On the morning of 26 April 2017, the usual rumble of South African Airways (“SAA”) flights taking to the skies was interrupted by a strike by cabin crew employees, organised by their trade union, the South African Cabin Crew Association (“SACCA”). Due to strict civil aviation regulations, the strike resulted in a significant number of flights being cancelled, which, in turn, caused massive inconvenience for passengers. The strike was a costly one and had it lasted for longer, it would have had a devastating impact on the operation of SAA.

Background

Over time, SAA has entered into various collective agreements with various trade unions. In 2016, SAA and two trade unions, which at the time represented the majority of the employees in the non-management bargaining unit, concluded a wage agreement that, among other things, regulated the manner in which the international meal allowances payable to cabin crew members would be determined. The wage agreement expressly provided that the international allowance was an operational issue to be determined through consultation. The wage agreement was, in terms of section 23(1)(d) of the Labour Relations Act, 1995 (the “LRA”), extended to all the trade unions and employees in the relevant bargaining unit who were not signatories to it, including SACCA and its members. This section allows the extension of collective agreements dealing with matters of mutual interest to be extended to employees who are not members of the union or unions that concluded the agreement if the trade union(s) concluding the collective agreement represent the majority of employees in the workplace.

SACCA and its members were dissatisfied with the international meal allowance amounts determined by SAA in terms of the procedure agreed upon in the wage agreement. SACCA challenged the extension of the wage agreement to SACCA in the Commission for Conciliation, Mediation and Arbitration (“CCMA”). The CCMA found that the wage agreement had been validly extended. SACCA then referred another dispute against SAA to the CCMA and the parties agreed to a facilitation process in an attempt to resolve this issue. The facilitation unfortunately yielded no results. SACCA then referred a third dispute to the CCMA on this issue. The dispute remained unresolved and the CCMA issued a certificate of non-resolution of the dispute. Armed with the certificate of non-resolution, SACCA gave SAA notice of its intention to strike on 24 April 2017.

SAA’s Court Challenge

In terms of 65(3)(a) of the LRA, a strike is unprotected if the subject matter of the strike is regulated by a collective agreement that binds the employees who wish to strike. It is on this basis that SAA approached the Labour Court on an urgent basis and sought to interdict the strike. On 26 April 2017, the Labour Court granted an interim interdict prohibiting SACCA and its members from continuing with the strike. By this time, a number of flights had already been cancelled. The court ordered that the parties should return to the Labour Court to argue whether the interim order should be confirmed or discharged. After the matter was heard on 3 May 2017, the court granted an order confirming the interim order, and the reasons for the order were handed down on 10 May 2017. One of the issues that Acting Judge Snyman was called upon to decide was whether the wage agreement had been validly extended to SACCA’s members. He came to the conclusion that the CCMA had already considered this issue, and decided that the agreement had been validly extended, and that it was not open for the Labour Court to reconsider it. Acting Judge Snyman also indicated that, in his view, there had been a valid extension. Acting Judge Snyman also endorsed the now well-known principle that a certificate of non-resolution is nothing more than a recordal of the nature of the dispute that was referred to the CCMA, and the fact that the dispute remains unresolved as at the date of the issue of the certificate. The categorisation of the dispute in the certificate of non-resolution does not bind the court and there is no determination of the issue that is in dispute between the parties. The court confirmed that because the wage agreement was validly extended and the issue in dispute was regulated by a collective agreement, section 65(3)(a) of the LRA prohibited the strike.

This judgment confirms some important principles. The first is that the mere fact that a union has obtained a certificate of non-resolution from the CCMA, which states that the union members can strike and the union has given the 48 hours’ notice of a strike in terms of section 64 of the LRA, does not mean that the ensuing strike will be protected. The Labour Court has the power to inquire into the nature of the issues in dispute and if these are issues over which a protected strike cannot be held, the court will declare the strike unprotected. The mere existence of the certificate of outcome indicating that a strike can take place does not grant an unfettered licence to strike. The second principle affirmed by the court is that where an issue in dispute is regulated by a collective agreement, a strike over that issue will be unprotected even if the union whose members are striking was not party to the collective agreement, as long as the collective agreement was validly extended to that union and its members. It is important to note that the court accepted that an issue can be regulated in one of two ways. The first is where the collective agreement regulates the issue specifically, for example, provides for a specific amount as a meal allowance. The second is where this is done “indirectly” by prescribing “a process or structure” to deal with the issue in dispute. Therefore, it is advisable that employers that have concluded collective agreements with trade unions obtain appropriate legal advice. Further, they should be circumspect in the wording of the collective agreements to ensure that as many issues as possible are appropriately regulated by the collective agreement, in order to limit the issues over which employees can strike.

ENSafrica represented SAA in this matter before the Labour Court. For more information, please contact: 

Brian Patterson

employment director [email protected] cell: +27 82 338 9835 Muzi Khoza

employment director [email protected] cell: +27 82 380 7121