1 1 PRESENTED BY PETER LE ROUX Director Brink Cohen le Roux Inc. BCLR Place, 85 Central Street Houghton, Johannesburg Tel: (011) Fax: (011) ANALYSING THE DEFINITION OF A STRIKE: SOME INTERESTING DECISIONS

2 DEFINITION OF A STRIKE - SECTION "… the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to “work” in this definition includes overtime work, whether it is voluntary or compulsory; " The definition consist of three elements: The actions of the employees involved. It must be concerted. It must be directed at achieving a specific purpose. See: NUM obo Employees v CCMA And Others [2012] 1 BLLR 22 (LAC).

3 Itumele Bus Lines (Pty) Ltd t/a Interstate Bus Lines v Transport and Allied Workers Union of SA (2009) 30 ILJ 1099 (LC) 3 Trade union demanded that shares in the employer allocated to the employees through a trust be increased from 10 per cent to 20 per cent. Employer sought a declaratory order to the effect that employees would not be entitled to embark on a strike in pursuance of such a demand and that the strike would be unprotected. The employer also sought an order to the effect that the demand is not a "lawful demand" and that the demand does not relate to a matter of mutual interest. The Court found that the demand related to a matter of mutual interest. It also found that demand was for the purpose of remedying a grievance or remedying a dispute.

4 SA Post Office Ltd v TAS Appointment and Management Services CC and Others (2012) 33 ILJ 1958 (LC) 4 The Court granted an order declaring a strike embarked upon by employees of labour brokers assigned to the Post Office to be unprotected. The demand made by the employees of the labour brokers was that the SA Post Office should employ them on a permanent basis.

5 TSI Holdings (Pty) Ltd v NUMSA & Others [2004] 6 BLLR 600 (LC); (2004) 25 ILJ 1080 (LC) 5 Employees unhappy with the conduct of a manager and accused him of making racist comments. The employer sought an order that a strike on the issue be declared illegal. Employer argued that the strike was unprotected because the demand is "unlawful, unreasonable and irrational". The Labour Court granted an interim order to this effect. On the return date the Labour Court refused to confirm the order. The Labour Court rejected the argument that a strike can be rendered unprotected on the basis of the unreasonableness of a demand or the irrationality of the demand. The Labour Court found that a strike should not be protected if the demand is unlawful - eg if the demand, if met, would lead to a contravention of health and safety legislation. In this case the demand was not unlawful.

6 TSI Holdings (Pty) Ltd v NUMSA & Others (2006) 27 ILJ 1483 (LAC); [2006] 7 BLLR 631 (LAC) 6 The LAC found that the purpose of the strike was to compel the employer to dismiss the manager. The LAC then considered whether this was a lawful demand. It found that the demand that the manager be dismissed violated the right not to be dismissed unfairly. The LAC confirmed the rule.

7 City of Johannesburg Metropolitan Municipality v SAMWU & Others [2009] 5 BLLR 431 (LC) 7 A demand that an employee be suspended in "fair manner" not unprotected.

8 Chubb Security SA (Pty) Ltd v United Private Sector Workers Union & Others (Unreported J1467/ /2 2006) 8 Demand that a manager resign or be dismissed constitutes an unlawful demand. Demand that an employer adopt a practice in breach of the BCEA is unlawful. Demand that a board of trustees of a retirement fund be dissolved and reconstituted constitutes an unlawful demand in breach of the Pension Funds Act. Strike interdicted on this basis.

9 Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union & Others (2012) 33 ILJ 998 (LC); [2012] JOL (LC) 9 "[13]This court will always intervene to protect both the right to strike, and the right to peaceful picketing. This is an integral part of the court's mandate, conferred by the Constitution and the LRA. But the exercise of the right to strike is sullied and ultimately eclipsed when those who purport to exercise it engage in acts of gratuitous violence in order to achieve their ends. When the tyranny of the mob displaces the peaceful exercise of economic pressure as the means to the end of the resolution of a labour dispute, one must question whether a strike continues to serve its purpose and thus whether it continues to enjoy protected status."

10 ARE THE ABOVE ACTIONS STRIKES? 10 In all or most of the decisions referred to above where the actions of employees were interdicted the question it seems to have been accepted that that the employees were on strike but that the strike was unprotected. The basis for these findings are not clear. Whether a strike is protected or not is regulated in sections 64, 65 and 66. No reference is made to these provisions.

11 ARE THE ABOVE ACTIONS STRIKES? 11 An argument can be made that we are not dealing with strikes as defined at all. Can it be said that the demand made by the workers in the Itumele Bus Lines decision is against their employer? The demand made by the employees in the SA Post Office was not against their employer. If it is not a strike can the action be interdicted? If so on what basis? Collective action in breach of contract – some form of declaratory order that employees are in breach of their contracts or an order preventing the employees from breaching their contracts of employment? See the Johannesburg Metropolitan Municipality decision.

12 UNLAWFUL DEMANDS 12 Is collective action in support of an unlawful demand a strike? See the Johannesburg Metropolitan Municipality decision - "This finding indicates that the lawfulness of the demand is an issue that is relevant to the definition of strike rather than to the question whether the strike is protected. In other words, an unlawful demand directed to an employer does not give rise to a strike."

13 UNLAWFUL DEMANDS 13 See also the LAC TSI decision - "The above scenario shows, in my view, beyond doubt that the demand such as the one made by the respondents to the appellant in this case falls outside the category of demands that can be supported by a concerted refusal to work, the retardation or obstruction of work as envisaged in the definition of a strike. …. Accordingly, it seems to me that the purpose of the concerted refusal to work or retardation or obstruction of work contemplated in the definition of the word "strike" in section 213 of the Act cannot be conduct that would constitute a violation of the right not to be unfairly dismissed provided for in section 185 read with section 188 of the Act."

14 DETERMINING FAIRNESS 14 The implication of the TSI decision and the JHB Metropolitan Municipality decision is that employees can make a demand that a manager be subjected to a fair disciplinary process. What is the position if the employer feels that there is insufficient evidence justifying such a step being taken and refuses to hold hearing? What is the position if the employer holds a hearing and decides that the employee was not guilty or decides that the degree of guilt does not justify dismissal? The LAC states that it is "arguable" that, at least in the latter case, that such a demand may form part of a protected strike. The LAC seems to accept that when dealing with this type of demand the Court will be entitled to consider the merits of the allegation against employee.

15 STRIKES LOSING THEIR PROTECTED STATUS AS A RESULT OF VIOLENCE 15 What could be the basis for such a principle? See A Ryecroft "Can a Protected Strike Lose its Status" (2012) 33 ILJ 821 and section 158(1)9a)(iv). It is arguable that the most probable basis for this type of argument will be that the strike is no longer a strike?

16 MORE CONTENTIOUS ISSUES 16 Is it only unlawful demands that render collective action unprotected? What about demands that are incapable of being met? See SA Commercial Catering & Allied Workers Union & Others v Transkei Sun International Ltd t/a Wild Coast Sun Hotel, Casino & Country Club (1993) 14 ILJ 867 (TkA) and Modise & Others v Steve’s Spar Blackheath (2000) 21 ILJ 519 (LAC). What about unreasonable demands?