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[2024] ZALCJHB 150
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Newrest Inflight South Africa v National Transport Movement obo Members (J 266/24) [2024] ZALCJHB 150 (18 March 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 266/24
In the matter between:
NEWREST INFLIGHT SOUTH
AFRICA
Applicant
and
NATIONAL TRANSPORT
MOVEMENT obo MEMBERS
First Respondent
Heard:
15 March 2024
Delivered:
This judgment was handed down electronically by circulation to the
parties'
legal representatives by email and publication on the Labour
Court’s website. The date and time for hand-down is deemed to
be on 18 March 2024
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The applicant approached this Court on an urgent basis to seek a
final
order;
(i)
declaring that the respondent union, National Transport Movement
(NTM) and its members are bound by the Collective Agreement concluded
at the Bargaining Council For The Restaurant, Catering and
Allied
Trades (BCRCAT).
(ii)
interdicting and restraining NTM and its members from embarking on
and
participating in a strike related to salaries, wages or matters
of mutual interest or any matter regulated by the Collective
Agreement.
(iii)
declaring that any industrial action and strike embarked upon by NTM
and its
members in respect of any salaries, wages or matters of
mutual interest or any matter regulated by the Collective Agreement
is
unprotected;
(iv)
declaring that the certificate of outcome issued by a Commissioner of
BCRCAT
dated 7 March 2024 is unlawful and reviewed and set aside.
Background:
[2]
The applicant as its name suggests, is in the business of providing
inflight
catering services to about 30 airlines. It has about 1435
employees is a registered member of BCRCAT. There is a dispute in
regards
to NTM’s representation at the applicant. NTM alleges
that it has 54% membership, whilst the respondent contends that it
has 12.5%. Nothing however turns on this dispute.
[3]
Correspondence
from BCRCAT, dated 28 July 2020, also
[1]
indicates that after an application by NTM, the Council resolved at a
meeting held on 22 July 2020, to admit it as a party to the
Council,
and allocated it one seat. NTM despite complaints by the BCRCAT that
it did not attend meetings, indicated in its correspondence
to BCRCAT
on 15 April 2021, that it was still interested in attending and
participating in Council meetings.
[4]
There is a
collective agreement that was concluded at the BCRCAT which regulates
matters of mutual interest in the industry. NTM
is not a signatory to
that agreement. On 27 July 2018, the then Minister of Labour declared
that the agreement is binding in terms
of section 31 of the Labour
Relations Act
[2]
(LRA) on the
parties that concluded it, and further extended it to non-parties in
the industry under section 32(2), and 32(5) of
the LRA, until its end
period on 31 May 2023. The agreement was again extended until May
2024. By virtue of that extension as correctly
pointed out on behalf
of the applicant and in reference to
Kem-Lin
Fashions CC v Brunton
[3]
,
a
non-party to the collective agreement is turned into a party by
default, and is placed on the same level as a signatory to the
agreement.
[5]
The dispute between the parties can be said to have arisen in June
2023
when NTM referred a demarcation dispute in terms of section
62(1) of the LRA to the Commission for Conciliation Mediation and
Arbitration
(CCMA). It was NTM’s intention to extricate the
applicant from being a member of BCRCAT, as it held the view that it
ought
to fall under the Aviation Industry. This was part of NTM’s
stratagem to negotiate matters of mutual interest especially salaries
and wages with the applicant outside the scope of BCRCAT.
[6]
On 23 November 2023, and pending the hearing of the demarcation
dispute,
NTM also referred a dispute of mutual interest to the BCRCAT
in terms of section 64(4) of the LRA. This time, the complaint was
that the applicant (employer), refused to adjust employees’
salaries.
[7]
At the arbitration hearing of the demarcation dispute on 12 December
2023,
NTM withdrew that dispute, further advising the CCMA
Commissioner that it intended pursuing a matter of mutual dispute. On
the
same day after withdrawing its referral before the CCMA, NTM
referred a matter of mutual interest dispute at the same forum. NTM’s
contention in that referral was that the applicant was not willing to
negotiate with it on wages and conditions of employment.
The dispute
was heard on 18 January 2024. The applicant had objected to the
jurisdiction of the CCMA to conciliate the matter since
the issues
raised were regulated by the collective agreement at BCRCAT. The CCMA
Commissioner found that indeed the CCMA lacked
jurisdiction.
