South African Transport Allied Workers Union and Others v Equity Aviation Services (Pty) Ltd (JS96/05) [2006] ZALC 73; [2006] 11 BLLR 1115 (LC); (2006) 27 ILJ 2411 (LC) (15 June 2006)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

Case No: JS 96/05

In the matter between:

THE SOUTH AFRICAN TRANSPORT AND

ALLIED WORKERS UNION 1st Applicant

PERSONS APPEARING IN ANNEXURE “A” 2nd Applicant

And

EQUITY AVIATION SERVICES (PTY) LTD Respondent

JUDGMENT

NGCAMU AJ

[1] This matter concerns the dismissal of the individual applicants on 18 November 2004 for their participation in a strike that commenced on 18 December 2003 and ended on 8 April 2004.

[2] The parties formulated the issues in a pre-trial minutes signed in January 2006. Before the commencement of the trial the parties agreed that the issues in paragraphs 4.5 and 4.9 of the pre-trial minutes be separated from the balance of the issues and be postponed sine die. They further agreed that the trial proceeds in respect of the issues formulated in paragraphs 4.1, 4.2, 4.4 and 4.8 of the minute. An order was accordingly made to separate the issues.

[3] Before the parties presented their closing arguments, it was agreed that the question of quantum be postponed sine die. This was agreed in the event of the Court granting an order in favour of the applicants.

[4] The issue the Court is required to decide is whether the dismissal of the individual applicants was automatically unfair in that their participation in the strike was unlawful. The applicants contended that they were entitled to join the strike. The respondent contends that their participation was unlawful as no notice was given that they would participate in the strike action.

[5] The first applicant (“SATAWU”) is a trade union recognised by the respondent. The first applicant and the respondent have a recognition agreement in terms of which the first applicant is the recognised collective bargaining agent for workers employed by the respondent. It is the majority union at the respondent’s work place. There are other minority unions. There is no recognition agreement between the respondent and the minority unions.

[6] The first applicant and the respondent also have the agency shop agreement in terms of which all employees of the respondent who are not union members have agency fees deducted from their wages every month which are equal to the union’s membership fees and are paid to the union.

[7] The first applicant and the respondent were engaged in wage negotiations. The dispute was referred to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) for conciliation. The dispute was not resolved. The first applicant issued a notice to the respondent in the following terms:

“Dear Mr Segatle

Notice of Industrial Action

We intend to embark on strike on 18 December 2003 at 08H00.

Please confirm that we will meet to discuss a Picketing Agreement on the 17 December 2003.

Yours faithfully”

[8] Pursuant to this notice, the strike commenced on 18 December 2003. Although the strike was called by SATAWU, the individual applicants also joined the strike. Notices were sent to them by the respondent requesting them to return to work. They failed to do so and they were eventually dismissed. An application was made to have them reinstated. The respondent made undertakings that it would not dismiss any employee participating in the strike who was a member of SATAWU at the commencement of the strike on 18 December 2003. The respondent further undertook not to dismiss nor threaten to dismiss any employee for participating in the strike who was a member on 20 January 2004 or who became a member of SATAWU subsequent to 20 January 2004.

[9] The respondent reserved its right to discipline the employees which it had dismissed. The 63 individual applicants were subsequently charged for participating in the strike. They were found guilty and dismissed.

[10] The respondent led the evidence of Mr Du Preez who was the National Human Resources Manager of the respondent at the time the strike commenced. He was also a member of the wage negotiating team. His evidence was that the strike called by SATAWU did not come as a surprise. The respondent was prepared for the power play and trained other people to continue with the work of SATAWU members that were on strike. When the strike notice was received from SATAWU, he telephoned the minority unions to confirm if they would be part of the strike. The response was that they would not. The notice was therefore regarded as that of SATAWU members only. The contingency measures taken by the respondent were on the basis that only SATAWU members would go on strike. When the strike commenced, even those who were not SATAWU members embarked on strike. He testified that during the commencement of the strike, the 63 individual applicants were not SATAWU members. The IR Manager was given the stop order from SATAWU. These were sent back to SATAWU because there were problems with some of them.

[11] Mr Du Preez conceded that the employees who were not members of SATAWU had no say in the negotiations but would be affected by the outcome. He agreed that the essence of the issue is the participation in the strike. The individual applicants together with SATAWU members returned to work in April 2004, after SATAWU had reached an agreement with the respondent.

[12] It is common cause that the strike called by SATAWU was protected and complied with section 64 of the Labour Relations Act, 65 of 1995 (“the LRA”). The respondent’s attitude when the individual applicants were dismissed was that they were not bona fide members of the union, SATAWU. On the basis of this, only SATAWU members could embark on strike. In respect of non-members, the strike was unlawful and therefore unprotected. The union, SATAWU, regarded the dismissal as automatically unfair. The respondent’s contention was that the strike was protected only in respect of the SATAWU members.

