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MAY 2013 PUBLIC NEWSLETTER


Worklaw is a subscription based labour law service developed by leading South African labour lawyers and arbitrators. Worklaw gives you all you need to manage labour law at the workplace. Go to www.worklaw.co.za

Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on procedural fairness in dismissals for an unprotected strike. We also look at four new cases: The first looks at what constitutes 'bias' by a commissioner at the CCMA or bargaining council. The second looks at the requirements in the LRA for a secondary strike. The third and fourth cases (discussed in our article) deal with procedural fairness in unprotected strikes.

This public newsletter is a free edited version of the subscriber newsletter.

LEGISLATION UPDATE

COIDA Amendment Bill to provide for domestic and farm workers

Amendments to the Compensation for Occupational Injuries and Diseases Act (COIDA) 130/1993 are expected to be tabled in Parliament during the third quarter of this financial year and will include provisions for both domestic and farm workers, according to a written reply by Labour Minister Mildred Oliphant in the National Assembly. Also, during an address to members of the National Council of Provinces (NCOP), the Minister alluded to changes to the Unemployment Insurance Act 63 of 2001 that - among other things - will bring domestic workers into the maternity benefits framework.

RECENT CASES

What constitutes 'bias' by a commissioner?

After the dismissal for misconduct of NUM members (which occurred during a strike called by NUM in support of a demand that the employer recognise the union for collective bargaining purposes), the dispute was referred to arbitration. The commissioner issued an award in favour of NUM, and found that the dismissal of the employees was substantively unfair. He ordered their reinstatement, with retrospective effect.

After receipt of the award, the employer investigated the commissioner's background and discovered that he was previously a senior official of SACCAWU, a registered trade union and a co-affiliate with NUM of COSATU. The employer also discovered that the commissioner had represented SACCAWU in an arbitration hearing in 2002, some eight years earlier. The employer took the arbitrator on review on the ground of his failure to disclose these material facts to the parties.

This case - Protech Khuthele (Pty) Ltd and Another v Wabile NO and Others (JR 179/11) [2012] ZALCJHB 168 (12 October 2012) - therefore concerned the apprehension of bias - not in the form of a prior direct association with any of the parties before the commissioner - but his prior association with a trade union that enjoys with one of the litigants a shared affiliation to a trade union federation, and the extent to which any shared values flowing from those associations might have prevented the commissioner from bringing an impartial and unprejudiced mind to bear on the resolution of the dispute before him.

The Labour Court set out the principles for 'apprehension of bias' and found that there was no merit in the employer's submission, since there was no logical connection between the commissioner's association with SACCAWU and the feared deviation from a fair and impartial hearing in this case. There was no suggestion that the subject matter of the litigation before the commissioner arose from his prior association with SACCAWU, or SACCAWU's affiliation to COSATU. In particular, there was no suggestion that in the course of his association with SACCAWU, the commissioner acquired personal information that was relevant to the dispute that he was required to determine.

What do we learn from this case? It is inevitable that many commissioners (in the CCMA or bargaining councils) who have the necessary knowledge and experience of labour law to qualify for appointment as commissioners, would have had their foundational experiences informed either from a trade union or a management perspective. But prior association with an institution may not form the basis of a reasonable apprehension of bias unless the subject matter of the litigation arises from the prior association or activities. It was also important in this case that the institution the commissioner had been associated with was not a party to these proceedings - the outcome of the review may have been different had that been the case.

Secondary strikes: what are the legal requirements?

A secondary strike is one that is in support of a strike by other employees against another employer. The idea behind a secondary strike is that the 'secondary' employer will put pressure on the 'primary employer' to settle the dispute. The important aspect here is that the secondary strike is conducted by workers who are not employed by the employer engaged in the primary strike.

The right to participate in the secondary strike is not unqualified. In terms of section 66 of the LRA, no person may take part in a secondary strike unless:

1. The primary strike is protected;
2. The employer has received at least seven day's prior written notice of the secondary strike:
3. The nature and extent of the secondary strike is reasonable in relation to the possible direct or indirect effect that the secondary strike may have on the business of the primary employer.

If the above requirements are met, the secondary strike would then also be a protected strike The Labour Court had to consider whether these requirements were met in Transnet SOC Ltd v SATAWU (J 2697/12) [2012] ZALCJHB 107 (12 October 2012). SATAWU served a notice of a secondary strike on Transnet, on 8 October 2012. The secondary strike was due to commence on 16 October. Transnet employs approximately 63 000 employees across six areas of operations. The secondary strike was aimed at Transnet Freight Rail (TFR) and Transnet Port Terminals (TPT). The "primary employers" were employers in the road freight industry, where SATAWU members had been on strike for over 2 weeks. The strike has been marred by numerous incidents of violence, including vehicles being stoned and petrol bombed and a non-striking truck driver having lost his life after a brick had been thrown at his truck and hit him on the head.