[8]
Conciliation of the further dispute referred to BCRCAT on 23 November
2023 took place on 7 March 2024. The applicant contends
that at those proceedings, it had impressed upon the Conciliating
Commissioner that the dispute related to matters under the collective
agreement. The Commissioner is however said to have granted
NTM an
election as to whether it sought to have the matter arbitrated or to
embark on industrial action. The Commissioner had without
more,
granted NTM its wish to embark on industrial action, and had issued a
certificate accordingly. Needless to say, the applicant
have since
sent a complaint to BCRCAT, which had in turn written a letter to the
CCMA in which it rebuked the Commissioner’s
conduct in issuing
a certificate of outcome enabling NTM to strike, when the dispute in
question ought to have been dealt with
in terms of the provisions of
the collective agreement.
[9]
In the matter before the Court, the applicant contends that any
strike
action which NTM seeks to embark upon is unprotected on the
grounds that the issues leading to the dispute are regulated under
the collective agreement. It therefore submitted that it was
impermissible for NTM and its members to strike over those issues
under the provisions of section 65 of the LRA.
Urgency:
[10]
In resisting the orders, NTM contended that the applicant has not
demonstrated that the
matter deserves the urgent attention of this
Court. It further contends that the urgency claimed is self-created,
and that the
applicant’s application is premised on conjecture
as since there was no strike notice issued or any indication that NTM
members
would embark on any strike action.
[11]
It is trite that the Court may at its discretion under Rule 8 of the
Rules of this Court,
relax or shorten the strict
formal rules relating to time for service, and treat an application
as urgent.
In such applications, the applicant is required to
first,
set forth explicitly in the founding
papers, the circumstances which renders the matter urgent. The
applicant is also required to
advance the reasons why it is claimed
that it cannot be afforded substantial redress in due course if the
matter was brought to
Court by way of an ordinary non-urgent
procedure, instead of this extraordinary urgent procedure.
[12]
Whether the
applicant will be able to obtain substantial redress in due course is
dependent on the facts and particular circumstances
of each case
[4]
.
Of equal importance is that urgent relief may be refused in
circumstances where
the
matter has become urgent owing to dilatoriness on the part of the
applicant. This is because
the
primary objective of approaching a Court on an urgent basis, is to
prevent harm or prejudice from occurring
[5]
.
It further needs to be stressed that in the end, Courts enjoy a
discretion in the overall determination of whether a matter should
be
accorded urgency or not, with due consideration of the facts of each
specific case.
[13]
As a starting point, the Court should accept that the applicant acted
with alacrity upon
the certificate of outcome having been issued on 7
March 2024 in that given all the constraints, it had to first
approached its
Head Office in France about the matter, and had
instructed its attorneys of record who in turn briefed counsel. The
papers having
been settled by counsel, the application was then
delivered by 11 March 2024. NTM was given sufficient time
to file an
answering affidavit which it did, and a replying affidavit
was equally delivered. Equally so, all the parties had within the
period
of filing of the pleadings and set-down date, also filed heads
of argument. Under these circumstances, there is no basis for a
conclusion to be reached that the applicant was supine after the
certificate of outcome was issued, nor can it be said that NTM
was
prejudiced by the truncated periods.
[14]
NTM contended that the urgency is self-created. The applicant however
submitted that urgency
arises from the fact that a strike action by
NTM and its members is imminent. This was so in that once a
certificate of outcome
was issued, the employees obtained a ‘right
to strike’, and that all that was required was for NTM to issue
a strike
notice, entitling it to strike within 48 hours. The
applicant further contends that given its operations, a strike notice
of 48
hours would impact negatively on it, its airline clients, and
passengers travelling on those airlines. It was further contended
that this would cause it extreme reputational damage which might
effectively put it out of business as airlines expect reliability
in
timeously delivering catering services, as they also operate in
accordance with their schedules.
[15]
Other than the fact that NTM and its members are in possession of a
certificate of outcome,
the applicant bases it trepidations on
‘rumours’ that a strike action is being planned. In this
regard, reliance was
placed on a transcript of disciplinary
proceedings currently conducted against two of NTM’s members
charged with misconduct.
It is contended that emanating from those
proceedings, it had become apparent to it that that should the two
employees be dismissed,
employees have threatened to use the
certificate of outcome to embark on a strike in their support
[16]
NTM’s response was that the issuance
of a certificate of outcome, whether lawfully or not could not be a
basis for urgency.
