Strikes

and Lockouts

Halton Cheadle

Outline• Strike notice• Issue in dispute

– Matter of mutual interest– Whether a dispute exists– Agreement to refer to arbitration– Lawfulness

• Right to strike• Unprotected strikes

– Ultimatums– Collective guilt– Essential services– Jurisdiction on strike dismissals

Strike notice

• Strike notice to state employers– reason for 7 days notice to a state employer is because the state

provides essential and necessary services to the public– a municipality is a state employer

City of Matlasona v SALGBC • Factors to determine whether delay requires a fresh notice

– whether union initially embarked on a strike– the length of the delay

City of Matlasona v SALGBC

Strike notice

• A strike notice must be sufficiently clear in articulating the demands so that an employer can take an informed decision to resist or accede

‘Orderly collective bargaining requires that an employer is entitled to be made aware of the full package of demands, and that it be placed in a position to assess how its interests should be best pursued …’

SAA v SATAWU*

*Unreported, Labour Court, Case no J2166/09, 19 October 2009

Strike notice

• SAA v SATAWU– 6 referrals over 11 months

– Issues: retention bonuses, outsourcing a call centre, use of labour brokers, inconsistent implementation of discipline, removal of a manager for assault, unfair treatment of shop stewards, unilateral reduction of cabin crew complements, refusal to take disciplinary action against a manager, removal of the CEO

– 4 strike notices 2 of which were withdrawn over a month

– Strike notice: refusal to lawfully remove a manager ‘as well as refusing to execute petitions and grievances’

– Too vague

Strike notice• Must the strike notice state who will go on strike?

– Majority of LAC held that:• it does not have to state who will be going on strike• non-members can strike in support of a trade union

demand

– Minority held that:• the notice issued by the union referred to ‘we’ and

therefore only members could strike• in any event, notice should include who is going on strikeEquity Aviation v SATAWU (unreported, LAC, JA49/06)

Issue in dispute

• whether a matter of mutual interest– agreements between a province and a municipality not a matter

of mutual interestCity of Matlosana v SALGBC

• whether regulated by a collective agreement– agreement with majority union in a BC– agreement not yet extended by Minister– until agreement extended, a minority union that did not sign the

agreement entitled to strikeBravo Group Sleep Products v CEPPWAWU

Issue in dispute

• Whether a dispute exists

SBV Services (Pty) Ltd v MTWUSA• Whether issue in dispute includes related demands

– the issue in dispute should not be literally interpreted– a court should look at the substance of the dispute and not

merely at the form in which it was presented– a court should recognize that disputes may be modified in

negotiations and conciliation

NUMSA v Edelweiss Glass & Aluminium

Issue in dispute

• Agreement to refer to arbitration– dispute referred to CCMA– CCMA decides that dispute should be referred to private

arbitration– Union issues a strike notice– Labour Court interdicts the strike on the basis that the CCMA did

not have jurisdiction

De Beers Consolidated Mines (Pty) Ltd (Venetia Mine) V NUM– But is that correct?

Matter of mutual interest

• A demand for a 20% shareholding constitutes a matter of mutual interest– courts have always given a wide interpretation to the concept – ‘well

being of the trade’– courts prefer a generous interpretation if the other interpretation may

limit a constitutional right– concept is about the creation of new rights or the diminution of existing

rights– trust to enable the ESOP to participate in BE established by a collective

agreement– share incentive schemes a common feature of management contracts

Itumele Bus Lines v TAWU & others**(2009) 30 ILJ 1099 (LC)

Matter of mutual interest

• Unilateral change to terms and conditions constitutes a matter of mutual interest– a technological change to machinery that leads to greater

productivity does not constitute a unilateral change if it does not affect remuneration, time or effort

– real objective of the strike was to secure an increased bonus for the increase in productivity therefore strike interdicted

– it may not be a unilateral change but the real objective remains a matter of mutual interest

Nampak Metal Packaging Ltd t/a Bevcan v NUMSA**(2009) 30 ILJ 1610 (LC)

Unilateral alteration of terms and conditions

• Unilateral reduction in cabin crew complement

• Whether an alteration of terms and conditions

• No evidence of any changes to contractual terms eg hours, remuneration etc

• Not an alteration of terms and conditionsSAA v SATAWU

Right to strike

• Waiver– when can a collective agreement waive the right to strike?

• does it waive or preclude the right to strike?• is the waiver in the public interest?• does it clearly waive the right?• if it does not, any ambiguity should be interpreted against the

purported waiver

SBV Services (Pty) Ltd v MTWUSA

Unprotected strikes

• Factors in determining the fairness of dismissing strikers in unprotected strikes– failure of the employer to engage the union on its restructuring

process– the form in which the ultimatum was given– the length of the strike– the extent of economic loss– whether capable of solution

Professional Transport Workers Union v Fidelity Security Services

Unprotected strikes

• Factors in determining fairness of dismissal– reasonableness of the union and strikers’ belief that the strike

was protected– failure to engage seriously with the union or to approach the

court to determine the legality of the strike• particularly when it regarded the strike to be legal at its

inception– ‘in industrial relations terms, folly of the highest order’

NUMSA v Edelweiss Glass & Aluminium (Pty) Ltd*

*Unreported, Labour Court, JS 795/03, 5 June 2009

Unprotected strikes

• Factors in determining fairness of dismissal– belligerent refusal to return to work despite ultimatums and union

intervention– failure to attend disciplinary enquiry because of the interdict

preventing access to the premises ‘disingenuous’– the fact that a distinction was made between those who had

voluntarily participated and those who had been forced to do so did not amount to inconsistent treatment

SATAWU v Maxi Strategic Alliance (Pty) Ltd* * (2009) 30 ILJ 1610 (LC)

Ultimatums

• The failure to respond to an ultimatum may lead to a fair dismissal

NUMSA v SA Truck Bodies (Pty) Ltd• Not sufficient to issue an ultimatum telephonically

Professional Transport Workers Union v Fidelity Security Services

Collective guilt

• An employer is required to identify who participated in an unprotected strike – it cannot just dismiss them without an enquiry

TAWASU obo Tau & 305 others v Barplats Mine

Essential services

• Application made to Essential Services Committee for a determination that SARS is an essential service but not determined

• Union gives notice of its intention to strike• Employer applies for an interdict• Interdict refused because regulations make provision for an

urgent procedure in the ESC

SARS v NEHAWU *

* unreported, Labour Court, J 1897/09, 7 September 2009

Strike misconduct

• Assaults, intimidation, incitement and trespass in the course of a protected strike

• Normally constitutes grounds for dismissal• Employer allowed the workers to continue to

work for 3 weeks after the strike ended before instituting disciplinary proceedings

• ‘Trust relationship not destroyed’ and the ‘possibility of counseling might correct behaviour

NUMSA obo Hlela v Jasco Special Cables

Jurisdiction

• Whether jurisdiction is determined by the manner the employee characterizes the dispute or by the true nature of the dispute– Dispute referred to BC as a misconduct dismissal. – Employer contended that the dismissal was for participating in

an unlawful strike and therefore that the BC did not have jurisdiction to hear the dispute

• Jurisdiction determined by the true reason– Although employees charged with misconduct, the misconduct

related to participation in an illegal strikeChuma v Gifio Engineering (Bop) Ltd (2009) 18 MEIBC 1.1.2