Abstract
This case note is an analysis of Numsa obo Members v Elements Six Productions (Pty) Ltd [2017] ZALCJHB 35 (7 February 2017). The jurisprudence advanced in this case is pertinent to balancing the employer and employee’s rights in the context of collective bargaining. The worker’s right to strike is one of the rights entrenched in the South African constitution. In addition, this right to strike should not be directly or indirectly undermined without a just cause. The preamble of the South African Constitution seeks to redress the unjust laws of the past including those in the employment arena. Furthermore, unfair discrimination is also one of the prohibited practices which are sanctioned not only domestically but internationally as well in terms of the International Labour Conventions. This note contributes to the existing literature of labour law by critically analysing the decision reached by Tlhotlhalemaje J.
 
Highlights
Does offering bonuses to non-striking employees who went beyond the call of duty and performed the duties of the striking employees contravene section 5 of the Labour Relations Act 66 of 1995 (LRA)? How compelling is the contention that the employer is rewarding volunteers for their efforts in ensuring that it fulfils clients' demands during a crippling strike? More accurately, what is significant here is that without non-strikers going the extra mile, the employer would have lost market share as well as suffering reputational damage
The court ruled that the payment of the "token" to the non-striking employees constituted differentiation, which amounted to discrimination within the context of section 5(1), 5(2)(c)(iii) and 5(2)(c)(vi) of the Labour Relations Act of 1995 (LRA),8 and that the discrimination was unfair in that the striking employees were prejudiced for their participation in the lawful activities of their trade union, and the exercise of their right to strike
The right to strike is recognised domestically and through International Labour Organisation (ILO) conventions such as the Freedom of Association and Protection of the Right to Organise38 and the Right to Organise and Collective Bargaining,39 which advocate for the protection of workers' rights
Summary
How to cite this article Rwodzi NT and Lubisi N Introducing a Serpent into the Garden of Collective Bargaining: A Case Analysis of Numsa Obo Members v Elements Six Productions (Pty) Ltd [2017] ZALCJHB 35 (7 February 2017)"PER / PELJ 2019(22) - DOI http://dx.doi.org/10.17159/17273781/2019/v22i0a5190
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
