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[2011] ZASCA 232
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Equity Aviation Services (Pty) Ltd v South African Transport and Allied Workers Union and Others (478/09) [2011] ZASCA 232; 2012 (2) SA 177 (SCA); [2012] 3 BLLR 245 (SCA); (2011) 32 ILJ 2894 (SCA) (30 November 2011)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 478/09
In
the matter between:
Equity
Aviation Services (Pty) Ltd
…..................................................................
Appellant
and
South African Transport and Allied Workers Union
…........................
First
Respondent
Employees dismissed by the Appellant
…..................
Second and
further respondents
Neutral citation: Equity Aviation v SATAWU (478/09)
[2011] 232 ZASCA (30 November 2011)
Coram:
Brand, Lewis, Malan and Shongwe JJA and Plasket AJA
Heard:
17 November 2011
Delivered
30 November 2011
Summary:
Employees who are not members of a trade union do not strike
lawfully where they have not given notice to strike in terms of s
64(1)(
b
) of the
Labour Relations Act 66 of 1995
.
__________________________________
_______________________________________
ORDER
____________________________________________________________________________
On
appeal from:
Labour Appeal Court
(Zondo JP,
Khampepe ADJP and
Davis JA sitting as court of appeal):
1
The appeal is upheld with costs including those of two counsel.
2
The order of the Labour Appeal Court is set aside and replaced with
the following:
‘
The
appeal is upheld. The order of the Labour Court is set aside and
replaced with the following:
“
The
dismissal of the second and further applicants was not automatically
unfair.”’
____________________________________________________________________________
JUDGMENT
____________________________________________________________________________
LEWIS JA (BRAND, MALAN and SHONGWE JJA and PLASKET AJA
concurring
)
[1] This is an appeal against the majority decision of
the Labour Appeal Court on the interpretation of
s 64(1)(
b
)
of the
Labour Relations Act 66 of 1995
. The section deals with the
procedures to be followed by employees who intend to embark on strike
action or employers who intend
to lock-out. This case concerns only
the right to strike.
[2]
Section 64
must be complied with in order for
employees to strike lawfully, and to enjoy the protection afforded by
the Act. It provides that
every employee has the right to strike, and
every employer has recourse to lock-out if, first (under 64(1)(
a
)),
the issue in dispute has been referred to a council or the Commission
for Conciliation, Mediation and Arbitration (the CCMA)
for
conciliation, and either a certificate is issued by the council or
CCMA that the issue remains unresolved, or a period of 30
days has
elapsed since the referral of the dispute; and, second, after the
certificate has been issued, or time has lapsed, under
s 64(1)(
b
)
notice is given of the proposed strike.
Section 64(1)(
b
)
provides:
‘[I]n the case of a proposed strike, at least 48 hours’
notice of the commencement of the strike, in writing, has been
given
to the employer . . . .’
There are further provisos that are not relevant to this
dispute.
[3] At issue is whether, where a union has given the
requisite notice on behalf of its members, and has embarked on a
strike, other
employees who are not members of that union need also
to give notice in order for their strike action to be lawful.
Khampepe ADJP
and Davis JA in the Labour Appeal Court held not. Zondo
JP held that a separate notice must be given by the non-union members
in
order for their strike to be protected. This appeal lies with the
special leave of this court.
[4] The facts, at this stage, are largely common cause.
The appellant, Equity Aviation Services (Pty) Ltd (Equity), is an
aviation
logistics company which provided services on the ramps and
runways of South African airports, including the largest. The first
respondent, the South African Transport and Allied Workers Union, was
the majority union for Equity’s employees. At the relevant
time, Equity employed some 1157 people, 725 of whom were members of
the union. The other respondents were employees who did not
belong to
the union.
[5] On 13 November 2003 the union referred a wage
dispute to the CCMA. Conciliation did not succeed and on 15 December
2003 the
CCMA issued a certificate that the dispute remained
unresolved. The union issued a strike notice to Equity on the same
day. It
read: ‘We intend to embark on strike action on 18
December 2003 at 08h00.’
[6] The union members did strike, for some four months.
Their strike was regarded as lawful as the union had complied with
the requirements
of
s 64(1)(
b
).
