Not another memorandum of demand
Author: Imraan Mahomed - Practice Area Lead, Employment/Labour Law
"The lady doth protest too much, methinks," Shakespeare writes in Hamlet. Protests then had a very different meaning to protests today in South Africa. They have become almost the only method the majority identify as a real means of communication with the levers of power (whether in state or in the workplace). This article examines the right of assembly and protest in the employment sphere.
Throughout our history, the workplace has been one of the bastions through which political rights were asserted. We were naive, not only as the industrial relations community but as a nation as a whole at the dawn of our political emancipation, to believe that a workplace would become a "workplace proper" in which real life social and political issues would not play out. We must all accept that political liberation in 1994 did not equate to economic emancipation.
The public face of Marikana brought home one such example of how everyday social issues still played out tragically in the work environment. There is an interesting interplay between the right to protest and assemble in the general sense versus the exercise of such rights in the work arena. The Regulations of Gathering Act (the RGA) was promulgated in 1993 ahead of the Constitution. It is, by and large, the main legislative vehicle through which the constitutional rights of assembly and protests are regulated. Section 17 of the Constitution gives effect to the right of all to participate in picketing, assembly or demonstration.
The Constitutional Court, in its seminal 2012 decision of SATAWU & Another v Garvas & Others, put it aptly when it said the following about freedom of assembly: "It exists primarily to give a voice to the powerless only mechanism available to them to express their legitimate concerns.... So the lessons of our history, which inform the right to peaceful assembly and demonstration in the Constitution, are at least twofold. First, they remind us that ours is a 'never again' Constitution: never again will we allow the right of ordinary people to freedom in all its forms to be taken away. Second, they tell us something about the inherent power and value of freedom of assembly and demonstration, as a tool of democracy often used by people who do not necessarily have other means of making their democratic rights count. Both these historical considerations emphasise the importance of the right."
There can be no denying the veracity of these words - but does this right apply equally to the expression of grievances which emanate from the employment relationship? This at face value may seem a rather strange question since Garvas was a matter that involved a transport workers union. But practical experience dictates otherwise.
Unions and, at times, non-unionised employees seek to resolve their employment grievances by what is colloquially known as "marching to the employers premises" (typically the head office) or, on occasion "marching to Luthuli House". There have also been occasions of "marching to state department buildings" and even "marching to the office of the Public Protector". These demonstrations operate under authority of the RGA, which is generally a mechanical form filling exercise with the appointed government official (generally the designated police officer). The RGA is considered the ultimate license. This conclusion was fortified some time ago in a matter in which a client of ours sought to evict an illegal underground sit in - the union argued that the conduct was the exercise of the section 17 right to demonstrate. In the absence of RGA authorisation this argument was given short-shrift by the court. Had there been some form of RGA authorisation, the decision may have been very different - health and safety issues aside, of course.
The Labour Relations Act, 1995 creates the mechanism for employees to exercise their right to strike and picket. Allied to the right to picket is the right to assemble and demonstrate. However, without a strike there can be no picket. An entire section of the LRA is dedicated to the exercise of the right to picket which, in the parlance of the LRA, is in a form that is protected. A code of good practice on picketing has also been published. It refers to the RGA, in passing.
In an attempt to insulate labour law (which was not met with great success in the certification proceedings in the 90s), the legislature channelled all employment related matters through the specialised pieces of employment legislation. Does this separation fray when it comes to the exercise of the section 17 rights in the employment arena? It does, where section 17 rights are exercised through the RGA.
Attempts to keep labour law specialised through its own mechanics has long been the stated goal - for a number of well-intentioned reasons. The most recent has been the 2014 decision of NUM v Anglo American Platinum Ltd where NUM astutely argued that section 52 of the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) precluded large scale retrenchment under the LRA without compliance with the provisions under section 52, which requires that the Minister of Mineral Resources be notified. Ultimately this argument did not carry the day when the provisions of the LRA were taken into account.
So, can employees use the RGA to assert assembly rights? Cele J, in the Johannesburg Labour Court, was called upon on an urgent basis by Tyco/ADT Security to declare a demonstration organised by SATAWU (authorised under the RGA) as unlawful, contrary to the LRA. The relief sought was to interdict the intended assembly, picket and demonstration. The memorandum SATAWU wanted to hand over at ADTs head office related to a wide-range of employment issues which were actionable under various pieces of employment legislation. Despite this, SATAWU was authorised to demonstrate by the metro police, under the RGA. Significantly, some of the complaints also provided the union with the right to strike but, despite this, SATAWU sought to ride the horse of an RGA gathering to the exclusion of a strike under the LRA.
The interdict was granted on the basis that the employees' conduct was unlawful under certain pieces of employment legislation, since SATAWU wanted to bypass the specialised dispute resolution mechanisms. The matter proceeded on appeal to the Labour Appeal Court in SATAWU v ADTSecurity (Pty) Ltd  9 BLLR 869 (LAC). However, the application was not heard by the LAC on the basis that the appeal had by that time become moot.
Some-time later, however, the Labour Court had occasion to consider the same argument, this time against the National Security and Unqualified Union (NSUU). This time, however, the dispute was more focused and related only to organisational rights. NSUU was not getting any joy from ADT to get organisational rights. Frustrated with the CCMA processes, it similarly obtained authorisation under the RGA to march to ADT head office in Cape Town and hand over a memorandum. However, this time, ADT was not successful as Steenkamp J in ADT v National Security & Unqualified Union & Others  11 BLLR 1096 (LAC) dismissed the application for an interdict on the basis that the marchers would be exercising their constitutional right to demonstrate, there was compliance with the RGA and that the march was not in breach of their employment contracts.
On appeal to the LAC the judgment was overturned. The LAC highlighted the importance of the LRA as the point of departure, and the obligation of workers not to circumvent the processes under the LRA. Interestingly, in both ADT matters this is precisely what the unions sought to do - circumvent the LRA (and the Employment Equity Act in the SATAWU matter) to place "pressure" on the employer swiftly and in the public eye.
Until set aside by the Constitutional Court, the position is that employment related grievances must be processed under the relevant piece of employment legislation and that the RGA is not the default position when seeking to picket and assemble at the workplace.
So, the next time you faced with employees wanting to hand over their memorandum of demands (sanctioned only by the RGA), sit back and reflect: "the lady doth protest too much?"
You may then be surprised to exit the scene with these words: "methinks!"
As published in Without Prejudice in July 2016.
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