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General guidelines for strike handling

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					               GENERAL GUIDANCE FOR STRIKE HANDLING

                      GENERAL GUIDELINES FOR STRIKE HANDLING



8.       GENERAL

     Don't let emotions and anger rule your decision-making. The first day of the strike (especially the first
     few hours) is normally accompanied by excitement and very often panic, emotions often interfere with
     proper listening and understanding. Instead of acting emotionally the company negotiators should remain
     calm and tactful.

     Avoid aggressive, threatening and absolutist language. Don't "absolutely' refuse to talk or negotiate.
     Although it is preferable to have unprotected striking employees back at work before negotiations
     commence, this principle is not cast in stone.

     Keep in mind that handling a strike is in it's own right negotiation with the employees. Should you use
     "absolutist' Terminology it may well limit your options in obtaining a resolution to the conflict further
     down the line. It may even lead to an escalation of the conflict making the strike more difficult to manage.

     Reconcile yourself to some production or service loss and use your time to find a solution to the problem.


8.       ESTABLISHING THE MOTIVATING FACTORS FOR THE STRIKE - WHAT ARE THE
         DEMANDS?

     In the case of an unprotected strike the reasons are often unclear and muddled. It is therefore important not
     to work on assumptions but to enquire as to the real reasons for the strike.

     Talk to the leaders (shop stewards). Talk to them away from the rest of the strikers.
     Tell them to tell the workers to go back to work.


             Give commitment to continue talks once the others are back at work.
             Show them the advantages of going back to work.
             Indicate the negatives of staying out (unprotected, no work - no pay, possible
              disciplinary action).
             Try and quantify their potential losses in monetary terms.
             Listen with your "ears" not your "mouth".
             Summarise by making notes and structuring the position of the striker's demands
             Structure the mode of negotiation (talk, caucus, talk, caucus…)
             Tell them to go back to work.


8.       PAYMENT DURING STRIKES

     It is important to note that any loss of production due to either a protected or unprotected strike is to be
     viewed as unpaid time.

     It is a general misconception that should employees embark on a protected strike that it is on full pay. This
     is simply not so, protected or unprotected strikes are unpaid.


8.       MASS MEETINGS




                               CONSOLIDATED EMPLOYERS ORGANISATION
               GENERAL GUIDANCE FOR STRIKE HANDLING
     Due to the emotionally charged atmosphere of a strike (especially during the first two days), you should as
     far as possible avoid mass meetings or attempt to negotiate with the striking employees themselves.
     Crowds often demand to see specific manager. If these managers are perceived to be the "culprits" they
     should under no circumstances be allowed to talk to the strikers as this will just inflame the situation
     further. Any demand for management to speak to the mass of employees should be considered very
     carefully before it is conceded to.


8.       CALLING THE POLICE

     Calling the police should as far as possible be avoided. If a strike is peaceful and there is little risk of
     damage to people or property, the police should be informed about the situation and it should be stressed
     that they should not come to the scene.

     Should the situation deteriorate into one of militancy and intimidation it would be advisable to notify the
     police immediately. The general principle is to call the police only when life and property are threatened.


8.       DEALING WITH INTIMIDATION, THREATS AND DAMAGE TO PROPERTY

     You should distinguish between persuasion and inducement by argument on the one hand and intimidation
     on the other hand. Where the persuasion goes beyond mere argument and also involves physical assault,
     injury or threats to that effect, one is dealing with intimidation.

     Should intimidation, threats and damage to property occur, it is vitally important to collect evidence. Try
     and get credible witnesses, photographs or videos. Photography / videa taping often lead to further action
     and it is generally not advisable to do so in full view of the strikers.

     Should it appear that the purpose of intimidation / damage to property is to make the workplace
     "ungovernable", immediate severe steps are necessary.

