Strikes and Lockouts Halton Cheadle

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Strikes and Lockouts Halton Cheadle
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Outline

• Strike notice
• Issue in dispute
• Matter of mutual interest
• Whether a dispute exists
• Agreement to refer to arbitration
• Lawfulness
• Right to strike
• Unprotected strikes
• Ultimatums
• Collective guilt
• Essential services
• Jurisdiction on strike dismissals

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Strike notice

• Strike notice to state employers
• reason for 7 days notice to a state employer is
  because the state provides essential and
  necessary services to the public
• a municipality is a state employer
• City of Matlasona v SALGBC
• Factors to determine whether delay requires a
  fresh notice
• whether union initially embarked on a strike
• the length of the delay
• City of Matlasona v SALGBC

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Strike notice

• A strike notice must be sufficiently clear in
  articulating the demands so that an employer can
  take an informed decision to resist or accede
• Orderly collective bargaining 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
• SAA v SATAWU
• Unreported, Labour Court, Case no J2166/09, 19
  October 2009

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Strike notice

• SAA v SATAWU
• 6 referrals over 11 months
• Issues retention bonuses, outsourcing a call
  centre, use of labour brokers, inconsistent
  implementation of discipline, removal of a
  manager for assault, unfair treatment of shop
  stewards, unilateral reduction of cabin crew
  complements, refusal to take disciplinary action
  against a manager, removal of the CEO
• 4 strike notices 2 of which were withdrawn over a
  month
• Strike notice refusal to lawfully remove a
  manager as well as refusing to execute petitions
  and grievances
• Too vague

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Strike notice

• Must the strike notice state who will go on
  strike?
• Majority of LAC held that
• it does not have to state who will be going on
  strike
• non-members can strike in support of a trade
  union demand
• Minority held that
• the notice issued by the union referred to we
  and therefore only members could strike
• in any event, notice should include who is going
  on strike
• Equity Aviation v SATAWU (unreported, LAC,
  JA49/06)

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Issue in dispute

• whether a matter of mutual interest
• agreements between a province and a municipality
  not a matter of mutual interest
• City of Matlosana v SALGBC
• whether regulated by a collective agreement
• agreement with majority union in a BC
• agreement not yet extended by Minister
• until agreement extended, a minority union that
  did not sign the agreement entitled to strike
• Bravo Group Sleep Products v CEPPWAWU

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Issue in dispute

• Whether a dispute exists
• SBV Services (Pty) Ltd v MTWUSA
• Whether issue in dispute includes related demands
• the issue in dispute should not be literally
  interpreted
• a court should look at the substance of the
  dispute and not merely at the form in which it
  was presented
• a court should recognize that disputes may be
  modified in negotiations and conciliation
• NUMSA v Edelweiss Glass Aluminium

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Issue in dispute

• Agreement to refer to arbitration
• dispute referred to CCMA
• CCMA decides that dispute should be referred to
  private arbitration
• Union issues a strike notice
• Labour Court interdicts the strike on the basis
  that the CCMA did not have jurisdiction
• De Beers Consolidated Mines (Pty) Ltd (Venetia
  Mine) V NUM
• But is that correct?

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Matter of mutual interest

• A demand for a 20 shareholding constitutes a
  matter of mutual interest
• courts have always given a wide interpretation to
  the concept well being of the trade
• courts prefer a generous interpretation if the
  other interpretation may limit a constitutional
  right
• concept is about the creation of new rights or
  the diminution of existing rights
• trust to enable the ESOP to participate in BE
  established by a collective agreement
• share incentive schemes a common feature of
  management contracts
• Itumele Bus Lines v TAWU others
• (2009) 30 ILJ 1099 (LC)

