Chemical Workers' Industrial Union v Plascon Decorative (Inland) (Pty) Ltd (J2162/98) [1998] ZALAC 27 (30 September 1998)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
1998
>>
[1998] ZALAC 27
|

|

Chemical Workers' Industrial Union v Plascon Decorative (Inland) (Pty) Ltd (J2162/98) [1998] ZALAC 27; (1999) 20 ILJ 321 (LAC) (30 September 1998)

IN THE
LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
Case Number:
J2162/98
In
the matter between:
CHEMICAL
WORKERS’ INDUSTRIAL UNION
Applicant
and
PLASCON
DECORATIVE (INLAND) (PTY) LTD
Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
CAMERON,
JA
:
[1] This is an
application which, on the initiative of the respondent (“Plascon”),
the Judge-President directed in terms of section
175 of the Labour
Relations Act 66 of 1995 (“the LRA”) be heard by the Labour
Appeal Court sitting as a court of first instance.
The question at
issue is whether employees outside the bargaining unit to which a
strike demand relates may take part in an otherwise
protected strike.
This was the issue that previously arose in
Afrox
Ltd v SA Chemical Workers Union and others (1) (1997) ILJ 399 (LC)
.
[2] The
proceedings stem from the refusal of an employers’ affiliation, the
“Industrial Chemicals Group” (of which Plascon is
part) (“the
ICG”), to agree to the demands of the application (“the union”)
regarding wages and terms and conditions of service
in the industry.
When the negotiations resulted in deadlock, the union referred a
dispute to the Commission for Conciliation, Mediation
and Arbitration
(“the CCMA”) and on 13 July 1998 obtained a certificate in terms
of section 64(1)(a)(i) of the LRA to the effect
that the dispute
remained unresolved. The union gave the ICG notice of the
commencement of strike action, the nature of which was
specified.
[3] It
was common cause that these procedures rendered the strike
“protected” in terms of section 67 of the LRA. The question
was
to which participating employees and thus how broadly that protection
applied. Plascon recognised the union as the collective
bargaining
agent of its members employed in grades below what is known as the “C
category” (“bargaining unit employees”).
The negotiations
preceding the strike concerned the wages and terms and conditions of
these employees.
[4] The
union also has members within the “C category”, and claims
members as well amongst temporary or contact workers who do
not fall
within the bargaining unit (“non-bargaining unit employees”).
After the strike commenced on 3 August, Plascon gave
notice to
striking non-bargaining unit employees of its intention to discipline
them for striking. When Plascon proceeded to initiate
disciplinary
proceedings, the union gave notice of urgent legal proceedings to
forestall this.
[5] The
union originally sought, apart from condonation relating to urgency,
and costs, an order in the following terms:
“
2 Declaring
that the strike by all the applicant’s members employed by the
respondent complies with the provisions of chapter IV
of the
Labour
Relations Act;
2 Restraining
the respondent from disciplining or dismissing any of the applicant’s
members for their participation in the strike.”
[6] In
its founding affidavit the union contended that every union member
employed by Plascon had the right to strike in respect of
the issue
in dispute. Plascon’s answering affidavit averred that
non-bargaining unit employees had different terms and conditions
of
employment, and different employment interests from bargaining unit
employees. It stated that the dispute the union referred
to the CCMA
concerned the ICG’s failure to agree to demands in respect of the
bargaining unit, and that the strike embarked upon
was in support of
those demands. It contended that none of the striking employees
outside the bargaining unit was party to that
dispute or had any
material interest in its outcome, since their wages and terms and
conditions of service were unaffected by the
strike. Those employees
accordingly did not enjoy the protection afforded to bargaining unit
employees by Chapter IV of the LRA.
[7] The
union’s replying affidavit, and a later supplementary affidavit,
pursued a factual dispute about whether temporary and contract
employees were union members. This is not germane to the present
proceedings, since the union claimed relief only in respect of
those
who were in fact its members.
[8] On
Wednesday 26 August, before the application was due to be heard on
Friday 28 August, Plascon formally withdrew disciplinary
proceedings
against all non-bargaining unit strikers, and placed on record that
it had no intention of taking disciplinary action
against any
recognised members of the union “for their participation in the
strike under consideration”. This was accompanied
by a tender to
pay all the costs occasioned to the union by the application.
