Does a Strike Notice Issued in Terms of Section 64(1)(b) of Labour Relations Act Extend to Non-Union Members?

Can employees who are not members of the union that has provided strike notice, join the strike without providing the employer with separate notice to participate in the strike?  Logically, one would believe this not to be the case, but the law is not always about logic, as we know.

One of the procedural requirements a union must comply with prior to embarking upon strike action is to issue a strike notice to the employer. An employer receiving such strike notice can automatically assume that members of the union will be embarking on strike action. But can the employer safely assume that non-members of the union who have not provided any strike notice will also be joining the strike action? This question was answered in 2012 by the Constitutional Court in SATAWU & Others v Equity Aviation Services (Pty) Ltd.

The facts were briefly as follows:

SATAWU was the majority union and sole bargaining agent at Equity Aviation. SATAWU was recognised as representative of all Equity's employees, and not just its members.  In addition, the parties had entered into an agency shop agreement.  A wage dispute arose, which was referred to the CCMA. A certificate of non-resolution was issued, and thereafter SATAWU gave Equity notice of the commencement of its strike.  The strike notice was solely in respect of SATAWU's members. The strike proceeded in accordance with the notice, and 63 employees who were not members of SATAWU participated in the strike. As no required notice had been given in respect of by such employees, Equity regarded their strike as unprotected and dismissed them for unauthorised absenteeism during the strike. The dismissal was challenged.

The dispute winded its way up the structures of the court system. In the Labour Court, SATAWU argued that the clear wording of section 64(1)(b) of the LRA does not require every employee or their representative to give the employer notice of its intention to strike. By reading such a requirement into the section, an employer would have an unfair advantage and the right to strike would be undermined.  Equity argued to the contrary. The Labour Court held that the dismissals were automatically unfair. The matter was eventually resolved by the Constitutional Court and it is this judgment which we now to turn to review as this is the prevailing legal position.

The Constitutional Court found that in light of the recognition agreement and the agency shop agreement, it ought to have been clear to Equity who was going to strike. The court took into account the context in which the right to strike must be interpreted, namely that it is a "right protected in order to redress the inequality in social and economic power in employer/employee relations." A requirement that every employee must give notice to strike would be a restriction on the right to strike. The court held that to "require more information than the time a strike is to commence in the notice, would run counter to the underlying purpose of the right to strike in our Constitution....". The court ultimately chose the interpretation of section 64(1)(b) put up by SATAWU, as the one which least limited the right to strike.

Accordingly, employees who are not included in the referral of a dispute are not required to refer the same dispute to the CCMA in order to embark on a protected strike. Such employees may join the strike once notice is given. In the final analysis, the judgment unfortunately does not make contingency planning any easier for management. Management must therefore put sufficient measures in place, to safeguard its business during the course of the strike, especially as the number of strikers may be a lot more than anticipated.

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