In the case of KPMM Road and Earthworks (Pty) Ltd / Association of Mineworkers and Construction Union (AMCU) and Others, AMCU and its members employed at KPMM embarked upon protected strike action on 15 July 2016. During the strike action, the striking employees engaged in violent and unlawful conduct, such as forcibly removing non-striking employees from site, intimidating non-striking employees and blockading access to the site. On 18 July 2016, KPMM was awarded an interdict by the Labour Court ordering that the striking employees refrain from this unlawful behaviour. Despite the court order, the striking employees continued with this conduct until the strike was ultimately called off on 25 July 2016.
KPMM then brought an application for contempt of court on 1 August 2016 for the violation of the interdict and the contempt of court application was heard on 11 November 2016. This judgment in the contempt of court application was handed down by the Labour Court (Acting Judge Snyman) on 18 September 2017.
At the outset Snyman AJ condemns what he calls a "common side-effect of protected strike action" that being violence and intimidation. He stresses that peaceful protest is an essential component of strike action but where employees behave unlawfully the entire collective bargaining process is undermined. In fact, Snyman AJ quoted from a 2016 Labour Court judgment by Steenkamp J, where Steenkamp J explains that when striking workers use violence in industrial action, the strikers place illegitimate pressure on employers to settle. Typically then employers either give in to the pressure and settle on a rate above that which they can afford, or the employer digs in its heels and causes the strike to last longer than it should.
He also quite rightly points out that this behaviour during a strike is destructive of the employment relationship, asking - how could it be possible for an employer to overcome resentment towards employees who have burned down a factory? And how could an employee overcome resentment towards his colleagues who have assaulted him?
He then made a powerful statement which is important to quote: "This Court must now accept responsibility to take measures, when confronted with these kinds of situations, that would serve as a clear warning that this kind of conduct will not be tolerated."
What did the Labour Court conclude?
- It was not necessary to identify violence committed by each individual employee, as all the striking employees were acting with common purpose.
- An interim order (in the contempt application) was granted on 12 August 2016, calling on all the striking employees to either file an affidavit or appear in person on the hearing date to show why they should be exonerated from being held in contempt of court. Only a handful of employees did so, therefore the remaining employees were held to be in contempt of court.
- The interdict ordered that AMCU must take "reasonable steps within its power to persuade" its members to not behave unlawfully. What was required was that AMCU should have made arrangements to have responsible personnel on the ground to deal with any transgressions with immediate effect. In contrast, AMCU merely conveyed the interdict to its members and then washed its hands of their conduct. AMCU was therefore held to be in contempt of court.
- AMCU is in a position to prevent instances of unlawful behaviour by its members and in order to encourage the union to do so, it was ordered to pay a fine of ZAR 1 million. However, the fine was suspended on condition that AMCU is not found to be in contempt of any court order for three years from 18 September 2017.
- The striking members showed no remorse - therefore, as a deterrent, each striking employee was ordered to pay a fine of ZAR 1,000; which KPMM was able to deduct from their salaries.
What does it mean to employers?
This judgment has two important consequences. The first is that the individual striking members were actually held accountable for their actions and were sanctioned with a fine which could be deducted from their salaries. Secondly, AMCU was held accountable for the unlawful actions of their members and was handed a significant fine. Some may feel that the sting was taken out of the punishment by suspending it - however, we are of the view that it makes it an even more powerful order. With such a large fine hanging over their heads for three years, any employer dealing with an AMCU strike that has turned violent need only mention that it will launch contempt proceedings and AMCU will undoubtedly fall back in line.
E-Alert compiled by Johan Olivier and Jessica Braum.
