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[2020] ZALAC 30
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National Union of Metalworkers of South Africa (NUMSA) and Others v Mahle Behr SA (Pty) Ltd and Another; National Union of Metalworkers of South Africa (NUMSA) and Others v Foskor (Pty) Ltd and Another (DA08/2019; DA09/2019) [2020] ZALAC 30; (2020) 41 ILJ 2093 (LAC) (8 June 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
Case no: DA08/2019
In the matter between:
NATIONAL
UNION OF METALWORKERS
Appellant
s
OF SOUTH AFRICA
(NUMSA) AND OTHERS
and
MAHLE
BEHR SA (PTY) LTD
Respondent
ASSOCIATION
OF MINEWORKERS &
CONSTRUCTION
UNION (AMCU)
Amicus Curiae
Case no: DA09/2019
In the matter between:
NATIONAL
UNION OF METALWORKERS
Appellants
OF SOUTH AFRICA
(NUMSA) AND OTHERS
and
FOSKOR
(PTY) LTD
Respondent
ASSOCIATION OF
MINEWORKERS &
CONSTRUCTION
UNION (AMCU)
Amicus Curiae
Heard:
27 May 2020
Delivered:
08 June 2020
Summary:
Trade union----Strike----Labour Relations Amendment Act of 2018
providing for the holding of secret ballot before resorting
to
strike----Labour Court interdicting strike----interpretation of
s19-----s 19 envisages that Registrar of Labour Relations issues
a
directive after consultation with relevant unions or employers’
organisation office bearers to amend their constitution
within a
certain timeframe----Absent such directive union under no obligation
to hold secret ballot vote--- Labour Court’s
judgment set aside
and appeal upheld.
Coram:
Waglay JP, Phatshoane ADJP and Murphy AJA
JUDGMENT
MURPHY AJA
[1]
On
19 March 2019, the respondents in two separate applications sought
interdicts from the Labour Court to prevent the first appellant
(“NUMSA”) and its members from engaging in a strike.
The
Labour Court (Gush J)
found
that the strikes were unprotected and interdicted the appellants from
engaging in the strikes on the ground (raised by the
Labour Court
mero
motu
)
that no secret ballot
as
envisaged
in
section 19 of the Labour Relations Amendment Act of 2018
[1]
(“the
LRAA”) had been conducted. The appeal to this court is with the
leave of the Labour Court. The respondents do
not oppose the appeal.
The
issue in the appeals is whether the Labour Court’s
interpretation of section 19 of the LRAA is correct.
[2]
Leave to intervene as
amicus curiae
was granted to the
Association of Mineworkers & Construction Union (“AMCU”)
by this court on 4 May 2020, and in
accordance with the directive of
the Judge President, AMCU was invited to present written argument in
terms of Labour Appeal Court
Rule 7(5), which it duly did and for
which we are grateful.
[3]
Section 19 of the LRAA is aimed at empowering the Registrar to
further provide for
balloting requirements in the constitutions of
trade unions and employer organisations. It falls to be interpreted
in the context
of section 95(5)(p) and (q) of the Labour Relations
Act
[2]
("the LRA")
which provide:
‘
The
constitution of any trade union or employers' organisation that
intends to register must -
(p)
provide that the trade union or employers' organisation, before
calling a strike or lock-out,
must conduct a ballot of those of its
members in respect of whom it intends to call the strike or lock-out;
(q)
provide that members of the trade union or employers' organisation
may not be disciplined
or have their membership terminated for
failure or refusal to participate in a strike or lock-out if -
(i)
no ballot was held about the strike or lockout: or
(ii)
a ballot was held but a majority of the members who voted did not
vote in favour of the strike or lock-out:’
[4]
Section 95(5)(p) of the LRA requires trade unions or employers’
organisations
seeking registration to include a requirement for
strike and lock-out ballots in their constitutions. Section 95(5)(q)
of the LRA
relates to the power of a trade union or employers'
organisation to discipline members for a failure or refusal to
participate
in a strike or lock-out where no ballot has been held
about the strike or lock-out or has been held, but a majority of
members
did not vote in favour of the strike or lock-out.
[5]
The failure by a registered trade union or employers’
organisation to conduct
a ballot in terms of its constitution does
not have any impact on the protected nature of a strike or lock-out.
Section 67(7) of
the LRA provides:
‘
The
failure by a registered trade union or a registered employers’
organisation to comply with a provision in its constitution
requiring
it to conduct a ballot of those of its members in respect of whom it
intends to call a strike or lock-out may not give
rise to, or
constitute a ground for, any litigation that will affect the legality
of, and the protection conferred by this section
on, the strike or
lock-out.’
