Volume 26 No. 3 October 2016 Protests, marches and ...

1 Page 22 T he idea that employees should be entitled to partici-pate in some form of collec-tive action in protest against govern-ment policies or decisions gained prominence in the late 1980 s. Em-ployees would stay away from work, and participate in marches or mass rallies in support of demands made, or protests against, the then Nationalist Party government. These actions were not countenanced by the labour legislation (and other legislation) then in force and dismis-sals for participation in these activi-ties was a regular occurrence alt-hough the Courts were, in some cas-es, prepared to hold that the dismis-sals had been unfair.

2 Given their experiences it was not surprising that, when the drafting of the current Labour Relations Act, 66 of 1996 (LRA) took place, COSA-TU and other union bodies argued strongly that these stay-aways should be capable of acquiring pro-tected status in certain circumstanc-es. This was achieved by the enact-ment of section 77 of the LRA. It embodies the right of workers to take part in protected protest action . The heightened political tensions currently being experienced has re-sulted in an increase in the incidence of protest action.

3 In this contribution we will discuss section 77. We will also consider the Regulation of Gatherings Act, 205 of 1993, (RGA). This statue regulates the conduct of marches , mass meetings and rallies actions that often accompany protest actions as envisaged in section 77. Protest action: Section 77 of the LRA The LRA permits and regulates two types of collective action that can impact on the workplace. The first type is, of course, the strike. Here employees may refuse to work, or Protests, marches and disciplinary action Managing Editor: le Roux Hon.

4 Consulting Editor: Landman Published by Box 31380 Tokai 7966 Tel: +27 21 788 5560 ISSN-1995-218X e-mail: Volume 26 No. 3 October 2016 by le Roux When can an employer be sued for instituting disciplinary action ? p29 Page 23 obstruct or retard work, in order to remedy a grievance or resolve a dispute in respect of any matter of mutual interest between employ-er and employee. In most cases the issue in dispute will clearly be one relating to a matter of mutual interest between employer and em-ployee but occasionally difficulties arise in this regard.

5 The decisions most often referred to are relatively early decisions dealing with disputes arising within industrial councils (the predecessors of bargaining councils) estab-lished in terms of earlier labour legislation and there is doubt whether these decisions still provide much guidance today. See in this regard the comments and analysis in Va-nachem Vanadium Products (Pty) Ltd v Na-tional Union of Metalworkers of SA & others (2014) 35 ILJ 3241 (LC). But, as indicated above, the LRA does permit and regulate collective action in a second situ-ation, namely when the action constitutes pro-test action.

6 Protest action is defined in section 213 as - ..the partial or complete concerted re-fusal to work, or the retardation or ob-struction of work, for the purpose of pro-moting or defending the socio-economic in-terests of workers, but not for a purpose re-ferred to in the definition of strike; It is important to note that the activities that constitute protest action are rooted, in the first place, in the workplace; as in the case of a strike, they consist of a refusal to work or the retardation or obstruction of work. But if the action envisaged in the definition is rooted in the workplace, the purpose for which it is em-barked upon is not.

7 The definition excludes from its scope actions committed for a pur-pose referred to in the definition of a strike - a grievance or dispute relating to a matter of mutual interest. Apart from this exclusion very little guidance is given as to what will constitute the socio-economic interests of workers. Both John Grogan Collective Labour Law 2nd edition at 292 and Martin Brassey Commentary on the Labour Relations Act at argue that protest action (as defined in the LRA) does not include collective action in support of purely political issues.

8 In other words, a collective refusal to work in support of a proposal that workers vote to remove a particular political party from power at the next election, or to support another political party, cannot constitute protest action. Howev-er, a collective refusal to work in order to op-pose or protest against a particular govern-ment policy that affect the interests of work-ers can. This approach seems to be correct but it is as well to make the point that although protest action may not include demands of a purely political nature this does not mean that trade unions and workers cannot participate in political activity in other ways.

9 Most perti-nently, for example, they may be entitled to organise and convene protest marches and ral-lies in support of a political party that are sanctioned in terms the RGA. Socio-economic interests There are only two reported court decisions dealing with protest action. In Business South Africa v Congress of SA Trade Unions & another (1997) 18 ILJ 474 (LAC) the La-bour Appeal Court (LAC) dealt with envis-aged protest action in support of a dispute re-garding the enactment of a new Basic Condi-tions of Employment Act.

10 In the context of considering whether the procedures to be fol-lowed in order for protest action to acquire protected status had been complied with in the particular circumstances of that case, the ma-jority decision rejected the argument that a purposive interpretation necessarily meant Contemporary Labour Law Vol. 26 No. 3 October 2016 Page 24 that a liberal or extensive interpretation had to be applied and that the right to protest ac-tion had to be restricted as little as possible.