Road Accident Fund v National Union of Metalworkers of South Africa (NUMSA) and Another (J283/2024) [2024] ZALCJHB 201; (2024) 45 ILJ 2059 (LC); [2024] 11 BLLR 1183 (LC) (13 May 2024)

THE LABOUR COURT OF SOUTH AFRICA

AT JOHANNESBURG

Reportable

Case no: J283/2024

In the matter between: Road Accident Fund First Applicant and National Union of Metalworkers of South Africa (NUMSA) The Individual Respondents Listed in Annexure “A” to the Notice of Motion First Respondent Second Respondent

Heard: 4 April 2024

Delivered: (This judgment was handed down electronically by emailing a copy to the parties. The date of delivery of this judgment is deemed to be 13 May 2024).

Summary: (Return day – unprotected strike interdict – numerous in limine

objections raised relating to: union’s authority to act; application of s 189A of the LRA; standing of union to call for strike action on behalf of employees allegedly not qualified to be its members –

Alleged defective strike notice - Strike notice devoid of factual detail relating to the demands - notice failing to identify clearly the union’s demands in circumstances where the union had made a press statement encompassing a wider range of demands than those referred to conciliation – Rule amended -Costs ).

JUDGMENT

LAGRANGE, J

Introduction

[1] This is the return day of an interim strike interdict issued on 13 March 2024. The return day was originally 30 May 2024, but the respondents, NUMSA and the individual employees, cited collectively as the second respondent, anticipated the return day on 4 April 2024 under Rule 8(10) of the Labour Court Rules.

[2] The interim order read:

2.1 A Rule Nisi is issued calling upon the First and Second to Further Respondents (Respondents) to show cause, if any, on 30 May 2024 why an Order should not be granted in the following terms:

2.2 Declaring the strike action which the Respondents propose to undertake on 14 March 2024 in support of their demands and/or grievances concerning the unilateral change to terms and conditions of employment, to be declared unprotected in terms of the Labour Relations Act 66 of 1995 as amended.

2.3 Interdicting and restraining the Respondents from inciting,

encouraging, participating in or otherwise acting in furtherance of the strike action in relation to the aforesaid demands and/or grievance.

2.4 Ordering that the provisions of paragraphs 1.1. and 1.2. are to operate with immediate effect pending the return date of this application.

2.5 The respondents are granted leave to anticipate the return date within 48 hours.

2.6 Service of this order to be effected on the first respondent personally. With regards to the second and further respondents, service of the order is to be effected by way of advertising on the notice board within the applicant’s premises and offices.

[3] The applicant (‘the RAF’) seeks confirmation of the rule on the basis that it alleges:

3.1 The strike notice issued on 27 February 2024[1] is defective in several respects in that the strike notice is lacking in certain respects, namely:

3.1.1 The strike notice is defective in that it does not contain the time and place on which the strike would commence.

3.1.2 The notice refers to a different dispute than the one which was referred to the CCMA and for which a certificate of non- resolution was issued.

3.1.3 The strike notice does not specify the employees covered by the strike.

As a result of these defects, the RAF was not able to properly plan for the strike and decide whether to desist or accede to the demands.

3.2 The first respondent, NUMSA, lacked locus standi to recruit and collectively bargain in the Applicants’ workplace, because the Constitution of the first respondent does not permit it to recruit members in the social security sector. The RAF operates in the social security sector and not the Transport sector[2].

3.3 The dispute which was referred to the CCMA on 14 July 2023 by NUMSA alleging a unilateral change to terms and conditions of employment (section 64(4) of the LRA), does not concern a unilateral change to terms and conditions of employment of employment, but rather amounts to change of work practice.

3.4 The true nature of the dispute and the main reason for the interdicted strike of 14 March 2024 was stated in the press statement issued by the first respondent and not in the strike notice.

3.5 The first respondent did not ballot before deciding to go on strike. The RAF did not pursue this point on the return day in view of the provisions of section 67(7) of the LRA.

3.6 The deponent of the answering affidavit is not authorised by the first respondent’s constitution to defend or institute legal proceedings on behalf of the respondents.

3.7 In terms of section 189A of the LRA in respect of the dispute referred to the CCMA on 14 July 2023, the union could not embark on strike action arising from a failure in the consultation process, without because the RAF halted the placement of employees pursuant to that process.

