Equity Aviation v SATAWU (478/09) [2011] ZASCA 232 (30 November 2011) : recent case law

• Author: N. Smit,E. Fourie
• Date: 01 January 2012
• Pages: 426-436
• Published date: 01 January 2012
• DOI: 10.10520/EJC135268

426

2012 De Jure

Equity Aviation v SATAWU

(478/09) [2011] ZASCA 232 (30 November 2011)

The issue of separate strike notices where employees are not members of a

trade union

1Introduction

Recently the question whether employees who are not members of a

trade union may strike “lawfully” where they have not given (separate)

notice to strike to their employer in terms of section 64(1)(b) of the

Labour Relations Act 66 of 1995 (the LRA) was considered by the

Supreme Court of Appeal. The court held a different view from the

majority of the Labour Appeal Court. Since the preferred interpretation

of section 64(1)(b) has been described by some as resulting in a

prima

facie

limitation of the right to strike the judgment merits discussion (the

judgment has also been referred to the Constitutional Court).

2 Requirements for a Protected Strike

The LRA regulates the fundamental right of workers to strike (as found in

s 23(2)(c) LRA) in more detail. In chapter IV of the LRA the procedural and

substantive requirements for a protected strike are set out. As far as

procedural requirements are concerned two conditions are relevant: first

the issue in dispute must have been referred for conciliation. Section

64(1) requires that the dispute must have been referred to either a

bargaining or statutory council or to the Commission for Conciliation,

Mediation and Arbitration (CCMA) and a certificate must be issued that

the dispute remains unresolved, or 30 days must have lapsed since

referral. Secondly, the employer must be given at least 48 hours’ notice

of the intended strike – in the case of the public service 7 days (see s

64(1)(c) LRA). If a notice to commence a strike does not specify the exact

time and date of commencement, it will be defective. A strike can be

suspended and it is not necessary to give a new notice for the resumption

of a protected strike. There are some instances when these procedures

are inapplicable. For example, where a lock-out is in reaction to a strike

or lock-out which does not conform to the LRA, or where (in the case of

a strike) the strike is in reaction to the unilateral change to conditions of

service (s 64(3), (4) LRA). It is no longer a requirement that a ballot be

held first before employees may make use of the strike mechanism (s

67(7) LRA). Although a ballot is not required before employees may make

use of the strike weapon, the LRA does stipulate that the constitution of

a union must provide for a ballot to be held, and that a member may not

be disciplined or his/her membership terminated for non-participation in

a strike, unless a ballot was held and the majority of the voting members

voted in favour of the strike (see s 95(5)(p), (q) LRA).

It is evident that parties remain to some extent free to contract out of

(a) the right to strike and recourse to the lock-out (see s 65(1)(a) LRA);