About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1989
>>
[1989] ZASCA 117
|
|
South African Breweries Ltd. v Food and Alied Workers Union and Others (616/88) [1989] ZASCA 117; 1990 (1) SA 92 (A); (1989) 10 ILJ 844 (A) (26 September 1989)
616/88
N v H
THE SOUTH AFRICAN BREWERIES LIMITED
and
FOOD AND ALLIED
WORKERS UNION AND 1595 OTHERS
SMALBERGER, JA :-
616/88
N v H
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between
THE SOUTH AFRICAN BREWERIES LIMITED
Appellant
and
FOOD AND
ALLIED WORKERS UNION
1st Respondent
AND 1595 OTHERS
2nd to 1595th
Respondents
CORAM
: CORBETT, CJ, VAN HEERDEN, SMALBERGER, MILNE,
et
STEYN,
JJA
Heard
: 21 August
1989
Delivered
: 26 September 1989
JUDGMENT
SMALBERGER, JA :
The appellant (Breweries) is a public company which
carries on the business of brewing. To this end it operates breweries and
distribution
depots at a number of premises throughout the Republic, and
employs
/2
2 a large labour force. The first respondent (the Union) is a
registered trade union. The remaining respondents (the employees) are
employed
by Breweries at four of its Transvaal establishments. They are all members of
the Union, which is recognised by Breweries
as the sole collective bargaining
agent of the employees at the establishments in question.
The following is a
brief factual background to the present appeal. Over the period June to
September 1987 negotiations were conducted
between Breweries and the Union with
regard to the wages and working conditions of all workers represented by the
Union (including
the employees) at Breweries' various establishments
countrywide. An impasse was reached when the parties failed to agree on certain
matters. This resulted in the employees refusing to work overtime from 14
September 1987. Prior to that date
/3
3 they had regularly worked overtime when requested to do so.
Breweries relied upon such overtime being worked for the purposes of
its normal
brewing and distribution operations. The refusal to work overtime occasioned
substantial financial lcss to Breweries because
of lost productïon and the
disruption of distribution. Breweries allege (and this is not denied) that the
Union instigated or
incited the employees to refuse to work overtime, and that
the employees collectively decided to refuse to work overtime, with the
intention of compelling Breweries to comply with certain of the Union's demands
pertaining to wages and working cohditions.
Consequent upon the employees'
refusal to work overtime Breweries sought urgent relief in the Witwatersrand
Local Division by way
of notice of motion. The purpose of the application was to
have
/4
4 the employees' collective refusal to work overtime declared
an unlawful strike in terms of s 65(1) of the Labour Relations Act 28
of 1956
(the Act). The application was dismissed with costs by GOLDSTONE, J, but leave
was granted to Breweries to appeal to this
Court. The judgment of GOLDSTONE, J,
is reported in
1988 (2) SA 723
(W).
The relevant portion of s 65(1) of the
Act provides :
"No employee or other person shall instigate a strike or incite any employee to
take part in or to continue a strike or take part
in a strike or in the
continuation of a strike,
In terms of s 82(l)(b) of
the Act a contravention of s 65(1) carries penal consequences.
