Bader Bop (Pty) Ltd v National Union of Metal and Allied Workers of SA and Others (JA50/00) [2001] ZALAC 27 (29 November 2001)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2001
>>
[2001] ZALAC 27
|

|

Bader Bop (Pty) Ltd v National Union of Metal and Allied Workers of SA and Others (JA50/00) [2001] ZALAC 27; [2002] 2 BLLR 139 (LAC); (2002) 23 ILJ 104 (LAC) (29 November 2001)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held
in Johannesburg CASE NO: JA50/00
In
the appeal between
Bader
Bop (Pty) Ltd Appellant
And
National
Union of Metal and
Allied
Workers of SA and Others Respondents
JUDGEMENT
__________________________________________________________
______
ZONDO
JP
Introduction
[1] I
have had the benefit of reading the separate judgements prepared by
my Colleagues Du Plessis AJA and Davis AJA. Like Du Plessis
AJA, I
have come to the conclusion that the appeal should be upheld with
costs and that the order of the Court a quo should be set
aside and
replaced with one granting the application with costs. Accordingly I
agree with the order proposed by Du Plessis AJA.
I set out below my
reasons for coming to this conclusion. It is not necessary to set out
all the facts of this matter as that has
been adequately done in Du
Plessis AJA’s judgement. For that reason I shall only refer to
those facts that I consider necessary
to ensure a proper
understanding of this judgement.
Brief
facts
[2]
The appellant employs about 1108 employees in the workplace that is
affected by the dispute in this matter. 982 of them are semi-skilled
or unskilled, and, 126 are administrative and technical staff. A
registered trade union known, for short, as GIWUSA has as its members
the majority of the employees of the appellant in the workplace. The
first respondent, a registered trade union, is a minority union
in
the workplace in the sense that it has as its members less than half
the total number of employees employed by the appellant;
in fact its
membership is said to be about 26% of the total workforce.
[3]
The appellant has granted GIWUSA, as the majority union, the
organisational rights provided for in sec 14 of the Labour Relations
Act (
“the
Act”
).
The first respondent has been granted the organisational rights
provided for in s12 and s13 but not those provided for in s14.
The
organisational rights provided for in s12 relate to access by a
registered trade union that is
“sufficiently
representative”
to the premisses of an employer. The organisational rights provided
for in s13 relate
to
the deduction of union subscriptions or levies from employees who are
members of a registered trade union that is
“sufficiently
representative”
and the remittance of such deductions to such trade union. The
organisational rights provided for in s 14 relate to the election
of
trade union representatives of a majority trade union in a workplace.
[4] The
first respondent is demanding that the appellant grant it the
organisational rights provided for in sec 14 of the Act. The
appellant refuses to grant the first respondent such rights. The
reason advanced by the appellant for its refusal is that such rights
can only be granted to a majority trade union and not a minority
trade union. The first respondent takes the attitude that, despite
it
being a minority trade union, it is entitled to, and can be granted,
organisational rights referred to in sec 14. The first respondent
has
described the issue in dispute between the parties in par 7.2 of its
answering affidavit as the appellant’s refusal to grant
the first
respondent
“the
organisational rights referred to in section 14"
of the Act.
The
referral and the urgent application
[5] The
first respondent referred the dispute between the parties on the
appellant’s refusal to grant it the organisational rights
referred
to in sec 14 to conciliation. After conciliation had failed, the
first respondent did not refer the dispute to arbitration
as provided
for in sec 21(7) of the Act but issued to the appellant a strike
notice in terms of sec 64(1)(c) of the Act. The appellant
then
brought an urgent application to the Labour Court for an order
interdicting the intended strike. The Court a quo dismissed the
application and later gave leave to appeal to this Court.
The
appeal
[6] In
presenting his argument on appeal, Mr Van der Riet, who appeared for
the respondents, did so on the basis that the rights which
the first
respondent sought in this matter were not any rights conferred by
Part A of chapter III to the Act. He said that the rights
that the
first respondent sought fell outside Part A. It seems to me that this
line of argument was adopted in an attempt to meet,
among others, the
argument that sec 14(1) only contemplates the organisational rights
provided for therein being granted to a registered
trade union that
has the majority of the employees in the workplace as its members or
two or more registered trade unions that, acting
jointly, have the
majority of the employees in the workplace as their members. The
latter argument would imply that sec 14 does not
confer, or make
provision for the conferment of, organisational rights on a trade
union other than the majority trade union in the
workplace.
