Cheadle Strikes Final

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Published on November 19, 2007

Author: AscotEdu

Source: authorstream.com

STRIKES AND LOCKOUTS:  STRIKES AND LOCKOUTS HALTON CHEADLE 1 AMENDMENTS TO THE LRA CLL 75-6:  AMENDMENTS TO THE LRA CLL 75-6 Right to strike over retrenchments (the ‘target’) Only in respect of an employer who: employs more than 50 employees [s189A(1)] and contemplates retrenching more than the threshold (approx 5% -10% of the workforce depending on the number of employees employed by the employer) Right to strike over retrenchments (the ‘limitations’) No right to strike: if union refers dispute to Labour Court [s over procedural fairness of the retrenchment 2 AMENDMENTS TO THE LRA CLL 75-6:  AMENDMENTS TO THE LRA CLL 75-6 Right to strike over retrenchments (the ‘procedure’) Procedural requirements the special retrenchment procedures in must be exhausted the ‘facilitation procedure’ [section 189A] the ‘extended conciliation procedure’ [sections 64(1) and 189A( 8)] noitce of commencement only after employer dismisses or gives notice of dismissal [section 189A(9)] 14 days notice is required in respect of secondary strikes Right to lock out over retrenchments Only a defensive lock out permitted in respect of retrenchments 3 Slide4:  S 189(3) NOTICE TO CONSULT FACILITATION CONCILIATION 30 days 60 days DISMISSAL or NOTICE OF DISMISSAL 30 days STRIKE NOTICE STRIKE LABOUR COURT AMENDMENTS TO THE LRA CLL 76:  AMENDMENTS TO THE LRA CLL 76 Compensation for unlawful conduct Labour court now has the jurisdiction to award compensation for unlawful conduct in furtherance of a protected strike PROTECTED STRIKES CLL 77:  PROTECTED STRIKES CLL 77 Matter of mutual interest the obligation to work overtime is a matter of mutual interest this is a judgement that should not have been reported. Enforce Guarding Meaning of strike one worker cannot go on strike PETUSA obo Viljoen and Media 24 Ltd 6 PROTECTED STRIKES CLL 77:  PROTECTED STRIKES CLL 77 Misconduct during a protected strike Metrofile case blockading entrances, firing shots in the air, throwing stones at replacement labour - constitutes misconduct employer obtains an interdict holds a disciplinary enquiry on the conduct and the refusal to comply with the court order during the strike only the shop stewards were invited to attend on behalf of the workers 7 PROTECTED STRIKES CLL 77:  PROTECTED STRIKES CLL 77 Misconduct during a protected strike Metrofile case Obligations of the employer to try and persuade employees to stop the conduct and obtaining a court order is a form of persuasion Disciplinary enquiry into unlawful conduct court held that it was appropriate for shop stewards requested to attend a disciplinary on behalf of the employees highly questionable conclusion - confuses the right to representation with the right of substitution - every employee is entitled to be at a hearing in which the misconduct is individual in nature even though conducted collectively. 8 PROTECTED STRIKE CLL 77:  PROTECTED STRIKE CLL 77 Misconduct during a protected strike Metrofile case Disciplinary enquiry into unlawful conduct Court held that there was no ‘valid reason for holding a disciplinary hearing during the strike. Highly questionable – not motivated. There may be very good reasons for holding them before or after the strike has ended – those are strategic and have no bearing on the fairness of the hearing. PROTECTED STRIKES CLL 78:  PROTECTED STRIKES CLL 78 Notice of commencement of a strike notice need not contain details of the demand, the nature of the strike or its projected duration PSA v Minister of Justice Right to strike over organisational rights CLL 77-86 NUMSA v Baderbop section 14 of the LRA confers the right to trade union representation if the union represents a majority of employees in the workplace section 21 provides any dispute over the grant of an organisational right must be referred to arbitration 10 PROTECTED STRIKES CLL 77-86 :  PROTECTED STRIKES CLL 77-86 Right to strike over organisational rights NUMSA v Baderbop section 65(1)(c) prohibits strikes in respect of disputes of right section 65(2)(a) creates an exception in respect of organisational rights. It reads: 'Despite section 65(1)(c), a person may take part in a strike or lock-out ... if the issue in dispute is about any matter dealt with in sections 12 to 15.' 