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2024
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[2024] ZALCJHB 99
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Department of Public Works and Roads, North-West v National Union of Public Service and Allied Workers Union (J1577/23) [2024] ZALCJHB 99; [2024] 5 BLLR 492 (LC); (2024) 45 ILJ 1003 (LC) (12 February 2024)
FLYNOTES:
LABOUR – Strike – Future violation of rights –
Interdict
– Employer contended picket was unlawful because it was not
held in support of protected strike – Alleges
conduct of
employees met definitional requirements of strike action –
Continuing injury or reasonable apprehension
of future harm
occurring must be present – Unable to demonstrate
possibility that Union or its members are violating,
or will
violate, any of its rights in future – Rule nisi and interim
order discharged.
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
case
no:
J1577/23
In
the matter between:
DEPARTMENT OF PUBLIC
WORKS
AND
ROADS,
NORTH-WEST
Applicant
and
national union of
public service
and
allied workers
union
Respondent
Heard
:
8
February 2024
Delivered
: 12
February 2024.
This judgment was handed down electronically by
emailing a copy to the parties. The 12 February 2024 is deemed to be
the date of
delivery of this judgment.
Summary:
Application to interdict misconduct, return date.
Application dismissed, no order as to costs.
JUDGMENT
DANIELS J
Introduction
[1]
For ease of reference, the applicant is hereafter referred to as “the
Department” and the respondent is referred
to as “the
Union”.
Material
facts
[2]
The Expanded Public Works Programme (hereafter the
“EPWP”) is a government led nationwide initiative aimed
at enabling
and
skilling
large numbers of
unemployed youth by drawing them into the workforce. All government
entities are expected to engage in and support
the EPWP by employing
youth from indigent and local communities. The EPWP operated based on
fixed term employment contracts, the
specific duration of which
depended on the approved budget and the nature of the project.
[3]
The Department was granted approval to engage in
the EPWP, in respect of its Iterele Roads Maintenance Programme. This
envisaged
road maintenance in all districts of the North-West
Province, over a period of 36 months.
[4]
The Department recruited a large number of
individuals for the project, and it did so in two groups. The fixed
term employment contracts
for the first group were due to terminate
at the end of July 2023 and those of the second group were at end at
the August 2023.
[5]
However, as the termination dates approached,
several disputes arose between the Department and the employees. The
applicant extended
the termination dates to the end of October and
November 2023, and established a task team to engage with the
employees to resolve
their disputes. Initially the employees were
unrepresented in these discussions.
[6]
During August 2023, the Union recruited some of
the employees as its members and transmitted a memorandum of demands
to the Premier
of the North-West Province. The Department refused to
engage with the Union, alleging that it did not have any members
because
none of its employees paid membership fees.
[7]
Frustrated, the Union issued to the Department a
notice of its intention to picket, on 12 October, at its offices. The
primary demand
made by the Union was permanent employment of all the
employees engaged by the Department through the EPWP. On 12 October,
the
picket occurred without hindrance from the Department.
[8]
On 25 October 2023, the Department notified the
first group of employees that their employment would terminate at the
end of that
month.
[9]
On 1 and 2 November 2023, the gates at several
different offices operated by the Department were locked, thus
hindering work. The
Department alleged that these activities were
executed by members of the Union acting collectively but it failed to
identify a
single Union official or member who had engaged in the
misconduct. It also produced no evidence that the Union was involved
in
planning the misconduct. Unsurprisingly, the Union denied that it
was involved. The Union contended that the misconduct was committed
by the local community who were angered by the Department’s
conduct.
[10]
On 3 November 2023, the Department addressed a
letter of demand to the Union, requiring it to desist from unlawful
conduct. Unsurprisingly,
the letter failed to elicit a positive
response.
[11]
On 7 November 2023, the Department launched an
urgent application. The Department argued that the Union had no paid
up members and
could therefore not bargain on behalf of any
employees, it alleged that the misconduct during October and early
November 2023 was
committed by members of the respondent acting
collectively, and it alleged that the picket on 12 October was
unlawful because it
was not in support of a protected strike. It
bears repeating. In its papers, the applicant clearly, and
repeatedly, contended that
there was no strike in which members of
the respondent engaged.
[12]
A rule nisi and interim order was issued on 10 November 2023. Prayers
2 and 3 of the interim order read as follows:
2.
An interim order is granted – in the following terms,
pending the return date of 7 February 2024 where the respondent
may
show cause why a final order should not be granted in these terms:
12.1
NUPSAW
is interdicted and restrained from disrupting the day-to-day
functioning of the applicant by, inter alia, locking its gates
across
all its offices in the North-West Province,
12.2
The
respondent is to immediately unlock all gates to the applicant’s
offices and sites and to vacate the applicant’s
premises,
3. Costs will be
determined on the return date.
