Today argument is being heard and this is the pre-hearing media summary provided by the Constitutional Court. Links to the earlier decisions of the Labour Court, Labour Appeal Court (justice Zondo JP dissenting) and the Supreme Court of Appeal have been provided for ease of reference.
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The following report by Ernest Mabuza on the case appeared for the first time in Business Day today and should be read by going to Business Day.
Court considers workers’ duty to give notice of strike
“THE Constitutional Court was yesterday faced with the question of whether the Labour Relations Act required that every employee due to go on strike should give notice of the industrial action beforehand.
While a strike is protected if members of a union give notice, there is still uncertainty over whether non-union members who join in do so lawfully.
The South African Transport and Allied Workers Union is appealing against last year’s Supreme Court of Appeal judgment which ruled that every employee — through his or her representative or personally — must give notice of his or her intention to strike.
This case has its origins in 2004, when baggage handling company Equity Aviation dismissed 63 non-unionised employees who went on strike along with unionised workers.
Section 64(1)(b) of the Labour Relations Act states that every employee has the right to strike and every employer has recourse to lock out strikers if at least 48 hours’ notice of the commencement of the strike, in writing, has been given to the employer.
Hans van der Riet SC, for the dismissed employees and the union, said the language of the section in the act simply required notice of the commencement of the strike to be given to the employer. He said the section did not require every employee to give notice of the commencement of the strike before workers acquired the right to strike.
He said employees who were not unionised would have difficulty notifying the employer individually of their intention to strike. If every employee must personally give notice or must authorise someone to give notice on his or her behalf, it would become more difficult to exercise the right to strike, Mr van der Riet said.
Jeremy Gauntlett SC, for the company, said section 64 contained procedural preconditions for a strike. “It’s not a substantial limitation of the right to strike.”
Mr Gauntlett said notice may be given through a representative or personally, provided it alerted the employer to the extent of the strike and allowed them to make the necessary arrangements.
The Constitutional Court reserved judgment.”