Violence and Social Change: Some effects on the workplace and some possible solutions.Written by Simpson, G.

Simpson, G. (1991). Violence and Social Change: Some effects on the workplace and some

possible solutions. Paper presented to the National EAP Committee of the Institute for Personnel

Management Conference, The Role of the EAP in Managing Trauma, Johannesburg, August.

 

Graeme Simpson

Paper presented to the National EAP Committee of the Institute for Personnel Management

Conference, The Role of the EAP in Managing Trauma, Johannesburg, August 1991.

Graeme Simpson is a founder and former Executive Director of the Centre for the Study of Violence

and Reconciliation.

Introduction

Amongst other things, this paper attempts to deal with the question of what business and Human

Resource practitioners can do in regard to the rather complex problem of workplace violence.

Inasmuch as this seminar is concerned with the broader topic of "social transformation", it is already

obvious that the effects of traumatic experiences beyond the workplace may well express themselves

within the working environment. For this reason, in considering the aspects of violence which

workplace-based practitioners will encounter, it makes no sense, especially in the current South

African context, to deal with the workplace as if it were detached from the wider community or from

the domestic arena.

In dealing with the specific issue of violence, it would therefore be shortsighted to attempt to isolate

such violence as occurs within the workplace from the "culture of violence" which pervades our wider

society and its politics. The history of the 1980s has demonstrated that much beyond any doubt. The

process of political repression under apartheid had the almost inevitable consequence of the

politicisation of the trade union movement, which became a surrogate voice for black working class

South Africans who were denied any other legitimate outlet for their political aspirations. The equally

inevitable result was the transportation of both the culture and the style of politics from the

community to the working environment - at a time when struggles around education, civic issues and

national political questions were increasingly being expressed through resort to violence.

Before we can begin to address the problem of violence in the workplace, we therefore need to

understand the magnitude of the problem in its wider context.

South Africa's Culture of Violence

Apartheid has bequeathed to South African society deep-rooted and pervasive division - based on a

series of hostile, racially-based stereotypes within largely segregated, defensive, yet volatile

communities. In this context, the country's political culture becomes inextricably interwoven with the

themes of violence and political intolerance. On one hand, the state demonstrated its legitimation of

violence as a means of maintaining political power, whilst on the other, resistance movements

legitimised violence as an appropriate means of attaining change. In short, violence became a socially

sanctioned mechanism for resolving conflict and for attaining change.

In a society as thoroughly politicised as South Africa, this style of politics inevitably "spills" over into

other dimensions of society as people seek to resolve their social, economic and domestic problems

and disputes. It is as a result of the consequent excessive social, political, criminal and domestic

violence in South African society, that it has become possible to talk of a "culture of violence". This is

not a term that should be used lightly, yet it has been bandied about by analysts of the South African

context without much content being invested in it.

But February 2, 1990, was supposed to have changed all this. The speech by the State President in

opening parliament promised an era of peace and raised the prospect of a negotiated settlement in

the not-too-distant future. Yet in many respects, this merely flattered to deceive as the legacy of

political repression, a contracting economy and job market, inadequate educational opportunities and

racial and ethnic division played themselves out through the decades-old antagonisms within the

society. These divisions were merely exacerbated by the political contest heralded by intense

competition for seats at some future negotiating table.

In lieu of the promised peace, the prospect of transition brought with it the deep-rooted fear and

uncertainty which frequently accompanies dramatic social change. Four decades of divide and rule

ideology suddenly had to be confronted and such an entrenched political culture does not easily

disappear. For many South Africans, the legalisation of the previously banned and criminalised political

movements merely replaced the "external enemy" - characterised as such through government's "total

onslaught" ideology and through the notion of a "border war" - with a new "enemy within". In the

symbolic return of the exiles, the previously externalised enemy came home - exacerbating the fears

and the insecurities, particularly of white South Africans. This "enemy within" syndrome resulted in the

"introversion" of South African politics as the society turned in on itself - like a baboon disembowelling

itself in an attempt to rid itself of some incomprehensible and intense pain within.

Although often political at origin, much of the consequent frustration and fear has been displaced into

arenas apparently removed from the political sphere. The result has been a dramatic escalation of

violence in almost all dimensions of the society - within the community, the workplace and the home.

Not only has this been a quantitative increase in levels of violence, but has seen a qualitative shift in

the forms and brutality of this conflict as well.

The history of politicised policing under apartheid has also played its part here. In the absence of a law

enforcement agency which was credible and trusted in the eyes of the policed community (black South

Africans have regarded the SAP as an oppressor rather than as a protector), the inevitable

consequence is the propensity to "legal self-help". Instead of going to the police, aggrieved parties

prefer to take the law into their own hands with the consequent spiral of violent revenge and

retribution. In this process, even violence which was politically motivated at origin, becomes more and

more removed from its original motivation - until the line between political, criminal and domestic

violence becomes a very thin one indeed.

In the process, it is often the structurally weaker members of the society who are predisposed to suffer

most. Just as the aggression becomes displaced, so are the victims of this aggression alternatively

located. In the wake of February 1990, it is women, children and the elderly who have become some of

the most prevalent victims of violence. Consider the following:

It has been estimated that taking non-reported rapes into account, approximately 300 000 women are raped each year in South Africa. In 1990, the Minister of Police stated that the rape of young girls was up by 23% over the 1989 figure.

Serious assault of children under 14 years old was reported to have increased by 55% in 1990 when compared with the figure for 1989.

Violent crime against the elderly was up in some areas by as much as 44,5% as compared with the previous year.

1990 also witnessed a dramatic increase in violent attacks against black domestic workers within white homes.

These figures are no more than indicators. The point here is that in the context of this culture of

violence, it would be extremely shortsighted to hope or expect the workplace to remain unaffected.

The relationship between the community and the factory is a reciprocal one. Just as tensions in the

home may affect people at work, so do the stresses and strains of communities in transition affect

people in their working environment. It is precisely because this relationship is reciprocal that business

and human resource practitioners have the potential, if they approach the problem appropriately, to

address and influence the traumatic experience of violence beyond the narrow confines of the factory

perimeter fences.

Some Potential Pitfalls in Dealing with the Problem

The reciprocal relationship between the workplace and the township impacts directly on how we deal

with the problem of violence and the trauma this generates. The greatest temptation is to merely deal

with such violence or trauma as it presents itself in the workplace. In this way, concerned business

people may often attempt to closet the workplace and to deal only with the problem there -

ministering to and counselling our "own little group of workers". In so doing, we are potentially denying

or ignoring both the wider experience of these workers, as well as their social rather than individual

needs within the communities from which they are drawn. There are some very dangerous pitfalls if we

allow ourselves to do this:

The first problem which will confront us is the allegation that such activities are a substitute for a non-existent, state-sponsored and community-based social welfare system to catch those who are marginalised within the wider community. The benefactors are perceived to be employed workers at the expense of the unemployed township residents.

The second potential danger implicit in this approach is that attempts to deal with the workers' experiences of violence may be regarded as being motivated by "management's profit motive" or a mere concern with productivity. The suspicions of workers in this context must be acknowledged and taken seriously. The issue of community violence must be treated as a human and political dilemma of huge proportions … it is not simply a productivity problem! In this context, it would do well to guard against the tone of the message conveyed by the following quotation from Frema Engel is the EAP Digest of July/August 1987:

Business and public service organisations cannot afford to ignore the effects of trauma, violence, and crime on their employees. Thecosts are too great. Morale, attendance, sick leave costs, personnel turnover,

management-employee relationships, productivity,service delivery, profits - all are affected. (my emphasis)In the South African context, I suspect that language such as this would be greeted with some

scepticism by workers who may well read off it a limited concern with the needs of the working class

community. This community concern will, in all likelihood, be perceived as secondary to the over-riding

concern to get people back to work and productive again.

The third potential pitfall of this approach is that is would be viewed as largely reactive rather than proactive, as the source of the problem is usually beyond the factory gates - rather than merely within the working environment.

Finally, this approach contains within it the real danger of individualising social needs and dealing with the individual problems instead of the collective experience of violence.

Violence - An Individual and Collective Experience

To warn against treating the individual problem in lieu of taking on the social or collective experience,

is not to deny that the stress and trauma resulting from exposure to violence affect different

individuals differently. But stress and trauma resulting from high levels of social and political violence

are both individual and social constructs. To illustrate this we have only to look at some simple

examples of how different individuals are differentially affected by the social dislocation that

accompanies violence and possible death, as well as how they are differentially predisposed to

engaging in violent acts themselves.

Familial responsibility, especially for example in the case of a sole breadwinner, may play a central role in mediating the way in which violence is experienced - both in terms of the individual's propensity to engage in violence as well as in the effect of death or disablement resulting from victimisation.

These issues may all affect migrant workers differentially because of the added responsibility of a distant family reliant on the repatriation of migrant earnings. Especially migrant hostel dwellers, who are often situated at the heart of township conflict, experience the added insecurity of the perceived threat to their sources of accommodation and their very urban existence, in the context of recent township conflict.

For unemployed and generally marginalised black youths who are under-educated and for whom there is no comprehensive social welfare net, the stakes are much lower and the propensity to violence - whether political or criminal - potentially much greater.

Finally, gender-based expectations also play a central role in determining the ways in which individuals engage with the issues and experiences of social and political violence.

These factors have been selected fairly randomly from the range which will impact on the relationship

between individual action and collective experience in respect of violence. The point is, that to truly

deal with this problem, we must of necessity understand it as being as much a social as an individual

experience. This demands that in attempting to "manage" or treat the consequent trauma, we need to

invest energy in the search for collective solutions and not restrict our approach to one which deals

only with individuals, or which is strictly limited to a relatively small group of employees within our own

workplace environment.

What Business can Do?

The responsibility on business organisations and human resource practitioners therefore lies at two

distinct levels, through which we can both address the problems of violence at root, and through which

we can assist in developing the mechanisms for coping with the resultant trauma. We must engage:

at the level of the community or in respect of the collective experience of violence; and

at the level of employees within our own enterprise, that is, individual or small group intervention.

Some of the issues which can be taken up in engaging at both these levels will now be outlined. This

should not be taken as either complete or as prescriptive, but merely as a starting point to stimulate

the development of creative mechanisms for redressing the situation on the part of the business

community, human resource practitioners, Employee Assistance Programmes, etc.

In Respect of the Community at Large (at the Collective Level)

Institutionalisation of conflict

There are invaluable lessons that can be learned from the negotiated peace which has proved possible

in the context of competing interests at the shop-floor level. In the systems of collective bargaining

and shop-floor negotiation, many lessons can be learned in alternative dispute resolution. These

methods can be appropriately used to resolve political disputes when they do spill over into the

working environment and appropriate training may assist employees in applying these skills beyond

the shop-floor as well. However, we would do well to heed the warning issued by Johan Liebenberg, the

former industrial relations adviser to the Chamber of Mines:

Given these background environmental causes [within the politics at community and national level], it is clear that we cannot solve the problem of violence solely through industrial relations. Collective bargaining may provide insights into the means or the methods for tackling these problems, but we cannot expect our industrial relations structures to be the means for the elimination of these wider problems. We would be overworking collective bargaining.To attempt to "institutionalise conflict" in the South African context we must heed the lessons of the

British example (from whence is drawn our industrial relations framework). Authors such as Pelling and

Geary have noted that the 100 years of British labour history to 1985, which witnessed only one death

of a worker in industrial disputes, was as much the result of the extension of political rights to workers

as it was attributable to successful collective bargaining. It is, therefore, to "constitutionalisation of the

working class" in South Africa that the business community must look. Basically this means that the

business community has to play an active role in fostering the development of a thorough-going

democracy in which its employees have vested stakes in a normative political process. It is important

that employees within any particular enterprise experience some corporate concern with this

dimension of their lives. I am by no means the first or the most qualified to suggest this. Karl Hofmeyer

of the School of Business Leadership at UNISA stated it quite directly:

In formulating its advancement plans, a company should give serious attention to the "political" dimension which pervades every aspect of our society: to consider how it can influence the success of the plan and to what extent the company is prepared to try to influence political change.The business community is a very reluctant entrant into the political realm. Yet it is argued here that it

has a vital role to play and an objective interest - as witnessed by concerned business leaders'

involvement in the recent tripartite peace initiatives.

An active contribution to the search for a rapid political settlement

Perhaps most importantly in the climate of political uncertainty which inevitably accompanies a

process of dramatic transition, business has a vital role in pressurising all political actors to come as

rapidly as possible to the negotiating table. This must be done without any concern to advance the

particular interests of any one of the contesting parties.

Encouraging the development of civic structures

In the long term, one guarantee that community violence does not get out of control is through the

development of representative local-level organisation (largely smashed in the era of repression under

apartheid) with a respected locally-based leadership. It is only such leadership that can assert a

disciplined approach to politics and to the resolution of disputes in times of crisis or high tension.

However, in the role it plays at this level, business must ensure to safeguard its neutrality through

appropriate consultation.

Reinvigorated corporate social responsibility programmes

This must involve investment in specific violence-related fields such as victim aid and education.

In Respect of Workers Within their Workforce (at the Individual Level)

Negotiated codes of conduct

The likelihood of violence in the workplace is greatly enhanced in times of industrial conflict such as

strikes, wage disputes, etc. To deal with such high tension situations, management representatives

need to engage in negotiations with worker representatives to establish mutually acceptable codes of

conduct in advance of these situations occurring. An excellent example of this is the NUM/Anglo code

of conduct designed to control violence in the mining sector.

