Employer has right to lock out employees � Judge
Goitsemodimo Kaelo | Friday October 16, 2015 17:23
The union was representing some of the BURS workers who were involved in the strike that commenced in July this year.
The industrial court yesterday dismissed BOPEU’s application challenging the legality of the BURS lock out notice on workers who were taking part in the strike.
BOPEU had also applied to the Industrial court seeking an order to declare the decision by BURS to force the workers on strike to sign letters of committal unlawful, irregular and or unfair.
They also sought an order directing that any such letters already signed be of no force and effect and restrain BURS from forcing any worker to sign such letters.
When dismissing BOPEU’s application, Justice Tapiwa Marumo noted that an employer is entitled to decide whether or not to allow employees returning from strike back to work, once it has established their reason for returning to work. She stated that although the workers are entitled to flow in and out of the strike as they wish, such a right was not absolute and had its own limitations which were premised on the right of the employer to protect its interest and operations. Marumo is of the view that the amended notice to strike by the workers did not create a new dispute, independent of an already existing wage dispute between the two parties. The court held that there was a dispute of interest between the parties as contemplated by the Act and Section 39 had been complied with.
“It is the court’s view that the notice complied with the strike, Picketing and Lockout Rules entered into by the parties”.
Marumo ruled that BURS is entitled to compel all its returning employees to sign letters of commitment and any employee who refused to sign such a letter could be properly locked out and those locked out would be affected by the ‘no work, no pay ‘ rule.
In their application, the union through their attorney Joe Akoonyatse of Ramalepa Attorneys contended that the lockout notice was unlawful on several grounds. They argued that such notice failed to comply with Section 39 of the Trade Dispute Act, they further submitted that as the lockout notice was not in furtherance of any dispute of interest, then it was unlawful as it was precipitated by the decision to change strike tactics by the workers.
They said the employers used the lockout as an action intended to prevent the workers from exercising the right to strike.
On the contrary, the respondent (BURS) submitted that the lockout notice complied with all the legal requirements and was lawful. The respondent argued that it would be wrong to go behind the lockout notice to raise extraneous issues that have no bearing on the legal requirements to be fulfilled.
Meanwhile BOPEU president Andrew Motsamai has said they are likely going to appeal the judgement.
“Its highly likely that we are going to appeal. We are going to seek legal advice but we definitely going to appeal. We cannot leave this matter like this. I don’t agree with the judge on many of the things she said,” he argued.
Motsamai said they should not just give up, as the judgement will set a bad precedence going forward. He said by fighting this judgement, they are not doing it for themselves but for the good of the country.
Recently, BURS commissioner Keneilwe Morris told parliamentary committee on Statutory Bodies and State Enterprises that the workers ‘had a point’ to go on strike. He admitted that their welfare was worrisome.
He however said they are working towards a pay structure review to address these problems and avoid any possible future strike. He said the strike did not have any impact on the revenue collection.