The Chairperson noted that he would be meeting with the Chair of Chairs after this meeting, but still awaited a date to meet with the Speaker, on the Greyling matter. He further noted that Mr Alberts’ legislative proposal to amend the Employment Equity Act had been withdrawn.
The Committee was briefed by Mr I Ollis on his proposal to amend the Labour Relations Act (the LRA). This proposal sought to give greater protection to private individuals and non-striking workers, and to protect both public and private property, during strike action, by imposing greater obligations upon unions and employers to educate workers before a strike, and by imposing joint liability on unions for illegal and undisciplined behaviour of union members that may result in damage or injury during a strike. Unions would therefore have strong incentives to education their members, prevent and bring a halt to violence, inform government and private security of any pending problems, including the carrying of weapons by strikers. In addition, he proposed that court should be empowered to award damages against unions that had not implemented sufficient measures, and that, in addition, the courts should be empowered to bring a halt to the strike, when it became excessively violent, by forcing the parties to proceed to arbitration, or to declare it as an unprotected strike. Because no such sanctions existed at the moment, unions were not incentivised to control their members. He pointed out that during the strikes of 2006, almost fifty people had lost their lives, in addition to substantial damage being caused to property, for which those affected could not claim redress, as they were unable to identify the individuals involved.
Mr Ollis set out additional reasons why he believed that his proposal should be implemented. He pointed out that there was a precedent in the sense that legislation had been passed in Europe to hold soccer clubs liable for damage caused by their fans to stadiums during matches. The same questions around liability had been discussed there. Although not legislated for in South Africa, the same principle was applied, as seen by the Premier Soccer League having fined Kaizer Chiefs and claimed legal costs against their Chairman, for failing to control fans during a semi-final match at the FNB Stadium. Secondly, a judgment in KwaZulu Natal had said that the right to strike must be regarded as limited. Thirdly, the Cape High Court had ruled that the right to assemble had to be limited by the need to respect the safety and property rights of other individuals although it was noted that this matter was currently on appeal.
Members asked whether it was intended that unions would also be held liable for actions by criminals who simply took advantage of a crowd situation, but were not genuinely striking workers. They also raised the question whether this sought to impose strict liability on unions, even where the actions of union members were not authorised or sanctioned by the union. Members also pointed out that the Minister of Labour had proposed amendments to the Labour Relations Act. However, Mr Ollis indicated that this point was not covered. If the Minister agreed to incorporate his proposals, then he would be pleased, but he did not want to withdraw his proposal only to find that the situation had not been corrected by the amendments proposed by the Minister. Equally, he noted that although provisions in other pieces of legislation might cover some aspects, he would like to have consolidated provisions in the LRA to tie together cause, effect and sanction.
A Parliamentary Legal Advisor briefed the Committee on a petition received from Mr Munasur, whose wife was formerly employed in the public service. The Public Service Coordinating Bargaining Council (PSCBC) had realised that a pension scheme had been discriminatory and had passed a resolution allowing those still employed by the public service, as at 2 September 1998, to claim arrear pensions. Mr Munasur’s wife was not still employed at this time, and had died in 1989, but he had lodged a petition that he be assisted in claiming arrear pension for the estate. However, the legal advisor pointed out that Mr Munasur had not exhausted all other remedies, as the Parliamentary Rules for this Committee required, as he could still challenge the rationality of the Bargaining Council’s ruling. However, no decision could be taken on this by the Committee, as there was not a quorum, so the matter would stand over.
Chairperson’s opening remarks
The Chairperson reminded Members that at the last meeting he had reported that he would be attempting to meet with the Speaker and Chair of Chairs, to discuss the letter from Institute for Democracy in South Africa (IDASA), and the interviews that Mr L Greyling (ID) had given in relation to his petition, which were reported in the Mail and Guardian. The Chair of Chairs would be available immediately after this Committee meeting, but the Speaker had not yet indicated availability.
He noted that the proposed legislation received from Hon A Alberts, to amend the Employment Equity Act, had been withdrawn.
Ollis legislative proposal to amend the Labour Relations Act, No 66 of 1995
Mr I Ollis briefed the Committee on his legislative proposal to amend the Labour Relations Act No 66 of 1995 (the Act). The objects of his proposal were to protect private individuals, the public at large, non-striking workers and public and private property from the malicious destruction, violence and intimidation that could occur during strike action. The proposal sought to make unions and employers liable to prosecution for the illegal and undisciplined behaviour of individual members. This meant that organised labour and business would be forced into deploying marshals, ensuring on-site security, and disciplining members, employees and workers under their control for actions that were unlawful.
Mr Ollis stressed that his proposal was not about unions or the right to strike. It was aimed at dealing with violence during strikes, and the role of the State, the courts, and the unions in trying to limit or prevent violence. His proposal reflected the concern about the violence on the street during a strike, and was aimed at ensuring that government did examine and take steps to reduce or prevent that violence.