Developing negotiating skills and encouragement of alternative forms of dispute resolution

One principal reason why violence in the workplace has not reached the proportions it has in the

community is because conflict resolution in the labour sphere has been developed, sophisticated and

to some extent institutionalised. This is distinct from the civic and political domain where negotiation

politics is new and where local-level structures are often not strong enough to enforce accords. Explicit

training in these skills could have lasting benefit not only for the workplace environment, but within

the communities as well.

Sensitivity to the extra-workplace experience can be demonstrated in workplace flexibility

For example, flexibility around working times, shift arrangements and different pay systems to take

into account the dangers individuals face when living in war zones through which they have to travel

to go to work.

Financial support for victims and potential victims

This may take the form of insurance schemes, assistance with funeral expenses, etc. Such schemes for

financial aid are a vital dimension in helping to reduce the trauma of exposure to violence and to

mitigate its long-term effects.

Victim aid programmes

Aid of this nature may take numerous forms. Some ideas and examples are listed below:

Psychological Counselling - Little needs to be said in respect of this aspect, the importance of which has already been acknowledged by many human resource practitioners. But this should not stop at the factory gates; home visits, etc. are essential. Also businesses need to invest in new and creative counselling methods appropriate to the experience and world view of their employee base. This demands more investigation of appropriate collective counselling methods and investment in the search for alternative treatment modalities appropriate to servicing our employees and not merely our businesses - otherwise the danger is one of individualising the problems which are social and political at root.

Legal Aid and Support - Especially in the context of a low level of confidence in existing policing institutions and the consequent prevalent resort to informal justice and retribution, business institutions have a key role to play in respect of the legal needs of their employees. A vital service can be offered here in providing back-up, following up grievances and fostering the process of judicial rather than informal retribution. Of course, this has to be done very carefully. If appropriately carried out, this gives employees the clear message that the company is sympathetic about their plight and their desire for retribution and justice. To the law enforcement agencies, the message is clear as well - they are accountable and lack of progress in pursuing reported cases is only acceptable if they have exhausted their resources.

Provision of Temporary Alternative Accommodation - Temporary accommodation for workers who have lost homes or who are unable to return home is another useful aid.

Memorial Services - The holding of memorial services at the workplace for employees who have been killed provides an opportunity for workplace friends to mourn their loss. It again intimates that the company respects and is genuinely concerned with their employees beyond their working lives.

Education

If business is to respond appropriately to the violence its employees face, it must educate itself about

the nature of the violence and the situational circumstances that surround it. This should be done not

only through resort to the commercial media, but also through joint discussions with staff about social

issues in the townships. Another useful mechanism is the establishment of joint monitoring teams with

trade unions. Such teams also help foster a relationship of trust and common purpose with employee

organisations. Visits to townships are another means of obtaining information about the living

experience of employees. The possibilities in this respect are virtually limitless and should include the

commissioned services of expert groups to facilitate both worker and employer education programmes

in relation to the specific issue of violence. Experiential learning through joint employee/employer

workshops, and the sharing of ideas and experiences, can be both educational and therapeutic at the

same time. Groups such as the Centre for the Study of Violence and Reconciliation are available to

make and facilitate interventions of this nature where companies do not have the resident expertise in

this area.

Conclusion

In conclusion, the issue of violence in the workplace and the experience of trauma resulting from high

levels of community violence, are fundamentally inseparable. The challenge in dealing with the

problem touches directly on the role of the business community beyond the confines of the shop-floor.

Ultimately, if business and human resource practitioners are to play a role to their full potential, then

they need to go some way to transforming themselves from being merely support agencies to being

agencies for change. Unless you are perceived this way, you cannot overcome the huge gap between

yourselves and your workers who experience the trauma of violence first-hand.

Furthermore, we need to be educating ourselves about the roots and experiences of violence through

the eyes of those employees who are directly affected. This inevitably demands some reorientation in

our methodology and our approach. For many township residents, violence is a way of life. It is a form

of continuous stress which does not revolve around one incident and which affects whole communities

of people. The experience is collective and continuous and begs many questions of the individualistic

orientation of many applications of post traumatic stress disorder syndrome in dealing with the

problems at a psychological level.

Finally, the specific experiences of township-based employees demand that thorough-going

consultation with workers on the provision of services is indispensable. Worker representatives

through the trade union movement are an essential part of this process. More integrated work with

employee representatives is essential to reorienting the services that can be provided in the new

South Africa.

© Centre for the Study of Violence and Reconciliation

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IntroductionThe mid-1980s has witnessed increasing violence in the course of industrial disputes. This violence has

not only increased quantitatively, but has also become increasingly brutal. This paper is concerned

with physical violence directed against people rather than property, as there is an identifiable trend

towards more attacks against people over the last five or six years in South Africa. The result has been

an escalation in criminal charges emanating from labour disputes. This is turn has resulted in a greater

focus on sociological and psychological explanations for violence in industrial disputes which have

come before the courts in the form of arguments in mitigation or extenuation.

The Afcol case (State v Elias Phasha and Four Others) is just one recent example where both

sociological and psychological evidence was led as extenuation before sentencing in a criminal case

emanating from a labour dispute. This case revolved around the murder of five 'scabs' by striking

workers during the period 10 to 17 June 1988. Everyone of the five were killed quite brutally, receiving

multiple stab wounds before being thrown off moving trains.

This paper will deal only with the sociological evidence brought before the court, although

psychological evidence was also led in extenuation. In extenuation, the accused were sentenced to

between four and eleven years in prison, in the latter case on three counts of murder.

The fact that these social scientific arguments are subjected to the scrutiny of the courts, poses a

number of problems for sociologists and psychologists. Defence attorneys are inclined to be more

concerned with making a reasonable case than with the nuance usually required in fully explaining the

relationship between collective experience and individual actions. the result may be an inclination on

the part of the legal team to use such evidence as serves their purposes, and sociologists and

psychologists have to guard against legal shortcuts being substituted for scientific explanation outside

of the courtroom environment. This study was largely based on evidence before the court, including an

'agreed statement of facts'. The result may be a limitation in as much as a range of participants in the

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strike and the ensuing events remain outside the scope of the paper for the simple reason that the

court did not see it as relevant to assess their guilt or innocence.

A perfect example of the dangers implicit in such legal shortcuts resided in the potential contradictions

which may exist between sociological and psychological explanations of why the perpetrators of

violence in industrial disputes are who they are.

Before outlining the sociological argument used in the Afcol case, some introductory comments on the

relationship between sociological and psychological explanations of violence in industrial conflict

should be made.

There are several recent cases in which both sociological and psychological evidence have been used

side by side in extenuation cases. The Afcol case is one such example. Another is the SATS trial which

resulted from the murder of 4 'scabs' in the course of the railways strike of 1987. In many such cases,

psychological evidence has been used to explain why certain individuals resorted to violence through

the use of the notion of 'deindividuation' (Diener, 1979). This notion has usually been invoked to

explain violence in a crowd situation characterised by heightened levels of arousal, anonymity, a

consequent loss of self-awareness and breakdown of self-control. The result, it is argued, is

disinhibition and the resort to uncharacteristic or 'irrational' forms of behaviour, such as the

perpetration of violence.

By contrast, sociological explanations of violence in industrial conflict has often focussed on the high

levels of frustration experiences, the lack of channels for the expression of these frustrations and

failure to institutionalise conflict resulting in its escalation and the increased likelihood of violence. In

contrast to psychological explanations, sociologists are inclined to explain violence in the identical

situation as a 'rational' and possibly even inevitable consequence of given circumstances.

This apparent contradiction is often lost on the court, which might be quite arbitrary in finding

extenuation to exist in some cases and not in others. However, for sociologists and psychologists, the

dilemma has to be confronted and handled rather more sensitively.

It is appropriate to used deindividuation as a means of explanation in some cases and not in others.

However, where it isused to explain violence, the deindividuation argument should not be separated

from sociological explanation, but should rather be a part of it. What is irrational about violence in

industrial disputes is often not the commission of violence per se, as much as the brutal or extreme

nature of the violence committed. In fact, it is arguable that even the most brutal violence can, on

occasion, be explained as entirely rational. If sociological and psychological explanations are not

integrated in this manner, then they are likely to beg more questions about the relationship between

individual action and collective experience than they are able to answer.

This paper is limited to the examination of just one particular strike and the violence which occurred

within it. Furthermore, the inability to examine the individual profiles of the accused, as well as those

of the other actors makes it difficult to offer a truly integrated psycho-sociological analysis. However, it

is attempted by means of this case study to explain the dynamic interplay between social influences

and individual experience in the strike situation more generally. These arguments are in no sense an

attempt to condone violence in the workplace, but merely to attempt to explain the social context

within which the perpetrators of violence act. In so doing, it is believed that a vital gap in the current

system of dispute resolution and of public order maintenance in South African industrial conflict would

have been identified.

The paper roughly follows the structure of the report submitted to the Supreme Court (Webster, 1989)

and is divided into four sections. In the first, it is shown how the right to conduct an effective picket is

the central mechanism for containing frustration and possible violence in a strike situation. In section

2, it is attempted to show how frustration increases and violence escalates when an effective picket is

not possible. In section 3, the model developed in section 2 is the case of the Afcol strike. Finally, it is

attempted to draw some conclusions and to outline some areas for further research which look beyond

the Afcol case.

The ArgumentIndustrial relations involves the strategic use of power, especially in strike situations. Management will

generally attempt to divide the workforce whilst the union will attempt to establish and maintain

collective solidarity amongst its members.

In practice this means that the union requires some sort of sanction which can be used to unsure that

the majority decision is carried out. When a minority of workers rejects a democratic decision and

attempts to 'scab', or where 'black-legs' are employed to replace striking workers, thereby threatening

to break the strike, this usually results in great bitterness. It is important that institutionalised ways

should exist for dealing with disputes of this kind, otherwise they are likely to be resolved by violence.

Violence against non-strikers is a universal feature of industrial history. One of the most important

institutions for containing this violence is the picket.

The picket is a technique for bringing moral pressure to bear on would-be non-strikers. From the point

of view of the strikers, the individual worker should be morally bound by the majority decision to strike,

and a peaceful picket of workers at the entrance to the place of work is designed to make this moral

duty clearly visible. At no point, however, does this collective moral appeal override the right of an

individual to work (Webster, 1979).

Moral pressure can be brought to bear by picketers standing in line at a factory gate and displaying

placards informing the public of the dispute, or by marching in a procession while displaying placards.

Picketers might also use verbal please, sing songs, chant or they might distribute leaflets to the public

in general or to a specific group of people in order to try to persuade them of the merits of their cause

(Napier & McBride, 1986). The result of an effective picket is, therefore, to give the participants in the

strike a feeling of controlling their involvement in the strike and a commitment to the negotiating

process.

Industrial picketing has for several decades been considered a legitimate device in the industrial

environments of the United States, the United Kingdom and other Western countries to reinforce the

strike weapon. The legality of picketing was established over a fairly long period in the United States,

beginning with the passing of the Labour Management Relations (Taft-Harley) Act of 1947. Picketing in

Britain is regulated and protected by Section 15 of the Trade and Labour Relations Act of 1947, as

amended by the Employments Act of 1980 and 1982. In the United Kingdom, the right to picket is

really established within common law rather than within statutory enactments.

The right to picket, along with political enfranchisement, played a crucial role in the decline of violence

in industrial disputes in the United Kingdom. Indeed, in the last decade of the 19th century, on of the

key features which gave rise to the formation of the British Labour Party was the demand for the right

to picket (Pelling, 1976). Geary (1985) argues that the "… constitutionalisation of the working class …"

through the development of a strong trade union movement associated in large part with the Labour

Party has, on the whole, served to restrict industrial violence.

Since picketing became an established practice in the 1890s in the United Kingdom, only one non-

striker has been killed. It would be an exaggeration to attribute the peaceful resolution of conflicts

solely to the fact that the right to picket exists. The close association of the trade union movement

with a political party committed to democratic reform rather than revolutionary change, has had a

restraining effect on the behaviour of strikers. Union officials and strike leaders have been anxious to

avoid violence during industrial disputes on the probably correct assumption that such action would

have a detrimental effect on the Labour Party's fortunes.

This contrasts substantially with the current situation in South Africa where no such restraining effect

exists. Indeed, the lack of political rights among black workers has led to the opposite effect to that

described by Geary (1985) in the British example. Instead of a political party acting as a restraining

force, the frustrations and lessons of the wider community have played a key role in determining the

path of industrial relations disputes, at least since the mid-1980s. This point can best be understood by

a brief periodisation of the recent history of black trade unionism.

It is possible to divide the recent history of black South African trade unionism into three broad

periods:

From 1973 to 1979, these unions were involved in a struggle for recognition. Although a number of strikes took place, these were of short duration as the unions were small and weak.

In 1979, there emerging unions won statutory recognition with the amendment to the Labour Relations Act. These amendments started a different phase in the development of these unions as they began to consolidate their organisational presence in South African workplaces. In retrospect, this period was something of a 'honeymoon' period for the South African industrial relations system as the workplace remained relatively isolated from the wider societal tensions building up during the early 1980s.

A third period began in 1984 when the trade union movement was drawn into the wider political struggles that were to engulf black society. Struggles in three separate spheres - in the townships over the Community Councils, in the schools over Bantu Education, and in the workplaces over wages and working conditions - culminated in a large scale stay-away in the Transvaal in November 1984 (Labour Monitoring Group, 1985). The politicisation of the factory floor (Lambert & Webster, 1988) and of South African trade unionism since 1984 has brought into the industrial relations environment the frustration, aggression and violence of the wider society. So, too, does it witness the permeation and influence from the wider society of the idea that social problems can be solved by resorting to violence (Cock & Nathan, 1989).