[9] Plascon
took the view that this meant that there was no longer any dispute
between the parties as there was no “live issue”
to which it
remained a party. The union insisted that it remained entitled to
approach the Court for the declarator sough in para
2 of its notice
of motion. The question of the justiciability of the union’s
remaining claim of relief was argued on Thursday
27 August, when Mr
Cassim and Mr Franklin appeared for Plascon. This Court ruled that
the union, for whom Mr van der Riet appeared,
was entitled to proceed
with the application for the declarator. It was indicated that
reasons would be furnished later.
[10] Plascon,
persisting in its attitude to justiciability, indicated in a letter
to this Court that it declined to file heads of
argument or to appear
at the hearing of the application since there was no “lis”
between the parties. However, on Friday 18
September, Plascon’s
attorneys in a letter to the union’s attorneys somewhat modified
its stance. It now placed on record that
“on reflection” Plascon
was “of the view that the strike engaged upon by all of your
client’s members was indeed protected”
and offered to compensate
temporary or contract workers who had been dismissed as a result of
their participation in the strike.
[11] Plascon’s
original submission was in effect that the union’s claim to relief
disappeared when Plascon withdrew disciplinary
proceedings against
non-bargaining unit employees. Mr Cassim submitted that the Court
was not required to give a “consultative
opinion” on the
non-bargaining unit employees’ statutory rights when the threat of
disciplinary action against them had been
withdrawn.
[12] This
submission mistook the nature not only of the union’s legal rights
but also of its entitlements in approaching this Court
for relief,
and failed to take account of either the formal or the substantive
aspects of the issues still before the Court. Formally,
the union
and the employees it represents became entitled, when joinder of
issue took place, to a hearing in respect of the entire
ambit of the
relief they claimed. Joinder of issue (litis contestatio) occurred
when the union filed its reply to Plascon’s answering
affidavit,
and the matter was set down for hearing. (Compare
Milne
NO v Shield Insurance Co Ltd
1969(3)
SA 352 (A) at 358F-G; and
Waikiwi
Shipping Co Ltd v Thomas Barlow and Sons (Natal) Ltd and another
1978(1) SA 671 (A) 676C-H). Plascon’s answering affidavit placed
on record its opposition not only to the grant of an interdict
restraining it from implementing discipline, but to the declarator
which encapsulated the legal basis of the union’s claim to relief.

Once issue was joined on both these questions, the union became
formally entitled to their adjudication.
[13] In
any event, in substance Plascon’s original undertaking fell far
short of giving the union the assurance it sought in respect
of its
non-bargaining unit members. Plascon’s undertaking related to
their participation in “the strike under consideration”.
This
clearly meant that Plascon reserved to itself the right to discipline
non-bargaining unit employees for similar strike action
in future.
When the union took recourse to legal proceedings, it did not seek
merely to secure an undertaking from Plascon to withdraw
specific
disciplinary proceedings then current or threatened. Nor did it seek
to protect its members from disciplinary action by
Plascon in
general. The relief it sought was crafted to protect them from
disciplinary action, then current, threatened or possible
in future,
deriving from Plascon’s refusal to concede the right its members
claimed to embark on protected strike action even when
they fell
outside the bargaining unit to which the strike issue related. In
relation to that right, Plascon, having joined issue,
gave no
undertaking.
[14] Plascon’s
current “view”, that striking non-bargaining unit members were
“indeed protected”, still embodies no general
concession. Even
at this stage, Plascon does not concede that the union is entitled to
the declarator it sought when issue was joined.
That question in my
view therefore remains current and the union is entitled to have it
decided. (Contrast van
Erk
v Holmer
1992(2)
SA 636 (W), criticised in
B
v S
1995
(3) SA 571
(A) at 577D - 579A, where the parties settled the matter
and their agreement was made an order of Court, but the Judge,
despite the
disposal of the case, subsequently furnished reasons for
accepting a recommendation by the Family Advocate which was embodied
in
the parties’ settlement and the Court’s order.)
