Technikon South Africa v National Union of Technikon Employees of South Africa (JA11/00) [2000] ZALAC 24 (9 November 2000)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2000
>>
[2000] ZALAC 24
|

|

Technikon South Africa v National Union of Technikon Employees of South Africa (JA11/00) [2000] ZALAC 24; [2001] 1 BLLR 58 (LAC); (2001) 22 ILJ 427 (LAC) (9 November 2000)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held
in Johannesburg
Case
No: JA11/00
In the
matter between:
TECHNIKON
SOUTH AFRICA
Appellant
and
NATIONAL
UNION OF TECHNIKON
EMPLOYEES
OF SOUTH AFRICA
Respondent
JUDGEMENT
ZONDO
JP
Introduction
[1] This
is an appeal against a judgment which was handed down by the Labour
Court (per Pillay AJ) in an application which was brought
by the
respondent against the appellant. The dispute which was the subject
of that application was, broadly speaking, whether or
not the
appellant was entitled to institute a lock-out against members of the
respondent and other employees employed by it and whether
it was
entitled to employ temporary replacement labour during that lock-out.
The court a quo gave judgment in favour of the respondent
holding
that the appellant was not entitled to institute a lock-out against
the respondent’s members and other employees and that
it was not
entitled to employ temporary replacement labour during such lock-out.
The appellant now appeals against that judgment.
Before I can
consider the appeal, it is necessary to briefly set out the facts of
this matter.
The
facts
[2] The
appellant is a technikon. It has its head office in Gauteng. The
respondent is a trade union which is registered as such in
terms of
the Labour Relations Act, 1995 (Act No 66 of 1995) (
“the
Act”
).
The respondent has members among employees of the appellant. At all
times relevant to this matter it and another union, namely,
the
National Education, Health and Allied Workers Union, (
“NEHAWU”
)
jointly represented about 62% of the appellant’s employees.
[3] About
mid-January 2000 the appellant and the respondent reached a deadlock
in their annual wage negotiations. A dispute then arose
between the
parties about wages and other terms and conditions of employment. On
the 17th January the respondent referred the dispute
to the
Commission for Conciliation, Mediation and Arbitration (
“the
CCMA”
)
for conciliation as required by s 64(1)(a) of the Act. Conciliation
meetings which were subsequently held under the auspices of
the CCMA
failed to produce a settlement of the dispute. Accordingly, on the
3
rd
March 2000 the CCMA issued a certificate of outcome in respect of the
conciliation. The certificate was to the effect that the dispute
remained unresolved. The issuing of that certificate was in
accordance with the provisions of s64(1)(a)(I) of the Act.
[4] On
the 4
th
March the respondent informed all members of staff that it intended
to call a strike after a meeting with union members. On the 7
th
March the appellant issued a memorandum to the staff
“regarding
the strike situation”
.
In paragraph 3 of the memorandum the appellant set out various
scenarios. These included an offensive lock-out as well as a
defensive
lock-out. In that memorandum the appellant described an
offensive lock-out as
“an
action that is initiated by the employer as soon as the certificate
[of outcome]
has
been issued in an attempt to pressurise (sic) the union member to
accept management’s offer”
.
It described a defensive lock-out as
“a
retaliation by the employer to the union’s call for a strike in
order to discourage the strike or to protect non-striking employees
as well as property from the strikers”.
[5] On
the 8
th
March the appellant, on the one hand, and, the respondent and NEHAWU,
on the other, concluded a picketing agreement. On the same
day the
respondent issued a strike notice to the appellant as required by the
provisions of s 64(1)(b) of the Act. The notice was
in these terms:
“We
hereby give you notice of our intention to commence a full blown
strike on Tuesday 14 March 2000 at 7:45 and Wednesday 15 March
2000
inclusive.
From
Thursday 16 March 2000 all strikers will be back at work. However,
during the day union members will embark on the following
industrial
action:
Picketing,
go slow, work to rule”.
[6] Thereafter,
but still on the 8
th
March, the appellant issued a
lock-out
notice. The lock-out notice was headed:
“Notice
of defensive lock-out”
.
The second and third paragraphs of that notice read thus:-
“
We
hereby give you notice of our intention to embark on a lock-out of
your unions’ members from the time following the commencement
of
such strike as referred to above and
in
response
thereto as envisaged in sections 64(1)(c) and 76(1)(b) of the Labour
Relations Act, 1995 (“the Act”). Such lock-out shall continue
until such time as the unions accept the Technikon Management’s
last wage offer dated 13 January 2000.
