South African National Security Employers Association v Transport and General Workers Union (JA17/98) [1998] ZALAC 4 (5 March 1998)

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[1998] ZALAC 4
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South African National Security Employers Association v Transport and General Workers Union (JA17/98) [1998] ZALAC 4 (5 March 1998)

IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
(HELD AT JOHANNESBURG)
Case no: JA17/98
In the matter between
SOUTH AFRICAN NATIONAL SECURITY
Appellant
EMPLOYERS ASSOCIATION
and
TRANSPORT AND GENERAL WORKERS
UNION
First Respondent
PROFESSIONAL TRANSPORT WORKERS
UNION
Second Respondent
OF SOUTH AFRICA
NATIONAL SECURITY WORKERS
UNION
Third Respondent
SOUTH AFRICAN CLEANERS, SECURITY
AND
Fourth Respondent
ALLIED WORKERS UNION
SECURITY OFFICERS CIVIL RIGHTS
UNION
Fifth Respondent
SOUTH AFRICAN SECURITY WORKERS
UNION
Sixth Respondent
NATIONAL SECURITY GUARDS AND
ALLIED
Seventh Respondent
WORKERS UNION
FOOD AND GENERAL WORKERS
UNION
Eighth Respondent
JUDGMENT
The Appellant is
the South African National Security Employer’s Association
(‘SANSEA’), a registered employer’s organisation
which
represents 350 employers in the security industry. The eight
respondents are trade unions which collectively represent
more than
40 000 members in the security industry (‘the unions’). The
security industry employs about 60 000 employees.
SANSEA
has negotiated wages and other conditions of employment with the
unions annually since 1993. The practice in the past
was that in
about October of each year the parties exchanged demands, commenced
negotiations soon thereafter, and attempted to
conclude an
agreement prior to the end of February the following year with a
view to having the agreement gazetted in terms of
s 51A of the
Labour Relations Act, 28 of 1956 (‘1956 Act’) and extended to
all employers and employees in the security industry.
On
6 April 1996 the Minister of Labour made an order in terms of s 51A
of the 1956 Act. The effect of the order constituted an
extension
of the collective agreement concluded between the parties. The
collective agreement was extended to non-parties.
The agreement
came into effect on 15 April 1996.
During
about October 1996 SANSEA and the unions commenced negotiations in
respect of wages and other conditions of employment
for 1997/1998.
Those negotiations resulted in a collective agreement on 28
February 1997 (‘1997/1998 agreement’). The 1997/1998
agreement
provided:
‘1. That the Security Order Published under Government Notice No.
R 568 of 6 April 1996 be amended as follows:
1.1. Clause 3. WAGES
Increase of 13% for grades “D” and “E” and 12 % for grades
“A”, “B” and “C” and all other categories, applicable
to
all areas.
1.2. Clause 3 (5). NIGHT SHIFT ALLOWANCE
R 1,00 per shift.
1.3. Clause 5 (7). FREE PERIODS
To be substituted BY:
1996 Wage Order clause with the following sub-clause added:
“The free period shall commence no less than 12 hours after
completion of the last shift.”
2. That this Agreement remain in force for a period of 12 months
from the date of implementation and that no further wage increases
be granted before the expiry of the 12 month period.’
On
27 March 1997 the Minister of Labour made an order in terms of s
51A of the 1956 Act which came into effect on 7 April 1997
and
which extended the terms of the 1997/1998 agreement to non-parties.
The effect of that order was to extend the collective
agreement.
There
was a dispute between the parties on the application papers as to
when the 1997/1998 agreement expires. Mr Kennedy, who
appeared for
the first respondent on appeal, conceded that the collective
agreement expires on 6 April 1998 and that the conditions
of
employment provided for in the collective agreement will operate
until then.
On 2 September 1997 the First Respondent sent a telefax to SANSEA
which contained the consolidated ‘wage proposals for 1998/1999'
of the unions. Negotiations commenced on about 7 October 1997.
Four lengthy meetings were held. The purpose of those
negotiations,
in the words of SANSEA, was ‘negotiating wages and
substantive terms and conditions of employment for 1998/1999.’