[4] In Numsa’s notice anticipating the return date of the rule, it sought an order the rule be discharged on the basis that the strike action amounts to protected action. It also sought, ‘to the extent necessary’, that the court should also declare that it is permitted to organise within the RAF’s workforce, in terms of the registered scope of its constitution.

Brief Chronology

[5] On 16 September 2022, the RAF initiated a consultation process under s 189A of the Labour Relations Act, 66 of 1995 (‘the LRA’) owing to the adoption of a new business operating model which entailed amongst other things, a new Integrated Claims Management system, reducing costs and revising its funding model.

[6] At the same time as issuing the notice, the RAF applied for facilitation of the consultations by the CCMA and on the form requesting facilitation it identified the sector or service in which the dispute arose as “Transport”.

[7] During October 2022 until January 2023, the Applicant and the Respondents engaged in a section 189A process facilitated by the CCMA.

[8] The facilitation could not yield a settlement between the parties and the RAF brought the facilitated consultation process to an end on 1 February 2023. The facilitation process related to the placement of staff using a socalled ‘culture fit assessment process’ to build RAF that is fit for purpose. This was an organizational redesign process[3]. All the employees of the Applicant successfully concluded the culture fit assessment tests.

[9] The Applicant thereafter proceeded to place the employees in the new organisational structure, in the absence of any agreement by Numsa.

[10] The RAF has also embarked on a Customer Relationship Management (CRM), which it claims was unrelated to the section 189A process. The CRM process was intended to improve and enhance service delivery. The public was complaining about the Applicant’s non- responsiveness to telephone queries and one of the changes implemented meant that the call centre agents employed by it would no longer answer ordinary calls. That function was outsourced to a third party called Alteram.

[11] The RAF claimed this variation in the responsibilities of call centre agents was merely a change in a work practice. The remuneration and the jobs they occupied remained the same. However, on 14 July 2023, NUMSA referred a dispute to the CCMA in terms of section 64(4) of the LRA. The disputer referral form (7.11) identified the dispute as unilateral change to terms and conditions of employment. In the referral form, Numsa summarised the facts of the dispute thus:

“The Company (RAF) unilaterally implemented CRM project and outsourced the call centres department without consulting union and also placement of Numsa members in the positions without consulting majority union

(Numsa).”

It also expressed the demand in these terms:

“Numsa demand that all those terms and conditions that were unilaterally changed must be restored immediately.”

[12] Conciliation failed to resolve the dispute. However, it was more than six months later that picketing rules were issued on 12 February 2024 together with the outcome certificate. The outcome certificate described the disputed as one concerning, “S 64(4) -Unilateral Changes to terms and conditions of employment"

[13] Numsa then issued a strike notice on 27 February 2024 that it will commence strike on 14 March 2024. The strike notice was received by the Applicant on 11 March 2024.

The notice read:

“NOTICE OF INTENDED STRIKE ACTION iro SECTION

64(1) OF LRA 65 OF 1995 TO ROAD ACCIDENT FUND

(RAF)

Dear Mr Barriel

Kind take notice that this letter serves as a 48 hours’ notice of strike action in terms of Section 64(1)(a)(b) of the Labour Relations Act as amended from time to time.

Take further notice that this notice of strike will commence on the 14th March 2024 in accordance with the attached strike certificate of non-resolution which gives rights to union members to embark on a protected strike for the purpose of remedying grievances or resolving a dispute in respect of matters of mutual interest between employer and employees of the RAF.

Your cooperation will be highly appreciated for the purpose of making sure that all required facilities are provided to our members during the strike.

Trusting that all are in order, should you need any clarification please don’t hesitate to contact the writer.

Regards

Robert Seoka

Infrastructure Head Office Union Official”

(Redundant capitalization omitted)

[14] On the same day, Numsa issued a press statement in which it announced it was embarking on strike action at the RAF. The press statement heading read:

“NUMSA will embark on a strike at the Road Acccident Fund because of the continuous mismanagement of the entity by the CEO Collins Letsoalo.”

The first paragraphs of the press statement expands on the disastrous state of the RAF and cites that as the reason why Mr Lesoalo should be removed.

