Imagine that an employer employs 10,000 workers across the country. Two of its non-unionised employees posted in a small town are dissatisfied with their working conditions and refer a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). Following a failed attempt at conciliating the dispute, the employer receives from the two employees a strike notice in terms of Section 64(1)(b) of the Labour Relations Act (66/1995), which requires that at least 48 hours' written notice of the commencement of a strike must be given to an employer.
The employer is not particularly concerned by the threat of this strike, given that it involves only two employees. However, on the day of the strike, most of its 10,000 strong workforce across the country down tools in support of the two employees. Would the employer have responded differently to the strike notice had it known the extent of its employees' participation? Would it perhaps have acceded to the demands of the two employees or put in place contingency measures to prevent further disruption in the workplace?
This scenario was one with which the Constitutional Court grappled in SATAWU v Moloto NO,(1) when it considered the question of whether Section 64(1)(b) requires every participating employee to a strike to issue a strike notice (either personally or through a representative). This was a long-running and controversial case involving a nine-year dispute about the fairness of the dismissal of 64 workers. The dismissed workers had been employed by Equity Aviation (now in liquidation). At the time, the South Africa Transport and Allied Workers Union (SATAWU) was recognised as the bargaining agent of all workers in the employ of Equity Aviation, in terms of the recognition agreement. Following a failed wage negotiation before the CCMA, SATAWU 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 Section 64 of the act.
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.
Subsequently, an automatically unfair dismissal dispute was referred to the Labour Court for determination, in which the union and the workers claimed that they had been dismissed for participation in a protected strike. Before the Labour Court, Equity Aviation argued (among other things) that only SATAWU members could embark on the strike, as the remaining workers were not bona fide members of SATAWU. Their participation in the strike was therefore unlawful and 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 appeal court judges). However, it was vindicated on appeal to the Supreme Court of Appeal, which held that a purposive interpretation of Section 64(1)(b) requires every employee who intends to embark on a strike to notify his or her employer of that intention, either personally or through a representative, in order for that strike action to be protected (the Supreme Court of Appeal felt that this would give effect to orderly collective bargaining, one of the objects of the Labour Relations Act).
SATAWU in turn appealed to the Constitutional Court on the basis that the purposive interpretation of Section 64(1)(b) which had found favour with the Supreme Court of Appeal conflicted with the express language used by the legislature in Section 64(1)(b) and unjustifiably limited employees' constitutional right to strike, as conferred by Section 23 of the Constitution.
The Constitutional Court was split on the issue. A minority (four out of the nine judges who heard the matter) took the view that the Supreme Court of Appeal was right and that SATAWU's appeal ought to fail because orderly collective bargaining requires that the employer be able to determine from a strike notice which employees intend to strike.
The majority of the Constitutional Court disagreed. What weighed heavily in the minds 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 non-member employees, which meant that the dismissed strikers and other employees had effectively 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 contains only one express requirement – that at least 48 hours' notice of the commencement of a strike be given. It went on to find that the language of Section 64(1) as a whole suggests that there can be only 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 socio-economic inequality in employer/employee relations, which should not easily be restricted. Therefore, the court 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 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 they are all members of the union, where it is a union which issues the strike notice).
Planning for strikes has thus become more complicated for employers, which can no longer assume that strike notices issued by one part of their workforce will mean that the other part will not be striking too.
For further information on this topic please contact Stuart Harrison or Pranisha Maharaj at ENS-Edward Nathan Sonnenbergs by telephone (+27 21 410 2500), fax (+27 21 410 2555) or email (firstname.lastname@example.org or email@example.com).
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