Ralf Dahrendorf (1959) concludes his classic study on industrial conflict by arguing that "… industrial

conflict has become less violent because its existence has been accepted and its manifestations have

been socially regulated". In the United States, where large-scale stoppages often accompany the

negotiation of company-wide agreements, these have been ritualistic engagements: with unions co-

operating in an orderly shutdown of production and companies often providing shelter and

refreshments for pickets. Even the British General Strike of 1926 - symbolically the apogee of union

militancy - is today, at times, remembered primarily as the occasion for football matches between

police and strikers.

Under the provisions of the 1980 Employment Act, the British government published a 'Code of

Practice for Picketing' to supplement the provisions of the Act itself. The Code outlines the relevant law

and, in addition, gives practical guidance on picketing procedures. The Code sets out the role of the

police, provides guidelines on limiting the number of pickets and provides for the organisation of

picketing. The result is that a friendly relationship often develops between the pickets and the police.

For example, at one colliery during the 1984-85 miners' strike, the village policeman even gave the

strikers lifts in his police car to and from the picket line (Geary, 1985).

If the right to strike is accepted as integral to collective bargaining, then the right to picket must be

accepted as an ancillary to the right to strike. Indeed, Jacobus (1989) argues that the right to picket is

part and parcel of our common law in South Africa, but that this right has bee severely restricted by

other legislation such as the Riotous Assemblies Act of 1956, the Internal Security Act 74 of 1982, the

Trespass Act of 1959, the Public Safety Act (emergency regulations) and in terms of the Intimidation

Act 72 of 1982. These statutes do not just interfere in the collective bargaining relationship, they

drastically disturb the balance in bargaining power in favour of employers (Jacobus, 1989).

The relationship of picketing to violence remains a particularly difficult issue. In many cases it is

argued that rights to picket will inevitably lead to violence. However, the fact that picketing, by

definition, involves some form of gathering does not mean that it will inevitably result in violence. On

the contrary, it can be argued that the right to picket may well facilitate much more efficient policing

of strike situations through collectivising and institutionalising the points of conflict during a strike.

Indeed, the very absence of the right to picket may itself lead to outbreaks of violence which may

otherwise have been avoided or controlled. This fact is even acknowledged by the National Manpower

Commission (Jacobus, 1989: 56) which, in its report titled 'Different Levels of Collective Bargaining,

Dispute Settlement Machinery and Related Matters', submitted to the Minister in July 1986,

commented on picketing as follows:

While accepting that picketing, especially if it is uncontrolled, could lead to the protraction of tension and to the undermining of public order, the National Manpower Commission is of the opinion that the present restrictions on picketing should be lifted to at least some degree. This is based on the consideration that the limitation of the right or freedom to picket can have other prejudicial consequences, i.e. 'sit strikes' or 'occupations' on factories or premises and intimidation at places other than the workplace. It should also be

pointed out that picketing (subject to certain limitations) is permitted in many countries and is accepted by the ILO.There is another fundamental ancillary to the right to strike which must be guaranteed if violence is to

be avoided in strike situations. This is the question of union access to its striking members. Once strike

action has been decided on, the need of the union to meet with its membership becomes crucial. The

union must be able to convene meetings of the striking workers on the premises in order to report

back on the progress in negotiations with management. This is really the only manner in which the

union can effectively exercise its discipline and leadership, thereby best guaranteeing that it is the

negotiation process rather than violent solutions which hold sway.

It is patently obvious that the laws of South Africa impose a major limitation on industrial picketing.

Workers and the general public know how harsh the enforcement of legislative measures can be.

Intending picketers, Napier and McBride (1986) argue, also perceive the South African government and

law enforcement officials to associate picketing with unruly and riotous behaviour. This perception has

been reinforced by the actions of state officials who have instilled fear into trade unionists by having a

number of them arrested and detained over the years under the country's security laws.

A further reason why picketing might be so infrequently encountered in South Africa, is that the

industrial relations culture in the country is relatively undeveloped and has never really been exposed

to the idea of a picket. Since the passing of the Labour Relations Act of 1979, the number of black

unions in existence and occurrences of strike activity have grown enormously. Workers are still feeling

their way and becoming used to the idea of union membership and the potential power of unions. For

example, in the case of Afcol, the union had only started recruiting in early 1987, twelve months

before the dispute began.

However, in spite of the regulations against picketing in South Africa, there are a few recorded

incidents of picketing in recent times. Although these cases, such as the Armourplate Safety Glass

strike of 1976, and outside Edgars, Jet and Sales House stores in 1985, the picketers were arrested,

there were no assaults against the non-strikers and violence was avoided (South African Labour

Bulletin, 1977 & 1985). Possibly the best recent example is that of the Hextex strike in 1989 which

lasted 59 days, and which was preceded by an agreement between management and the South

African Clothing and Textile Workers' Union (SACTWU) allowing for on-site picket facilities for strikers.

There was no violence in the course of the strike (Patel, 1990).

Owing to the intense fear of the law, workers in industrial disputes have resorted to other tactics of a

more covert nature in order to reinforce the strike weapon. These tactics may include industrial

sabotage, consumer boycotts and intimidation. By resorting to these tactics, the participants cannot

very easily be pinned down or traced and charged under one of the country's laws.

The objective of intimidating non-strikers is two-fold. Clearly, the first objective is to maintain the

strength and unity of the striking workers. However, violence is also a warning against neutrality and a

clear signal of the cost of siding with management in a particularly emotional or vital dispute. This is

best captured by quoting from an interview with a striker published in the South African Labour

Bulletin (1989: 30):

Workers sometimes think that violence can make a strike stronger. They want to make non-strikers understand that a strike is a battle between management and workers. No worker can be neutral. Strikes are an educational process and create unity among workers.

There are cases where the threat of violence has forced non-strikers to come to a workers' meeting and explain their position on the strike. What has come out of such workers is their fear to lose jobs, their understanding of management as a powerful force which cannot be shaken by workers. However, after discussions on the experience of other workers, some workers begin to understand that their fears are also shared by strikers, and it is a question of battle.

Strikes are not personal problems. But it is widely known that management always tells workers they are individuals and must take their own decision. It is sometimes difficult to get rid of this perception. Some

workers will resort to violence to fight individualism.

It is unfortunate that unity is sometimes forged by violent means. But you have to understand the factory situation. We are always exposed to violence, in the form of the authoritarian hierarchy in the factory system, which gives supervisors all the power to do as they like, and other workers get the task of spying on other workers.There remains, of course, the danger that violence may have exactly the opposite effect to that which

is desired. First, it may alienate strikers who shy away from violence. Secondly, it may well pave the

way for extreme repressive measures on the part of management and may offer justification for calling

in the police. This is another reason why unions are opposed to the use of violence and why the Paper,

Printing, Wood and Allied Workers' Union (PPWAWU) which was a union involved in the Afcol strike was

additionally concerned to publicly state its opposition to the use of violence during the dispute (The

Star, 1988).

As a result of the negative effects of strike violence, unions are beginning to confront the problem of

intimidation and have begun to experiment with strike rules where intimidation or violence is expressly

forbidden. For example, the National Union of Mineworkers (NUM) is in the process of negotiating "a

code of conduct" with the Anglo American Corporation to promote acceptable norms of behaviour

during an industrial dispute. The most far reaching of these agreements are those that have been

entered into by a number of German companies. These agreements provide both for the right of union

access to company premises during the strike and for the right to peaceful picketing on company

premises (IG Metall, 1988).

While strike rules are an important development which provide a guide to worker leadership on the

ground, they cannot on their own solve the problem of violence. This is because they cannot address

the full range of factors in the strike situation that contribute to violence. There are several factors

operative outside the workplace which undoubtedly also contribute to the use of violence in relation to

industrial disputes. The high cost of living, rampant inflation and the failure of wages to keep pace with

the rising costs faced by black township residents, substantially heightens frustrations around any

wage dispute, especially when a strike ensues which completely eliminates access to even the most

meagre of resources. When the strike continues for a long period of time, especially if management

appears to workers to be delaying the negotiating process, then these pressures further heighten

frustration levels. These frustrations are compounded where the police act in what workers perceive to

be a one-sided way by arresting striking workers, or detaining worker leadership during a strike.

Any attempt to grapple with the relationship between individual action and collective experience in a

strike situation must take full account of the influence of those stressors which are extraneous to the

factory floor, and which may affect different workers differently. Probably one of the most prevalent

stressors amongst workers in a strike situation is the stress derived from fear of losing their jobs. Yet

even this stress inducing experience may affect different workers differently depending on their

individual circumstances outside the workplace.

In practice, strikes will be particularly stressful for those with histories of familial responsibility, in

particular a sole breadwinner. Because of limited strike funds, strikers have little access to money

during such disputes. Strikers in this situation feel guilty and fearful which results in high levels of

stress and anxiety. In the case of migrant workers whose families are usually far away and even more

reliant on the repatriation of part of the migrant's earnings, these feelings may be even more

intensified. Also in the case of male workers who experience certain gender expectations of

themselves, stress and frustration may be heightened by their beliefs that they are not meeting their

obligations as sons or husbands as a result of their failure to provide financial assistance. In such

circumstances, actual dismissal may have a dramatic effect.

Furthermore, for many workers in South Africa, access to a job goes hand-in-glove with access to

housing. This is especially true of thousands of dwellers in single-sex hostels or compounds, such as

mine workers or many of the SATS employees on the railways. For these workers, the implication is

that not only does a striker stand to lose his job if he is dismissed, but that he loses his source of

accommodation as well.

Familial pressures on strikers who live at home have the potential to be extremely stress-inducing.

This is especially the case where strikers' families put pressure on strikers to return to work. This

pressure is in direct contrast to the demands made on the individual worker by his fellow strikers who

are dependent on the unity and solidarity of the strikers if the strike is to succeed.

Not only do familial and financial obligations of the sort described here impact on the stress levels of

workers in a strike situation, but the relationship between the home and the workplace is a reciprocal

one. That is to say that the stresses and strains of industrial disputes may also have manifestations

within the family and home environment. This is particularly important in the context of violence

resulting from industrial conflict situations, as it is evident that there are victims of such violence who

remain hidden from view because they reside in the private arena of striking workers' lives, rather

than in the workplace (Simpson & Vogelman, 1990a & 1990b).

Figure 1: Process of a non-violent strike 

Process Analysis of Violent and Non-violent StrikesIt is argued that, where an effective picket exists, workers develop a sense of controlling their

participation in a strike. This greater degree of control helps to facilitate:

the maintenance of unity within the workforce; the maintenance of discipline, regular communication between union leadership and members and,

therefore, a high degree of leadership control; the ability to canvass moral support in the community which may in turn assist in the management of

familial conflict and tensions in the home;

the possible constraint of police action; the development of the negotiation process itself; and the possible shortening of the duration of the dispute.

These combined factors contribute to the institutionalisation of the conflict, place constraints on the

use of violence and, therefore, offer the greatest likelihood of a negotiated compromise. That is why

the picket has become a legitimate devise in most Western countries. The denial of the right to picket

leads to frustration among the participants of the strike. This frustration is heightened by a number of

other possible factors, some of which are linked directly to the absence of any moral sanction in the

strike in the form of the picket. Frustration is heightened by:

The division of the workforce through the employment of non-strikers. One of the most fundamental causes of frustration is the role of strike breakers in undermining the power of the striking workers by going to work and thereby making the strikers redundant. This leave workers vulnerable and exposed to the likelihood of dismissal.

Militancy of the workforce and the inability of the union to exert leadership because of inadequate access to members. This militancy is often accompanies by disappointment at the failure of the union to resolve the dispute in the favour of the workers which may lead to increased frustration. This is especially the case where workers are new to trade union organisation and may be naive about the extent of their own power, or lack thereof.

Disappointment with the lack of concrete support from other unions. Perceived co-operation between employers and the police, usually manifested by the direct

involvement of the police which leaves workers feeling frustrated at their apparent powerlessness. Apparent intransigence of management, especially a refusal to negotiate or to negotiate in good faith.

This source of frustration will be exacerbated if workers perceive management to be using delaying tactics, or where workers are convinced that they have been treated unfairly.

The prolongation of the strike, whatever the cause, is an enormous stimulus to frustration. Every day that workers are out on strike increases the levels of frustration, tension and stress due to the workers' inability to meet their financial and familial commitments. The duration of the strike coupled with the individual worker's obligations may easily lead to the provocation of violence in such a situation.

All these factors increase the strikers' frustration, contributing to their loss of faith in the negotiating

process. Faced by the possibility of losing the strike, individuals attempt to 'police' the strike by

assaulting non-strikers, leading to violent confrontation rather than a negotiated compromise.

Figure 2: Process analysis of the escalation of violence 

The Afcol StrikeIt has been argued that the right to an effective picket is denied in South Africa and that, partly as a

consequence, a culture of covert coercion in strike situations has developed in recent years among

black workers. It is argued here that absence of the right to picket played an important role in the

dispute at Afcol.

The origins of the dispute at Afcol can be tranced back to Star Furnishers, an Afcol subsidiary, on 14

April 1988, when conflict between members of the Paper, Printing, Wood and Allied Workers' Union

(PPWAWU) and the National Union of Furniture and Allied Workers (NUFAW) resulted in a fight breaking

out. As a result of the subsequent disciplinary hearings, four workers, all members of PPWAWU, were

dismissed. Union members then went out on an 'illegal' strike over what they perceived to be unfair

dismissals.

On Wednesday 20 April, the striking workers were informed by management via the union organiser

that the appeal against the dismissals of the four had failed. Furthermore, management issued an

ultimatum to the rest of the striking workforce to return to work by 1:00 p.m. that day. After some

confusion, workers decided to return to work but were informed by management that the entire

striking workforce had been dismissed.

