ConCourt ponders strike notices

2012-05-10 14:23

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.

  • VWhitepaw - 2012-05-10 14:55

    All I can say is... Don't be silly. How many times does they wake up the morning and say "Eish. We strike to day" I'm sure there is a bit of planning involved. I'm all for stiking but to believe that there right to strike is affected by simply giving notice is like me believing I would win the without a ticket. Excuses like "They can't write" or "Dan't have a computer" is weak. It takes 5 minutes to write and you can ask someone a day or two before the time. I believe this is an empty excuse, as sorry I am that they lost their job.

      ludlowdj - 2012-05-10 15:33

      It has never been a requirement before, so your entire argument is as futile as the companies action in firing them. A simple study of strikes over the last 5 years will show that no-one who is a non union member who strikes in sympathy with union members have ever been fired, this makes this an unfair labor practice. The only outcome is that a new law or amendment must be written that requires separate notices going forward. However to try get a ruling now and then backdate it is unlawful, something our judiciary is well aware of, but then again we live in a country where he who has money to throw around wins, as has become evident in all our high profile cases.

      VWhitepaw - 2012-05-10 15:42

      In the report... "The Labour Relations Act doesn't say exactly who must now give notice, he said. It said only that notice had to be given." So it's already law. But I was talking about this part. "If they want to strike, maybe they have no access to a computer, maybe they can't write," They know they are going to strike a few days before the time. Enough time to seek out someone to help them with the notice.

  • Wimpie.Haefele - 2012-05-10 15:14

    What about the rights of the employer. If he is not aware of how many people are striking he can not make plans to make sure the business do not go under and that work can continue and don't have to close its doors for good and then all employees will loose their jobs.

      Wimpie.Haefele - 2012-05-10 15:28

      People complain about unemployment but unions don't give a d@mn if a business have to close down because of a strike action and all employees lose their jobs.

  • michael.a.devilliers - 2012-05-10 15:18

    Just my opinion but strikes are starting to be used as a way to hold companies hostage to often unreasonable union demands. I'm not denying that some strikes are legitimate and are used as a last resort but too many are becoming the first resort and a way to hold companies ransom to their demands.

  • alexander.lombard - 2012-05-10 15:23

    The Union she has a computa. The union must know who they are representing in the strike and therefore it should be their responsibility as organisers on behalf of the employee to give the notice to the employer. Otherwise ask the company you work for to speek with the HR representative or shop stuart to asist with the letter or most probably short note. In this case workers just stayed away and did not tell anyone they also intended to join the proposed strike.

  • Jamie - 2012-05-10 15:31

    I think i would have more sympathy for workers who strike in south africa if they didn't use it as a blackmailing tool every year. Yes there is a place for a strike if staff are being mistreated, or under payed (which can be argued is the case in SA) but every year? Come on, it seems a bit excessive! It is almost as if the unions try to find ways to ensure they keep getting their subs from their members. They start off with an unrealistic demand for a pay rise, and when an employer says that's ridiculous they say to their members look the rich are robbing you lets strike. If they were serious about getting what is best maybe more arbitration would be done before members are forced to give up their salary. At what stage do the staff lose when they compare lost wages to the increase they get, or do the unions reach into their back pocket and foot the wage bill? I would be surprised if this was the case, but maybe we need to say, if a union is encouraging a strike they have to show the financial viability of it to some one like the CCMA before hand, so that people are not ripped off by them. Where is Margaret Thatcher when you need her?

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