Disputes of right, mutual interest and those involving socio-economic interests
| (1) | The Act distinguishes between three kinds of dispute: disputes of right; disputes of mutual interest; and disputes involving the socio-economic interests of workers: |
| (a) | A dispute of right is a dispute that the Act or other employment laws require to be settled by arbitration or adjudication. An example of a dispute of right is a dispute arising from a contravention of a collective agreement or an employment law such as unfair dismissal, unfair discrimination, and underpayment of wages. It can be described as a dispute concerning existing rights. |
| (b) | A dispute of mutual interest on the other hand is a dispute concerning employment or labour relations that cannot be resolved through enforcing existing rights. It can be described as a dispute to create new rights. A dispute of mutual interest is the legitimate scope of a collective bargaining agreement and the matters which may legitimately form the subject of a protected strike or lockout. |
| (c) | A dispute Involving the socio-economic interests of workers, permits protest action in matters that extend beyond matters that form the subject matter of collective agreements. These disputes though must be distinguished from purely political strikes which the Act does not afford any protection. |
| (2) | The distinction between a rights and a mutual interest dispute can be demonstrated by a few examples: |
| (a) | If an employer pays an employee less than the rate of pay stipulated in a collective agreement or the amount stipulated in an employment law, a dispute over the underpayment is a dispute of right that may be referred to the CCMA, a bargaining council or the Labour Court for adjudication. |
| (b) | A dispute of interest on the other hand is a dispute over a demand that the employees or employer has no legal right to. such as a demand for an increase in wages or a change in hours of work. These kinds of dispute can only be resolved by agreement, which may be induced by a threat or the exercise of a strike or lockout. There are two exceptions - disputes of interest in essential services must be referred to arbitration; and the parties to a dispute of interest may by agreement refer the dispute to arbitration. The following are examples of a dispute of interest: |
| (i) | A dispute over what next year's wages are going to be; |
| (ii) | A dispute over a new collective agreement or the renewal of an expired agreement; |
| (iii) | A dispute over shorter working hours or higher overtime rates of pay; |
| (iv) | A dispute over the introduction of a new shift system. |
| (3) | The distinction between a dispute of mutual interest and a dispute of interest is important because as a rule, the Act limits the right to strike to matters of mutual interest. There are two exceptions. A dispute over organisational rights or a proposed retrenchment in some circumstances may either be determined, on the one hand by the CCMA (organisational rights) or the Labour Court (retrenchment disputes) or, on the other hand,by the exercise of the right to strike. For example, if a registered trade union does not have sufficient or majority representativeness (depending on the nature of the organisational right), it has no statutory right to those organisational rights but the Act specifically permits a trade union to strike—i.e. the creation of a new right, in this case granting a minority trade union an organisational right by collective agreement rather than by operation of statute. |
What disputes may form the subject matter of a strike or lockout
| (4) | Apart from the two exceptions relating to organisational rights and retrenchment in certain circumstances, the dispute must be one of mutual interest. Accordingly, rights disputes (other than the two exceptions) do not constitute matter that can form the subject matter of a protected strike or lockout. |
| (5) | Not all mutual interest disputes however may form the subject matter of a protected strike or lockout. The Act limits the right to strike and recourse to lockout in respect of the following: |
| (a) | In breach of a peace clause in a collective agreement; |
| (b) | If the trade union and employer or employers' organisation have agreed to refer the dispute to arbitration; |
| (c) | If the employees, trade union, employer or employers organisation make an unlawful demand. An unlawful demand for example is a demand by workers that an employer dismiss a fellow employee. That would be unlawful because it would require the employer to contravene the fair dismissal provisions in the Act. Another example is the demand by an employer that employees work longer overtime hours than permitted in the BCEA. |