On the following day when workers once again gathered at the factory to return to work, they were

informed that only certain workers would be re-employed. On that same day, 12 of the Star Furnishers

workers were arrested by the police.

By Friday 22 April, workers at the other Afcol plants had also come out on an in illegal strike in

solidarity with the Star Furnishers workers. In response to a management warning to interdict the

striking workers, workers returned to work on the following Monday. However, a legal dispute was

declared by the union over the dismissals at Star Furnishers.

On 13 May, a strike ballot was held at all the Afcol plants and 80% of the total membership of 2 000

elected to go out on strike from 30 May. On Wednesday 1 June, the employers sought an interdict

declaring the strike illegal and initiated a lock-out denying striking workers any access to the affected

plants.

The following day, workers gathering in an overcrowded and highly emotion-charged meeting at

Khotso House, were informed that management were hiring 'scab labour'. Following this meeting, the

first assaults against non-striking workers occurred at Croesus Station, resulting in the eventual death

of a non-striker from Afcol's Edblo factory. Further incidents were to ensue the following day after

strikers were informed that management was supplying transport to non-striking workers.

Finally, on 9 June 1988, in the wake of the three day national stay-away in protest against the

proposed Labour Relations Amendment Bill, 2,000 Afcol workers gathered in Regina Mundi Church in

Soweto. There, workers were informed that non-strikers were being used to train 'scabs' and that there

had been no progress towards winning their demands. Some of the strikers then took the decision to

attempt to break the lock-out at one of the affected Afcol plants. In the following week, the five 'scabs'

who were the subject of the subsequent murder trial were assaulted and killed.

Instead of establishing a picket at the factory once their legal strike commenced on 30 May 1988, the

union organisers were forced to advise their members on 2 June to relocate to the union offices. When

these offices were found to be too small to accommodate the workers, they were once again re-

directed to Khotso House in central Johannesburg. It is argued here that these denials of the right to

picket and the right to access to the affected plant frustrated the strikers' attempts to persuade their

colleagues to join them. It meant that, for the duration of the strike, discipline was exercised in a

covert manner away from the workplace and beyond the realm of collective control.

The already high levels of frustration which resulted amongst the Afcol strikers was further

compounded by six aggravating factors:

Division of the WorkforceThe lack of workforce unity contributed to the frustration among the strikers. A major target of this

frustration was the membership of the rival, mainly 'coloured' union, NUFAW. These workers often held

the more skilled and supervisory jobs. Their union was perceived by the strikers to be a 'sweetheart'

union that enjoyed special status with management through its closed shop agreement. It was seen to

be unsympathetic to the demands and aspirations of the majority of Afcol workers. Indeed, this union

was seen to be actively working with management to divide the workforce by training workers brought

in to replace striking workers (Heffer, 1990).

COSATU General Secretary, Jay Naidoo (Kock, 1989), stated publicly that there were widespread

rumours among workers at the time, that various managements were replacing African workers with

'coloured' and Indian workers, for the reason that African workers 'were always going on strike'. The

perceived role played by these 'coloured' workers is likely to have strengthened certain stereotypical

views held by these workers, and this undoubtably helped to exacerbate the conflict.

Militance of the Workforce and Inability of the Union to Exercise Discipline Over its MembersIt has already been noted that the 1980s was a period of growing militancy among black workers.

Management and the state responded to this militancy by attempting to 'roll back' the power of labour.

The amendments to the Labour Relations Act passed in 1988 were perceived by workers to be part of

an anti-union strategy in this respect. On 6, 7 and 8 June 1988, during the course of the Afcol strike, a

three day nation-wide stay-away took place and an estimated three million workers registered their

opposition to the proposed amendments to the Labour Relations Act. As affiliates of COSATU, the two

largest unions organising in the Afcol plants - PPWAWU and the National Union of Metalworkers of

South Africa (NUMSA) - reflected this militancy. However, unlike other Western countries, workplace

behaviour was not subject to the restraining influence of an enfranchised community most likely to

disapproving of violence.

In this context, having embarked on a legal strike, the need for the union leadership to meet regularly

with its membership to report back on negotiations with management became crucial. However, a

management instituted lock-out prevented this ease of communication. Combined with the denial of

the right to picket, the lock-out effectively eliminated the opportunity for containing the conflict and

entrenching the discipline of the union leadership. Instead of strike discipline being exercised openly

by the union, it was enforced by frustrated militants away from the workplace and without collective

control.

Lack of Solidarity from Other UnionsThe strikers had expected to obtain the support of the South African Breweries Shop Steward Council

and COSATU affiliates (Afcol being a subsidiary company of South African Breweries). This support of

solidarity action was not forthcoming and this both frustrated the striking Afcol workers and left them

feeling vulnerable and exposed.

Perceived Co-operation between Police and EmployersThe arrest of twelve Start Furnishers (a subsidiary of Afcol) workers in the course of the dispute was

likely to have reinforced perceptions among workers that the police were acting aggressively in the

interests of the employers. It was rumoured amongst the workers that a member of management

accompanied the police when arrests were made during the strike. This perception would have

contributed to the increased anger and frustration among the strikers.

Apparent Management IntransigenceThe mass dismissal of Star Furnishers employees on Wednesday 20 April, the decision by management

not to re-employ these workers (van Holdt, 1988), an attempt to interdict the strike, the lockout of

Afcol employees on 2 June and the failure of management to resolve the dispute, all reinforced the

strikers' feelings that management was becoming increasingly intransigent. This intransigence was

indicated clearly in a management memo which stated:

We must be sure that we do not re-remploy any of the workers who have now been discharged … . By re-employing we will be breaking down the advantage we now hold … . The benefits that we will have gained from the rather traumatic experiences of last week will be worth it in the medium to long term.(van Holdt, 1988: 5-6)This obviously increased the strikers' sense of desperation and frustration with the negotiation

process.

Possibly of central importance here is the resort to mass dismissals by management. Dismissal in a

strike situation is possibly the greatest source of escalating conflict with the greatest potential for

resultant violence on the part of striking workers. The all too common propensity to dismiss

immediately shifts the terrain during a strike to an 'all or nothing' struggle. The strike becomes an

isolated incident which more often than not holds out the prospect of no common ground and no

common future, instead of an event within a continuing relationship, which for both sides has a future

as well as a past.

In this way, industrial relations disputes about wages and working conditions may easily be escalated

into conflicts of principle - trade union recognition or dismissals - where the space for compromise is

more limited and where resolution is more difficult by virtue of its lying outside of the arena of

collective bargaining. The dismissed workers are excluded from the processes to decide their fate and

effectively lose all control in this regard. The psychological effects of this may lead to disinhibition in

relation to acts of violence which otherwise may have been avoided.

Prolongation of the StrikeFrustration is less likely in a short demonstration stoppage in which the strikers' grievances are dealt

with quickly by a responsive management and a negotiated compromise is reached. When the strike

continues over a long period of time, as happened in the case of Afcol, it becomes a trial of strength in

which both sides begin to perceive it as a battle. Fears of dismissal are exacerbated, as are familial

and financial pressures. Strikers and their dependents are subject to increasing material deprivation as

they deplete their meagre savings and are forced to depend on hand-outs from the union or from

neighbours and relatives. Pressures build up to end the strike and strikers become increasingly

frustrated at their inability to persuade management or to maintain the support of the majority of the

workforce.

ConclusionThe argument presented here may seem to be flawed in the case of the Afcol strike by virtue of the

fact that no attempt was made by the strike participants to organise a picket. However, the argument

does not rest only on the fact that theseparticipants were denied the right to picket; it rests on the fact

that the present structures of dispute resolution lead to frustration and that this frustration is

exacerbated and compounded by a range of additional factors. The end result is a loss of faith in the

negotiation process which in turn gives rise to the need for individual strikers to 'police' strikes.

However, a number of qualifications are necessary. While an effective picket is likely to reduce the

frustrations experienced by the strikers, it will not, on its own, eliminate violence. As suggested

previously, the decline of violence in advanced capitalist countries was accompanied by the

'constitutionalisation of the working class'. In the South African situation this notion must be

interpreted very broadly. Reference has been made to the inseparable inter-relationship between the

factory floor and the wider community, and this begs the question of whether conflict in the industrial

relations arena can actually be 'institutionalised' in the absence of broader political transformation

within the country.

To some extent this question is answered by Johan Liebenberg (1988: 648), industrial relations

consultant to the Chamber of Mines, who wrote:

Given these background environmental causes (of violence in industrial conflict) it is clear that we cannot solve the problem of violence solely through industrial relations. Collective bargaining may provide insights into the means or the methods for tackling these problems, but

we cannot expect our industrial relations structures to be the means for the elimination of these wider problems. We would be overworking collective bargaining.It is evident that the only lasting solutions to the problem of violence in industrial conflict must also be

political solutions; from the provision of meaningful channels for political expression, to the provision

of a comprehensive welfare net for the unemployed. At the level of the enterprise, for the right to

picket to be effective, it must be accompanied by increased participation by workers in the enterprise

itself. It should be noted here that the argument for the right to picket as a means of limiting violence

in strike situations is promised on the assumption of an ongoing adversarial relationship between

management and labour, in which the trade union is in opposition to management. This is a tradition in

industrial relations which has been inherited by South Africa from the United Kingdom. There are

alternative arguments promised on a more co-operative dispensation such as that characteristic of the

system of co-determination in West Germany. One such argument is implied by Albertyn (1989) who

suggested that the existence of a pre-entry closed shop agreement (in which membership of a trade

union is a prerequisite for employment), would automatically mean that production stops if the union

goes on strike. The implication is that there would be no 'scabbing' and therefore no need for a picket

whether this is an appropriate or realistic solution in the South African case with the multiplicity of

unions which exist in any one factory, and with the historical antagonism which has developed, is a

matter for discussion elsewhere. Perhaps, even more important is the search for solutions to the

problem of industrial violence appropriate to the special circumstances of a post-apartheid society,

which must prioritise some fundamental re-distribution of wealth and resources.

Essentially, what is suggested is the long term need to begin developing a democratic culture within

the industrial relations arena as well as in the wider community. The starting point in this process

would appear to be the emergence of codes of conduct, negotiated between workers and management

which have the potential to regulate strike situations by democratically defining what is legitimate

behaviour in strikes. Of even greater significance is the fact that recent evidence suggests that the

right to picket is becoming an increasingly common demand in strike situations in South Africa.

This embryonic democratic culture was nowhere more visible than in the recent Hextex strike in

Boland. The fifth longest strike in 1989, involving 1,020 workers, witnessed no violence whatsoever.

Before the strike, the company and union agreed to the following (Patel, 1990):

access for union officials during the strike; on-site picket facilities for strikers; access for strikers to the company canteen during the strike; the right to strike without fear of dismissal; and, limitations on the number of strikers to have access

and picket rights.

As SACTWU (1990: 4), the organising union at Hextex, concluded in a broader context:

Obviously, such negotiations will benefit our society. But only if it produces a fair, workable system of industrial relations to which all parties are generally committed. If unions are powerless and right-less, then industrial conflict will not go away. It simply becomes less controllable and predictable.The institutionalisation of conflict in the industrial relations arena, especially the entrenchment of the

right to picket and the right of access to the factory during a strike, would also make for a more formal

and orderly policing of strike situations. However, if a democratic culture is to be developed within the

industrial relations arena, then this must of necessity also entail the development of alternative forms

of public order policing as well. This, too, would seem to imply the need for broad political solutions, as

the only means through which the very process of law enforcement itself can be democratised.

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Von Holdt, K. (1988) Union bashing fails at Afcol, South African Labour Bulletin, Vol. 13(6), 5-7.

Webster, E. (1989) Report submitted to the Supreme Court of South Africa (Witwatersrand Local

Division) in the matter between State and Elias Phasha and Four Others.

Webster, E. (1979) Evidence submitted to Wiehahn Commission on the settlement of industrial

disputes, South African Labour Bulletin, Vol. 5(1), 83-93.

Introduction

Many Western companies have taken advantage of the resource available in India and the willingness

of Indian states and the federal government to encourage investment in some of its more rural areas.

Two-thirds of the Indian population, or about 800 million people, depend on the rural farm income and

agricultural output that is so reliant on the monsoon season. The Indian government has tried to move

the country forward by encouraging some foreign investment into those rural areas. However,

investment in India is fraught with unseen problems and one particular area for Western companies is

the outdated Indian union laws. In the US and Europe, friendly government legislation has allowed the

erosion of the power of the union and today, the threat of union action is far less than it was thirty

years ago. The reverse is true in India where the union still plays a large part of the day to day

operation of the workplace, and this in turn can cause strikes, lockouts, and even violence. This

constant threat of industrial action has in some part kept foreign investment checked in a country that

needs that influx to maintain its growth and its potential.

Industrial Action

The global automotive sector has seen India as a potential market and hub for manufacturing cars to

export to other Asian nations. All the major Japanese automakers have invested in India, as well

Renault, Volkswagen, and Volvo. India is now the sixth largest manufacturer of cars in the world,

making nearly four million cars a year and in Asia is third behind Japan and South Korea. The Japanese

manufacturers were the first to invest in India; initially creating joint ventures for motorcycle

manufacturing, then Suzuki were invited to manufacture its range of small cars in the early 1990's.

The other major Japanese automakers have invested heavily including Nissan, in 2005, and Toyota, in

1997, as well as the South Korean companies, like Hyundai who started Indian operations in 1996.

