National Union of Metal Workers of South Africa and others v Highveld Steel And Vanadium Corporation Ltd (JA14/01) [2001] ZALAC 11; 2002 23 ILJ 895 (LAC) (14 September 2001)

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National Union of Metal Workers of South Africa and Others v Highveld Steel and Vanadium Corporation Ltd (JA14/01) [2001] ZALAC 11; 2002 23 ILJ 895 (LAC); [2002] 1 BLLR 13 (LAC) (14 September 2001)

15
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: JA14/01
In the appeal between
NATIONAL UNION OF METAL
1
ST
APPELLANT
WORKERS OF SOUTH AFRICA
THE PERSONS LISTED IN
ANNEXURE
INDIVIDUAL APPELLANTS
“
A” TO THE NOTICE OF MOTION
AND
HIGHVELD STEEL AND
VANADIUM RESPONDENT
CORPORATION LTD
JUDGEMENT
ZONDO JP
Introduction
[1] This is an appeal against a
judgement and order granted by the Labour Court, per Ngcamu AJ, on
the 4
th
October 2000 interdicting certain employees of
the respondent from embarking upon a certain strike that was
imminent at the time.
The first appellant in this matter is the
National Union of Metal Workers of South Africa. I shall refer to it
in this judgement
as
“the union”.
The second and further
appellants are members of the union who are employed by the
respondent. The respondent is a registered company.
It is engaged in
the business of the mining and processing of steel and vanadium
products in Ga-Rankua, North West Province.
[2] The respondent recognises two
trade unions for the purpose of collective bargaining. They are the
first appellant and the Mine
Workers Union. Although the respondent
falls within the jurisdiction of the Metal, Engineering Industries
Bargaining Council, it
is exempted from collective agreements
concluded in that council. It has its own in-house forum where it
bargains with the two
unions annually.
[3] In terms of an established
practice within the respondent, once the respondent has reached an
agreement with the two unions
on amendments to be made to terms and
conditions of employment for the duration of a particular 12 month
period, it and the two
unions formulate a document which reflects
the terms of their agreement. They call such an agreement a house
agreement Such a document
is then issued and publicised in the form
of a brief. It is also sent to the council referred to above. It is
not clear why such
document is sent to the council as well but it
seems that it is to inform the council that the parties have reached
an agreement.
[4] The respondent and the union
held their negotiations for the period July 2000 to June 2001 during
the middle of the year 2000.
Two of the meetings were held on the
6
th
and the 20
th
June 2000. No agreement was
reached at that stage. A dispute arose between the parties on
amendments to be made in the house agreement
in respect of wages and
other terms and conditions of employment for such period. On the 7
th
July 2000 the union referred the dispute to the Metal and
Engineering Industries Bargaining Council. A dispute meeting was
held
on the 17
th
July 2000. The parties failed to reach
agreement at that meeting.
[5] On the 31
st
July
2000 the parties held a further meeting. The respondent’s version
is that at this meeting the parties concluded an agreement
which
settled the dispute. It attached to its founding affidavit a
document marked annexure
“SNM2"
as the document that
reflected the terms of the agreement reached between the parties.
That document is not signed by the parties.
It is a brief which was
prepared by the respondent as reflecting the parties’ agreement.
[6] The appellants dispute the
allegation that at the meeting of the 31
st
July 2000 an
agreement was reached between the parties settling the dispute. They
also deny the respondent’s allegation that
annexure
“SNM2"
reflects an agreement between themselves and the respondent. The
union further states that annexure
“SNM2"
was
circulated by the respondent without first showing the document to
it. It appears that the parties did reach an agreement that
the wage
increase would be 6,5% but each party has a different understanding
of the wage level on which such increase would be
superimposed in
respect of monthly paid employees. The respondent’s position is
that such increase was to be calculated on the
basis of reduced
hours. The union denied that it was ever agreed that such would be
the method of calculation. According to the
respondent, if the
method of calculation adopted by it is used, the effect thereof is
that the increase which the monthly paid
employees will get becomes
3.9%.
[7] On the 17
th
August
2000 the council issued a certificate of outcome to the effect that
the dispute remained unresolved. The respondent complains
that such
certificate was issued despite it having advised the council that it
was of the opinion that no dispute existed between
the parties.
Apparently the certificate was issued on the insistence of the
union.
[8] On the 27
th
September 2000 the union issued a letter to the respondent which,
according to par 14 of the respondent’s founding affidavit,
was
“a
notice of intention to proceed with strike action with effect from
07h00 on 3 October 2000".
The third paragraph of that
letter reflected what the bone of contention between the parties at
that stage was. It reads thus:-
“
Your claim that, last year
the company made mistake in calculating reduction of hours in
respect of staff, and as a result your
company is going to rectify
the mistake and the members falling in that category will suffer
loss of earnings. Effectively they
will receive increase which in
terms of your interpretation will represent 3.9% and not 6.5% is not
acceptable and it is the area
that keeps us apart. Members in this
category are severely prejudiced.”