[15] After
the question of justiciability was decided, Mr Loxton agreed at the
Court’s request to act as amicus curiae. The Court
is indebted to
him for heads of argument and submissions during the hearing which
were of material assistance to it.
[16] In
terms of
section 213
of the LRA, “strike” means -
“
the partial
or complete concerted refusal to work, or the retardation or
obstruction of work, by persons who are or have been employed
by the
same employer or by different employers, for the purpose of remedying
a grievance or resolving a dispute in respect of any
matter of mutual
interest between employer and employee, and every reference to ‘work’
in this definition includes overtime work,
whether it is voluntary or
compulsory”.
“
Dispute” is
defined to include an alleged dispute, while “issue in dispute”
in relation to a strike or lock-out is defined to
mean “the demand,
the grievance or the dispute that forms the subject matter of the
strike or lock-out”.
[17] Strikes
and lock-outs are regulated by Chapter IV
(sections 64
-
77
) of the
LRA.
Section 64(1)
provides in general terms that “every employee
has the right to strike and every employer has the right to
lock-out”, subject
to certain conditions. These are set out in
sub-paras (a) to (d), read with sub-sections (2) and (3). The
comprise an attempt at
conciliation in regard to “the issue in
dispute” (sub-para (a)), and notice (sub-paras (b), (c) and (d)).
Section 65
is headed “Limitations on right to strike or recourse to
lock-out”. It provides that “no person may take part in a strike
or lock-out or in any conduct in contemplation or furtherance of a
strike or lock-out” if (in summary terms) a collective agreement
prohibits it, the issue in dispute is arbitrable or justiciable, or
(subject to exceptions) the person is engaged in an essential
or a
maintenance service. Secondly strikes are dealt with in
section 66.
In terms of
section 66(1)
, in
section 66
, ‘secondary strike’
“means a strike, or conduct in contemplation or furtherance of a
strike, that is in support of a strike
by other employees against
their employer but does not include a strike in pursuit of a demand
that has ben referred to a council
if the striking employees have a
material interest in that demand.”
Section 66(2)
prohibits
participation in a secondary strike unless the strike that is to be
supported complies with the provisions of
section 64
and
65
(sub-para
(a)); notice has been given (sub-para (b)); and the nature and extent
of the secondary strike is reasonable in relation
to the possible
direct or indirect effect that the secondary strike may have on the
business of the primary employer (sub-para (c)).
[18] In a number
of recent cases, this Court has outlined the basic principles that
inform its approach to the task of construing
the provisions of the
LRA. The statute itself requires in
section 3
that it be interpreted
to give effect to its primary objects, and in conformity with the
constitution (Constitution of the Republic
of South Africa, Act 108
of 1996) and South Africa’s public international law obligations.
Section 1 expresses the LRA”s primary
objects amongst others as “to
give effect to and regulate the fundamental rights” conferred by
section 23 of the Constitution
(para (a)); and to promote “orderly
collective bargaining” (para (d)(i)). “Conformity with the
Constitution” entails inter
alia that the provisions of the LRA
must be considered against the background of the Constitution, which
is the supreme law of the
land and which itself requires that this
Court when interpreting the LRA promote the spirit, purport and
objects of the Bill of Rights.
(See
Business
South Africa v Congress of South African Trade Unions and other
(1997) 18 ILJ 474 (LAC) at 476F-478I;
Ceramic
Industries t/a Betta Sanitary Ware v National Construction, Building
and Allied Workers’ Union
(1997) 18 ILJ 671 (LAC) at 675E-I;
Carephone
(Pty) Ltd v Marcus NO and others
(case
no JA5/98, para [8].)
[19] The
Constitution expressly enshrines the right to strike. In terms of
section 23(2)(c), every worker has the right “to strike”.
That
right, though expressed in unlimited terms, is subject to curtailment
provided the restriction complies with section 36, which
permits
limitation “to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on
human dignity,
equality and freedom, taking into account all relevant factors”, a
number of which are expressly set out. (Compare
S
v Makwanyane and another
[1995] ZACC 3
;
1995
(3) SA 391
(CC) at 436E-F (para [104]);
S
v Williams and others
[1995] ZACC 6
;
1995 (3) Sa 632
(CC) at 650 (paras [58]-[60]); and
S
v Bhulwana
[1995] ZACC 11
;
1996
(1) SA 388
(CC) at 395H (para [18].)
