SOUTH AFRICA: NEW CODE OF GOOD PRACTICE ON PROTEST ACTION PUBLISHED BY NEDLAC

By Chloë Loubser Wednesday, September 07, 2022
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On 2 September 2022, the National Economic Development and Labour Council (NEDLAC) issued a new Code of Good Practice: Protest Action to Promote or Defend Socio-Economic Interests of Workers (Code) in terms of the Labour Relations Act, 1995 (LRA).

The publishing of the Code follows a national shutdown which took place in South Africa a few weeks ago to address issues such as the rising cost of living and loadshedding. While the national shutdown of 24 August 2022 proved not to be as ‘massive’ as the organising trade union federations, the Congress of South African Trade Unions (COSATU) and South African Federation of Trade Unions (SAFTU) may have hoped, employers at the time were gearing themselves up for potential unrest and may have been wondering what their rights and obligations were in respect of employees who chose to take part in the protest.

Protest action is synonymous with the history of South Africa and remains common today. In terms of section 77 of the LRA, every employee who is not engaged in an essential service or a maintenance service has the right to take part in protest action if:

  • the protest action has been called by a registered trade union or federation of trade unions;
  • the registered trade union or federation of trade unions has served a notice on NEDLAC stating (i) the reasons for the protest action; and (ii) the nature of the protest action (s77(1)(b) notice);
  • the matter giving rise to the intended protest action has been considered by NEDLAC or any other appropriate forum in which the parties concerned are able to participate in order to resolve the matter; and
  • at least 14 days before the commencement of the protest action, the registered trade union or federation of trade unions has served a notice on NEDLAC of its intention to proceed with the protest action.

Where the above requirements are met, employees must be permitted to take part in protest action or in any conduct in contemplation or in furtherance of protest action and, while the ‘no work no pay’ principle may be applied by employers, employees are, among other things, protected against dismissal for participating in the protest.

The Code now provides additional guidance on the application of section 77 and must be read alongside the Labour Relations Regulations. Among other things, the Code deals with the following:

  • The procedural requirements that must be met in order for the protest action to meet the requirements of section 77, including what form the notices to NEDLAC must take, how the notices may be delivered, the sequence of events in a section 77 referral and the time frames in which the process must take place.
  • The substantive requirements that must be met in order for the protest action to be ‘protected’ in terms of section 77. In particular, the matter giving rise to the intended protest action must concern a matter that promotes or defends the socio-economic interests of workers; and there must be a consideration of the issues with a view to reaching consensus. In this regard, matters of socio-economic interest exclude (i) matters of mutual interest between employer and employee and (ii) matters of a purely political nature. Matters of socio-economic interest include (i) issues that are major social and economic policy trends which have a direct impact on the trade union’s members and on workers in general, in particular as regards employment, social protection and standards of living; and (ii) matters which fall within the ambit of the social status and economic position of workers in general such as the imbalances in the education system as a result of past government policy.
  • The establishment, composition, functions, quorum, obligations and decisions of the NEDLAC standing committee as well as the appointment of a panel of facilitators to facilitate the consideration of matters giving rise to a s77(1)(b) notice.
  • The pre-consideration processes (i.e. how the s77(1)(b) notice is dealt with when it is served on NEDLAC).
  • The facilitation of considerations, including what issues must be addressed during the first meeting, the procedures to be followed and the obligations of the parties during the facilitation process. In this regard, among other things, the representatives of the parties are required to sign a ‘good faith declaration’ in which they declare that they will, inter alia, participate in engagements in good faith and with the sincere intention of resolving the matter.
  • Dispute resolution mechanisms. In this regard, the Labour Court has jurisdiction to (i) review and set aside NEDLAC’s decision that the matter is not a matter of socio-economic interest to workers; (ii) interdict protest action if there has been non-compliance with the provisions of section 77(1)(b), (c) or (d) of the LRA; and (iii) limit the protected nature or duration of the protest action by weighing the importance to the workers of the matter giving rise to the action against the nature and duration of the protest action.  

The Code aims to strengthen and promote the consideration of matters concerning the socio-economic interests of workers and provide mechanisms to promote a dialogue on these matters. It also serves to provide guidelines to NEDLAC, facilitators and other appropriate forums to which these matters are referred for the proper and effective consideration of these matters. The Code should, accordingly, provide useful structure to the discussions on socio-economic interests between relevant stakeholders going forward. 

From an employer’s perspective, the Code should also make it easier to determine whether the requirements of section 77 of the LRA have been met when assessing workers’ participation in protest action.