Employment law Update – Political party instigating workers to strike

June 1st, 2019

In Calgan Lounge (Pty) Ltd v National Union of Furniture and Allied Workers Union of South Africa and Others [2019] 4 BLLR 393 (LC), representatives of a political party paid a surprise visit to the premises of Calgan Lounge (the employer) and held an impromptu meeting with several of its employees. This meeting resulted in the political party informing the employer that it had been ‘mandated’ to intervene on behalf of the employees and that a ‘barrage’ of demands and grievances would follow in due course. The employer sought to address the issue directly with its employees and requested that they follow the procedures as prescribed in the Labour Relations Act 66 of 1995 (the LRA).

The following day, the political party arrived at the employer’s premises and presented a memorandum to the Chief Executive Officer of the employer on the political party’s letterhead. In general terms, the memorandum stated that the political party would ‘unashamedly’ take up the plight of the employees who were allegedly suffering an injustice at the employer’s workplace. The political party accused the National Union of Furniture and Allied Workers Union of South Africa, who is the recognised and majority trade union at the employer (the Union), of collaborating with the employer to advance the employer’s interests to the detriment of the employees it was required to protect.

The memorandum set out a number of demands to which the employer was required to adhere to within seven days, failing which further ‘mass protest action’ would take place. The demands included, among other things –

  • the resolution of grievances relating to alleged victimisation, discrimination and sexual harassment of employees;
  • the refund of alleged unlawful deductions;
  • the reinstatement of dismissed employees;
  • the removal of a manager;
  • the termination of the relationship with the Union; and
  • a failure by the employer to comply with occupational health and safety obligations and subjecting the employees to poor working conditions.

The employer undertook to investigate the serious allegations contained in the memorandum but drew the political party’s attention to the fact that it was not a registered trade union and accordingly lacked the necessary legal status to engage with the employer on work related issues. Thereafter, the employees commenced a ‘go-slow’ and defied numerous instructions, claiming that the political party would protect them. In an attempt to restore some semblance of normality, the employer arranged for a Union official to intervene. The official was, however, shouted down and the employees embarked on a full-blown strike during which the employer’s property was damaged. The employer brought an urgent application to the Labour Court to interdict the strike.

Although the political party had not filed any opposing papers nor had they made an attempt to ensure compliance with the LRA, they informed the presiding judge that no matter what the court may order, the strike would continue until the employer had acceded to all its demands. An interim interdict was granted, and the striking employees were subsequently dismissed. On the return date, the political party members attended court, again having failed to file any papers, and demanded that not only should the court refuse the final interdict sought by the employer, but it should also immediately reinstate the dismissed employees and compel the employer to negotiate with the political party about its demands.

The court confirmed that the employees had engaged in an unprotected strike in support of demands, many of which were political in nature and were not the kind that could legitimately form the subject matter of protected strike action. Moreover, a number of the demands were simply unlawful. For example, it is trite that a demand for the removal of a member of management without proper cause and fair process is an unlawful demand, and to demand from an employer to simply expel a majority trade union ‘flies in the face of the right of freedom of association’. In the circumstances, the court had no doubt that the order in relation to the unprotected strike had to be confirmed.

The court then turned to the issue of the unlawful conduct by the employees and the political party. It was clear from the evidence that the political party was directly involved in, if not the instigators of, all the events that gave rise to the strike action. The court held that a political party had no business getting involved in workplace issues.

In this regard, the court held that the deliberate design of the LRA is to designate the task of dealing with workplace disputes to employers’ organisations, trade unions and workplace forums. There is no place in this structure for the involvement of political parties. In fact, it was in the court’s view that the practising of any form of politics, be it under the guise of protecting employees’ rights or otherwise in the workplace, was an untenable proposition. The memorandum of grievances submitted by the political party read more like a political manifesto than a genuine grievance designed to resolve workplace disputes. It even took issue with the legitimacy of the LRA as a regulatory measure.

The approach adopted by the political party was that the Constitution entitled it to conduct itself as it did in this case. The political party was mistaken in this respect. The court held that it is trite law that direct reliance on the Constitution is not permissible where there is a specific statute regulating the constitutional right. In this case, the constitutional right sought to be exercised was regulated by the LRA. There is good reason as to why trade unions are required to register under the LRA, it ensures that such institutions fulfil the duties as mandated by the LRA. By seeking to assume this role, which is reserved for registered trade unions, the political party in effect sought to bypass all the regulatory provisions that trade unions must comply with. Accordingly, the court found that the political party had undermined collective bargaining, the result of which was that the employees had lost their jobs.

In the circumstances, the court held that the employer had made out a proper case for final relief. The employer was entitled to require its employees to comply with the LRA, insofar as they may have disputes or grievances against the employer. The employer was equally entitled to expect the political party not to become involved in matters that did not concern it. The interdict was accordingly confirmed in its entirety and the political party was ordered to pay the costs of the matter.

In summary, a political party is not entitled to organise employees in the workplace in matters concerning the employment relationship. If it seeks to do so, it will be required to register as a trade union and comply with the requirements as prescribed under the LRA.

Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.

This article was first published in De Rebus in 2019 (June) DR 28.

De Rebus