Author: Charissa Chengalroyen – Candidate Attorney
*Supervised by Candice Pillay – Director
Workers’ Day on 1 May commemorates and acknowledges the role of trade unions in the South African economic landscape as facilitators of change in working conditions, health and safety standards, wages and remuneration benefits. Trade Unions highlight the need for these changes or improvement through the coordinated mobilisation of the affected employees, commonly referred to as “striking”.
The Covid-19 pandemic has resulted in national retrenchments and wage reductions which have had a negative impact on the economic and financial circumstances of South Africans. Bearing this in mind, the need for trade unions to protect employees in this precarious and uncertain environment is more crucial than ever.
An example of an attempt by trade unions to protect employees’ health and safety conditions in the workplace during the pandemic can be found in the recent case of De Heus (Pty) Ltd v South African Commercial and Catering Workers Union (SACCAWU) and Others (J 685/20) [2020] ZALCJHB 149 (7 September 2020).
This case dealt with an employee who tested positive for Covid-19. The employee then informed her fellow colleagues of her Covid-19 status. Thereafter, the employees partook in a picket due to uncertainty around the employer implementing measures to mitigate the spread of the virus.
However, the case emphasised the following;
“There can be no doubt that health and safety issues in the current climate of Covid-19 are paramount, and that the safety of employees at all workplaces should not be compromised. However, this does not entitle employees to embark on industrial action at a whim, without first raising the issues with employers, or DEL (the Department of Employment and Labour) where the Regulations are not complied with, or without first complying with the provisions of section 64 of the Labour Relations Act” (para 15).’[1]
Section 64 of the Act states:
Right to strike and recourse to lock-out
Every employee has the right to strike and every employer has recourse to lockout 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 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 commencement of the strike, in writing, has been given to the employer, unless –
(i) the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or
(ii) the employer is a member of an employers’ organisation that is a party to the dispute, in which case, notice must have been given to that employers’ organisation;..
At first blush this statement in the De Heus judgment appears self-explanatory. However, before the pandemic began, section 64 of the Act had already been the subject of criticism for being uncertain in its application.[2]
The crux of the issue lies in the interpretation of section 64(1)(b). The cases of Equity Aviation Services (Pty) Ltd v SA Transport & Allied Workers Union 2011 32 ILJ 2894 (SCA) and SA Transport & Allied Workers Union v Moloto 2012 33 ILJ 2549 (CC) engage at the length with the position of non-unionised workers and the requirement of providing a separate notice to inform the employer of the intention to strike.
A strict interpretation of the provision would provide greater certainty in law and give effect to the purpose of the Act but it would be at the expense of redressing the imbalance of powers between employer and employee, regardless of whether they belong to trade unions or not, and giving effect to the Constitutional rights to fair labour practices and the like.[3] This imbalance has been exacerbated during the pandemic, meaning that a new and constitutionally driven perspective and interpretation of the provision is welcomed.
[1] De Heus at para 15.
[2] See eg , DC Subramanien; JL Joseph The Right to Strike under the Labour Relations Act 66 of 1995 (LRA) and Possible Factors for Consideration that Would Promote the Objectives of the LRA, PER 22 (2019).
[3] See section 23 of the Constitution of the Republic of South Africa, 1996. Op cit note 2.
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