[15] It then continues to mention “(t)he issues which have triggered the threat of the strike”, and goes on to detail six such issues, namely that: the RAF is outsourcing critical operations to private companies, which would result in the retrenchment of RAF call centre employees; the RAF violated the Protection of Personal Information Act 4 of 2013, because it failed to safeguard the personal information of claimants when the a sheriff attached an RAF server containing that information; the CEO had obstructed members of the Standing Committee on Public Accounts (SCOPA) from entering the workplace to conduct inspections; claims handlers have been on suspension since 2022 when they were accused of fraud by management but no disciplinary action had been taken against them, so they should be allowed to return to work; the lack of claims handlers had caused unbearable backlogs in processing claims and claims could not be settled because of the removal of the RAF’s panel of attorneys, and the RAF culture fit assessment process will result in the retrenchment of staff. The press release ends by attacking Mr Letsoalo as the primary cause of the destruction of the RAF and explains that consequently FRAF is resorting to strike action to compel the state to remove him. It concludes by asking all RAF workers to down tools in support of the demands.

[16] On 12 March 2024, the parties tried to try to resolve the dispute, without success. The same day the RAF issued a letter of intention to launch an urgent application in terms of section 68(2)(a) of the LRA.

[17] The respondents did not react to the letter, and the RAF then decided to launch the urgent application on 13 March 2024 on short notice as the strike was to commence on 14 March 2024.

[18] After obtaining the interdict, the RAF advised NUMSA the same day that it was cancelling its recognition of the union because it claimed it did not fall within any of the categories of industries or services contained in Annexure B to Numsa’s constitution, which defined the scope of the union under clause 1(2) of its constitution. Under clause 2(2) of the union’s constitution, all employees working within one of the categories listed in the scope are eligible to become members of the union. The RAF contends it falls within the social security sector, which is not one of the listed sectors or activities mentioned in Annexure B of the union’s constitution.

[19] The RAF also relies on this contention to argue that Numsa has no ‘locus standi’ to lead its members in a strike or to recruit employees and bargain collectively in the social security sector, because it was not registered to recruit RAF employees as members in terms of the scope of its membership clause in its constitution. According to a verification report issued by the CCMA on 23 November 2023, of the 2078 RAF employees covered by the bargaining unit, 1541 were Numsa members and the remainder paid an agency fee under an agency shop agreement. Numsa believes that the real purpose of the interdict was to get this court’s ‘sanction’ for its cancellation of its recognition of the union.

Evaluation

In limine objections raised by the employer

Deponent’s authority to defend the union in the proceedings

[20] The deponent to Numsa’s answering affidavit was Ms V James, a union official who is the head of the Organising, Campaigns and Collective Bargaining at the union’s head office.

[21] It is trite law that a party wishing to challenge the authority of a deponent to authorise litigation must use Rule 7(1) of the Uniform Rules of the High Court and when a party is represented by an attorney, the challenge should be directed towards the authority of the lawyer to act on behalf of that party.[4] The RAF has challenged the authority of the deponent to the affidavit, not Numsa’s attorney, and it has not complied with

Rule 7(1) of the High Court rules in order to raise a challenge to authority to act, contrary to what the Labour Appeal Court prescribed

in Public Servants Association of SA v Minister: Department of Home Affairs & others.[5]

[22] Accordingly, this objection must fail.

Numsa’s lack of ‘locus standi’ to instigate strike action in respect of employees who allegedly cannot be members of the union

[23] As mentioned, the RAF argues that its activities do not fall within the scope of any activities mentioned in the scope of Numsa’s

constitution. Accordingly, it argues that the union membership of any of its employees admitted as members of Numsa, were admitted contrary to Numsa’s scope and therefore their membership was invalid. Accordingly, it could not initiate strike action on behalf of person who were not lawfully its members. Much reliance for this argument was placed on the Constitutional Court judgement in National Union of Metalworkers of SA v Lufil Packaging (Isithebe) (A Division of Bidvest Paperplus (Pty) Ltd) & others.[6] In that case the dispute concerned an organisational rights dispute. Numsa had referred the dispute to the CCMA and the employer had raised the same objection raised by RAF, namely that the business did not fall with the scope of the union’s constitution.

