THE Constitutional Court ruled on Friday that not all employees with intention to strike were required to give a notice to the employers.
The judgment brings certainty on the correct interpretation of section 64(1)(b) of the Labour Relations Act, which states every employee has the right to strike if at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer.
There have been differing judgments in the Labour Appeal Court and Supreme Court of Appeal on this particular section of the Labour Relations Act.
In the case on Friday, 63 employees of Equity Aviation not affiliated to any labour union participated in a strike, along with members of the South African Transport and Allied Workers Union (Satawu).
At the end of the strike, Equity dismissed the 63 employees for unauthorised absence from work during the strike.
Satawu’s members had given a notice to strike in December 2003. Workers belonging to Satawu were not dismissed as their strike was deemed as protected.
The dismissed employees challenged the lawfulness of their dismissal on the basis that their dismissal was automatically unfair.
The Labour Court decided the matter in favour of the dismissed workers and ordered their reinstatement.
Equity’s appeal against the decision was dismissed by a split Labour Appeal Court decision but an appeal to the Supreme Court of Appeal (SCA) was successful.
The SCA held that the purpose of the strike notice was to warn an employer of the impending power play to enable it to make informed decisions. It held that a separate notice must be given by non-union members in order for their strike to be protected.
The Constitutional Court was also split into two camps on the matter, with the majority holding that the right to strike and the specific purpose of the notice provision in the Act required nothing more than 48 hours’ notice in advance of a strike. The judgment declared that the dismissal of the workers was automatically unfair.
"It is common cause that the union and Equity Aviation Services entered into a recognition agreement in terms of which the union was the recognised bargaining agent of all the workers employed by Equity Aviation," the court said in the majority judgment by Acting Deputy Chief Justice Zak Yacoob and Justices Johan Froneman and Bess Nkabinde.
They said the union and Equity Aviation also entered into an agency shop agreement, the effect of which was that all employees who were not union members had agency fees deducted from their wages every month, equal to the union membership fees, and which were paid to the union.
The agreement also meant, for the purposes of wage negotiations, the union represented not only its own members but also the dismissed strikers.
"A collective agreement also binds employees who are not members of the union if they are identified in the agreement, if it expressly binds them and if the union has majority support in the workplace."
They said it was within this context that the strike notice issued on the union’s letterhead on December 15 2003 must be read.
"It was a notice that followed upon a process of collective bargaining where the union represented not only its own members but also minority union and non-unionised members in the same wage dispute."
However, the minority judgment by Acting Judge Mandisa Maya held that there was no reason to interfere with the decision of the SCA.
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