The Johannesburg Labour Court has interdicted a strike planned by the National Union of Metalworkers of South Africa (Numsa) against what they are calling the unilateral cancellation of anniversary bonuses by Air Chefs, a subsidiary of state-owned airline South African Airways.
Air Chefs provides catering services for international and domestic airlines and at the country’s airports. The court granted the company an interim interdict on Monday 7 October, halting the planned strike.
Judge Edwin Tlhotlhalemaje said the strike was unprotected in terms of Section 65(1) read together with Section 65(3) of the Labour Relations Act (LRA) 66 of 1995.
Numsa issued a notice to strike after Air Chefs apparently changed their conditions of employment unilaterally without consulting workers.
Numsa national spokesperson Phakamile Hlubi-Majola said that Air Chefs employees had received anniversary bonuses in addition to annual bonuses for more than a decade. The annual anniversary bonus made up 25% of Air Chefs workers’ income for the year, according to Hlubi-Majola.
“Besides contributing to [the workers’] finances, [the anniversary bonus] is an incentive which helps to boost staff morale and contributes to a positive working environment,” she said.
According to Numsa, Air Chefs discontinued anniversary bonuses in 2019.
Notwithstanding that, “the bonus is part of the benefits which workers get at Air Chefs … It cannot be unilaterally withdrawn,” said Hlubi-Majola. “Air Chefs management must first consult. This is why the bargaining unit of Catering granted us a certificate to strike. They agreed with Numsa that the company had unilaterally withdrawn the benefit without consultation.”
Air Chefs and Numsa both belong to the Bargaining Council for Restaurants, Catering and Allied Trades, which governs substantive issues such as wages, benefits and conditions of employment in the sector.
A 2009 collective agreement made provision for anniversary bonuses. Air Chefs told the court that in 2014, parties to the bargaining council agreed that anniversary bonuses would be phased out by 2018. As such, Air Chefs stopped paying these bonuses in April 2018.
According to the judgment, at the time a Numsa shop steward told the company that the non-payment of anniversary bonuses was too abrupt and it prejudiced workers who had counted on receiving the payment. As a result, Air Chefs paid employees their anniversary bonuses. But this year, it scrapped the bonus.
Numsa took the view that this was an unfair labour practice, saying that the company had unilaterally changed the terms and conditions of employment. The union referred the matter to the bargaining council for conciliation, but negotiations ended in deadlock.
In May, the bargaining council referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA) to establish picketing rules.
At this stage, Air Chefs still maintained that the matter did not concern the issue of unilateral changes to conditions of employment and requested that the bargaining council provide a proper interpretation of the main agreement.
Having been granted permission by Air Chefs, Numsa conducted secret balloting in accordance with the new picketing rules.
Barred from striking
Despite the company taking issue with the manner in which Numsa had conducted its secret balloting, the union issued a strike notice on Friday 4 October for the following Monday, saying the strike would start at 6am.
This prompted Air Chefs to approach the Labour Court for an urgent interdict.
The position of Air Chefs was that all disputes pertaining to wages “are substantive in nature and not strikable under the provisions of Section 65 of the LRA. Section 65(1) of the LRA says ‘no person may take part in a strike/a lock-out or in any conduct in contemplation or furtherance of a strike/a lock-out if (a) that person is bound by a collective agreement that prohibit a strike/lock-out in respect of the issue in dispute’.”
The court said it was insignificant if Numsa had complied with procedure for the strike to be protected. The issue was whether or not the “dispute that led to the demand and the intention to strike [was] one over which the union can go on strike”. The court found that Numsa was precluded to strike because the demand was regulated by the main agreement, which barred the union from striking over such demands.
The 2014 agreement had also nullified anniversary bonuses. The court granted the interim interdict to Air Chefs because they had no alternative remedy and were to “suffer irreparable harm should the relief not be granted”.
Numsa’s strike was therefore declared unprotected. The court interdicted Numsa from encouraging or participating in any unprotected strike.
To ensure that the union complied with the court order, the judge ordered Numsa to make a public announcement in the place of work, using a loudhailer and in languages understood by the workers, as well as by written message via WhatsApp and SMS text messages and union leaflets saying: “On 7 October 2019, the Labour Court issued an order declaring the planned strike to be unprotected and unlawful. We urge you not to embark on any strike and to continue working.”
Undermining worker rights
Tlhotlhalemaje affirmed the significance of the right to strike, saying that the “limitation on the right to strike should not be lightly inferred as the court ought to adopt an interpretation of the provisions of the LRA, which gives full effect to that right. I further agree that if the orders such as sought by Air Chefs are easily granted, it would imply that employees’ right to strike will be rendered nugatory.”
He went on to say that the right to strike was not absolute and that it was subject to “limitations imposed under Section 65(3) of the LRA, and that right can only be exercised where permissible”.
Hlubi-Majola said, “companies know that if they go to court to apply for an urgent interdict on a strike, the burden of evidence to get an interim order is lower and therefore an interim order is more likely to be granted on the basis of prima facie evidence.”
Numsa was given a return date of 27 November to justify why the interim interdict should not be made an order of court.
“Even though we have been granted a date to argue this matter in court, in order to prevent the order from being permanent, the interim order has the impact of decampaigning [sic] the strike because of the delay,” said Hlubi-Majola.
Usually unions are engaged in long negotiations with the employer, which go back and forth before they decide to engage in a strike.
“We deadlocked with the employer in April,” said Hlubi-Majola. “We then had to exhaust the dispute resolution mechanism and that takes weeks, if not months. Then we had to conduct secret balloting at all Air Chefs companies around the country. Then we had to negotiate picketing rules.
“All these things take months to achieve. At no point did the employer take the opportunity to engage us during that time. But on the eve of the strike, they then rush to the Labour Court. It is a tactic used to frustrate workers. If Air Chefs cared about resolving this issue, they would have called us in for negotiations. But they chose instead to silence workers through the courts,” said Hlubi-Majola.