Nature of strikers’ demand and protectedness of the strike.
The labour appeal court, in Pikitup (Soc) Ltd v SAWMU obo Members and Employees of Applicant listed in Annexure “A” to Notice of Motion (2014) 25 SALLR 114 (LAC), had the opportunity of considering the following important issues:
(a) In the scenario where an employer has in place a policy and procedure so dealing with the consumption of alcohol and other abusive substances which do not include mandatory alcohol testing by means of a breathalyser device, is the employer entitled to rely on its managerial prerogative to unilaterally introduce such mandatory alcohol testing by means of a breathalyser device?
(b) In the above scenario, is an employer entitled to rely on the provisions of the Occupational Health and Safety Act 85 of 1993 to justify its stance that, if the employees and the trade union object to the introduction of such a compulsory alcohol testing by means of a breathalyser device, it amounts to preventing such employer from complying with its legal obligations in terms of this Act?
(c) What is the viewpoint of the constitutional court so formulated in SATAWU v Moloto as to the circumstances required to exist before the constitutional right to strike can be limited in a specific scenario?
(d) With reference to the definition of “strike” so contained in s213 of the LRA, what should be the purpose of such strike in order to enjoy protection under the LRA?
(e) What considerations are relevant in order to determine whether or not a strike concerns the resolution of a dispute or the remedying of a grievance?
(f) What role does the element of “lawfulness” play when considering and evaluating the abovementioned issue?
(g) What is the test to determine whether or not the dispute concerns a matter of mutual interest so as to justify the strike undertaken in relation thereto to be branded as protected?
(h) To what extent does the introduction of a compulsory alcohol testing system, by means of a breathalyser device, constitute an inroad into the relevant employees’ right to privacy?
This is an appeal, with the leave of the court a quo, against the judgment of the labour court.
The appeal is about the right to strike.
It essentially concerns two issues, firstly, whether the demand by the first respondent (the union), that the appellant should abandon the conducting of breathalyser testing at its workplace is an unlawful demand and secondly, whether health and safety issues are matters of mutual interest.
If the demand is unlawful or the issues are not matters of mutual interest, then any work stoppage pursuant thereto would be unlawful.
Pertinent facts of the case
The appellant is a municipal entity, as defined in the Local Government Municipal Systems Act and renders waste management services in the greater Johannesburg area on behalf of the Johannesburg Metropolitan Municipality.
The appellant’s employees collect refuse from households and businesses within the City of Johannesburg utilising, inter alia, specialised trucks belonging to the appellant. The appellant employed 262 drivers.
Issue: reporting for duty under influence of alcohol
The appelant alleged that it experienced serious and pervasive problems with employees reporting for duty under the influence of alcohol. Consequently, it introduced mandatory alcohol testing, through a breathalyser device, for its drivers and random alcohol testing for its other employees. The appellant also introduced a biometric access control device. The respondents objected to the introduction of both devices.
Only remaining issue: breathalyser device
The issue relating to the biometric device was settled and the only live issue in the court a quo was the one relating to the breathalyser device. The union, on behalf of its members, objected to the introduction and use of the breathalyser device. On 30 April 2013, the union referred a dispute, relating to the breathalyser and biometric devices, for conciliation to the Commission for Conciliation, Mediation and Arbitration (“CCMA”). The dispute could not be resolved and, consequently, the CCMA issued a certificate of non-resolution.
The union gave notice to the appellant of its intention to embark on strike action with effect from 29 July 2013. On 24 July 2013, the appellant sought and was granted, on an urgent basis, a rule nisi by Snyman AJ in the following terms:
3. A Rule nisi is hereby issued calling upon the respondents to show cause on 12 September 2013 at 10h00 why a final order should not be made in the following terms:
3.1 The strike which the second to further respondents intend to embark upon on 29 July 2013 in terms of the notice in terms of section 64(1)(b) of the Labour Relations Act given by the first respondent and dated 17 July 2013, is declared to be an unprotected strike as contemplated by section 68(1) of the Labour Relations Act.
3.2 The second to further respondents are interdicted and restrained from embarking upon any strike action or conduct in contemplation of strike action in respect of the strike declared to be unprotected in terms of paragraph 3.1 above.
3.3 The first respondent is ordered to immediately call upon the second and further respondents not to commence strike action in respect of the strike declared to be unprotected in terms of paragraph 3.1 above – “
The union anticipated the return date. As a result, the matter was argued before Hulley AJ on 5 August 2013. He discharged the rule nisi with costs. This appeal is against Hulley AJ’s judgment. What follows is a summary of further relevant factors.
During 2009, one of the appellant’s drivers, Mr M P Motlou, was involved in a motor vehicle collision. He succumbed to the injuries sustained during the collision. An insurance claim lodged by the appellant was repudiated by its insurers, because the deceased had driven the vehicle whilst having more than the legal limit of alcohol in his blood. The repudiation prompted the general manager: fleet of the appellant to write an email to, inter alia, Ms Johanna Joja, the employee wellness manager of the appellant.
The email, in part, read as follows:
” – In effect it would mean that every claim related to this accident is at risk. The driver’s family will lose the benefit of his death benefit and there is a chance that the vehicle claim of approximately R250k could also be repudiated. This raises considerable risk to the business and I recommend that we strongly push the aspect of random testing of the drivers.”
The documents also contained anecdotal evidence of collisions in which the appellant’s drivers were involved, of which four were proved to have occurred whilst the appellant’s drivers were under the influence of alcohol. The substance abuse testing programme was accordingly launched on 23 October 2010 at the appellant’s head office.
According to the aforementioned report, “EXCO” recommended that the testing programme should continue at head office. It also recommended that “negotiations continue with Employee Wellness and Organised Labour concerning the roll-out of the testing programme to all depots”.
Part Two will continue to refer to the contents of the report and the minutes wich reflected the nature of employees’ objections.
Dr Brian van Zyl is a Director at labour law firm Van Zyl Rudd and Associates, www.vanzylrudd.co.za.
This article appeared in the August 2015 issue of HR Future magazine.