STRIKES Alec Freund

1. STRIKES Alec Freund

2. ISSUES TO BE DISCUSSED: • What constitutes a strike? • Disputes about whether strikes are “protected” • Essential services employees • No work no pay • Interdicts • Dismissals of unprotected strikers • Damages by union for a riot Product/Sub-brand/Capability or Solution Line

3. What constitutes a strike: • NUM v CCMA: • Refusal to return to work until monies owed to employees were paid • NKUTHA v FUEL GAS INSTALLATION: Not a strike where employees’ refusal to work is not in breach of their contracts • LAC overturns NKUTHA and holds that refusal to work was a “strike” as defined in section 213 of the Labour Relations Act • Section 213: “the partial or complete concerted refusal to work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee.” Product/Sub-brand/Capability or Solution Line

4. Must employer know that it is in dispute? • CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY v SAMWU: • Grievance about the introduction of a new shift system • At the time of the referral for conciliation the employer did not know that it was in dispute • Strike nevertheless held to be “protected” • 2007 Labour Court judgment between the same parties overturned Product/Sub-brand/Capability or Solution Line

5. Must employer know that it is in dispute? CITY OF JOHANNESBURG METROPOLITAN MUNICIPALTY v SAMWU: “To the extent that the terms of this judgment [i.e. the 2007 judgment] require, separately from any requirement established by the LRA, the articulation of a demand and its rejection prior to either party invoking the statutory dispute resolution mechanisms, this is not an interpretation that is supported by the wording of the Act. The basic substantive requirements for a protected strike are that there must be a grievance or a dispute in respect of any matter of mutual interest between employer and employee. …there is thus no statutory requirement for the existence of a deadlock before a referral to either the CCMA or a Bargaining Council. …all that need be established as an objective fact is the allegation of a dispute, not its existence.” Product/Sub-brand/Capability or Solution Line

6. Irrelevance of certificate of outcome • GILLET EXHAUST TECHNOLOGY v NUMSA: • Validity of the certificate of non-resolution does not affect the legality of the strike • “A strike will be a protected strike even if there is no certificate of non-resolution of the dispute provided that a period of 30 days from the date of the referral of the dispute to conciliation has lapsed and all other requirements of s64 of the Act have been complied with.” Product/Sub-brand/Capability or Solution Line

7. Irrelevance of certificate of outcome • CITY OF JOHANNESBURG METROPOLITAN MUNICIPALTY v SAMWU: • Commissioner’s ruling that council lacks jurisdiction not relevant in determining where the strike “protected” Product/Sub-brand/Capability or Solution Line

8. Industry-wide strikes • MAPC TRADING v NUMSA: • Protected industry-wide strike. Notice to bargaining council and employers’ organisation but not to company seeking interdict • Company held annual wage negotiations separately • Company fell under the auspices of the bargaining council • Company’s employees “have an interest in the outcome of the wage negotiations” and were entitled to join the strike Product/Sub-brand/Capability or Solution Line

9. PLASTICS CONVERTORS ASSOCIATION OF SA v ASSOCIATION OF ELECTRIC CABLE MANUFACTURERS [2011] JOL 27536 (LC) : Case No: J1212/11 of 18 July 2011 • Applicant employer association not a party to the bargaining council • Industry wage dispute not a “dispute involving a non-party to the council” in terms of the council’s dispute procedures • No failure to comply with council’s constitution • Strike “protected” Product/Sub-brand/Capability or Solution Line

10. Strike over a refusal to bargain or over organisational rights? • DIGISTICS v SATAWU: • Strike over four issues on which agreement not reached during the negotiation of a recognition agreement: • Whether supervisors should fall within the bargaining unit • Appointment of a full-time shop steward • Paid time off for shop stewards • Time period within which collective bargaining would commence • Referral of dispute classified it as a “refusal to bargain” dispute Product/Sub-brand/Capability or Solution Line

11. Strike over a refusal to bargain or over organisational rights? • “Advisory award” issued in terms section 64(2) (“less said the better”) • Impermissible to strike over inclusion of supervisors in the bargaining unit – a “refusal to bargain” issue regarding which no valid advisory award had been issued • Not impermissible to strike over other three demands, which are “organisational rights” issues Product/Sub-brand/Capability or Solution Line

