Unprotected strikes allow management to dismiss strikers – Polity, 29 April 2016

By Sara Gon 

April 2011, May 2013, November 2015, December 2015 and April 2016. These are some of the months in which Pikitup refuse removal staff embarked on unprocedural strikes.

The most recent strike lasted five weeks. The unprotected (or wildcat) strike was the fourth since November 2015 alone.

The SA Municipal Workers Union’s (SAMWU) Paul Thlabang said: “SAMWU workers refuse to go back to work. They downed tools demanding salary adjustments and that their boss Amanda Nair to be fired.” (SABC NEWS, Striking Pikitup workers go on a riot, 22 March 2016)

SAMWU members also continued to defy a court order, insisting they wouldn’t go back to work until their demands were met. 

The negative effects on health, environment and aesthetics have been widely reported. Issues that have been the subject matter of these strikes have included wages or wage adjustments, dismissal of the CEO for alleged corruption, the use of breathalysers and biometric time control, and support of shop stewards facing disciplinary action. Strikes are either procedural and unprocedural, or protected and unprotected.

Strikes are not illegal which implies 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 subject to possible dismissal.

Pikitup Johannesburg (SOC) Ltd’s website describes itself as “the official integrated waste management service provider to the City of Joburg. We are mandated to provide integrated waste management services to the residents of Johannesburg. We employ more than 4500 people, using more than 200 trucks to provide refuse collection services to the City of Joburg’s private, and business residents”.

As an agency for the Johannesburg City Council, the terms and conditions of most of its staff are governed by agreements reached through collective bargaining that takes place at the SA Local Government Bargaining Council (SALGA).

The Council was established under the Labour Relations Act, 1995 by agreement between the employer organisation (SALGA) and the trade union parties, the Independent Municipal and Allied Trade Union (IMATU) and SAMWU.

SALGA represents 278 municipalities and the two unions their employees. The collective agreements are binding on the members of SALGA, SAMWU and IMATU. This means that any issue covered by a collective agreement cannot be the subject matter of any other negotiations. SAMWU is a member of the Congress of South African Trade Unions (COSATU – part of the tripartite alliance) and IMATU member of the Federation of South African Unions (FEDUSA).

SAMWU has about 180,000 members and IMATU about 80,000.

On 26 August 2015, an agreement on wages and other conditions for employment was concluded between the parties, valid for three years before it must be renegotiated.

In March 2016, more than 4,000 SAMWU members embarked on their umpteenth unprotected strike, demanding higher salaries (minimum of R 10, 000 per month) and the removal of Nair for alleged corruption.

On this, as previously, Pikitup obtained a labour court interdict to prohibit the strike from taking place because the strike was unprocedural.

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 to do so is prescribed by the LRA in section 64. 

Not withstanding the unprocedural nature of the strikes, in December 2015, SAMWU tried to mobilise members from the Ekurhuleni Metropolitan Municipality to join striking members in Johannesburg. SAMWU’s Papikile Mohale said that if Pikitup workers from Ekurhuleni Metro joined the strike, “this will make the Gauteng province ungovernable”. (The Times, Samwu mobilises more workers to join Joburg strike, 2 December 2015)

Mohale denied allegations that SAMWU’s affiliated Pikitup workers have been violent during the two-week-long strike. He said this was a ploy by management to discredit their cause.

As Ebrahim Harvey says (Mail & Guardian, Samwu – the union that’s trashing itself, 1-7 April 2016) SAMWU’s behaviour, in ignoring legal procedure and court rulings, is grossly irresponsible. No other union has had so many wildcat strikes. This is less a sign of militancy than a sign of leaderless disorganisation.

In none of the unprotected strikes has SAMWU declared a formal dispute. It is trite in labour relations, particularly with regard to essential services, that strike action is the last resort in negotiations. Refuse removal has a “half pregnant” status as an essential service. It is deemed an essential service by the ministerial Essential Services Committee once refuse has been left uncollected for 14 days or longer.

For a union to be mobilising members that are not involved in the primary strike is a breathtaking unprofessionalism.

Added to lack of regard for labour law is the violence, damage and attacks perpetrated by SAMWU members which the union always disingenuously ascribes to “outside forces”.

Harvey points out that SAMWU seems unaware of the need to win public support in a strike. He further notes that SAMWU has not provided proof of Nair’s alleged corruption. SAMWU’s verbal attacks of “go back to India” have had a racial tone. According to Harvey an unnamed official said that the demand for Nair’s axing was an attempt by some in SAMWU to “install their own political puppet”.

SAMWU has been racked by internal leadership divisions, fraud and corruption. More than R 100 million in union funds has gone missing. Rifts between SAMWU leadership is apparent: the national leadership wanted the strikers to return to work; the Gauteng region supported its continuation.

If SAMWU’s leadership and organisational woes are not the problem, then things don’t improve for SAMWU. It means that SAMWU has lost control over its membership who are going on nasty frolics of their own and SAMWU is showing support as a sign of catch-up not control.

Unprotected strikes allow management to dismiss strikers. The time has long been reached where Pikitup should have dismissed the strikers. Pikitup has issued a number of final warnings to strikers that they face dismissal. This can only be done a few times: eventually an employer has to follow through. Otherwise those at risk know they can strike unprodecurally secure in the knowledge the ultimate consequence won’t happen.

It is very tough but it is a very salutary lesson. Families are deprived of a livelihood, getting new staff on board takes time and training, there is a threat of violence by the dismissed employees, and the public is likely to become impatient while all this is happening.

But every person has obligations in this society including the obligation not to strike unprocedurally and behave criminally. If those obligations are breached repeatedly, employees and their representative union have to be prepared to take the risk of justifiable dismissal. Unfortunately lessons are often learnt too late but they have to be taught and learnt.

Moreover there is an overriding obligation by Pikitup, SAMWU and its members to provide the citizens of greater Johannesburg with a professional refuse collection service for which they have paid. Let’s not even mention the unemployed who would willingly be employed for R 6 000 per month.

Sara Gon is a Policy Fellow at the IRR, a think tank that promotes economic and political liberty. Follow the IRR on Twitter @IRR_SouthAfrica.

Read the article on Polity here.