Other employees who did not belong to the union participated in the
strike too. Equity took the view that their participation
was
unlawful: none had given the requisite notice. On 19 November 2004,
Equity dismissed them for unauthorized absenteeism during
the strike.
I shall refer to the union as such, to the other respondents as ‘the
dismissed respondents’, and to ‘the
respondents’
when referring to the union and the dismissed respondents
collectively.
[7] The dismissed respondents referred a dispute about
the lawfulness of their dismissal to the CCMA. Conciliation was
unsuccessful,
and the matter was referred to the Labour Court, the
respondents alleging that their dismissals were automatically unfair
in terms
of
s 187(1)(
a
)
of the Act. The Labour Court was asked to determine whether the
dismissed respondents were required to be members of the union
in
order to participate in the strike lawfully. On 15 June 2006, some 18
months after their dismissal, the Labour Court found that
the
dismissed respondents were in fact members of the union at the time
of the strike, but that in any event, they were not required
to be
members in order to participate lawfully. Their participation was
thus lawful, and their dismissals automatically unfair.
Equity was
ordered to reinstate them with back pay, this despite the fact that
the parties had agreed that the quantum of damages
would be decided
separately and at a later stage.
[8] The Labour Court granted leave to appeal to the
Labour Appeal Court, and that court heard the appeal on 18 June 2008.
On 14
May 2009 the Labour Appeal Court handed down its judgments. The
appeal before this court, with its special leave, was heard on 17
November 2011. I shall revert in due course to the time taken for
this matter to move through the adjudication process.
[9] As I have said, Khampepe ADJP wrote the majority
judgment. Davis JA wrote a separate concurrence and Zondo JP
dissented. But
the court decided unanimously that the relief granted
by the Labour Court should be set aside and that the dismissed
respondents
had not been members of the union when they participated
in the strike. It found also that the notice issued by the union had
not
referred to the dismissed respondents, but that the latter had
not been required to refer a separate dispute to conciliation.
[10] The sole point of difference between the majority
judgments and the dissenting judgment was whether the dismissed
respondents
were required to issue a separate strike notice to
Equity, or whether the union’s notice was sufficient to make
the strike
action by the non-union members lawful. Khampepe ADJP,
observing that
s 64(1)
is silent on who must refer a dispute to the
CCMA and on who must give the notice to strike, said that the section
had to be interpreted
in the light of the purpose of the Act as a
whole and the purpose of the section itself.
[11] Equity contended before the Labour Appeal Court and
this court that to allow employees, who had not given notice of their
intention
to strike, to participate with those who had given notice,
would lead to disorderly strike action: that the employer would have
no opportunity to prepare for the scale of the strike that would
eventuate. The respondents contended, on the other hand, that
once an
employer had notice that a strike was proposed on a particular date
it would be overly formal to require further strike
notices: that
s
64(1)(
b
) did not in
express terms require more than one notice in respect of different
groupings or unions; and that to require a notice
given by the other
respondents would limit their right to strike. I shall return to
these arguments.
[12]
Section 3
of the Act requires it to be interpreted
in such a way as to give effect to its primary objects, in compliance
with the Constitution,
and in compliance with the public
international law obligations of the country. In
Chirwa
v Transnet Ltd & others
1
Ngcobo J pointed out that the provisions of s 3 are not
merely textual aids to be employed when the language of a provision
is ambiguous.
He said:
‘[W]here a provision of the LRA is capable of more than one
plausible interpretation, one which advances the objects of the
LRA
and the other which does not, a court must prefer the one which will
effectuate the primary objects of the LRA.’
[13] Section 1 of the Act sets out its primary objects.
These include providing a framework for, and promoting, orderly
collective
bargaining and promoting the effective resolution of
labour disputes. Section 64(1)(
b
)
is clearly designed for just that purpose. The question is whether
employees who have not given notice of a proposed strike defeat
orderly collective bargaining when they participate in a strike where
other participants have given notice.
[14] In interpreting s 64(1)(
b
)
Froneman DJP in the Labour Appeal Court in
Ceramic
Industries Ltd t/a Betta Sanitaryware & another v NCBAWU &
others
2
said that the section must be interpreted and applied in
a manner which best gives effect to the primary objects of the Act,
‘within
the constraints of the language used in the section’.
