South African Airways (Pty) Ltd v South African Transport and Allied Workers Union (J2166/09) [2009] ZALC 113; (2010) 31 ILJ 1219 (LC) ; [2010] 3 BLLR 321 (LC) (19 October 2009)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD IN BRAAMFONTEIN

CASE NO J2166/09

SOUTH AFRICAN AIRWAYS (PTY) LTD Applicant

and

SOUTH AFRICAN TRANSPORT AND ALLIED

WORKERS’ UNION Respondent

JUDGMENT

VAN NIEKERK J

Introduction

[1] On 8 October 2009, the Court (per Molahlehi J) issued a rule nisi calling on the respondent (to which I shall refer as “the union”) to show cause on 19 November 2009 why a final order should not be granted declaring strike action called by the union to be unlawful and unprotected, and interdicting the union’s members from participating in that action. The latter part of the rule was ordered to operate as an interim order, pending the return date of 19 November 2009. The union was given leave to anticipate the rule on 48 hours’ notice. On 13 October 2009, the union filed a notice of anticipation of the return date, and simultaneously filed an answering affidavit. The applicant (“SAA”) filed a replying affidavit on 14 October 2009, the same date on which this matter was heard.

The facts

[2] The factual background that gives rise to this application is not in dispute.

[3] On 3 November 2008, the union referred disputes to the CCMA that concerned the extension of retention bonuses to its members, the outsourcing of the call centre, and the use of labour brokers. A certificate of outcome was issued on 25 November 2008. The call centre and labour broking disputes were subsequently resolved in terms of an agreement signed in March 2009. The same agreement addressed the issue of retention bonuses – the union agreed to suspend the strike, pending a process inter alia to be undertaken by the Department of Public Enterprises to review the policy and payment of retention premiums.

[4] On 24 April 2009, the union referred a dispute to the CCMA concerning inconsistency in the application of discipline. In the Form 7.11, under the heading “Result of Conciliation”, the union stated: “That a certificate of non-resolution be issued to enable the applicant to embark on strike”.

[5] On 20 May 2009, the union referred a dispute to the CCMA concerning SAA’s alleged failure to properly and consistently implement its disciplinary procedures. A certificate of outcome in respect of this dispute was issued by the CCMA on 8 June 2009.

[6] On 4 August 2009, the union issued a strike notice pursuant to a certificate of non-resolution issued on 17 April 2009.

[7] On 25 August 2009, the union made two separate referrals to the CCMA. The first of these characterised the dispute in the following terms:

“The employer party refuses to lawfully remove a quest manager who assaulted a SATAWU shop steward as well as refusing to execute petitions and grievances.”

The second dispute related inter alia to the alleged unfair treatment of shop stewards, including the issue of deductions from shop stewards’ salaries and delays in the payment of their remuneration. The CCMA consolidated these disputes and issued a single certificate of non-resolution on 21 September 2009.

[8] On 30 September 2009, SAA and the union held a meeting at which an agreement was reached on issues relating to the suspension of shop stewards’ email accounts, allegations of non-payment to shop stewards for time-off and other matters relating to a proposed recognition agreement. An agreement was reached on a number of issues, including the reinstatement of the shop stewards’ email accounts, and a process whereby anomalies in payment of shop stewards’ remuneration would be investigated and rectified. The parties agreed to meet again on 1 October 2009 to discuss pending disciplinary action against three shop stewards. A meeting took place on 1 and 2 October. SAA avers that an agreement was reached to negotiate a dispute/grievance process through which all prior grievances and petitions could be properly identified, managed and addressed. The union admits that an agreement in principle was reached, but denies that the discussions on 1 and 2 October resolved the grievances and petitions dispute.

[9] On 5 October 2009, the union referred a dispute to the CCMA concerning a unilateral reduction in cabin crew complements on board certain of SAA’s aircraft. In its referral, the union required the applicant to restore the status quo, as contemplated in s 64 (4) of the LRA.

[10] During the late afternoon of 5 October, the union addressed a letter to SAA confirming the withdrawal of a strike notice given by SMS on 2 October 2009, in respect of strike action intended to commence on 5 October. The union reserved the right to issue another notice “should it deem it necessary to do so.” At approximately 18h45 on 5 October 2009, the union gave notice, by telefax, of strike action intended to commence after midnight on 8 October 2009. The notice was given in the form of two letters. The first reads as follows:

“SATAWU would like to give the company 48 hours notice of its intention to commence a strike action. The aforegoing strike action will commence on Thursday the 8th October 2009 at 24h01 am.

