Abstract

AWARAB, Marvin R. A critical analysis of Massmart Holdings and Others v South African Commercial Catering and Allied Workers Union [2022] ZALCJHB 119. Law democr. Dev. [online]. 2024, vol.28, pp.196-214. ISSN 2077-4907.  http://dx.doi.org/10.17159/2077-4907/2024/ldd.v28.9.

South African law under the Labour Relations Act 66 of 1995 (LRA), as amended, confers on the Labour Court the power to adjudicate on issues relating to strikes and to grant an interdict and/or order the payment of just and equitable compensation for any loss attributable to the strike or lockout. At least 48 hours before the strike, workers or their trade unions must give written notice of their intention to strike to the employer, the applicable negotiating council, and the Commission for Conciliation, Mediation, and Arbitration. If a strike follows the law, workers who take part in it are shielded from being fired for no other reason than that they are striking. Employees on strike and their trade unions are shielded from lawsuits for any losses or harm sustained while on the protected strike. During an unprotected strike, workers lose the legal protections afforded by labour laws, leaving them open to legal action and possible termination. In the case under review - Massmart Holdings and Others v South African Commercial Catering and Allied Workers Union [2022] ZALCJHB 119 - the trade union, from whom the employer sought compensation for damages caused during a protected strike, objected to the Labour Court's jurisdiction as derived from the LRA. This article provides a critical review of the Labour Court's jurisdiction, particularly in the light of section 68 of the LRA, to order compensation. The analysis revisits previous judgments to test the correctness of the judgment given in the Massmart case.

Keywords : designated picketing areas; employee; employer; Labour Act 66 of 1995; Labour Court jurisdiction; lockout; rights; strike; section 68(1)(b).

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