12. Strike over a refusal to bargain or over organisational rights? DIGISTICS v SATAWU: “To consider disputes about organisational rights as disputes about a refusal to bargain, even where a demand for these rights forms an integral part of a recognition battle, would be to muddy a distinction that the LRA clearly makes, and would have the consequence of imposing restrictions on the exercise of the right to strike which are simply not sustainable having regard to the plain wording of the statute.” Product/Sub-brand/Capability or Solution Line

13. Impermissible strike demand does not render the entire strike unprotected • DIGISTICS v SATAWU: • If it is possible to distinguish between the permissible and impermissible demands, the strike is protected once the impermissible demands have been abandoned • UNITRANS FUEL AND CHEMICAL v TAWUSA: • Not entitled to interdict strike merely because impermissible to strike in respect of two of four demands • If Union wishes to proceed with strike, it must sever and abandon the demands on which a strike is not permissible Product/Sub-brand/Capability or Solution Line

14. Strike in response to unilateral change to terms and conditions of employment • Section 64(1) requirements (referral; conciliation; notice) do not apply where employer fails to comply with the requirements of section 64(4) and (5) • Union that refers a dispute “about a unilateral change to terms and conditions of employment” may require the employer to restore the previously applicable terms and conditions of employment (Section 64(4)) • Employer must comply within 48 hours (Section 64(5)) Product/Sub-brand/Capability or Solution Line

15. Strike in response to unilateral change to terms and conditions of employment • JOHANNESBURG METROPOLITAN BUS SERVICES v SAMWU: • Employer implemented a unilaterally revised shift schedule • Strike not protected because the change was found to be no more than a change in “work practice” and not a unilateral change to “terms and conditions of employment”. • SWISSPORT (SA) v SATAWU: • Similar facts but strike protected because new shift roster was in breach of a collective agreement Product/Sub-brand/Capability or Solution Line

16. Striking in support of a demand which is not factually correct UNITRANS FUEL & CHEMICALS v TAWUSA: “[The union] conceded that the allegation may not be factually correct but advanced an argument to the effect that the mere factual basis for the demand need not be correct and that a mere allegation of a possible existence of a fact is sufficient. This is grossly erroneous. If there is no factual basis to allege that the appellant unilaterally did something there is no basis on which a demand can be made that the appellant undo its unilateral action. Quite clearly there is no factual basis for the first respondent to persist with this demand.” Product/Sub-brand/Capability or Solution Line

17. Essential services employees • CITY OF CAPE TOWN v SALGBC: • Union entitled to call non-essential services employees out on strike and to refer same dispute to compulsory arbitration in respect of essential service employees • Same referral for conciliation may suffice, provided it is made clear that it also relates to a potential compulsory arbitration Product/Sub-brand/Capability or Solution Line

18. Essential services employees • SANQOBA SECURITY SERVICES v MOTOR TRANSPORT WORKERS UNION: • Strike “protected” whilst application to Essential Services Committee for service to be declared an “essential service” remains pending Product/Sub-brand/Capability or Solution Line

19. Secondary strikes • Section 66(2)(c) – no person may take part in secondary strike unless: • “the nature and extent of the secondary strike is reasonable in relation to the possible direct or indirect effect that the secondary strike may have on the business of the primary employer.” Product/Sub-brand/Capability or Solution Line

20. Secondary strikes SALGA v SAMWU [2011] 7 BLLR 649 (LAC): “[Section 66(2)(c)] imports a proportionality test. What is required to be determined, as the Court a quo correctly observed, is the reasonableness of the nature and extent of the secondary strike (which inevitably involves an enquiry into the effect of the strike on the secondary employer) in relation to the effect on the business of the primary employer (which inevitably involves an enquiry into the extent of the pressure placed on the primary employer).” Product/Sub-brand/Capability or Solution Line

21. SALGA v SAMWU “Under the heading proportionality, the Court must weigh the effect of the secondary strike on the secondary employer and the effect of the nature and extent of the secondary strike on the business of the primary employer. The sub-section does not required actual harm to be suffered by the primary employer but there must be the possibility that it may… The harm that may be suffered by the secondary employer must be proportional to the possible effect the secondary strike may have on the business of the primary employer.” Product/Sub-brand/Capability or Solution Line

