The right to strike in general
The recommendations I make in this paper enlarge the scope of strike action. Understandably, this might cause consternation in a country that already has the highest strike rate in the world. In practice, however, the proposals should, at worst, do nothing to increase the incidence of striking and will arguably bring the levels down. Workers, who in any event have only a given appetite for industrial action, are significantly less likely to strike in an environment in which wage settlements are realistically pitched. When they bargain in the rarefied world in which competition is stultified, they lose perspective, and so do their employers.
The structures and processes of strike law are satisfactory. In compliance with the dictates of both the Constitution and the ILO, they give ordinary workers the right to strike free of dismissal provided the strike is lawful. Strikes become lawful if the dispute is over a matter of employment and the processes of the statute have been engaged in an effort to resolve it. Provision is made for peaceful picketing, political and secondary strikes are restrictively regulated and arbitration is the compulsory forum for resolving disputes in essential services. If there is a problem – and a problem there is – it is not in the structures themselves, but in their application. In a word, the problem is violence.
Currently, large employers gear up for a strike by hiring private armies at great cost. In the ensuing confrontation, those who want to work must often show great courage and much resolve. Safe passage through the picket line is just one of their concerns; what they must also negotiate is the threat to life and limb at their homes and on the commute back and forth to the place of employment. Murder and arson are far from rare in South African strikes, and assault and intimidation are pervasive.
The easy response is to reproach the police for failing to do their duty. In the past, they were greatly to blame – their response to strike violence, when not openly sympathetic, was often one of indifference or impotence. An improvement in approach seems to be evident but, however active and conscientious they might be, they cannot be expected to be everywhere. A systemic remedy is crucial if this scourge is to be dealt with properly. Compassion dictates as much; so do considerations of the maintenance of law and order; and so does the proper interplay of collective bargaining, which centrally depends on the ready deployment of non-strikers and strike-breakers to keep production going. Without this, the collective agreement, which should be dictated by the forces of supply and demand, cannot find its proper level.
Some of this violence is a concomitant of unemployment. People out of work will seldom have much sense of worker solidarity and will cross the picket line without compunction in quest of a day’s wages. That strikers, finding persuasion useless, resort to violence under such circumstances is understandable though not, of course, excusable. Within the union itself, comparable imperatives are at play with much the same consequences. Workers receive no strike pay from the union and, in consequence, earn nothing when they go out on strike. Since this is an unhappy result, we can assume that some workers respond with reluctance when the call to down tools goes out. How many? Anecdotal evidence suggests that the proportion may be significant, but we cannot be sure; nor, indeed, can we even be sure that the strikes being called have the support of a bare majority of those asked to participate. Since strike ballots are no longer a precondition for a strike, there is simply no way of telling.
Polling worker views before striking
Under the previous Act, strike ballots, which were mandatory, had a chilling effect on strike action. Aside from the cost and complexity of holding them, employers mined them for technical deficiencies in the hope that, by discrediting the strike, they might justify their conduct in taking reprisal. No one wants a return to those days of naked opportunism, but it still makes sense to oblige union officials to secure continuing majority support and to be able to demonstrate it to the satisfaction of the Labour Court. In this electronic age, where votes and messages of support can be relayed by e-mail, twitter or sms, this should be relatively easy for a union to do. Given that coercion starts where consent leaves off, ensuring that collective action has the genuine support of the majority can do much to reduce levels, if not of strikes, then certainly of strike violence.
If we are to be realistic, however, we must accept that a balloting rule would be a useful palliative of industrial violence but not a complete antidote. Some levels of violence against ‘scabs’ will still occur, and measures need to be taken to deal with them. One solution is to give the Labour Court the power to deprive the strike of its protected status. The effect of this, which is to give the strike-hit employer the right to dismiss the strikers, can be profound and by no means necessarily benign, as bitter experience in our country has shown. A second possibility is to channel the dispute into mandatory arbitration and place a ban on the strike, which seems a better option, though it is possible to see how weak unions might use this process opportunistically. In addition to either of these options, unions can be made vicariously liable for harm to person or property unless they can show they have taken reasonable steps to prevent these consequences. To the liberal mind, this solution jars slightly since it conjures up the spectre of collective responsibility, that is, individual misdeeds being attributed to others by reason of association. We must realise, however, that strike protections and, indeed, other collective and organisational rights are privileges that workers and their unions can be expected to enjoy only if they discharge their concomitant responsibilities. Football unions, despairing of lesser measures, now make clubs strictly liable for the hooliganism of their members and the results are available for all to see. Strict liability for trade unions is not what I am suggesting here, but an enlargement of the attribution of liability that already exists in the provisions of the Regulation of Gatherings Act. A firmer response than the present one is surely called for: we can, in good conscience, no longer sit by and watch unions piously declaiming their distaste for violence while secretly rejoicing at the effectiveness of their bloodthirsty ‘A-teams’.