The issues to be advanced in the aforegoing strike relates to the demands for which the Certificate of non-resolution was issued on the 21st September 2009. The Union will also be advancing its demands relating to the refusal to take disciplinary action against Susan Venter, for which a Certificate of non-resolution was issued on the 8th June 2009.

The Union will also be reviving its strike action relating to retention bonuses (R10 000).

These strike actions will be running concurrently on Thursday the 8th October 2009, until such time that all our demands are met”

[11] The second notice, sent simultaneously with the first, reads as follows:

“Herewith take notice that SATAWU hereby give 48 hour (sic) of its intention to embark on strike action. To this end, the strike action will commence on Thursday the 8th October 2009.

Take further notice that the aforegoing strike action will be in furtherance of a demand relating to reduction of the cabin Crew complements. To this end, we demand a reinstatement of the 5th Cabin crew member within 48 hours”

[12] The notices came to the attention of SAA’s head of employee relations the following morning, 6 October 2009.

[13] The certificate of outcome issued on 21 September 2009 does not record the disputes referred to the CCMA for conciliation. The referral that initiated the conciliation, dated 24 August 2009, summarises the facts of the dispute in the following terms:

“The employer party refuses to lawfully remove a quest manager, who assaulted a SATAWU shop steward as well as refusing to execute petitions and grievances.”

The outcome sought by the union was the following:

“A certificate of non-resolution be issued to enable the applicant to embark on strike”

[14] The demand for the removal of the “Quest manager” is no longer pursued. In its founding affidavit, SAA states that the person concerned no longer works at SAA’s premises, and that the demand for his removal is no longer the subject matter of any dispute. In its answering affidavit, the union states:

“Given the applicant’s allegations that the Quest manager no longer works at its premises, which cannot be gainsaid, SATAWU no longer pursues that demand and hereby abandons it.”

[15] The second element of the first dispute referred to conciliation on 24 August concerned a refusal by SAA to execute “petitions and grievances”. SAA states that it is not apparent from either the strike notice nor the Form 7.11 referred to the CCMA on 24 August what demands the union is seeking to have addressed through its strike action. As already recorded, the strike notice, as is apparent from the terms of that notice, refers to the applicant’s “refusing to execute petitions and grievances”. The referral form refers, in the summary of facts presented, to “refusing to execute petitions and grievances”. The deponent to the founding affidavit, SAA’s head of employee relations, states the following:

“Insofar as concerns alleged “petitions and grievances” referred to in “FA6”, the Respondent has over the course of the last few months, if not years, filed a number of grievances and petitions with the Applicant. Some of these have no bearing whatsoever upon the work relationship between the Applicant and the Respondent’s members or upon the collective bargaining relationship between the Applicant and the Respondent. Some of these have been expressly abandoned by the Respondent; most have simply fallen by the way.”

[16] The union responds to these averments by stating the following:

“The strike notice at FA1 relates to the issues in dispute referred to conciliation, and contemplated in, the referrals marked RM8 and FA6. The “petitions and grievances” referred to in FA6 include those mentioned in par.6 and 7 above (and attached as annexures RM2 to 6) as well as those mentioned below.

Apart from the grievances mentioned above, SATAWU had also lodged grievances in relation to certain other managers including Messrs Thebogo Tsimane, Pumla Ngwane, Simon Ngwenya and Madoda Nkalane. Furthermore, the union’s shop stewards all lodged grievances against the acting CEO Chris Smythe for the racist utterances he made in the presence of a number of shop stewards. I attach a copy of one of these marked “RM10”. These grievances have not been properly addressed to date.

I attended the CCMA conciliation meeting on 21 September together with a number of other union officials and shop stewards. At no stage during that meeting did the deponent or management ask for clarity concerning the grievances and petitions referred to in FA6. They were fully aware of the nature of such grievances. In stead the applicant stated that they were considering appointing an external investigator to attend to the grievances.”

[17] RM10 is a grievance form lodged by the union on 21 July 2009, demanding that the acting CEO be removed from his position. A similar petition was lodged on 25 September 2009, calling for the removal of employee relations managers from their positions. On the same date, a letter headed “Memorandum for decent jobs” was addressed to the acting CEO demanding, it would appear, permanent employment for contract workers. In April 2009, the union had demanded the release from duty of a Mr. Twala.

