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[2024] ZALCJHB 90
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JCI Mining (Pty) Ltd v National Union of Mineworkers and Others (J1337/21) [2024] ZALCJHB 90 (28 February 2024)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No. J 1337/23
In the matter between:
JCI MINING (PTY) LTD
Applicant
and
NATIONAL
UNION OF MINEWORKERS
(“NUM”)
First
Respondent
MEMBERS OF NUM
PARTAKING IN STRIKE
ACTION AND LISTED IN
ANNEXURE “A”
HERETO
Second
to further Respondents
Heard: 8
November 2023
Delivered:
28 February 2024
JUDGMENT
GOVENDER,
AJ
Introduction
[1]
The matter before the Court is a
return date from a
rule nisi
issued on 29 September 2023 per Mahosi J.
[2]
In terms of the
rule
nisi
the following relief was granted
per Mahosi J:
‘
1.
The provisions of the Rules of the above Honourable Court relating to
the time and manner of service are dispensed with and this
matter is
disposed [of] as one of urgency in accordance with the provisions of
Rule 8 and Section 68(2) of the Labour Relations
Act, No. 66 of 1995
(insofar as they may apply).
1.1
The work stoppage and strike action
embarked upon by the respondents from 22 September 2023 is declared
unprotected and the respondents
are interdicted and prohibited from
continuing with and/or participating in, promoting, encouraging or
supporting such strike action.
1.2
The respondents are interdicted and
prohibited from calling for, orchestrating, participating in or
encouraging in any way the aforesaid
strike action.
1.3
The respondents are interdicted and
prohibited from harassing, intimidating and threatening the
applicant, any other employees of
the applicant and/or any other
third parties.
1.4
The respondents are interdicted and
prohibited from interfering with and/or attempting to interfere with
the work of other employees,
alternatively intimidating and/or
inciting other employees not participating in the industrial action
to stop working and to join
in on the industrial action.
1.5
The respondents are interdicted and
prohibited from interfering with the business of the applicant and/or
Vele Aluwani Colliery.
1.6
The respondents are interdicted and
prohibited from picketing in support of the illegal industrial action
commenced with from 22
September 2023, pending the outcome of the
dispute referred to the CCMA
1.7
Without derogating from the above, the
respondents are interdicted and prohibited from:
1.7.1.
Intimidating, harassing, assaulting or in
any way interfering with:
1.7.1.1
. Any employee of the Applicant and/or Vele Aluwani Colliery whether
such employee is employed on a temporary, casual, fixed term,
fixed
purpose or permanent basis.
1.7.1.2.
Any other person or persons involved or connected with the conduct of
the Applicant’s and/or Vele Aluwani Colliery’s
operations
or the business of the Applicant and/or Vele Aluwani Colliery.
1.7.1.3.
Any customers of, visitors to, suppliers and other business
associates of the Applicant and/or Vele Aluwani Colliery wishing to
visit any of its premises or do business with or support the
Applicant and/or Vele Aluwani Colliery at any of its premises.
1.7.2.
In any way preventing any of the persons
referred to above from gaining access to the premises of the
Applicant and/or Vele Aluwani
Colliery.
1.7.3.
In any way preventing any of the persons
referred to above from leaving the premises of the Applicant and/or
Vele Aluwani Colliery.
1.
Each of the Respondents is directed to take
steps as are necessary to ensure that each of the other Respondents
adhere to the terms
and conditions of the order and that they do not
in any manner call for, orchestrate, participate in or encourage in
any way the
aforesaid work stoppage and strike action, or an [any]
conducts in contemplation or in furtherance of the industrial action
on
[or] any other conduct in support of their demands.
2.
with immediate effect prohibiting and preventing the Respondents from
continuing with the work stoppage, strike action and picketing
pending the return date, being 8 November 2023.
…
6.
The issue of costs is to be determined on the return date.’
[3]
The matter came before me on 8 November
2023.
[4]
Mr Higgs for the applicant argued in favour
of the confirmation of the
rule nisi
and asked that the Court award costs against the first respondent
National Union of Mineworkers (NUM).
[5]
Ms Moyo for NUM argued that the
rule
nisi
ought never to have been granted
to begin with and that in the event that the Court was satisfied that
the
rule nisi
should be discharged, costs should be granted against the applicant.
[6]
In order to determine the legal issues
before the Court, it is necessary to set out a brief material
background of the matter.
Material
background
[7]
The applicant provides open cast mining
services, which include the loading and haul of all material types at
his operations at
Vele Aluwani Colliery in Musina.
[8]
The applicant employs more than 475
employees across its operations.