Mr Ollis explained that there were five principles behind his proposal. The first was that the State should require unions to comply with a list of practical measures aimed at limiting violence before it occurred. The State should expect that unions should take more steps than they had done in the past, to prevent the strike getting out of hand and the occurrence of violence, since at the moment not enough was being done to stop this violence. This Committee, the Portfolio Committee on Labour, and Parliament should examine ways of reducing the risk of violence by requiring unions to take certain steps. These, for instance, should include the education of workers around violence and the law, before the workers went on strike. Secondly, the unions should ensure an increased number of marshals to pull people into line when their behaviour was out of hand. There should be more formal liaison between the unions and government security, being the police and metro police, and other security entities on the day, so that immediately any trouble was apparent, such as strikers bringing weapons, this would be communicated to the police, striking workers and marshals.
Mr Ollis stressed that this would limit the potential for a strike to become violent. In addition, however, there should be legislation in place that empowered the courts to stop the strike when it became excessively violent, by forcing the parties to proceed to arbitration, or to declare an excessively violent strike to be an unprotected strike. In addition, the courts should be empowered to award damages against unions who had not implemented the required measures, if their members had committed violence or damage to property during that strike.
Mr Ollis explained that at the moment, unions would not be sanctioned, so that there was no incentive for unions to take corrective measures during strikes, to prevent a strike from becoming violent, prevent their union members from running rampant. He pointed out that during the major strikes of 2006, almost fifty people had lost their lives.
Mr Ollis set out three reasons why he thought that his proposal should be introduced as a legislative amendment. Firstly, he reiterated that there was very little incentive for unions to take action to stop the violence. However, in Europe, there was legislation forcing collective responsibility. If, during a soccer match, supporters of a particular soccer club threw anything on to the pitch, or damaged the stadium, the soccer club whom they were supporting was legislatively liable to meet the cost of the damage. He pointed out that in South Africa, Kaizer Chiefs had, on a previous occasion, been fined R500 000 by the Premier Soccer League Steering Committee, for failing to control their fans during a semi-final match against Orlando Pirates at the FNB Stadium. Although there was no law in South Africa to cover the situation, a common precedent had developed across the world, including South Africa, in the sporting sector, forcing soccer clubs to take responsibility when their fans got out of hand. The Chairman of Kaizer Chiefs was ordered to pay R21 000 towards the legal costs.
The second possible precedent for this could be based on the final outcome of a Cape High Court case (currently on appeal). Garvis and others had claimed R70 000 from the South African Transport and Allied Workers Union (SATAWU) and the Minister of Safety and Security arising from the May 2006 strikes. The judgment indicated that this strike had developed into a riot, resulting to damage to property and the deaths of nearly 50 people. The question facing the court was whether organisers of such a gathering would be liable if damage was relatively foreseeable, and whether that would be inconsistent with section 15 of the Constitution, which guaranteed the right to assemble, demonstrate and picket. Judge Hlope, the presiding judge in the High Court, found that there was no inconsistency, as the right to assemble had to be limited by the need also to respect the safety and property rights of other individuals. This matter had been taken on appeal, and not yet finalised.
A third interesting case in KwaZulu-Natal, against SATAWU, had found that it was acceptable to limit the right to strike under certain conditions.
All three of these examples supported Mr Ollis’s contention that it was generally accepted that it was correct to limit behaviour around strike action and to take action where violence occurred.
The Chairperson thanked Mr Ollis for his presentation.
Ms M Molebatsi (ANC) pointed out that it often happened that criminals would join a march, purely because crowds of people offered the potential that they could then engage in stealing and looting. She asked who could be held liable for those people, as they were not necessarily union members.
Mr Ollis agreed that there was a possibility that anyone could join the march, and the union would be accountable. However, the legislation could be drafted in such a way that the union would only be responsible for the behaviour of members of that union, and the burden of proof that it was union members who had caused the damage would lie with the people who were claiming damages. Unions’ marshalls knew who their own members were. Usually, the union members would be asked to wear T-shirts or some other identification. Members of unions must be briefed beforehand, and the union would be held responsible for the actions of its members.
Ms M Kubayi (ANC) asked why it was necessary to bring this proposal, when the Labour Relations Act was in the process of being amended by the Minister.
Mr Ollis responded that although the Minister tabled her draft legislation on 17 December, there was nothing in that legislation that dealt with violence during strikes, nor was there currently any other legislation that dealt with the issue. He would be pleased if the Minister would consider inserting provisions from his proposal into her draft legislation.
Ms A van Wyk (ANC) felt there was already provision for what Mr Ollis had described, although it was not in the labour legislation, but in the South African Police Service (SAPS) Act. She pointed out that no strike or march could take place without permission from a court, and without the police being involved in the planning session, which included marshalling and the time of the march.