Despite the heavy investment in the Indian automotive industry, there have been a number of

disruptive and violent bouts of industrial action over the years. Some of the worst are described

below :

Honda Motorcycle and Scooter India, 2005 - The incident started a result of union activity. In

December of 2004, a worker was accused of trying to start a union and was allegedly hit by a

manager. Four other workers who sided with the beaten man were sacked for "undisciplined

behavior in the factory". The situation deteriorated after another 57 employees were sacked and a

total plant strike was arranged in June 2005. This led to 1000 employees being sacked by

management and the company pressed the remaining workers into signing a declaration that they

renounce further demands and strikes, by refusing to send company busses to pick up workers in

surrounding villages. By the middle of July, the company says it has some 200-300 workers at the

plant, who are primarily recently hired contract staff. Meanwhile, the automotive unions press the

government to take action against Honda as other local companies feel the impact of the lockout.

On July 25th, around 3000 Honda workers and supporters demonstrate against the company's

actions. After trying to occupy parts of a local highway, the demonstrators are attacked by police

resulting in some 800 injuries and up to thirty demonstrators missing or killed. Solidarity strikes

take place in the area and a day of country-wide protests was scheduled for August 1st 2005. With

this threat of civil unrest the government intervened and production at the plant starts again on the

first of the month. At the end of the strike the company had lost 1.2 Billion Rupees ($27 Million

based on 2005 exchange rate). However the Japanese continued their hard line against the workers

saying that any strike would hurt future Japanese investment. Honda management also lobbied the

Indian government for labor reforms including that strikes would have to be announced three weeks

beforehand and that an approval of 75 percent of all workers in the plant would be required as the

legal requirement any action.

Hyundai Motor India Limited, 2010 - This industrial action was also a result of a foreign car

maker refusing to negotiate with a union. On April 2010, over 1300 workers at the Hyundai plant in

Chennai, went on strike as a result of management's refusal to negotiate a new contract with the

Hyundai Motor India Employees' Union. The management wants workers to work with a company-

appointed Works Committee. Hyundai had been charged with a number of union violations

including terminating 600 contractors just prior to their conversion to permanent employees as well

as firing workers who joined the union. This was the third strike in 18 months, and not the last. In

December 2011 nearly fifty current and fired workers went on hunger strike to protest for the

reinstatement of employees who had been dismissed for their role in previous strikes.

Maruti Suzuki, July 2012 - The violence at the automotive plant took place on July 18th when one

executive was killed and over one hundred managers injured. After an employee took offense to

remarks from a supervisor, the worker turned violent and later workers prevented executives and

managers from leaving the factory after working hours. During resolution talks, workers attacked

executives and this led to other acts such as fires and other damage to the plant and vehicles.

As a result production of vehicles was stopped and more than 100 workers and unionofficials were

arrested. At the time of the violence, the plant had 1500 permanent employees and the same

number of contract staff. After the staff was locked out, Suzuki terminated 1000 employees and

contractors. By August 1st, the plant re-opened with a single shift of skeleton staff of 300,

producing a tenth of the cars produced before the incident.

PRIMER ON STRIKE, PICKETING AND LOCKOUT 

 

1.                  WHAT IS STRIKE, PICKETING AND LOCKOUT?      

                       

A.                  1.             STRIKE – means any temporary stoppage of work by the concerted action of the employees as a result of an industrial or labor dispute.  (Art. 212 (o), Labor Code, as amended by Sec. 4, R. A. 6715)

 2.             PEACEFUL PICKETING – the right of workers during strikes consisting

of the marching to and fro before the premises of an establishment involved in a labor dispute, generally accompanied by the carrying and display of signs, placards or banners with statements relating to the dispute. (Guidelines Governing Labor Relations, October 19, 1987)

 3.             LOCKOUT – means the temporary refusal of an employer to furnish

work as a result of an industrial or labor dispute.  (Article 212 (p) Labor Code, as amended by Section 4, R.A. 6715).

 2.                  WHAT ARE THE DIFFERENT FORMS OF STRIKES?

                                     

A.     1.   LEGAL STRIKE – one called for a valid purpose and conducted through means allowed  by law.

 

2.    ILLEGAL STRIKE – one staged for a purpose not recognized by law, or if for a valid purpose, conducted through means not sanctioned by law.

 

3.       ECONOMIC STRIKE – one staged by workers to force wage or other economic concessions from the employer which he is not required by law to grant (Consolidated Labor Association of the Phil. vs.  Marsman and Company,  11 SCRA 589)

 

4.    ULP STRIKE – one called to protest against the employer’s acts of unfair labor practice enumerated in Article 248 of the Labor Code, as amended, including gross violation of the collective bargaining agreement (CBA)  and union busting.

 

5.     SLOWDOWN STRIKE – one staged without the workers quitting their work but merely slackening or by reducing their normal work output.

 

6.     WILD-CAT STRIKE – one declared and staged without filing the required notice of strike and without the majority approval of the recognized bargaining agent.

 

7.     SIT DOWN STRIKE – one where the workers stop working but do not leave their place of work.

     

3.         WHAT IS AN INDUSTRIAL DISPUTE?                                                  

 

A.        An industrial or labor dispute includes any controversy or matter concerning terms or conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment regardless of

whether the disputants stand in the proximate relation of  employer and employee.  (Article 212 (1) Labor Code, as amended by Section 4, R.A. 6715)  

 

4.      WHAT IS THE NATURE OF THE RIGHT TO STRIKE AND LOCKOUT?                                  

                       

A.        The right to strike is a constitutional and legal right of the workers as the employers have the inherent and statutory right to lockout, all within the context of labor relations and collective bargaining.  It is a means of last resort and presupposes that the duty to bargain in good faith    has   been   fulfilled   and   other   voluntary  modes of  dispute settlement have been tried and exhausted.  (Guidelines Governing Labor Relations).  

 

5.      WHO MAY DECLARE A STRIKE OR LOCKOUT?                        

 

Any certified or duly recognized bargaining representative may declare a strike in cases of bargaining deadlock and unfair labor practice.  Likewise, the employer may declare  a lockout in the same cases.

 

In the absence of a certified or duly recognized bargaining representative, any legitimate labor organization in the establishment may declare a strike but only on the  ground of unfair labor practice. (Section 2, Rule XIII, Book V, Omnibus Rules Implementing The Labor Code, as amended).

 

6.  WHAT ARE THE REQUISITES OF A LAWFUL STRIKE OR LOCKOUT?

           

A.        The requirements for a valid strike or lockout are as                                 follows:                                                                 

It must be based on a valid and factual ground;

 

A strike or lockout NOTICE shall be filed with the National Conciliation and Mediation Board (NCMB) at least 15 days  before the intended date of the strike or lockout if the issues raised are unfair labor practices, or at least 30 days before the intended date thereof if the issue involves bargaining deadlock.

 

In cases of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute UNION BUSTING where the existence of the union is threatened,  the 15-day cooling-off period shall not apply and the union may take action immediately after  the strike vote is conducted and the result thereof submitted to the Department of Labor and Employment.

 

 

1.                  A strike must be approved by a majority vote of the members of the Union and a lockout must be approved by a majority vote of the members of the Board of Directors of the Corporation or  Association or of  the partners in a partnership, obtained  by secret ballot in a meeting called for that purpose.

 

2.                  A strike or lockout VOTE shall be reported to the NCMB-DOLE Regional Branch at least 7 days before the intended strike or lockout subject to the cooling-off  period.

 

In the event the result of the strike/lockout  ballot is filed within the cooling-off period, the 7-day  requirement shall be counted from the day following  the expiration of the cooling-off period. (NSFW vs. Ovejera, G.R.    No. 59743, May 31, 1982)

 

In case of dismissal from employment of union officers which may constitute union  busting, the time requirement for the

filing of the Notice of Strike shall be dispensed with but the  strike vote requirement being mandatory in character, shall “in every case” be complied with.

 

The dispute must not be the subject of an assumption of jurisdiction by the President or the Secretary of Labor and Employment, a certification for compulsory or voluntary arbitration nor a subject of a pending case involving the same grounds for the strike or lockout. 

 

7.         WHAT ARE THE VALID GROUNDS FOR DECLARING A STRIKE OR LOCKOUT?                                                                   

 

The law recognizes two grounds for the valid exercise of the right to strike or lockout, namely:

 

Collective Bargaining Deadlock (CBD) and/or

Unfair Labor Practice (ULP)

 

8.         MAY A UNION FILE A NOTICE OF STRIKE  OR THE  EMPLOYER FILE A NOTICE OF LOCKOUT IF THE LABOR DISPUTE IS BASED ON A GROUND OTHER THAN ULP AND CBD?                                   

 

A.     No.  The union/employer may not file a notice based on grounds other than ULP and CBD.  Violations of Collective Bargaining Agreements,  except flagrant and/or malicious refusal to comply with its economic provisions, shall not be considered unfair labor practice and shall not be strikeable and no strike or lockout may be declared on grounds involving inter-union and internal union disputes or on issues brought to voluntary or compulsory arbitration including legislated wage orders and labor standard cases.

 

However, if improvidently filed and it appears on the face of the notice that the issues raised are non-strikeable or the real issues discovered

during conciliation proceedings are not proper subjects of a Notice of Strike or Lockout, The NCMB Regional   Branch shall dismiss motu propio the notice without prejudice to further conciliation, or upon request of either or both parties in which case, the Notice of Strike or Lockout is treated as a Preventive Mediation Case.  (See Definition of Preventive Mediation Case under Appendix 3, Definition of Terms). 

 

9.      WHAT ARE THE CONTENTS OF A NOTICE OF STRIKE OR LOCKOUT?             

           

A.    The notice shall state, among others, the names and addresses of the employer and the  union involved, the nature of the industry to which the employer belongs, the number of union members and of the workers in the bargaining unit, and such other relevant data as may facilitate the settlement of the dispute, such as a brief statement or enumeration of all pending labor disputes involving the same parties.

 

In cases of bargaining deadlocks, the notice shall, as far as practicable, further state the unresolved issues in the bargaining negotiations   and  be accompanied  by  the  written  proposals  of  the union, the counter-proposals of the employer and the proof of a request for conference to settle the differences.

 

In cases of unfair labor practice,  the notice shall, as far as practicable, state the acts complained of and the efforts taken to resolve the dispute amicably.

 

10.       WHAT IS THE ROLE OF THE NCMB IN CASE A NOTICE OF STRIKE OR LOCKOUT IS FILED?                                               

 

A.    Upon receipt of a valid notice of strike or lockout, the NCMB, through its Conciliator-Mediators, shall call the parties to a conference the soonest possible time in order to actively assist them to explore all possibilities for amicable settlement.  To this end, the Conciliator-Mediator may suggest/offer proposals as an alternative avenue for the resolution of their disagreement/conflict which may not necessarily bind the

parties.  In the event of failure in conciliation/mediation  the parties shall be encouraged to submit their dispute for voluntary arbitration.

 

11.       WHAT IS THE LEGAL IMPLICATION IF THE CONTENT-REQUIREMENT OF THE NOTICE OF STRIKE OR LOCKOUT HAS NOT BEEN COMPLIED WITH?                                                                                              

A.        Any notice which does not conform with the foregoing requirements shall be deemed not having been filed.

 

12.   WHAT IS THE PURPOSE OF THE STRIKE VOTE?           

                       

A.       To ensure that the decision to strike broadly rests with the majority of the Union members in  general and not with a mere minority, at the same time, discourage wildcat strikes, union bossism and even corruption.

 

13.       WHAT IS THE PURPOSE OF THE STRIKE VOTE REPORT?

 

A.        To ensure that a strike vote was indeed taken and in the event that the report is false, to afford the members an opportunity to take the appropriate remedy before it is too late.

 

14.              WHAT IS  PURPOSE OF THE TIME REQUIREMENT IN THE NOTICE OF STRIKE/LOCKOUT?           

                                               

A.        The 15 and 30 days requirement is known as the Cooling-Off Period designed to afford parties the opportunity to amicable resolve the dispute with the assistance of the NCMB Conciliator/Mediator.  Should the dispute remain unsettled until the lapse of the required number of days from the mandatory filing of the notice, the labor union may strike or the employer may commence a lockout after having complied with the 7-day requirement for the filing of the  strike or lockout vote, as the case may be.

 

15.              WHAT IS THE CORRECT INTERPRETATION OF THE  REQUIREMENT TO OBSERVE THE COOLING-OFF PERIODS AND  THE STRIKE BAN?  

                                   

A.        The prescribed cooling-off period and the 7-day strike ban after submission of report of strike vote are mandatory.  The observance of both periods must be complied with, although a labor union may take a strike vote and report the same within the statutory cooling-off period.  The avowed intent of the law is to provide an opportunity for mediation and conciliation.  The waiting period, on the other hand, is intended to provide opportunity  for the members of the union or the management to take the appropriate remedy in case the strike or lockout vote report is false or inaccurate.  Moreover, the cooling-off and  7-day strike ban provisions of law are reasonable and valid restrictions on the right to strike and these restrictions constitute a valid exercise of police power of the State.  If only the filing of the strike notice and the strike vote report would be deemed mandatory, but not the waiting periods so specifically and emphatically prescribed by law, the purposes for which the filing of the  strike notice and strike vote report is required cannot be achieved.  The submission of the report gives assurance that a strike vote has been taken and that, if the report concerning it is false, the majority of the members can take appropriate remedy before it is too late.  (National Federation of Sugar Workers vs. Ovejera, 114 SCRA 354)

 

The seven (7) days waiting period is intended to give  the Department of Labor and Employment  an opportunity to verify whether the projected strike really carries the imprimatur of the majority of the union members.

 

The need for assurance that the majority of the union members support the strike cannot be gainsaid.  Strike is usually the last weapon of labor to compel capital to concede  to its bargaining demands or to defend itself against unfair labor practices of management.  It is a weapon that can either breathe life to or destroy the union and its members in their struggle with management for a more equitable due of  their labors.  The decision to wield the weapon of strike must, therefore, rest on a rational basis, free  from emotionalism, unswayed by the tempers and tantrums of a few hotheads, and firmly focused on the legitimate interest of the union which should not, however, be antithetical to the public welfare.