/5
5 The central issue in the present appeal is whether the
collective refusal by the employees to work overtime in order to induce or
compel Breweries to accept their employment demands constituted a strike as
defined in s 1 of the Act. In terms of the definition:
" 'strike' means any one or more of the following acts or omissions by any body
or number of persons who are or have been employed
either by the same employer
or by different employers -
(a) the refusal or
failure by them to continue to work (whether the discontinuance is complete or
partial) or to resume their work
or
to accept re-employment or to comply with the terms of conditions of
employment applicable to them, or the retardation by them of
the progress of
work, or the obstruction by them of work; or
/6
6
(b) the breach or termination by them
of their contracts of employment, if -
(i) that refusal, failure, re= tardation, obstruction, breach or termination is
in pursuance of any combination, agreement or understanding
between them,
whether expressed or not; and
(ii) the purpose of that refusal, failure, retardation, ob= struction, breach or
termina= tion is to induce or compel any person
by whom they or any other
persons are or have been employed
-
(aa) to agree to or to comply with any demands or proposals concerning terms and
conditions of employment or other matters made by
or on behalf of them or any of
them or any other persons
/7
7
who are or have been employed; or
(bb) to refrain from giving effect to any intention to change terms or
conditions of employment, or, if such a change has been made,
to restore the
terms or conditions to those which existed before the change was made; or
(cc) to employ or to suspend or terminate the employ= ment of any
person;"
As appears from the definition, a strike has three component parts. There
must be an act or omission of the kind envisaged in (a)
or (b); there must be
collective action (in terms of (i)); and such action must be aimed at achieving
one or more of the objects
stated in (ii). To constitute a strike all three
component parts must be present. It is common
/8
8
cause in the present appeal that the conduct of the employees satisfied the
requirements of (i) and (ii) of the definition. What is
essentially in issue is
whether the refusal to work overtime by the employees amounted to a refusal or
failure by them "to continue
to work" or "to resume their work" within the
context of paragraph (a) of the definition. If it did, their conduct constituted
an
unlawful strike. A refusal or failure "to continue to work" implies a refusal
to do work currently in progress. The phrase appears
to envisage a so-called
"down-tools" situation. It would not appear to be particularly apposite to
overtime work following a normal
shift. The phrase "to resume their work" may
more aptly cover such a situation. For the purposes of the present appeal,
however,
I shall accept that both phrases embrace the notion of overtime work.
The question remains whether
/9
9 the refusal of the employees to work overtime brought their
conduct within the relevant provisions of the strike definition. The
answer to
the question posed depends in my view upon the proper meaning to be ascribed to
the word "work" where it appears in the
phrases "to continue to work" and "to
resume their work".
The Act does not define the word "work". As appears from
the Shorter Oxford Dictionary, it is a word susceptible of a wide variety
of
meanings. Its usage and meaning in paragraph (a) of the definition are not
uniform. It is used both as a noun and a verb. Its
contextual setting determines
its precise shade of meaning (e.g. the word appears to have a wider and more
general connotation when
used in the phrase "the retardation by them of the
progress of work" than in the phrase "resume their work"). It would seem
/10
10 that the word "work" in the phrases "to continue to work"
and "to resume their work" encompasses, broadly speaking, that which
a
particular employee factually engages in within the ambit of what are considered
to be his normal employment duties. The parties
are agreed that it does not
ihclude work that it would be unlawful to permit an employee to do, i e illegal
work. Thus the collective
refusal by workers to perform illegal work, with
whatever purpose in mind, can never amount to an unlawful strike. The word
"work"
probably does not embrace fields of activity falling outside a particular
worker's recognised duties, but it is not necessary to
decide the point. The
word, being susceptible of more than one meaning, is clearly ambiguous. The
cardinal issue, and the one that
falls to be determined in the present appeal,
is whether the word "work", in the phrases to which I have
/11
11
referred, covers only activities which a worker is contractually obliged to
perform, or whether it includes activities which a worker
can be said to perform
habitually (or normally or usually) even though he is not bound by contract to
do so, e.g. voluntary overtime
work regularly done. Breweries contend for the
wider meaning; the respondents (the Union and the employees) seek to limit the
meaning
to contractual work. The vexed question of the proper meaning to be
ascribed to the word "work" has given rise to conflicting decisions
in certain
Divisions of the Supreme Court. It has also been the subject of differing
interpretatións in the Industrial Court.
It is common cause in the
present matter that the employees were not contractually obliged to work
overtime. It is also not in dispute
that they have in the past regularly worked
overtime when required to do
/12
12
so. A long-standing practice of working overtime could conceivably give rise
to a tacit agreement between an employer and an employee
that the latter will
work overtime whenever required to do so. The employee would then be
contractually obliged to perform such overtime.
In the present matter the
existence of any such tacit agreement has been expressly ruled out by Breweries'
acceptance in its founding
affidavit that the employees were not contractually
bound to work overtime. If the concept of work in paragraph (a) of the
definition
of "strike" only encompasses work which an employee is contractually
obliged to perform, the refusal to work overtime by the employees
cannot
constitute a strike as defined.
