Nantu loses appeal against illegal strike

The long-standing dispute between employees of the Katutura Youth Enterprise Centre (Kayec) Trust, which has been going on for close to a year, was resolved in the Windhoek High Court last week.

The court upheld the decision of the arbitrator in the case. The arbitrator had declared that a strike for salary increases and other benefits was illegal.

The decision to charge and dismiss the 13 striking workers was also upheld by High Court Judge Boas Usiku, who ruled that the strike action was illegal and unprotected.

The dismissed workers were represented by the Namibia National Teachers Union (Nantu). At the beginning of the year, Kayec terminated its recognition agreement with Nantu as the bargaining agent after the arbitrator found that their members had not complied with the provisions of the Labour Act.

The workers failed to give five days' notice before embarking on strike action. This decision was appealed by Nantu. Usiku ruled that a certificate of unresolved dispute, issued by the conciliator, was not a justification for workers to seek a second industrial action.

He noted that the initial strike action, in respect of which it was first utilised, had been unconditionally withdrawn by the workers themselves.

The arbitrator on this basis held that the strike embarked upon by Nantu members on 5 July 2016 was illegal as well as unprotected. The workers were ordered to return to work by 25 January 2017.

Nantu asked the court to set aside the arbitrator's findings that the certificate of unreported dispute dated 26 April 2016 had lapsed when Nantu withdrew their initial notice of industrial action on 27 June 2016.

The union also wanted the court to set aside the finding that the certificate of unresolved dispute dated 26 June 2016 could not be utilised to underpin the second notice of the industrial action.

Kayec opposed the appeal.

Usiku said the strike notice was only given four working days prior to the strike and was thus not in compliance with the provisions of the recognition agreement.

“When a party embarks upon a strike without complying with the requirements to give five days' notice to the other as required by a collective agreement, the ensuing industrial action would be illegal and unprotected,” he ruled.

The union had on 7 February 2013 entered into a recognition and procedural agreement with Kayec. On 24 February in the same year, the union referred a dispute of interest to the labour commissioner for conciliation in accordance with the provisions of the Labour Act.

After several unsuccessful conciliation meetings the conciliator issued a certificate of unresolved dispute on 26 April 2016.

Nantu on 21 June 2016 gave 48 hours' notice to Kayec that its members would embark on a strike on 23 June 2016.

“It is common course between the parties that the said notice was defective in that it was not 'in the prescribed form' as required by section 74 (1) (d) of the Labour Act. However Nantu did embark upon such strike on 23 June 2016,” Usiku stated.

The union made a U-turn and on 27 June 2016 gave another notice to Kayec in which they withdrew the strike notice that was given on 21 June 2016.

“Such withdrawal was unconditional. The withdrawal of the strike and the unconditional return to work, have the effect of settling the dispute between the parties.

“If Nantu wished to embark upon a lawful strike they would have to follow the relevant procedures afresh.

“The finding made by the arbitrator on this aspect is not contrary to the provisions of the Labour Act and in my opinion it is in accordance with the intention of the legislature,” the judge ruled.

FRED GOEIEMAN