 

Thus, our laws require the  decision to strike to be the consensus of the majority for while the majority is not infallible, still, it is the best hedge against haste and error.  In addition, a majority vote assures the union it will go to war against management with the strength derived from unity and hence, with better chance to succeed.  (Lapanday Workers Union, Tomas N. Basco  vs.  NLRC and Lapanday Agricultural Development Corporation, G.R. Nos. 95494-97,  7 September 1995)

 

16.  WHAT ARE THE PROHIBITED ACTS AND PRACTICES?           

             

A.         1.         Declaring a strike or lockout on grounds involving inter-union and intra-union disputes or on issues brought to voluntary or compulsory arbitration.

 

2.         Declaring a strike or lockout without first having bargained collectively or without first having filed the required notice or without the necessary strike or lockout vote first having been obtained and reported to the Regional Branch of the NCMB.

 

            Declaring a strike or lockout in defiance of a cease-and-desist order, or an order for the striking employees to return to work and for the employer to accept the workers after assumption of jurisdiction by  the President or Secretary of Labor and Employment, or after certification or submission of the dispute to compulsory or voluntary arbitration, or during the pendency of a case involving the authorized grounds for the strike or lockout.

 

4.         Obstructing, impending or interfering with by force, violence, coercion, threats or intimidation any peaceful picketing by employees during any labor controversy or in the exercise of their right to self-organization or collective bargaining, or aiding or abetting such obstruction or interference.

 

5.         Employing any strike breaker or being employed as a strike-breaker.

 

6.         No public official or employee, including officers and personnel of the Armed Forces of the Philippines, of the Philippine National Police, or any armed person shall bring in, introduce or escort, in any manner, any individual who seeks to replace strikers in entering or leaving the premises of a strike area, or work in place of strikers.

 

Nothing herein shall be interpreted to prevent the aforementioned officials, employees or peace officers from taking any measure necessary to maintain peace and order and/or to protect life and property.

 

7.         Stationary picket and the use of means like placing of objects to constitute permanent blockade or to effectively close points of entry or exit in company premises.

 

8.         Any act of violence, coercion or intimidation by any picketer.

 

9.         The obstruction of the free ingress to or egress from the employer’s premises for lawful purposes.

 

10.       Obstruction of public thoroughfares while engaged in picketing.

 

17.        WHAT ARE THE LEGAL IMPLICATIONS FOR NON-COMPLIANCE WITH THE REQUIREMENTS FOR A VALID STRIKE OR LOCKOUT?                                                   

             

A.        The requirements for a valid strike or lockout are mandatory in character and non-compliance therewith is sufficient ground to declare the strike or lockout illegal.

 

If a strike is declared illegal, the employer may be authorized to terminate the employment of union officials who knowingly participated in the illegal strike and/or any worker or union officer who knowingly participated in the commission of other illegal acts during the strike.

 

In case the lockout is declared illegal, any worker whose employment has been terminated as a consequence thereof may be entitled to re-instatement including payment of full backwages and other benefits.

 

18.        WHEN A DISPUTE SUBJECT OF A NOTICE OF STRIKE IS FORTHWITH  TREATED AS A PREVENTIVE MEDIATION CASE, MAY THE UNION LATER ON STAGE A STRIKE ON ACCOUNT OF THE SAME DISPUTE?                

           

A.       No. Once the dispute has been converted into a preventive mediation case, the notice of strike is deemed dropped from the dockets as if no notice of strike has been filed.  Since there is no more notice of strike to speak about, any strike subsequently staged by the Union is deemed not to have complied with the requirements of a valid strike.  The same rule applies in the case of lockout by an employer, (PAL vs. Sec. of Labor)

 

19.        WHO HAS THE DUTY TO DECLARE THAT THE NOTICE OF STRIKE/LOCKOUT HAS BEEN CONVERTED INTO PREVENTIVE MEDIATION CASE?                                           

 

A.        Upon the recommendation of the Conciliator/Mediator handling the labor dispute, the Director of the Regional Branch of the NCMB which has jurisdiction over the labor dispute has the duty to declare and inform the parties that the issues raised or the actual issues involved are not proper subjects of a Notice of Strike or Lockout and  that the Notice of Strike or Lockout has been converted into a Preventive Mediation Case without prejudice to further conciliation or upon the request of either or both parties.

 

20.        MAY A LABOR DISPUTE SUBJECT OF A NOTICE OF STRIKE OR LOCKOUT, MATURE INTO A VOLUNTARY ARBITRATION CASE?

 

A.        Yes.  By mutual agreement, the parties may decide to bring the matter for resolution before an accredited voluntary arbitrator of their choice, in which case the Notice is deemed automatically withdrawn and dropped from the dockets.

 

21.       WHEN MAY A STRIKE OR LOCKOUT BE DECLARED ILLEGAL?                                                                                     

A.        A strike or lockout may be declared illegal if any of the requirements for a valid strike or lockout is not complied with.

 

It may also be declared illegal if it is based on non-strikeable issues or if the issues involved are already the subject  of arbitration.

 

During a strike or lockout, when either of the parties commit prohibited acts or practices, the strike or lockout may be declared illegal.

 

 

22.        WHO HAS  JURISDICTION TO DETERMINE THE LEGALITY OF STRIKE AND  LOCKOUT?

 

A.        In general,  the Labor Arbiter in the appropriate Arbitration Branch of the National Labor Relations Commission has the power to determine questions involving the legality or the illegality of a strike or lockout upon the filing of a proper complaint and after due hearing.

 

            Where the matter of legality or illegality of strike is raised in the dispute over which the Secretary assumed jurisdiction or in disputes certified by the Secretary to the Commission for compulsory

arbitration, the same may be resolved by the Secretary or the Commission, respectively. (International Pharmaceuticals, Inc. vs.  Secretary of Labor and Associated Labor Union, G.R. No. 92981-83, January 9, 1992.)

           23.        MAY A VOLUNTARY ARBITRATOR DETERMINE THE LEGALITY OF A

STRIKE?      

 

A.        If the issue is voluntary and jointly submitted by  the parties to voluntary arbitration, the question may be resolved by the voluntary arbitrator or panel of voluntary arbitrators.

 

24.        CAN ANY PERSON PERFORMING ANY OF THE PROHIBITED ACTIVITIES MENTIONED IN THE PROCEEDING PARAGRAPH BE CHARGED BEFORE THE COURT?                        

 

Yes.  They may be charged before the appropriate civil and criminal courts.

 

25.  WHAT IS THE PENALTY IMPOSABLE?                                                      

 

A.        Any person violating any of the provisions of Article 265 of the Labor Code (performing any of the above prohibited activities) shall be punished by a fine of not exceeding P500.00 and/or imprisonment for not less than one (1) day nor more than six (6) months.

 

            If the person so convicted is a foreigner, he shall be subjected to immediate and summary deportation and will be permanently barred from re-entering the country without the special permission of the President.

 

            If the act is at the same time a violation of the Revised Penal Code (RPC), a prosecution under the Labor Code will preclude prosecution for the same act under the RPC or vice-versa.

 

26.         IS AN EMPLOYEE WHO PARTICIPATES IN A LAWFUL  STRIKE DEEMED TO HAVE ABANDONED HIS  EMPLOYMENT?                             

 

No.  An employee who goes on strike is not deemed to have abandoned his employment but is merely exercising his right to self-organization precisely to protect his rights as an employee and/or to obtain better working conditions.       

 

27.              IS PARTICIPATION BY AN EMPLOYEE IN A STRIKE SUFFICIENT GROUND FOR AN EMPLOYER TO TERMINATE HIS EMPLOYMENT?  

             

A.        No.  The mere participation of a worker in lawful strike shall not constitute sufficient ground for the termination of his employment even if a replacement has been hired by the employer during  such lawful strike.  However, any union officer who knowingly participates in an illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during a strike may be  declared to have lost his employment status.

 

28.              ARE THE STRIKERS ENTITLED TO PAYMENT OF WAGES DURING THE PERIOD OF A LAWFUL STRIKE?            

           

A.           As a general rule, striking employees are not entitled to the payment of wages for unworked days during the period of the strike pursuant to the principle of “No work- No pay”.  However, this does not preclude the parties from entering into an agreement to the contrary.

 

On the other hand, when strikers abandon the strike and apply for reinstatement despite the existence of valid grounds but the employer either refuses to reinstate them or imposes upon   their reinstatement new conditions that constitute unfair labor practices, the strikers, who refuse to accept the new conditions and are consequently refused reinstatement, are entitled to the losses of pay they may have suffered

by reason of the employer’s discriminatory acts from the time  they were refused reinstatement.

 

29.              MAY A STRIKE/LOCKOUT BE ENJOINED/PREVENTED BY LEGAL PROCESS?                        

 

A.        As a general rule, strikes and lockouts validly declared enjoy the protection of law and cannot be enjoined unless illegal acts are committed in the course of such strikes or lockouts.  Ordinarily, the law vests in the NLRC the authority to issue injunctions to restrain the commission of illegal acts during strikes and pickets.

 

In the national interest cases, the certification or assumption of jurisdiction by the Secretary of Labor over the dispute under Article 263(g) of the Labor Code, as a amended, has the effect of automatically enjoining the intended strike or lockout whether or  not a corresponding return to work order has been issued.  The workers shall immediately return to work and the employer shall immediately resume operations and re-admit all workers under  the same terms and conditions of employment prevailing before the strike.

 

30.              WHAT IS THE EXTENT OF THE POWER OF THE  PRESIDENT OR THE SECRETARY OF LABOR AND EMPLOYMENT TO ISSUE ASSUMPTION AND CERTIFICATION ORDERS?                                                                    

A.        The power to issue assumption and certification orders is an extraordinary authority strictly limited to national interest cases and granted to the President or to the Secretary of Labor, “which can justifiably rest on his own consideration of the exigency of the situation in relation to the national interest”.

 

Pursuant to the provisions of Article 263(g) of the Labor Code, as amended, the Secretary of Labor is vested with the discretionary power to decide not only the question of whether to assume jurisdiction over a given labor dispute or certify the same to the NLRC,

but also the determination of the industry indispensable to national interest.

 

The President of the Philippines shall not be precluded from intervening at any time and assuming jurisdiction over any labor dispute involving industries indispensable to national interest in order to settle or terminate the same.

 

Under Article 277(b) of the Labor Code, as amended, the Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in the implementation of a mass lay-off.

 

31.              WHEN A DISPUTE IS ASSUMED BY THE PRESIDENT OR SECRETARY OF LABOR, OR CERTIFIED TO THE NLRC FOR COMPULSORY ARBITRATION,  MAY A STRIKE OR LOCKOUT BE VALIDLY DECLARED ON ACCOUNT OF THE SAME DISPUTE?   

                                 

A.        No.  The assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout.

 32.              WHAT IS THE NATURE OF THE RETURN-TO-WORK

ORDER?                                                                                         

A.        The return-to-work order is a valid statutory part and parcel of  the assumption and certification orders given the predictable prejudice the strike could cause not only to the parties but more especially to the national interest.  Stated otherwise, the assumption of jurisdiction and the certification to  the NLRC has the effect of automatically enjoining the strike or lockout, whether actual or intended, even if the same has not been categorically stated or does not appear in the assumption or certification order.  It  is not  a  matter of option or voluntariness but of  obligation.  It must be discharged as a duty even against the worker’s will.  The worker must return to his job together with his co-workers so that the operation of the company can be resumed  and it

can continue serving the public and promoting its interest. x x x.  It is executory in character and shall be strictly complied with by the parties even during the pendency of any petition questioning their validity x x x precisely to maintain the status quo while the determination is being made.  (Union of Filipro Employees vs.  Nestle Philippines, Inc.,  GR No. 88710-13, December 19, 1990).

 

33.              WHAT ARE THE LEGAL CONSEQUENCES IN CASE OF DEFIANCE OF THE RETURN-TO-WORK ORDER BY THE EMPLOYER AND  BY THE EMPLOYEES?                                              

 

A.        In case of non-compliance with the return-to-work order in connection with the certification or assumption of jurisdiction by the Secretary of Labor, the employees concerned may be subjected to immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief even criminal prosecution against either or both of  them.

 

The Secretary of Labor may cite the defiant party in contempt pursuant to the power vested in him under the provisions of the Labor Code.

 

34.              CAN THE PHILIPPINE NATIONAL POLICE (PNP) BE DEPUTIZED TO ENFORCE ORDERS FROM THE DEPARTMENT OF LABOR AND EMPLOYMENT?                             

 

A.        Yes. The Secretary of Labor and Employment, the National Labor Relations Commission (NLRC) or any Labor Arbiter may deputize the PNP to enforce any of its order, award or decision.

 

35.              IN CASE THE PNP IS DEPUTIZED TO ENFORCE ORDERS FROM THE DEPARTMENT OF LABOR, WHAT WILL BE ITS ROLE?                            

In such a case, the role of the PNP is merely to assist the sheriff or the appropriate DOLE Officers in enforcing the decision, award or order.  It shall maintain peace and order and public safety in the area where  the decision,

award or order is to be enforced.  It shall also give security to the officers enforcing the decision, award or order.  (Please see also Article 264 (d), Article 266 of the Labor Code, as amended, and Guidelines for the Conduct of PNP During Strikes, Lockouts and Labor Disputes in General, Oct. 22, 1987).

 

 

36.              WHAT IS A STRIKE AREA?                                             

 

A.           A strike area includes:  (a)  the establishment of the employer struck against including run-away shops, factories or warehouses and other premises where members of the bargaining unit carry out the operations and business of the employer, and (b)  the area immediately before points of entrance and exit of establishment struck against.

