SCA case has implications for the Labour Relations Act amendments

A case that is currently before the Supreme Court of Appeal (SCA) concerning notice requirements before a strike will have implications for labour legislation amendments, specifically the proposed amendment of section 64 of the Labour Relations Act (LRA), which re-introduces the requirement of a union to conduct a ballot before commencing with a strike.

In 2003, the South African Transport and Allied Workers Union called its members out to strike in support of wage increases. Around 150 employees of Equity Aviation (Equity) who were not SATAWU members joined the strike. Equity took the view that they had not complied with the notice to strike requirements and issued an ultimatum that the employees return to work or face dismissal for unauthorised absence from the workplace. Of the 150 employees, 66 failed to heed the ultimatum and persisted with the strike action. They were ultimately dismissed. SATAWU – claiming that these 66 employees had become their members during the strike action – took the matter to the Labour Court.

The Labour Court held in 2008 that it had not been necessary for the non-union members to issue a separate notice of anticipated strike action as they were covered by the strike notice which had been issued by SATAWU. The Labour Court accordingly found that the dismissal of the 66 employees had been automatically unfair (for a reason relating to their participation in a protected strike) and ordered their reinstatement. On appeal at the Labour Appeal Court, the majority of the court (two judges with one dissenting), agreed with the view of the Labour Court and found that by requiring the non-union members to issue a separate notice, this unduly restricts the constitutional right to strike.

“Both of these courts ruled that the dismissal of those non-union members who had joined the protected strike was automatically unfair, ordering their reinstatement with retrospective effect,” says Gavin Stansfield, Director in the Employment practice at Cliffe Dekker Hofmeyr.

“However,” Stansfield explains, “Equity were subsequently liquidated after having failed in its attempts to renew its ACSA operating licence. They were however granted leave to appeal at the Supreme Court of Appeal which the liquidator ultimately elected to pursue. Up until this point, Cliffe Dekker Hofmeyr had advised Equity on the matter since the strike in 2003.”

“In terms of an Order handed down by the SCA on 30 November 2011, the court held in a unanimous judgment (five judges concurring) that the purpose of the 48 hour notice requirement contained in section 64 of the LRA was two-fold: firstly, it afforded employers one last opportunity to settle the dispute or to brace itself for industrial action and secondly, in respect of the latter, to make the necessary contingency arrangements in order to limit as much as possible the adverse effects of a strike. If employees who had not previously given notice of their intention to strike were permitted to join a strike, this would be contrary to the purpose of the section and would undermine one of the primary purposes of the LRA namely the facilitation of orderly collective bargaining,” says Stansfield.

Overturning the previous decisions of the LC and LAC, the SCA found that the employees had been required to give notice of their intention to strike prior to joining the protected SATAWU strike. Their failure to do so meant their dismissals had been fair.

Naturally SATAWU were dissatisfied with this finding and immediately applied for leave to the Constitutional Court, which matter was argued on 10 May 2012. Judgment has been reserved.

“The current amendments to the Labour Relations Act include the strike ballot, which will make it mandatory for unions to conduct a ballot as to whether or not their members wish to participate in a strike. If this amendment to the LRA comes through as it currently stands – the right to strike will be more highly regulated and it will be the members of a union and not the union itself who decide on whether to strike or not.

“This has implications for the current case, even though this legislation does not apply to the 2003 strike, because it speaks of the importance of every individual having to decide on whether to strike or not.”