On
12 December 1997, the second respondent, acting on behalf of all
the unions, declared a dispute regarding the parties’ failure
to
reach agreement on wages and substantive terms and conditions of
employment for 1998/1999. On the same day the dispute was
referred
for conciliation to the Commission for Conciliation, Mediation and
Arbitration (‘Commission’) in terms of the Labour
Relations
Act, 66 of 1995 (‘1995 Act’).
The
parties met at the Commission but were unable to resolve the
dispute. On 3 February 1998 the Commission issued a certificate
stating that the dispute remained unresolved.
On
16 February the second respondent gave SANSEA notice in terms of s
64(1)(b) of the 1995 Act that its members would strike on
23
February. On the following day the first respondent gave SANSEA
notice that its members would strike on 20 February.
On
20 February members of the first respondent went on strike. On
Monday, 23 February, members of the second and seventh respondents
went on strike.
On
23 February SANSEA’s attorneys sent a telefax to each of the
unions in which it was contended on a number of grounds that
the
strike was not protected in terms of the 1995 Act. The unions were
given notice of SANSEA’s intention to launch an urgent
application in the Labour Court if the strike was not called off.
Because
the strike continued, SANSEA duly brought an urgent application in
the Labour Court, which was argued on Thursday, 26
February. An
order was sought declaring that the strike was unprotected and
interdicting the first to seventh respondents from
instigating or
participating in the unprotected strike action. On Friday, 27
February, Zondo J found that the strike was not
unprotected and
dismissed the application with costs. Shortly after giving
judgment, the Court granted leave to appeal to this
court.
SANSEA’s attorneys thereafter applied to have the appeal heard
urgently, an application which was not opposed by the
unions. The
application was granted and the appeal set down for hearing on
Wednesday, 4 March.
It
was common cause before Zondo J that two of the requisites for the
grant of a final interdict, namely, an injury actually committed
or
reasonably apprehended and the absence of any other satisfactory
remedy, had been met. The only issue was whether or not
SANSEA had
shown a clear right.
In the case of any strike that does not comply with the provisions
of Chapter Four of the 1995 Act the Labour Court has exclusive
jurisdiction to grant an interdict to restrain any person from
participating in the strike or any conduct in contemplation or
in
furtherance of the strike (s 68(1)(a)(i)).
It
is not disputed that the unions complied with the provisions of s
64(1) of the 1995 Act before the commencement of the strike
in
that:
(a) the issue in dispute was referred to the Commission and a
certificate stating that the dispute remained unresolved was issued;
(b) at least 48 hours written notice of the commencement of the
strike was given to SANSEA.
SANSEA
contends that the strike is unprotected having regard to the
limitations on the right to strike contained in sections 65(1)(a)
and 65(3)(b)(i) of the 1995 Act. S 65(1)(a) provides:‘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 if -
that person is bound by a collective agreement that prohibits a
strike or lock-out in respect of the issue in dispute...’.
S 65(3)(b)(i) provides: ‘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 -
if that person is bound by -
any arbitration award or collective agreement that regulates the
issue in dispute...’.
‘Issue in dispute’ is defined in s 213 ‘in relation to a
strike or lock-out’ as meaning ‘the demand, the grievance, or
the dispute that forms the subject matter of the strike or
lock-out...’.
The argument advanced on behalf of SANSEA by Mr Loxton, who
appeared with Mr Franklin, is that the words ‘issue in dispute’
bear a similar meaning to ‘matter giving occasion for the strike’
employed in s 65(1)(a) of the 1956 Act. In
Photocircuit SA
(Pty) Ltd v De Klerk N O a o
1991 (2) SA 11
(A) at 20 I-J
Preiss AJA held that s 65(1)(a) required ‘...that the dispute
should be about a matter that is dealt with in
the agreement.’
In the present case the strike is about wages, a matter regulated
by the 1997/1998 collective agreement.
SANSEA contends that on a
proper interpretation of s 65 of the 1995 Act the ‘issue in
dispute’, in the context of the facts
of this case, must be
broadly interpreted as being a dispute about wages and conditions
of employment, as generic terms. On
that ‘broad interpretation’,
no strike may take place for improved wages until the collective
agreement has expired. Collective
bargaining may take place during
the currency of the collective agreement but not industrial action.
