprotected strike embarked on by its members, which lasted seven days. The claim was brought in terms of section 68(1)(b) of the Labour Relations Act, 66 of 1995 ("LRA"). The Labour Court issued an order in terms of which the union and employees who were members of the union were held jointly and severally liable to pay the employer a sum of R1 406 285.33. The union was required to repay this amount in monthly instalments of at least R5 280.50 per month. The union's members were required to pay an amount of R214.50 per month, which would be deducted from their salaries. This amount represented the losses suffered during the last five days of the strike as the strike continued for five days after a court interdict prohibiting the strike had been issued.
In coming to this decision, the court was influenced by the fact that the union's officials were fully aware of the strike from at least its second day, and: "did little if anything to discourage its members from participating in the strike or to distance itself from the strike."
The court also considered it relevant that, after the interdict had been granted, there could have been no doubt of the unprotected nature of the strike and this should have made it easier for union officials to persuade members to end the strike. This was especially the case as, after the interdict had been granted, the employer had addressed a letter to the union informing it of the possibility that it would institute a claim for damages. The court also found that the strike had not been "spontaneous", and, even if it had been spontaneous, there had been no effort by the union to restore labour peace except to require that the strikers' demands be acceded to.
Verulam Sawmills (Pty) Ltd v Association of Mineworkers and Construction Union (AMCU) & Others(unreported judgment J1580/15 20 October 2015)
The Labour Court's decision in this matter did not deal with a claim for damages or compensation, but its comments and reasoning are nevertheless instructive in this regard.
In this case, during the course of a strike, AMCU's members repeatedly breached picketing rules and resorted to a range of unlawful activities over the course of several days. The employer addressed several letters to AMCU, in which it brought this state of affairs to the union's attention. It received a single response from the union in which it was stated that a union official had addressed the workers on the first day of the strike and the union had received no complaints from the South African Police Service nor had it heard of any acts of intimidation or damage to property committed by its members.
After this state of affairs persisted for several days, the employer's lawyers addressed a letter to AMCU's regional organiser in which it was indicated that the employer would approach the Labour Court for an order prohibiting the unlawful actions if these did not cease. No response was received from AMCU and the employees persisted with their behaviour. The employer then approached the Labour Court for relief. AMCU consented to an order prohibiting the unlawful conduct, but the employer asked that a punitive costs order be granted against AMCU. This issue was then argued. In a detailed and reasoned judgment, the court rejected AMCU's defence and ordered AMCU to pay the employer's costs on an attorney-and-client scale.
The court's approach in this regard is instructive as it is relevant to the situation when an employer seeks to claim damages or compensation from a union.
At the heart of the approach is the view that trade unions can be held accountable for the unlawful actions of their members. The court referred to several decisions in which this notion of accountability was emphasised. It then pointed out that, although the precise legal basis for this accountability is not settled in all instances, in this case the legal obligations of the union (and the potential liability for a breach thereof) arose from the picketing agreement that had been entered into. Importantly, the court went on to state that, notwithstanding the express terms of a picketing agreement, it was implicit in any such agreement that a union is obliged to take all reasonable steps to ensure compliance by its members with its terms. It also stated that:
"[T]his is a fundamentally important obligation. Not only are picketing rules there to attempt to ensure the safety and security of persons and the employer's workplace, but if they are not obeyed and violence ensues resulting in non-strikers also withholding their labour, the strikers gain an illegitimate advantage in the power-play of industrial action, placing illegitimate pressure on employers to settle."
The court also emphasised the importance of the role of strike convenors and marshals appointed in terms of a picketing agreement. It stated that the purpose of a union appointing a strike convenor and marshals is to put in place a system of communication between them and the company during the course of a strike in an attempt to ensure compliance with the picketing rules, thus attempting to keep a check on strike violence. If a company provides evidence to the convenor of serious unlawful activity on the part of the strikers, there can be little doubt that he or she is under an obligation to investigate it expeditiously. A failure to do so represents a failure on the part of the union to take all reasonable steps to ensure compliance with the picketing rules.
After analysing the evidence before it, the court came to the conclusion that the strikers materially breached the picketing agreement and committed various unlawful acts. It further concluded that AMCU had not taken all reasonable steps to prevent this conduct, hence the costs order granted.
Lessons from these decisions for unions
These two decisions are a further indication that trade unions that embark on unprotected strikes and which do not take reasonable steps to curb the unlawful actions of their members could be held liable for their acts or omissions.
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