The further paragraph was simply to
the effect that this category of employees had
to
be
treated in the same manner as the previous year.
It seems
that, on the respondent’s version, to treat the staff in the same
manner as in 1999 would be to perpetuate the alleged
mistake which
it maintained it had made in respect of the 1999/2000 period.
[9] The letter prompted the
respondent to bring an urgent application in the Labour Court to
interdict the planned strike on the
basis that such strike would be
an unprotected strike. The reason advanced by the respondent as to
why such strike would be an
unprotected strike was that the dispute
had been resolved and there was no dispute to go on strike about.
There were two alternative
bases advanced why such strike would be
unprotected. The first alternative was that
“the issue giving
rise to this dispute is regulated in a collective agreement binding
on the respondents.”
It was submitted that a strike over such
an issue was precluded by the provisions of sec 65(1)(a) of the
Labour Relations Act 66
of 1995 (Act NO 66 of 1995) (
“the
Act”
). The second alternative basis was that
“the dispute
between the parties concerns the application
of a collective
agreement, alternatively the interpretation of a collective
agreement”.
It was submitted on behalf of the respondent that
s 24 as read with s65(1)(c) of the Act precluded a strike over such
a dispute
or issue.
[10] After hearing argument the
Labour Court gave a judgement in which it found that the strike
would be an unprotected strike.
It granted a final order declaring
the impending strike not to be in compliance with the requirements
of the Act and interdicting
both participation and promotion of such
strike and ordering the present appellants to pay the costs jointly
and severally the
one paying, the others to be absolved. The basis
of the order of the Labour Court was simply that the issue in
dispute between
the parties was the manner of application of the
agreed wage increase. It said such issue had not been referred to
conciliation
and, because of that, the strike would be unprotected.
[11] The implication in the
judgement of the Labour Court is that the requirement of sec
64(1)(a) of the Act had not been complied
with. Sec 64(1) requires
that a dispute or issue in dispute be referred to the Commission for
Conciliation, Mediation and Arbitration
(
“the CCMA”
) or
to a bargaining council with jurisdiction, for conciliation before
the Act may confer the right to strike. In order to be able
to say
that, the Labour Court must have accepted the version of the
respondent as opposed to that of the appellants, that the dispute
that had been referred to the Council for conciliation had been
resolved.
[12] Before us Mr Barrie, who
appeared for the respondent, indicated that, in opposing the appeal,
he would not pursue the contention
that the dispute had been
resolved. That is the ground of challenge to the strike which
appeared in par 8.1 of the founding affidavit.
He also indicated
that he would not pursue the first alternative ground of challenge,
namely, that
“the issue giving rise to the dispute is regulated
in a collective agreement”
and that a strike over such an
issue was precluded by the provisions of sec 65(1)(a). He indicated
that the reason why he could
not pursue those grounds was that there
were material disputes of fact which could not be resolved on the
papers relating to whether
or not an agreement had been reached
between the parties and on whether or not, if such agreement had
been reached, it resolved
the dispute.
[13] It does not appear that in
the Court a quo interim relief was sought nor does it appear that
there was any request for the
referral of any issues to oral
evidence. Before us no such requests were made either. In those
circumstances, since it is final
relief that is being sought, the
union’s version (that is the version of the respondent in the
Court a quo) must be relied upon
unless it is far fetched or is
untenable. This means that this matter must be decided on the basis
that no agreement was reached
between the parties. The Court a quo
ought also to have decided the matter on the basis of the union’s
version and not on the
basis of the version of the applicant in the
Court a quo as there were material disputes of fact.
[14] It is against the above
background that the only ground which Mr Barrie pursued in support
of his contention that the strike
was unprotected must be
considered. His contention was that
“the dispute between the
parties concerns the application of a collective agreement,
alternatively the interpretation of a collective
agreement”.
He
submitted that a strike over such a dispute was precluded by the
provisions of sec 24 read with sec 65(1)(c) of the Act.
[15] Sec 65(1)(c) of the Act
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 a
lock-out if
“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.”
Sec 24 deals with disputes about collective
agreements. The provisions of sec 24(1) read thus:-
“
24 (1) Every collective
agreement excluding an agency shop agreement concluded in terms of
section 25 or a closed shop agreement
concluded in terms of section
26, must provide for a procedure to resolve any dispute about the
interpretation or application of
the collective agreement. The
procedure must first require the parties to attempt to resolve the
dispute through conciliation and,
if the dispute remains unresolved,
to resolve it through arbitration.”
Ss (2) provides that:
“(I)f
there is a dispute about the interpretation or application of a
collective agreement
,
any party to the dispute may refer the
dispute in writing to the Commission if -
(a) the collective agreement
does not provide for a procedure as required by subsection (1);
(b) the procedure provided for
in the collective agreement is not operative; or
(c) any party to the collective
agreement has frustrated the resolution of the dispute in terms of
the collective agreement.”