The interpretation contended
for by SANSEA was said to be
preferable to the one contended for by the unions because it is
more in keeping with the primary
purposes of the 1995 Act of
providing a framework within which parties can bargain
collectively, of promoting collective bargaining,
and of promoting
labour peace: see s 1 and
North East Cape Forests v SAAPAWU a o
(2)
[1997] 6 BLLR 711
(LAC) at 719H-J. Those objects are not
served if a trade union, having concluded a collective agreement
concerning wages for
a particular year, is entitled before the
expiry of that agreement, to enforce compliance with wage demands
for a succeeding
year, during the currency of that agreement. The
object of industrial peace is rendered nugatory. There is then no
guarantee
of industrial peace for the duration of the collective
agreement. Notionally, on the union’s argument, they would be
entitled
to strike shortly after concluding a collective agreement.
The implicit quid pro quo for entering into collective bargaining,
enduring industrial action and finally concluding a collective
agreement on the issues in dispute is that there shall for the
duration of the agreement be industrial peace. The public interest
in a guaranteed respite from industrial action would be served
by
the interpretation for which SANSEA contends. The submission, in
effect, is that industrial action cannot be resorted to
during the
currency of the agreement in order to amend a collective agreement
which regulates terms and conditions of employment:
there is an
absolute peace obligation in respect of any disputes which might
arise in the employment relationship, even though
the issues are
not specifically regulated by the collective agreement.
SANSEA
further submits that Clause 2 of the 1997/1998 agreement, quoted in
paragraph [4] above, necessarily means that the parties
to the
agreement contemplated that strike action in support of a demand
for increases in wages would and could not take place
prior to the
expiry of the twelve month period referred to in the clause.
Accordingly, the strike is prohibited by virtue of
the provisions
of s 65(1)(a) of the 1995 Act.
SANSEA’s
interpretation of the 1995 Act does not find favour.
Every worker enjoys the fundamental right to strike: s 23(2)(c) of
the Constitution of the Republic of South Africa Act 108 of
1996.
One of the primary objects of the 1995 Act is ‘to give effect to
and regulate the fundamental rights conferred by...the
Constitution’ (s 1). The reference in section 1 of the 1995 Act
to s 27 of the Interim Constitution should be read as referring
to
s 23 of the Final Constitution:
Business South Africa v Congress
of South African Trade Unions a o
[1997] 5 BLLR 511
(LAC) at
517A-B. In view of the fundamental nature of the right to strike,
a limitation on that right which is not expressly
provided for in
the 1995 Act should not lightly be inferred.
Sections
65(1)(a) and 65(3)(b)(i), read with the definition of ‘issue in
dispute’, cannot be given a literal interpretation
- that much is
conceded by both Mr Loxton and Mr Kennedy. For example, if the
definition of ‘issue in dispute’ is substituted
for those words
in s 65(3)(b)(i), the section reads: ‘No person may take part in
a strike...if that person is bound by...a
collective agreement that
regulates [the demand, the grievance, or the dispute that forms the
subject matter of the strike]...’.
By its very nature, a
collective agreement does not regulate a demand, a grievance or a
dispute.
What
the legislature intended with s 65(3)(b)(i), in my view, was to
provide that the parties are bound to the terms of the collective
agreement for the period that it is operative and that they are
precluded from resorting to industrial action to change its terms.

So, for example, having agreed on wages in the security industry
for the period 7 April 1997 to 6 April 1998, the unions are
not
entitled to strike to increase the wages
for that period
.
What
the 1995 Act does not expressly prohibit is a resort to industrial
action by one of the parties to a collective agreement
to resolve a
dispute about an issue which is
not
regulated by the
collective agreement.
On
the facts of this case the dispute between SANSEA and the unions
which forms the subject matter of the strike is the wage dispute
for the 1998/1999 year. The 1997/1998 agreement does not regulate
that issue. Accordingly, in terms of s 65(3)(b)(i) the unions
are
not prohibited from embarking on a strike to compel compliance with
its demands.
