ConCourt ponders strike notices

2012-05-10 14:23

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Johannesburg - It is not possible for every single person who intends to go on strike to submit written notice to their employer, the Constitutional Court heard on Thursday.

"If they want to strike, maybe they have no access to a computer, maybe they can't write," said advocate Johan Van der Riet.

He was representing the SA Transport and Allied Workers' Union (Satawu) and 63 non-union employees of Equity Aviation who were fired because they were not covered by a strike notice issued by Satawu.

Van der Riet submitted that Section 64 of the Labour Relations Act (LRA), which requires that notice be given ahead of a strike, did not specifically prescribe that every single employee had to give notice that they were going to strike.

"The Labour Relations Act doesn't say exactly who must now give notice," he said. It said only that notice had to be given.

He submitted that the notice given by Satawu in 2003 covered all employees.

The company had disagreed and had fired the non-union members for unauthorised absenteeism.

Van der Riet said it would also not be possible to get power of attorney from every non-unionised member who wanted to strike to protect them from being fired, or to get signatures on a piece of paper at a meeting from every single person.

Right to strike

He said that forcing every individual to give notice of their intention to strike placed a substantive limitation on their right to strike.

He rejected suggestions that the purpose of the notice was to enable employers to prepare for a strike.

Preparing for a strike was up to the employer, and this information could be gleaned during dispute meetings.

Jeremy Gauntlett, for Equity Aviation - which went into liquidation - said giving notice was a procedural precondition, not a substantive limitation.

The right to strike was an individual right, exercised either individually or collectively.

It was important for an employer to know more about a strike - in this case to know if it would have been at all six of the airports at which the company worked.

"The ultimate aim of a strike is not to achieve a strike, but to achieve labour peace," said Gauntlett.

The Labour Court previously ruled in favour of the workers, finding that the dismissals were unfair because the employees were not required to be members of the union or to give notice to strike. It upheld the ruling on appeal.

However, the Supreme Court of Appeal (SCA) reversed the decision, claiming non-union members should have served separate notices.

The union has challenged the SCA's interpretation of the LRA in the Constitutional Court.

Judgment was reserved.

- SAPA

Read more on:    satawu  |  strikes
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