With its judgement in the VW strike case the Labour Appeal Court has sent a strong message to workers
Glenda Daniels
There will be no reinstatement or compensation for 1 300 dismissed Volkswagen South Africa (VWSA) workers who went on an illegal strike in Uitenhage last year.
The Labour Appeal Court has finally brought an end to the protracted legal battle in a judgement, which sent out a strong message to workers that unless they heed the advice of their unions, they will be out on the streets.
Judges Ray Zondo, Dennis Davis and Ben du Plessis found in favour of VWSA on the grounds that the workers acted illegally and against the advice of their union, the National Union of Metalworkers of South Africa (Numsa).
The three-week strike in January last year was one of the costliest in South Africa, with VWSA losing more than R300-million.
In February this year the Commission for Conciliation Mediation and Arbitration ordered VWSA to reinstate the dismissed workers causing major controversy in the labour law fraternity. Some lawyers argued that the ruling was “absurd” but not the fault of the arbitrator it exposed loopholes in the Labour Relations Act.
VWSA successfully approached the Labour Court to overturn the arbitration ruling. Then the matter went on appeal.
In argument for the workers at the Labour Appeal Court, lawyers said according to the International Labour Organisation convention and the South African Constitution an employer had no right to dismiss employees for participating in a strike of any nature including an unprotected strike.
But the appeal court judges said there is no provision in international labour conventions “to the effect that employees can resort to a strike as and when they please without following any procedures …”
“The union adopted a clear stand from the beginning about the legality of the strike. It said the strike was illegal and unprocedural. As to whether the employees should have continued with the strike, the union also made it clear that the employees should stop the strike and resume their duties,” the judges said.
There was “no logic” to re-employ workers who did not resume duty after there was an agreement with the union that they should go back to work, the judges found.
However, a complicated set of political intrigues led to the workers’ plight. President Thabo Mbeki slammed them for ruining the country’s image; the United Democratic Movement got involved; the provincial leadership of the African National Congress attempted to mediate the strike; and the Pan Africanist Congress organised a stayaway.
A new civic movement, the Uitenhage Crisis Committee, supported the strikers and the Socialist Workers’ Vanguard League used the strike for political mileage.
Most significantly, the judges said, a new union the Oil, Chemical, General and Allied Workers’ Union (Ogawu) stole membership from Numsa and egged the workers on to strike.
A further layer of intrigue was that older workers employed for longer periods became disaffiliated from younger workers over approaches to deals with VWSA on issues of production.
Die-hard traditionalists caved in to pressure from Ogawu, who persuaded them that they were being sold out by Numsa’s leadership.
Numsa suspended 13 shop stewards when they protested over a deal struck between the union and VWSA.
Workers were encouraged by Ogawu to strike in protest against the suspension of the shop stewards and Numsa became wracked by bitter divisions.
Numsa president Mtutuzeli Tom told the Mail & Guardian most of the people who went on strike were “old guard types”, who believed ideologically that all managements were the “enemy” and it was therefore “easy for them to have been misled by dissident left-wing forces” such as Ogawu.
Workers were also divided and split over the liquidation of their pension funds.
The lesson the union learned was that communication channels needed to be opened up between its leadership and members and that, should any deal be struck with management, workers must participate fully.
Although Numsa said democratic procedures were adhered to, workers on the shop floor alleged that they were not fully aware of the implications of the union’s deal with management on overtime work.
Numsa’s Dumisa Ntuli said: “If the 13, in collaboration with the breakaway union Ogawu and the Socialist Vanguard League, had been allowed to pursue their mischievous political agenda, the company could have relocated to Germany, component manufacturing companies could have closed down and 20 000 workers could have lost their jobs.”
Now with the Labour Appeal Court’s judgement, Numsa is vindicated in the position it took at the time of the strike.