He continued:
‘One of the primary objects of the Act is to promote orderly
collective bargaining. Section 64(1)(b) gives expression to
this
object by requiring written notice of the commencement of the
proposed strike.
The section’s specific purpose is to give
an employer advance warning of the proposed strike so that the
employer may prepare
for the power play that will follow.
That
specific purpose is defeated if the employer is not informed in the
written notice in exact terms when the proposed strike
will
commence.’ (My emphasis.)
[15] The purpose of the strike notice is elaborated on
by Helen Seady and Clive Thompson in their chapter on
Strikes
and Lockouts
in Clive Thompson and Paul
Benjamin
South African Labour Law
3
as four-fold. First, the notice tells the employer that
‘words are about to escalate into deeds’, which they term
‘settlement
brinkmanship’. Second, it leads to more
orderly industrial action: the employer is given the opportunity to
regulate what
is inherently volatile – to agree or impose
picket rules, for example. Third, it allows for ‘damage
limitation’.
Strikes are intended to cause financial loss, but
the notice can prevent unnecessary loss – where an employer
works with
perishable goods, for example, it can take steps to
protect them. And fourth, ‘health and safety considerations’;
in
some cases an orderly slow down of production might prevent or
reduce health and safety risks to everyone in the workplace and to
the public. I would add that the requirement of a strike notice has
an additional purpose: to protect employees. If they issue
a strike
notice in proper terms they are protected under the Act: their
conduct is lawful. It is thus in all parties’ interests
that a
strike notice is given by or on behalf of all those who intend to
strike.
[16] In this matter Khampepe ADJP considered that
requiring more than one notice of a strike would be contrary to
labour law jurisprudence
on the interpretation of s 64(1)(
b
),
including the decisions of the Labour Appeal Court in
Chemical
Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd
,
4
and the Labour Court in
Afrox Ltd
v SA Chemical Workers Union & others (1).
5
She held that to require the dismissed respondents to
issue separate strike notices would be ‘too technical and
constitute
an absurdity which the legislature could not have
contemplated’. She also considered that the effect of Equity’s
interpretation
would limit participation in strike action without
justification. She added that in terms of s 64(1)(
b
)
an employer is entitled to notice of the commencement of a strike but
not to be informed about the identity of the strikers. She
concluded,
therefore, that the dismissed respondents’ strike action had
not been unlawful.
[17] Davis JA, who concurred with Khampepe ADJP,
responding to the dissent of Zondo JP, considered that the latter’s
view
that chaos might ensue if employees, who had not given notice,
participated in strike action where other employees had given notice
(through a union or individually), was based on hypothetical examples
that were different from those in this dispute. He added:
‘In my view, when collective bargaining fails and a strike
commences the fact that a notice is provided by a
significant
group of workers
within the bargaining unit which proposed to
strike is sufficient to ensure the necessary form of orderly
industrial relations.
To read further limitations to section 27 [sc
23] of the constitution does not appear to me to be justified, either
in terms of
the purpose of the Act or the express wording of section
64 which . . . must be the starting point of the enquiry.’ (My
emphasis.)
[18] In argument in this court, even the respondents’
counsel indicated that they did not rely on the test of a
‘significant
group of workers’ and could not say what it
meant. And Zondo JP pointed out that this construction of the section
would introduce
a considerable degree of uncertainty in the law
governing industrial action. He said that the meaning of s 64(1)(
b
)
should not change depending on the facts (a general rule of statutory
interpretation). Davis JA’s view, he cautioned, would
lead to
the conclusion that if an insignificant number of employees gave
notice of their intention to strike, then a further notice
would have
to be given for a significant number of employees who also intended
to strike. On the other hand, if the significant
number gave notice
first, no further notice need be given by the insignificant number.
That made no sense. I agree.
[19] The majority judgments, Equity argued, did not
appreciate the differences between s 64(1)(
a
)
and s 64(1)(
b
). The
purpose of (
a
) is to
provide first for conciliation, or a period to ‘cool off’.