 

37.              IS THE INGRESS AND EGRESS OF THE ESTABLISHMENT PART OF THE STRIKE AREA?                                                   

 

A.        No. Since it is not part of the strike area, the same could not be blocked or picketed.

 

38.        WHO IS A STRIKE-BREAKER?                                                  

 

A.        A strike-breaker means any person who obstructs, impedes or interferes with by force, violence, coercion, threats or intimidation any peaceful picket by employees during any labor controversy.

 

APPENDIX 1

              Form 1

                      

APPENDIX 2 

DEFINITION OF TERMS

 

1.                  NATIONAL CONCILIATION AND MEDIATION BOARD – or NCMB, for short, refers to the agency attached to the Department of Labor and Employment principally in charge of the settlement of labor disputes through conciliation, mediation and  the promotion of voluntary approaches to labor dispute prevention and settlement.

 

2.                  CONCILIATOR-MEDIATOR – official of the NCMB whose principal function is to settle and dispose potential and actual labor disputes through conciliation and preventive mediation including the promotion and encouragement of voluntary approaches to labor dispute prevention and settlement.

 

3.                  NATIONAL LABOR RELATIONS COMMISSION – NLRC, for short, refers to the agency attached to the Department of Labor and Employment in charge of deciding labor cases through compulsory arbitration.

 

4.                  BARGAINING DEADLOCK – failure to agree on the terms  and conditions of the Collective Bargaining Agreement between the management and the union.

 

5.                  UNFAIR LABOR PRACTICE - either by employers or labor organizations as enumerated under Article 248 and 249 of the Labor Code, as amended.

 

6.                  PREVENTIVE MEDIATION CASE – refers to the potential or brewing labor dispute which is the subject of a formal or informal request for conciliation and mediation assistance sought by either or both parties in order to remedy, contain or prevent its degeneration into a full blown dispute through amicable settlement.

 

7.                  INTRA-UNION DISPUTE – refers to a case involving the control, supervision and management of the internal affairs of a duly registered labor union such as those relating to  specific violations of the union’s constitution and by-laws.

 

8.         INTER-UNION DISPUTE     -         refers to cases involving a petition for certification election and direct certification filed by a duly registered labor organization which is seeking to be recognized as the sole and exclusive bargaining agent of the rank and file employees in the appropriate bargaining unit of a company, firm or establishment.

 

9.         VOLUNTARY ARBITRATION – a third party settlement of a labor dispute involving the mutual consent by the representative of the company and the labor union involved in a labor dispute to submit their case for arbitration.

 

 APPENDIX 3

 

RELATED CONSTITUTIONAL AND STATUTORY PROVISIONS

 

I.                     RELATED CONSTITUTIONAL PROVISIONS 

Sec. 18 Article II.  – The State affirms labor as a prime social economic force.  It shall protect the right of workers and promote their welfare.

 

Sec. 3 Article XIII – The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

 

            It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted  activities, including  the right to strike in accordance with law.  They shall be entitled to security of tenure, humane conditions of work and living wage.  They shall participate in policy and decision-making process affecting their rights and benefits as may be provided by law.

 

The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

 

The State shall regulate the relations between the workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable return on investments, and to expansion and growth.

 

II.                PROVISIONS FROM THE LABOR  CODE

 

Art. 211 Declaration of Policy

 

A.                 It is the policy of the State:

 

a.                   To promote and emphasize the primacy of free collective bargaining and negotiations, including voluntary arbitration, mediation and conciliation, as modes of settling labor or industrial disputes;

 

b.                  To promote free trade unionism as an instrument for the enhancement of democracy and the promotion of social justice and developments;

 

c.                   To foster the free and  voluntary organization of a strong and united labor movement;

 

d.                  To promote the enlightenment of workers concerning their rights and obligations as union members and as employees;

 

e.                   To provide an adequate administrative machinery for the expeditious settlement of labor or industrial dispute;

 

f.                    To ensure a stable but dynamic and just industrial peace;  and

 

g.                   To ensure the participation of workers in decision and policy-making  processes affecting their rights, duties and welfare.

 

B.         To encourage a truly democratic method of regulating the relations between the employers and employees by means of agreement freely entered into through collective bargaining, no court or administrative agency or official shall have the power to set or fix wages, rates of pay, hours of work or other terms and conditions of employment, except as  otherwise provided under this Code.

 

Art. 248.          Unfair Labor Practices of  Employers.  

 

It shall be unlawful for an employer to commit any of the following unfair labor practice:

 

a.         To interfere with restrain or coerce employees in the exercise of their right to self-organization;

 

b.         To require as a condition of  employment  that a person or an employee shall not join a labor organization or shall withdraw from one to which he belongs;

 

c.         To contract out services or functions being performed by union members when such will interfere with, restrain or coerce employees in the exercise of their rights to self-organization;

 

d.         To initiate, dominate, assist or otherwise interfere with, restrain or coerce employees in the exercise of their rights to self-organization;

 

e.         To discriminate in regard to wages, hours or work and other terms and conditions of employment in order to encourage or discourage membership in any labor organization.  Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent.  Employees of an appropriate collective bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective agreement.  Provided, that the individual authorization required under Art. 242, paragraph (o) of this Code shall not apply to the non-members of the recognized collective bargaining agent;

 

f.          To dismiss, discharge, or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code;

 

g.         To violate the duty to bargain collectively as prescribed by this Code;

 

h.         To pay negotiation or attorney’s fees to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute; or

 

i.          To violate a collective bargaining agreement.

 

The provision of the preceding paragraph notwithstanding, only the officers and agents of corporation, association or partnership who have actually participated in, authorized or ratified unfair labor practice shall be held criminally liable.

 

 

Art. 249.          Unfair Labor Practices of Labor Organizations.

 

            It shall be unlawful for a labor organization, its officers, agents or representatives to commit any of the following unfair labor practices:

 

a.         To restrain or coerce employees in the exercise of their right to self-organization: Provided, that labor organization shall have the right to prescribe its own rules with respect to the acquisition or retention of membership;

 

b.                  To  cause or attempt to cause an employer to discriminate against an employee, including discrimination against an employee with respect to whom membership in such organization has been denied to or terminate an employee on any ground other than the usual terms and conditions under which membership or continuation of membership is made available to other members; 

 

c.         To violate the duty or refuse to bargain collectively with the employer, provided it is the representative of the employees;

 

d.         To cause or attempt to cause an employer to pay or agree to pay or deliver any money or other things of value, in the nature of an exaction, for services which are not performed or not  to be performed including the demand for a fee for union negotiations;

 e.         To ask for or accept negotiation or attorney’s fees from

employers as part of the settlement of any issue in collective bargaining or any other dispute;  or

 

f.                    To violate a collective bargaining agreement.

 

            The provisions of the preceding paragraph notwithstanding, only the officers, members of governing boards, representatives or agents or members of labor associations or organizations who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable.

 

            Art. 263.          Strikes, Picketing and Lockouts

 

a.         It is the policy of the State to encourage free trade unionism and free collective bargaining;

 

b.         Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection.  The right of legitimate labor organization to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected.  However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes;

 

c.         In  cases of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Department at least 30 days  before the intended date  thereof.  In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members.  However, in  case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws,  which may constitute union busting where the existence of  the  union is threatened,  the 15-day cooling-off  period shall not apply and the union may  take action immediately;

 

d.         The notice must be in accordance with such implementing rules and regulations as the Secretary of Labor and Employment may promulgate;                                                                                                          

 

e.         During the cooling-off period, it shall be the duty of the Department to exert all efforts at mediation and conciliation to effect a voluntary settlement.  Should the

dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice the labor union may declare a strike.

 

f.          A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by a secret ballot in meetings or referenda called for that purpose.  A decision to declare a lockout must be approved by  the majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by a secret ballot in a meeting called for that purpose.  The decision shall be valid for the duration of the disputes based on substantially the same grounds considered when the strike or lockout vote was taken.  The Department may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting.  In every case, the union or employer shall furnish the Department the results of the voting at least seven days  before the intended strike or lockout, subject to the cooling-off period herein provided.

 

g.         When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide  it  or  certify  the same to  the  Commission (National

 

Labor Relations Commission) for compulsory arbitration.  Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order.  If one has already taken place at the time of  assumption of certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and condition prevailing before the strike or lockout.  The Secretary of Labor and Employment or the Commission

may seek assistance of law enforcement agencies to ensure compliance with this provision as well as with such order as he may issue to enforce the same.

 

In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize,  if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout.  In labor disputes adversely affecting the continued operation  of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life of its patients, most especially emergency cases, for the duration of the strike or lockout.

 

In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty-four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration.  For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or   the Commission, under pain of immediate   disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer or backwages, damages and other affirmative relief, even criminal prosecution against either or both of them.

 

The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or terminate the same.

 

h.         The Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall decide or resolve the dispute, as the case may be.  The decision of the President, the Secretary of Labor and Employment, the Commission or the voluntary arbitrator shall be final and  executory ten (10 ) calendar days after receipt thereof  by the parties.

 

APPENDIX 4 

GUIDELINES GOVERNING LABOR RELATIONS

 

                In line with the program to promote industrial peace as an essential requirement to achieve national economic and social programs, the  following guidelines shall be observed in the conduct  and disposition of labor disputes by all concerned. 

Right to  Strike or Lockout 

1.                  The right to strike is a constitutional and legal right of the workers as employers have the right to lockout, all  within the context of labor relations and collective bargaining.  Subject to the enactment by Congress of amendments or a new law on labor relations, the provisions of existing laws shall govern the exercise of those rights.

 

Legal Requirements 

2.      The exercise of  the right to strike or lockout shall be subject to the following requirements:

 

a.                   a strike or lockout shall be filed with the labor department at least 15 days if the issues raised are unfair labor practice or at least 30 days if the issue involved bargaining deadlock;

 

b.                  the strike or lockout shall be supported by a majority vote of the members of the union or the members of the board of directors of corporations or associations or partnership, obtained by secret ballot in a meeting called for the purpose;  and

 

c.                   strike or lockout vote shall be reported to the labor department at least 7 days before the intended strike or lockout.

 

3.         In case of  dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute  union busting where the existence of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately.

 4.         The requirements for valid strike or lockout are mandatory  in character and

non-compliance therewith is sufficient ground to declare the strike or lockout illegal, upon filing of a proper petition and after due hearing with the appropriate Arbitration Branch of the National Labor Relations Commission.

 

Valid Grounds for Strike or Lockout 

5.      The law recognizes two grounds for the valid exercise of the right to strike or lockout, namely:

 

a.                   unfair labor practice

b.                  bargaining deadlock

 

 

6.      In order to be valid, the notice of strike or lockout on grounds of unfair labor practice, shall state the specific acts complained of.  In case of bargaining deadlock, the notice must specify the unresolved issues and must show proof that the parties have exhausted all efforts to resolve the deadlock.

 

7.      If on the face of the notice, the issues raised are non-strikeable, the Regional Office shall dismiss motu-proprio the notice without prejudice to conciliation upon request of either or both parties.

 

CONCILIATION

 

8.      Upon receipt of a valid notice of strike or lockout, it shall be the duty of labor conciliators to call the parties to a conference immediately within a period

not exceeding 48 hours.  Notices of conference to the parties shall be done through the fastest available means of communication such as telephones and telegrams.

 

9.      During the initial conference, it shall be the duty of the conciliator to see to it that the issues raised in the notice  are properly identified.

 

If the issue involves alleged unfair labor practice, the conciliator should clarify with the parties the specific  acts of unfair labor practice.  If the acts complained of involved dismissal of duly elected union officers which may constitute union busting and where the existence of the union is threatened, the

conciliator shall conduct marathon conferences and exert efforts to help the parties settle the issue. 

10.              If the unfair labor practice acts complained of involves alleged violation of CBA and questions of interpretations or implementation of the agreement, the Conciliator shall encourage the parties to respect the provisions of the collective bargaining agreement and to avail of the established grievance machinery including voluntary arbitration.  If the parties decide to designate the conciliator as voluntary arbitrator, his or her acceptance of such designation shall be subject to Department Order No. 10, Series of 1987.

 

11.              In cases of bargaining deadlocks,  the conciliator shall conduct marathon or series of conferences to enable the parties to reach an agreement before the expiration of the 30-day cooling-off period.

 

12.              If the issues involves alleged violation of labor standards, the conciliator shall immediately assign a labor inspector to act on the reported violation and to submit a report of his findings within 24 hours, copy furnished the conciliator concerned.  The labor inspector and the Regional director shall effect immediate compliance by the employer with the labor standards violated.

 

13.              If the issue involves inter-union disputes, the conciliator shall exert all efforts to enable the parties to settle the issue either through voluntary

recognition or consent election.  Otherwise, the conciliator shall immediately inform the Regional Director or BLRC Director as the case may be, in order that a Med-Arbiter can be directed to resolve the case within a period of five (5) days.

 

14.       It shall be the duty of the Conciliator to record in the minutes every point of agreement as well as the unresolved issues.  Referrals of representation cases and labor standards violations including those that are grievable under the CBA, shall be duly noted in the minutes of the conference.  The conciliator shall actively monitor the progress and developments on these cases with concerned labor officials.

 PICKETING 

During strikes, workers enjoy the right to peaceful picketing which is the marching to and fro before the premises of an establishment involved in a labor dispute, generally accompanied by the carrying and display of signs, placards or banners with statements relating to the dispute.

 

15.              The right to peaceful picketing shall be exercised by the workers with due respect for the rights of others.  No person engaged in picketing shall commit any act of violence, coercion or intimidation.  Stationary picket, the use of means like placing of objects to constitute permanent blockade or  to effectively close points of entry or exit in company premises are prohibited by law.

