Post Graduate Industrial Relations Assignment

PGDLL Assignment 2006

Institution: University of Johannesburg

Student Name: Barrie Smith

Student No.: 200615283

Date: June 2006

PGDLL 2006 ASSIGNMENT

Big Enterprises (BE) has a recognition agreement with the National Union of Workers (NUW). In terms of the agreement, the Union is recognised in respect of its members in a defined bargaining unit comprising all weekly paid employees. Sixty percent (60%) of the employees in the bargaining unit are union members, the balance have no union affiliation. The company, however, has a well-established practice of extending whatever wage increase it agrees with the union to all employees in the bargaining unit.

The current wage agreement expired at the end of March 2006, and the parties are in dispute over wages for 2006/7. The dispute has been referred to the CCMA. The company seeks your advice on the circumstances in which the union can call a strike in support of its wage demands, and poses the following questions:

(a) What are the statutory preconditions that the union would have to satisfy before its members can participate in a protected strike?

(b) The company is particularly concerned about the prospect of the non-union members in the bargaining unit participating in any strike, since it would not be possible to continue production under those circumstances. The company is also concerned about employees engaged outside of the bargaining unit, mainly supervisory employees, joining the strike. If these employees participated in the strike, would their participation be protected?

(c) The company mentions that its main supplier, who is organised by the same union, has contacted it. The union is reported to have stated that if there were to be a strike at Big Enterprises, its members at the supplier's plant would strike in solidarity with its members at Big Enterprises. Under what circumstances, if any, would a strike by the employees of the supplier be protected?

(d) The company has heard that a lockout may be an effective way of bringing the wage dispute to a head. The management is particularly interested in this option since it considers that control over the timing of any industrial action would be an advantage. The company wants to know what procedural steps it must follow to initiate a lock-out, and the circumstances in which it would be entitled, during a lock-out, to engage replacement labour.

(e) The company has also heard that in certain circumstances, it may be possible to dismiss workers who do not accept the company's wage offer. The management is not sure about this, but the human resources director recalls having read in the press about a recent case in which a company lawfully retrenched an entire workforce that refused to work a new shift system. He wants to know whether, rather than facing industrial action, the company can retrench all those workers who refuse to accept the increase that management is offering and engage new employees, who would be willing to work on the company's terms, to replace them.

Write an opinion in which you advise the company in respect of each of the questions that it has raised.

GRAND TOTAL 100 MARKS

Table of Contents

ANSWER (a) 1

ANSWER (b) 2

ANSWER (c) 3

Primary Strike Protected? 3

Required Notice and Notice Period? 4

Nature and Extent of Secondary Strike 4

ANSWER (d) 6

Procedural Steps 6

Replacement Labour 6

Clear Demand 7

ANSWER (e) 8

Misconduct 8

Unprotected Strike 8

Protected Strike 9

Pre-emptive Dismissal for Operational Requirements 9

Dismissal for Operational Requirements After Strike Commences 9

Fair Reason 10

Fair Process 11

Hiring Replacement Employees 11

References (Bibliography) 12

ANSWER (a)

Assumptions:

1) That the potential strike is not substantively limited in terms of section 65(1) and 65(3) of the Labour Relations Act (66 of 1995 (Ð''LRA')). Paraphrasing du Toit et al (2003, p.289), substantive limitations essentially limit strikes where there are prior agreements rights, or processes that would take precedence over strike action, or where the service being provided by the potential strikers are essential services as defined in section 213 of the LRA, or maintenance services as defined in section 75. In addition, such substantive limitations would include situations in which a prior arbitration ward, ministerial determination, or determination in terms of the Wage Act binds the employee.

2) That the employer is not part of the state. If it were, then a period of 7 days notice of intention to strike, rather than 48 hours, would be required (section 64(1)(d))

3) That the dispute does not concern a refusal to bargain in terms of section 64(2).

According to du Toit et al (2003, p.282), the statutory pre-conditions that must be satisfied by, in this case, the NUW are:

1) the issue in dispute must have been referred to either a bargaining council, or the CCMA for conciliation [section 64(1)(a)]

2) a certificate stating that the issue remains unresolved must be issued, or a period of 30 days must elapse from the date of referral of the dispute [section 64(1)(a)];

3) the other party to the dispute must be given at least 48 hours written notice of the commencement of the strike [section 64(1)(b)].

According to the question, referral to the CCMA has already taken place.

Essentially,