The recklessness and impunity of the South African Municipal Workers’ Union (Samwu) will only change when it is successfully ordered to pay for damage arising from an unprocedural strike.
Groundhog Day is an institution in North America where on every 2 February people keep their eyes peeled for any groundhog emerging from hibernation. Should it be sunny, and the animal sees its shadow, it will retreat back into its hole, portending another 6 weeks of winter weather.
Groundhog Day also denotes a situation in which a series of unwelcome or tedious events appear to be recurring in exactly the same way.
This was immortalised in the movie Groundhog Day in which Bill Murray plays a reporter who goes to a small town to cover Groundhog Day and gets trapped in a time warp. He lives the same day over again until he becomes a better person.
Unfortunately, when it comes to the Samwu, we’re unlikely to ever get out of our own nightmarish, time-warping Groundhog Day.
Last week, Samwu members shut Tshwane down in a dispute with the Tshwane City Council over its decision to pay an 18% salary increase only to its permanent employees and divisional heads, leaving out lower-level employees. Samwu demanded an 18% increase for all lower-level staff, backdated to 2017.
To pressurise the Council, Samwu’s members shut down the city and trashed the streets, which forced business owners to close their shops and kept their employees from work. The damage caused by the strike is estimated at about R500 million.
The Council interdicted Samwu and its members from striking as the strike was unprotected; workers were also accused of ‘thuggery and disorderliness’. A number of services are designated as ‘essential’ under the Labour Relations Act, which limits such workers’ right to strike.
As usually happens with unlawful strikes by Samwu, the relevant city council concedes to something to end the strike and life goes on as normal until the next unlawful strike.
In this case, a once-off ex-gratia payment of R15 000 would be paid to workers earning less than R20 000 per month; R10 000 for those earning up to R30 000; and R7 000 for those earning more than R30 000.
These events are part of a repeating pattern of unprotected strikes involving Samwu: April 2011, May 2013, November 2015, December 2015, March 2016 and April 2016.
Strikes are either procedural or unprocedural, or protected or unprotected. Strikes are not illegal in the sense of implying a criminal breach. If a strike is procedural, strikers may not be dismissed and no civil legal proceedings may be brought against them. Conversely, if a strike is unprocedural, it amounts to misconduct and therefore participants are subject to possible dismissal.
Whether a strike is procedural or not depends on the process followed prior to striking. The Constitution guarantees the right to strike (section 23(2)(c), but the process to be followed is prescribed by Section 64 of the Labour Relations Act (LRA).
Unprotected strikes allow management to dismiss strikers. There are procedures to be followed before dismissal takes place, but tactically dealt with, they can sober a union and its members and deter them from doing the same thing again. Otherwise, those at risk know they can strike unprocedurally, secure in the knowledge that the ultimate consequence won’t happen.
Every employee has an obligation not to strike unprocedurally. If those obligations are breached repeatedly, employees and their representative unions have to be prepared to take the risk of justifiable dismissal. At some point, in the case of municipal employees, a city council is going to have to get tough. Trashing streets and destroying property must, where possible, be the subject of criminal action. Protected strikes do not mean that the strikers can embark on violent or destructive action; and they can’t gather wherever they choose.
A problem seems to be that the Council’s original grant of an 18% salary increase to managers was improper. Where in the universe of our economic meltdown can the Council justify an 18% increase to anyone? And what is the cost to the city’s residents of the ex gratia payments to the strikers?
City councils owe it to their residents and ratepayers to put them first. They mustn’t keep entertaining the professional misconduct of unions like Samwu. Nor must they be awarding any of these sorts of increases in a dire climate such as ours.
Samwu is a member of the Congress of South African Trade Unions (Cosatu) – a part of the tripartite alliance, with the African National Congress and the South African Communist Party – and has about 180 000 members.
Samwu has been racked by in-fighting, fraud and corruption. More than R100-million in union funds has gone missing. Samwu has been threatened by the Labour Registrar with being put under administration.
Once or twice in the past, Samwu has said that it was not involved in triggering unprotected strikes and that its members acted independently. This means, however, that Samwu lost control over its membership. Samwu made no bones about its involvement in the unprocedural Tshwane strike. Section 68 of the LRA allows an employer to apply to the Labour Court to order just and equitable compensation for loss caused by a lack of compliance with the LRA.
The recklessness and impunity of Samwu will only change when it is successfully ordered to pay for damage arising from an unprocedural strike. Or if it wound up being insolvent due to defrauding its members – whichever happens first.
Otherwise it’s Groundhog Day in industrial relations. It’s Groundhog Day in industrial relations. It’s….
Sara Gon is the head of strategic engagement at the IRR.
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