Accordingly, it was prevented from recruiting members among the employer’s workforce, so it could never lawfully claim it

represented a sufficient number of employees to obtain organisational rights. The court upheld this objection and distinguished it from other instances in which a union could not be prevented from representing employees in dismissal or unfair labour practice

proceedings.[7]

[24] However, there is no restriction on a union’s authority to call for a strike based on whether the potential striking employees are its members or not. Thus, in SA Transport & Allied Workers Union & others v Moloto NO & another[8], the constitutional court held that non-members of the union were entitled to participate in a strike called by the union without

having to first refer their own disputes for conciliation. In this instance, whatever the strike demand was, it was not a demand for recognition as a collective bargaining representative and even if there was a dispute over the lawful union membership of the employees claimed to represent, those employees could still heed a call to participate in a protected strike against their employer. The LAC in Chemical Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd (1999) 20 ILJ 321 (LAC) found that the prerequisites for embarking on protected strike action are limited and that it was possible for employees to join in strike action against their employer even if they fell outside of the bargaining unit to which the strike demand related[9].

[25] I am also not persuaded that Lufil is applicable to the facts of this dispute. In Lufil, the very lawfulness of the relevant employees’ membership of Numsa was central to the issue in dispute because it was a statutory

prerequisite for advancing the organisational rights dispute based on union membership numbers. While it might well be the case that employees of the RAF who joined Numsa might not be allowed to be lawful members of Numsa, that does not prevent Numsa initiating a protected strike in which employees who support Numsa’s demand are entitled to participate in. The findings of the LAC in Plascon Decorative are pertinent in this regard:

“[21]… The issue is whether the right to strike as embodied in the statute contains the limitation for which Plascon originally contended, namely that only those employees of an employer who are directly affected by the strike demand may embark on a protected strike. That limitation is not expressed in the statute. The question is whether a proper interpretation of the provisions of the statute, against the background sketched above, imports them.

[22] The most notable feature of the definition of 'strike' in the LRA is its wide terms. It comprises three elements: (i) the non-performance of work; (ii) by employees; (iii) for the purpose stated. That purpose is to remedy a grievance or resolve a dispute 'in respect of any matter of mutual interest between employer and employee'. The absence of any article, definite or indefinite, before either 'employer' or 'employee' is conspicuous. It has the effect of rendering at its most general and non-specific the employeremployee relationship to which the strike dispute must relate. (Mr Loxton's phrase was 'generic'.) It follows that while it is clear that the employees not performing work must all share the purpose of remedying a grievance or resolving a dispute, the definition imposes no other requirements of mutuality - whether a shared employment relationship with an employer or a shared interest in the grievance or dispute - upon them.

[23] The terms of the definition are thus wide enough to encompass both primary strikes (s 64) and secondary strikes (s 66). They are

obviously also broad enough to cover a strike involving employees of the same employer who are not directly affected by the strike

dispute.”

(emphasis added)

[26] Lastly, it is perhaps necessary to emphasise a sometimes-neglected characteristic of the right to strike. Section 23 of the Constitution states:

23. (1) Everyone has the right to fair labour practices. (2) Every worker has the right— (a) to form and join a trade union; (b) to participate in the activities and programmes of a trade union; and (c) to strike.”

[27] What is immediately obvious is that the fundament right to strike is a right which enures to employees, not to trade unions. It is true that the right to strike is most frequently invoked in circumstances of collective bargaining in which a union initiates the steps for embarking on strike action on behalf of the members it represents. However, as section 64(1) of the LRA makes clear, the pre-requisite steps for participating in and initiating protected strike action do not require the intervention of a trade union. This point was emphasised by the LAC in Plascon Decorative. Accordingly, the involvement of a union in embarking on protected strike action is not essential. So long as the necessary steps in s 64(1) have been taken and the strike is not unprotected for other reasons, it does not matter who takes those steps. The seemingly paradoxical consequence of this is that even if the employees in question are not members of a union that takes steps to initiate a protected strike they may still heed the union’s call to strike.

[28] In view of the findings above, it is not necessary to determine if the employees in question were, or still are members of Numsa. Accordingly, it is also not necessary to make a declaratory order as sought by the union on the union membership status of those employees.

The strike was prohibited by virtue of the provisions of s 189A pertaining to strikes arising in that context.