[13]
Although initially enrolled for 7 February, the matter came before me
on 8 February, when the applicant sought to confirm
the rule nisi.
The respondent filed a supplementary affidavit shortly before the
hearing and sought leave to have it admitted.
Legal Issues
[14]
As the factual matrix reveals, there were several
unusual features in this matter:
14.1
The employer contended that there was no
unprotected strike. This was perhaps not surprising when one has
regard to para 14.2 below.
14.2
The
employer contended that the picket on 12 October 2023 was unlawful
because it was not held in support of a protected strike.
[1]
14.3
By the time of the return date, the Union had no
members in the employ of the Department. Its members’
employment contracts
expired at the end of October, or November 2023.
Did the misconduct in
October and November 2023 constitute a “strike”?
[15]
The word “strike” is defined in
section 213
of the
Labour Relations Act No. 66 of 1995
as amended
(hereafter the “LRA”) in the following terms:
“
Strike
means the
partial
or complete
concerted
refusal to work, or the
retardation
or obstruction of work
,
by
persons
who are or have been employed
by
the same employer or by different employers,
for
the purpose of remedying a grievance or resolving a dispute
in
respect of
any
matter of mutual interest between employer and employee
and
every reference to work in this definition includes overtime work,
whether it is voluntary or compulsory
.”
[16]
The
definition of strike was considered by the Labour Appeal Court in
TSI
Holdings (Pty) Ltd & Others v National Union of Metalworkers of
SA & Others
[2]
which held as follows:
“
[25]
In their argument counsel for both parties referred either to the
strike in support of a demand or to the purpose of the strike.
To
refer to the purpose of a strike or to a strike in support of a
demand is inaccurate in our law. This is because in terms of
the
definition of a strike in
s 213
of the Act
a
strike is not a refusal to work or an obstruction or retardation of
work only but it is such refusal, obstruction or retardation
when it
is concerted and is resorted to for a purpose contained in the
definition of the word 'strike'
or, when
regard is had to the definition of 'issue in dispute' in
s 213
,
it
can also be said that it is such conduct when it is in support of a
demand
.
…. The definition of the phrase 'issue in dispute' in
s 213
of
the Act is: 'issue in dispute in relation to a strike or lock-out
means the demand, the grievance, or the dispute that forms
the
subject matter of the strike or lock-out'.
The
demand is linked up with the purpose - not of a strike - but of a
concerted refusal to work, or the retardation or obstruction
of work
contemplated in the definition of the word 'strike'
.
[26]
In terms of the definition of the word 'strike' the purpose of a
concerted refusal to work, retardation or obstruction of work
can be
to remedy a grievance, or to resolve a dispute in respect of any
matter of mutual interest between employer and employee.
Under the
Labour Relations Act 28 of 1956) (the old Act) the definition of a
strike did not include the purpose of remedying a
grievance or
resolving a dispute. The purpose provided for in the definition of
the word 'strike' in s 1 of the old Act was the
compulsion of the
employer to agree to a demand or request or proposal made by
employees in regard to terms and conditions of employment
or in
regard to a matter of mutual interest. This resulted in many cases
where, if workers had refused to work or had engaged in
a work
stoppage without articulating any demand to the employer, their
conduct was held not to constitute a strike.
Accordingly, what the
definition of the word 'strike' does is to acknowledge that, even in
a situation where workers stop working
or refuse to start work
without articulating a demand or request or proposal to their
employer, they have a grievance of one kind
or another which they
want their employer to remedy and their conduct constitutes a strike
.
Other concerted refusals to work or retardations or obstructions of
work are those where disputes exist or a demand has been made
to the
employer but the employer has yet to respond thereto. A dispute will
exist where a demand has been made on the employer
and he has
rejected it or where there is disagreement between the parties on a
particular issue.
[27]
A concerted refusal to work or a concerted retardation or obstruction
of work which is resorted to for the purpose of resolving
a dispute
is the one where the union or employees have made a demand on the
employer and the employer has either rejected such
demand or has
neglected to comply with it. The reference to a demand, a grievance
or a dispute in relation to a strike or lock-out
in the definition of
the phrase 'issue in dispute' confirms
the existence of three
categories of strikes, namely, those which have a demand, those where
there is no demand but there is a grievance
and those in which there
is a dispute
. There can be no doubt that, where there is a
concerted refusal to work or a concerted retardation or obstruction
of work which
is accompanied by a demand, such a demand is the issue
in dispute…. “
[17]
This authority clarifies, in general terms, that
the conduct of employees will constitute a strike if it meets three
requirements:
it is concerted, it hinders or obstructs work, and it
is for the purpose of resolving a grievance, demand or issue in
dispute.