[18] The factual background to the demand in the strike notice relating to SAA’s refusal to take disciplinary action against one of its employees, Susan Venter, is briefly the following. The union had demanded that SAA take disciplinary action against Venter. A dispute in this regard was referred to the CCMA, and a certificate of non-resolution issued on 8 June 2009. On the same date, Venter was disciplined for misconduct, and issued with a final written warning in respect of the misconduct with which she had been charged. The union states that it only became aware in these proceedings of the fact of any disciplinary action taken against Venter. In its answering affidavit, the union states that a number of grievances were laid by the union against Venter and attached copies of grievances forms, most of which are dated March 2009. The union states that the warning issued to Venter “does not resolve the issue in dispute, insofar as it relates to Venter”. There is no explanation however as to how or why the warning failed

to address the union’s demands, which on the face of it was a demand only that Venter be disciplined. On 9 August 2009, the union

gave notice of its intention to strike over the issue, but did not proceed with strike action. The union does not proffer any reason for not embarking on the strike contemplated in the notice.

[19] In relation to the dispute about retention bonuses referred to in the strike notice, this dispute was initially referred to the CCMA in November 2008. A certificate of non-resolution was issued on 25 November 2008. SAA avers that the union has since then, from time to time, threatened strike action in respect of this demand. On 12 February 2009, SAA avers that agreement in principle was reached on this issue, and that a process was agreed to pursue the matter. Further, on 12 March 2009 and pursuant to these discussions, an agreement was reached in relation to retention bonuses, by which the parties are bound. The union disputes the existence of any agreement, stating that the agreement that was reached was process-related only, and that the substantive dispute

remains unresolved.

The issue

[20] There are two issues to be decided in this application. The first is whether the strike notice sent on 5 October 2009 by the respondent was valid; the second is whether assuming the notice to be valid, the proposed strike is unprotected because the substantive limitations on the right to strike established by s 65 apply.

The applicable law

[21] The right to strike is a fundamental right that is guaranteed to every worker in terms of s 23 of the Constitution. The LRA gives form and content to this right, amongst other things by establishing substantive and procedural limitations on the exercise of the right. One of the procedural limitations established by section 64 (1) (b) is the requirement that an employer must be given 48 hours’ notice of the commencement of the strike, in writing.1 The most comprehensive exposition of the notice requirement remains the judgment by Froneman DJP (as he then was) in Ceramic Industries Ltd t/a Betta Sanitary Ware v National Construction Building and Allied Workers Union (2) (1997) 18 ILJ 671 (LAC). In that case, a strike notice was challenged on the basis that it stated only that a strike would commence “at any time after 48 hours from the date of this notice”. Froneman DJP said the following:

“Whatever kind of approach is adopted in interpreting a statute or other legal instrument it must be kept in mind that its actual language cannot be neglected (see S v Zuma & others [1995] ZACC 1; 1995 (2) SA 642 (CC) at 652H-653A). According to The Shorter Oxford English Dictionary ‘commencement’ means ‘the action, process or time of beginning’, and ‘commence’ means ‘[b]egin (an action, doing, to do), enter upon … make a start or a beginning; come into operation’.

In determining whether there has been compliance with s 64(1)(b)of the Act an interpretation must be sought, as stated earlier, which best gives effect to the broader purpose of the Act and the specific purpose of the section itself. Section 64(1)(a) sets out the first requirement to be met before embarking on a protected strike, viz an attempted conciliation of the issue in dispute before collective action is taken. Section 64(1)(b) sets out the next requirement: notice of the proposed strike to the employer. Its purpose is to warn the employer of collective action, in the form of a strike, and when it is going to happen, so that the employer may deal with that situation. By their very nature strikes are disruptive, primarily to the employer, but also to employees and, sometimes, to the public at large. One of the primary objects of the Act is to promote orderly collective bargaining. Section 64(1)(b) assists in that orderly process. A failure to give proper warning of the impending strike may undermine that orderliness. This might, in turn, frustrate labour peace and economic development, other important purposes of the Act (s 1). Compliance with the provisions of the section is thus called for.

The specific purpose of warning employers of a proposed strike may have at least two consequences for the employer. The employer may either decide to prevent the intended power-play by giving in to the employee demands, or may take other steps to protect the business when the strike starts. For the former the notice in the present case might suffice, as a minimum period of 48 hours is given to deliberate on whether to accede to the demands or not For the latter, however, the notice is deficient, because the employer does not know when, after 48 hours, the proposed strike will commence.”