[29] The RAF argues that since the dispute emanated from a S 189A process, which it either seems to contend was concluded or it had abandoned it, Numsa can only have embarked on strike action in terms of that provision. The relevant section permitting strike action, as an alternative to referring a case of substantively unfair retrenchment to this court, states:

(7) If a facilitator is appointed in terms of subsection (3) or (4), and 60 days have elapsed from the date on which notice was given in terms of section 189 (3)-

(a) the employer may give notice to terminate the contracts of employment in accordance with section 37 (1) of the Basic Conditions of Employment Act; and

(b) a registered trade union or the employees who have received notice of termination may either-

(i) give notice of a strike in terms of section 64 (1) (b) or (d); or

(ii) refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court in terms of section 191 (11).”

[30] On the RAF’s argument the opportunity for strike action relating to the S 189A process has long passed because that process concluded in January 2023. This is a misreading of s 189A(7). The opportunity to strike in terms of that provision, as an alternative to referring a dispute over the substantive fairness of the retrenchments to this court, can only arise in a specific factual situation. That is, the employer must have given notice of termination of the affected employees service no earlier than 60 days after the employer initiates the retrenchment consultation process under s189(3) of the LRA. On the pleadings there is no allegation that any notice of termination was issued to any potentially affected employees, so the pre-condition for Numsa being able to strike under s 189A (7) was never met in this instance. Accordingly, the union could not have invoked that strike provision even if it had wanted to. Moreover, the referred dispute does not even relate to demands concerning unfair retrenchments but to changes in the work done by internal call centre staff and their placement in other positions.

[31] Accordingly, this objection is without merit.

The nature of the dispute and the strike notice

Was there a unilateral alternation of the employees’ contracts or merely a change in work practices ?

[32] When the dispute was referred to conciliation by Numsa it was characterised as a dispute over a unilateral change to terms and conditions of employment. The RAF states that the change consisted of call centre agents no longer answering calls from claimants and that this consisted of a change of work practice not a change of their terms and conditions of employment. In response Numsa contend that not only do they not answer calls, but they merely work on queries. In reply, the RAF contended that the staff in question still perform all their previous duties apart from answering calls. What neither party squarely addressed was whether such a change is permitted in terms of those employees’ contracts of service, or whether the change would require an amendment of their contracts of employment. The provision of new job profiles does not assist in resolving the question of whether the changes amount to a unilateral change to the contract of employment or not.

[33] Whichever party bears the onus of establishing that a unilateral change to conditions of employment took place or not, this is not a case where a union, relying on s 64(4) of the LRA, gave the employer 48 hours’ to restore conditions of employment, failing which it would strike without further notice. The correctness of characterising a change in work arrangements as tantamount to a change in conditions of employment is only of legal significance if a union purports to act under that provision, which permits it to engage in a protected strike before conciliation has even taken place. However, if this remedy in s 64(4) acted upon in terms of that provision and the dispute proceeds in the normal fashion to conciliation, without such interdictory style strike action having taken place, the significance of labelling the dispute as concerning a unilateral change to terms and conditions is less important than the actual material demand being made, i.e what the union demands the employer must do to avert a strike,

whether or not it has only altered a work practice or a condition of employment.

Was the strike notice deficient?

[34] The RAF claims that although the strike notice warned that strike action would commence on 14 March 2024, it did not specify when it would start, and this rendered it defective. However, the majority of the court in Moloto took the opposite view, namely that it is not necessary to stipulate the exact time the strike will commence, provided the union has given 48 hours’ notice of the strike [10].

[35] Similarly, the majority of the court in Moloto adopted the view that it is not essential for the notice to stipulate the number of employees who might participate in the strike[11]. This disposes of another of RAF’s reasons for contending the strike notice was deficient.

[36] The RAF’s remaining objections to the strike notice are more substantial. Until the strike notice was issued, the RAF could reasonably have expected that a strike might ensue pertaining to the alteration of some of the duties of its call centre staff due to outsourcing and placing the union’s members in new positions without consulting the union. This was the essence of the description of the facts of the dispute contained in the dispute referral form. The commissioner’s certificate of

outcome gave no indication of any change in the nature of the dispute.

[37] However, the strike notice issued by the union was completely devoid of any particularity about the demands the union was making which, if acceded to by the RAF, would make the strike unnecessary. Rather, it stated that the purpose of the strike could include any grievances of members or matters of mutual interest. The demands mentioned in Numsa’s press release two days prior to the strike notice could all be encapsulated under the umbrella of such a generic and featureless description.