[6]
Section 67(7) of the LRA applies only to trade unions or employers’
organisations
that have complied with the requirements of section
95(5) of the LRA by including balloting requirements in their
constitutions.
[7]
Section 19 of the LRAA was enacted to add to these provisions by
empowering the Registrar
to embark upon a process whereby trade
unions and employers’ organisations could amend their
constitutions to provide for
recorded and secret ballots. Section 19
is headed: “Transitional Provisions”. It provides:
‘
(1)
The Registrar must, within 180 days of the commencement of this Act,
in respect of registered trade unions and
employers' organisations
that do not provide for a recorded and secret ballot in their
constitutions-
(a)
consult with the national office bearers of those unions or
employers' organisations on the most appropriate
means to amend the
constitution to comply with section 95; and
(b)
issue a directive to those unions and employers' organisations as to
the period within which the amendment
to their constitution is to be
effected, in compliance with the procedures set out in amended
constitution.
(2)
Until a registered trade union or employers' organisation complies
with the directive made in terms
of subsection (1)(b) and the
requirements of section 95(5)(p) and (q) of the Act, the trade union
or employer organisation, before
engaging in a strike or lockout,
must conduct a secret ballot of members.”
[8]
Section 8 of the LRAA also amended section 95 of the LRA to introduce
section 95(9)
of the LRA which provides that for the purpose of
section 95(5) of the LRA, a “ballot” includes any system
of voting
by members that is recorded and in secret. It further
amended section 95(8) of the LRA to confer on the Minister, after
consultation
with NEDLAC, an additional power to publish guidelines
for the system of voting as contemplated in the newly inserted
section 95(9)
of the LRA. The preamble to the LRAA records that the
purpose of these provisions was simply to extend the meaning of
ballot to
include any voting by members that is recorded in secret.
[9]
It is common cause that NUMSA’s constitution does not provide
for a “recorded
and secret ballot” and did not comply
with the requirements of section 95(5)(p) and (q) of the Labour
Relations Act
[3]
("the
LRA").
[10]
This appeal, therefore, requires interpretation of the provisions of
section 19 in order to ascertain
their scope and application.
The
proper approach to interpretation is well settled in our law.
Consideration must be given to the language used in the light
of the
ordinary rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed
and
the material known to those responsible for its production. A
sensible meaning is to be preferred to one that leads to insensible
results or undermines the apparent purpose.
[11]
Statutes
must be construed consistently with the Constitution of the Republic
of South Africa, 1996 (Constitution) and where reasonably
possible to
preserve their constitutional validity. Section
39(2)
of the Constitution obliges courts to adopt an interpretation of a
legislative provision which better promotes the spirit,
purport and
objects of the Bill of Rights and to adopt a meaning that does not
unduly limit a right in the Bill of Rights.
Legislative provisions that limit fundamental rights should be
interpreted in a manner least intrusive of the right, if the text
is
reasonably capable of bearing that meaning.
[4]
[12]
The trigger for the application of section 39(2) of the Constitution
is whether the provision in question
implicates or affects a right in
the Bill of Rights. The present matter implicates the right to strike
entrenched in section 23(2)(c)
of the Constitution. Hence, section 19
of the LRAA must be read purposively in the light of the relevant
provisions of the Constitution,
and if there is an interpretation of
section 19 of the LRAA that better promotes the preservation of the
right to strike, that
interpretation ought to be preferred.
[13]
Section 19(1) of the LRA imposes an obligation upon the Registrar to
perform two tasks in respect of
registered trade unions and
employers' organisations that do not provide for recorded and secret
ballots in their constitutions.
Firstly, he is obliged to consult
with the national office bearers of those unions and employers'
organisations on the most appropriate
means to amend their
constitutions so as to comply with the requirement of section 95 of
the LRA to provide for a recorded and
secret ballot in its
constitution.
[5]
And, secondly,
once having held the consultations in question, to issue a directive
to those unions and employers' organisations
as to the period within
which an appropriate amendment to their constitutions must be
effected in compliance with the procedures
set out in the amended
constitution.
[6]
The directive
must tell the union or employers’ organisation how its
constitution must be amended and must state the period
within which
the amendment must occur. In this regard, it is important to note
that section 101 of the LRA imposes certain formalities
in respect of
changes to the constitution of trade unions and employers’
organisations.
[7]
[14]
It is clear from the wording of section 19(1)(b) of the LRAA that
until consultation has taken place
with a trade union’s
national office bearers and a directive is issued no obligation
arises on the part of unions or employers'
organisations to amend its
constitution in the manner contemplated. The duty cast upon the trade
union is not to amend its constitution
in a manner it deems fit in
order to comply with the new definition of "ballot" in
section 95(9) of the LRAA, but to
comply with the Registrar's
directive as to the appropriate means, period and procedures to amend
the constitution.
