UNDERSTANDING SECTION 77 OF THE LRA
Socio-economic protest action
Section 77 of the Labour Relations Act gives workers the right to take part in protest action to promote or defend their socio-economic interest and be protected against dismissal and other disciplinary action. It gives Nedlac, as a policy-making body made up of Government, Business, Labour and the Community, the task of bringing the parties together to attempt to resolve the reasons for the protest action.
In considering whether a notice is valid under Section 77, one of the most important factors is whether it relates to a socio-economic interest, rather than a mutual interest. Matters of mutual interest (generally wages and conditions of service) between employees and employers do not fall within the scope of section 77. Disputes on these interests are dealt with through internal procedures, at a bargaining council, or through the CCMA.
Issues that can be tabled as reasons for socio-economic protest action usually relate to some aspect of public policy. They can affect more than one sector. This is why they are considered at a senior, and national level by the parties at Nedlac, who are involved with development and implementation of public policy.
The provisions of Section 77
The body tabling the Section 77 notice must be a registered trade union or federation.[Section 77(1)(a)]
The notice of protest action has to be on a specific form, and must contain the reasons for and nature of the intended action. [Section 77(1)(b)]. This does not include specifying a date of intended action, as this might undermine the process of consensus-seeking.
The matter(s) giving rise to the notice must be considered in Nedlac, or another appropriate forum, in which the parties concerned are able to participate, in an attempt to resolve it (them). [Section 77(1)(c)]
Thereafter, if attempts at resolution fail, the union or federation must serve a second notice on Nedlac of its intention to proceed with the protest action. This second notice must be served on Nedlac at least 14-days before the protest action starts. [Section 77(1)(d)]. One of the reasons for this fairly substantial period, is that the cost of this type of protest action to the economy is usually greater than that of a strike and parties must be given adequate warning.
If the affected parties are of the view that procedures have not been followed, either substantive or procedural, they can apply to the Labour Court for a determination. The Labour Court would have to decide on whether there has been compliance with the Act.