 

INJUNCTIONS 

16.              No court or entity shall enjoin any picketing, strike or lockout except as provided in Article 218 and 263 of the Labor Code, as amended.  The National Labor Relations Commission proper shall have the power to issue temporary injunctions but only after   due notice and hearing  and in accordance with its rules.  It may also issue restraining orders to appropriate cases subject as  a general rule to the requirements of due notice and hearing.

 

17.              Petitions for injunctions or restraining orders shall be handled or resolved with extreme care and caution.  All efforts to conciliate or settle amicably the

issues in the main dispute and those involved in petitions for injunctions shall be exhausted.  Injunctions and restraining orders therefore may be issued only in case of extreme necessity based on legal grounds clearly established, after due consultations or hearing and when all efforts at conciliation are exhausted.

 

19.       Injunction orders shall be enforced only to the extent necessary to correct violations of law and shall not prevent the workers from exercising the right to peaceful picketing.  The right to ingress or  egress may be exercised only for lawful purposes as may be indicated in the injunctive orders in line with established jurisprudence.

 20.              Injunction  orders issued under Article 218 and 263 of the Labor Code, as

amended, shall be served and enforced by appropriate officials or employees of the National Labor Relations Commission or by such officials or employees of the Department of Labor and Employment who may be designed by the labor secretary.

 

21.              The assistance of other civilian authorities like national, local or city officials may be sought, if necessary.  Only under extreme circumstances shall the assistance of the PC/INP be enlisted and in such cases, the police authorities shall also serve on a supportive capacity to the labor department officials or employees.  All efforts must be exerted in all cases to bring about voluntary and peaceful compliance with injunctive orders.  PC/INP representatives shall be guided by duly promulgated guidelines.

 

RETURN TO WORK ORDERS 

22.              The power to issue assumption and  certification  orders is an extraordinary authority granted to the President or the Secretary of Labor, the exercise of which shall be strictly limited to the national interest cases.

 

23.              The issuance of assumption or certification orders automatically enjoins the intended or impending strike or lockout and if one has already taken place, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and re-admit all workers under the same terms and conditions prevailing before the  strike or

lockout.  Assumption and  certification orders are executory in character and shall be strictly complied with by the parties even during the pendency of any petition questioning their validity.

 

24.       In case of non-compliance with return-to-work-orders, in connection with the certification and assumption of jurisdiction by the Secretary of Labor, the party concerned maybe subjected to the sanctions provided by law.  Employers who refuse to re-admit returning workers may be liable, upon filing of proper petition, for the payment of wages and other benefits from the date of actual refusal until the workers are re-admitted.

 

REMEDIES 

25.              A strike or lockout maybe declared illegal if any   of the requirements for a valid strike or lockout is not complied with or if declared based on non-strikeable issues, or when the issues involved are already the subject of arbitration.  During a strike or lockout, either of the parties are additionally prohibited from committing illegal acts.

 

26.              The employer or the union may file the proper petition to the appropriate Arbitration Branch of the NLRC to seek a declaration of the illegality of the strike or lockout subject to the provision of Article 263 (g).  It shall be the duty of the Labor Arbiter concerned to act on the case immediately and dispose of the same subject only to the requirements of due process.

 

27.              If a strike is declared to be illegal, the employer may be authorized to terminate the employment of union officials who knowingly participate in the illegal strike and any worker or union officer who knowingly participates in the commission of illegal acts during the strike or lockout.

 

28.              In case of an illegal lockout, any worker whose employment has been terminated as a consequence thereof, shall be reinstated with payment of full backwages and other benefits.

 

DEPARTMENT ORDER NO. 7 

29.              Employers, workers and concerned labor department officials are enjoined to faithfully observe the principles contained in Department Order No. 7 issued on 7 May 1987 which were based  on the agreement reached during the National Tripartite Conference held on April 10-11, 1987 in Tagaytay City.

 

 

19 October 1987.

 

(Sgd.) FRANKLIN M. DRILON

Secretary of Labor and Employment

 

 

 

 

APPENDIX 5 

Republic of the Philippines

 

 

DEPARTMENT OF LABOR AND                           NATIONAL POLICE

           EMPLOYMENT                                                  COMMISSION

 

 

GUIDELINES IN THE  CONDUCT OF PNP PERSONNEL, PRIVATE SECURITY GUARDS AND COMPANY GUARD FORCES DURING STRIKES, LOCKOUTS AND LABOR DISPUTES IN GENERAL

 

            In order to promote public interest and safety, industrial peace and stability, and peace and order, the following guidelines are hereby prescribed to govern the official conduct of all members of the PHILIPPINE NATIONAL POLICE (PNP) during strikes, lockout and labor disputes in general:

 

 

GENERAL POLICY 

1.         It is the essence of these guidelines that labor disputes are within the sole jurisdiction of the Department of Labor and Employment (DOLE) and/or through its appropriate agencies while matters involving peace and order, are under the exclusive jurisdiction of the National Police Commission (NAPOLCOM)  through the Philippine  National Police (PNP); but as labor disputes involving strikes and lockouts have peace and order implications, close coordination between the two departments is necessary.

 

2.         The involvement of the PNP during strikes, lockouts and labor disputes in general shall be limited to the maintenance of peace and order, enforcement of laws and legal orders of duly constituted authorities.

 

3.                  Any request for police assistance issued by duly constituted authorities shall specify the acts to be performed or conducted by PNP personnel.

 

4.                  Whenever the assistance of the PNP is necessary, elements of the local police force should be called upon to render assistance.  Such request for assistance shall be addressed to the Regional Director, National Capital Regional Command (NCRC), or the City Director in the case of cities, or the Provincial Director in the case of provinces or cities not under the City Police Command.  Unless directed by the President or personally by the Chairman of the National Police Commission upon consultation with the Secretary of Labor and Employment or when requested by the latter, personnel from the Armed Forces of the Philippines shall not intervene nor be utilized in any labor dispute.

 

 

5.                  Insofar as practicable, no officer of the law shall be allowed  to render services  in connection with a strike or lockout if there is question or complaint as regards his relationship by affinity or consanguinity to any official/leader of the parties in the controversy or if he has financial or pecuniary interest therein.

 

6.         A peace keeping detail shall be established in a strike or lockout area when requested by DOLE or as the Regional Director, National Capital Regional Command, City Police Command/Provincial Director may deem necessary for the purpose of maintaining peace and order in the area.

 

7.         Personnel detailed as peace keeping force  in a strike or lockout areas shall be in uniform, with proper nameplate at all times.  They shall exercise maximum tolerance and shall observe courtesy and strict neutrality in their dealings with both parties to the controversy bearing in mind that the parties to the labor dispute are not their adversaries but their partners in the quest for industrial peace and human dignity.  As much as possible, they shall not inflict any physical harm upon strikers and/or picketers or any person involved in the strike/lockout.  When called for by the situation or when all other peaceful and non-violent means have been exhausted, law enforcers may employ, as a  last resort only such force as may be necessary and reasonable to prevent or repel an aggression.

 

PEACE KEEPING DETAILS

 

8.         The peace keeping detail shall not be stationed in the picket (or confrontation line) but should be stationed such  that their presence may deter the commission of criminal acts or any untoward incident from either side.  The members of the peace keeping detail shall stay outside a 50 meter radius from the picket line, except, if the 50 meter radius includes a public thoroughfare, they may station themselves in such public thoroughfare for the purpose of insuring the free flow of traffic.

 

 

ARRESTS/SEARCHES AND SEIZURES

 

9.         Arrests and searches in strike/lockout areas shall be effected only on the basis of an existing and valid Warrant of Arrest/Search and Seizure or in accordance with Section  5, Rule 113 of the Rules of Court.  Whenever possible, union representatives (for laborers/workers) or management representatives (for management personnel) shall be requested to facilitate the service of the Warrant of Arrest/ Search and Seizure Order.

 

10.       Any person who, during the strike/lockout, violates any law, statute, ordinance or any provision of Batas Pambansa Blg. 880 or the Public Assembly Act may be arrested and charged accordingly in court.

 

11.       Any person who obstructs the free and lawful ingress to and egress from the employer’s premises in contemplation of Article 264, par. (e) of the Labor Code, as amended, or who obstructs public thoroughfares may be arrested and accordingly charged in court.

 

12.       The DOLE shall immediately be informed by the PNP unit concerned in cases of violence in the picket line.  When arrests are made pursuant to a warrant issued by competent authorities,  the arresting officers shall coordinate with the Leaders/ Representatives of the union and management,  as the case may be, and also inform them of the arrest and the reason thereof.

 

SERVICE OF DOLE, COURT OR LAWFUL ORDERS/WRITS

 

13.              The  service of DOLE, court or lawful order/writs is the primary concern of the DOLE representative, sheriff, representative of the government agency issuing the order respectively.  Before service of the Order, the DOLE  representative, sheriff or representative of the agency issuing the order shall coordinate and dialogue with the leaders of the striking group and the representatives of management and shall inform them of the nature and content of the Order to be enforced including possible consequences of any defiance thereto. Whenever necessary, coordination with  the local government units shall be made by the DOLE and the other concerned agencies issuing  the Order to facilitate the service of Order and to prevent unnecessary intervention.

  

            14.       Orders enjoining any picketing, strike, or lockout  are enforceable strictly in accordance with Articles 218 and 263 of the Labor Code, as amended.

 

15.  Any person who is not a laborer/worker of the company/ business establishment on strike but has joined the striking laborers/workers in their picket or strike, shall be treated by the law enforcers in the same manner as the strikers/picketers.  If such person’s presence in the strike area obstructs the peaceful picketing, the law enforcers shall compel him to leave the area.  The conduct of rallies and marches on issues not relation to the labor dispute shall be dealt with in accordance with the provisions of Batas Pambansa 880.

 

ADMINISTRATIVE JURISDICTION

 

16.       Except as provided in these guidelines the matter of determining whether a strike, picket or lockout is legal or not should be left to DOLE and its appropriate agencies.  PNP elements are enjoined from interfering in a strike, picket or lockout, except as herein provided, for the sole reason that is illegal.

 

17.       Picketing as part of the freedom of expression during the strikes shall be respected provided it is peaceful.  Shanties and structures set-up to effectively

block lawful ingress to and egress from company premises for legal purposes and the free passage in public thoroughfares shall be summarily demolished in accordance with Article 694 of the Civil Code of the Philippines.

 

18.       No personal escort shall be provided to any of the parties to the controversy unless so directed by the competent authority.  Whenever escorts are to be provided to any, the other party shall be informed accordingly.  All escorts shall be in uniform at all times.

 

SOCIALIZING

 

19.       During the pendency of a strike/lockout, the police and  the military personnel concerned are discouraged from socializing with any of the parties involved in the controversy.   These personnel shall not, under any pretext, accept an invitation from management personnel or union officials/personnel involved in the controversy.

 

 

LIAISON

 

20.       Liaison shall be established and maintained with the representatives of DOLE, management and the union in the strike/lockout are for the purpose of maintaining peace and order as well as  to maintain a continuing peaceful dialogue between the parties to the strike/lockout.  If possible, a monthly meeting between the representatives of the PNP, NAPOLCOM and the DOLE concerned sectors shall be conducted to assess and monitor compliance with and implementation of the guidelines.

 

 

ADMINISTRATIVE ACTION

 

21.              All complaints/reports leveled against any personnel of the PNP on the occasion of strike/lockout shall be possessed and resolved in accordance with

the PNP Administrative Disciplinary Machinery pursuant to Chapter III, paragraph  (c) of Republic Act 6975.  For DOLE personnel,  the complaints shall be processed in accordance with the DOLE Manual on the Disposition of Administrative Cases.  Whenever applicable, and if  the evidence so warrants, appropriate disciplinary action shall be taken against the erring personnel.

 

ROLE OF SECURITY GUARDS

 

22.              Conduct of security guards during strikes and lockouts shall be in accordance with Rule 18 of the Implementing Rules of Republic Act 5487.

 

 

 

EFFECTIVITY

 

  23.     These guidelines shall take effect immediately.

Types of Strikes:

Hunger strike:

Workers gather near the factory owner's residence and refuse to eat.

Pen down:

Workers come to work on regular hours but refuse to do any work.

Rule strike:

This type of strike is done by strictly abiding by company rules to the extreme, and there is no space for flexibility.

Support strike:

Supporting workers from another factory also go on strike to support their fellow workers from a related factory.

Gate strike:

Workers gather near the company gates and launch a strike.

Production strike:

Workers produce more industrial items but now in harmony.

Go-slow:

Workers work their usual hours but their productivity is greatly reduced. They deliberately work slower than usual, causing heavy losses and production delays.

Picketing and boycott:

This is the act of surrounding and picketing the owner's residence, and not allowing anyone to enter the premises. Violent picketing is illegal. Boycott is disturbing the normal functioning of the business.

Gherao:

This is the process of blocking a target by encircling it. This may prevent people from approaching the target. The target may be an office, a building entrance, factory, residence, etc. Gherao may involve assault and torture, and gheraos are illegal.

Sympathetic strike:

This is an illegal strike done by workmen, who are fully satisfied by their employment, but support the cause of their fellow unsatisfied workmen.

Lockouts:

This is the process of closing down a place of business due to refusal to work by the employees. Lockouts are different from strikes because lockouts are initiated by the management/employer. Lockouts are:

1. Closure of industrial undertaking due to violence, disputes, etc.

2. Suspension of employment relationship.

3. Lockouts are initiated by the employer, and strikes are initiated by the employees.

4. Lockouts have definite motive.

Lockouts & Economy:

Lockouts damage industry and national economy.