11 PROTECTED STRIKES CLL 77-86 :  PROTECTED STRIKES CLL 77-86 Right to strike over organisational rights NUMSA v Baderbop Two judges of the LAC held that it is not permissible for a minority trade union to strike over organisational rights. The third judge dissented. Reasoning of Zondo JP wording of section 65(2)(a) so seriously deficient that the legislative intention to permit strikes over organizational rights failed to be realised 12 PROTECTED STRIKES CLL 77-86 :  PROTECTED STRIKES CLL 77-86 Right to strike over organisational rights NUMSA v Baderbop Reasoning of Zondo JP (cont) section 21 allows both the employer and the union to refer a dispute over organisational rights to arbitration therefor an employer can frustrate the right to strike by simply referring the dispute to arbitration - ‘the right to strike … can only be exercised at the employer’s convenience and pleasure’ 13 PROTECTED STRIKES CLL 77-86 :  PROTECTED STRIKES CLL 77-86 Right to strike over organisational rights NUMSA v Baderbop Reasoning of Zondo JP organisational rights are exclusive and accordingly a rival union with those rights can interdict an employer from conceding organisational rights to a minority trade union Reasoning of Du Plessis AJA organisational rights can be acquired only within the ambit of sections 11 to 22 of the LRA ie only a majority trade union is entitled to representation rights in the workplace 14 PROTECTED STRIKES CLL 77-86 :  PROTECTED STRIKES CLL 77-86 Right to strike over organisational rights NUMSA v Baderbop Reasoning of Du Plessis AJA if a minority trade union can acquire organisational rights then a majority trade union can do the same. That would render sections 14 to 16 ‘superflous’. Reasoning of Davis AJA the interpretation advanced by Du Plessis limits the constitutional right to strike Courts are bound to interpret statutes in favour of constitutional rights 15 PROTECTED STRIKES CLL 77-86 :  PROTECTED STRIKES CLL 77-86 Right to strike over organisational rights NUMSA v Baderbop decision on appeal to Constitutional Court majority reasoning suspect on its own terms - see critique in CLL 81-6 there were two contending interpretations and the majority failed to apply constitutional principle of interpretation that the interpretation more consistent with the constitution should be preferred 16 PROTECTED STRIKES CLL 77-86 :  PROTECTED STRIKES CLL 77-86 Right to strike over organisational rights NUMSA v Baderbop the alternative interpretation there are two kinds of dispute a dispute over a right contained in sections 11 to 16 a dispute over a ‘matter dealt with’ in sections 12 to 16 there are two kinds of procedure a procedure for rights – section 21 a procedure for strikes – section 64 PROTECTED STRIKES CLL 77-86 :  PROTECTED STRIKES CLL 77-86 Right to strike over organisational rights NUMSA v Baderbop the alternative interpretation the right to strike is a workers’ right – the effect of the decision is to prevent not just minority unions but unregistered trade unions too – without any obvious justification it is contradictory that recognition is a strikeable issue and yet an element of recognition like organisational rights is not. PROTECTED STRIKES CLL 86 :  PROTECTED STRIKES CLL 86 Restrictions on the right to strike there must be a collective agreeement before it can be said that the right to strike is extinguished in respect of the matters contained in that agreement agreement on the percentage increase but not the basis upon which it was to be calculated means that the ‘agreement’ is inchoate the agreed 6,5% increase when calculated in respect of monthly paid employees turned out to be 3,9% court held, on the limited facts available to it, that an agreement on a percentage increase but not the basis upon which it was calculated is no agreement Highveld Steel and Vanadium Corporation 19 PROTECTED STRIKES CLL 86:  PROTECTED STRIKES CLL 86 Right to strike a trade union may call all its members out on strike in a workplace even those that may not be individually part of the dispute employees who are not the intended beneficiaries of a strike may join a strike in support of their co-employees Rustenberg Base Metal Refineries PSA v Minister of Justice 20 PROTECTED STRIKES CLL 87-8:  PROTECTED STRIKES CLL 87-8 Secondary strikes Billiton Aluminium v NUMSA section 66 of the LRA states that a secondary strike must be ‘reasonable’. The relevant provision reads: ‘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’ 21 PROTECTED STRIKES CLL 87-8:  PROTECTED STRIKES CLL 87-8 Secondary strikes Billiton Aluminium v NUMSA The Labour Court held that the test of reasonableness does not include a consideration of the effect that the secondary strike has on the secondary employer Accordingly the court held that even though a secondary strike would cause the loss of billions of rands and the destruction of the plant, this was not a factor to be taken into account 22 Slide23:  BHP BILLITON (London) BILLITON ALUMINIUM SAMANCOR (100%) (60%) NUMSA SECONDARY STRIKE PRIMARY STRIKE PROTECTED STRIKES CLL 87-8:  PROTECTED