[13] If the strike was also protected in respect of the individual applicants, the applicants contend that it would then follow that their dismissal was automatically unfair. The question to be answered is whether the participation of the individual applicants fell within the protection afforded by section 64 of the LRA.

[14] The right of the employees to strike is entrenched in section 23(2)(c) of the Constitution of the Republic of South Africa, Act 108 of 1996 (“the Constitution”). This right is subject to the limitation provided for in section 36 of the Constitution.

[15] A strike is defined in section 213 of the LRA, as meaning:

‘The partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to “work” in this definition includes overtime work, whether it is voluntary or compulsory’.

There is no dispute that what the applicants embarked upon was a strike as defined in the LRA.

[16] Section 64(1) of the LRA provides that:

‘(1) Every employee has the right to strike and every employer has recourse to lock-out if –

(a) The issue in dispute has been referred to a Council or to the Commission as required by this Act, and -

(i) a certificate stating that the dispute remains unresolved has been issued; or

(ii) a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the Council of the Commission; and that –

(b) in the case of a proposed strike, at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer…’.

[17] Before the strike can commence, it is required that a dispute be referred for conciliation and then either a certificate is issued or 30 days elapse and the dispute remains unresolved. Once this has been done, the employer has to be given 48 hours’ notice of the commencement of the strike. The provisions of section 64 are wide. It was submitted that there should be a purposive interpretation of the section with a view to promote orderly collective bargaining. Section 65 limits the right to strike.

[18] The respondent’s contention that participation of the applicants in the strike was unlawful is based on two issues namely that:

The applicants were not members of the SATAWU and

The applicants or SATAWU did not give notice that the applicants were also going to participate in the strike.

The respondent’s case is mainly based on the failure of the applicants to give notice.

[19] I need to first deal with the question whether the 63 applicants were members of SATAWU. At the outset, I should mention the fact that the parties agreed that the stop order forms were handed to the IR manager sometime late in December 2003. Those forms were returned without the stop orders being implemented.

[20] Mr Kirk – Cohen submitted that the court should accept that 63 applicants were not members of SATAWU. He submitted that the stop orders were decisive of membership of SATAWU. The relevant clause of the Recognition Agreement is Clause 3.3. This clause provides that:

“The parties acknowledge that the sole measure of the union representivity shall be the number of stop orders lodged at anytime for those employees employed in the grades as detailed or as amended from time to time.”

[21] This clause was not meant to determine union’s membership. Clause 3.3 is a measure for determining union representivity in the work place and not for membership. Confusion should not be allowed to cloud the parties in determining the purpose of this clause. Representivity and union membership are two different species. If clause 3.3 was the determining factor for the union membership, it would mean that those employees who have joined the union and have been accepted would not be members simply because the employer has not received the stop order forms. This would be an incorrect manner of determining membership. I therefore disagree with the submissions that clause 3.3 of the recognition agreement is the decisive factor for the union membership. It is however a decisive factor for determining representivity of the union.

[22] The recognition agreement defines a “Union member” as any employee who is a paid up member of the union in terms of the union’s constitution.

[23] Eligibility for the union membership is dealt with in clause 9.1 of the SATAWU Constitution. In terms of this clause, membership is open to all workers that work in any service industry, trade or undertaking that falls within the scope of the union. In terms of 9.1, the 63 applicants were entitled to apply for membership as they did. Clause 9.3 of the constitution prescribes the procedure for lodging an application for membership. The procedure is that the application form must be completed and submitted to the local office bearer who must submit it to the regional secretary or to the general secretary. The application must be accompanied with the subscription fee. The application should be recommended by the General Working Committee to the Regional Executive Committee. The constitution does provide that those whose applications have been accepted should be informed in a particular manner. The constitution does provide that those whose applications have been rejected may appeal.

[24] The respondents requested the agendas and minutes for the regional working Committee, Regional Executive Committee as well as those of the Central Executive Committee. The request was not pursued, presumably because the parties agreed on the Central issue of the dispute. The common cause fact is that the stop order forms were sent to the respondent. That, in my view, could only happen when the union has accepted the applicants as members. The applications for membership were completed on various dates between November 2003 and January 2004.

[25] The LRA does not provide when the union can canvass for membership. In my view, the union is entitled to increase its membership even during the strike. This is the right the unions have. This is based on the principle that the more members the union has, the stronger it would be in the workplace to enforce its rights and compel the employer to submit to its demand. Accordingly, it cannot be said that members of the union are only those whose stop orders were in the possession of the employer at the time the strike commenced. After the stop order forms were returned in December 2003, they were again faxed on January 2004. No reason was given why all the stop order forms were returned when there was nothing wrong with some of them. In the light of this I am unable to accept that the 63 applicants were not members of SATAWU.