In arriving at his conclusion that the
concept of work (in the phrases referred to in the definition of strike) should
be limited
to work which
/13
13
an employee was contractually obliged to perform, the judge a
quo
relied,
inter alia
, upon the decision in JR
v Canqan and Others
1956(3) SA 366 (E) (which was followed in
National Automobile and Allied
Workers Union v CHT Manufacturing Co (Pty) Ltd
(1984) 5 ILJ 186) and the
views expressed by BROOME, J, in
Plascon Evans Paint (Natal) Ltd v Chemical
Workers Industrial Union and Others
(1987) 8 ILJ 605 (D) (the
Plascon
Evans (1)
case). The main consideration, however, which prompted his
conclusion was the uncertainty and confusion which would arise if the
word
"work" was to include work habitually performed, whether under a contractual
obligation to do so or not (1988(2) SA at
729 G-H).
In coming to contrary conclusions GALGUT, J, in
Plascon Evans Paint
(Natal) Ltd v Chemical Workers Industrial Union and Others
(1988) 9 ILJ 231
(the
/14
14
Plascon Evans (2)
case) end MULLINS, J, in
Bebel
Investments (Pty) Ltd t/a East London Furniture Industries v
Paper, Printing, Wood and Allied Workers' Union and Others
1989(1) SA 908
(E) were primarily swayed by the view that the definition of "strike"
contemplated all manner of work habitually performed,
whether of a contractual
nature or not. Landman, AM, in
Amalgamated Beverage Industries Ltd v Food and
Allied Workers Union and Others
(1988) 9 ILJ 252 concluded,
inter
alia
, that it would be anomalous, and contrary to the legislature's
intention, if overtime bans in respect of non-contractual work alone
were
excluded from the statutory conciliation process which the Act makes provision
for, because they did not fall within the statutory
definition of a strike.
The matter is fraught with difficulty. Strong arguments can be advanced in
support of the
/15
15
opposing points of view. I do not think that any
assistance can be gained
from the decision in R v
Canqan and Others
(
supra
). The accused
in that case
were convicted of striking in contravention of the
relevant
provisions of the Black Labour Settlement of
Disputes Act 48 of 1953. The
definition of "strike"
incorporated into that statute is in
practically
identical terms to that in the Act. In the course of
the
judgment it was stated (at 367 F-G):
"It is common cause that at the time the notice was given to the appellants they
were all in the employ of the company, and it was
necessary, before any of them
could be convicted, to show that they were failing to perform the work and to
work the hours which
in terms of their contract they were obliged to
work."
In my view it is clear, on a proper reading
of the above passage, in the context of the judgment as a
/16
16
whole, that the entire passage reflects what was common cause.
It does not represent a considered opinion after hearing opposing views.
If it
did the court could not have failed to give reasons for such opinion. BROOME, J,
in the
Plascon Evans (1)
case approached the problem from the perspective
of the individual employee in holding that a refusal to perform voluntary
overtime
did not amount to a strike as defined. This is not a correct approach.
It loses sight of the fact that it is only collective action
with one of the
stated objects in mind that can amount to a strike. It is not disputed that an
employee, provided he acts individually
and independently of others, is always
free to refuse to work voluntary overtime, for whatever reason. The same flawed
approach underlies
the reasoning of CURLEWIS, J, in
Tiger Bakeries Ltd v Food
and Allied Workers Union and
/17
17
Others
(1988) 9 ILJ 82. Both BROOME, J, and
CURLEWIS,
J, however, were mindful of the important requirement that a
provision with penal consequences must be restrictively interpreted.
As
pointed out by the judge a
quo
(at 727 B -C), the acts and omissions
referred to in paragraphs (a) and (b) of the definition of "strike" do not only
embrace breaches
of contract. The legislature clearly had in mind that not only
breaches of contract, but also certain specified conduct not amounting
to breach
of contract, would fall within the categories of conduct which would amount to a
strike (provided the other requisites
of the definition were satisfied). This
consideration was held by GALGUT, J, in the
Plascon Evans (2)
case (at
241 H) to support an interpretation that the refusal "to continue to work"
includes a refusal to do work which workers are
not
/18
18
contractually obliged to perform. It does not follow, in my view, that where
two separate notions are encompassed within a single
statutory provision, an
ambiguous word in that provision must necessarily be interpreted to cover both.
