Protected strike action: participation by non-unionised employees

From 05 October 2021 to 22 October 2021, NUMSA embarked on Protected Strike Action in the Metal and Engineering Industry. The duration of this Strike Action led to some confusion about who may lawfully partake in the strike, particularly because of the plethora of trade unions within the industry. What one may not consider, however, is the employees who are not represented by a trade union – usually referred to as Non-unionised Employees. Before taking disciplinary action against a Non-unionised Employee for Unauthorised Absence during the protected Strike Action, it is essential to consider the case law regarding the subject.

This case law specifically provides that, while an accused employee may not be a member of the trade union embarking on the strike action, he or she is still entitled to partake in the strike action without facing disciplinary action. The Constitutional Court, in South African Transport and Allied Workers Union (SATAWU) and others v Moloto NO (2012) 33 ILJ 2549 (CC), dealt with the issue of non-unionised employees partaking in protected strike action. The salient facts before the court pertained to the 2003 wage negotiations between SATAWU and Equity Aviation which ultimately deadlocked. SATAWU referred the dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) but attempts to settle the dispute through Conciliation were unsuccessful. A certificate of non-resolution was issued and on the same day SATAWU issued a notice of intention to strike. In December 2003 approximately 725 SATAWU members, plus 60 non-SATAWU employees, embarked on strike action. Equity Aviation took the view that those employees who were not SATAWU members were not covered by the strike notice and were, therefore, engaged in unprotected strike action. These employees were subsequently dismissed for an unauthorised absence from work.

In the Supreme Court of Appeal (SCA), it was found that section 64(1)(b) of the Labour Relations Act 66 of 1995 (LRA) requires a strike notice to be given by or on behalf of every intending striker, and that a union notice of intention to commence strike action does not cover non-union employees. When the matter ended up before the Constitutional Court, the fundamental question it was called upon to answer was “whether the dismissed employees 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” (see paragraph 13).

Overturning the decision reached by the SCA, the majority in the Constitutional Court held that the right to strike, and the specific purpose of the notice provision, in the LRA required nothing more than 48 hours’ notice in advance of a strike – given by any party intending to join the strike. It found that when one considered that SATAWU was recognised by the employer as the collective bargaining agent for all its employees, that there was an agency shop agreement in place, and that the dispute was referred as one concerning the wages of all the employer’s employees, it was clear that the employer could not reasonably have been taken by surprise by the extent of the strike (see paragraphs 47, 49, 50, 51). The Constitutional Court found that this interpretation conforms to the spirit, purport and objects of the Bill of Rights. Therefore, it was declared that the dismissal of the individual applicants (non-union employees) was automatically unfair in terms of section 187(1)(a) of the Labour Relations Act.

This decision is consistent with the jurisprudence of previous decisions, where the courts have not been willing to read into s 64 any additional requirements to those expressly mentioned in the section. The major implication of the Constitutional Court’s decision is a strike notice need not indicate precisely who is going to strike. However, this principle is subject to the condition that the employees going on strike must be identifiable from the notice, read in the context of the happenings which led up to the issuance of the Notice. This is because the Constitutional Court emphasized the factual context of this case and paid particular attention to the existence of an agency shop agreement when making its decision.