CAN EMPLOYEES PARTICIPATE IN A STRIKE IF THEY WERE NOT PARTY TO THE REFERRAL?

If you are not a member of a trade union at all, or you are a member of  another trade union who did not refer a dispute about a matter of mutual interest, can you strike and will it be a protected strike?

This is one of the questions the Constitutional Court had to decide in 2012.

In the  matter of  SATAWU v Moloto, the Court  was seized with the interpretation of section 64(1)(b) of the Labour Relations Act 66 of 1995 (Act). The applicants seek leave to appeal against the judgment of the Supreme Court of Appeal in Equity Aviation Services (Pty) Ltd v South African Transport and Allied Workers Union and Others,2 which construed the provisions of section 64(1)(b) of the Act as obliging every employee who intends to embark on a strike to notify his or her employer of that intention personally or through a representative for the strike action to be protected.

The relevant provision of the Constitution section 23(2)(c)  grants every employee the right to strike.

The right, which is granted without any express limitation in the Constitution, is given content and regulated by the Act in fulfillment of one of its primary objects.To that end, the Act provides substantive limitations and procedural pre-conditions for the exercise of the right to strike and the employer’s corresponding recourse to lock-out.

Section 64 reads in relevant part:

(1) Every employee has the right to strike and every employer has recourse to lock-out if—

(a) the issue in dispute has been referred to a council or to the Commission as required by this Act, and—

(i) a certificate stating that the dispute remains unresolved has been issued; or

(ii) a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the council or the Commission; and after that—

(b) in the case of a proposed strike, at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer, unless—

(i) the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or

(ii) the employer is a member of an employers’ organisation that is a party to the dispute, in which case, notice must have been given to that employers’ organisation; or

(c) in the case of a proposed lock-out, at least 48 hours’ notice of the commencement of the lock-out, in writing, has been given to any trade union that is a party to the dispute, or, if there is no such trade union, to the employees, unless the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or

(d) in the case of a proposed strike or lock-out where the State is the employer, at least seven days’ notice of the commencement of the strike or lock-out has been given to the parties contemplated in paragraphs (b) and (c).” (Emphasis omitted.)

Other relevant provisions are found in section 67 of the Act which, in addition to defining “protected strike” and “protected lock-out”, provides various forms of immunity for participation in these actions where the relevant requirements have been met.

Protection for strikers cuts across a wide spectrum and ranges from delictual and contractual immunity to protection from dismissal, barring fair dismissal for misconduct or operational reasons, and immunity from criminal prosecution for contravention of the Basic Conditions of Employment Act or the Wage Act.

 The consequences of non-compliance with the requirements of “protected” industrial action, which include the grant of an interdict against the action and payment of compensation for loss attributable to the action, are contained in section 68 of the Act.

In terms of Section 64, Subsection (1)(a) allows the parties room to negotiate a settlement of their dispute through conciliation before the employees exercise their right to strike, whereas subsection 1(b) requires a warning to the employer of an imminent strike in the event that conciliation fails. As I see it, it would make no practical sense to require employees who were affected by an issue in dispute to undertake the same process in respect of the same dispute when conciliation had already failed. In any event, “issue in dispute” in relation to a strike or a lock-out is defined in the Act – it means “the demand, the grievance, or the dispute that forms the subject matter of the strike or lock-out” – whereas the definition of strike is couched in wide, non-specific terms.

The Court thus found that it is not necessary for non-unionised employees, and for that matter any other employee who is not a member of the union who referred the dispute, to give notice of a strike.

Furthermore, any employee of that employer where the dispute exists, even if  they have not been part of the conciliation, or have been joined as a party to the dispute, may participate in a strike, and it will be considered a protected strike.

SATAWU v Moloto file.

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