Imagine you employ 10 000 workers across the country. Two of your non-unionised employees posted in a small town are dissatisfied with their work conditions and refer a dispute to the CCMA. Following a failed attempt at conciliating the dispute, you receive from the two employees a strike notice in terms of section 64(1)(b) of the Labour Relations Act 66 of 1995 (the “LRA”), which requires that at least 48 hours written notice of the commencement of a strike must be given to an employer.

You are not particularly concerned by the threat of this strike, given that it only involves two employees. However, on the day of the strike, most of your 10 000 strong workforce across the country down tools in support of the two employees. Would you have responded differently to the strike notice had you known the extent of your employees’ participation? Perhaps you would have acceded to the demands of the two employees or put into place contingency measures to prevent further disruption in the workplace?

This scenario was one with which the Constitutional Court grappled when it considered the question whether the requirements of section 64(1)(b) of LRA requires every participating employee to a strike to issue a strike notice (either personally or through a representative) in the case of SATAWU & others v Moloto N.O. & another, CCT 128/11 [2012] ZACC 19. The case was a long running and controversial one involving a nine year dispute about the fairness of the dismissals of 64 workers. The dismissed workers had been employed by Equity Aviation (now in liquidation). At the time, SATAWU was recognised as the bargaining agent of all workers in the employ of Equity Aviation, in terms of recognition agreement. Following a failed wage negotiation before the CCMA, SATAWAU issued a strike notice to Equity Aviation, simply stating “we intend to embark on strike on 18 December 2003 at 08h00”. The strike called by SATAWU was protected and complied with the provisions of section 64 of the LRA.

Although the strike was called by SATAWU, a number of members of minority unions and non-unionised employees also engaged in the strike action. In response to the participation of non-SATAWU members in the strike, Equity Aviation issued notices to those workers alleging that their participation in the strike was unlawful (because the strike notice did not cover them) and requesting that they return to work. The non-SATAWU members who failed to heed this request were subsequently dismissed by Equity Aviation for unauthorised absenteeism.

An automatically unfair dismissal dispute was subsequently referred to the Labour Court for determination, in which the union and the workers claimed they had been dismissed for participation in a protected strike. Before the Labour Court, Equity Aviation argued inter alia that only SATAWU members could embark on the strike, as the remaining workers were not bona fide members of SATAWU. This therefore rendered their participation in the strike action unlawful and was therefore unprotected, so the employer contended.

Equity Aviation lost in the Labour Court and in the Labour Appeal Court (albeit in a split decision by the LAC judges) but was vindicated on appeal to the Supreme Court of Appeal (the “SCA”), which held that a purposive interpretation of the provisions of section 64(1)(b) of the LRA required every employee who intends to embark on a strike to notify his or her employer of that intention, personally or through a representative, in order for that strike action to be protected (the SCA felt that this would give effect to orderly collective bargaining, one of the objects of the LRA).

SATAWU in turn appealed to the Constitutional Court on the basis that the purposive interpretation of section 64(1)(b) of the LRA which had found favour with the SCA conflicted with the express language used by the legislature in section 64(1)(b) and unjustifiably limited the employees’ constitutional right to strike, as conferred by section 23 of the Constitution.

The Constitutional Court itself was split on the issue. The minority of the Constitutional Court (4 out of the 9 judges who heard the matter) was of the view that the SCA was right and that SATAWU’s appeal ought to fail because orderly collective bargaining required that the employer be able to determine from a strike notice which employees intended to strike.

The majority of the Constitutional Court disagreed. What weighed heavily in the mind of the majority was that SATAWU was the recognised bargaining agent of all workers employed by Equity Aviation, including employees who were not members of SATAWU. This meant that, in the wage dispute that had been referred by SATAWU to the CCMA, SATAWU had in effect represented not only its own members but also the dismissed strikers who were not its members.

The Court was also influenced by the fact that SATAWU had the majority of the support in the workplace and the recognition agreement concluded between it and Equity Aviation bound the non-member employees, which meant that the dismissed strikers and other employees had in effect been part of the collective bargaining process right from the outset.

The majority of the Constitutional Court considered the language of section 64(1)(b) and found that it contained only one express requirement, that is, that at least 48 hours notice of the commencement of a strike must be given. It went on to find that the language of section 64(1) as a whole suggests that there can only be one strike in relation to one dispute and accordingly there is little logic to suggest that more than one notice in relation to a single strike is necessary. The Court made the point that the right to strike is protected in the Constitution as a fundamental right without express limitation, and was an attempt to redress the inequality in the socio-economic power in employer/employee relations which should not easily be restricted. It therefore concluded that the non-SATAWU members who joined the strike did not have to give their own, separate strike notice in order for their participation in the strike to be protected.

The binding decision of the Constitutional Court (albeit by the slimmest of majorities) is therefore that one strike notice is good for all employees. Provided that the strike notice sets out the issue over which the employees will go on strike with reasonable clarity, a single strike notice is sufficient to enable all employees of the employer to participate in the strike (regardless of whether the employees are all members of the union where it is a union who issues the strike notice).

Planning for strikes therefore just got a little bit more complicated for employers, who can no longer assume that strike notices issued by one part of its workforce will mean that the other part won’t be striking too.