Thus even though the categories
of conduct in paragraphs (a) and (b) of the
definition of "strike" are not limited to breaches of contract, it does not
follow that
the word "work" must encompass activities falling outside those
which an employee is contractually bound to perform. While it is
important to
have regard to the context in which the word is used, there are other canons of
construction that have a bearing on
its proper interpretation.
In my view the
judge a
quo
(at 729 G - H) put his finger on the most important
consideration for giving the word "work" a limited meaning - the vagueness that
would be imported into the definition of
/19
19 "strike", with resultant uncertainty and confusion, if
the word were not confined to activities an employee is contractually obliged
to
perform, but were extended to cover work habitually (or normally or usually)
performed. In the case of voluntary overtime work,
where would one draw the line
in determining whether it had been habitually performed? What criteria would one
apply? How long would
the practice of working overtime have to be established to
make it habitual (or normal or usual)? With what frequency must it have
occurred? Must it have endured for a week, a month or a year? How widespread
would the practice have to be? Must it have permeated
the whole work-force, or
would it suffice if only part of the work-force engaged therein? In the latter
instance, must it have prevailed
amongst the majority or a substantial minority
of the work-force? Must it have prevailed
/20
20
in a particular factory or establishment, or in the
industry generally?
What if workers were required to
perform overtime substantially in excess of
the limited
overtime previously done? As the judge a
quo
aptly
remarked, the grey areas would be legion. The
situation would arise
where it would become difficult,
if not impossible, for workers in given
circumstances
to determine, or to be advised, whether their
collective
refusal to work voluntary overtime could
amount to an unlawful strike.
Management would be
faced with similar problems of assessment. An
interpretation with such
consequences is unlikely to
accord with the legislature's intention, and
should be
avoided. As stated by BOTHA, JA, in
Sekretaris van
Binnelandse Inkomste v Lourens Erasmus (Eiendoms) Bpk
1966(4) SA 434 (A) at 443 A:
"Ek meen dat aanvaar moet word dat die Wetgewer nie onsekerheid
en verwarring in die
/21
21
toepassing van sy verordeninge wil skep nie, en waar woorde dus vir verskillende
betekenisse vatbaar is, moet daardie uitleg wat
tot onsekerheid en verwarring by
die toepassing van die betrokke wetsbepaling aanleiding gee, vermy word ten
gunste van daardie uitleg
wat sekerheid
meebring."
GALGUT, J, in the
Plascon Evans
(2)
case failed to have regard to the above considerations. In the
Bebel
Investments
' case MULLINS, J, after referring to the uncertainty and
confusion postulated by the judge a
quo
(GOLDSTONE, J), remarked (at 916
G - H):
"I do not, with respect, share these difficulties. Nor do I think it necessary
to circumscribe the phrase 'usually or normally performed'
just as it is not
necessary or desirable to define the word 'practice', referred to above. What
has to be decided is whether employees
have failed or refused to continue to
work, in the circumstances prescribed by the definition
of
/22
22
'strike'. Each case will depend on its own facts, and there is no need to lay
down any criteria with regard to the length of time
required to constitute what
is usual or normal, or how many employees must be
involved."
With respect to MULLINS, J, this begs the
question. Before one can have regard to the facts of a particular matter it is
necessary
first to determine what meaning the legislature intended the word
"work" in paragraph (a) of the definition to have - whether it
intended its
meaning to be confined to activities which an employee was contractually obliged
to perform, or whether it was meant
to have a wider meaning. The question of
vagueness, and resultant uncertainty and confusion, is relevant to such
determination. It
is only once the meaning of the word "work" has been
established that one has regard to the particular facts to determine whether
there has been a refusal "to continue to work"
/23
23
or "to resume their work". The proper legal interpretation of the word "work"
cannot depend upon, or vary with, the facts of a particular
case.
There are
additional considerations why the word "work" should be narrowly interpreted.
