The Labour Relations Act, 1997 ("LRA") provides certain protections to employees participating in protected strikes. These employees are protected against disciplinary action or civil legal proceedings for participating in protected strikes and discontinuing any payments in kind of accommodation, the provision of food and basic amenities of life during the protected strike. Participation in a protected strike also does not amount to a delictual act or a breach of contract.
Massmart Holdings Limited brought a claim against the South African Commercial Catering and Allied Workers Union ("SACCAWU") seeking the payment of compensation for losses suffered by Massmart during the course of a protected strike called by SACCAWU in 2021.
Massmart brought this claim in terms of section 68(1)(b) of the LRA which empowers the Labour Court to make an order for payment of just and equitable compensation for any loss attributable to a strike or a lock-out ‘in the case of any strike or lock-out, or any conduct in contemplation or in the furtherance of a strike or lock-out’ that does not comply with the provisions of the LRA.
It was common cause between the parties that the strike was protected. Massmart’s claim was based on the conduct of SACCAWU, its officials, members and/or supporters. Massmart contended that SACCAWU, its officials, members and/or supporters’ strike was not peaceful and they engaged in various offences which included the failure to comply with chapter VI of the LRA, the Occupational Health and Safety Act, Covid-related regulations, protocols and directives, the picketing rules established by the CCMA.
In response to this claim, SACCAWU brought an exception against Massmart’s statement of case based on five grounds. For purpose of this bulletin, we will only focus on three of the five grounds. SACCAWU contended that:
- the Labour Court did not have jurisdiction to entertain Massmart’s claim because section 68(1)(b) of the LRA is only applicable to unprotected strikes and not protected strike as was the case in this matter.To the extent that Massmart wanted to take any action against SACCAWU, it ought to bring a delictual claim in the High Court.
- the Labour Court did not have jurisdiction to determine whether SACCAWU’s members engaged in conduct that was in breach of the OHSA and Covid-related regulatory measures.
- Massmart could not rely on alleged conduct of the union members that occurred outside designated picketing areas as SACCAWU did not have a duty, in law, to take any precautions or steps outside of the designated picketing areas.
The Labour Court found that Massmart’s contention that SACCAWU bore an obligation to ensure compliance with the picketing rules which includes ensuring that the participants remained in the designated picketing areas was a competent claim for purposes of section 68(1)(b) of the LRA. Compliance with the OHSA and Covid-related regulations was also found to be a competent claim as violations of these rules amounted to offences in terms of the OHSA and the applicable directives. The Labour Court found that Massmart sought to rely on these offences in the context of an assessment of the conduct undertaken during the strike and not for any self-standing relief.
The first ground of SACCAWU’s exception was important as it had the ability of eliminating Massmart’s claim.
The Labour Court noted that the protection against civil legal proceedings and delictual action or breach of contract provided to those participating in a protected strike is not absolute. Section 67(8) of the LRA places a limitation on this protection and provides that the protection does not apply ‘to any act in contemplation or in furtherance of a strike or lockout, if that act is an offence’.
SACCAWU relied on the LAC judgment of Stuttafords Department Stores Ltd v SACTWU (2001) 22 ILJ 414 (LAC) which found that the Labour Court only had jurisdiction to make an order for just and equitable compensation for loss attributable to an unprotected strike or lock-out. The LAC based this finding on the fact that the term “strike and lockout” referred to in section 68(1)(b) of the LRA should be interpreted to refer to a strike or lock-out that does not comply with the provisions of this Chapter and is thus unprotected.
Massmart on the other hand relied on the SCA judgment of National Union of Metalworkers of South Africa and others v Dunlop Mixing & Technical Services (Pty) Ltd and others [2021] 3 BLLR 221 (SCA) which determined whether a picket organised by a trade union in furtherance of a protected strike, constituted a ‘gathering’ to which the provisions of the Regulation of Gatherings Act, 1993, applied and whether the union was entitled to claim the protection against civil proceedings as set out in the LRA.
The SCA found that a picket fell within the provisions of the LRA and the provisions of the Regulation of Gatherings Act did not apply to pickets. Provided that the picket is conducted peacefully in support of or in furtherance of a protected strike, the trade union and the participants of such a picket will enjoy the protection against delictual action, breach of contract and any civil proceedings. The SCA further found that”
‘Such protection is, however, lost in the event that any act, constituting an offence, is committed in furtherance of a strike.Conduct which does not comply with the provisions of the Chapter regulating strike action, renders the party responsible for such conduct liable, in terms of s 68(1), to remedies which the Labour Court may impose.’
The Labour Court was persuaded that the principles confirmed by the SCA in Dunlop should be applied to Massmart’s claim as it considered the recent version of section 68(1) of the LRA unlike Stuttafords which considered the section prior to amendments introduced by the Labour Relations Amendment Act, 2002. Prior to the amendment, section 68(1)(b) of the LRA made reference only to orders made by the Labour Court for the payment of just and equitable compensation for any loss attributable to a strike or lockout. The amendment act broadened section 68(1)(b) by including the words ‘or conduct’.
The Labour Court held that the protection against civil proceedings extends to conduct in contemplation or in furtherance of a protected strike or lockout. Unlawful conduct or conduct in breach of provisions of the LRA is not conduct that is in contemplation or in furtherance of a protected strike or lockout. The Labour Court further held that the conduct that is being sanction is not linked to an unprotected strike, it is rather considered against whether the conduct furthers the peaceful and lawful aims of the strike.
The Labour Court noted that -
“it would be anomalous if an aggrieved employer or union was entitled to pursue a claim for compensation in this court under section 68 for loss attributable respectively to a strike or lockout that does not comply with Chapter IV but not for loss attributable to conduct that constitutes a breach of the same Chapter, simply because the strike or lockout is protected.”
This judgment confirms that an employer can now institute action against a trade union for compensation of loss suffered due to the union members’ conduct, which constitutes an offence or is in breach of the provision of the LRA, particularly chapter IV, which seeks to promote peaceful and lawful strikes.
This bulletin was prepared by Partner Daphney Willem and Candidate Attorney Alice Letsoalo.