[26] I now deal with the question whether the applicants were entitled to join the strike called by SATAWU assuming that they were all not members of SATAWU. In dealing with this question I should mention that as a matter of law, The members of the union are entitled to participate in a strike whether they are affected by the dispute which led to the strike or not. In Afrox LTD v South African Chemical Workers Union & Others (1) (1997) 18 ILJ 399 (LC) at 404 I, Zondo AJ, as he then was, stated:

“In general, a dispute exists between a union and an employer, the union is entitled to call out on strike all its members employed by that employer wherever they may be so as to bring the full might of its members to bear on the employer in order to pressurise him to agree to the union’s demands”.

[27] It was submitted on behalf of the respondent that SATAWU was only the agent of SATAWU members and not other people. The conclusion from this is that if SATAWU gave notice, it was only calling upon its members and those that were not members of SATAWU should have given their own notice. It was therefore argued that the minority unions should have given notice on behalf of their members or the individual applicant’s should have given the respondent 48 hours notice.

[28] The giving of the notice of strike by the minority unions cannot stand on the facts of this case. The minority unions were not part of the bargaining unit. They had no say in what was happening. They could not in any way influence the employer. Thess minority unions would have been met with an objection that the employer did not recognised them if they had attempted to either refer a dispute or serve a notice of strike. As these unions were not recognised, they could not give any notice on behalf of their members. In the circumstances, I reject the submission that the unions should have given the notice.

[29] The Recognition Agreement refers to SATAWU as a union. The notice was given by SATAWU. There is no indication that the notice was being given on behalf of other employees other that those who were the members of SATAWU. For this reason, it was submitted that because the applicants were not members of SATAWU and did not give notice, their participation in the strike was unlawful. This submission if followed to its conclusion means that only those who gave notice can participate in the strike. Accordingly those who have not given notice would be acting unlawfully if they participated.

[30] The applicants could not embark on a secondary strike because they were employed by the same employer as those for whom SATAWU was acting. They were affected by the same dispute the resolution of which would have been to their benefit. Section 64(1) of the LRA which sets out the pre-conditions for the strike, does not place any limitation as to who should give notice. The section does not require the notice to indicate how many employees would take part in the strike or for which union. All that it requires is that the dispute must have been referred for conciliation and a certificate issued or 30 days has elapsed. When this has happened, the employer has to be given 48 hours notice of the commencement of the strike.

[31] All the employer has to know is the time of the strike. The employees have no obligation to state the number of employees to be involved. It would be improper to read into section 64(1) limitation that the legislature did not mean to include. The notice, as I have mentioned does not have to state on whose behalf the notice is being given. The argument that this must be read to mean those employees who had referred a dispute and on whose behalf the notice has been given is not sound for a number of reasons. Section 64(1) refers to “every employee”. The scope is wide to include non union members.

[32] Section 65 of the LRA which contains limitations to the strike sets out who may not take part in the strike. It is not necessary for me to set out fully the provisions of the section. Suffice to say that it does not state that an employee cannot take part if his or her union has not referred a dispute. It also does not say that an employee is disqualified from participating in a strike if he is not a member of the union that called the strike or, if individual, has not personally given the 48 hours notice required in terms of section 64(1)(b). It appears to me, as long the dispute has been referred in compliance with Section 64(1) every employee is entitled to join the strike unless his or her participation is limited by section 65.

[33] The applicants were employees of the same employer. There was a dispute involving the employer and the employees the majority of whom is represented by SATAWU and the others who were unrepresented or were represented by the unions not forming part of the bargaining unit. All the employees have common interests as they were affected by the same dispute.

[34] The purpose of the strike was to remedy a grievance or resolving a dispute in respect of a matter of mutual interest. To limit the strike to those whose union had issued a strike notice would be to deny the employees their fundamental right to strike.

[35] It would be absurd to have a protected strike and unprotected strike in respect of the same dispute between the same employer and its employees. The purpose of section 64(1)(b) was set out by Froneman DJP in Ceramic Industries Ltd t/a Betta Sanitary Ware v National Construction Building & Allied Workers Union (2) (1997) 18 ILJ 671 (LAC) at p 677 A – D as follows:

“In summary: The provisions of s 64(1)(b) need to be interpreted and applied in a manner which gives best effect to the primary objects of the Act and its own specific purpose. That needs to be done within the constraints of the language used in the section. One of the primary objects of the Act is to promote orderly collective bargaining.

