Game, set and match – 8 judges beat 10 judges

The dispute concerned the right to strike after the failure to reach agreement through collective bargaining.   It is interesting to record that in the process lasting many years 16 judges participated in this legal battle over events lasting about 10 years.

As mentioned earlier the Constitutional Court has clarified an aspect of the right to strike – see ConCourt judgment in SATAWU v Moloto NO (Equity Aviation)

As mentioned earlier the Constitutional Court has clarified an aspect of the right to strike – see ConCourt judgment in SATAWU v Moloto NO (Equity Aviation)

The final tally shows that 10 judges found in favour of the employer and 8 in favour of the trade union, but the employer still lost.

It seems that the difference in approach depends on whether it is based on ‘rules’ or ‘principles’.   In that regard it is interesting to observe that previous experience in the Labour Appeal Court seems to have played a decisive role in the final decision.   The majority decision pointed out that the employer had concluded a collective agreement with the registered majority union and also an agency shop agreement.   In terms of the collective agreement the trade union effectively represented all the employees is that workplace.   Any decision by the employer to adjust wages would have been applied to all the employees.

In the circumstances to demand that the non-members of the trade union were also required to notify the employer of their intention to strike was really hard to understand.

Here are some extracts, without footnotes,  from the judgment of the 5 judges who were in the majority in the final decision.

[45]      In our view the factual context of this case, the fundamental importance of the right to strike, the general purpose of the Act, the specific purpose of section 64(1)(b) and the lack of any express provision requiring more than mere notice of the time when a strike will commence, all weigh against reading implied requirements into section 64(1)(b).  We are thus unable to agree with the reasoning and conclusion that the second to sixty-fourth applicants (dismissed strikers) were required to give strike notices in addition to that given by the first applicant (union) before joining in the strike, or that the strike notice had to indicate the number of employees who were going to participate in the strike.

 Factual context and its significance

[47]      In her judgment Maya AJ has set out the facts that are common cause and we do not repeat them here.  But there are other facts, also common cause, that have a significant role to play as contextual background for the determination of the matter.

[48]      It is common cause that the union and Equity Aviation Services (Pty) Ltd (Equity Aviation) entered into a recognition agreement in terms of which the union was the recognised bargaining agent of all the workers employed by Equity Aviation.  The union and Equity Aviation also entered into an agency shop agreement, the effect of which was that all employees who were not union members had agency fees deducted from their wages every month, equal to the union membership fees, and which were paid to the union.

[49]      The breakdown in negotiations that led to the referral of the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) concerned wages.

[50]      The recognition agreement meant that for the purposes of the wage negotiations the union represented not only its own members but also the dismissed strikers.  Equity Aviation knew this.  The Act recognises collective agreements of this kind.  A collective agreement also binds employees who are not members of the union if they are identified in the agreement, if it expressly binds them and if the union has majority support in the workplace.

[51]      The consequence of this is that the dismissed strikers and other employees were part of the collective bargaining process, through the union, right from the outset.  All these employees themselves had no right to bargain in respect of their wages with Equity Aviation.  Accordingly the issue in dispute that was referred to the CCMA concerned not only union employees, but also them.  It follows that had the initial negotiations or CCMA conciliation resulted in a wage agreement, the agreement would also have been binding on them.  It is common cause, by now,[1] that the union’s referral of the dispute for conciliation was sufficient for the purposes of section 64(1)(a) and that the dismissed strikers did not need to refer it again before resorting to strike action.

[52]      It is within this context that the strike notice issued on the union’s letterhead on 15 December 2003 must be read.  It was a notice that followed upon a process of collective bargaining where the union represented not only its own members but also minority union and non-unionised members in the same wage dispute.  The strike notice merely stated that:

“We intend to embark on strike action on 18 December 2003 at 08H00.  Please confirm that we will meet to discuss a Picketing Agreement on the 17 December 2003.”

Equity Aviation could, in this context, hardly have been under the impression that the notice had been sent only on behalf of the union’s members and nobody else.  Be that as it may, we proceed to interpret the provision to determine whether the law required the notice to spell out anything more.