[7] I
am unable to accept Mr Van der Riet’s submission that the rights
which the first respondent sought in this matter were not
the rights
conferred by Part A in chapter III and that it sought rights which
fell outside Part A. A reading of to the correspondence
exchanged
between the parties and the minutes of meetings held between the
parties does not only disprove Mr Van der Riet’s submission
but, on
the contrary, it shows that what the first respondent sought was
definitely rights conferred by Part A including the rights
provided
for in sec 14. In this regard it needs to be pointed out that:-
(a) on
the 16
th
August 1999 the first respondent issued a sec 21(1) notice; sec
21(1) prescribes that any registered trade union that seeks to
exercise
any of the organisational rights conferred by Part A must
issue a notice setting out, among others, which organisational rights
such
union is seeking to exercise; in this regard it is significant
that sec 21 specifically provides that it applies to any registered
trade union that seeks to exercise any organisational rights
conferred by Part A;
(b) in
par 1 of its sec 21 notice the first respondent specified the
workplace where it was seeking to exercise these rights; the
specification of the workplace in which the organisational rights are
sought to be exercised is required by sec 14(1);
(c) in
par 3 of the notice referred to in (a) above, the first respondent
specifically said that it wished to discuss with the appellant
“our
intention to exercise rights in terms of section 14(1) - (5) of the
Act, i.e. shop stewards elections”;
(d) in
its letter dated the 14
th
September 1999 addressed to the appellant, the first respondent
stated that it and the appellant had
“agreed
the elections of trade union representatives shall be conducted
taking into account the provisions of section 14(1) - (2)
of the
act”;
in
its reply to such letter dated 28
th
September, the appellant insisted that the granting of sec 14 rights
would be dependent on the level of representativeness of the
first
respondent; it is difficult to understand why the provisions of sec
14 (1) - (2) would have to be taken into account if the
rights sought
fell outside sec 14;
(e) in
the minutes of a meeting that was held between the appellant and the
first respondent on the 17
th
February 2000(annexure EN 9), the first respondent is reflected as
having
said that it had become representative and, because of that, was
“entitled
to a certain number of shopstewards
as
prescribed in the Labour Relations Act 66 of 1995.”;
(f) in
the 4
th
paragraph in the minutes referred to in (d) above the first
respondent is reflected as having asked the appellant whether it
would
withdraw the organisational rights enjoyed by GIWUSA and confer
them on it if it became the majority union; in the second paragraph
on the second page of those minutes it is recorded that, after the
appellant had proved that GIWUSA had majority membership in the
workplace, the first respondent
“expressed
their satisfaction and indicated that they will work hard to ensure
that their union becomes (sic) majority.”
;it
is difficult to see why the first respondent thought it was important
for it to attain majority membership in the workplace if
it was not
because that would qualify it for sec 14 rights;
(g) in
a letter dated the 24
th
February 2000 (par 1.1) that the
first
respondent addressed to the appellant, it said:
“NUMSA
herein reiterates its position as stated at the above mentioned
meeting and confirms its acceptance of the company’s principle
stand point that the union that commands majority threshold will be
recognised and accorded organisational rights it seeks to exercise.”
(h) in
par 3 of the form used to refer the dispute to the Commission for
Conciliation, Mediation and Arbitration (
“the
CCMA”
)
for conciliation - which is where the nature of the dispute is
required to be specified - the first respondent stated that the
dispute
“relates
to
section 21
of the
Labour Relations Act, 1995
"
;
sec 21
provides a dispute procedure that must be followed by a
registered trade union that seeks to exercise any of the
organisational
rights conferred by Part A to chapter 111 of the Act;
(I) in
par 7 of the referral form referred to in (g) above, the first
respondent was required to specify the outcome it desired out
of the
conciliation process; there it said it sought that:-
“
1. The
Company should
allow
and/or grant
NUMSA organisational rights
it
seeks to exercise.
