Under pressure – Community Demands and Employer Responses

The Labour Relations Act 66 of 1995, as amended (“the LRA”) contemplates a specific model of collective engagement between employers and employees. At its most fundamental level, the LRA creates a framework for the workplace to be organised by Unions, who represent employees in the workplace in relation to various issues which are, more often than not, matters of mutual interest.

This model has increasingly come under threat in recent years. Some Unions have struggled to function and discharge their obligations as trade unions, often due to internal squabbling, mismanagement, incompetence and corruption.

These developments have presented an opportunity for community leaders, NGOs, informal or voluntary associations and even political parties to step into the space previously occupied by Unions to seek or claim to represent the interests of specific groups of people or communities.

Employers increasingly receive requests to engage with community interest groups and organisations on a variety of issues, from infrastructure development and service delivery to increased wages for workers, notwithstanding the fact that they may have established bargaining arrangements and structures with Unions.

The extent of the challenge faced by employers

While some of these organisations are concerned with the rights of those who are employed, there are some that represent those who are unemployed or even employed by other employers.

Many organisations represent communities or specific interest groups who are not employees of the employer, but who seek to demand that certain social initiatives be undertaken by employers. These organisations are often led by so-called ‘community leaders’ who are self-appointed and seek to extract undertakings by employers to provide certain benefits to the communities.

The reason for this is complex. A significant factor is the fact that many municipalities are poorly run and are unable to provide basic services to their residents. Feelings of anger and resentment from many years of inadequate services often find their expression in violent and destructive ways in so-called ‘service delivery protests’.

In remote or rural parts of the country, entire communities are sometimes dependent on one or two employers to provide that community with jobs and other services, such as loans. The expectation by those communities often is that employers are able to plug the gaps left by inept and dysfunctional municipalities and should do so.

Examples of involvement by organisations & communities at the workplace

Communities who band together hold considerable potential to bring an employer’s operations to a standstill and to inflict serious damage to an employer and municipal or national infrastructure. As with the De Doorns and Lichtenburg protests, entire towns could be affected and the impact is tangible. These realities often not only affect employers’ operations, but even force employers to act against their will, and sometimes the LRA.

In Maine v T and C Civils [2015] 4 BALR 389 (CCMA) the employer employed an employee as a labourer on a fixed-term contract. The appointment was made after securing a contract to upgrade a public road. The community in which the road was being built objected to the appointment of the employee because she had previously obtained work on another community project, and thus demanded that she be dismissed. After receiving threats that operations at the site would be brought to a standstill unless the employee was dismissed, the employee’s contract was terminated. The Commissioner noted that had it not been for pressure from the community, the respondent would not have dismissed the applicant and found her dismissal unfair.

Many community or public interest issues which give rise to protests can be commandeered to advance specific political agendas. In the recent case of NUFBWSAW & others v Universal Product Network (Pty) Ltd: In re Universal Product Network (Pty) Ltd v NUFBWSAW & others (2016) 37 ILJ 476 (LC) the Economic Freedom Fighters became involved in a strike organised by a Union in order to protest against the Company’s business relationship with Israel. The Court found that while the EFF may have participated in the strike, the strike still dealt with matters of mutual interest raised by the Union and thus the strike was protected.

Are employers obliged to engage with organisations other than Unions?

As a general rule, there is no legal obligation on employers to engage with any organisations. Even the LRA has consciously adopted a voluntarist approach to collective bargaining and engagement between Unions and employers. A Union may however apply pressure to an employer, by using the mechanisms in the LRA, to secure interaction with an employer.

A closed door may not, however, always be the best approach. As a matter of industrial policy, circumstances must be carefully analysed before engaging with organisations which are not Unions.

Engagement with communities and other organisations is obligatory for employers who are required to implement Social and Labour Plans (“SLP”), in accordance with the Mineral and Petroleum Resources Development Act 28 of 2002. The results of engagements have been mixed.

While it may be possible to adopt an inclusive and co-operative approach towards these organisations; conversely, opening the door to such organisations may constitute the beginning of endless demands and overreaching by these organisations and communities. Such situations can quickly spiral out of control.

Where possible, employers should attempt to resolve issues as close to the source as possible. Encourage employees who are not members of a Union to form an employee representative forum and to appoint representatives who meet regularly with management to discuss various concerns of employees. Regular communication and engagement with employees is key to achieving industrial peace.

Where employers engage with other organisations, clear ground rules should be established. Agreements should be concluded and reduced to writing to ensure that roles and responsibilities are clearly defined and that conduct is regulated. Responsible persons should be identified in those agreements and employers must establish who the organisation is mandated to represent and that the person identified as a representative has been properly mandated.

Compliance with the rule of law is extremely important. The use of violence, intimidation, protests or any interference with the operations of the employer should not be allowed under any circumstances.

Finally, employers should not become substitutes for municipalities. Where municipalities are dysfunctional, employers should engage proactively with the municipality or, if this is unsuccessful, provincial government to resolve service delivery and other community issues. This should be done in collaboration with the broader community and its various organisations.

Written by Neil Coetzer
of Cowan-Harper-Madikizela Attorneys

Neil Coetzer of Cowan-Harper-Madikizela Attorneys,