WHEN DOES NEDLAC GET INVOLVED IN DISPUTE RESOLUTION?

In recent weeks, Nedlac has got involved where protest action has been threatened by Fedusa (Federation of Unions of South Africa) around the restructuring of Spoornet, and by SACTWU (Southern African Clothing and Textile Workers Union) around the future of the clothing, textile and footwear industry. But ithas not been involved in the public sector wage dispute. Members of the public have been asking when does Nedlac get involved in dispute resolution, and when not?

According to the law, Nedlac only gets involved in dispute resolution when it is an issue of national socio-economic interest, rather than an employer-employee issue of mutual interest.

Section 77 of the Labour Relations Act gives workers the right to take part in protest action to promote or defend their socio-economic interest and be protected against dismissal and other disciplinary action. It gives Nedlac, as a policy-making body made up of government, business, labour and the community,the task of bringing the parties together to attempt to address the reasons for the protest action.

The purpose of a socio-economic protest action is to win from persons and institutions other than employers an advantage for workers of asocial or economic, but not purely political, nature. Matters of mutual interest between employees and employers do not fall within the scope of section 77.

The dispute over wage increases in the public service is an issue of mutual interest between the employers (government) and workers(public servants) in that sector. Negotiations take place in the bargaining council. Section 64 of the Labour Relations Act spells out the steps that must be taken if unions are to embark on a protected strike.

On the other hand, a registered trade union or federation could table a notice of protest action saying that government's trade policies were causing unacceptably high job losses, and this would fall into the section 77 definition. It is important to note that in these instances we do not use the term"strike", as this falls into the terminology used in "mutual interest"cases. Section 77 speaks of protest action.

The cost of protest action to the economy will usually be greater than that of a strike. Protest action tends to involve greater numbers of workers on a wider scale. That is why the procedural obligations that go hand-in-hand with the right to participate in socio-economic protest action are greater than those for a strike or lockout. The procedural obligations are spelled out in Section 77(1)(b), (c)and (d).

• The notice of protest action has to be on a specific form, and must contain the reasons for and nature of the intended action.
• The matter giving rise to the notice must be considered in Nedlac in an attempt to resolve the matter.
• Thereafter, if attempts at resolution fail, the union or federation must serve a second notice on Nedlac of its intention to proceed with the protest action. This second notice must be served on Nedlac at least 14-days before the protest action starts.

Failure to comply with these procedures means that the protest action is unprotected and can be interdicted by the Labour Court.

In most of the recent Section 77 notices that Nedlac has considered, a process has been agreed which has averted the intended protestaction. In the case of the Fedusa/Spoornet issue, it was agreed that in the period betweenFedusa tabling the notice and the Section 77(1)(c) meeting, the Minister of Public Enterprise's proactive efforts had reassured the Federation that an alternative processwas in place to address their concerns. In the case of the notice tabled earlier in theyear by Nehawu (National Health and Allied Workers' Union) regarding the tertiary education sector, protest action was averted by the parties agreeing on the need for aHigher Education Summit. After some months of preparations by a tripartite task team, the Summit is due to take place at the end of August. A Section 77 notice tabled last year bythe NUM (National Union of Mineworkers) resulted in the setting up of the Gold Crisis Committee.

The responsibilities placed on Nedlac by section77 of the LRA fit in with Nedlac's primary responsibilities to discuss and negotiatesocial and economic policy. In many cases (though certainly not all), the problem can be addressed by establishing an effective mechanism for information sharing, communicationand consultation.

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