“A publicity stunt,” and “an anti-trade union measure”.
That’s what unions have called the Democratic Alliance’s (DA) proposal to amend the Constitution to hold organisations and unions responsible for damages caused by their members during violent protests.
On Tuesday the DA submitted a private members legislative proposal to Parliament which seeks to “protect non-striking workers and the general public from violence and intimidation, and to protect public and private property from malicious destruction during strike action,” Ian Ollis, DA’s labour spokesperson said in a press statement.
In this amendment to the Labour Relations Act, “The legislation would make unions liable for, amongst others, penalties and damages for the illegal and undisciplined behaviour of individual members.
“Such penalties would be imposed upon unions, or indeed any party to a strike, if prescribed good practice is not followed during legitimate strike action,” said the DA.
In addition to this, the submission reads: “The court may make an award of damages, including punitive damages,” as well as “declare that, as from a given date — the strike will cease to be a protected strike,” and “the issue in dispute is one that is required to be referred to arbitration as though it were a dispute in an essential service.”
Western Cape High Court Judge President John Hlophe set a precedence last month when he ruled that unions should be held responsible for damages caused by their members during demonstrations in a case against South African Transport and Allied Workers’ Union (Satawu).
The case in question saw “the eaths of nearly 50 people pursuant to strike-related violence. Furthermore, there had been previous instances of damage to the Cape Town Municipal Council and private property,” the judgement stated.
Hlophe did not order any costs in the matter because the case brought important constitutional principles before the court, he said. However, Satawu has appealed the judgement.
Unions can’t see the DA’s proposal getting off the ground in parliament, purely for procedural reasons. The first flaw lay in the fact that “parliament has an agreement with Nedlac; labour legislation must be brought before Nedlac first, then to parliament.” Said Dennis George, general secretary of the Federation of Unions of South Africa (Fedusa)
The National Economic Development and Labour Council’s (Nedlac) website reads that one of its responsibilities is to: “Consider all proposed labour legislation relating to labour market policy before it is introduced in Parliament.”
Fedusa said that the DA erred in its failure to consult unions before tabling a proposal. “I think it’s a publicity stunt more than anything else.
Ollis on the other hand told the M&G that violence during labour protests has been going on for decades and unions have not come up with any remedies on this. “And when somebody tables a proposal, namely me, they call it a publicity stunt. Do they quite frankly care about the public?
“It’s not a publicity stunt when people are dying in the streets,” he said.
But unions insist that, “You can’t keep the legal entity of the union accountable for the actions of the individual members. We take the necessary precautions, but if one person decides to break the law, they must be held accountable.”
George proposed that individuals be prosecuted for breaking the law, “We don’t think there’s a need for any legislative intervention in those kinds of things.”
Cosatu’s Patrick Craven agrees: “The implications of such an amendment could be very, very serious. For the unions to be made liable for the actions of any individual at the picket lines could run into the millions and we oppose it for that reason.”
It was totally out of the question, Craven said, “We are not the police force, we can’t make arrests, the law must take its course. It would be unfair to prosecute the union for the actions of an individual.”
Ollis said the DA believes that extending the law to hold unions accountable for the behaviour of their members “would advance the interests of justice” as well as enhance accountability.
“If union bosses agree that strikes must be orderly and peaceful, then they should have no problem signing onto legislation that seeks to further this aim,” said Ollis.
However, Craven questioned the DA’s motives. “This is an anti-trade union measure through and through.”
Sandile July, labour law specialist and director at Werksmans Attorneys says he has a problem with the proposed amendment because his reading of the document “Presumes that the trade union is guilty until they prove otherwise.”
He said the other issue in the proposed amendment is that trade unions are going to have to demonstrate that they’ve taken reasonable steps to avoid violence.
“What are reasonable steps?”
“The danger with the amendment is it may have an unintended effect that sees trade unions backing down and members going on strike on their own without trade unions”, said July.
“I’m not saying people are naturally violent,” he said, “but that’s the premise of where this amendment comes from.”
July said the issues raised by the DA in the amendment are already dealt with under common law.
“Why would you want to make them labour law issues?”
Should such an amendment be approved, July said the only major change would be in light of the court being able to order that strikes that are violent cease to be protected.