[20] The
starting point where a constitutional right is given without express
limitation, as Kentridge AJ stated in
Attorney-General
v Moagi
1982 (2) Botswana LR 124
at 184, in a statement he repeated on behalf
of a unanimous Constitutional Court in
S
v Zuma and others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) at 651I (para [15]), is that “Constitutional
rights conferred without express limitation should not be cut down by
reading
implicit limitations into them”. Kentridge AJ had in mind
cutting constitutional rights down “so as to bring them into line
with the common law”, but in my view his remarks suggest a general
caution when seeking to read implicit limitations into constitutional
rights. Nevertheless, the constitutional right to strike may need to
be given specific content in circumstances where it is contended
that
limitations on its exercise are unconstitutional, though that is not
in issue here.
[21] It
is plain that the right to strike, conferred without express
limitation in the Constitution, is subjected to a number of
significant,
expressly stated, limitations in the LRA. The statute
not only sets formal preconditions for the exercise of the right to
strike,
but imposes material limitations on who may strike. Strikers
or those acting in contemplation or furtherance of a strike whose
conduct
falls outside the statute’s limitations are deprived of the
protections section 67 provides, and are accordingly vulnerable (if
employees) to dismissal and (in any event) to suit for delict or
breach of contract. The constitutional validity of none of these
express limitations is in issue before us. The issue is whether the
right to strike as embodied in the statute contains the limitation
for which Plascon originally contended, namely that only those
employees of an employer who are directly affected by the strike
demand
may embark on a protected strike. That limitation is not
expressed in the statute. The question is whether a proper
interpretation
of the provisions of the statute, against the
background sketched above, imports them.
[22] The
most notable feature of the definition of “strike” in the LRA is
its wide terms. It comprises three elements: (i) the
non-performance
of work; (ii) by employees; (iii) for the purpose stated. That
purpose is to remedy a grievance or resolve a dispute
“in respect
of any matter of mutual interest between employer and employee”.
The absence of any article, definite or indefinite,
before either
“employer” or “employee” is conspicuous. It has the effect
of rendering at its most general and non-specific
the
employer/employee relationship to which the strike dispute must
relate. (Mr Loxton’s phrase was “generic”.) It follows
that
while it is clear that the employees not performing work must all
share the purpose of remedying a grievance or resolving a
dispute,
the definition imposes no other requirements of mutuality - whether a
shared employment relationship with an employer or
a shared interest
in the grievance or dispute - upon them.
[23] The
terms of the definition are thus wide enough to encompass both
primary strikes (section 64) and secondary strikes (section
66).
They are obviously also broad enough to cover a strike involving
employees of the same employer who are not directly affected
by the
strike dispute.
[24] The
broad terms of the definition of “strike” correspond with the
definition of “issue in dispute”. This offers no identification
of the parties to the dispute, and thus imposes no limitation on who
they may be. It also corresponds to the scheme of Chapter IV.

Section 64 regulates strikes and lock-outs by parties to the same
employment relationship. The specificity of this association
appears
from the use of the definite article (“the employer” and “the
employees” in the notice requirement (section 64(1)(b)
and (c)) and
in the provisions providing for a freeze on or reversal of unilateral
changes to terms and conditions of employment
(sub-sections 64(4) and
(5)), as well as from the use of the possessive pronoun (“the
employees ... their employer”; “the employer
... its employees”
in section 64(3)). Section 66 by contrast defines “secondary
strike” as one “in support of a strike by
other employees against
their employer”. The contrast with the provisions of section 64
gives the allusion to “other” employees
special significance. It
differentiates the secondary strikers who will not perform work from
the “other” employees, namely
those whose primary right to strike
is regulated by sections 64 and 65. The possessive pronoun “their”
also indicates that the
“other” employees have in common with
each other an employment relationship with the same employer.