This was particularly since a strike notice had
not been issued nor was there any intention to do so. It was denied
that a strike
was further planned should its members be dismissed
following the disciplinary proceedings.
[17]
A
few points need to be made about the effects of issuing a certificate
under section 135(5) of the LRA.
The
significance thereof was held in
Air
Chefs
[6]
to
be
essentially
the end of the conciliation phase of a dispute, and that the
description of the dispute on the certificate is nothing
more than
indicative of what the dispute might concern. The issuing of a
certificate is not a finding by the commissioner, and
there would not
be any point in seeking to review the certificate prior to a party
challenging its validity
[7]
.
[18]
Effectively,
a
certificate of non-resolution of a dispute has no legal significance
beyond simply recording that a particular dispute was referred
for
conciliation and remained unresolved after conciliation. It does not
serve as a determination of the dispute or the actual
issue in
dispute, binding on the parties. In
NUMSA
and others v Driveline Technologies (Pty) Ltd
[8]
,
it was long held that a party is not bound by the description of the
dispute indicated on the certificate by the conciliating
Commissioner. It follows that the certificate of outcome especially
for the purposes of industrial action, does not decide whether
any
such action contemplated would be protected or not.
[9]
[19]
Against the above principles, it is
therefore a misconception that a union party in possession of a
certificate of outcome is akin
to it having a loaded gun which it can
use as a bargaining chip or threats against the employer under
section 64(2) of the LRA.
In effect, the certificate of outcome is
not a license to do anything other than an indication that a dispute
can be taken to the
next level after conciliation, and only where the
LRA permits. To use the analogy, the certificate might be a gun, but
loaded with
blanks.
[20]
What the above therefore means is that for
the purposes of a protected strike, once conciliation has failed, it
is for the Court
in such urgent applications, to determine whether
the issues in dispute do not fall foul of the prohibitions under
section 65.
Thus, where the legality of a contemplated strike is
challenged on account of falling foul of the prohibitions under
section 65
despite what the certificate of outcome says, such
applications deserve the urgent attention and intervention of the
Court. This
is so in that it would be unjustified for an employer to
have to endure industrial action with immense repercussions to its
business
operations, in circumstances where that action is predicated
on unlawfulness.
[21]
It
follows that it would be superfluous for this Court to consider a
review of the certificate because there would be nothing of
legal
consequences engaging the powers of this Court under section 158 of
the LRA. Equally so, an employer cannot wait to be served
with a
strike notice prior to approaching the Court for urgent relief. This
implies that once a certificate of outcome is issued
in such
instances, one cannot therefore speak of any substantial recourse in
due course available to an employer, other than to
seek an interdict.
This ordinarily implies that the Court should urgently engage the
merits of the urgent application, to determine
whether in fact a case
has been made out for the relief sought, or whether in fact the
employees are entitled to exercise their
right to strike as
guaranteed under section 23 (2)(
c
)
of the Constitution.
[10]
It
follows that this matter must be treated as urgent.
The merits:
[22]
In
United
Democratic Movement and Another v Lebashe Investment Group (Pty) Ltd
and Others
[11]
,
it
was held that a
n
interdict was an order made by a court prohibiting or compelling the
doing of a particular act for the purpose of protecting a
legally
enforceable right, which is threatened by continuing or anticipated
harm
[12]
. It was further added
that;
‘
In granting an
interdict, the court must exercise its discretion judicially upon a
consideration of all the facts and circumstances.
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.’
[13]
[23]
To
the extent that the applicant seeks final interdictory relief, the
requirements to be met are trite. These are a clear right;
t
here
is an injury actually committed or reasonably apprehended,
and
there is no other satisfactory remedy
[14]
.
(i)
Clear right:
[24]
To determine whether an applicant has a
clear right is a matter of substantive law. Whether that right is
clear is a matter of evidence,
and the applicant is required to
establish that right, by demonstrating on a balance of probability,
facts which in terms of substantive
law establish the right relied
on.
[25]
In
this case, the applicant contends that its right not to be subjected
to unlawful industrial action emanates from section 65 of
the
LRA,
[15]
which prohibits the strike on account of NTM and its members being
bound by the provisions of a collective agreement in respect
of the
issues in dispute.
[26]
It
has been held that the limitations imposed by section 65(1)(
a
)
on the exercise of a right to strike arise in circumstances where a
trade union on behalf of its members, contracts out of that
right by
entering into a collective agreement that prohibits a strike in
respect of the issue in dispute. Similarly, section 65(3)(
a
)(i)
has its roots in contracting out, in the sense that it prohibits
strikes in circumstances where a binding collective agreement
regulates the issue in dispute
[16]
.
