SATAWU and Others v Moloto and Another NNO

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Yacoob ADCJ, Cameron J, Froneman J, Jafta J, Maya AJ, Nkabinde J, Skweyiya J and Van der Westhuizen J
• Judgment Date: 21 September 2012
• Citation: 2012 (6) SA 249 (CC)
• Docket Number: CCT 128/11 [2012] ZACC 19
• Hearing Date: 10 May 2012
• Counsel: JG van der Riet SC (with TMG Euijen) for the applicants. JJ Gauntlett SC (with GA Leslie and H Cronje) for the respondents.
• Court: Constitutional Court

Maya AJ (Mogoeng CJ, Jafta J and Skweyiya J concurring): G

Introduction

[1] This application mainly concerns the interpretation of s 64(1)(b) of the Labour Relations Act 66 of 1995 (Act). [1] The applicants seek leave to H appeal against the judgment of the Supreme Court of Appeal in Equity Aviation Services (Pty) Ltd v South African Transport and Allied Workers Union and Others, [2] which construed the provisions of s 64(1)(b) of the Act as obliging every employee who intends to embark on a strike to notify his or her employer of that intention personally or through a representative for the strike action to be protected. [3] This interpretation I

Maya AJ (Mogoeng CJ, Jafta J and Skweyiya J concurring)

A founded the court's conclusion that the dismissal of the 2nd to 64th applicants (dismissed strikers) from employment, consequent upon their participation in a strike in respect of which only the first applicant (SATAWU) had given notice on behalf of its members, was lawful.

Background B

[2] The facts are simple and largely undisputed. The dismissed strikers are former employees of Equity Aviation Services (Pty) Ltd (Equity), an aviation-logistics company which is under liquidation. The respondents are Equity's liquidators. At the material time Equity provided services on the ramps and runways of the country's six major airports. Of its C 1157 permanent employees, 725 were members of SATAWU, a registered trade union. Thus, SATAWU was the recognised majority union at Equity's workplace. The dismissed strikers were not SATAWU members.

[3] On 13 November 2003 SATAWU referred a wage dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) for D conciliation. Conciliation failed. On 15 December 2003 the CCMA issued a certificate to that effect. On the same day SATAWU issued a terse strike notice to Equity. It is common cause that the notice which was written on SATAWU's letterhead referred only to the union's members, which read:

E '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.'

None of the dismissed strikers, or anyone acting on their behalf, issued a separate strike notice to Equity. Equity had been assured by minority trade unions at its workplace that they, the minority unions, were not F party to the dispute.

[4] SATAWU members commenced the strike as planned. It lasted until 15 April 2004. Equity accepted that their strike action was 'protected' because SATAWU had given the requisite notice on their behalf. The G dismissed strikers also partook in the strike despite Equity's repeated warnings to them to return to work as it considered their participation in the strike action unlawful for lack of a strike-action notice. As a result, on 19 November 2004 Equity dismissed them for unauthorised absence from work during the strike.

Litigation history H

[5] The dismissed strikers referred a dispute to the CCMA challenging the lawfulness of their dismissal. When conciliation did not succeed, they took the dispute to the Labour Court on the basis that their dismissal was I automatically unfair in terms of s 187(1)(a) of the Act. [4] On 15 June

Maya AJ (Mogoeng CJ, Jafta J and Skweyiya J concurring)

2006, Ngcamu AJ decided the matter in favour of the dismissed strikers. [5] A He found that they were covered by SATAWU's strike notice as they were its affiliates [6] and that, in any event, non-membership would not have excluded them from its protection. The court then declared the termination of their employment automatically unfair and ordered their reinstatement and ancillary relief. B

[6] Equity's appeal against this decision was dismissed by a split Labour Appeal Court. [7] The majority held that s 64 of the Act entitles all employees in a bargaining unit, whether unionised or non-unionised, lawfully to participate in strike action if the majority union has referred the dispute for conciliation in terms of ss (1)(a) and subsequently issued C a strike notice in terms of ss (1)(b). According to the majority, it was unnecessary for the dismissed strikers to issue a strike notice when SATAWU had done so. The majority, therefore, concluded that the dismissed strikers' participation in the strike was lawful and their dismissal automatically unfair.

