County Fair Foods (Pty) Ltd v Food And Allied Workers Union and others (CA7/00) [2001] ZALAC 1 (15 February 2001)

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County Fair Foods (Pty) Ltd v Food And Allied Workers Union and others (CA7/00) [2001] ZALAC 1; [2001] 5 BLLR 494 (LAC); (2001) 22 ILJ 1103 (LAC) (15 February 2001)

14
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
IN CAPE TOWN)
CASE NO: CA7/00
In
the matter between
COUNTY FAIR FOODS (PTY)
LTD APPELLANT
AND
FOOD AND
ALLIED WORKERS
UNION 1
ST
RESPONDENT
MEMBERS OF FIRST RESPONDENT
2
ND
RESPONDENTS
EMPLOYED BY THE APPELLANT AS
LISTED
IN ANNEXURE “A” TO THE
FOUNDING AFFIDAVIT
_____________________________________________________________
JUDGEMENT
_____________________________________________________________
ZONDO JP
[1] The appellant employs the second
and further respondents at its abattoir at Hocroft in Stellenbosch.
The second and further
respondents are members of the
first respondent which is a registered trade union. The appellant
and the first respondent have been
dealing with each other for many
years. They concluded a recognition agreement with each other in
March 1991. At that time the
Labour Relations Act, 1956, (Act No 28
of 1956) as amended (“
the old Act”
) was in operation.
That Act was repealed when the Labour Relations Act, 1995 (Act No
66 of 1995)
(“the Act”)
was passed. Most sections of the
Act came into operation on the 11
th
November 1996.
[2] The recognition agreement which
the parties concluded in 1991 is a
“collective agreement”
in
terms of the Act. Clauses 11 and 12 of the agreement contain a
dispute procedure to be followed when there is a collective dispute.
It is not necessary to quote the procedure. It suffices to state
that it contemplates the convening of certain meetings and a

referral of such dispute to mediation before there can be a resort
to statutory procedures.
[3] A dispute arose between the
appellant and the respondents in July 1998 in connection with a
rationalisation exercise with which
the appellant was engaged.
Clearly this was a
“ collective dispute”
in terms of the
recognition agreement. The parties held their first dispute meeting
on the 24
th
July 1998. A second meeting was scheduled but
it did not take place. The appellant stated that this was because
the first respondent’s
official failed to arrive timeously.
Apparently the union official arrived about 35 minutes late. The
first respondent says its
official arrived hardly five minutes after
the appellant’s officials had arrived. The first dispute meeting
failed to resolve
the dispute. There are certain disputes of fact in
regard to the second meeting which it is unnecessary to resolve
because I am
prepared to assume, without deciding, that the dispute
procedure in the recognition agreement was not complied with before
the
statutory procedure was resorted to.
[4] In due course the first
respondent referred the dispute to the Commission for Conciliation,
Mediation and Arbitration (“
the CCMA”)
for conciliation.
Two meetings were actually held at which conciliation was attempted
but in the end the dispute remained unresolved.
A certificate of
outcome was subsequently issued to the effect that the dispute
remained unresolved. The first respondent then
gave the appellant a
strike notice as required by sec64(1)(b) of the Act. This prompted
the appellant to launch an urgent application
in the court a quo to
interdict the contemplated strike. The matter came before Mlambo J
who dismissed the application with costs.
He refused leave to
appeal. The appellant then petitioned the Judge President for leave
to appeal. The petition was granted.
[5] The appellant contended that
the contemplated strike would be an unprotected strike and should,
for that reason, be interdicted.
It appears from the judgement of
the learned Judge a quo that the main contention before him was that
the first respondent had
not complied with the dispute procedure
contained in the collective agreement and that, in the absence of
compliance with such
dispute procedure, the strike would be
unprotected. The respondents’ stance was that they had complied
with the dispute procedure
but that, even if they had not complied
with it, they had complied with all the requirements stipulated by
the Act and that, in
those circumstances, their strike would be a
protected strike in terms of the Act.
[6] Before us Mr Rogers, who,
together with Mr Janisch, appeared for the appellant, submitted
that the strike was unprotected because
of the provisions of sec
65(1)(a) of the Act. Sec 65 is headed:
“Limitations on right to
strike or recourse to lock-out”.
Sub-sec (1)(a) states:
“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-
(a)
that person is bound
by a collective agreement that prohibits a strike or a lock-out in
respect of the issue in dispute.”
[7] Mr Rogers correctly submitted
that the respondents were bound by the collective agreement. He
further submitted that the collective
agreement prohibited a strike
in respect of the issue in dispute in this case. Mr Rogers submitted
that the provisions of sec
65(1)(a) were wide enough to include a
situation where a party was bound to follow the procedure set out in
a collective agreement
before it could resort to a strike over a
specific issue in dispute. He contended that in this case the
respondents were required
to have observed the dispute procedure set
out in the collective agreement before there could be a resort to
strike action and
that their failure to do so meant that the strike
was prohibited to terms of sec 65(1)(a). Mr Rogers submitted that
sec 65(1)(a)
means that striking over a specific issue is
temporarily not permitted until certain procedures agreed upon have
been exhausted
but would be permitted thereafter.
