Last week Thursday, the Labour Appeal Court ruled that employees are allowed to strike in support of a demand that their employer abandons mandatory alcohol testing aimed at preventing drivers from driving under the influence. 

Pikitup (SOC) Limited v SAMWU (case no JA82/13) (5 December 2013) dealt with the situation where Pikitup proposed to implement mandatory breathalyser tests for drivers after it identified the intoxication of drivers as the cause of several accidents and a fatality.  SAMWU opposed the implementation of breathalyser tests on the basis that breathalyser tests are potentially inaccurate and degrading.  When the employees eventually went out on strike in opposition to alcohol testing, Pikitup approached the labour courts on an urgent basis to have the strike action declared unlawful.

The Labour Appeal Court dismissed Pikitup’s application, finding that health and safety matters may be the subject matter of collective bargaining and therefore the subject matter of a protected strike.  Whilst occupational health and safety legislation places an obligation on an employer to ensure that employees are not under the influence of alcohol in the workplace, it does not specify that breathalyser tests should be used. The fact that employees are by law required to comply with instructions relating to health and safety does not mean that they do not have a say as to what the health and safety policy should provide for in the first place - unless the content of that policy is expressly provided for by law.

Written by Jonathan Jones, associate at Norton Rose Fulbright South Africa