In
the event of such a lock-out the terms of the picketing agreement
will not apply as all of your members will be excluded from entry
to
the Technikon premises. Your members and your representatives will
however still be required to comply with the code of good practice
relating to picketing in response to a lock-out read with the
provisions of section 69 of the Act”
.
[7] It
appears that the appellant’s lock-out notice gave rise to some
confusion. The respondent’s attorneys responded to it on
behalf of
the respondent by a letter dated the 10
th
March. In that letter they suggested that the lock-out notice was
defective because it contended that the lock-out was a defensive
lock-out and yet it referred to s 64(1)(c) - which, the respondent’s
attorneys maintained, applied to offensive lock-outs only.
They
expressed the view that a defensive lock-out was only provided for in
s 64(3)(d) of the Act which could only be invoked in response
to an
unprotected strike. They argued that, as the respondent’s strike
was a protected one, the appellant could not institute a
lock-out in
terms of s 64(3)(d) nor could the appellant employ temporary
replacement labour in terms of s 76(1)(b). They sought an
undertaking
from the appellant that it would not proceed with its intended
lock-out. They threatened that, if the appellant did not
give them
such undertaking, they would launch an urgent application for an
interdict in the court a quo.
[8] The
appellant replied to the letter of the 10
th
March from the respondent’s attorneys by an undated letter. In that
letter the appellant refused to give the undertaking required
by the
respondent’s attorneys. It maintained that it was within its rights
to seek to institute a lock-out and said it would oppose
any
application to the Labour Court. In par 4 read with par 5.1. of the
letter, the appellant said that its lock-out would not be
of an
“offensive
nature”
but would be a
“defensive
lock-out”
and would be
”in
response to”
the union’s strike. It also said that the purpose of the lock-out
would be to
“force
the members of the two unions to accept the Technikon Management’s
last wage offer dated 13 January 2000"
.
The management reserved its right
“to
rely on the provisions of section 76(1)(b) of the Act regarding
replacement labour”.
Subsequently, the respondent launched the application in the court a
quo on an urgent basis which resulted in the judgment which
is now
appealed against.
The
judgment of the court a quo and its reasons
[9] The
court a quo found that the intended lock-out:-
(a)
was an offensive lock-out;
(b)
was not
“in
response to”
the strike;
(c)
would be in breach of the picketing agreement ;
(d)
would not have been consistent with the picketing agreement if all
the respondent’s members were excluded from the premises;
and,
(e)
would have been permissible if the respondent’s members had
breached the picketing agreement.
[10] The
Court a quo also made certain observations or findings which, in my
view, informed its ultimate judgement. These were that:-
(a) whether
a lock-out was offensive or defensive was
“characterised by the primary purpose for which it is instituted;”
(b) If
the primary purpose of a lock-out was to compel the trade union and
employees to meet the employer’s demand, then it was
offensive;
(c) If
the primary purpose of a lock-out was to protect the employer’s
rights to property, person and economic activity, the lock-out
was a
defensive lock-out;
(d) if
a strike were to be accompanied by intimidation or were to take the
form of a
“work
to rule”
or
“go-slow
”
that disrupted the operations of the employer, the latter may resort
to a lock-out to protect itself.
The
Court a quo then made an order declaring the appellant’s lock-out
notice invalid and interdicted the appellants from locking-out
the
respondent’s members and from employing temporary replacement
labour.
The
appeal
[11] Before
us Mr Kennedy, who appeared for the appellant, submitted that there
were two questions that the court a quo had to deal
with. The one, he
submitted, was whether or not the appellant was entitled to institute
a lock-out. The second, he submitted, was
whether the respondent
would be entitled to employ temporary replacement labour during that
lock-out. He submitted that, with regard
to the first question, it
was not necessary to categorise the lock-out either as an offensive
or defensive lock-out. With regard
to the second question, he
submitted that the categorisation was necessary. He also submitted
that the lock-out was in response to
a strike as contemplated by
s76(1)(b). Mr Kennedy also submitted that the court a quo erred in
concluding that the lock-out would
have been inconsistent with the
picketing agreement.
