Consolidated Employers Organisation is at the forefront of protecting employer interests. These articles are geared to ensure that businesses are compliant and are aware of what to do when they are confronted with challenging workplace issues. Consider the situation when in the near (or maybe not so near) and uncertain future that the National Lockdown has ended, and staff start to slowly trickle back to the workplace, health and safety are going to be issues of paramount importance.
An employer has an obligation to ensure that a workplace is safe and free from illness, an employer, according to section 8 & 9 of the Occupational Health and Safety Act 85 of 1993 (hereafter referred to as the OHSA) must be proactive and ensure safety in a ‘reasonably practicable’ way to ensure no harm or injury comes to employees. Likewise, employees have a complementary duty to ensure that all health and safety measures are adhered to under section 14 of the OHSA.
Consider a situation where employees insist that co-employees need to be tested or perhaps your clients and customers insist that employees are free from any illness before rendering services, can an employer implement mandatory testing? What if that testing is invasive? And if so, what are the rights of employees who resist such testing? Can employees embark on a protected strike to oppose mandatory testing?
The court decided these difficult questions in the case of Pikitup (SOC) Ltd v SA Municipal Workers Union on behalf of Members & others (2014) 35 ILJ 983 (LAC) which considered whether the employers’ decision to implement mandatory blood alcohol testing for drivers could give rise to a protected strike. The employer argued that it was within its discretion to implement policies as per the OHSA and the mandatory blood alcohol testing was one such policy which would aid in ensuring a safe workplace. The union, on the other hand, argued that such testing would be invasive as it involved the drawing of blood and employees surely had a right to make decisions concerning invasive blood testing. The critical question the court had to answer was whether the employees could go on strike over health and safety issues.
The court concluded that health and safety issues can be determined to be matters of mutual interest which can be dealt with through strike action. In other words, mandatory blood testing is a matter that is of interest between the employer and employees. If workers demand that the employer not implement such testing, they are more than welcome to withdraw their labour in support of this demand until the employer decides to cease with the testing or to find different ways to test employees. The court in the Pikitup case determined that striking over health and safety issues is protected.
Employers may be faced with a similar position that Pikitup found itself in, that is, if the employer initiates a mandatory testing programme, employees are well within their rights to down tools in order to prevent the employer from requiring mandatory testing. As always, the best advice is that employers and employees need to gather around the table and discuss what is the best solution that will be mutually beneficial. South African Labour Law places a premium on collective agreements, the only way to achieve this is through robust and healthy dialogue.
If you as the employer are faced with such a situation, and the union or employees have referred a case to the CCMA concerning matters of mutual interest, please contact your CEO representative so that we can prepare and effectively deal with this issue. Enough time has been lost already, let us work together to ensure that businesses are functioning optimally, and there are no unnecessary work stoppages.
Article by: Shakti Jainarain
Senior Dispute Resolution Official – Durban