2017-12-13Staff Report 2 Roland Routh Windhoek An appeal by thirteen former teachers of the Kayec Trust in Windhoek, who embarked on a strike for higher wages in July last year and were subsequently dismissed from their positions after the labour commissioner found the strike was unlawful and therefore unprotected, was dismissed in the Windhoek High Court last Friday. Labour Court Judge Boas Usiku found that the decision by the labour arbitrator that the strike was illegal and thus unprotected was correct and must stand. The teachers first went on strike from June 23 to 25, but withdrew the strike notice because of the 48-hour provision of the Labour Act, and again issued a strike notice on June 28 to commence action on July 5 in 2016. However, according to the collective agreement between Kayec and the union representing the teachers, the Namibia National Teachers Union (Nantu), before any industrial action can be undertaken by any party, five days’ notice must be given to the other party. The arbitrator found that this did not happen and thus declared the strike illegal and unprotected. The union and dismissed teachers did not agree and launched a review application in the Labour Court. The union and the teachers contended that the labour commissioner erred when she found the strike was illegal as they had apparently not adhered to the requirement in the recognition agreement that states either party must give five days’ notice before embarking on industrial action. The teachers were issued a certificate of unresolved dispute on April 26, 2016 and they commenced a strike on June 23 after giving Kayec 48-hour notice of the strike, and then called off that strike after realising they did not give the required five days’ notice. They however argued that by calling off the initial strike, they did not abandon their grievances, but merely postponed the industrial action to fulfil the requirements of the five-day notice. When they recommenced their strike on July 5, they were well within the time frame set by the recognition agreement, they argued through the legal representative, Advocate Thabang Phatela, on instructions of Metcalfe Attorneys. The arbitrator however disagreed and found that they called off the strike on June 25 and that indicated that the matter was resolved and as such they could not rely on the certificate of unresolved dispute issued in April, and had to start the process from scratch to obtain a new certificate of dispute. According to Judge Usiku, it is common cause that there was a valid and binding recognition and procedural agreement between the parties, which among other things, provided that a party wishing to exercise its right to industrial action must give the other party at least five days’ notice and it is also common cause the union and the teachers did not conform to that agreement. He said that while the Act makes provision for parties to give 48 hours’ notice, where parties for reasons agreed upon committed to longer period of notice, the Act binds the parties to such agreements for longer periods. “Since a collective agreement is valid and binding on the parties thereto, as contemplated by the Labour Act, the provisions of a collective agreement must be considered whenever a court or arbitration tribunal is called upon to consider the lawfulness or otherwise, of an act by a party, which is covered in the collective agreement,” Judge Usiku stated. He further said that where a party embarks upon a strike without complying with the requirement, the ensuing industrial action would be illegal and thus unprotected. He made no order as to costs. ••• Pic: Kayec teachers Caption: Constant battle… Young out of school children receiving lessons from a Kayec staff member in August 2016. This photo is for illustration only. Photo: Nampa 2017-12-13Staff Report 2