[27]
The
starting point is to reiterate the obvious legal principles. Section
23(2)(
c
)
of the Constitution entrenches every worker’s right to strike,
and that right is given effect to under the provisions of
section 64
of the LRA
[17]
,
provided that certain procedural and statutory requirements are met.
It has been stated that the provisions of section 64 of the
LRA ought
to be interpreted to advance the objectives of the LRA, one of which
is to ensure orderly collective bargaining
[18]
.
[28]
Given the
constitutional guarantees, the Court must not unduly limit the right
to strike by reading in implied terms, and that the
limitation
provisions must be interpreted in a manner least intrusive of the
right
[19]
. Section 23(1)(
d
)
of the LRA
[20]
in particular,
regulates the legal and binding effect of collective agreements. In
expressing this point further, it was held in
Cusa
v Tao Ying
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 agreement. The right to
engage in collective bargaining
and to enforce the provisions of the collective agreement is an
especially important right for
the workers who are 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.”
[21]
[29]
Applying the above principles to the facts of this case, to the
extent that it was argued
on behalf of the applicant that the
intended strike is prohibited by
inter alia
the provisions of
the existing collective agreement, a determination needs to be made
as to whether the
issues in dispute upon which the
intended strike is predicated, are indeed regulated by that
collective agreement.
[30]
In
establishing the true nature of the dispute, this Court must look at
the substance of the dispute and not the form in which it
is
presented, as the characterisation of a dispute by a party is not
necessarily conclusive
[22]
.
Furthermore, the Court must examine the conduct of the parties
leading to the dispute; the nature of the referral and the outcome
sought; the contents if any, of the strike notice, the demands made
by the union, and the pleadings
[23]
.
[31]
In this case, I have already referred in the background, the fact
that the applicant and
NTM are party to the BCRCAT, and at which a
collective agreement on all substantive issued was concluded, and
further extended
to non-parties by the then Minister of Labour. NTM
sought to extricate itself from that agreement on the basis that it
was not
a signatory to it. This point is nonetheless of no moment
since by virtue of the Ministerial extension, its members are indeed
bound by the terms of that collective agreement.
[32]
NTM
nonetheless however disputed that the extension was applicable to it
on the basis that the signatories to the collective agreement
elected
to exclude non-parties inclusive of NTM. It contended further that in
the absence of a written request for the extension
to non-parties,
the Ministerial declaration was unlawful taking into account section
32(2) of the LRA
[24]
.
[33]
NTM’s position on the applicability of the collective agreement
is not only untenable
but further amounts to a red herring. The
Ministerial declaration took place on 27 July 2018. It is
extraordinary that NTM would
seek to contest that extension when
there is no evidence that there was any form of legal challenge to
it, inclusive of any challenge
to the further extension granted on 28
April 2023. Furthermore, NTM has not applied to be exempted from that
collective agreement.
[34]
A further
consideration is that NTM as evident from Annexure ‘C’ to
the founding affidavit, had made an application
to be admitted as a
party to BCRCAT, which application was successful on 28 July 2020.
Despite its admission as a party, it had
nonetheless failed to attend
several Council meeting
[25]
,
and had when rebuked for its absenteeism at Council meetings,
indicated its intention to attend such meeting in future
[26]
.
In these circumstances, I fail to appreciate on what basis it can be
said that NTM was not a party to the BCRCAT, or bound by
its
collective agreement.
[35]
NTM’s misguided approach as evident from the pleadings and its
various referrals
is clear. It seeks to have the applicant extricated
from BCRCAT, or in the alternative, extricate itself from its binding
collective
agreements for reasons that are equally obvious. It seeks
to confront the applicant outside the rules of engagement as set out
in the collective agreement which is binding on it and its members.
This is even more clearer from the demarcation dispute it had
referred to the CCMA and subsequently withdrawn. In that referral,
its complaint was that the applicant did not want to recognise
it as
a collective bargaining agent at plant level for the purposes of
negotiating wages and other conditions of service.
[36]
As was stated in
Cusa v Tao Ying
, 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, whilst the
enforcement of collective agreements
is vital to industrial peace.