[9]
According to the applicant, its operations
are largely non-unionised, with sixty percent of the workforce being
unionised, more
than twenty percent of the workforce being members of
AMCU and fifteen percent of the workforce being members of NUM.
[10]
On 27 July 2023, the applicant and AMCU
concluded a substantive wage agreement.
[11]
This agreement between the applicant and
AMCU provides as follows concerning who it is applicable to:
‘
This
agreement applies to and binds each and every waged employee of the
Union and is extended to all waged employees who at the
time of
signing it are not members of the Union.’
[12]
In essence, what the agreement between the
applicant and AMCU sought to achieve was that the agreement extended
to all waged employees
who were not members of AMCU.
[13]
In support of the extension of the
agreement to non-members, the applicant pleaded that the
non-unionised employees of the applicant
had indicated to the
applicant’s representative, Mr Fritz Scholtz, that they would
concur with the agreement reached between
the applicant and AMCU and
did not wish to make demands of their own.
[14]
In support of the applicant’s
contentions in this regard, the applicant attached four purported
wage agreements signed by
two purported NUM members and two purported
non-unionised employees.
[15]
While the applicant had offered to make
remaining copies of the individual contracts available on request by
the Court, the reality
is that it is not for the Court to request
information from the applicant to substantiate its case in the
founding papers, but
for the applicant to meet the requirements of
the case it wishes to demonstrate.
[16]
Given the extent of the workforce,
and the assertion that contracts of this nature were entered into
with all employees in the Musina
operation, it would appear, it would
at the very least be expected that agreements of this nature would be
provided in respect
of all of the said employees.
[17]
The applicant states that since the
non-unionised members and AMCU represented approximately eighty
percent of the employees in
the applicant’s employ, the
applicant considered this agreement to be a majority agreement and
extended the terms thereof
to members of NUM.
[18]
On 17 July 2023 NUM referred a mutual
interest dispute to the Commission for Conciliation, Mediation and
Arbitration (CCMA) concerning
an increase in wages. The dispute
remained unresolved on 7 September 2023 and a certificate of outcome
was issued.
[19]
On 19 September 2023, default picketing
rules were issued by the CCMA following the matter being unresolved.
[20]
On 18 September 2023, the applicant
circulated a letter to all its employees advising that those who had
signed the wage agreement
were prohibited from partaking in the
intended strike, and if employees partook in the intended strike, the
back pay and increases
that they had received would be recovered.
[21]
On 20 September 2023, NUM gave notice of
its members' intention to embark on a strike within 48 hours, because
they had not reached
consensus on annual substantive issues,
including wage increases.
[22]
NUM and its members commenced strike action
on 22 September 2023.
[23]
The applicant claims that certain unlawful
conduct ensued in the course of the strike, apart from contending
that the strike itself
was unlawful because of the substantive wage
agreement concluded with AMCU.
[24]
The
applicant’s main contention in this regard is that the strike
was unlawful for non-compliance with section 65 of the Labour
Relations Act
[1]
(LRA)
because a wage agreement was in place at the applicant’s
operations with the majority union and non-union members, which
had
been signed and/or agreed to by the majority of NUM’s members,
and who had received the benefits of the agreement. The
applicant
further contends that the agreement binds NUM’s members and
contains a peace clause which prevents strikes concerning
wages
during the currency of the agreement.
[25]
NUM contends that the strike action
embarked upon by its members was in compliance with Chapter 5 of the
LRA. Moreover, NUM disputes
any contravention of the picketing rules
and unlawful or criminal conduct by its members.
[26]
NUM emphasizes that the majority of the
employees employed by the applicant are not members of any union.
Moreover, NUM contends
that AMCU is not a majority trade union at the
workplace and as such does not enjoy the right to extend its
collective agreement
to employees that are not its members, whether
such employees are non-unionised or members of another union,
particularly the members
of NUM. NUM denies the existence of a
binding collective agreement on anyone, beyond the members of AMCU.
[27]
NUM admits giving notice to embark on
strike action and its members having gone on strike.
[28]
As stated above, NUM disputes any unlawful
action, including the barricading of roads, assault and employees
being intercepted on
route to work.
[29]
NUM’s main averment is that the wage
agreement has not been extended to its members as they are not party
thereto and the
relevant provisions of section 23 of the LRA are not
applicable because AMCU, as conceded in the applicant’s own
founding
affidavit, is not a majority trade union at the workplace.
[30]
Specific reference was made to paragraph 20
of the applicant’s founding affidavit where the applicant
states as follows:
‘
The
applicant’s operations are largely non-unionised, with 60% of
the workforce not part of a union, more than 20% members
of AMCU and
15% of the First Respondent.’
