Court says non-union members can join strikes

Published Sep 25, 2012


Non-union members and minority unions could legally go on strike if a union that was recognised in a workplace had issued the requisite 48-hour notice under the Labour Relations Act (LRA), the Constitutional Court held on Friday, reversing a judgment by the Supreme Court of Appeal (SCA).

In a majority judgment, the court held the right to strike and the specific purpose of the notice provision in terms of section 64 (1) (b) of the LRA required nothing more than 48 hours notice in advance of a strike. It found that to hold otherwise would place a greater restriction on the right to strike of non-unionised employees and minority union employees than on majority union employees.

It held further that this interpretation of the relevant provision conformed better with the spirit and objects of the constitution’s Bill of Rights.

Equity Aviation Services was an aviation logistics company that provided services on the runways and ramps of the major South African airports.

In 2003, the SA Transport and Allied Workers Union (Satawu) referred a wage dispute with Equity to the Commission for Conciliation, Mediation and Arbitration (CCMA) but no resolution was reached.

Satawu served Equity with a strike notice, but not only union members embarked on the strike; other employees who had not complied with the LRA provision also participated.

Equity regarded their action as unlawful and dismissed them. The fired employees referred their dispute to the CCMA and when it was not resolved, sued in the Labour Court for an order declaring their dismissal unlawful and asking for relief. The Labour Court found in their favour.

It held that the dismissals were automatically unfair because the dismissed employees were not required to be members of a union or to give notice themselves in order to strike lawfully. Equity appealed to the Labour Appeal Court, which again found in favour of the workers.

On appeal to the SCA, the court found that to give effect to the LRA provision, an employee must give sufficient notice of the extent of the strike to the employer so that it could make informed decisions about whether to accede to the workers’ demands or to make adequate preparations for its business while strike action endured. All employees who proposed to strike had to give notice through a representative or personally.

If staff were not members of a union, the union’s notice did not suffice, the SCA held.

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