The object of (
b
), on
the other hand, requires notice of intended strike action in order
for the employer to prepare for the power play that will
follow. That
purpose, Equity argued, would be undermined if an employer had no
indication of the number of employees who would
participate in the
strike. The reason for notice – to warn the employer so that it
can make preparations for the strike that
ensues and to protect the
employees themselves
6
–
was not considered in the majority judgments.
[20] Were that fundamental purpose to be undermined,
Equity argued, an employer would not be able to determine before the
strike
its scale, intensity and focus. It would thus not be able to
make an informed decision as to whether to accede to the employees’
demands; would be prevented from taking adequate steps to protect its
business; could not make informed decisions on pre-strike
regulatory
decisions; and would be precluded from implementing adequate health
and safety measures.
[21] Zondo JP took these considerations into account in
reaching the conclusion that the dismissed respondents were not
protected
by the Act. He gave several examples that illustrate the
chaos that might ensue should notice not be given that particular
employees
proposed to strike (the examples that Davis JA said were
not useful). Equity advanced others. One suffices to illustrate the
point.
[22] Assume that an employer employs 10 000 workers in
the country. Two employees in a small town are dissatisfied with
their particular
work conditions. The majority union is not
interested in their plight. The two individuals refer a dispute to
the CCMA. It issues
a certificate of non-resolution. One of the two
employees issues a notice stating that they both intend to strike,
giving 48 hours’
notice. The employer does not consider this to
be a threat to its business and takes minor steps to deal with their
absence. But
on the day of the strike the majority of the 10 000
employees across the country embark on strike action. Had the
employer
known of the scale of the strike it would have acceded to
the demands made by the two employees, or taken measures across the
country
to prevent chaos in the workplace. This consequence could not
conceivably have been intended by the legislature.
[23] The example is an extreme one. The respondents
argued that it is too far-fetched to be taken seriously, and that
such extremes
are unlikely. They contended that a strike notice is
not issued in a vacuum. It can be issued only after negotiation and
an attempt
at mediation. The context would thus indicate to an
employer who the likely participants will be, and thus the scale of
the strike.
In this case, the respondents argued, Equity was not
caught by surprise. It knew that all the employees in the bargaining
unit
were affected by the dispute, regardless of whether they were
members of the union or not. Indeed, a representative of Equity
discussed
their participation with representatives of the
non-unionised employees. Moreover, the respondents argued, strike
action is inherently
disruptive and some uncertainty as to the
identity or number of those who propose to strike does not
necessarily make the strike
disorderly. But in fact, Equity did not
know that the non-unionised members would strike. It made enquiries
and was told that only
members of the union would strike. Its
contingency arrangements were made on this basis.
[24] The argument of the respondents is premissed on the
principle that the right to strike should be limited as little as
possible.
That principle flows from cases such as
S
v Zuma & others
7
in which the Constitutional Court said that
constitutional rights ‘conferred without express limitation
should not be cut
down by reading implicit limitations into them’.
Thus limitations must themselves be strictly construed. And in
Chemical Workers Industrial Union v Plascon
Decorative (Inland) (Pty) Ltd
8
Cameron JA warned against importing into the Act
‘without any visible textual support, limitations on the right
to strike
which are additional to those the legislature has chosen
clearly to express’.
[25] That proposition flows also from
Ceramic
Industries
9
argued the respondents. But in that case the Labour
Appeal Court was concerned primarily with the employer’s right
to be given
prior warning of a proposed strike, ‘in exact
terms’
10
and does not in any way suggest that the requirement of
notice is a limitation of the right.
[26] In my view, the basic premiss of the respondents’
argument is flawed. The requirement of notice is not a limitation of
a right. It is a procedural requirement for the
exercise
of the right to embark on strike action. Requiring all
employees to serve such a notice does not impinge on their rights.
Nor does
such a requirement need to be read into the section. It is
the logical interpretation of the section required to give effect to
its purpose: warning of the power play that will follow, in such a
way that the employer can make informed decisions.
[27] That this must be the correct interpretation of s
64(1)(
b
) is assumed by
the authors of
Labour Relations Law: A
Comprehensive Guide
.