Section 64(1)(b) gives expression to this object by requiring written notice of the commencement of the proposed strike. The section’s specific purpose is to give an employer advance warning of the proposed strike so that an employer may prepare for the power-play that will follow. That specific purpose is defeated if the employer is not informed in the written notice in exact terms when the proposed strike will commence. In the present case the notice is defective for that reason. The provisions of s 64(1)(b) were not complied with”.

[36] In the present matter, the employer was prepared for the power-play. That was the evidence given by Mr Du Preez. The notice giving the employer 48 hours notice was given. The notice complied with section 64(1)(b). The employer is not entitled to anything more than this.

[37] The demands which the individual employees pursued were part of those that SATAWU had already put forward on behalf of its own members and in respect of which a certificate had been issued. It cannot be disputed that the demands that the individual applicants sought to support formed part of the issues in dispute as contemplated in section 64(1)(a) of the LRA. This issue was referred for Conciliation in terms of section 64(1). Furthermore, the strike is not prohibited by section 65 of the LRA.

[38] The principle has been established by Zondo AJ, as he then was, in Afrox Ltd v SACWU & others (1) (1997) 18 ILJ 399 (LC), that where members of a trade union employed in one branch of a company or in one bargaining unit are entitled to strike in support of a dispute between themselves and their employer, their colleagues employed by the same employer in another branch or in another bargaining unit also have a right to go on strike in respect of that dispute without having to make a separate referral of the dispute to conciliation. This principle was approved in Chemical Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd (1999) 20 ILJ 321 (LAC).

[39] It does not make sense to permit the employees in another branch to participate in the strike without them having to refer their dispute for Conciliation and providing their own notice of strike while prohibiting the employees directly affected by the dispute from participating until they have referred their own dispute and served their strike notice. I have mentioned that in the present case, the employer is the same and the dispute is the same. The strike was not in support of a different demand so as to require a separate referral and strike notice.

[40] In the Plascon Decorative case, at 329 paragraph 27, Cameron AJ confirmed that once section 64(1) has been complied with, nothing more was required. The learned judge stated:

“….Mr van der Riet contended that the purpose of s 64(1)’s procedural requirements is to compel employees to explore the possible resolution of their dispute through negotiations before exercising their right to strike. The concept of protected strike presupposes such negotiations. Once that purpose has been fulfilled, no further statutory object would be served by limiting the right to strike only to employees directly affected by the demand. Instead, the restriction envisaged would place a substantive limitation on the right of non bargaining unit union members to strike for which the provisions of the statute offer no explicit or implicit support. I agree with the submission”.

[41] This view was followed by the Court in S.A. Clothing & Textile Workers Union v Free State & Nothern Cape Clothing Manufacturer’s Association (2001) 22 ILJ 2636 (LAC), at p 2646 paragraph 32, Zondo JP stated the following:

“More importantly, the dispute which the intended strike sought to bring an end, had already been referred to the bargaining council with the requisite jurisdiction for conciliation and such attempts had failed. The statutory requirements required to be complied with before there could be a strike over that dispute had been complied with. The same dispute could not be referred to conciliation for the second time”.

[42] The position is not different in the present case in that the dispute had been referred and a notice had been issued. To require a notice of strike from each of the 63 applicants is too technical and is not a statutory requirement. If this is what was required by the Act, each of the 63 applicants would have to refer their own dispute, thus having 63 conciliation meetings. Thereafter, there would be 63 strike notices. That would not contribute to orderly bargaining process.

[43] In my judgment, once there is compliance with the statutory requirements and a notice given to the employer warning him of a pending strike, it is not necessary for the co-employees who are not union members or belong to unions who are not parties to the bargaining unit to refer their own dispute and issue their own notices. Once the strike is protected, co-employees are entitled to strike in support of the demand. The Act does not limit the strike to those whose union has given notice. This is supported by the fact that the strike notice does not have to state on whose behalf the notice is being given or how many employees are to participate. All that is required is a warning to the employer.

[44] The respondent received a warning. The individual applicants were not required to issue separate strike notices or refer a dispute that had already been referred and the conciliation had failed. I reject the submission that the strike was not protected in respect of the individual applicants. The individual applicants had s right to strike in support of a demand by or on behalf of their co-employees. In the result, the strike was also protected in respect of the individual applicants. It therefore follows that the dismissal was automatically unfair.

[45] The following order is made:

The dismissal of the individual applicants on 18 November 2004 by the respondent was automatically unfair in terms of section 187(1)(a) of the LRA.

The respondent is ordered to reinstate the individual applicants with back pay.

Costs are reserved.

__________________

Ngcamu AJ

Acting Judge of the Labour Court

Date of hearing: 12 June 2006

Date of judgment: 15 June 2006

For the applicant: Adv. R. Lagrange

For the respondent: Adv. S. Kirk-Cohen S.C.