To what extent may an employer pay non-striking employees a bonus during a strike?
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The original position is reflected in SACCAWU v OK Bazaars (1929) Ltd (1995) 16 ILJ 1031 (A) where Grosskopf JA held the following:
- measures to discourage strikes are encouraged and legally permissible (e.g. the offering of financial inducement to non-strikers)
- the threat of withholding a bonus from strikers or the actual withholding of such a bonus does not affect workers’ freedom to strike
- it is unreasonable to deprive non-striking workers of a bonus merely because others are engaged in a strike with which the non-strikers have no sympathy
(The above approach is followed in National Union of Mineworkers v Cullinan Diamond Mine, a division of Petra Diamond Mines (Pty) Ltd (2019) 30 SALLR 184 (LC); (2019) 40 ILJ 1826 (LC) (‘Petra Diamonds (LC)’) and National Union of Mineworkers v Petra Diamonds t/a Cullinan Diamond Mine (2021) 32 SALLR 9 (LAC); (2021) 42 ILJ 785 (LAC) (‘Petra Diamonds (LAC)’)
The industrial court, in Chemical Workers Industrial Union v BP South Africa (1991) 12 ILJ 599 (LC), held the viewpoint that there were good and compelling economic reasons to differentiate between striking and non-striking workers for the duration of a strike (see also East Rand Gold and Uranium Co Ltd v NUM (1989) 10 ILJ 683 (LAC)) – this approach was followed in Petra Diamonds (LC) and Petra Diamonds (LAC).
The following labour court judgments, however, adopted a different approach, as that set out above:
- in National Union of Mineworkers v Namakwa Sands – a division of Anglo Operations Ltd (2008) 29 ILJ 698 (LC), it was held that the payment of a so-called redeployment allowance and free meals per se amounted to a breach of s5(3) of the LRA
- in Food & Allied Workers Union and Others v Pets Products (Pty) Ltd (2000) 21 ILJ 1100 (LC), it was held that a R200 voucher paid to non-striking employees for hard work performed during a strike and going the extra mile, so to speak, per se amounted to a breach of s5(1) of the LRA
(The above approach was not followed in Petra Diamonds (LC) and Petra Diamonds (LAC).)
In Petra Diamonds (LAC), the following approach was adopted:
- the question to be answered is whether a differentiation between non-striking employees and striking employees is justified in the circumstances
- economic sanctions underwrite the collective bargaining process
- the countervailing power of an employer to a strike is not the prerogative to lockout but indeed the prerogative to act unilaterally
- consequently, what must be determined is whether or not the unilateral offer to pay a bonus, extra pay, etc, is:
- suitable and
- necessary (proportional)
- to protect property and business
- the above is, in essence, a factual question
- in casu, it was found that such unilateral offer was justified, seeing that it was proportional and protected the business of the employer