[8] In order to do justice to Mr
Rogers’ argument, it is necessary to examine the nature of the
prohibitions relating to strikes
in the Act. In certain
circumstances strikes and lock-outs are absolutely prohibited. Thus
sec 65(1)(d)(i) and (ii) provide that
not person may take part in a
strike or a lock-out or in any conduct in contemplation or
furtherance of a strike ro lock-out if
that person is engaged in an
essential service or a maintenance service. Such a person simply has
no right to strike or recourse
to lock-out. This depends neither on
the nature of the dispute nor on the timing of the strike nor on
whether there has been compliance
with certain procedures. There is
simply no right to strike and no recourse to lock-out in such cases.
Instead of the right to
strike and the recourse to lock-out, the Act
provides for the right to refer disputes of interest to arbitration.
(Sec 74(4)).
[9] The Act makes provision for
situations where strikes and lock-outs are not absolutely
prohibited, but are permissible, subject
to certain conditions and
qualifications. The Act identifies certain matters over which
strikes and lock-outs are not permitted
even if the parties are not
involved in an essential service or maintenance service. In other
words a party may not exercise the
right to strike or the recourse
to lock-out in respect of certain types of disputes. That is what is
provided for in sec 65(1)(a)
of the Act.
[10] There are also situations
where the Act prohibits strikes and lock-outs not because the type
of dispute involved is an impermissible
type of dispute as such but
because the Act considers that another process is appropriate for
the resolution of such disputes.
In this regard reference can be
made to sec 65(1)(b) and (c). Sec 65(1)(b) precludes strikes and
lock-outs by a person who
“is bound by an agreement that
requires the issue in dispute to be referred to arbitration”
whereas sec 65(1)(c) precludes strikes and lock-outs where the
issue in dispute is one that
“a party has the right to refer to
arbitration or to the Labour Court in terms of this Act”.
[11] The Act also deals with
situations where an arbitration award, a collective agreement, or
determination made by the Minister
of Labour in terms of sec 44 of
the Act or a determination made in terms of the Wage Act regulates
the issue in dispute. (Sec 65(3)(a)
and (b). These determinations
usually operate for specified periods but may be extended from time
to time. Then there are those
situations where there is a right to
strike and a recourse to lock-out but such can only be exercised
after certain procedural
requirements have been met. That is
provided for in sec 64(1) of the Act. Lastly, the Act also
contemplates situations where a
party is exempted from first
complying with the procedures set out in sec 64(1)before striking or
locking-out. Those situations
are provided for in sec 64(3).
[12] Mr Rogers’ submission was
that the wording of sec 65(1)(a) includes both the situation where
the type of dispute over which
a union wants to call a strike is
prohibited by a collective agreement and one where a collective
agreement provides that in respect
of certain types of disputes over
which there can be strikes, there may be no strike until a certain
dispute procedure has been
exhausted. There is no merit in this
submission. Indeed, the submission is based on a failure to
appreciate the scheme of the Act.
[13] The provisions of sec 65(1)(a)
are clear. They simply recognise that there may be certain types of
disputes which parties may
agree in a collective agreement should
not be the subject of strikes and lock-outs. The section provides
that there may be no strikes
and lock-outs about disputes in respect
of which parties have agreed in a collective agreement that there
should be no strikes
and lock-outs. Moreover, Mr Rogers’
interpretation would render
pro non scripto
the words
“in
respect of the issue in dispute”
in s 65(1)(a) and would,
probably, require the alteration of the words
“a strike or
lock”
to read
“the strike or lock-out.”
[14] The distinction between a
prohibition of a strike because of the substantive nature of the
dispute and because of a temporary
procedural prohibition is evident
from the definition of
“issue in dispute”
in sec 213. The
phrase is defined, 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”.
It is clear form
this definition that an issue in dispute concerns a matter of
substance which forms
“the demand, the grievance or the
dispute”.
For these reasons Mr Rogers’ submission falls to
be rejected.
[15] The main point on which this
matter was argued in the Court a quo appears to have been that, even
though the requirements of
the Act had been complied with, the
respondents had not complied with the dispute procedure provided for
in the collective agreement.
Mlambo J rejected this argument. In
doing so he followed Landman J in
Columbus Joint Venture t/a
Columbus Stainless Steel v National Union of Metal Workers of South
Africa (1998) 19 ILJ 279 (L C
). In the appellants’ heads of
argument this contention was pursued. Although it was not pursued in
argument, it was not abandoned.
In the light of this it requires to
be dealt with in this judgement.
