Struck out | When a union fails to give a valid strike notice
By David Short | Director
In the matter Road Accident Fund v National Union of Metalworkers of SA Others the Labour Court highlights the technical nature of strike action and the consequences which may follow where the Court is not satisfied that the preemptory requirements applicable to strikes have been satisfactorily complied with.
The Initial Issue
The employees of the Road Accident Fund (RAF) embarked on strike action in the wake of a facilitation process in terms of Section 189 A of the Labour Relations Act 66 of 1995 as amended.
The reason for the RAF embarking on a consultative process as contemplated in Section 189 A of the LRA was as a result of the adoption of a new business operating model in order to render it more efficient in reaction to various criticisms from attorneys as well as the public regarding poor service levels.
The issue which was discussed during the facilitation process was the placement of employees using a culture fit assessment process which in essence amounted to an organizational redesign process aimed at increasing organizational efficiencies.
The Trade Union, The National Union of Metalworkers of South Africa (NUMSA) did not agree with RAF’s proposed organizational re-design, however, RAF nevertheless proceeded to place employees in the new organizational structure which had been adopted.
NUMSA claimed that RAF had unilaterally altered the terms and conditions of its employees who were its members by placing them in re-designed jobs within the new structure and declared a dispute as contemplated in Section 64 (4) of the LRA relating to a unilateral amendment to terms and conditions of employment.
The dispute was conciliated by the Commission for Conciliation Mediation and Arbitration (CCMA), however, the dispute remained unresolved.
Defective Notice
After conciliation failed, NUMSA then issued a notice to RAF advising that its members would be embarking on strike action.
RAF adopted the view that the strike notice was defective for a number of reasons, which included the fact that the strike notice issued by NUMSA failed to state what demands NUMSA were pursuing, which if acceded to by RAF, would render the strike unnecessary. It is necessary to point out that the LRA contains no provisions prescribing what information should be included in a strike notice and the Court therefore had to determine what information it believed should be contained in a strike notice drawing from previous decided cases.
The RAF promptly approached the Labour Court for urgent interim relief on the basis that it contended that the defects in the strike notice rendered the strike unprotected and sought to interdict the strike.
The Labour Court granted an interim interdict whereby the strike was interdicted pending NUMSA showing cause why the interdict should not be made final.
NUMSA, however, opposed the RAF’s attempts to make the interdict final and attempted to defend the validity of its strike notice.
The Labour Court, after considering NUMSA’s representations, held that the strike notice given by it was defective in that no particularity was given of the demand it was pursuing. The Court rejected NUMSA’s contention that as it had prior to serving the strike notice, set out its demands in a press release with the effect that RAF was patently aware of the demands it would be pursuing through the intended strike action. The Court held that NUMSA could not rely on the press release which itself was not a model of clarity, as it also referred to demands which were not part of the referral of the dispute to conciliation, such as the removal of RAF’s Chief Executive Officer Collins Letsoalo as a result of continuous mismanagement of the entity by him.
The Court held that the strike notice should inform an employer of what demands the employees are pursuing through strike action in order for it to discern what action is required by it to avoid the strike.
The Court went on to find that the defective nature of the strike notice given by NUMSA rendered the strike unprotected and it could not be relied upon. The strike was accordingly interdicted solely on such basis.
The Court, however, intimated that the strike could regain its protected status if a fresh notice containing all the required information was issued.
Key Take Aways
The Labour Court has developed strike jurisprudence by imposing new criteria for strike notices which would also apply to notices given by employers intending to embark on a lock out.
A strike notice must be clear and must describe the demand which formed the basis of the intended strike action in sufficient detail in order to enable the employer to decide whether it wishes to accede to such demand to avert the strike. Where strike notices are not clear, employees will be in a position to interdict such strikes, which may well cause the employees to lose their appetite for the strike.
Where an employer objects to a strike notice, employees should immediately take steps to remedy the claimed defects in the strike notice to avoid the strike being regarded as unprotected, as this could have dire consequences for the striking employees who could face consequence management as a result of them embarking on an unprotected strike.