[12] Mr
Hennig, who appeared for the respondent, contested Mr Kennedy’s
submissions. He supported the judgment and findings of the
court a
quo. His central argument was that the lock-out which the appellant
sought to institute was an offensive lock-out and not
a defensive
lock-out. He submitted that the Act did not permit the employment of
replacement labour during an offensive lock-out.
He also submitted
that the Act permitted a defensive lock-out only under s 64(3)(d)
where it could only be resorted to by an employer
in response to an
unprotected strike.
[13] S
76(1)(b) of the Act precludes an employer from employing replacement
labour during a lock-out to perform the work of locked-out
employees
unless the lock-out is in response to a strike. Mr Hennig finally
submitted that s76(b) must be read so as to apply to
a lock-out that
is in response to an unprotected strike only and not also to one
which is protected. He also submitted that the provisions
of the
picketing agreement precluded the appellant from instituting a
lock-out. I propose to consider the question whether the appellant
was precluded by the provisions of the picketing agreement from
instituting a lock-out first and to thereafter consider the questions
whether the lock-out was a protected one and whether the appellant
was entitled to employ temporary replacement labour.
WAS
THE APPELLANT PRECLUDED BY THE PICKETING AGREEMENT FROM INSTITUTING A
LOCK-OUT?
[14] In
considering whether the picketing agreement precluded the institution
of a lock-out, I think it is necessary to bear in mind
what a
lock-out is under the Act. The Act defines a lock-out in s213 as
meaning:
“
The
exclusion by an employer of employees from the employer’s workplace
for the purpose of compelling the employees to accept a
demand in
respect of any matter of mutual interest between employer and
employee, whether or not the employer breaches those employees’
contracts of employment in the course of or for the purpose of that
exclusion”.
[15] It
is clear from the definition of a lock-out in the Act that a lock-out
has three essential elements. They are that:
(a) there
must be an exclusion of employees by the employer from the employer’s
workplace, and,
(b) the
purpose of the exclusion of employees from the workplace must be to
compel them to accept the employer’s demand, and,
(c) the
demand must be in respect of any matter of mutual interest between
employer and employee.
(That
part of the lock-out definition that refers to a breach of contracts
of employment is not relevant for present purposes.)
[16] In
the light of the above it goes without saying that, for a lock-out to
exist, the exclusion of employees from the employer’s
workplace,
must be for the authorised purpose. The authorised purpose is to
compel the employees to accept the employer’s demand
in respect of
a matter of mutual interest between employer and employee. This does
not mean that there cannot be an exclusion of
employees from premises
for a purpose other than the purpose in the definition of a lock-out.
An employer has a right at common law
as owner or lawful occupier of
premisses to refuse employees entry into the workplace where the
purpose of their coming into the
workplace is not to perform their
duties. Also if, after employees have entered the workplace, they
refuse to work, the employer
would be entitled to exclude them from
the workplace.
[17] In
this case the respondent’s members were about to go on strike when
the appellant decided to exclude them from the workplace
as part of a
lock-out. Contrary to the suggestion made by the court a quo, the
strikers need not have committed acts of violence
or misconduct or
threatened the lives or safety of management or of non striking
employees before the employer could exercise this
right. Obviously
the employer’s case for excluding the strikers from the premises is
stronger where this has occurred.
[18] Subject
to the picketing agreement, the appellant could have excluded the
respondent’s members from the premises without having
to resort to
a lock-out. However, it would appear that the employer’s common law
right has been qualified or amended by the provisions
of s 69(2)(b)
read with ss(3) of the Act. S 69(2)(b) requires that the employer’s
permission be obtained before picketing can be
conducted on the
employer’s premises. Ss(3) provides that an employer may not
unreasonably withhold its consent in this regard.
The CCMA has power
to overrule the employer should it find that the latter’s refusal
to give consent is unreasonable.
[19]
The lock-out notice in this matter said that the exclusion from
premises would continue until the employees had accepted the
appellant’s final wage offer. The respondent argued, and, the court
a quo found, that that purpose rendered the lock-out notice
ambiguous. I can find nothing ambiguous about a lock-out notice which
says the exclusion from premises is for that purpose because
every
lock-out notice has to say exactly that as that is an element of a
lock-out as defined in the Act.
[18] Whether
or not the picketing agreement precluded the appellant from
instituting a lock-out depends upon the construction of the
provisions of the picketing agreement. In this regard Mr Hennig, for
the respondent, referred us to certain provisions of the picketing
agreement in support of his submission. The provisions he referred us
to are those of clauses
1,2,
2.7, 6.1, 6.2, 3.2, 4.1
and
4.2.
