Employment law update – Can the right to embark on protest action become stale?

March 1st, 2021
x
Bookmark

COSATU and Another v Business Unity of SA and Another (LAC) (unreported case no JA97/2019, 27-11-2020) (Davis JA (Jappie JA and Kathree-Setiloane AJA concurring)).

At the centre of this dispute lay the question of how long a trade union has, from when first acquiring the right to embark on protest action, to exercising such a right.

Section 77 of the Labour Relations Act 66 of 1995 (LRA) sets out the requirements for employees to embark on lawful protest action and reads:

‘Every employee who is not engaged in an essential service or a maintenance service has the right to take part in protest action if –

(a) the protest action has been called by a registered trade union or federation of trade unions;

(b) the registered trade union or federation of trade unions has served a notice on NEDLAC stating –

(i) the reasons for the protest action; and

(ii) the nature of the protest action;

(c) the matter giving rise to the intended protest action has been considered by NEDLAC or any other appropriate forum in which the parties concerned are able to participate in order to resolve the matter; and

(d) at least 14 days before the commencement of the protest action, the registered trade union or federation of trade unions has served a notice on NEDLAC of its intention to proceed with the protest action.’

On 21 August 2017, the Congress of South African Trade Unions (COSATU) issued a notice in terms of s 77(1)(b) to the second respondent, the National Economic Development and Labour Council (NEDLAC), setting out certain grievances, as well as the possibility of protest action should its grievances not be resolved.

In the main demand, COSATU was to end the alleged practice of employers, particularly in the banking sector, retrenching staff for the sole purpose of increasing profits.

On 15 September 2017, a consultative process, as contemplated in s 77(1)(c) was held between representatives of government, COSATU and Business Unity South Africa (BUSA). While certain of COSATU’s grievances were settled and its demand that business desist from retrenchment proceedings to allegedly maximise profits, was left unresolved.

On 15 January 2019, some 17 months later and acting on the strength of its notice issued to NEDLAC on 21 August 2017; COSATU issued a further notice in terms of s 77(1)(d), advising NEDLAC that it would be embarking on protest action on 13 February 2019.

On 5 February 2019, COSATU issued a further s 77(1)(d) notice to NEDLAC informing it that it would continue its protest action on 19 February 2019.

On 28 and 29 August 2019, the federation issued two additional notices informing NEDLAC that a further two days of protest action would take place on 27 September and 7 October 2019.

Material to the question of law raised in this matter, was the fact that all four notices COSATU issued, were on the back of the s 77(1)(b) notice it served on NEDLAC on 21 August 2017.

Having received the last two notices in August 2019, BUSA approached the Labour Court (LC) seeking to interdict COSATU on the basis that it failed to comply with s 77.

In granting the interdict the court a quo held:

‘I therefore find that s 77 must be read to mean that a s 77(1)(d) Notice is issued within a reasonable period.  This was not the case in this matter.  Further, and in consequence of the same reading of the section, I do not find that the section contemplated the issuing of more than one such Notice in respect of a referral in terms of s 77(1)(b). The s 77(1)(d) Notice must be issued within a reasonable period dependent on the particular facts and circumstances of the process undertaken in terms of s 77(1)(c).’

On appeal, BUSA argued that the spirit and purpose of the LRA was to ensure labour disputes were expeditiously and timeously resolved. This purpose, according to BUSA, must be infused into a proper interpretation of s 77. In doing so, there was no room for protest action being ‘open ended’ to the extent that a trade union can decide to embark on protest action irrespective of how much time had passed from when the consultative process, as required by s 77(1)(c), has been concluded.

COSATU, in drawing an analogy that the right to strike does not become stale (see Chamber of Mines SA v National Union of Mineworkers and Another (1986) (7) ILJ 304 (W)), argued that the right to protest action likewise does not become stale once the right had been attained.

The Labour Appeal Court (LAC) firstly noted that s 77 invokes three constitutional rights, namely–

  • freedom of expression;
  • the right to assemble and picket; and
  • the right to fair labour practice, in particular the right to participate in activities of a trade union.

As such, interpreting s 77 should give ‘viable meaning’ to the purpose of these rights.  Considering the opposing arguments the LAC held:

‘[Section] 77 of the LRA does not expressly provide for time limits. While the first respondent argued for an implicit “reading in” of the principle of expedition of resolution in respect of protest action, the nature of protest action as envisaged in s 77, may not be subject to the kind of expeditious resolution that would be the case with a labour dispute between employees and an employer in that as is the case in the present dispute, the gravamen of appellant’s protests concerns a series of complaints about the government’s economic policy. Manifestly the aim of the protest which is to press for policy changes falls within the scope of protest action as set out in s 77 of the LRA. Unlike a labour dispute between the parties to an employment relationship, the nature of this protest is not one that falls to be resolved as expeditiously as a defined labour dispute.’

The LAC went further to find that on BUSA’s interpretation of s 77, once COSATU ended its first day of protest action, the only avenue open for it to pursue its protest action over the same issue in the future, was for it to start the s 77 afresh. This would mean that COSATU would have to issue a new notice in terms of s 77(1)(b), go through the consultative process and if there is an impasse, to give the 14-day notice period as required in s 77(1)(d). The LAC found that here was no justification to read into s 77 such an interpretation, more so in light of the constitutional rights entwined within the section.

Accordingly, the LAC upheld the appeal and replaced the findings of the LC with an order dismissing BUSA’s application for an interdict with no order as to costs.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2021 (March) DR 37.

X
De Rebus