The Transnet strike by SATAWU seems to have taken forever; 18 days is certainly unduly long. UTATA cleverly settled its parallel strike on the basis that if the strike by SATAWU led to a better deal than the one that brought its similar strike to a swift end, its members would be given the benefit of the difference gained by the sacrifices made by the SATAWU workers who have held out longer in a “no work; no pay” situation for the sake of pushing Transnet to improve on its offer of increased wages, which is the reason for both strikes. There is something undemocratic about such a deal, and also about a minority union holding the majority to ransom too.

Strikes and lock outs, in the parlance of labour lawyers, are the classical power play between workers and employers. Unions have been broken due to their embarking on ill advised strikes. Companies have failed because strikes or lock outs have so affected their bottom line as to render their continuation in business impossible. “Power play” may be too euphemistic a term. All too often it is anything but play, and sometimes it is a fight to the death, an outcome which a co-operatively commenced employer/employee relationship could and should not countenance. Workplace democracy, the availability of the power play through withholding of labour or a lock out of staff, is an advance on past practices but it should not mean licence to destroy or manipulate.

It is not only the relationship between employer and employee that suffers when strikes become unduly protracted. The public weal is negatively affected in that the loss of production reduces the taxes collectable from both sides. The customers of the business affected by the strike lose its services or goods. The general public can be directly affected through loss of services, such as occurs when rail commuter service staff go out on strike. The knock on effect of the Transnet strike may be insolvencies in the export sector, especially producers of perishables that have not reached distant markets by reason of the shut down of the ports and goods handling services usually carried out by Transnet staff. Others may have to retrench their staff owing to losses sustained as a result of the effect of the strike on their turnover and profitability. Transnet, a state owned monopoly, sails serenely on through this trail of destruction.

Despite all of these deleterious consequences, the Bill of Rights makes it plain that “every worker has the right to strike”. It is so that this right is not available to workers in the essential services sector for obvious reasons. This does not always prevent workers involved in the essential services sector from striking (such as happened with public sector doctors last year) but strikes of this nature are illegal and unprotected. However, a lawful strike engaged in after the exhaustion of the procedures and practices required as preliminaries to its commencement, may go on until the power play runs its destructive course. The strikers are not liable to employers or third parties for consequential losses attributable to the length of the strike; this is because the strike itself is a lawful activity. Whether the employer may be so liable to third parties if it wrongfully delays negotiating an end to any strike is a nice question which is unlikely to ever be answered in court as it would be well nigh impossible to prove fault on the part of the employer.

Unfortunately in South Africa strikes are all too often accompanied by unlawful collateral activities. Rail coaches are torched. Premises are trashed. Scabs are beaten up or even murdered. Litter is strewn about by strikers on the march, intent upon emphasising the extent of their anger at the paltry offer on the table. Toyi toying followed by looting has been known to occur. Strikes with these features should be capable of being declared unlawful, that is to say that unions unable to exercise discipline over their members should forfeit the benefits of a legally protected strike.

The unions which tolerate this type of behaviour, or are unable to contain it, are doing the public and their members no favours. Frequently strikers alienate themselves from the public at a time when they should be so arranging their affairs as to elicit the support of the public for their cause. This support may become necessary if the strike is long and the hardship it engenders great. Instead, strikers all too often earn the disapproval of their fellow countrymen, so many of whom would be prepared to give their eye teeth just to have the privilege of being employed. The unions would be well advised to take this into consideration and to develop strategies for keeping their striking members onside with the general public. The development of strike prone elites of workers and an underclass of unemployed or underemployed workers are not healthy for democracy. When transport workers in Germany find it necessary to strike they involve themselves in making sure that commuters are not prejudiced by the strike. No such activity is ever seen in South Africa. Repeatedly, lengthy strikes in SA do not succeed in improving the lot of ordinary workers. They should know that for each week that they are out on strike they lose about 2% of their annual wage; the basic economics of holding out for less than that seems to escape innumerate strikers. For them, a little numeracy training might help.

Given that strikes are a constitutionally protected means of breaking any procedurally attained deadlock in negotiations between employers and workers over conditions of service and pay, is there not a better way of achieving consensus on these importance matters? In the essential services sector, a deadlock is followed by a compulsory arbitration because strikes are not allowed as the public interest is too severely affected when essential services are disrupted. But the public interest is also prejudiced by long, and possibly avoidable strikes, as can be seen by the billions lost in the latest Transnet strike and the collateral damage it has done to the economy and the jobs of those not even remotely involved in the power play between Transnet (which is owned by the public) and its minority SATAWU workers, whose umbrella union is part of the tripartite alliance which is the government of the day. It is a conundrum that the workers on strike may be no more than pawns in a power play within that alliance, one designed to push the government leftward, irrespective of the damage done to the economy and the pockets of strikers while the pushing continues. The threatened strike over Eskom tariff increases falls into the political power play category. While it is easy to sympathize with workers who are charged extortionate rates for electricity consumption while corporate fat cats pay less than cost for vast quantities of electricity, the efficacy of striking over this is questionable.

Would it not be preferable to insist upon some form of professionally run mediation, or even a compulsory arbitration in place of, or at least before, a strike could lawfully be embarked upon? Should consideration not be given to limiting the period of a strike as harmful to the public weal as that at Transnet? The creation of a semi-essential category of work might help. While it is necessary to remain mindful of the democratic essence of the right to strike untrammelled by over-regulation, there are foreign jurisdictions in which, after a strike has endured for a set period, the parties involved are obliged to take their outstanding differences to compulsory arbitration and they are then bound by the award of the arbitrators. While the arbitration is underway work continues. This is surely preferable to a seemingly interminable power play in which so much suffering occurs and so much collateral damage takes place both lawfully and unlawfully. Obviously, the longer a strike endures the harder it is to settle because for each day it goes on the workers are not being paid and the more determined they become to ensure that their “investment” in the strike pays them a dividend in the form of suitably increased wages. Greater openness and transparency regarding the finances of employers would surely serve to shorten or even eliminate some strikes.

None of the rights in the Bill of Rights is unlimited. All of them, including the right to strike, can be limited generally “to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”. The question which arises in the light of the South African experience of strikes in recent years is whether it is reasonable and justifiable to allow the destructive power plays now in vogue to continue unabated and under-regulated. It is too late to legislate a complete ban on strikes until after the World Cup soccer tournament, instead, employers, workers and unions should simply heed the President’s request that they “behave”. In the longer term, there is much the planning commission could do to ameliorate the situation.

Paul Hoffman SC
31 May 2010.