TFR transports goods and commodities by rail, primarily to and from six main ports. It employs approximately 36 321 employees, of whom 39% (14 158 employees) are members of SATAWU. TPT is responsible for the handling of cargo that is transported through South African ports. It employs approximately 6 255 bargaining unit employees, of whom 62% (3878 employees) are members of SATAWU. Its customers are primarily the shipping industry, vehicle manufacturers, agriculture, timber and forest products, the mining industry and exporters of minerals, metals and granite.

Transnet sought to interdict the planned secondary strike on three main grounds: (1) the strike notice was defective as it did not comply with the requirements of the parties' collective agreement; (2) a secondary strike by SATAWU's members would not have any direct or indirect effect on the business of the primary employers; and (3) the nature and extent of the secondary strike would be unreasonable in relation to the possible direct or indirect effect of such a strike on the business of the primary employers.

Transnet sought to interdict the planned secondary strike on three main grounds: (1) the strike notice was defective as it did not comply with the requirements of the parties' collective agreement; (2) a secondary strike by SATAWU's members would not have any direct or indirect effect on the business of the primary employers; and (3) the nature and extent of the secondary strike would be unreasonable in relation to the possible direct or indirect effect of such a strike on the business of the primary employers.

The court confirmed that whether or not a secondary strike is protected is determined by weighing up two factors - the reasonableness of the nature and extent of the secondary strike and secondly, the effect of the secondary strike on the business of the primary employer.

These were the factors the court considered:

• The strike was set to last for one full day at TFR and three full days at TPT. It would take the form of a full-blown strike as opposed to the workers withholding their labour for a limited duration during the day or an overtime ban.



• The strike at TFR would involve some 36 000 employees as opposed to the less than 25 000 employees still participating in the primary strike. At TPT the strike would last for three days and involve more than 4000 employees. The court said that the disproportionate number of Transnet employees who would embark on the secondary strike relative to those of the primary employers still on strike was a factor to be considered.



• It was difficult to assess the possible future conduct of the employees. However, the court had the benefit of being able to consider the conduct that had characterised the primary strike to date. It had been particularly violent and disruptive, going far beyond the aims of orderly collective bargaining and peaceful picketing.



• TPT and TFR do not fall within the road freight sector; as such, the major impact of the strike on the secondary employer would appear to be disproportionate to its possible direct or indirect effect on the business of the primary employers.



• In terms of s 66 (6) of the LRA, the Labour Court must take account of the CCMA's report on whether the Act's requirements for a secondary strike had been complied with, before making an order. No CCMA report was available to the court, despite this having been requested by Transnet.

Based on the above factors, the court concluded that the nature and extent of the secondary strike was unreasonable in relation to the possible direct or indirect effect that the secondary strike might have on the business of the primary employer. The court therefore issued an interim interdict, calling on SATAWU to show cause why the following orders should not be made final:

1. declaring the secondary strike in contravention of section 66(2)(c) of the LRA;
2. directing SATAWU to withdraw its secondary strike notice;
3. interdicting and restraining SATAWU from calling for a secondary strike; and
4. directing SATAWU to notify its members employed at TPT and TFR not to embark on a secondary strike.

The CCMA was also ordered to submit its required report in terms of section 66(5) of the LRA, as had been requested by Transnet, by a specified date.

What can we learn from this case? The first lesson is a procedural one: when the LRA requires a report from the CCMA before allowing a secondary strike, this must be before the court, otherwise the strike may be interdicted. The second lesson is in the court's assessment of the proportionality of the secondary strike - that the nature and extent of the secondary strike would have had a major impact on Transnet, and the court held this was not reasonable in relation to the possible direct or indirect effect on the primary employers. This proportionality aspect is a difficult balance to assess - and this case gives us a practical example of the court weighing up the various factors to be taken into account.

The third lesson is that where parties agree in a collective agreement to more stringent conditions than those laid down in the LRA, those must be complied with. In this case, the parties had agreed on more detail in the union's secondary strike notice than what is required by the Act, and the court ruled that these additional details had not been sufficiently provided. The fourth lesson was that the violence in the primary strike was taken into account by the court in assessing whether or not to grant the interdict, because it assumed that a similar outcome may result in the secondary strike. This is a further case that shows the Labour Court will question the protected status of strike action when violence has occurred.

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Bruce Robertson
May 2013
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