What
SANSEA in effect contends for is a further limitation on the right
to strike which is not expressly contained in the 1995
Act. For
SANSEA to succeed, the limitation must arise by way of necessary
implication and accord best with the general purpose
of the 1995
Act:
Ceramic Industries t/a Betta Sanitary Ware v National
Construction Building and Allied Workers Union (2)
(1997) 18
ILJ 671 (LAC) at 675G. The arguments advanced on behalf of SANSEA
fall far short of justifying such an implication.
As conceded by SANSEA, the parties to the 1997/1998 agreement were
entitled to bargain collectively about the terms of the 1998/1999
agreement during the currency of the 1997/1998 agreement. As a
matter of established practice that is in fact what they did.
They
did so because it was obviously desirable to attempt to achieve
consensus before the expiry of the 1997/1998 agreement.
When
consensus was not reached, and deadlock was declared, there was no
statutory bar to one of the parties invoking the conciliation
procedures provided for in the 1995 Act by referring the dispute to
the Commission. On the contrary, it was in accordance with
good
industrial relations practice to invoke the aid of an independent
third party in order to attempt to break the deadlock.

Conciliation having failed, once the Commission issued a
certificate stating that the dispute remained unresolved, the
unions
acquired the right to embark on a protected strike - subject
to compliance with the requirement in s 64(1)(b) that 48 hours
written
notice of the strike was given. Having complied with the
provisions of s 64(1), and as the issue in dispute was not
regulated
by a collective agreement, the unions could lawfully
exercise the right to strike.
The
1995 Act is incapable of an interpretation by necessary implication
that the right to strike is subject to a further, unexpressed,
limitation in terms of which the right could only be exercised at
the expiry of the collective agreement on 6 April 1998. The
strike
is an essential and integral element of collective bargaining:
Barlows Manufacturing Co
Ltd v Metal and Allied Workers Union a o
(1990) 11 ILJ 35 (T) at 42E;
NUMSA
v Boart MSA (Pty) Ltd
[1996] 1 BLLR 13
(LAC) at 20H. The freedom to strike is integral
to the system of collective bargaining - the withholding of their
labour is
a legitimate weapon available to workers seeking to
achieve rational demands through lawful means:
NUMSA
v Vetsak Co-operative Ltd
[1996] ZASCA 69
;
1996 (4) SA 577
(A) at 588F-G. In keeping with the practice of
resolving disputes before the expiry of the collective agreement,
the unions
were entitled to strike with the purpose of breaking the
deadlock before 6 April 1998. As contended by the first
respondent
‘...there is no reason in law, logic or labour
relations requiring the [first respondent] and its members to delay
such strike
until the previous agreement has expired.’.
One of the factors on which SANSEA relies for its interpretation of
the 1995 Act is the spectre that parties to a collective
agreement
may have no sooner put pen to paper than the union calls a strike
on its demands for an increase in wages for the
following year.
Those are not the facts of this case. If those facts ever present
themselves they will have to be dealt with
at that stage. One of
the considerations which the court will take into account in
deciding such a case is whether the nominal
issue in dispute is the
true dispute:
Fidelity Guards Holdings (Pty) Ltd v PTWU a.o.
[1997] 9 BLLR 1125
(LAC) at 1129F-H.
The
interpretation contended for by SANSEA is not one that finds
universal support if regard is had to comparative law. A
distinction
is made in the literature between peace clauses in
collective agreements which prohibit all collective disputes before
expiration
of the collective agreement (an ‘absolute’ peace
obligation) or those which prohibit only disputes regulated in the
existing
collective agreement and leaves space for industrial
action about matters not covered by the collective agreement
(‘relative’
peace obligations). The latter kind is said to be
more prevalent, especially where the right to strike is
constitutionally protected:
See Blanpain/Engels (eds)
Comparative
Labour Law and Industrial relations in Industrial Market Economies
Kluwer 1993 at 429; Blanpain/Ben-Israel (eds)
Strikes and
Lock-outs in Industrialized Market Economies
Kluwer 1994 at 35,
61, 68, 157-8 and 217. The interpretation contended for by SANSEA
may also delay the legal exercise of the
right to strike for an
unacceptably long period in contravention of international labour
standards: c.f. Ben-Israel
International Labour Standards: The
case of Freedom to Strike
Kluwer 1988 at 120-121.
