To What Extent Should Strikers Be Identified in a Strike Notice?

Posted: December 13, 2012 in Uncategorized

SATAWU and Others v Moloto NO & Others the constitutional court had to consider if a strike notice conformed to section 64 of the Labour Relations Act and specifically whether the notice identified those intending participating.


In esse SATAWU issued a strike notice in terms whereof it stated that it was intent on commencing strike action on a certain date.  Equity Aviation (the employer) accepted the SATAWU strike to be protected but the participation by non-SATAWU members as unprotected.  Equity Aviation consequently dismissed the non-SATAWU strikers.


The constitutional court was split five judges to four judges in favour of finding that the strike notice also covered the non-SATAWU strikers.  It is thus pertinent to understand both judgments.


The minority judgment (per Maya AJ) placed great reliance on the judgment of the Supreme Court of Appeal which court drew largely on the chaos which would arise if notice needed not be given by / on behalf of all strikers.  The majority judgment stressed that there existed an agency shop agreement between SATAWU and Equity Aviation which on the common cause fact made SATAWU the agent of all workers employed by Equity Aviation.  The majority thus found that Equity Aviation could not have laboured under the misconception that the strike notice was only intended to cover the SATAWU members and concluded that “the union, which represented the dismissed strikers in the wage negotiations and in the referral for attempted conciliation under section 64(1)(a) before embarking on strike action, was competent also to give the single notice required under section 64(1)(b). Our concluding observation is this: to hold otherwise would place a greater restriction on the right to strike of non-unionised employees and minority union employees than on majority union employees. It is these employees, much more than those who are unionised or represented by a majority union, who will feel the lash of a more onerous requirement. There is no warrant for that where they were already denied the right to bargain collectively on their own behalf in the preceding process”.





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