[25] It
follows that I do not agree with Mr Loxton’s submission that the
purpose of section 66 is to limit the right of employees
to engage in
a strike which, but for section 66, would fall within the ambit of
section 64. In my view, the grammatical usage the
legislature
adopted indicates that section 64 comprehends a strike by employees
only of the same employer (“the primary employer”).
Conversely,
the scheme of the Chapter as well as the language of section 66,
suggest that employees not employed by the primary
employer can
engage in protected strike action only if their conduct complies with
section 66.
[26] This
reading of the Chapter’s provisions entails that employees employed
by the same employer who are not directly affected
by the strike
demand must, if they are to be capable of striking at all, fall
within the terms of section 64. Both Mr van der Riet
and Mr Loxton
(who supported the conclusion that statutory protection applies to
non-bargaining unit employees who join a protected
strike) drew
attention, correctly, in my view, to the most telling anomaly that
would arise if Plascon’s original stance on the
ambit of protection
accorded primary strikes were upheld - that no statutory protection
would be afforded employees who strike in
support of demands by
co-employees, while secondary strikers supporting a strike by
employees employed by an entirely different employer
may receive such
protection.
[27] The
arguments of both Mr van der Riet and Mr Loxton proceeded, also in my
view correctly, on the premise that a proper appreciation
of the
statutory provisions concerning strikes depends on their purpose. Mr
van der Riet contended that the purpose of section 64(1)’s
procedural requirements is to compel employees to explore the
possible resolution of their dispute through negotiations before
exercising
their right to strike. The concept of a protected strike
presupposes such negotiations. Once that purpose has been fulfilled,
no
further statutory object would be served by limiting the right to
strike only to employees directly affected by the demand. Instead,
the restriction envisaged would place a substantive limitation on the
right of non-bargaining unit union members to strike for which
the
provisions of the statute offer no explicit or implicit support. I
agree with the submission.
[28] The
Constitutional Court has itself emphasised the general importance of
the right to strike:
“
Collective
bargaining is based on the recognition of the fact that employers
enjoy greater social and economic power than individual
workers.
Workers therefore need to act in concert to provide them collectively
with sufficient power to bargain effectively with
employers. Workers
enjoy collective power primarily through the mechanism of strike
action.”
The Court went
to point out that the importance of the right to strike for workers
has led to its being entrenched far more frequently
as a fundamental
right in constitutions than is the right to lock out, and that the
two rights “are not always and necessarily
equivalent” (
In
Re: Certification of the Constitution of the Republic of South Africa
1996
1996
(10) BCLR 1253
(CC) 1284-1285 (para [66]). This is of course not to
say that striking should be encouraged or unprocedural strikes
condoned: but
only that there is no justification for importing into
the LRA< without any visible textual support, limitations on the
right
to strike which are additional to those the legislature has
chosen clearly to express.
[29] The issue
in the present case is whether non-bargaining unit employees, whose
conditions of service the strike demand did not
directly affect,
could embark on an otherwise protected strike. That parallels the
question Zondo AJ dealt with in
Afrox
Ltd v SA Chemical Workers Union and others (1)
(above), where workers employed by the same employer at different
plants embarked on strike action. Zondo AJ concluded (at 403I)
that
“once a dispute exists between an employer and a union and the
statutory requirements laid down in the Act to make a strike
a
protected strike have been complied with, the union acquires the
right to call all its members who are employed by that employer
out
on strike and its members so employed acquire the right to strike”.
It follows that in my view this conclusion was correct.
[30] The
union was accordingly entitled to all the relief it sought. There is
an order as follows:
“
The strike by
all of the applicant’s members employed by the respondent complies
with the provisions of chapter IV of the
Labour Relations Act 66 of
1995
.”
__________________
E
Cameron
Judge
of Appeal
I
agree:
___________________
J
F Myburgh
Judge-President
I
agree:
___________________
J
C Froneman
Deputy
Judge-President
Appearances:
JG van der Riet, instructed by Cheadle, Thompson & Associates
No
appearances for the respondent on 21 September 1998
Amicus
curiae: C D A Loxton, SC
Date
of hearing: 21 September 1998
Date
of judgment: 30 September 1998