     There are a range of response dependent on the evidence available:

             To do nothing. Meeting minor intimidation with severe action (i.e. calling the police or an
              interdict) is very often an overreaction and may well cause the strike situation to escalate. On the
              other hand it is not advisable to leave any form of intimidation unchecked.

             Call en emergency shop steward meeting and reassert the strike rules and/or the company policy
              and procedures. Point out to them that the company will take disciplinary action against
              offenders.


              At the same time it is advisable to inform the trade union officials in writing and to strongly
              pressure them to control their members and openly support the stopping of any intimidatory
              action.

             Inform the union that disciplinary action will be taken against offending employees

             Call the police only when safety of people and property are threatened


             You could interdict the striking employees, however this is not only a difficult legal route, but also
              depends on the other party's respect for the law.




                              CONSOLIDATED EMPLOYERS ORGANISATION
               GENERAL GUIDANCE FOR STRIKE HANDLING
8.       DISMISSAL OF STRIKING EMPLOYEES

     Where employees embark on an unprotected strike they are generally not protected against dismissal from
     the company. During arbitration / court cases employees dismissed whilst on an unprotected strike would
     generally not be looked on kindly.

     However, it is still not advisable to take a "gung-ho" approach to strikers. Don't rush into the dismissal of
     unprotected strikers until you have evaluated the situation very carefully and have investigated the causes
     of the strike. Mass dismissals seldom solve the problem and generally just cause larger ones.

     Dismissal is generally used as a tactical move in order to force the issue rather than getting rid of the entire
     workforce.

     It is generally not advisable to dismiss striking employees (on an unprotected strike) within the first 24
     hours of the strike unless good cause can be demonstrated.

     Employees who have embarked on a protected strike are protected against dismissal in terms of the
     constitution as well as the Labour Relations Act of 1995. On the other hand it should be noted that even
     striking employees should be obliged to act within the law as well as the company disciplinary procedures
     and agreed strike rules. Any dismissal for misconduct would still be subject to proper disciplinary
     procedure.

     Be aware of the provisions of Section 6 of Schedule 8 of the LRA of 1995.

     Schedule 8, Section 6 provides guidelines for substantive and procedural fairness of dismissal under the
     circumstances of an unprotected strike.

     On the substantive side the following matters should be considered:

             The seriousness of the contravention of the act.
             The attempt made to comply with the act.
             Whether or not the strike was a response to unjustified conduct by the employer.

     On the procedural side the following should be considered:

             The employer should contact a trade union official prior to the dismissal.
             The employer should issue an ultimatum in clear and unambiguous terms that should state what is
              required of the employees as well as what sanction will be imposed if they do not comply with the
              ultimatum.
             The employees should be allowed sufficient time to reflect upon the ultimatum and to respond to
              it, either by complying with it or rejecting it.



8.       GUIDELINES FOR RE-EMPLOYMENT

     At this stage the guidelines for re-employment of employees who were dismissed during their participation
     in a strike is based on three court cases.

     In Ngobeni and others vs Vetsak, it was ruled that there is no onus on the employer to justify selective
     reemployment of strikers after they have been dismissed.

     However, from the MAWU vs Transvaal Pressed Nuts, Bolts and Rivets case as well as the MAWU vs
     Siemens case, it became clear that if strike action in it's own right is condoned then all dismissed strikers
     should be reinstated. However if there is other action on the part of certain employees the employer may



                               CONSOLIDATED EMPLOYERS ORGANISATION
          GENERAL GUIDANCE FOR STRIKE HANDLING
refuse to re-employ them. The onus would be on the employer to prove that he had good reason not to re-
employ those employees (i.e. due to intimidation or violence during the strike).

It is therefore important to ensure that you have objective selection criteria for the re-employment of ex-
employees. Such criteria may be setting a deadline for the application for re-employment, or misconduct
during the strike.

These criteria should always be accompanied by factual evidence which would withstand the scrutiny of
further investigation.




                         CONSOLIDATED EMPLOYERS ORGANISATION

				
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