[37]
Against the above, it is apparent from its various referrals, that
the true nature and
substance of NTM’s dispute relates to
salaries and wages. This is evident from its referral to the CCMA on
12 December 2023,
which related to a matter of mutual interest
dispute. NTM’s contention in the referral was that the
applicant was not willing
to negotiate with it on wages and
conditions of employment. The CCMA declined jurisdiction.
[38]
Undeterred, NTM referred another similar dispute to the BCRCAT
resulting in the certificate
of outcome. In that referral, it had
indicated that the dispute was about mutual interest as the employer
(applicant) refused to
adjust salaries of employees. Of more concern,
and whether it was intentional or not, it was further indicated in
the referral
that the applicant fell under the ‘Aviation’
sector. This was in circumstances where another dispute of a
demarcation
in which NTM contended that the applicant fell under that
industry instead of BCRCAT had failed before the CCMA. This
constituted
a misrepresentation to the CCMA on the part of NTM, which
the Court must frown upon.
[39]
NTM always knew that the applicant was a party to BCRCAT, having
applied and admitted to
the same Council. It always knew that there
was a binding collective agreement in the Council through which all
matters of mutual
interests were regulated. Paragraphs 5 to 9 of that
agreement regulates wages, remuneration and payment of salaries. That
agreement
made provision for resolution of disputes at its paragraph
28(AA) and also prohibits industrial action under its paragraph 3.
[40]
Thus, NTM’s contention that the issues raised leading to the
issuance of the certificate
of outcome merely related to ‘salary
adjustments’ and thus do not fall under the collective
agreement is not only contrived
and self-serving, but also
far-fetched. In the circumstances of this case and given what was the
true nature of the dispute that
NTM was pursuing, it is apparent that
its use of ‘salary adjustment’ is euphemism for matters
of mutual interests pertaining
to salaries and wages. NTM’s
dispute remains about salaries and wages, and can therefore not be
colour coded to turn it into
something else outside the four corners
of the collective agreement. In line with
CUSA
, concomitant of
NTM having been admitted to BCRCAT and further based on the
Ministerial extension, was the right of the applicant
to insist on
compliance with the provisions of the collective agreement.
[41]
In the
light of the above, and in line with
Vodacom
(Pty) Ltd v CWU
[27]
,
where a matter in dispute is covered in a collective agreement which
is applicable to the parties, and where a strike is embarked
upon,
the strike would be unprotected under section 65 of the LRA. Equally
so, where the matter in dispute is covered in a collective
agreement
that has been extended, the strike contemplated will equally fall
foul of the provisions of section 65. I agree with
the submissions
made on behalf of the applicant that it has a right to carry on with
its business unhindered and for NTM to stick
to the rules of
engagement as contained in the collective agreement. This would be in
furtherance of orderly collective bargaining,
and also preserve the
sanctity of collective agreements. It follows that there can be no
doubt that the applicant has demonstrated
a clear right in this
matter under section 65(1) and (3) to have any strike contemplated by
NTM to be declared unprotected.
(ii)
Irreparable harm:
[42]
It is trite
that an interdict is not a remedy for a past invasion of rights but
is concerned with present or future infringements.
Thus, an interdict
is appropriate only when future injury is feared
[28]
.
Where a wrongful act giving rise to the injury has already occurred,
it must be of a continuing nature or there must be a reasonable
apprehension that it will be repeated. In this case, there is no
doubt as already indicated, that NTM seeks to inflict harm on
the
applicant outside the rules of engagement as set out in the
collective agreement., and embark on industrial action.
[43]
Whether a strike notice has been issued or not is irrelevant. The
applicant indicated instances
where the employees have in the past,
and in pursuance of the same issues surrounding wages and salaries,
disrupted operations;
assisted in the organisation of a failed march
to the applicant’s premises with the assistance of a political
party, as well
as threats made should any adverse outcome be made
against NTM’s two members currently facing a disciplinary
enquiry. Given
NTM and its members’ conduct in the past and
their false sense of ammunition in the form of the certificate of
outcome, the
harm to the applicant is apparent.
[44]
The respondent as already indicated elsewhere in this judgment, is in
the business of providing
inflight catering services to passengers on
its clients’ airlines. A work stoppage or any disruption to
these services has
on the uncontested evidence, a rippling effect,
inclusive of causing flight delays or at worst, cancellation of
flights. The financial
implications on the applicant, its
sustainability and the security of employment of other employees are
also issues to be factored
into the equation. Equally of
consideration is the now familiar acts of violence, intimidation and
destruction of property that
accompanies such strikes. It is apparent
that the applicant has established the basis of a real fear of
irreparable harm resulting
from any contemplated strike, which for
all intents and purposes, would be unprotected.
