Close

June 21, 2017

A CERTIFICATE TO STRIKE DOES NOT AUTOMATICALLY MEAN THE STRIKE IS PROTECTED?

The recent South African Cabin Crew Association (“SACCA”) strike which took place at SA Airways (“SAA”) at the end of April 2017 has produced a number of very interesting principles which employers would do well to note given that the impact of a strike on an employer is very costly in terms of lost production, the failure to be able to deliver on time to a customer and also given that the strike will create a certain degree of tension in the relationship between the employer and the trade union and its representatives which will require a tremendous amount of restorative work following the strike.

The usual strike process occurs over issues of mutual interest and where efforts to conciliate the dispute have proven unsuccessful.  S64 of the Labour Relations Act (“LRA”) permits a party to provide to the employer 48 hours of notice of the intention to strike once a certificate has been received from the relevant dispute resolution institution to the effect that the dispute remains unresolved.

These processes were followed by “SACCA” and the strike in terms of the LRA was duly embarked upon.  SAA sought the intervention of the Labour Court and applied for an interdict in order to prohibit the strike action.   It did so on the basis that the issue in respect of which the strike had been called by “SACCA”, being a wage related matter, had in fact been regulated in a collective agreement.  The Court pronounced on the matter and granted the interdict.

Arising from this Court ruling, the following key principles were established:

  1. Where the matter in dispute is covered in a collective agreement which is applicable to the employer and the other party, and where a strike is embarked upon, the strike is unprotected;
  2. Where the matter in dispute is covered in a collective agreement and where that collective agreement has been validly extended to non-parties and where a strike is embarked upon, the strike is also unprotected;

This means that if a certificate of outcome is obtained indicating that a strike can take place, this does not afford the striking party automatic protection afforded in instances of a protected strike in terms of the LRA.    The Labour Court has the power to determine whether the issue/s in dispute are issues over which a protected strike can be embarked upon, and if they are not it will rule that the strike is unprotected.

The SAA v SACCA Labour Court ruling holds important consequences for employers.   In the first place, employers must pay careful attention to how collective agreements are drafted and to the content thereof.   Secondly, employers must be well acquainted with the content and structure of the collective agreements.  In the third place, there would seem to be the opportunity to ensure that careful consideration is given to the issues contained in the collective agreement as the stipulation of an issue in a collective agreement would restrict and, in point of fact, prohibit the right to strike over that issue.  So as many issues as possible should be incorporated by employers in the collective agreement.  The final pointer would be that employers should not necessarily take a certificate of outcome granting the right to strike to the other party as being uncontestable as the issue in dispute may well be covered in a collective agreement which would make that strike unprotected.

Leave a Reply

Your email address will not be published. Required fields are marked *