Under siege: In recent weeks, three cases have come to light that clearly show that labour court judges are incorrectly issuing court orders forbidding strikes, often at the employers behest. (Oupa Nkosi)
This year, workers marched against right-wing amendments to labour legislation. Much focus was on the proposed introduction of a meagre minimum wage. But there are other aspects of the amendments that cry out for concern. Among them are repressive rules that will make it more difficult, if not practically impossible, for workers to strike, which will undermine this constitutionally-protected act.
Although we resist the proposed strike laws, we must remember that the legislative intervention is only one aspect of the state’s assault on the right to strike. There is also the judicial offensive against workers.
In recent weeks, three cases have come to light that clearly show that labour court judges are issuing court orders forbidding strikes, first, without checking whether the employer has satisfied the legal requirements for a court order to be granted and, second, without taking into consideration evidence from workers that the strike is permissible in law (protected).
Some comments from the Bench even suggest that the orders are being granted on the basis of judges’ own personally held beliefs against industrial action.
The first court case concerned workers at the Heineken Brewery. Many of these employees are working outside in the sun, wind and cold of the Midvaal, and are sent home on rainy days without being paid. The employers refused to meet the workers’ lawful demand for a shelter, or even to speak respectfully to the workers in negotiations, and so the workers, over the course of many months, planned a strike.
A few hours before the strike and with less than 48 hours’ notice to the workers, the labour broker that placed them at Heineken obtained an interim order from Judge André van Niekerk, a senior judge in the labour court. The order was eventually, and at great legal expense, set aside by another judge, who found that the strike was, in fact, protected, and that an interim order should never have been granted.
The second court case also relates to the Heineken struggle. Unhappy that the labour court, in a rare case, found in favour of the workers, Heineken’s labour brokers rushed to court for a second time. The workers, again at great expense, opposed the second application for a court order against the strike.
Judge Portia Nkutha-Nkontwana granted the order against the proposed strike. The judge granted the order despite strong opposition from the workers, which included evidence from the workers that the employer was lying, and reference to established legal principles that forbid her from reconsidering a case that another judge has already decided. Instead of considering and judging the information and arguments before her, Judge Nkutha-Nkontwana believed that it would be more convenient for parties to “ventilate the issues fully at a later stage” and that, in the meantime, she would give the employers what they wanted.
Her order risks having a paralysing effect on worker organisation at Heineken, and has strengthened employer tyranny at the expense of collective bargaining, which labour law is supposed to promote.
Most recently, even the National Union of Metalworkers of South Africa fell victim to the labour court’s pro-employer stance. Toyota workers sought to embark on a protected strike after an extensive negotiation process broke down. This is a normal and an entirely permissible feature of the bargaining process in South African labour law. Instead, an acting judge of the labour court, Sean Snyman (who, when he is not judging, is a pro-employer attorney and consultant), ignored binding decisions of higher courts, and granted a court order against the strike.
In a sentence, the labour court is stopping strikes simply because employers are asking it to. It does not take expert knowledge to understand that “we really want this court order” is not a legal argument, no matter how much a judge, or the employer, hates, fears or objects to strikes.
A judge is statutorily and constitutionally bound to rule on whether the strike is unprotected in terms of labour law before prohibiting the strike. A strike will only be unprotected in very limited circumstances set out in labour legislation.
Even if the judge finds that the strike is impermissible on the grounds provided in labour law, a judge must also be satisfied that the employer has met the requirements for the granting of an interdict.
Finally, the labour court is bound to scrutinise the case an employer presents carefully, and to be mindful that if it grants the court order, it is limiting a constitutional right. The Constitutional Court told us as much in 2013.
The effect of the labour court’s approach is devastating. First, it disrupts worker activism and unity. Second, it is financially crushing for nonunionised workers and their representatives, who must raise funds to go back to court to lift these illicit court orders.
If the labour court continues on this track, and if there is no clear intervention from the judge president and higher courts, workers and labour activists will eventually have to conclude that even complying with labour legislation will not enable them to go on strike.
The frightening thing, of course, is that this is happening even before the legislature has changed the law. — Ighsaan Schroeder and Ronald Wesso, Casual Workers Advice Office, Germiston