Labour law experts have shot down a proposal by Labour Minister Mildred Oliphant to curb violent strikes, saying it would not pass constitutional scrutiny.
Oliphant proposed two new dispute resolution mechanisms – compulsory and interest arbitration – to be added to the labour laws.
She was speaking at the annual Nedlac labour conference on Tuesday ahead of the start of the wage strike by the Association of Mineworkers and Construction Union on the platinum belt.
Oliphant spoke at length about violent and prolonged strikes. She said: “Violence during strikes remains an issue of concern to [the] government and the general public.
“We cannot afford to see the scenes of hawkers being deprived of their livelihood as workers go about their right of protesting what they regard as unfair labour practices.”
She said every right had to be juxtaposed against a responsibility. The right to strike and protest should not infringe on other people’s rights to make a living or their right to refuse to be part of the protest action.
Oliphant said the incidence of violence against those who chose to work in the petroleum sector strike in 2011 and other incidents could not and should not be left unchecked.
She said: “There are unlikely to be specific legal amendments to address this issue – for example, the requirement to ballot – but we will have to find ways of addressing violence during industrial action. We all have to exercise leadership and show leadership.”
Oliphant continued: “Perhaps it is time to go a bit further and consider new dispute resolution mechanisms, such as compulsory or interest arbitration. Interest arbitration is widely and successfully used in countries such as Canada.”
She said research internationally had shown that settlements reached after strikes were not very far from the settlement awarded through interest arbitration.
The minister continued: “Clearly, interest arbitration cannot be viewed as an alternative to the strike in South Africa, but it may have potential as part of the collective bargaining process that can lead to speedy and less costly dispute resolution.”
Alan Rycroft, a professor of commercial law at UCT, said compulsory arbitration was not new in South Africa and was contained in the Labour Relations Act.
He said compulsory arbitration applied when there was a possibility of a strike seriously affecting essential services.
In interest arbitration, if the the union and management are unable to reach compromise on an issue by themselves, they agree to submit the conflict to an impartial authority, whose decision they are ready to accept.
Rycroft said he thought interest arbitration would be unconstitutional because it would limit the right to strike.
He said it also depended on affordability and compatibility to other similar employers.
Andrew Levy, a labour analyst, agreed that interest arbitration might not pass constitutional scrutiny, but said the constitution provided for the limitation of rights if the law was of general application.
On compulsory arbitration, Levy said: “What a wonderful idea! It would apply after a strike has passed a certain period.
“It would compel unions to make economic-based demands and stop employers making ridiculous offers. But I doubt if this government would enact it.”
Naren Rau, the chief executive of the SA Chamber of Commerce and Industry, said South Africa certainly needed to take drastic steps to reduce the number of strikes and the chamber would support Oliphant.
“As business, we have been saying the situation is unsustainable.
“Even if a strike is not outside your door, it has an enormous indirect impact. There is no respite from strikes from year to year. We want to move away from violent strike activity,” Rau said.
Kaizer Nyatsumba, the executive director of the Steel and Engineering Industries Federation of SA, said: “We share the minister’s view that it is vital for all avenues to be explored to avoid strikes, which have a very damaging effect on our economy at a time when our country has not been doing well and unemployment has been rising.
“Therefore, we support the minister’s call for arbitration to be used to avoid the possibility of strike.”
Patrick Craven, the national spokesman for Cosatu, said: “Who decides the arbitrator is impartial? We would have to think about the proposal. We would argue that the [Commission for Conciliation, Mediation and Arbitration] must continue with arbitration because it has a good track record.”