In clause
2
of the picketing agreement the parties said they
“commit
themselves to resolving any dispute relating to this agreement by
following the dispute resolution procedures”
in
clause 6. Clause 2.7. provides that
“employees
not participating in the strike will not be prevented from working
nor will their vehicle (sic) or visitors or students
entering or
leaving the employer premises be prevented from doing so”
.
Clause 6 provides a dispute resolution procedure for disputes arising
out of the picketing agreement.
[19] Clause
3.2 provides that
“striking
employees not participating in a picket at any picketing point shall
confine themselves to the garden area near the main
entrance, between
A and H Blocks of the [Appellant’s] premises”
.
I think it can immediately be said that clause 3.2 cannot be said to
preclude the appellant from instituting a lock-out because,
quite
clearly, it does not give the striking employees any right against
the appellant. On the contrary it places an obligation on
them as
against the appellant. It was also stated that, because clause 4.1
precluded intervention with striking employees in any
manner, the
institution of a lock-out by the appellant constituted such an
intervention and was, therefore, not permissible. I do
not think that
this covers legal intervention. It must have been intended for an
unlawful intervention.
[20] There
is no express provision in the picketing agreement to the effect that
the appellant would not institute a lock-out. It
is true that there
are provisions to the effect that the parties would not prevent
non-striking employees from working or entering
the premises.
However, the agreement makes no reference to a situation where the
purpose of this may be to compel the employees to
accept the
appellant’s final offer on wages which would be the purpose if the
exclusion from premises was part of a lock-out. I
am, therefore, of
the opinion that, at best for the respondents, those provisions would
apply to an exclusion which is not part of
a lock-out and would not
apply to an exclusion resorted to as part of a lock-out. With regard
to clauses 2 and 6, these do not apply
because it is not the
appellant’s case that the respondents had acted in breach of the
picketing agreement and that such breach
entitled the appellant to
institute the lock-out.
[21] The
argument advanced by the respondents also raises the question
whether, by being party to the picketing agreement, the appellant
waived its right to institute a lock-out in this matter. The
respondents submitted that the appellant waived its right in this
regard.
The appellant disputed the correctness of this submission and
argued that, on the facts of this case, no waiver had been
established.
I agree, for the reasons that follow, that, on the facts
of this case, it has not been established that the appellant waived
its
right to institute a lock-out.
[22] It
must be borne in mind that a waiver is not lightly inferred. The
appellant’s senior managers found copies of the first strike
notice
under their doors on the morning of the 8
th
March. On the same day the appellant responded to the strike notice
with a memorandum. Among other things the appellant said in that
memorandum that it would institute a lock-out in response to the
strike if the respondent persisted with the strike action. Although
the parties concluded a picketing agreement, the provisions of s
69(4),(5) and (6) of the Act, give the CCMA power to impose picketing
rules on parties if they are unable to agree on rules by themselves.
The picketing rules the CCMA could impose could include a rule
permitting the strikers to picket on the appellant’s premises if
the appellant’s refusal in this regard was unreasonable. The
appellant did not have a right to deny the strikers the permission to
picket on the premises where to do so would be unreasonable.
In those
circumstances it is understandable why the appellant may have
opted
to give its consent because failure to do so would in any event have
led to the CCMA imposing this on it.
[23]
I
also cannot see why the appellant would have wanted to waive its
right to lock-out without getting anything in return from the
respondent.
The parties were about to enter what Conradie J would
describe as a boxing ring (see
Metal
& Electrical Workers union of SA v National Panasonic Co
(1991) 12 ILJ 533 (C) at 536E-G). If the appellant waived its right
to lock-out, it would amount to an agreement by a boxer to have
his
hands tied behind his back for the duration of a boxing match which
would give his opponent the opportunity to punch him as he
pleased in
the knowledge that he would not be able to throw punches of his own
and to ward off punches. No boxer would ever do that.
I do not think
there can be any basis for saying that the appellant put itself in
such a position when it concluded the picketing
agreement. I
therefore conclude that the appellant was not precluded by the
picketing agreement from instituting the lock-out. The
next question
to consider is whether or not the lock-out was a protected lock-out
and whether the appellant was entitled to employ
temporary
replacement labour during that lock-out.