Alternative remedy and
balance of convenience:
[45]
The remedy of an interdict is discretionary in the
sense that a court may not grant it in circumstances where there is
an alternative
remedy available which may satisfactorily safeguard
the right sought to be protected. This aspect of final interdictory
relief
needs no further debate in this case. This is so in that NTM
and its members are bent on embarking on a strike. That strike will
have far reaching repercussions not only for the applicant but also
for its employees, its clients, and their clients in turn (i.e.
passengers). The repercussions are both financial and reputational.
NTM cannot seriously dispute that the applicant has no alternative
remedies at its disposal in the light of its intentions.
[46]
I have already dealt with the folly of any attempts at reviewing the
certificate of outcome,
and indicated that the applicant was correct
in approaching the Court as soon as that certificate was issued. I
have also indicated
that it would not have served any purpose for the
applicant to wait and hope that NTM does not call a strike. Equally
so, a claim
of damages against NTM is not worth the effort as the
possibility of even a fraction of the damages being recovered is
remote.
Furthermore, there is no doubt in the light of all that
has been said in this judgment, that it is the applicant that stands
to
suffer more prejudice should the interdict not be granted. NTM on
the other hand if serious about mature collective bargaining,
need
only refer to the collective agreement in regards to legitimate
concerns of its members it seeks to pursue with the applicant.
It is
therefore apparent that only this Court through an interdict, after
consideration of the law and the facts, can come to the
applicant’s
assistance.
Summary:
[47]
Upon a consideration of the facts and the applicable legal
principles, I am satisfied that
the applicant has demonstrated why
this Court should accord this application urgency. Furthermore, the
Court is compelled to exercise
its discretion and grant the
interdictory relief sought. This is further so since on a balance of
probabilities, the applicant
has satisfied all the requirements for
final relief.
Costs:
[48]
Any award of costs in this Court must be considered against the
requirements of law and
fairness in accordance with section 162 of
the LRA. It was submitted on behalf of the applicant that it found
itself compelled
to approach the Court in the light of NTM’s
conduct in pursing the issues that led to this application. To a
large degree,
I agree that NTM’s posture and approach in
pursuing issues of salaries and wages at various
fora
through
multiple referrals was misguided as much as its opposition to this
application. Of course the BCRCAT Conciliating Commissioner
who had
issued the certificate of outcome, added a false sense of impetus to
NTM and its members in pursuing their agenda against
the applicant.
Be that as it may, NTM ought to have reflected on the folly of its
approach in the light of the clear facts pertaining
to the
applicability of the collective agreement. A common sense approach to
this application would have been not to oppose it
unless of course in
relation to costs. This is so in that the overall relief sought
therein did not in any manner encroach on NTM’s
and its members
rights. That self-reflection on the part of NTM and its members was
lacking.
[49]
It was further submitted on behalf of NTM that there is an ongoing
relationship between
the parties. It was correctly submitted on
behalf the applicant that this fact is not a bar to costs, especially
where that relationship
was abused. NTM has indeed abused any
relationship it has with the applicant. What it sought through its
multiple referrals and
opposition to this application was not a
vindication of rights but an abuse of those rights. It is in
accordance with these conclusions
that the Court deems it fair that
NTM be mulcted with the costs of this application.
[50]
Accordingly, the following order is made;
Order:
1.
The applicant’s non-compliance with the forms and service
provided for in the Rules of this Court is condoned and this matter
is dealt with as one of urgency in terms of Rule 8.
2.
It is declared that the Respondents, National Transport Movement
(NTM) and its members, are bound by the Collective Agreement
concluded at the Bargaining Council For the Restaurant, Catering and
Allied Trades.
3.
The Respondents are interdicted and restrained from embarking
and
participating in a strike in respect of salaries and wages or any
other matter of mutual interest or matter regulated by the
Collective
Agreement.
4.
It is declared that any form of industrial action embarked upon
by
the Respondents in respect of salaries, wages, matters of mutual
interest or any matter regulated by the Collective Agreement
is
unprotected.
5.
This order shall be served on the Respondents in the following
manner;
5.1
By email service on known officials of NTM at its head office.
