This article was written by Sabu Sangoni, a Director at Norton Rose Fulbright South Africa
The Constitutional Court has ruled that an employer may not lock out a minority union that was not party to the dispute at bargaining council level.
The case of Transport and Allied Workers Union of South Africa v PUTCO Ltd (case no 64/15) involved a dispute at the South African Road Passenger Bargaining Council regarding wage negotiations.
Although it was still bound by the outcome of the wage negotiations, the Transport and Allied Workers Union of South Africa (TAWUSA) was not a party to the dispute referred by the other union members of the Bargaining Council on the wage negotiations which ultimately led to the strike by their members. TAWUSA had withdrawn its membership of the Bargaining Council some time before the strike commenced. PUTCO issued notice of lock-out to all of its employees who participated in the strike including TAWUSA members. TAWUSA applied for an interdict arguing that it was not on strike, was not a party to the dispute, no demand had been made by PUTCO and therefore it could not be locked out.
The Constitutional Court held that despite TAWUSA having an interest in the outcome of the dispute, it was not a party to the dispute because it was not a member of the forum in which the dispute arose. As a direct result, no demand had been made of the members of TAWUSA. The purported lock-out therefore fell outside the scope of s 213 (which requires a demand) and s 64(1) (which requires an issue to be in dispute between the parties) of the Labour Relations Act.
The importance of this judgment is its clarification of the position of minority unions in wage negotiations. Although they have a direct interest in the outcome of any dispute and may be entitled to a strike or secondary strike, employers may not lock out members of minority unions if the union was not a party to the referred dispute.