Although the issues relating to the call centre changes were mentioned, the dominant emphasis in the press release concerned the

removal of the CEO because of his alleged mismanagement of the RAF. It called on workers to strike in support of that demand amongst

others.

There was correspondence between the parties on 12 and 13 March 2024, in which it is apparent that they were engaging with each other, but from those letters it is not clear what all the demands on the table were at that time, which comprised the subject matter of the intended strike action.

[38] In the absence of the strike notice crisply stating what the RAF needed to do to avert strike action, the scope of the strike demands could certainly not be gleaned from it, even if the RAF was aware of some of the main ones. Part of the purpose of a strike notice is to give the employer a clear indication what it must agree to if it wishes to avert the impending strike[12]. The strike notice in question was devoid of factual content regarding the nature of the demands. If such a notice was considered

acceptable, the same notice could be issued for virtually any strike irrespective of the demands in question. That would defeat an important purpose of issuing a strike notice.

[39] I accept that it does appear from the pleadings that the RAF understood that a main demand was suspension of the s 189 process, albeit that the RAF claimed it had abandoned that process. It was also aware that the placement question was another facet of the strike demands. Even so, given the press release, which unequivocally, emphatically and publicly gave expression to four additional demands, it was incumbent on Numsa to clarify the demands which formed the subject matter of the strike. Even if the press release was not authorised, as Numsa claimed, it publicly called on workers to support a strike which extended to a wider range of demands than those in issue when the dispute was referred to conciliation. Numsa should have dispelled any confusion the press release could have caused about the ambit of the aims of the strike, but it did not.

[40] The union argued that it was opportunistic of the RAF to rely on the press statement which Numsa’s spokesperson issued without the general secretary’s knowledge. Nonetheless, it concedes that, apart from the demands in that statement relating to the outsourcing of call centre operations and continued restructuring of operations despite the RAF claiming to have abandoned the formal restructuring process under s 189A of the LRA, the other four demands in the press release are ‘impermissable’.

[41] Although Numsa defends the original inadequate strike notice, in its answering affidavit Numsa proposes, if the rule is discharged, to issue the kind of strike notice it should originally have done. The proposed notice will state the strike action to be embarked on by all its members employed by the RAF on a date and time to be specified, in which it will demand that the “RAF immediately restore the terms and conditions of employment of those employees which were unilaterally amended by the RAF as a consequence of and pursuant to the following actions:

• Implementation of CRM projects and/or outsourcing of the Call centres; and

• Placement of employees in new positions I terms of the RAF’s new organogram…”

[42] This proposed notice is a far cry from the vacuous strike notice issued by the union in which no specific demands were articulated, in circumstances in which the union appeared to be simultaneously publicly calling for strike action on additional issues which had never been the subject matter of the dispute referred to conciliation. The strike notice now proposed by Numsa was not the one before the court when the interim rule was issued and the union’s proposal to issue one in this form, is an implicit acknowledgement of the glaring deficiencies in the first one.

[43] Numsa argues that by abandoning the impermissible demands the strike will now be protected, relying on the judgment in Digistics (Pty) Ltd v South African Transport and Allied Workers Union and Others[13] However, that was a case where four demands were clearly articulated in the strike notice but one of them could not be the basis for embarking on protected strike action. The court held that workers could strike in support of the permissible demands, without issuing another strike notice. In this case there were no stated demands in Numsa’s strike notice and the demands expressed in the press statement went beyond the dispute which had been conciliated. Accordingly, the original strike notice cannot be relied on and Numsa must issue a fresh strike notice along the lines it has proposed, in which it sets out the two demands, in the event it and its purported members wish to pursue them.

[44] In conclusion, the strike notice was defective, and the RAF was entitled to interdict strike action solely on that basis.

Relief and Costs

[45] Numsa unnecessarily caused the RAF to approach the court on the first occasion for interim relief. However, there was no reason why the matter could not have been settled when Numsa offered to confine the strike to the two issues relating to outsourcing and placements. In the circumstances, I see no reason why either party should pay the other’s costs as a matter of law and fairness.

[46] The potential strike that was interdicted remains unprotected in the absence of an appropriate strike notice being issued. Accordingly, it is appropriate that a final but amended order be made.