[7] The minority took a different view and found merit in the appeal. It D reasoned that an employer relies largely on the contents of the strike notice to decide whether to resist or yield to the employees' demands and to make the necessary arrangements to minimise the impact of the strike on its business should the strike go ahead. This, therefore, makes it essential for employees, who are not members of a trade union which has E given the strike notice, to issue a separate notice to strike lawfully. The minority concluded that the majority's interpretation of s 64(1)(b), which renders it impossible for an employer to identify the employees who may strike, conflicts with the injunction in s 3 of the Act as it would promote disorderly collective bargaining.

[8] Equity's further appeal to the Supreme Court of Appeal, brought F with that court's special leave, was successful. [8] Lewis JA, writing for a unanimous court, agreed with the Labour Appeal Court minority's

Maya AJ (Mogoeng CJ, Jafta J and Skweyiya J concurring)

A interpretation of s 64(1)(b). The court held that the purpose of the strike notice is to warn an employer of the impending power play to enable it to make informed decisions. The court reckoned that in light of the Act's aim, amongst others, to promote orderly collective bargaining, a logical, purposive interpretation of the section required the dismissed strikers to B notify Equity of their intention to strike personally or through their representative to give effect to that objective. Thus, the dismissed strikers could not rely on SATAWU's notice because it covered only the union's members. The court concluded that the dismissed strikers' participation in the strike was not protected under the Act and that their dismissal was not automatically unfair.

Leave to appeal C

[9] The respondents oppose the merits of the appeal only and abide this court's decision with regard to the application for leave to appeal. But to succeed, the applicants must still show that the application raises a constitutional matter and that it is in the interests of justice to grant leave D to appeal.

[10] The main contention against the decision of the Supreme Court of Appeal is that the meaning it ascribed to s 64(1)(b) is wrong as it conflicts with the express language used by the legislature and unjustifiably E curtails the constitutional right to strike conferred on all workers by s 23 of the Constitution. [9] This argument undoubtedly raises a constitutional question as it relates to the proper interpretation and application of the provisions of the Act which was enacted to give effect to the fundamental right to strike, among other objects. [10] This court may thus adjudicate the application in terms of s 167(3)(b) of the F Constitution. [11]

[11] It must next be determined whether it is in the interests of justice that leave to appeal be granted. Some of the factors that are important in deciding this question are the importance of the constitutional issues G raised and the prospects of success of the appeal. The central issue raised here, as indicated, relates to the meaning and effect of the procedural requirements contained in s 64(1)(b), on the constitutional right to strike. Its importance is unquestionable. This is especially so in view of the fact that the decision of the Supreme Court of Appeal will affect every strike arising, where strike notice following unsuccessful conciliation is H given to the employer by a trade union to which not all the striking

Maya AJ (Mogoeng CJ, Jafta J and Skweyiya J concurring)

employees are affiliated. Regarding the prospects of success on appeal, A the fact that this is an interpretative enquiry involving statutory provisions which do not, on the face of it, specify who must issue the strike notice, and the Labour Appeal Court's disagreement on the proper construction of these provisions, suggest that there may be prospects of success.

[12] I am satisfied in the circumstances that it is in the interests of justice B to grant leave to appeal.

Appeal

[13] The fundamental question in the appeal is whether the dismissed C strikers met the provisions of s 64(1)(b) of the Act by engaging in a strike when only SATAWU issued a strike notice on behalf of its members.

Applicable law

[14] The relevant provision of the Constitution is s 23(2)(c) which, as mentioned earlier, grants every employee the right to strike. The right, D which is granted without any express limitation in the Constitution, is given content and regulated by the Act in fulfilment of one of its primary objects. [12] To that end, the Act provides [13] substantive limitations [14] and procedural preconditions for the exercise of the right to strike and the employer's corresponding recourse to lock-out.

[15] Section 64 reads in relevant part: E

'(1) Every employee has the right to strike and every employer has recourse to lock-out if —

(a)

the issue in dispute has been referred to a council or to the Commission as required by this Act, and —

(i)

a certificate stating that the dispute remains unresolved F has been issued; or

(ii)

a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the council or the Commission; and after that —

(b)

in the case of a proposed strike, at least 48 hours' notice of the G commencement of the strike, in writing, has been given to the...