A recent Constitutional Court (ConCourt) judgment confirmed that the 48 hours' notice of an intention to strike as required by the Labour Relations Act No. 66 of 1995 as amended (LRA), may be tendered by a trade union on behalf of all potential strikers, including those employees who are not members of that trade union.

On 21 September 2012 the ConCourt delivered its long awaited judgement in the matter of South African Transport and Allied Workers Union and Others v Moloto & Another CCT 128/11 (2012) ZACC 19.

The case pertained to the proper interpretation of section 64(1)(b) of the LRA. The section deals with the requirement of 48 hours' notice prior to the commencement of a strike. The point in issue was whether every employee intending to strike is obligated to give notice of intention to strike to the employer.

The cause of complaint began in November 2003 when the South African Transport and Allied Workers Union (SATAWU), the majority union for the employees of Equity Aviation Services (Pty) Ltd (Equity), referred a wage dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

The CCMA was unable to resolve the dispute between the two parties and, in view of the dispute continuing, SATAWU served Equity with a strike notice in accordance with the LRA. Employees then embarked on strike action. Those striking included both SATAWU members and employees who did not belong to SATAWU, and who had not themselves given a strike notice.

As a result, Equity drew a distinction between those striking employees who were not members of SATAWU, and those who were. Equity contended that those who were not SATAWU members had not tendered a strike notice, and were accordingly engaged in an unprotected strike, and must return to work. Such striking employees refused to return to work and Equity dismissed them for unauthorised absenteeism.

The striking workers referred their dismissal to the Labour Court, basing their claim on an automatically unfair dismissal since they claimed to be participating in a protected strike that complied with the provisions of the LRA. In its findings, the Labour Court confirmed the striking workers' claim and held that the dismissals were automatically unfair. The Labour Court reasoned that the dismissed employees were not required to be members of SATAWU nor were they obliged to give notice themselves in order to strike lawfully.

Equity took the decision on appeal to the Labour Appeal Court (LAC). The LAC endorsed the Labour Court's decision and dismissed the appeal. Equity appealed further to the Supreme Court of Appeal (SCA). The SCA held that a separate notice should have been tendered by non-union members in order for that particular group of employees to strike lawfully.

Since the SCA was of the view that a separate notice for non-union members should have been given, it held the dismissals were not automatically unfair, and upheld the appeal.

SATAWU appealed the SCA decision to the ConCourt. SATAWU challenged the SCA's decision by questioning its method of interpreting section 64(1)(b) of the LRA. The ConCourt, by a narrow margin of 5 to 4, upheld the appeal, thus agreeing with the Labour Court and Labour Appeal Court. It held that the right to strike and the specific purpose of the notice provision in the LRA requires nothing more than 48 hours' notice in advance of a strike.

Salient to this ConCourt judgement is the point that the 48 hours' notice as required by the LRA may be tendered on behalf of all potential strikers, including those employees who are not union members, and hence there is no requirement for a separate notice for non-union members.

It is obvious that trade unions and workers will welcome this decision. Employers, on the other hand, will be dismayed as, in the absence of information on which non-union members intend to strike, they will be unable to prepare for the scale of an intended strike.

Written by Nick Robb, partner, and Nosipho van den Bragt, candidate attorney at Webber Wentzel.