Order

1. The intended strike action initiated by the First Respondent’s strike notice of 27 February 2024 attached as Annexure “RAF6” to the Applicant’s founding affidavit, is unprotected.

2. The Respondents may only embark on protected strike action in respect of the dispute which was referred to conciliation on 14 July 2023 under CCMA case number HO77-23, if a written strike notice is issued to the Applicant on at least 48 hours’ notice of the commencement of the strike, in which notice it states:

“The strike action shall be embarked upon in support of NUMSA’s demand that RAF immediately restores the terms and conditions of employment of those employees which were unilaterally amended by RAF as a consequence of and pursuant to the following actions:

• Implementation of CRM projects and/or outsourcing of the Call Centre(s); and

• Placement of employees in new positions in terms of RAF’s new organogram.”

3. No order is made as to costs.

___(Signed)______________

R G Lagrange

Judge of the Labour Court of South Africa.

Appearances: For the Applicant: --- H Molotsi SC assisted by M Matumela Instructed by: --- Mpoyana Ledwaba Inc For the Respondent: --- M Niehaus of Minnaar Niehaus Attorneys

[1] Index: Page 167 annexure RAF6

[2] Index: Page 330 – 448 (Annexure(s) RA1 – RA3 of the replying affidavit)

[3] Index: Page 33- 37 founding affidavit

[4] See SA Municipal Workers Union on behalf of Members v Mangaung Metropolitan Municipality (2023) 44 ILJ 360 (LC) at paragraphs 13-27 including the authorities cited thereat, which was also followed by Inxuba Yethemba Municipality v Msweli Local & others (2024) 45 ILJ 548 (LC)

[4] See SA Municipal Workers Union on behalf of Members v Mangaung Metropolitan

Municipality (2023) 44 ILJ 360 (LC) at paragraphs 13-27 including the authorities cited thereat, which was also followed by Inxuba Yethemba Municipality v Msweli Local & others (2024) 45 ILJ 548 (LC)

[5] [2013] 3 BLLR 237 (LC) at para 7.

[6] (2020) 41 ILJ 1846 (CC).

[7] At paragraphs 52 and 68.

[8] (2012) 33 ILJ 2549 (CC)

[9] See paragraphs 20 to 26 and, in particular, paragraph 29.

[10] At paragraph 89.

[11] At paragraph 88.

[12] See Ceramic Industries Ltd t/a Betta Sanitary Ware v National Construction Building & Allied Workers Union (2) (1997) 18 ILJ 671 (LAC) at 676F-GSA Airways (Pty) Ltd v SA Transport & Allied Workers Union (2010) 31 ILJ 1219 (LC) at paragraph 27; Imperial Group (Pty) Ltd t/a Imperial Cargo Solutions v SA Transport & Allied Workers Union & others (1) (2014) 35 ILJ 3154 (LC) at paragraph 25 and National Union of Food Beverage Wine Spirits & Allied Workers & others v Universal Product Network (Pty) Ltd: In re Universal Product Network (Pty) Ltd v National Union of Food Beverage Wine Spirits & Allied Workers & others (2016) 37 ILJ 476 (LC) at paragraph 25.

[12] See Ceramic Industries Ltd t/a Betta Sanitary Ware v National Construction Building & Allied Workers Union (2) (1997) 18 ILJ 671 (LAC) at 676F-GSA Airways (Pty) Ltd v SA Transport &

Allied Workers Union (2010) 31 ILJ 1219 (LC) at paragraph 27; Imperial Group (Pty) Ltd t/a

Imperial Cargo Solutions v SA Transport & Allied Workers Union & others (1) (2014) 35 ILJ

3154 (LC) at paragraph 25 and National Union of Food Beverage Wine Spirits & Allied Workers & others v Universal Product Network (Pty) Ltd: In re Universal Product Network (Pty) Ltd v National Union of Food Beverage Wine Spirits & Allied Workers & others (2016) 37 ILJ 476 (LC) at paragraph 25.

[13] (2010) 31 ILJ 2896 (LC). See also Unitrans Fuel & Chemical (Pty) Ltd v Transport & Allied Workers Union of SA & another (2010) 31 ILJ 2854 (LAC) at paragraph 36.