5.2
By attaching copies of this order to notice boards at the premises of
the Applicant
5.3
By SMS to known cellular phones or emails of members of NTM to the
effect that;
‘
The Labour
Court has interdicted the NTM, its members and all persons bound by
the Collective Agreement from embarking on any strike
relating to the
dispute about salaries and wages referred to conciliation by NTM’
6.
The National Transport Movement is ordered to pay the costs
of this
application.
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Adv.
M. Sikhakhane with Adv. P. Mahlati, instructed by Ndebele
Attorneys/ Henkel Gregory Inc.
For
the Respondents:
Mr.
E. Mphahlele, of National Transport Movement.
[1]
Annexure
‘C’ to the Founding Affidavit.
[2]
Act 66 of 1995, as amended.
[3]
[2001]
1 BLLR 25
(LAC) at para 25.
[4]
See
East
Rock Trading 7 (Pty) Limited and another v Eagle Valley Granite
(Pty) Limited and others
(2012) JOL 28244
(GSJ) at para 6 and 7; See also
Export
Development Canada and Another v Westdawn Investments Proprietary
and Others
(6151/2018)
[2018] ZAGPJHC 60;
[2018] 2 All SA 783
(GJ) at para 11; and
Mogalakwena
Local Municipality v The Provincial Executive Council, Limpopo and
others
(2014) JOL 32103
(GP) at para 63 – 64, where it was held;
“
It seems to me
that when urgency is an issue the primary investigation should be to
determine whether the applicant will be afforded
substantial redress
at a hearing in due course. If the applicant cannot establish
prejudice in this sense, the application cannot
be urgent.
Once such prejudice is
established, other factors come into consideration. These factors
include (but are not limited to): Whether
the respondents can
adequately present their cases in the time available between notice
of the application to them and the actual
hearing, other prejudice
to the respondent’s and the administration of justice, the
strength of the case made by the applicant
and any delay by the
applicant in asserting its rights. This last factor is often called,
usually by counsel acting for respondents,
self-created urgency.”
[5]
See
Golding
v HCI Managerial Services (Pty) Ltd and others
[2015] 1 BLLR 91
(LC) at para 24;
Ntozini
and Others v African National Congress and Others
(18798/2018) [2018] ZAGPJHC 415 (25 June 2018) at para 11. See also
Erasmus
in
Superior
Court Practice at D6 – 23, where it is stated that
:
“
An
interlocutory interdict may be refused if the applicant has delayed
long before applying. An application for an interdict
pendente
lite
from its very nature requires the
maximum expedition from an applicant, who may forfeit his right to
temporary relief if he delays
unduly in bringing the interim
proceedings to finality.”
[6]
Air
Chefs (Pty) Ltd v SA Transport and Allied Workers Union and Others
(2013) 34 ILJ 119 (LC) at para 15.
[7]
See
Seardel
Group Trading (Pty) Ltd t/a Berg River Textiles v South African
Clothing and Textile Workers Union (SACTWU) and Others
(C592/2011) [2012] ZALCCT 14 (14 March 2012).
[8]
(2000) 21 ILJ 142 (LAC).
[9]
See
Bombadier
Transportation (Pty) Ltd v Lungile Mtiya &
Other
[2010] 8 BLLR 840
(LC
)
:
Gillet
Exhaust Technology (Pty) Ltd t/a Tennaco v National Union of
Metalworkers of SA on behalf of Members and Another
(2010) 31 ILJ 2552 (LAC) at para 17;
Strautmann
v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg & Bean Suncoast
and Others
(2009)
30 ILJ 2968 (LC) at para 9;
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
(JR 2006/08)
[2009] ZALC 66
; (2010) 31 ILJ 371 (LC) ;
[2009] 12 BLLR
1214
(LC) at para 14.
[10]
The Constitution of the Republic of South Africa, 1996 (Act 108 of
1996).
[11]
[2022] ZACC 34; 2022 (12) BCLR 1521 (CC); 2023 (1) SA 353 (CC).
[12]
At
para 47.
[13]
At
para 48.
[14]
S
etlogelo
v
Setlogelo
1914
AD 221
at 227.
[15]
Section 65 of the LRA provides:
“
(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
lock-out in respect of the issue in
dispute.”
[16]
Chamber
Of Mines Of South Africa obo Harmony Gold Mining Company Ltd and
Others v Association Of Mineworkers Of SA and Others;
In Re:
Association Of Mineworkers And Construction Union and Others v
Chamber Of Mines Of South Africa obo Harmony Gold Mining
Company Ltd
and Others
[2014] ZALCJHB 223;
[2014] 9 BLLR 895
(LC);
2014 (11) BCLR 1369
(LC); (2014) 35 ILJ 3111 (LC) at para 54.