Under the common law no employee can be directly
or indirectly compelled to
perform work he is not contractually obliged to do, no matter whether in
refusing to do such work he acts
individually or collectively with others, and
irrespective of the reason or purpose for such refusal. The right of workers to
withhold
labour they are not contractually obliged to perform is an important
weapon they possess in the bargaining process that underlies
the theory of
modern labour law. It assists them to organise their labour power effectively in
negotiations with their employer.
They would be deprived of this right, at
/24
24
least for a period of time, and their bargaining power would be
correspondingly weakened, if the word "work" was interpreted to encompass
voluntary overtime. There is a presumption against the deprivation of, or
interference with, common law rights, and in the case of
ambiguity an
interpretation which preserves those rights will be favoured (
Steyn
: Die
Uitleg van Wette : 5th Edition : pp 103-5). The remarks of REYNOLDS, JP, in
R
v Malinee and Others
1955(1) SA 345 (E) at 349 G that "(l)egislation to
prevent strikes is a modern product to meet modern circumstances, and it is
difficult
to believe common law was ever intended to be used in these Acts
intended to obviate unrest by machinery created by the Statutes,
and so prevent
this Act being applied" does not, and was never intended to, detract from the
application of this general principle.
The court was there considering
whether
/25
25 the word "law" in the phrase "any question of law" in the
definition of labour dispute in s l(v) of Act 48 of 1953 included a question
of
common law. It was not commenting on the applicability or otherwise of the above
canon of construction in the interpretation of
labour legislation. Furthermore,
as the provisions of s 65(1) of the Act are penal in nature they must be
strictly construed. A construction
is therefore called for which does not render
criminal conduct which at common law is perfectly lawful. This would be the
inevitable
consequence of including voluntary overtime in the meaning of the
word "work". What is lawful at common law will become unlawful
and subject to
penal sanctions.
Although there are cogent arguments that can support a contrary view, the
principles and considerations I have mentioned are to my
mind
/26
26
decisive, and justify the conclusion that the word "work" in the phrases "to
continue to work" and "to resume their work" must be
limited to mean work that
an employee is contractually obliged to perform. I agree with the judge a
quo
that such interpretation will not frustrate the overall intention of
the legislature or the purpose of the legislation (as to which
see
Trident
Steel (Pty) Ltd v John NO and Others
(1987) 8 ILJ 27 at 32/3). Furthermore,
the worker loses no common law rights which can affect his negotiating position.
Nor will
the employer be prejudiced because he can protect himself from the
consequences of a voluntary ban on overtime by contracting with
his workers to
do overtime, or supplementing his work-force where necessary. As previously
mentioned, it is common cause that the
employees were not contractually bound to
perform overtime, and consequently their refusal to
/27
27
do so did not constitute a refusal "to continue to
work" or "to resume their work" within the meaning of those phrases in the
definition
of strike. Their conduct accordingly did not amount to an unlawful
strike in terms of s 65(1) of the Act.
It was argued on appeal (albeit faintly), on behalf of Breweries, that the
employees' conduct may have amounted to "the retardation
by them of the progress
of work" or "the obstruction by them of work" in terms of paragraph (a) of the
definition of "strike". With
retardation of the progress of work the legislature
clearly had in mind a go-slow strike or work to rule, a situation where work
is
done, but at substantially reduced levels of activity and productivity. An
obstruction (belemmering) of work covers acts designed
to impede the natural
progress of work e.g. conduct whereby other workers are prevented
/28
28
from working or the operation of machinery is rendered less efficient. In my
view a ban on voluntary overtime does not fall into either
of these
categories.
The respondents also sought in argument to rely upon the provisions of s 8(1)
of the Basic Conditions of Employment Act 3 of 1983.
However, in view of the
conclusion to which I have came, it is not necessary to consider the submissions
advanced in this regard.
In the result the appeal fails. As this has been in the nature of a test
case, and as the parties have so agreed, there will be no
order as to the costs
of appeal.
JUDGE OF APPEAL
J W SMALBERGER
CORBETT, CJ )
VAN HEERDEN, JA)
MILNE, JA )
CONCUR
STEYN, JA )