22. SALGA v SAMWU • Secondary strike at municipalities in support of national public sector strike held to be “protected”: • Secondary strike confined to a single day • Secondary strike would have some impact on the bargaining process in the primary strike

23. Secondary strikes • CLIDET NO 957 v SAMWU: • Business of primary employer (a subsidiary of the City of Johannesburg) was to provide persons to render services relating to ticket sales, marshalling etc at bus stations • Secondary employer an independent bus operator providing a bus service to the City of Johannesburg • Secondary employer “not reasonably capable of exerting pressure” on primary employer and strike therefore unprotected • “Where both employers, as they are in the present instance, simply provide services for the benefit of a common client, it is difficult to appreciate how, ordinarily, the one is in a position to influence the other.” Product/Sub-brand/Capability or Solution Line

24. No work no pay • SA ONDERWYSERSUNIE V HEAD OF DEPARTMENT, GAUTENG DEPARTMENT OF EDUCATION: • Department deducted for more days than employees had been on strike and in some cases from employees who did not strike • Department ordered to refund all monies deducted from the salaries of union’s members, pending the compilation of a factually correct database • Thereafter employer would be entitled “to deduct the amounts equal to the days or hours during which the educators were, in fact, striking”. Product/Sub-brand/Capability or Solution Line

25. Strike interdicts • Section 68(2) requires 48 hours’ notice of an application for an interdict, subject to condonation: • Sonqoba Security Services – application could have been dismissed on basis of short service and no application for condonation • Section 68(3) : Five days notice of interdict required where ten days notice of strike given: • Clidet No 957 : condonation held to be permissible and given Product/Sub-brand/Capability or Solution Line

26. Strike interdicts • EKURHULENI METROPOLITAN MUNICIPALITY v SAMWU: • Interim order given restraining essential services employees from joining protected strike and restraining strikers from assaulting others, causing damage, etc • After strike over, employer presses for a final order but this is refused • If a final order had been granted this would: • “…have the prospective effect of imposing a court order barring such conduct on all future occasions when it cannot be said on any reasonable basis that such possible future events were live issues at the time the matter was argued on the return day.” Product/Sub-brand/Capability or Solution Line

27. Strike interdicts • SWISSPORT SA v SATAWU: • Strike during 2010 FIFA world cup • “The economic and logistical harm inflicted by protected strike action are part and parcel of the power play inherent in collective bargaining. If a trade union chooses to exact maximum leverage by timing that maximally inconveniences the employer – and even members of the public – it may seem to be unreasonable, but it is not unlawful.”

28. Dismissals of unprotected strikers • MASELELA v REINHARDT TRANSPORT: • Ultimatums clear and unambiguous • Sufficient time given to comply • Not a strike justified by intransigence on the part of the employer • Absence of disciplinary hearings did not render dismissals unfair: “[t]he circumstances may even be such that the combination of ultimata (depending upon how they are phrased), meetings and other attempts to bring striking employees to their senses could adequately serve the purpose of providing a fair opportunity to make representation as to why employees should not be dismissed.”

29. Dismissals of unprotected strikers SACTWU v MEDITERRANEAN TEXTILE MILLS: • Late notification by the employer to employees that it would not be paying annual bonus provided for in bargaining council agreement and would apply for an exemption • Management refused to address striking employees • After a warning and an ultimatum employees dismissed • Dismissal held to be unfair NUM v CCMA: • Strike in response to failure to pay contractually due wages • LAC holds dismissal unfair (overturning arbitrator’s award)

30. Damages payable by union for a riot GARVIS v SATAWU: • Constitutionality of section 11(2)(b) of the Regulation of Gatherings Act 205 of 1993 • Union’s appeal to SCA fails • SCA rejects argument that section will have a “chilling effect” deterring marches and protests for fear of financial ruin: “The chilling effect that the provisions of the Act should rightly have is on unlawful behaviour that threatens the fabric of civilised society and which undermines the rule of law. In the past the majority of the population was subjected to the tyranny of the State. We cannot now be subjected to the tyranny of the mob.”