STRIKES CLL 87-8 Secondary strikes Billiton Aluminium v NUMSA Court reasoning suspect what is being compared is the nature and extent of the secondary strike and the effect of that strike on the business of the primary employer the nature of a strike involves an enquiry into the form of the strike - a partial strike, an overtime ban, a complete stoppage etc the extent of a strike involves an enquiry into the number of strikers and the duration of the strike 24 PROTECTED STRIKES CLL 87-8:  PROTECTED STRIKES CLL 87-8 Secondary strikes Billiton Aluminium v NUMSA Court reasoning suspect nature and duration of a secondary strike are considerations that affect the secondary employer the alternative reasoning would regard it as unreasonable to proceed on a complete stoppage if - a partial stoppage would have the same effect on the business of the primary employer the stoppage would destroy the secondary employer’s business whatever effect that may have on the business of the primary employer 25 PROTECTED STRIKES :  PROTECTED STRIKES Secondary strikes Hextex & Others v SACTWU (unreported - D137902 - 17/09/2002 – not in CLL) Court (same judge) held that the reasonableness of the nature and extent of the secondary strike did not include its impact on the secondary employer Facts demonstrate that there was very little impact on the primary employer and yet the Court permitted a full secondary strike at three of the four factories in the Seardel Group. Slide27:  SEARDEL GROUP BIBETTE BERG RIVER ROMATEX HEXTEX TEAM PUMA SUPPLY OF RAW MATERIALS 0,69% OF PRODUCTION SACTWU PRIMARY STRIKE SECONDARY STRIKE PROTECTED STRIKES CLL 87-8:  PROTECTED STRIKES CLL 87-8 Secondary strikes Hextex & Others v SACTWU (unreported - D137902 - 17/09/2002 – not in CLL) Comparison between Billiton and Hextex demonstrate that the nature and extent of the strike was never taken into account in determining the reasonableness of the secondary strike – a full secondary strike was permitted irrespective of its impact on the business of the primary employer from extensive (Billiton) to minimal (Hextex) The argument of self-regulation in strikes does not apply to two types of strike (protest action and secondary strikes) in which the employer affected is not the cause of the dispute or able to resolve it PROTECTED STRIKES CLL 88-9:  PROTECTED STRIKES CLL 88-9 Unilateral change to terms & conditions Rustenberg Base Metals unilateral change does not mean ‘without consultation’ it means ‘without consent’ ESKOM v NUMSA (LAC - unreported – JA 6/02 – not in CLL) fails to deal with the controversial issue as to whether the Labour Court has jurisdiction to interdict strikes on the grounds of unilateral change to terms and conditions – determines the dispute on technical grounds Waiver of right to strike PSA v Minister of Justice no stipulated period within which to strike 19 month delay in the public service not sufficient to infer a waiver 29 UNPROTECTED STRIKES CLL 89-90:  UNPROTECTED STRIKES CLL 89-90 Dismissal of strikers Barmot Truck Hire if an employer suspends shopstewards during a strike, it cannot dismiss them for not complying with an ultimatum ton return work in a three day strike, it is unfair to dismiss employees who return to work from being on leave on the third day Wits Metrorail Services the employer’s conduct in provoking a strike is a consideration to be taken into account in determining the fairness of a dismissal of unprotected strikers 30 UNPROTECTED STRIKES CLL 90-1:  UNPROTECTED STRIKES CLL 90-1 Procedural fairness NUMSA and Volkswagen It was accepted for the purposes of the arbitration that if an employer fairly dismisses strikers, it should permit individual strikers to make representations within a reasonable period as to why they were not able to comply with the ultimatum Ultimatums NUMSA and Volkswagen if an employer issues two ultimatums, all employees should be entitled to comply with the second ultimatum 31 UNPROTECTED STRIKES CLL 90-1:  UNPROTECTED STRIKES CLL 90-1 Shop steward’s obligation to persuade workers not to engage in an unprotected strike NUMSA and Volkswagen Shop steward suspended by the union as a steward Employer instructed steward to advise workers not participate in the unprotected strike Steward refused to do so – employer dismissed the employee for refusing Unfair to dismiss because the steward had been suspended as a shop steward – therefor no obligation to perform steward’s duties LOCKOUTS CLL 91:  LOCKOUTS CLL 91 Urgent interdicts NUMSA v Andrag Machinery Court declined to interdict a lockout because, if the lockout was unprotected, the trade union has an alternative remedy - namely to sue for wages 33

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