[15]
Section 19(2) of the LRAA provides that until a registered trade
union or employers' organisation complies
with the directive made by
the Registrar in terms of section 19(1)(b) of the LRAA and the
requirements of section 95(5)(p) and
(q) of the LRA, the trade union
or employers' organisation must, before engaging in a strike or
lockout, conduct a secret ballot
of members. Hence,
it is clear, the obligation to conduct a secret ballot
of members in terms of section 19(2) of the LRAA arises only once a
directive in terms of section 19(1)(b) of the LRAA has been issued by
the Registrar, pursuant to consultations as envisaged in
terms of
section 19(1)(a) of the LRAA. In addition, and as the heading to the
section indicates, section 19(2) of the LRAA is transitional
in
nature. It operates once the Registrar issues a directive to a union
to make the necessary amendment regarding recorded and
secret ballots
and pending the adoption of the amendment.
[16]
The Labour Court in granting the interdict reasoned as follows:
‘
As far as the
first issue is concerned it appears clear from the transitional
provisions that the right to strike is not limited.
All that is
required should a union not wish to be subject to the transitional
provisions is for that union’s constitution
to essentially
comply with the requirements of section 95 (5)(p). This provision has
been a requirement since the inception of
the Labour Relations Act 66
of 95. It is inconceivable that a Trade Union would have been
registered if its constitution at the
time did not comply with the
requirements of section 95(5). The section specifically provides that
“the constitution of any
Trade Union that intends to register
must” comply inter alia with subsection 5.
It is simply so that in
order to engage in a strike [all] that is required is for the union
to conduct a secret ballot of members.
That is the extent of the
compliance the transitional provision requires.
Mr Purdon’s second
argument was premised on what he suggested was an issue related to
the interpretation of the section. He
suggested that the section
should be interpreted to mean that the transitional provisions would
only apply after the Registrar
had issued the directive and before
there was compliance with the directive. …..
The purpose of the
legislation is clear in that its purpose
inter alia
is to
provide that before a union may engage in a strike it should conduct
a secret ballot of its members. In addition to this provision
and to
regulate the interim position the transitional provisions require the
holding of a secret ballot by a union (and employers
organisation in
respect of a lock out) prior to engaging in a strike. The requirement
is peremptory and applies only to registered
trade unions that do not
include in their constitution the requirement of a ballot.
To interpret the section
as not applying to the respondents negates any suggestion that the
transitional provisions will apply in
the interim pending compliance.
That being so I am
satisfied that the transitional requirements apply to those unions
whose constitutions do not provide for a “recorded
and secret
ballot” and that in the interim prior to complying with the
requirements relating to a secret ballot they “must
conduct a
secret ballot of members” before engaging in a strike.
This is a peremptory
provision and until the respondents comply they may not engage in a
strike.’
[17]
Although mentioning counsel’s contention that a directive of
the Registrar had to be issued before
a secret ballot became
mandatory, the Labour Court did not answer it and appears to have
assumed that the provisions of section
19(1) of the LRAA had been met
and that the Registrar had issued a valid directive despite the
absence of any proof that such a
directive had been issued. There is
no evidence on record indicating that the Registrar has consulted
with the national office
bearers of NUMSA and other trade unions on
the most appropriate means to amend their constitution and has issued
a directive directing
NUMSA and other trade unions to effect
specified amendments within a stipulated time period in compliance
with the procedures set
out in the amendments.
[18]
On the basis of its incorrect assumption, the Labour Court wrongly
concluded that in order to engage
in a strike, NUMSA was obliged to
conduct a secret ballot of members in order to comply with the
transitional provisions of the
LRAA. Its interpretation is
inconsistent with the plain language of section 19(1) and
unjustifiably limits the right to strike.
NUMSA has not had an
opportunity to engage with the Registrar on the content, form and
timeframe of any amendment to its balloting
procedures and
requirements.
[19]
In its submissions filed as
amicus curiae
, AMCU, drew our
attention to a document issued by the Registrar on 1 March 2019,
approximately three weeks before the application
which is the subject
of this appeal was heard by the Labour Court. The document does not
form part of the appeal record before
us. It is part of the record in
a different review application before another court.
[20]
The document cited in AMCU’s written submissions reads as
follows:
‘
On 1st January
2019, the amendments to the
Labour Relations Act, 1995
came into
operation whereby further measures were introduced to ensure that
registered trade unions and employers’ organisations
comply
with their constitutions and requirements of the Act.