11
They state that once there has been a discharge of the
conciliation and notice requirements, a union is entitled to ‘call
out on strike all its members employed by the employer, and not only
those members in dispute with the employer. Employees who are
not
union members would also be able to join the strike (the requirement
is only that the dispute be conciliated)
provided
they give separate notice of their intention to strike
’
.
(My emphasis.)
Zondo JP relied on this statement in support of his
conclusion, while Khampepe ADJP dismissed it as being unsupported by
authority.
[28] I consider that Zondo JP correctly interpreted s
64(1)(
b
): employees
who do not belong to the union that has given the strike notice must,
in order lawfully to embark on strike action,
give notice that they
too intend to strike. They may do so through a representative or
personally, provided that their notice alerts
the employer to the
extent of the strike (which will always be a matter of fact) and
allows it to make the necessary arrangements.
If it were otherwise,
in Zondo JP’s words, the Act would ‘promote not only
disorderly collective bargaining but will
also usher in an era of
chaotic collective bargaining in our labour dispute resolution
system’. The appeal must thus succeed.
[29] This matter has taken an inordinate time to reach
this stage. The wage dispute was first referred to the CCMA in
November 2003.
The CCMA issued a certificate of non-resolution on 15
December 2003. The union’s strike notice was issued the same
day. The
strike commenced three days later than that, on 18 December
2003. The dismissed respondents were dismissed 11 months later. Their
dispute was referred to the CCMA on 1 December 2004. It was not
resolved. The matter was heard by the Labour Court on 12 June 2006,
some 14 months after the statement of case was delivered to the
Labour Court. That court delivered its judgment within a month,
and
gave leave to appeal within two months. The Labour Appeal Court’s
hearing was on 18 June 2008. Its judgments were in
turn handed down
some 11 months later. The hearing of the matter in this court was
delayed because of intervening factors affecting
Equity. In the
circumstances, where employees had been dismissed some eight years
before the hearing in this court, both Equity
and the dismissed
respondents must have been prejudiced. The delays in the court system
are to be deplored. The Registrar of this
court is requested to bring
this judgment to the attention of the Judge President of the Labour
Appeal Court.
[30]
1 The appeal is upheld with costs including those of two
counsel. The order of the Labour Appeal Court is replaced with:
2
The order of the Labour Appeal Court is set aside and replaced with
the following:
‘
The
appeal is upheld. The order of the Labour Court is set aside and
replaced with the following:
“
The
dismissal of the second and further applicants was not automatically
unfair.”’
______________
C H Lewis
Judge of Appeal
APPEARANCES:
FOR APPELLANT: J J Gauntlett SC (with him G Leslie)
Instructed
by
Senekal Simonds Inc, Bedfordview
Honey
Attorneys, Bloemfontein
RESPONDENT:
J G van der Riet SC (with him T M G Euijen)
Instructed
by
Cheadle Thompson & Haysom, Braamfontein
McIntyre
& van der Post, Bloemfontein.
1
Chirwa
v Transnet Ltd & others
[2007] ZACC 23
;
2008 (4) SA 367
(CC) para 110.
2
Ceramic
Industries Ltd t/a Betta Sanitaryware & another v NCBAWU &
others
[1997] 6 BLLR 697
(LAC) at 702F-I.
3
Clive
Thompson and Paul Benjamin
South African Labour Law
(looseleaf)
vol 1 AA1-314.
4
Chemical
Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd
(1999) 20
ILJ
321 (LAC) para 28.
5
Afrox
Ltd v SA Chemical Workers Union & others (1)
(1997) 18
ILJ
399 (LC).
6
See
para 15.
7
S
v Zuma & others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) para 15 and
Chemical
Workers
above, para 20.
8
Chemical
Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd
(1999) 20
ILJ
321 (LAC) para 28.
9
Ceramic
Industries Ltd t/a Betta Sanitaryware & another v NCBBAWU &
others
[1997] 6 BLLR 697
(LAC), cited above, at 701.
10
At
702G-I.
11
Labour
Relations Law; A Comprehensive Guide
3 ed (1999) by D du Toit, D
Woolfrey, J Murphy, S Godfrey, D Bosch and S Christie at 238.