[17]
Which
provides;
“
(1)
Every employee has the right to strike and every employer has
recourse to lock-out
if-
(a) the
issue in dispute has been referred to a council or to the Commission
as required by this Act, and-
(i)
a certificate stating that the dispute remains unresolved
has been
issued; or,
(ii)
a period of 30 days or any extension of that period agreed to
between the parties to the dispute, has elapsed since the referral
was received by the council or the Commission; and after that-
(b) in 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 . . .”
[18]
Ceramic
Industries Ltd t/a Betta Sanitary Ware v National Construction and
Allied Workers Union
(1997)
6 BLLR 687
(LAC) at pages 701-702.
[19]
See
Transport
and Allied Workers Union of South Africa obo Ngedle and Others v
Unitrans Fuel and Chemical (Pty) Ltd Limited
[2016] ZACC 28
;
2016 (11) BCLR 1440
(CC);
[2016] 11 BLLR 1059
(CC);
(2016) 37 ILJ 2485 (CC), where Jafta J held:
“
[222]
Recently in
Moloto
this Court expanded on the principle laid
down in
Zuma
. It pronounced:
“
The right to
strike is protected as a fundamental right in the Constitution
without any express limitation. Constitutional rights
conferred
without express limitation should not be cut down by reading
implicit limitations into them and when legislative provisions
limit
or intrude upon those rights they should be interpreted in a manner
least restrictive of the right if the text is reasonably
capable of
bearing that meaning. The procedural pre-conditions and substantive
limitations of the right to strike in the Act
contain no express
requirement that every employee who intends to participate in a
protected strike must personally or through
a representative give
notice of the commencement of the intended strike, nor that the
notice must indicate who will take part
in the strike.”
[223]
Later the Court repeated this statement as an interpretative
approach. It said:
“
As mentioned
earlier, the right to strike is protected in the Constitution as a
fundamental right without express limitation.
Also, constitutional
rights conferred without express limitation should not be cut down
by reading implicit limitations into
them, and when legislative
provisions limit or intrude upon those rights they should be
interpreted in a manner least intrusive
of the right, if the text is
reasonably capable of bearing that meaning. These are general
interpretative principles that are
also applicable to the
interpretation of provisions of the Act, as explicitly affirmed in
section 1(a) of the Act.”
[224]
What emerges from
Moloto
is that the right to strike is
conferred without any limitation and that legislation like the LRA
that limits it must be construed
in a manner least intrusive of the
right if the text is reasonably capable of bearing that meaning.
What this means is that in
determining whether the strike that
started as protected in the contemplation of the LRA became
unprotected at some point, we
must interpret the relevant provisions
of the LRA “in a manner least intrusive of the right” to
strike.”
[20]
Which provides;
“
(1)
A collective agreement binds-
…
(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”
[21]
Cusa v
Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009 (2) SA 204
(CC).
[22]
See
FAWU v
Rainbow Chicken Farms
(2000)
1 BLLR 70
(LC);
Coin
Security Group (Pty) Ltd v Adams
2000
4 BLLR 371 (LAC).
[23]
See
Unitrans
Supply Chain Solution (Pty) Ltd v SATAWU and Others
(2014) 35 ILJ 265 (LC) at paragraphs 9 – 13.
[24]
Section
32
(2) (Under Extension of collective agreement concluded in bargaining
council) provides that;
‘
Subject
to subsection (2A), the Minister must extend the collective
agreement, as requested, by publishing a notice in the
Government
Gazette,
within 60 days of receiving
the request declaring that, from a specified date and for a
specified period, the collective agreement
will be binding on the
non-parties specified in the notice.’
Section 2A provides:
‘
If
the registrar determines that the parties to the bargaining council
are sufficiently representative within the registered scope
of the
bargaining council for the purposes of subsection (5)(a), the
Minister must publish the notice contemplated in subsection
(2)
within 90 days of the request.’
[25]
Annexure
‘G’ to the Founding Affidavit
[26]
Annexure
‘F’ to the Founding Affidavit.
[27]
[2010]
8 BLLR 836
(LAC).
[28]
See also
National
Council of Societies for the Prevention of Cruelty to Animals v
Openshaw
[2008] ZASCA 78
;
2008
(5) SA 339
(SCA) at para 20.