In terms of section
95(5)(q) of the LRA, the constitution of every trade union or
employers’ organisation must provide that
the trade union or
employers’ organisation, before calling a strike or lock-out,
must conduct a ballot of members in respect
of whom it intends to
call the strike or lock-out…
Section 95(9) provides
that a ballot includes any system of voting by members of a trade
union or employers’ organisation
that is recorded and secret.
The clarification of a ballot is to provide for new technologies of
balloting while at the same time
ensuring good governance and
secrecy.
The Minister has also
issued guidelines in terms of section 95(9) after consultation with
NEDLAC in this regard.
Section 19 of the Labour
Relations Amendment Act, 2018 requires the Registrar of Labour
Relations within 180 days of the Act coming
into effect, to consult
with the national office bearers of trade unions and employers’
organisations which have constitutions
that do not provide for the
conducting of a secret ballot before calling a strike or lockout and
to issue a directive to those
unions and employers’
organisations as to the period within which their constitutions must
be amended to ensure compliance
with the requirements for conducting
a secret ballot.
It must also be noted
that in terms of section 19(2) of the Labour Relations Amendment Act,
2018, until such time as a registered
trade union or employers’
organisation complies with the directive to change its constitution,
a registered trade union or
employers’ organisation before
engaging in a strike or lockout must conduct a secret ballot of its
members.
Registered trade unions
and employers’ organisations are directed to work through their
constitutions and amend the constitutions
to comply with the new
provisions of the
Labour Relations Act, 1995
as amended or advise
this office in instances where the registered trade union or
employers’ organisation is of the view
that it complies, with
these LRA Amendments by referring this office to such provision(s) in
its constitution….
All organisations are
expected to comply with the provisions of the
Labour Relations Act,
1995
as amended.”
[21]
There is no evidence before this court explaining the purpose of this
document. On the face of it,
it aims at informing trade unions and
employers’ organisation of the relevant provisions of the LRAA
and directs them to
“work through their constitutions”
and to come up with amendments that will give effect to the new
requirements. The
document seems to be a preliminary advice intended
to precede the necessary consultations with the national office
bearers of the
relevant unions or employers’ organisation on
the most appropriate means to amend their constitutions. This
interpretation
is confirmed by the fact that the document does not
indicate the form of the amendment or a period within which unions
are to amend
their constitutions, as required by
section 19(1)(b)
of
the LRAA.
[22]
Accepting for the purpose of argument that we may take judicial
notice of this document, it is not
possible to conclude on the
limited evidence available that it constitutes a directive in terms
of
section 19
of the LRAA. As discussed, there is no evidence that
the Registrar consulted with the national office bearers of NUMSA and
other
trade unions and employers’ organisations or has issued a
directive to them in accordance with
section 19(1)(b)
of the LRAA.
The respondents bore the onus of proving that such a directive had
been issued to NUMSA and have failed to discharge
it.
[23]
The Labour Court thus erred in reaching the conclusion that NUMSA was
legally obliged to conduct a
secret ballot and accordingly there was
no cause to interdict NUMSA and the individual appellants from
engaging in the strike on
that basis.
[24]
NUMSA does not seek an order of costs.
[25]
In the result, the appeal is upheld and the order of the Labour Court
is set aside and substituted
with an order dismissing the
application.
________________
JR Murphy
Acting
Judge of Appeal
I agree
_________________________
B Waglay
Judge
President
I agree
_________________________
M Phatshoane
Acting
Deputy Judge President
APPEARANCES:
FOR THE
APPELLANTS:
Adv FA Boda SC
Instructed by Cheadle
Thompson & Haysom
FOR THE AMICUS
CURIAE: Adv C Loxton SC and
Adv PJ Daniell
Instructed
by LDA Attorneys
[1]
Act
8 of 2018 which came into operation on 1 January 2019.
[2]
Act
66 of 1995.
[3]
Act
66 of 1995.
[4]
SATAWUand
Others v Moloto NNO and Another
2012 (6) SA 249
(CC) at para 43.
[5]
Section
19(1)(a) of the LRAA.
[6]
Section
19(1)(b) of the LRAA.
[7]
Section 101 provides
inter
alia
that a registered trade union or a registered employers’
organisation which has resolved to change or replace its
constitution must send the Registrar a copy of the
resolution and a certificate signed by its secretary stating that
the resolution complies with its constitution. On receipt, the
Registrar must register the changed or new constitution if
it
meets the requirements for registration and send the registered
trade union or registered employers' organisation a copy
of the
resolution endorsed by the Registrar, certifying that the change or
replacement has been registered. The changed or new
constitution
takes effect from the date of the Registrar's certification.