[22] Section 3 of the LRA requires the Act to be interpreted so as to give effect to its primary objects, and in accordance with South Africa’s public international law obligations. This requires the Court to adopt an interpretation that best accords with the expressed purposes of the Act. It does not follow however that a purposive approach is necessarily the least restrictive of the fundamental right in issue (see Ceramic Industries at 675 H, referring to Business South Africa v Congress of South African Trade Unions & another 1997) 18 ILJ 474 (LAC)). While it is correct that this court ought not, without visible textual support, to adopt interpretations that place limitation on the right to strike other than those that the legislature has clearly expressed, it should be recalled that the promotion of orderly collective bargaining is one of the LRA’s fundamental purposes. The structure of the Act is one in which the right to strike is drawn from the institution of collective bargaining. The right to strike, fundamental as it is, is thus not an end in itself – the resolution of disputes through collective bargaining remains the ultimate objective.

The first issue: Was proper notice of strike action given?

The first strike notice

[23] Mr. Leach, who appeared for the applicant, submitted that the respondent had failed to give proper notice of the intended strike. He proffered two reasons for this submission. The first was that the notice had been given outside of normal working hours, in circumstances where the sender of the telefaxed notice was fully aware that the intended recipient was not in her office. Secondly, Mr. Leach submitted that on the face of it, the notice failed to meet the test established by the Labour Appeal Court in the Ceramic Industries case.

[24] Mr. Daniels, who appeared for the respondent, submitted that section 64 (1) requires only that notice to be given, not that notice be received by the employer. The interpretation contended for by the applicant, he submitted, would amount to a drastic limitation on the right to strike, a limitation that enjoyed no textual support. Mr. Daniels’s submission is correct to the extent that the wording of section 64 (1), in a literal sense, does not require that notice be received, but it begs the question of what is meant by the proper giving of notice, and in particular, whether a strike notice telefaxed to an employer outside of working hours constitutes deficient notice. Mr. Leach submitted that a trade union was not entitled to rely on the mere sending of a notice to claim compliance with s 64 (1) (a). By way of illustration, he posed the scenario of a union giving notice after working hours on a Friday evening of strike action intended to commence 48 hours later (on the Sunday evening or even the following Monday morning), the purpose of giving notice would be subverted. It seems to me that the giving of notice may well be improper, and the strike notice accordingly deficient, where the person giving notice is aware that the intended recipient is unlikely to receive it within a reasonable time. However, it is not necessary for me to express any view on this matter. On the facts of the present case, while the notice was given after business hours on 5 October, the respondent had two full working days (being the 6th and 7th of October 2009) to reflect on the applicant’s notice and to decide on a response to it. In these circumstances, there was substantial

compliance with section 64 (1) (a) (i).

[25] I turn now to the second of Mr. Leach’s submissions regarding the strike notices. Notice of intention to strike is given in respect of four disputes. These are “the demands for which Certificate of non-resolution was issued on the 21st of September 2009”, the respondent’s demands relating to an allegation that the applicant had failed to take disciplinary action

against Venter, for which a certificate of non- resolution was issued on 8 June 2009, and of its intention to “revive” strike action relating to retention bonuses. In the second notice, the respondent gave notice of its intention to strike in respect of the demand relating to reduction of the Cabin Crew complements.

[26] It is clear from the judgment in Ceramic Industries that the two purposes of a notice of intention to strike (i.e. to enable the employer to decide whether its interests are best served by resisting the union’s demands or acceding to them; and in the former case, to take steps to protect the business) are linked to the minimum content of the notice. A strike notice ought thus necessarily to specify the date and time at which the strike action was intended to commence, since this would enable the employer to take whatever steps it wished to protect the business at the time that the strike commenced.

[27] The same purposive approach adopted by the Labour Appeal Court requires that a strike notice should sufficiently clearly articulate a union’s demands so as to place the employer in a position where it can take an informed decision to resist or accede to those demands. In other words, the employer must be in a position to know with some degree of precision which demands a union and its members intend pursuing through strike action, and what is required of it to meet those demands.2 Some of the issues giving rise to the intended strike, as they are articulated in the strike notice, are clear. The issue of the

disciplinary action demanded in respect of Venter, as well as the demand in relation to retention bonuses, are relatively clearly

expressed, and to require more would be to adopt an unnecessarily and unjustifiably technical approach. The same cannot be said however in respect of the reference to “demands for which Certificate of non-resolution was issued on 21st September 2009.” This is particularly so in a case such as the present, where the referral to conciliation was made, it would seem, in respect of unspecified and various grievances and petitions lodged over a period of months preceding the notice. Any employer faced with a strike notice issued in such imprecise terms would be hard pressed to know which element of what grievance and petition it was being asked to resist or concede. It is not an answer for a union to say, as the union does in the present matter, that it is for the employer to ask. A union elects to call a strike on those of its demands that it wishes to pursue to the point of economic pressure. It is incumbent on a union to articulate those demands in sufficiently clear terms when it issues a strike notice.