Was
the lock-out protected and was the appellant entitled to employ
temporary replacement labour?
[24] Whether
or not the lock-out in this case was a protected lock-out in terms of
the Act is fundamental to the determination of
this appeal. If the
lock-out was not a protected one, the appeal must fail because then
the appellant was not entitled to exclude
the respondent’s members
from its premises nor was it entitled to employ replacement labour.
The respondent advanced two grounds
in support of its submission that
the lock-out was unprotected and that the employment of replacement
labour would have been unlawful.
The first one was that the lock-out
notice was invalid for ambiguity. The second one was that the
lock-out was an offensive lock-out
and not a defensive lock-out. It
argued that the appellant would only be entitled to employ
replacement labour if the lock-out was
a defensive lock-out. These
two grounds require to be dealt with together.
[25] The
Act does not anywhere refer to the terms: defensive lock-out and
offensive lock-out. However, it does refer in s76(1)(b)
to a lock-out
that is
”
in response to a strike”
and in s64(3)(d) to a lock-out in response to a strike that does not
comply with the Act. These terms are used frequently in labour
law
parlance. However, care must be taken to ensure that pre-occupation
with whether a lock-out is an
offensive
or a defensive lock-out does not have the effect that the
focus
is removed from where it should rightly be, namely, in the Act. In
other words the true enquiry, which is whether the conduct
complained
of is permissible in terms of the Act, should never be lost sight of.
I think that the court a quo may have fallen into
this error.
[26] As
indicated above Mr Kennedy submitted that categorisation of the
lock-out as offensive or defensive was not necessary for
the
determination of the question whether the lock-out was or was not
protected but was necessary for the determination of the question
whether the appellant was or was not entitled to employ temporary
replacement labour. Subject to one qualification, I agree with
this.
The qualification is that, since the Act refers to a lock-out in
response to a strike (see s 64(3)(d) and 76(b), it would be
more
advisable to use that terminology because there is a possibility that
a defensive lock-out may not necessarily be synonymous
with a
lock-out in response to a strike.
[27] The
respondent submitted that the lock-out notice was invalid because it
was ambiguous. Its ambiguity was said to arise from
the fact that its
heading referred to it as a
“Notice
of a defensive lock-out”
and yet the text stated that it was a notice in terms of s64(1)(c)
which, so submitted the respondent, was only applicable to an
offensive lock-out. It was also submitted that the fact that the
notice was to the effect that the lock-out would continue until
such
time as the unions had accepted the appellant’s wage offer made the
lock-out an offensive lock-out.
[28] In
my judgment there is nothing confusing or ambiguous in the lock-out
notice. Such confusion and ambiguity as there might be
are not based
on the notice but on the respondent’s erroneous understanding of
the legal position. To say the lock-out notice in
terms of s 64(1)(c)
is only applicable to an offensive lock-out is erroneous. S 64(1)
confers on an employer the recourse to a lock-out
if certain
requirements are met. It also confers on employees the right to
strike if certain requirements are met. It makes no reference
to an
offensive lock-out nor does it make a reference to a defensive
lock-out. The only situation in respect of which the Act contemplates
that a lock-out may be instituted without the notice required by
s64(1)(c) is where s64(3)(d) applies. In all other situations a
notice in terms of s64(1)(c) must be given before a lock-out can be
instituted irrespective of the label such a lock-out is given.
[29] S
64 also does not say that once employees have given notice to strike
or once they have begun with their strike before the employer
can
either give its notice to lock-out or can institute its lock-out, the
employer can no longer exercise its recourse to lock-out
under s64(1)
even if all the requirements have been met. Equally, there is no
provision to the effect that, if the employer has given
the notice to
lock-out first or has begun with its lock-out before the employees
can begin with their strike or can give their notice
to strike, the
employees lose their right to strike. This, therefore, means that a
lock-out may commence before, simultaneously with,
or, after, a
strike has commenced. It also means that a lock-out and a strike can
run concurrently between the same parties. What
this would mean in
practice is that the strikers would be excluded from the premises of
the employer. Since every lock-out notice
must be a notice in terms
of s64(1)(c), it follows that the reference to s64(1)(c) in the
lock-out notice in this case could not
have rendered the notice
ambiguous.
