It is common for employers to go to court to interdict an unprocedural strike, but a precedent-setting case in Durban shows the Labour Court will also protect workers when management breaks the rules — in this case by using the stratagem of firing strikers for “operational reasons”.
The case also has important implications for employers who have sought to dilute their labour relations responsibilities via the use of sub-contractors and labour brokers.
The workers’ victory has proved embarrassing both to Engen, where they provided maintenance services for the company’s giant Durban oil refinery, and to Brown & Root Group 5, which was their direct employer.
Brown & Root is part of the Halliburton engineering and construction conglomerate closely linked to the Bush administration in the United States.
The dispute began earlier this year when Brown & Root, apparently at the urging of Engen, decided unilaterally to increase the wages of eight fitters who worked for the Engen plant. The Construction and Engineering Industrial Workers Union demanded comparable increases for the rest of the maintenance workforce deployed by Brown & Root in terms of its Engen contract.
Brown & Root refused and about 180 union members embarked on a protected strike in early September.
After warning the union that the strike was jeopardising its contract with Engen and giving the employees a return-to-work ultimatum, it fired the strikers on October 7.
Brown & Root sought to portray this action as a retrenchment exercise based on “operational reasons” because Engen no longer required their services. Sacking the workers because of the strike would have been illegal.
The union faced a difficult choice. The mandatory legal route for dis- puting unfair dismissals is the Commission for Conciliation Mediation and Arbitration.
It decided to try something new — an urgent application to declare the dismissals invalid, arguing that the purported termination for operational reasons was a stratagem to break the strike.
In a written judgement handed down on November 18, Judge Daya Pillay agreed, declaring that the dismissals were “an instrument of coercion” in response to the strike, rather than based on genuine operational reasons. Pillay found that the contract with Engen was not seriously threatened, nor did the strike prevent Brown & Root from supplying alternative labour to Engen.
She ordered the strikers reinstated.
The victory remains bittersweet for the union. Members agree to return to work on Monday this week following a draft agreement to address wage anomalies, but found themselves locked out by Brown & Root.
Union spokesman Frank Alexander said there were negotiations to resolve the matter. However he believed the lockout was a delaying strategy by Brown & Root to give itself time to terminate the services of replacement labour.
In addition, Engen has blacklisted 15 workers it accuses of intimidation during the strike and has given notice of a further 90 whose services may no longer be required owing to more efficient maintenance processes.
The union has pointed caustically to Engen’s advertised claim of “supporting Black Economic Empowerment 100%” and accused the company of not acting as an honest broker during the dispute.
Engen refinery general manager Wayne Hartmann rejected this, arguing that the company had done its best to bring the parties together, but could not interfere in the employment relationship with Brown & Root.
He said Engen was re-evaluating the balance between external contract labour and using permanent staff. While the company would need fewer maintenance staff overall, it would probably increase its own full-time complement.