[28] The fact that some issues giving rise to the strike are articulated in a strike notice with a greater degree of clarity does not serve to rescue the notice as a whole – orderly collective bargaining (a value to which the LRA expressly subscribes) requires that an employer is entitled to be made aware of the full package of demands, and that it be placed in a position to assess how its interests should be best pursued on that basis.

[29] In short, the union’s first notice of intention to strike is insufficiently precise in relation to the issues giving rise to the strike and the demands that SAA is required to meet, and it is accordingly deficient.

The second strike notice

[30] On the union’s version, the second strike notice was superfluous. Section 65 (3) provides that the requirement to give notice of an intended strike does not apply if the employer does not comply with s 64 (4) and (5), having been required to do so in terms of any referral in which the status quo provisions of s 64 (4) are invoked. The issue therefore is not the validity of the strike notice, but whether the nature of the dispute is such that s 64 applies. The union’s case is that the applicant unilaterally reduced the number of cabin crew staff from five to four, that this constituted a change to terms and conditions of employment of cabin crew, that despite the referral requiring the applicant to restore the status quo, it has failed to do so, thus entitling the union to call a strike without waiting for the time periods referred to in s 64 (1) to lapse, and without further notice.

[31] SAA avers that the Civil Aviation Authority specifies a minimum number of cabin crew attendants per flight, depending on the type and size of the aircraft flown. Whether the minimum number or more than the minimum number of cabin crew are engaged depends on operating conditions and the level of service provided. Since October or November 2007, SAA had reduced the number of cabin attendants from four to five on domestic and short-haul regional flights, and since April 2009, on other regional flights. Increases or decreases in the number of cabin staff do not affect cabin attendants’ hours of work, rates of remuneration or any contractually stipulated benefits, and there has accordingly been no change to the terms and conditions of employment of any employee.

[32] John Grogan, writing in “Collective Labour Law” (Juta 2007 ) notes that the precise limits of s 64 (1) (a) have not yet been determined, but expresses the view that it must concern the terms under which employees work, or their benefits, rather than a mere ‘working practice’ (at 145). He continues

“The difference between ‘terms and conditions of employment’ and working practices is generally determined by whether the employees are able to demonstrate that the changes affect heir contractual rights, whether emanating form their individual contracts of employment or from a collective agreement. A shift change may, for example, fall within the terms of the remedy; an instruction that work will be done in a particular manner not.” (at 145).

In the absence of any evidence of any change that affects any of the union’s members’ terms and conditions of employment, s 64 (4) has no application in the present instance. It follows that the procedural limitations of any right to strike that may be acquired consequent on the referral of this matter to conciliation on 5 October 2009 (and I make no finding as to whether such a right does accrue) continue to apply.

[33] In view of the conclusions I have reached on the first strike notice and the nature of the dispute referred to in the second strike notice, it is not necessary for me to make any finding on Mr. Leach’s further submissions concerning s 65 (i.e. the substantive limitations on the right to strike).

[34] Finally, in relation to costs, this Court has a discretion to award costs having regard to the requirements of the law and fairness. These require that the general principle that costs follow the result must be brought into account, but they also require the Court to have regard to the existence of any collective bargaining relationship between the parties, and the prejudice that a costs order might cause to harmonious industrial relations. In the present instance, the parties are in dispute, and may yet find themselves in a position to exercise the economic power that the LRA regards as legitimate in the pursuit of their respective

interests. A costs order may compromise an already fraught relationship and prejudice any prospect of agreement between the parties. I therefore intend to make no order as to costs.

I accordingly make the following order:

The rule nisi issued on 8 October 2009 is confirmed.

There is no order as to costs.

ANDRE VAN NIEKERK

JUDGE OF THE LABOUR COURT

Date of hearting: 16 October 2009

Date of Judgment: 19 October 2009

Appearances:

For the Applicant: Adv B Leach

Instructed by: Deneys Reitz

For the respondent: Mr. R Daniels from Cheadle Thompson & Haysom

1 There are exceptions to the rule set out in s64(1)(a)(i) and (ii) that are not relevant in the present instance.

2 See Construction and Allied Workers Union & others v Modern Concrete Works [1999] 10 BLLR 1020 (LC) where a notice of an intended lock out was held to be deficient because it made reference only to a meeting at the CCMA and a failure to resolve “the current dispute”.

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