[30] Another
basis on which the respondent submitted that the lock-out provided
for in s 64(1) was an offensive lock-out and not a
defensive lock-out
was that it believed that a defensive lock-out was only available to
an employer under s64(3)(d). This, in turn,
meant that it was only
available if the employer was faced with an unprotected strike and
that it was not available to the employer
if the strike that the
employer was faced with was a protected one.
[31] S64(3)(d)
provides that the requirements of s64(1) do not apply to a strike or
a lock-out if
“the
employer locks out its employees in response to their taking part in
a strike that does not conform with the provisions of
this Chapter.”
It
was submitted that the provisions of s64(3)(d) must be read in
conjunction with the provisions of s76(1)(b). S 76(1)(b)provides
that
an employer may not take into employment any person”
for
the purpose of performing the work of any employee who is locked out,
unless the lock-out is in response to a strike”.
[32] It
was submitted that we had to apply a purposive interpretation to
s76(1)(b) and read the adjective
“unprotected”
into s76(1)(b) just before the word “
strike”
with
the result that
“strike”
would become
“unprotected
strike”
.
It was submitted that we had to do this because, if the word
“strike”
in s76(1)(b) also included a protected strike, that would render the
workers’ right to strike nugatory and would reduce collective
bargaining to collective begging. Mr Hennig submitted that that would
be because an employer could employ temporary replacement labour
even
when the strike to which it was responding was a protected strike
which, so ran the submission, could never have been intended
by the
legislature.
[33] The
respondent’s submission cannot be upheld. Employees have the right
to strike and employers have a recourse to lock-out.
In both cases
the right to strike and the recourse to lock-out are subject to the
limitations set out in s65. In other words, there
is no right to
strike where any one of the limitations in s65 applies. Accordingly,
subject to the limitations to the recourse to
lock-out in s65, an
employer has recourse to lock-out which it may exercise when the
requirements of s64(1) have been complied with
or even when they have
not been complied with if any one of the exemptions in s64(3)
applies. That is the legal position in terms
of the Act.
[34] It
has not been argued that any of the limitations to the recourse to
lock-out in s65 applies to this case nor has it been argued
that any
of the exemptions in s64(3) applies. The question that arises
therefore is: Had the requirements of s64(1) been met when
the
appellant sought to institute the lock-out? The challenge to the
legality of the lock-out was only based in turn on the challenge
of
the validity of the lock-out notice. I have already found that that
challenge could not be upheld. In those circumstances I hold
that the
requirements of s64(1) were met. The consequence of this finding is
that the appellant was entitled to institute the lock-out.
[35] I
have already stated that there is no statutory basis for the
suggestion that the lock-out contemplated under s64(1) is only
an
offensive lock-out. S 64(1) contemplates any lock-out. Mr Hennig
referred to s64(3)(d). S 64(3)(d) says nothing more in the case
of a
lock-out than that an employer may institute a lock-out without
complying with the requirements of s64(1) if the lock-out is
in
response to an unprotected strike. The policy behind this is that, if
employees subject an employer to an unprotected strike (i.e.
one
which does not conform with the provisions of chapter IV), the
employer may also respond with a lock-out without having to first
comply with the requirements of s64(1) because, in that case, the
employer has to act urgently in self-defence, as it were. If the
employer had to first comply with the requirements of s 64(1) before
it could respond with a lock-out to an unprotected strike, that
would
take too long. By the time the requirements of s64(1) were met, the
lock-out could no longer be effective. That is if the employer’s
business would still be there as the strike would have been going on
for quite some time.
[36] An
employer is only entitled to resort to a lock-out under s64(3)(d)
where that is in response to an unprotected strike. Although
it is
clear that a s64(3)(d) lock-out is a shield with which an employer
can defend itself and is not a spear with which to attack,
and, may,
therefore, be referred to as a defensive lock-out, it does not follow
that that is the only situation in which a defensive
lock-out is
available to an employer under the Act. As I have already said,
s64(1) permits both offensive and defensive lock-outs
whereas
s64(3)(d) only contemplates a defensive lock-out and, even then, only
if the strike to which the lock-out is a response is
an unprotected
strike. Whereas the lock-out in s64(3)(d) can only be used if there
is an unprotected strike, an employer is entitled
to institute a
lock-out under s64(1) even if the strike resorted to by the employees
is a protected one. The respondent’s argument
that an employer has
no right to institute a lock-out in response to a protected strike is
devoid of any merit.