[31]
According to NUM, the applicant has
confirmed in its own words that AMCU is not a majority trade union as
envisaged by section 23
of the LRA.
[32]
NUM contends that section 65 is not
applicable to the particular facts of the matter.
Analysis
[33]
Section 23 of the LRA states as follows:
‘
23. Legal
effect of collective agreement
(1) A collective
agreement binds-
(a)
the parties to the
collective agreement
;
(b)
each party to the
collective agreement
and the members of
every other party to the
collective agreement
, in so far as
the provisions are applicable between them;
(c)
the members of a registered
trade union
and the employers who
are members of a registered
employers' organisation
that are
party to the
collective agreement
if the
collective
agreement
regulates-
(i)
terms and conditions of employment; or
(ii)
the conduct of the employers in relation to their
employees
or
the conduct of the
employees
in relation to their employers;
(d)
employees who are not members of the registered
trade
union
or
trade unions
party to the
agreement if
-
(i)
the employees are identified in the agreement;
(ii)
the agreement expressly binds the employees; and
(iii)
that
trade union
or those
trade
unions
have as their members the majority of
employees
employed by the employer in the
workplace
.
(2) A
collective
agreement
binds for the whole period of the
collective
agreement
every person bound in terms of subsection (1)(c) who
was a member at the time it became binding, or who becomes a member
after
it became binding, whether or not that person continues to be a
member of the registered
trade union
or registered
employers'
organisation
for the duration of the collective agreement.’
(own emphasis)
[34]
In
Johannesburg
City Parks & Zoo SOC Limited v South African Municipal Workers
Union (SAMWU) and Others
[2]
the Court stated as follows:
‘
[14]
To the extent that reliance is placed on the Collective Agreement in
contending that the intended strike action is prohibited,
the
starting point is that Section 23(2)(c) of the Constitution of the
Republic enshrines the fundamental right to strike, which
right is
given effect to by the provisions of sections 64 to 68 of the LRA,
which in turn provide the substantive limitations and
procedural
pre-conditions for the exercise of the right to strike and the
employer’s recourse to lock out
[3]
.
[15] Aligned to the
limitations in the strike provisions is that in accordance with the
provisions of section 23 of the LRA,
a collective agreement has a
binding effect on the parties to that agreement, each party to that
agreement, and the members of
every other party to that agreement, in
so far as the provisions are applicable between them.
[16] That the
sanctity and primacy of collective agreements is to be
preserved
for the sake of the maintenance of peace in the workplace was long
emphasised in
CUSA
v Tao Ying Metal Industries and Others
[4]
,
where the Constitutional Court held that:
“
[55]
The right of every trade union and every employers’
organisation and employer to engage in collective bargaining
is
entrenched in section 23(5) of the Constitution. The concomitant of
the right to engage in collective bargaining is the right
to insist
on compliance with the provisions of the collective agreement which
is the product of the collective bargaining process.
[56]
Compliance with a collective bargaining agreement is crucial not only
to the right to bargain collectively through the
forum constituted by
the bargaining council, but it is also crucial to the sanctity of
collective bargaining agreements. The right
to engage in collective
bargaining and to enforce the provisions of a collective agreement is
an especially important right for
the workers who are generally
powerless to bargain individually over wages and conditions of
employment. The enforcement of collective
agreements is vital to
industrial peace and it is indeed crucial to the achievement of fair
labour practices which is constitutionally
entrenched. The
enforcement of these agreements is indeed crucial to a society which,
like ours, is founded on the rule of law.”
[17] This Court has
restated that in the scheme of the LRA and section 23 of the
Constitution, the right to strike is by its
nature not absolute and
may justifiably be limited in certain situations. This must be so
because a strike is not an end in itself.
Rather, a strike is
primarily a means to the end of an effective collective bargaining
system in which workers are able ultimately
to exercise power in
order to influence the terms and conditions of employment
[5]
.
[18] To the extent
that the applicant sought to rely on the collective/settlement
agreement, which it contend had effectively
resolved the issues and
the dispute which precipitated the notice of intention to strike, the
relevant provisions of section 65
of the LRA (Limitations on right to
strike or recourse to lock-out) provides that;
(1) No person may
take part in a
strike
or a
lock-out
or in any conduct
in contemplation or furtherance of a
strike
or a
lock-out
if-
(a) that person is
bound by a
collective agreement
that prohibits a
strike
or a
lock-out
in respect of the
issue in dispute
.
