The Labour Court in Johannesburg on Monday dismissed an application by the South African Airways Pilots' Association (SAAPA) that sought to prevent the state-owned airline from using so-called 'scab labour' in their absence.

At issue are vital training functions needed for the airline to kick off operations again.

The union's members have been locked out since 18 December last year and later went on strike to prevent scab labour – that is, workers hired to fill in for the absent union members – from being used by the airline.

In April this year, SAAPA approached the Labour Court with a similar aim, but the matter was postponed until 15 June. At the time, SAA denied it intended to use scab labour or that SAAPA members faced imminent harm.

Judge Edwin Tlhotlhalemaje ruled that there was no need for the application for interim relief some 17 days before the main application was to be heard on 15 June, arguing that the parties could "fully ventilate" the issues raised then.

"In the end, the applicant has not demonstrated why this court should exercise its discretion and grant the extraordinary remedy it seeks. This is even more so where the applicant has not satisfied the requirements of the relief it seeks, and it follows that the application should be dismissed," said Tlhotlhalemaje.

SAA 'has right' to resume operations

He added that SAA "clearly has a right" to prepare to kick off operations from 1 July, and it would suffer greater harm if relief were granted to the pilots.

Lastly, he noted that the airline intended, for training purposes, to replace four pilots who were not affected by the lock-out – three whose lock-out conditions had been lifted, and one who had never been locked out in the first place.

In its application for interim relief, SAAPA – which represents nearly 90% of the pilots at SAA – says it has proof that SAA has, since the last case was postponed, taken unlawful steps that contravened the agreement in terms of the lockout, the strike and the employment of replacement labour.

SAAPA claims the hiring of the replacement labour is not allowed in terms of a long-standing Regulating Agreement between the airline and SAAPA.

The Regulating Agreement - which, although amended, originally dates back to the apartheid era - has previously been a bone of contention between the pilots and SAA. It governs the pilots’ terms and conditions of employment, and SAA has argued that it is needlessly onerous given the airline's precarious financial position.

Private arbitration proceedings found that the Regulation Agreement could not be terminated on notice, unless explicitly rescinded by a subsequent agreement.

Central to SAAPA's demands were that SAA must agree that the Regulating Agreement should only be terminated on the date on which the last of its members leave the employ of SAA pursuant to a retrenchment process. SAA must also pay all its members who are to be retrenched three months' remuneration in lieu of notice.

SAAPA responded to Fin24 on Monday to say it and its members are obviously disappointed by the decision. The union has taken further legal advice and will be launching an application for leave to appeal against the latest judgment.

SAA interim CEO Thomas Kgokolo has recently the aim is for the airline to the skies again in July or at the latest early to mid-August. The plan is to focus initially on profitable local and regional routes. He acknowledged that the restart of the airline is contingent on ongoing negotiations with SAAPA.

Kgokolo has also confirmed that talks continue, at a shareholder level, with a strategic equity partner. He wants to make sure that SAA in coming months becomes an efficient, reliable, and profitable business which would pass any due diligence process.