Mr Ollis replied that the first principle that he had briefed the Committee on was not, in fact, set out in any legislation. He was concerned that not enough was done to educate members of unions about their role and responsibility when they went out on the streets. Union bosses spoke emotive language to whip up support for their cause, but insufficient attention was paid also to warning union members what would be considered as acceptable and unacceptable behaviour, and what the punishment would be if they got out of line. He was proposing that, in order to persuade unions to educate their members, the unions should bear the costs if one of the union members acted to harm people or property, and he emphasised that if the union knew it would bear responsibility for what happened, then it would have an incentive to educate, inform and encourage the union members to behave on the streets. It was possible that certain elements of his proposal might be contained in other legislation. However, he would like everything to be brought together, in one amendment to the Labour Relations Act, to tie together cause, effect and sanction, so that if measures were not taken, consequences could follow, including that the strike was suspended and forced to arbitration, and that the unions must pay damages.
Ms van Wyk agreed that the Minister perhaps had not covered this in the proposed legislation. She wondered if Mr Ollis should not make his suggestions to the Portfolio Committee on Labour, since it was rare that legislation would be accepted by the executive without being amended by Parliament. This might not be a parallel process as far as the Executive was concerned, but it was still parallel to the Parliamentary process.
Mr Ollis responded that if the Committee accepted his proposal and sent it to the Portfolio Committee on Labour, it would arrive at about the same time as the Labour Review. He confirmed again that the Minister’s proposed legislation did not contain anything similar to this proposal. It would be useful if support could be given by this Committee having considered his proposal. If the Minister took his suggestions up into her draft, then his own proposal could fall away. However, if the Minister did not, then he would still like his proposal to be considered. Neither the previous nor the current Minister of Labour had addressed this issue. He would not like to withdraw his proposal now, only to find that no legislation aimed at stopping the violence was introduced. If the Minister had a better suggestion to stop the violence or limit it in some way then he would withdraw, but currently there was absolutely nothing to deal with this matter.
Adv Mukesh Vassen, Parliamentary Legal Advisor, commented that the proposal by Mr Ollis would appear to impose strict liability on the union. He asked if Mr Ollis was proposing that if one union member, not authorised to do so by the union, were to go on the rampage and kill someone, then the union should be held responsible. He wondered if that would not affect legislation on organisational rights. Similarly, he posed a question what would happen if a march of 50 000 or 100 000 people was held, and if, although the union stressed that it did not advocate violence and provided sufficient marshals, ten union members might run out and loot a shop, or if some union members decided, without authority from the union, to burn an employer’s car. Other criminal and civil laws covered such issues. He noted that whether this legislation was in place or not, it would be equally difficult to find and prosecute individuals. Perhaps such a proposal would affect civil liability, but it could also have unintended consequences.
Mr Ollis reminded Members that when the soccer legislation was introduced in Europe, the same questions were asked. More than one European country had allowed for joint accountability, particularly in respect of damage to property, where soccer clubs were now required by law to repair damages to stadiums caused by their supporters. He emphasised that a precedent already existed.
The Chairperson asked Mr Ollis if he wished to consider the consequences of emotional or bad behaviour by strikers, and who should approach the courts for a remedy.
Mr Ollis responded that his proposal was not attempting to cover emotive language and insults. He was only making proposals about damage to property and violence against people. He reminded Members that during the 2006 strikes, striking workers had jumped on bonnets of cars parked in Plein Street, and shattered car windows, yet the owners of those cars had little recourse because they could not identify who exactly had caused the damage to individual cars. The same applied to dependents of the 50 people killed attempting to claim damages. He suggested that putting financial obligations on unions would address this, but that only those directly affected by the strike action, and who obtained witnesses that the damage was caused during the strike, could claim.
The Chairperson thanked Mr Ollis for his briefing, and told him that the Committee would now be able to discuss and take a decision on his proposal from a well-informed perspective.
Munasur Special Petition
Adv Vassen briefed the Committee on a petition received from Mr Manasur.
He noted that the petition arose from the attempts by the Public Service Coordinating Bargaining Council (PSCBC) to address discrimination in their pension scheme. People who were in the civil service on 2 September 1998 could claim for and be compensated for arrear pensions. Mr Munasur’s wife had not been in service at that time, although she was a public service employee, and she had then died in 1989. Mr Munasur had lodged a petition that he be allowed to claim for the arrear pension.
Adv Vassen had furnished an opinion, on 22 November 2010, pointing out that Mr Munasur had not exhausted all internal remedies, because there was an appeal process with the PSCBC. He had not qualified to receive the pension. He could, however, still challenge the rationality of the approach taken by the PSCBC. Adv Vassen said that there could be financial constraints preventing redress to everybody in the public service who had been discriminated against. In addition, in terms of the rules governing special petitions, it was clear that Mr Munasur would need to exhaust all other avenues before approaching Parliament.
The Chairperson asked Adv Vassen whether there were still other avenues Mr Munasur could explore.
Mr Vassen said that Mr Munasur could challenge the rationality of the PSCBC decision not to grant his wife a pension.
Ms Kubayi agreed with Adv Vassen. the legal opinion, there were still other avenues that Mr Munasur could undertake before coming to the Committee.
The Chairperson noted that, because there was not a quorum, the Committee would be unable to take a decision on this matter at this meeting. Other items on the agenda also required a quorum.
Ms Kubayi pointed out that by this stage only ANC Members were present, and decisions must be preferably be multi-party.
The meeting was adjourned.
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