30 September 2009

Strike notices - notification by one for all?

In the recent Labour Appeal Court (the LAC) decision in Equity Aviation Services (Pty) Ltd v SATAWU and Others (Case number JA49/06), the LAC was required to decide whether a strike notice issued by a majority union entitles employees of the same employer who are not members of the union to participate in the majority union's protected strike action. The facts of the matter, which are largely common cause between the parties, are as follows: 

  • On 13 November 2003, SATAWU referred a wage dispute to the CCMA for conciliation
  • On 15 December 2003, the CCMA issued a certificate to the effect that the dispute between the parties remained unresolved
  • On the same day, SATAWU issued a strike notice to Equity Aviation stating that "We intend to embark on strike action on 18 December 2003 at 08h00"
  • The strike commenced on 18 December 2003 and continued for approximately four months
  • At the commencement of the strike, however, it was not only SATAWU members who heeded their union's call for industrial action. A number of members of minority unions and non-unionised employees also took the opportunity to down tools and engage in strike action. When their absence from the workplace became apparent to Equity Aviation, shortly after the commencement of the strike, the employer took the view that only SATAWU members were entitled to embark on protected industrial action, as only they had complied with the pre-strike procedural requirements set out in section 64 of the Labour Relations Act, 66 of 1995 (the LRA)
  • Equity Aviation issued ultimatums for the non-SATAWU members to return to work, but to no avail. The non-SATAWU members were subsequently dismissed for unauthorised absenteeism

In proceedings before the Labour Court (the Court), there was no question that the requirements of section 64(1) were met by SATAWU and that the participation by SATAWU members in the strike action had been protected. It was, however, maintained at all times that the individual employees had not been members of SATAWU and since none of them, or anyone acting on their behalf, had complied with section 64 (1), their participation in the strike was unlawful.

Both of these points were disputed by SATAWU. It was common cause between the parties that in the days leading up to the commencement of the strike, the individual employees had all submitted membership application forms to the employer, in a last minute attempt to join the ranks of SATAWU members, to lawfully participate in the protected strike action as legitimate SATAWU members. Equity Aviation maintained the view, however, that as these applications for membership did not comply with SATAWU's own membership criteria, as set out in its constitution, and that these employees had not become members of SATAWU.

The Court (per Ncgamu AJ) found that the individual employees were not members of the union at the time of the strike. However, the Court held that the LRA did not require the individual employees to be members of the union in order for them to lawfully participate in its strike. Their participation in the strike had been lawful rendering their dismissals automatically unfair.

On 19 May 2009, the majority of the LAC confirmed that the individual employees had not been members of SATAWU at the time of their participation in the strike. The majority judgment held that the notice requirements of sections 64(1)(b) were met in respect of the non-union employees although that they had not served any notice on Equity Aviation prior to their participation in the strike. The majority, in concluding that the non-unionised employees had complied with section 64(1)(b) of the LRA reasoned as follows:

  • The proposition that employees who are not covered by strike notice only acquire the right to strike when they issue a separate notice goes against the grain of Labour Court authorities
  • To require non-union members to issue separate strike notices would be "too technical and constitute an absurdity which the legislature could not have contemplated"
  • The effect of the employer's interpretation would be to limit the right of non-unionised employees to strike in circumstances where the requirements of section 64(1) had been met, without any obvious justification
  • On a proper construction of section 64(1)(b), the employer is only entitled to receive notice of the commencement of a strike but is not entitled to be informed of the identities of the employees who will participate in the strike

Zondo JP, in a minority view, stated that the purpose of the notice requirement contained in section 64(1)(b) was to afford the employer one final opportunity to settle the dispute failing, alternatively, to put contingency plans into place and to brace itself for the imminent strike action. In favouring the purposive approach to interpreting the section, Zondo JP found that an employer cannot make an informed decision as to whether or not it is worthwhile settling a dispute with the trade union unless it knows which trade union, or groups of non-unionised employees as the case may be, intend participating in the strike. Similarly, an employer cannot make preparations to improve the harsh consequences of industrial action or put in place adequate damage control measures unless it has proper notice of who will strike and when, hence the 48 hour notice requirement contained in the section.

Dealing with the majority's finding that for notice to be given on behalf of all workers who intend striking would be overly burdensome, Zondo JP noted that it was never the employer's case that each individual must provide a separate notice. Instead, any person acting on behalf of those who intend to strike could comply with the notice requirement by providing the employer with notice of the intended strike on behalf of the employees. As Zondo JP held, a union need not furnish the employer with a list of names. However, the strike notice must be sufficiently clear to enable the employer to know which employees it covers.

Whatever the views of the majority or minority may have been, it is not the LAC that will have the final word on the matter. In August 2009, Equity Aviation was granted leave by the SCA to appeal against the decision of the LAC. Not unlike other labour disputes that have previously followed this path, perhaps the real question for determination is whether the unsuccessful party emerging from the SCA shall request that the Constitutional Court have the final word on what is arguably one of the most important rights enshrined in section 23 of the Constitution.

Gavin Stansfield,
Director, Employment law

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