[16] In my judgement there is an
insurmountable difficulty with the appellant’s contention. The Act
sets out specific requirements
which must be met in order for an
employee to acquire the right to strike. Once those requirements
have been complied with, the
Act confers a certain protection and
status on the strike. That is the protection and status of a
protected strike as defined in
sec 67(1). Sec 67(1) provides:
“In
this Chapter, ‘protected strike’ means a strike
that
complies with the provisions of this Chapter
and
‘protected lock-out’ means a lock-out that complies with the
provisions of this chapter”
(my underlining). From this it will
be seen that the only requirement for a strike to acquire the status
of a protected strike is
that it must comply with the provisions of
the chapter on strikes and lock-outs in the Act. Sec 64(3)(b)
provides in effect that,
if a strike conforms with the procedures in
a collective agreement, the requirements of sec 64(1) of the Act
need not be complied
with. There are also other provisions which
deal with situations which exempt a party from having to comply with
the requirements
of sec 64(1) incertain situations. (See
64(3)(a),(c),(d) and (e)).
[17] It is clear from the
provisions of sec 64(3)(b) that the legislature did consider a
situation where a party complies with procedures
in a collective
agreement but not with the requirements of the Act and decided that,
in such a case, such party should not be required
to comply with
another procedure, namely, the statutory pre-strike procedure before
a strike could be resorted to. This was one
of the deficiencies of
the strike procedures under the old Act. Under that Act a party who
had complied with a domestic pre-strike
procedure was required to
also comply with the statutory procedure before it could acquire the
right to strike. This was one of
the reasons why the ILO’s
Fact-Finding and Conciliation Commission on freedom of association
concerning the Republic of South
Africa criticised the South African
pre-strike procedures under the old Act in its report as being
inconsistent with freedom of
association. (See (1992) 13 ILJ 739 at
755-756 at par 644).
[18] Once a strike has been
conferred with the status of a protected strike, various legal
consequences flow from that. One of these
is that participation in
such strike is neither a delict nor a breach of contract. (See
67(2)). Another is that a person who is
participating in such a
strike is immune from any civil legal proceedings in respect of his
participation in such strike and in
respect of any conduct in
furtherance of such strike. Thus sec 67(6) provides:
“Civil
legal proceedings may not be instituted against any person for-
(a) participating in a protected
strike or a protected lock-out; or
(b) any conduct in contemplation
or in furtherance of a protected strike or a protected lock-out.”
[19] The only exception to sec
67(2) and (6) made by the Act is in respect of conduct which
constitutes a criminal offence. (Sec
67(8)). It is therefore clear
that, once it is accepted that there has been compliance with the
requirements of the chapter on
strikes and lock-outs, the strike is
a protected strike and no civil proceedings can be entertained in
regard to such strike.
[20] What the legislature has
sought to achieve is to give parties a choice of either following a
pre-strike dispute procedure
contained in a collective agreement or
following the statutory procedure in sec 64(1). Compliance with
either procedure suffices
to confer on employees the right to strike
and the resultant strike acquires the status of a protected strike
with all the benefits
and consequences which flow from such status.
I have considered the question whether there could be any basis on
which, applying
purposive interpretation, it could be said that a
strike which has been resorted to without prior compliance with a
procedure in
a collective agreement but has complied with the
procedure of sec 64(1) of the Act can nevertheless be said not to be
a protected
strike. I do not think that that can be said without the
court unjustifiably usurping the legislature’s legislative
function.
In those circumstances I conclude that this point must
also fail.
[21] It follows that the appeal
falls to be dismissed. With regard to the issue of costs, both
parties argued the matter on the
basis that costs should follow the
result. Mr Benjamin, who appeared for the respondents, asked that,
if the appeal were dismissed,
the respondents should be awarded
costs of two attorneys. Mr Benjamin was accompanied in court by
another attorney. In these circumstances
the respondents are
entitled to the costs of the appearance of Mr Benjamin who is a
senior attorney as well as the costs of the
attendance of an
instructing attorney which costs must be taxed as if Mr Benjamin
were a Senior Junior advocate appearing in the
Supreme Court of
Appeal and his instructing attorney had been in attendance in court
with him.
[22] In the result I make the
following order:-
(a) The appeal is dismissed with
costs, such costs to be taxed as if Mr Benjamin was a Senior Junior
advocate appearing in the
Supreme Court of Appeal with an
instructing attorney in attendance.
____________________
RMM Zondo
JUDGE PRESIDENT
I agree
__________________________
E.L. GOLDSTEIN
ACTING JUDGE OF APPEAL
I agree
__________________________
D.M. DAVIS
ACTING JUDGE OF APPEAL
Appearances:
For the Appellant: Mr O. Rogers SC
(with Mr Jarnisch)
Instructed by: Cliffe Dekker
Fuller Moore Inc
For the respondent: Mr P. Benjamin
Instructed by: Cheadle Thompson &
Haysom
Date of hearing: 29
th
November 2000
Date of Judgement:
15
th
February 2001