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Matter of mutual interest

• Unilateral change to terms and conditions
  constitutes a matter of mutual interest
• a technological change to machinery that leads to
  greater productivity does not constitute a
  unilateral change if it does not affect
  remuneration, time or effort
• real objective of the strike was to secure an
  increased bonus for the increase in productivity
  therefore strike interdicted
• it may not be a unilateral change but the real
  objective remains a matter of mutual interest
• Nampak Metal Packaging Ltd t/a Bevcan v NUMSA
• (2009) 30 ILJ 1610 (LC)

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Unilateral alteration of terms and conditions

• Unilateral reduction in cabin crew complement
• Whether an alteration of terms and conditions
• No evidence of any changes to contractual terms
  eg hours, remuneration etc
• Not an alteration of terms and conditions
• SAA v SATAWU

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Right to strike

• Waiver
• when can a collective agreement waive the right
  to strike?
• does it waive or preclude the right to strike?
• is the waiver in the public interest?
• does it clearly waive the right?
• if it does not, any ambiguity should be
  interpreted against the purported waiver
• SBV Services (Pty) Ltd v MTWUSA

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Unprotected strikes

• Factors in determining the fairness of dismissing
  strikers in unprotected strikes
• failure of the employer to engage the union on
  its restructuring process
• the form in which the ultimatum was given
• the length of the strike
• the extent of economic loss
• whether capable of solution
• Professional Transport Workers Union v Fidelity
  Security Services

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Unprotected strikes

• Factors in determining fairness of dismissal
• reasonableness of the union and strikers belief
  that the strike was protected
• failure to engage seriously with the union or to
  approach the court to determine the legality of
  the strike
• particularly when it regarded the strike to be
  legal at its inception
• in industrial relations terms, folly of the
  highest order
• NUMSA v Edelweiss Glass Aluminium (Pty) Ltd
• Unreported, Labour Court, JS 795/03, 5 June 2009

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Unprotected strikes

• Factors in determining fairness of dismissal
• belligerent refusal to return to work despite
  ultimatums and union intervention
• failure to attend disciplinary enquiry because of
  the interdict preventing access to the premises
  disingenuous
• the fact that a distinction was made between
  those who had voluntarily participated and those
  who had been forced to do so did not amount to
  inconsistent treatment
• SATAWU v Maxi Strategic Alliance (Pty) Ltd
• (2009) 30 ILJ 1610 (LC)

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Ultimatums

• The failure to respond to an ultimatum may lead
  to a fair dismissal
• NUMSA v SA Truck Bodies (Pty) Ltd
• Not sufficient to issue an ultimatum
  telephonically
• Professional Transport Workers Union v Fidelity
  Security Services

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Collective guilt

• An employer is required to identify who
  participated in an unprotected strike it cannot
  just dismiss them without an enquiry
• TAWASU obo Tau 305 others v Barplats Mine

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Essential services

• Application made to Essential Services Committee
  for a determination that SARS is an essential
  service but not determined
• Union gives notice of its intention to strike
• Employer applies for an interdict
• Interdict refused because regulations make
  provision for an urgent procedure in the ESC
• SARS v NEHAWU
• unreported, Labour Court, J 1897/09, 7
  September 2009

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Strike misconduct

• Assaults, intimidation, incitement and trespass
  in the course of a protected strike
• Normally constitutes grounds for dismissal
• Employer allowed the workers to continue to work
  for 3 weeks after the strike ended before
  instituting disciplinary proceedings
• Trust relationship not destroyed and the
  possibility of counseling might correct
  behaviour
• NUMSA obo Hlela v Jasco Special Cables

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Jurisdiction

• Whether jurisdiction is determined by the manner
  the employee characterizes the dispute or by the
  true nature of the dispute
• Dispute referred to BC as a misconduct dismissal.
  
• Employer contended that the dismissal was for
  participating in an unlawful strike and therefore
  that the BC did not have jurisdiction to hear the
  dispute
• Jurisdiction determined by the true reason
• Although employees charged with misconduct, the
  misconduct related to participation in an illegal
  strike
• Chuma v Gifio Engineering (Bop) Ltd (2009) 18
  MEIBC 1.1.2