Nicholas Preston, Senior Associate, Employment, Cliffe Dekker Hofmeyr
In the recent decision of Imperial Group (Pty) Ltd v SATAWU, J1072/14, the Labour Court was asked to confirm an interim strike interdict, dealing with an alleged unilateral change to terms and conditions of employment.
Prior to the interim interdict being granted, the South African Transport and Allied Workers Union (SATAWU) and their members had referred a dispute to the Bargaining Council alleging a unilateral change to the terms and conditions of their members. Simultaneously with this referral, SATAWU gave the employer 48-hours’ notice to restore the status quo, failing which they would embark on a protected strike in terms of s64(4) of the LRA.
The 48-hour notice period then expired and the employees immediately commenced with their strike action.
In cases of an alleged unilateral change to terms and conditions of employment, s64(4) of the Labour Relations Act, No 66 of 1995 (LRA) provides a unique and expeditious remedy to employees if the status quo is not restored. However, the court confirmed that the interim remedy to embark on a protected strike only continues until such time as a certificate of outcome is issued, or until the expiry of a period of 30 days since the referral, whichever occurs first.
The court in examining the facts found that the dispute had been conciliated on 4 February 2014 and accordingly, the right to continue with the protected strike also lapsed on that day. SATAWU was therefore required to issue a fresh strike notice if it wanted to continue with the protected strike action.
The effect of failing to do this meant that any strike action in terms of s64(4) of the LRA which went beyond the conciliation date of 4 February 2014, was unprotected and could therefore be interdicted.
As an additional factor, the court also considered the clarity of the strike notice and the letter which SATAWU had relied upon as their strike notice.
In analysing the strike notice, the court referred to the decision of Ceramic Industries Ltd t/a Better Sanitary Ware v National Construction Building and Allied Workers Union (1997) 18 ILJ 671 (LAC) in which it was held that a strike notice should be sufficiently clear to articulate the union’s demands and to place the employer in a position where it can take an informed decision to resist or accede to those demands.
Having regard to this authority, the court held that neither the referral form nor the covering letter from SATAWU met these requirements, nor did it identify the terms and conditions clearly enough in order to avoid ambiguity on the part of the employer. Given this non-compliance, the court held that the employer was entitled to interdict the strike.
Employers should therefore scrutinise strike notices so as to ensure that the strike notice is sufficiently clear to enable the employer to know what the union’s demands are from a simple reading of the document. Vague strike notices will be grounds to interdict a strike.
Furthermore and in cases of strike action over the unilateral change to terms and conditions of employment, the court has now confirmed again that a strike will lose its protected status after the conciliation phase has been completed, unless a further strike notice is issued.
Employers should therefore consult with their legal representatives as soon as possible after receiving a strike notice, so as to ensure that the strike notice is clear and valid.
For more information please contact NicholasPreston, Senior Associate at Cliffe Dekker Hofmeyr at firstname.lastname@example.org