Consolidated Employers Organisation is committed to keeping our valued members up to date with important legal developments even during the period of the National Lockdown.  Last week, the Labour Appeal Court passed judgment on a very important issue concerning an employer’s obligation to contact a trade union during an illegal strike as well as the contested issue of organisational rights.


The case under discussion is, Roberts Brothers Construction (Pty) Ltd & Another v National Union of Mineworkers and others case number: PA08/18.


The employees, in this case, worked in the construction industry and went on strike for better living conditions as they were accommodated in huts provided for by the employer.  About seven percent of the employees belonged to the trade union NUM.


The employer, in response to the unprotected strike, issued three ultimatums to the employees to return to work.  The purpose of the ultimatums was to bring to the attention of striking employees that the employer faced economic harm when the employees were engaged in their unprotected strike.  More importantly, the ultimatums cautioned the employees that their unprotected strike was extremely serious and could result in their dismissals.


Ultimatums issued by the employers were blatantly ignored, and the unprotected strike lasted for three days which ultimately led to the dismissal of the employees.  The Labour Court found that the employees were dismissed for a substantively fair reason but not following a fair procedure.  The Labour Court held that the employer ought to have contacted the trade union to stop the unprotected strike which is a recommendation made in terms of item 6 (2) of the Code of Good Practice Dismissal.  Arising from this finding the Labour Court awarded each employee six months-worth of compensation.


Aggrieved by this finding, the employer challenged the Labour Court judgment on the basis that NUM did not have organisational rights in the workplace and therefore the employer did not have to communicate with them to try and stop the strike.  The Labour Appeal Court concluded that South African collective bargaining is based on the principle of majority representation.  The court stated, that to obtain collective bargaining rights such as having shop stewards, allowing union membership levy deductions and access to the employer’s premises, a union will have to be sufficiently representative.


The Labour Appeal Court alluded to the possibility of a minority union being granted organisational rights based on whether the minority union had a meaningful impact on collective bargaining in the workplace.   In this case, the Labour Appeal Court held that NUM did not enjoy organisational rights, or contractual rights under a recognition agreement, therefore, there was no obligation on the employer to contact NUM when the employees embarked on an unprotected strike.  The finding of the Labour Court, that the employer ought to have contacted NUM was incorrect and was set aside.


For employers, it is important to note that an unprotected strike poses a serious risk to the continued operation of businesses.  It is expected, after the National Lockdown has ended that there may be a wave of unprotected strikes.  Employers must be on guard and be readily prepared to deal with unprotected strikes.


The Roberts Brothers Construction case adds to a growing number of court judgments that recognise certain fundamental requirements before a trade union can obtain organisational rights.  There are procedures in place before a union can be granted such rights.  It is in your best interests to allow Consolidated Employers Organisation to advise you during these difficult processes.