case law update on strike actions Presented by Boitumelo Bogatsu Director – Garlicke & Bousfield Inc.

1. case law update on strike actionsPresented by Boitumelo BogatsuDirector – Garlicke & Bousfield Inc.

2. strike actions in general • guaranteed but also circumscribed in the LRA (S 64, limitation - S65) and the Constitution – (S 23(2)(c), limitation S 36) • Dispute must have been referred to conciliation and remained unresolved • Aim is to apply pressure and not to unduly damage the business of the employer • Demands must be lawful

3. Unilateral variation of conditions of employment CASE 1 - Johannesburg Metropolitan Bus Services (Pty) Ltd v SAMWU & others [2011] 3 BLLR 231 (LC)

4. background • Johannesburg MetroBus Services operates public transport in the City. Commuter transport involves peak and low periods - bus drivers will often not work consecutive hours. • The previous driver system had, over time, resulted in overcrowding of some routes and under-utilisation of buses on other routes. As a result, MetroBus sought revise shifts and routes • Attempts to consult were made but not successful

5. Employer decided to implement the changes • Union served employer with a section 64 (4) notice demanding restoration of a status quo, failing which employees would strike and also declared a dispute alleging unilateral variation of conditions of service

6. Was this a unilateral change? • Revised shift arrangements did not impact on any of the core issues of the collective agreement • Duration of the working day and the spread of hours were unaffected • Senior bus drivers could still choose preferred routes and shifts to perform as per collective agreement • Shift allowances were unaffected

7. Union argued: • Inconvenience: • Depending on the shift worked some bus drivers may have to stay at the depots later than had been previously the case • Some drivers’ knocking off times varied

8. findings • Essence of the job remained unchanged • So did the terms and conditions of employment which related to hours of work and related matters • Employees under an obligation to work shifts • No vested right to or personal right to work a PARTICULAR shift of shift times • Revised shift system fell within the ambit of a work practice • Therefore planned strike unprotected and could be interdicted.

9. CONCLUSION • Work environment is not static • Incremental change occurs on an on-going basis • Changes to HOW employees work constitute work practices and DO NOT relate to terms and conditions of employment (Principle from MAUCHLE (PTY) LTD t/a PRECSION TOOLS v NUMSA & OTHERS (1995) 16 ILJ 349 (LAC) – “the court distinguished between 'terms of employment' on the one hand and 'work practices' on the other, the latter being subject to the employer's prerogative and its introduction not constituting a unilateral change”

10. CASE 2 - RAM TRANSPORT SA (PTY) LTD v SA TRANSPORT ALLIED WORKERS UNION & OTHERS (2011) 32 ILJ 1722 (LC): • Employer entitled as a matter of law to introduce a new work practice – not a unilateral change to terms and conditions of employment • Obiter: “Regrettably, the detailed incidents of violence and damage to property perpetrated by unidentified persons that are recorded in the papers are representative of a blight that has come to characterize the South African industrial relations landscape. This court is always open to those who seek the protection of the right to C strike. But those who commit acts of criminal and other misconduct during the course of strike action in breach of an order of this court must accept in future to be subjected to the severest penalties that this court is entitled to impose”.

11. CASE 3 - TRANSNET LTD v SA TRANSPORT & ALLIED WORKERS UNION & OTHERS (2011) 32 ILJ 2269 (LC) • Background: (first issue) • Similar to Johannesburg Metropolitan Bus Service case • Practice at Kazerne depot • Consultation • Agreement • Implementation of shift system • Variation agreement then entered into – • Shifts would be arranged after consultation • Depending on operational requirements • No mention is made of consent or agreement between the parties • Findings: • Agreement applies and employer may implement shifts • Any allegation that practice still applies in so far as consent is concerned requires that a dispute relating to the interpretation of the variation agreement be referred to the CCMA

12. Vague strike notice? Section 64(1) • Background: (second issue) – Transnet Ltd case supra • Failure to indicate whether strike would be confined to a specific depot or whether it covered all depots – rendering strike notice vague and not compliant with section 64 (1) of the LRA • It did not assist the union to specify the above in a replying affidavit – proposed strike to be determined by reference to the strike notice • Failure meant company not given proper warning to make informed contingency plans for strike

13. Demand not lawful • (Third issue): - Transnet Ltd case supra - Demand for the removal of the area manager: • No evidence to justify demand to discipline; • Therefore a demand for the company to discipline and dismiss for no reason • Demand that an employer do something prohibited by law therefore unlawful – strike unprotected

14. Secondary strikes – reasonable iro effect on primary employer? • SA LOCAL GOVERNMENT ASSOCIATION v SA MUNICIPAL WORKERS UNION (2011) 32 ILJ 1886 (LAC) • Background: • Respondent union – representing municipal workers – called a secondary strike in support of a protected strike by employees in the national and provincial government • Requirement ito S66(2)(c) – question whether the nature and extent of the secondary strike was reasonable in relation to the possible effect it may have on the business of the primary employer

15. LAC found… • Aim of secondary strike to support primary strike to have some impact on the bargaining process between primary employer and union engaged in primary strike • Furthermore, linkage between primary and secondary employers was important – municipalities play a role in activities of national and provincial government and they provide operational and administrative services to the national and provincial government

16. Requirements of section 66 • The secondary strike should have a possible direct or indirect effect on the business of the primary employer and the nature and extent of the secondary strike should be reasonable in relation to the possible direct or indirect effect on the business of the primary employer; • NOT required that secondary employer should exert influence on the primary employer in order to encourage it to compromise to the demands of the workers

17. Service not necessarily essential • SA POLICE SERVICE v POLICE & PRISONS CIVIL RIGHTS UNION & ANOTHER (2010) 31 ILJ 2844 (LAC); • SA POLICE SERVICE v POLICE & PRISONS CIVIL RIGHTS UNION & ANOTHER (2011) 32 ILJ 1603 (CC)

18. What is essential • Defined in section 213 of the LRA • Prohibition to strike - Section 65 (1) (d) (i) of the LRA • Services whose functions are deemed (S71 (10 LRA) so vital that disruption of their activities would endanger: • Life; • Personal safety; or • Health- of members of the public • People engaged in essential service prohibited from participating in strikes and lockouts

19. background… • General public service strike in 2007 – LC • POPCRU members engaged under SAPS – essential service, therefore strike not protected • POPCRU members engaged under the Public Service Act, are mere employees and as such enjoy a constitutional right to strike

20. A wide question at the LAC and CC • Whether the prohibition on strike action in essential services applies to all employees engaged in services so designated, or only to those actually responsible for rendering the services deemed essential • Examined wording of prohibition of strikes and lockouts in section 65 of the LRA – • “persons engaged in essential services” – persons who are engaged in the performance of the functions • Actual service or functions performed by that body that needs to be insulated form being interrupted by a strike

21. CC • Affirmed the LAC’s reasons and also dismissed SAPS appeal • The law as it now stands, is that when it comes to deciding who may strike in essential services, the point of enquiry is whether the employee performs work directly linked to the service that has been declared essential • Restrictive interpretation must be given to protect constitutional right

22. THANK YOU Boitumelo Bogatsu 29th Floor Durban Bay House 333 Anton Lembede (Smith) Street Durban Telephone 031 570 5437 Cell phone 083 637 1839