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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on “Religious discrimination in the workplace”. We look at two new cases: the first asks whether non-union members have to give notice of their intention to join a strike. The second looks at whether it is possible to reduce a salary without the employee’s agreement.
This public newsletter is a free edited version of the Worklaw subscriber newsletter.
NOTICE: Domestic workers’ wages
From 1 December domestic workers will receive a prescribed minimum salary of R8.34 per hour or R375.19 per week or R1 625.70 per month from their employers. The Basic Conditions of Employment Act 75 of 1997 empowers the Minister to lay down minimum wages for workers in various sectors. The Minister previously increased the minimum wage for domestic workers in 2008 by setting down a minimum wage – R1 340.95 per month as from 1 December 2008 – which was then increased on 1 December in 2009 and 2010 by the consumer price index plus 1%.
Do all strikers have to give notice of the strike before they are protected?
Where a union has given the requisite notice on behalf of its members, and has embarked on a strike, do other employees who are not members of that union need also to give notice in order for their participation in the strike to be lawful?
This question arises from s 64(1) of the LRA which deals with the procedures to be followed by employees who intend to embark on strike action. Section 64 must be complied with in order for employees to strike lawfully, and to enjoy the protection afforded by the LRA. It provides that every employee has the right to strike, and every employer has recourse to lock-out if, first (under 64(1)(a)), the issue in dispute has been referred to a council or the CCMA for conciliation, and either a certificate is issued by the council or CCMA that the issue remains unresolved, or a period of 30 days has elapsed since the referral of the dispute; and, second, after the certificate has been issued, or time has lapsed, under s 64(1)(b) notice is given of the proposed strike.
Section 64(1)(b) provides: ‘[I]n 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 . . . .’
In the recent SCA case (having previously journeyed its way through the CCMA, Labour Court, and Labour Appeal Court) Equity Aviation v SATAWU (478/09)  232 ZASCA (30 November 2011) the union referred a wage dispute to the CCMA. Conciliation did not succeed and on 15 December 2003 the CCMA issued a certificate that the dispute remained unresolved. The union issued a strike notice to Equity Aviation on the same day. The union members did strike, for some four months. Their strike was regarded as lawful as the union had complied with the requirements of s 64(1)(b).
Other employees who did not belong to the union also participated in the strike. Equity Aviation took the view that their participation was unlawful as none had given the requisite notice. On 19 November 2004, Equity dismissed them for unauthorized absenteeism during the strike. The dismissed employees referred a dispute about the lawfulness of their dismissal to the CCMA. Conciliation was unsuccessful, and the matter was referred to the Labour Court; they alleged that their dismissals were automatically unfair in terms of s 187(1)(a) of the Act.
The LC did not believe that there is any requirement for the union giving notice of the strike to identify the employees who will take part in the strike and that employees who are not members of the union are not required to separately refer a dispute for conciliation. Neither are they required to give individual notices of commencement of their participation in that strike. The LC found that section 64(1) establishes a right to strike for “every employee” once the dispute has been processed in accordance with the requirements of that section. The LC found that their participation was thus lawful, and their dismissals automatically unfair.
On appeal to the LAC, the Court found that employees who were not union members were not required to refer a separate dispute to conciliation. But the LAC was not unanimous on whether non union members had to give their own notice of strike action. The majority judgement (2 judges) held that the non union members were effectively covered by the union’s strike notice. The minority judgment held that the non-union members’ strike was not protected by the LRA due to them not giving notice to strike.
The SCA has now supported the LAC minority view. The court found that the non-union members’ dismissals were not automatically unfair. It said the following:
“The requirement of notice is not a limitation of a right. It is a procedural requirement for the exercise of the right to embark on strike action. Requiring all employees to serve such a notice does not impinge on their rights. Nor does such a requirement need to be read into the section. It is the logical interpretation of the section required to give effect to its purpose: warning of the power play that will follow, in such a way that the employer can make informed decisions.”
Based on the SCA judgement, the correct interpretation of s.64(1)(b) is accordingly now this: employees who do not belong to the union that has given the strike notice must, in order lawfully to embark on strike action, give notice that they too intend to strike. Whilst they do not have to refer a separate dispute through the dispute system under the LRA, they have to give their own notice to strike under s. 64(1)(b) for it to be protected. They may do so through a representative or personally, provided that their notice alerts the employer to the extent of the strike (which will always be a matter of fact) and allows it to make the necessary arrangements. The SCA said that if it were otherwise, the Act would “promote not only disorderly collective bargaining but will also usher in an era of chaotic collective bargaining in our labour dispute resolution system”.
An unintended consequence of the judgement may be that whilst SATAWU effectively lost this case, it will work as a major recruiting drive for unions in that they will argue that employees' strikes wont be protected by the union's strike notices unless they are union members.
A final comment on this judgement: employees were dismissed in November 2004 and the SCA delivered its judgement in November 2011- some 7 years later! Parties seeking to process disputes through the courts’ appeal structures need to factor in the cost that such delays will inevitably cause.
Unilateral reduction in salary
Over time, in most work places, anomalies creep into pay structures. Because of long service one employee can often earn considerably more than a co-employee doing the same job. Or to secure a new ‘hot’ employee, the employer appoints her/him at a higher salary than long-serving employees. Whilst the employees remain unaware of these differences, there are no consequences for the employer. But once it is discovered (and it usually is at some stage) then there are grievances, and low morale and resentment creeps in to poison inter-personal relationships.
What is the employer’s responsibility as regards ‘equal pay for equal work’? How can an employer correct an anomaly that may cause friction?
In the recent decision of Abrahams v Drake & Scull Facilities Management (SA) (Pty) Ltd (unreported case LC1105/10 dated 11 November 2011) the Labour Court was faced with this sort of situation. The employer realized that a number of employees who were doing the ‘same work’ were being paid considerably less than an employee with more than 30 years’ service. For that reason the employer decided that it was necessary to ‘bring the employee into line’.
The employer, after consulting with an employee, unilaterally reduced the employee’s monthly salary by about 75%. The employee refused to accept the change but continued to tender her services and was allowed to continue working despite only being paid the reduced amount. The employee referred a dispute to the CCMA claiming a unilateral change of conditions (section 64(4) of the LRA) but the dispute was not resolved at the conciliation stage.
The employee applied to the Labour Court for interim relief pending a final order ordering the employer to restore and comply with the terms and conditions of her employment contract and pay her the income she had lost.
The Labour Court granted an order in those terms after deciding that it was unlawful, impermissible and unfair for the employer to have unilaterally changed her contract of employment . The judgment says that the employer “could have embarked on a process in terms of s 189 of the LRA; but it elected not to do so, and nor did it follow the lock-out route in terms of section 64”.
The possibility of using a lock-out is a little confusing because some would say that a lock out is a form of collective action and it is debatable whether it is lawful to lock out a single employee. Just as a single employee cannot go on strike, so it seems contrary to our idea of a show of collective strength that an employer can lock out a single employee. It conjures up rather humiliating pictures of a burly security guard preventing the individual employee from entering the premises!
But what we can learn is that in the court’s view the proper way to deal with a refusal to adjust salary is through consultations that precede retrenchment for operational reasons. If agreement on some basis could not be reached through the consultation process, this would be a retrenchment not because the employer could not afford the salary but because for other “economic, structural or similar” reasons, such as the need for consistency, fairness, and morale.
The case also highlights that employers do need to think through what it means practically to remunerate equally for the same work or work of equal value. Salaries adjusted upwards each year can lead to huge discrepancies between remuneration levels of long serving employees and employees newly recruited. Employers should ensure that any such discrepancies can be defended.
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December 2011 / January 2012