[18]
In
this matter, on the applicant’s version, the conduct of its
employees, during October and November 2023, met the definitional
requirements of strike action. The conduct hindered or obstructed
work, it was concerted, and it was for the purpose of resolving
a
demand – that all the employees engaged on the EPWP be employed
on indefinite term employment contracts. In the circumstances,
there
can be no question that the jurisdiction of this court was correctly
engaged when the interim order was granted, given that
the misconduct
interdicted was in furtherance of an unprotected strike.
[3]
Jurisdiction of the
Court
[19]
Whether
this Court, correctly seized with jurisdiction when the matter is
first heard, can be deprived of jurisdiction thereafter,
by a shift
in the factual matrix, is less clear.
[4]
I believe the court retains its jurisdiction in such circumstances.
Fortunately, the unique facts of this matter allow me to dispose
of
the matter on a clearer basis.
Requirements for final
interdict
[20]
The
applicant must satisfy the requirements for a final interdict which,
of course, are well embedded in our law.
[5]
Importantly, for our purposes,
to
obtain a final
interdict
,
there must be a continuing injury or a reasonable apprehension
of future harm occurring.
[6]
[21]
This
principle has recently been confirmed in
UDM
and another v Lebashe Investment Group (Pty) Ltd and others
[7]
where the Constitutional Court said: “
An
interdict is not a remedy for the past invasion of rights: it is
concerned with the present and future. The past invasion should
be
addressed by an action for damages. An interdict is appropriate only
when future injury is feared
.”
[22]
Here, the applicant cannot demonstrate that there
is any possibility that the Union or its members are violating, or
will violate,
any of its rights in future. In these circumstances,
the rule nisi falls to be discharged.
Costs of the
application
[23]
Both
parties
sought costs. In
MEC
for Finance: Kwazulu-Natal and Another v Dorkin NO and Another
[8]
the court stated as follows: “
The
rule
of practice that costs follow the result does not govern the making
of orders of costs in this Court
.
The relevant statutory provision is to the effect that orders of
costs in this Court are to be made in accordance with the
requirements
of the law and fairness. And the norm ought to be that
cost orders are not made unless those requirements are met. In making
decisions
on cost orders
this
Court should seek to strike a fair balance between on the one hand,
not unduly discouraging workers, employers, unions and
employers’
organisations from approaching the Labour Court and this Court to
have their disputes dealt with, and, on the
other, allowing those
parties to bring to the Labour Court and this Court frivolous cases
that should not be brought to Court
.
That
is a balance that is not always easy to strike but, if the Court is
to err, it should err on the side of not discouraging parties
to
approach these Courts with their disputes
.
”
(Own
emphasis)
[24]
Both parties genuinely believed they were acting in defence of their
rights. In these circumstances, there is
nothing
in law or fairness which requires that either of them be mulcted in
costs. I therefore exercise my discretion by making no costs
order
.
Conclusion
[25]
In the result, the rule nisi and interim order is
discharged, with no order as to costs.
R Daniels
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
Adv Mokoatlo
Instructed
by:
State
Attorney
For the
Respondent: Ms. Cecilia
Sithole
Instructed
by:
Sithole
Attorneys
[1]
See
section 69(1)(a) of the LRA
[2]
(2006) 27 ILJ 1483 (LAC)
at
paras _____
[3]
Section
68(1) of the LRA
[4]
The
jurisdiction of the Labour Court does not extend to all matters
arising from the employment relationship and, as a creature
of
statute, its jurisdiction is established by the four walls of the
statute, or statutes, which grant it jurisdiction. The jurisdiction
of the Labour Court is not governed by its broad powers under the
LRA. It exercises its broad powers in relation to those matters
under its jurisdiction. Of course, the jurisdiction of the court
will be governed by the pleaded facts and law of each matter.
For
example, when a political party threatens the health and safety of
employees in an otherwise unrelated business enterprise
the court
may well find that it has jurisdiction to interdict such conduct
through section 157(2)(a) of the LRA, or through
section 77(3)
of
the
Basic Conditions of Employment Act, 1997
. An employer must take
reasonable steps to protect the health and safety of its employees.
The employees, on the other hand,
have a right to a reasonably safe
working environment and to be free from all forms of violence. These
rights and duties may
find expression in the employment contract,
statute, or the Bill of Rights.
[5]
The
applicant must establish a clear right or, more accurately, a right
clearly established on a balance of probabilities, an
injury
actually committed or reasonably apprehended, and the absence of any
other satisfactory remedy. See CB Prest:
The
Law and Practice of Interdicts
pp
42 – 48
[6]
See
Makhado
Municipality v South African Municipal Workers Union & Others
(2006)
27 ILJ 1175 (LC) at para 6, and
Phillip
Morris Inc & another v Marlboro Shirt Co SA Ltd & another
1991
(2) SA 720
(A) 735B
[7]
2023
(1) SA 353
(CC) at para 48
[8]
[2008] 6 BLLR 540
(LAC) at para 19