There is clearly a distinction between disputes of ‘right’ and ‘interests’ and how they should be resolved.   But how do we determine the difference in the absence of any definitions?   This is important because the consequences for employees using power to resolve the wrong type of dispute could find themselves out of work.   On the other hand it is automatically unfair for employers to terminate employment related to a protected strike.

The recent, as yet unreported, Labour Appeal Court decision in Platinum Mile Investments (Pty) Ltd v SATAWU (case JA 28/08 dated 14 May 2010) provides some guidance and lessons.   The issue in dispute  related either to a ‘recognition dispute’ or a ‘labour broker dispute’.   It is clear from the Labour Relations Act 66 of 1995 [LRA] that so-called ‘refusal to bargain’ disputes are ‘interest disputes’ and an advisory award must be obtained from the CCMA before any strike commences.   But if there is a binding collective agreement then strike action is not permitted and will not be protected .

Rampai AJ in the Labour Court on 7 February 2008 ordered the employer to reinstate the 35 employees after finding that they had engaged in a protected strike over an issue concerning the alleged use of a labour broker and had been automatically unfairly dismissed – see SATAWU v Platinum Mile Investments (Pty) Ltd (2008) 29 ILJ 1742 (LC).

Patel JA in a unanimous judgment upheld an appeal against that judgment and began the judgment in paras 1 – 3 as follows:

“On the 19th September 2005, the appellant, Platinum Mile Investments (Pty) Ltd t/a Transition Transport dismissed 35 of its employees for participating in a strike.   The court a quo found these dismissals to be automatically unfair and reinstated these employees without loss of earnings or benefits.   This is an appeal, with the leave of the court a quo, against the judgment and order of the Labour Court.    These employees are members of the first respondent, South African Transport and Allied Workers Union (“SATAWU”).    These dismissed employees have been collectively cited as the second respondent.    I shall refer to them as either the second respondent or as ‘these employees’.

It is common cause that at the time these employees went on strike SATAWU had declared two disputes with the appellant, namely ‘a recognition dispute’ and a ‘labour broker dispute’.   The crisp issue to be determined in this appeal is whether the strike which commenced on 8 September 2005 was a protected or an unprotected strike.   It became common cause that if the second respondent had gone on a strike as a result of the failure by the appellant to sign a recognition agreement with the first respondent then such a strike was unprotected and as such the appellant was entitled to dismiss the striking employees.   However if the strike was in respect of the appellant wanting to employ labour brokers then the strike being a matter which concerned a mutual interest,  would be protected.    The appellant was therefore not entitled to dismiss these employees.

The court a quo held that the strike was about the labour broker dispute, from which it followed that the strike was protected and the ensuing dismissals automatically unfair.   It is the appellant’s contention that on the conspectus of evidence and the analysis thereof, the court a quo erred in finding that the strike was protected and the ensuing dismissals automatically unfair.   It ought to have found that the strike was about the recognition dispute, with the result that the strike was unprotected and the ensuing dismissals not automatically (or otherwise) unfair”.

After setting out the evidence the LAC stated in para 40:

“The respondents (SATAWU) withdrew their first notice of intention to strike over the recognition dispute and did not give the appellants another notice of intention to strike over that issue.    On the respondents own version the second strike notice did not relate to a recognition dispute.    In the result, the strike which commenced on 5th September 2005 contravened s 64(1)(b) (read with s 64(2) of the LRA), and therefore once it is accepted that the strike was about the recognition dispute it follows that the strike was unprotected”.

In para 41 the LAC confirmed that the legal status of a “published national collective bargaining agreement is that of a subordinate legislation.    Such an agreement fits into the juristic pigeon hole of a statute rather than contract”.

The LAC concluded in para 47 that the collective agreement provided for the employment of casual workers:

“That being so the court a quo was not only bound to admit the main agreement but also allow cross-examination on it.    The agreement clearly provides for the employment of casual workers.    No evidence was presented in the court a quo that casuals were employed contrary to the agreement and as far as labour brokers are concerned it was never put to any of the appellant’s witnesses that a labour broker was employed.    Be that as it may in light of the conclusion to which we have come, I am satisfied that the strike pertained to the recognition agreement”.

The LAC upheld the employer’s appeal, set aside the order of Rampai AJ and ordered SATAWU to pay the costs having found that SATAWU “failed to properly direct the cause (sic) of events which led to the strike and did not provide proper advice to the striking workers”.