SANSEA contends that the 1997/1998 agreement prohibits a strike in
respect of the issue presently in dispute. The submission
is that
in terms of clause 2 (quoted in paragraph [4] hereof) no further
wages can be ‘granted’ before 6 April 1998. In
order for
SANSEA to concede to the unions’ wage demands it will have to
grant the required increases. The date of such grant
will
necessarily be the date upon which the concession is made,
notwithstanding the fact that the increase may only be implemented
later. By necessary implication, therefore, the parties to the
agreement contemplated that strike action in support of a demand
for increases in wages would and could not take place prior to the
expiry of the 12 month period.
That
interpretation of the 1997/1998 agreement flies in the face of the
conduct of the parties each year since 1993 and the stated
intention of the parties. In the founding affidavit of Mr D C
Masterson, the national president of SANSEA, he described the
intention of the parties in these terms: ‘Typically the applicant
and the respondents exchange demands during October of the
year
preceding the wage agreement and negotiations commence as soon as
possible thereafter. The parties have always attempted
to
conclude an agreement
prior to the end of February of the
following year with a view to having the agreement gazetted in
terms of the provisions of
s 51A of the Labour Relations Act, 28 of
1956 (as amended) and extended to all employers and employees
within the security industry.’
(The emphasis is mine.)
Clause
2 means that no further wage increases were to be granted
to
take effect
before the expiry of the 12 month period.
Section 65(1)(a) envisages the inclusion of a peace obligation in a
collective agreement. It is left to the parties to agree
on the
extent of the obligation: the Act places no limit on what the
parties may agree. The 1997/1998 agreement does not, however,

prohibit a strike in respect of the issue presently in dispute.
On
appeal Mr Loxton raised, for the first time, a new point. He
submitted that the strike was unprotected for a further reason.
He
contended that in the answering affidavit of the first respondent
it was demanded that the wage increases be implemented
from 1 March
1998; that demand contemplates an amendment to the 1997/1998
agreement prior to it expiring; and accordingly the
strike falls
foul of the provisions of s 65(3)(b)(i).
The answer to that submission is that on these papers it was never
part of the unions’ demands that wage increases be implemented
from 1 March 1998 and therefore did not form an element of the
dispute about which the unions went on strike. In the first

respondent’s answering affidavit it was stated in unambiguous
terms that the unions’ demands were ‘...in respect of wages
and
other terms and conditions of employment which will be applicable
after the expiry of the present collective agreement regulating
wages and working conditions....the parties have always understood
the issue in dispute (which is the subject of the strike)
to be
about the conclusion of another collective agreement after the
expiry of the present collective agreement.’ What the
first
respondent did do, was to ‘submit’ that in the negotiations
which preceded deadlock ‘they were negotiating with
the purpose
of concluding a collective agreement about wages and other terms
and conditions of employment which were to apply
as from 1 March
1997....Since 1993 the date of implementation of new terms and
conditions of employment has been 1 March...I
respectfully submit
that for the parties to the collective agreement the date of
implementation is 1 March.’ The first respondent
went on to
submit that the dispute as to when the present collective agreement
ends and when a new collective agreement will
take effect is
dependant upon when the date of implementation of the present
collective agreement was. The first respondent
tendered that this
dispute be referred to expedited arbitration under the auspices of
the Commission or by means of private arbitration.
The
appeal is dismissed, with costs.
Myburgh J P
I concur,
Froneman DJP
I concur,
Kroon JA
Date of hearing: 4 March 1998
Date of judgment: 5 March 1998
Counsel for Appellant: C D A Loxton SC and Adv A E Franklin
instructed by Deneys Reitz
Counsel for Respondent: Adv P Kennedy instructed by Cheadle,
Thompson & Haysom
This judgment is available on the Internet at:
http://www.law.wits.ac.za/labourcrt.