[16] It is necessary to determine
what the issue in dispute is in this matter. On the appellants’
version the issue in dispute
is the dispute that was referred to the
council for conciliation. That was a dispute about a wage increase
and other terms and
conditions of employment. On the respondent’s
version the issue in dispute is the application of a collective
agreement. Such
application of the agreement relates to the manner
in which the increase must be calculated. It is clear that, when it
comes to
the wage increase, both parties had agreed in principle
that the increase should
be 6,5%. On the respondent’s
version such increase was to be calculated on the basis of the
reduced hours.
[17] It seems to me that any
agreement on a percentage for a wage increase without an agreement
on the basis for its calculation
is no agreement at all because,
depending on the manner of its calculation, the parties may be
contemplating completely differing
increases in monetary terms. In
those circumstances it would seem that there can be no doubt that
the appellants would be entitled
to resort to a strike and that sec
65(1)(c) would have no application. In any event since the matter
must be decided on the appellants’
version, there is no room for
deciding the matter on the basis that there is an alleged agreement
because that is not the appellants’
version. The appellants’
version is that there is no agreement. If there is no agreement,
that is the end of the respondents’
opposition to the appeal.
[18]
Mr Barrie sought to
circumvent this conclusion by the following reasoning:
In terms of section 213
“dispute”
includes
“an alleged dispute”.
The
respondent alleges that there is a dispute between the parties about
the interpretation of an alleged agreement. There is thus
an alleged
dispute. Therefore section 24(2) of the Act is applicable.
The
answer to this argument is this. The definitions in section 213 are
prefaced
by the phrase:
” unless the context otherwise
indicates”.
The context of section 24 (2) indicates, in my
view, that what is required for the section to be applicable is a
real dispute of
the nature set out, not merely an allegation of a
dispute of that nature by one party on the one-sided assumption that
there is
an agreement. It must be common cause that there is an
agreement before there can be a dispute (albeit an alleged dispute)
about
its interpretation or application. This important factor is
absent in this case. A court
will not interpret or apply an
agreement which may not exist.
[19] In any event, even if there
was room to deal with the matter on the basis that there was an
alleged agreement, I am of the
view that Mr Barrie’s submission
has no merit. What is an alleged agreement? Mr Barrie presented his
argument on the basis that
an alleged agreement is where parties are
in dispute about whether or not there is an agreement. The question
which arises in such
a case is: how can there be a dispute about the
application or interpretation of an agreement between parties who
are at loggerheads
about the existence of the very agreement itself?
This question arises because sec 24(2) of the Act on which Mr
Barrie relied
to contend that the appellants had a right to refer
the issue in dispute in this matter to arbitration requires there to
be
“a dispute about the interpretation or application of a
collective agreement.”
[20] Mr Barrie laid emphasis on a
scenario where two parties have a dispute about whether a certain
agreement applies to certain
people or to a certain category of
people. He submitted that that is a dispute about the application of
such an agreement. In my
view that scenario is different from the
one we have in this matter. In that scenario there is an agreement
and the question is
whether or not such agreement applies to a
particular category of persons. In this matter Mr Barrie’s
argument is not premised
on there being an agreement. It is premised
on there being a dispute about whether or not there is an agreement.
That is a totally
different scenario.
[21] Furthermore ss(1) of sec 24
requires a collective agreement to provide for a procedure to
resolve any dispute about the interpretation
or application of the
collective agreement. It provides that the procedure must first
require the parties to attempt to resolve
the dispute through
conciliation and, if the dispute remains unresolved, through
arbitration. It is clear from this that sec 24
cannot apply unless
there is a collective agreement. A dispute about whether there is a
collective agreement is not enough to trigger
the operation of sec
24. The result of this conclusion is that it cannot be said that
there was a dispute about the application
or interpretation of a
collective agreement between the parties. That being the case, the
only ground on which the respondent opposed
the appeal must fail
with the result that the appeal must succeed. As to costs, both
parties presented their argument on the basis
that costs should
follow the result both on appeal and in the Court a quo.
[22] In the result I make the
following order:-
The
appeal is upheld with costs.
The
order of the Court a quo is set aside and is replaced by the
following one.
“
1. The application is dismissed with costs.”
______________
RMM Zondo
Judge
President
I agree
___________________
K. van
Dijkhorst
Acting
Judge of Appeal
I agree
_________________
R.G. Comrie
Acting
Judge of Appeal
Appearances:
For the appellants : Mr GJ Doble
Instructed by : Cheadle Thompson
& Haysom
For the respondent : Mr Pak le
Roux
Instructed by : Brink Cohen Le
Roux & Roodt Inc
Date of argument : 19 June 2001
Date of Judgement : 14 September
2001