(b) that person is
bound by an agreement that requires the
issue in dispute
to be
referred to arbitration;
(c) the issue in
dispute is one that a party has the right to refer to arbitration or
to the Labour Court in terms of this
Act or any other employment law;
(d)(i) …
(ii) …
(2) …
(3) Subject to a
collective agreement
, no person may take part in a
strike
or a
lock-out
or in any conduct in contemplation or
furtherance of a
strike
or
lock-out
-
(a) if that person
is bound by-
(i) any arbitration
award or collective agreement that regulates the issue in dispute; or
(ii) …’
[35]
It is apparent from the applicant’s
own papers that it concedes that AMCU is not the majority trade union
in the workplace.
[36]
The applicant has failed to substantiate an
extension of the agreement between itself and AMCU to non-unionised
employees and those
members of NUM which it contends have entered
into agreements in support of the agreement with AMCU.
[37]
While the applicant attached four of the
individual agreements as set out above, the individual agreements are
a concession that
the collective agreement between AMCU and the
applicant was not extended to non-parties.
[38]
NUM has accordingly demonstrated that the
rule nisi
ought not to have been granted because the collective agreement
between the applicant and AMCU was not binding on them.
[39]
As to the unlawful conduct alleged, the
Court makes no findings in that regard, and when such reprehensible
conduct does arise,
it is a matter for law enforcement agencies to
deal with.
[40]
NUM and its members were accordingly under
no prohibition to embark on strike action because they were not bound
by a collective
agreement that prohibits a strike in terms of section
65(1)(a) of the LRA.
[41]
In the circumstances, the
rule
nisi
ought not to have been issued and
NUM has demonstrated that the
rule nisi
should certainly not be confirmed.
Costs
[42]
The
final consideration is costs.
[43]
It
is trite that in labour matters, costs do not follow the result
[6]
.
[44]
In
order for costs to be granted the Court’s judicial exercise of
its discretion to award costs must be engaged and there
must be a
justification for the departure from the ordinary rule that costs
should not be ordered. The dictates of fairness in
terms of section
162 of the LRA and the constitutional and statutory imperatives that
underpin it, must be considered
[7]
.
[45]
While NUM was called upon to oppose an
interdict concerning unlawful strike action where the strike itself
was not unlawful when
considering sections 23 and 65 of the LRA,
given the ongoing relationship between the parties, this is not a
matter which calls
for the Court to deviate from the default position
above.
[46]
In the premises, the following order is
made:
Order
1.
The
rule nisi
is discharged.
2.
There is no order as to costs.
T. Govender
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
applicant: C
Higgs of Higgs Attorneys
For the respondent:
Ms S Moyo
Instructed
by:
Mashabela
Attorneys
[1]
Act
66 of 1995, as amended.
[2]
[2018]
ZALCJHB 424; [2019] JOL 41303 (LC).
[3]
South
African Transport and Allied Workers Union (SATAWU) and Others v
Moloto NO and Another
2012 (6) SA 249
(CC);
[2012] 12 BLLR 1193
(CC); (2012) 33 ILJ 2549
(CC) at para 14.
[4]
[2008]
ZACC 15
;
[2009] 1 BLLR 1
(CC) at paras 55 and 56; See also
Ekurhuleni
Metropolitan Municipality v The SA Municipality Workers’ Union
on behalf of workers
(2015)
36 ILJ 624 (LAC) at paras 25 and 26, where it was held that;
“…
Collective
agreements are to be accorded primacy. In National Bargaining
Council for the Road Freight Industry and another v Carlbank
Mining
Contracts (Pty) Ltd and another, this Court held that the purpose of
s199 of the LRA, read together with s23(3) of the
LRA, is to advance
the primary object of the LRA, namely the promotion of collective
bargaining at sectoral level and giving
primacy to the collective
agreements above individual contracts of employment…”
[5]
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of South Africa and Others
[2017] ZACC 3
; (2017) 38 ILJ 831 (CC) at para 50.
[6]
See:
MEC
for Finance: Kwazulu-Natal and Another v Dorkin NO and Another
[2007] ZALAC 34
;
[2008] 6 BLLR 540
(LAC) and
Zungu
v Premier of the Province of KwaZulu-Natal and Others
[2018] ZACC 1(2018)
39 ILJ 523 (CC).
[7]
Union
for Police Security and Corrections Organisation v South African
Custodial Management (Pty) Ltd and Others
(2021) 42 ILJ 2371 (CC);
[2021] ZACC 41
, specifically at paragraph
35, read
with
Goba v Rand West City Local Municipality and Another
[2021]
ZALCJHB 301;
[2021] JOL 51406
(LC) specifically at para 30 and 31.