[37] As
stated above, it was also argued on behalf of the respondent that the
appellant would not be entitled to employ temporary
replacement
labour during the lock-out which the appellant was planning to
initiate. The basis advanced for this argument was that
the only
situation in which an employer has a right to employ replacement
labour is when it institutes a lock-out in response to
an unprotected
strike. This was based on linking the provisions of s76(1)(b) and
those of s64(3)(d). It is true that an employer
has a right to employ
temporary replacement labour when there is a lock-out in response to
a strike. It is not true that that is
limited to a situation where
the strike is unprotected and is not open to an employer when the
strike is protected.
[38] The
submission by Mr Hennig that we should resort to purposive
interpretation in reading s76(1)(b) has no basis. The mere fact
that
the ordinary meaning of a word in a statute does not suit one’s
case is no justification to then seek to avoid the ordinary
meaning
of that word. That provides no justifiable basis to invoke purposive
interpretation. Mr Hennig was not able to point out
any ambiguity in
s67(1)(b) nor was he able to suggest any absurdity that would result
if the word
“strike”
was read as meaning any strike - protected or unprotected.
[39] It
seems warranted that I should repeat what I said two years ago in the
Labour Court about purposive interpretation. In
Transportation
Motor Spares v National Union of Metal Workers of SA & Others
(1999) 20 ILJ 690 (LC) at 699B I said:-
“While
purposive interpretation has much to its credit, nevertheless, it
must be adopted in appropriate cases. Purposive interpretation
is no
licence to ignore the language used in the statute which is the
subject of interpretation”
.
There is, accordingly no justification for reading into s76(1)(b) a
word which is not there.
[40] The
rationale behind s76(1)(b) is that if an employer decides to
institute a lock-out as the aggressor in the fight between itself
and
employees or a union, it may not employ temporary replacement labour.
That is to discourage the resort by employers to lock-outs.
The
rationale is to try and let employers resort to lock-outs only in
those circumstances where they will be prepared to do without
replacement labour (i.e. when they are the aggressors) or where they
are forced to in self-defence in the sense that the lock-out
is
“in
response to”
a strike by the union and the employees - in other words, where the
union and the employees are the aggressors.
[41] The
policy is one that also says to unions and employees: Do not lightly
resort to a strike when a dispute has arisen because,
in the absence
of a strike, the employer may not employ replacement labour even if
it institutes a lock-out but, if you strike,
the employer will be
able to employ replacement labour - with or without a lock-out. The
sum total of all this is that the policy
is to encourage parties to
disputes to try and reach agreement on their disputes and a strike or
lock-out should be the last resort
when all reasonable attempts to
reach agreement have failed.
[42] The
next question which requires decision is whether the lock-out was in
response to a strike as contemplated in s76(1)(b). This
is important
for the question whether or not the appellant was entitled to employ
replacement labour during the lock-out. I think
it is as clear as day
light in this case that the appellant’s lock-out was in response to
the strike which the respondent’s members
had begun with. The
strike notice fixed the date on which the strike would commence. The
lock-out notice said the lock-out would
begin when the strike began.
[43] In
the light of all the above I am satisfied that the court a quo erred
in finding that the appellant was not entitled to institute
the
lock-out it sought to institute and to employ temporary replacement
labour it sought to employ during such lock-out. Accordingly
the
appeal must succeed. Although the respondent had throughout sought
that costs should follow the result, during argument Mr Hennig
sought
to change this stance and submitted that there should be no order as
to costs. I have considered his request. It is without
any
justification. Mr Kennedy submitted that on appeal costs should
follow the result. He indicated that he was not pressing for
costs
in the court a quo. I think on appeal the successful party is
entitled to its costs.
[44] In
the premises I make the following order:-
The
appeal succeeds with costs.
The
order of the court a quo is set aside and the following order is
substituted for it:-
“
(a) The
application is dismissed.
(b) There
is to be no order as to costs”
.
___________________
R.
M. M ZONDO
Judge
President
I
agree
__________________
M.
M. JOFFE
Acting
Judge of Appeal
I
agree
__________________
J.
TRAVERSO
Acting
Judge of Appeal
For
the appellant: Adv. Paul Kennedy
Instructed
by: Brink Cohen Le Roux and Roodt Inc
For
the respondent: Mr Hennig
Instructed
by: J.B. Hugo & Cronje
Date
of hearing: 19
th
September 2000
Date
of Judgement: 9
th
November 2000