The
company to conclude a collective agreement
as
to the manner
in
which
the union will exercise the rights in
respect of that workplace.”;
in
this regard it is emphasised that 1 and 2 mean that the first
respondent sought the conferment of the organisational rights and
the
conclusion of a collective agreement as to the manner of exercise of
such rights which is precisely what is provided for in sec
21(3) of
the Act;
(j) the
commissioner who dealt with the conciliation process in this matter
certified in the certificate of outcome that the matter
“relates
to organisational rights in terms of section 21”;
(k) in
par 6.3 of its answering affidavit, the first respondent stated that
the appellant could avoid the harm that the intended strike
would
cause
“by
granting [the first respondent] the organisational rights referred to
in section 14 of the Act.”;
(l) in
par 7.1 of the answering affidavit, the first respondent stated:
“I
admit that the organisational rights referred to in sections 12, 13
and 15 of Act are not in issue; and that the only issue in
dispute is
the [appellant’s] refusal to grant [the first respondent] the
organisational rights referred to in section 14 of the
Act.”;
(m) in
par 7.2 of its answering affidavit, the first respondent went on to
say:-
“
The
[first respondent’s] demand that the [appellant]
grant
it the organisational rights referred to in section 14 is the
subject matter of the proposed strike.
The
[first respondent] wants the [appellant]
to
sign a collective agreement regulating the exercise of these
organisational rights.”
(n) in
par 7.4 of its answering affidavit, the first respondent stated that
the issue in dispute
“is
one that a party has the right to refer to arbitration in terms of
the Act.”
[8] In
my view the question which this appeal raises is whether it is
permissible in terms of the Act for a minority trade union
to resort
to a strike to compel an employer to grant it
“organisational
rights referred to in sec 14”
of
the Act particularly where there is a trade union in the workplace
that is the representative trade union as defined in sec 14(1).
If
the answer is in the affirmative, the appeal must fail. If it is in
the negative, the appeal must succeed. In this regard it
needs to be
stated right at the outset that in par 7.4 of its answering
affidavit, the first respondent based its members’ alleged
right
to strike in respect of the issue in dispute in this matter on the
provision of s65(2)(a) which I deal with later in this
judgement.
[9] In
considering this question one must start at the beginning. The
beginning is the Constitution. Sec 23 (1) of the Constitution
provides that
“
(e)veryone has the right to fair labour practices”.
Sec 23 (2) (c) provides that
“every worker has the right to strike”.
Sec 23 (4) (b) provides that every trade union and every employers’
organisation has the right
“to
organise”.
Sec 23 (5) then says:
“Every
trade union, employers’ organisation and employer has the right to
engage in collective bargaining.”
It
continues:
“National
legislation may be enacted to regulate collective bargaining. To the
extent that the legislation may limit a right in
this Chapter, the
limitation must comply with section 36 (1).”
[10]
Sec
36(1) of the Constitution provides as follows:
“
36.
Limitation of rights. - (1) The rights in the Bill of Rights
may be limited only in terms of law of general application
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, including-
(a) the
nature of right;
(b) the
importance of the purpose of the limitation;
(c) the
nature and extent of the limitation;
(d) the
relation between the limitation and its purpose;
(e) less
restrictive means to achieve the purpose.”
[11] Subsection
(2) of sec 36 of the Constitution provides:
“Except
as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched in the
Bill of
Rights.”
In
this regard it is appropriate to state that the right to strike is
regarded as an integral part of the process of collective bargaining.
It is often said that, without the right to strike, collective
bargaining would become collective begging.
[12] The
purpose of the Act is given in sec 1 as being
“to
advance economic development, social justice, labour peace and the
democratisation of the workplace by fulfilling the primary
objects of
this Act.”
The
primary objects of the Act are given as:
“
(a) to
give effect to and regulate the fundamental rights conferred by
section [23] of the Constitution.
(b) to
give effect to obligations incurred by the Republic as a member state
of the International Labour Organisation;
(c) to
provide a framework within which employees and their trade unions,
employers, and employers’ organisations can-
collectively
bargain to determine wages, terms and conditions of employment and
other matters of mutual interest, and
formulate
industrial policy; and
(d)
to promote-
orderly
collective bargaining;
collective
bargaining at sectoral level;
employee
participation in decision- making in
the workplace; and
the
effective resolution of labour disputes.”
[13] It
is therefore important to bear in mind, in the context of this
matter, that part of the purpose of the Act is to give effect
to the
constitutional right to strike and the constitutional right of, on
the one hand, employers and their organisations and, on
the other, of
employees and their trade unions, to bargain collectively. The
constitutional right to organise must also be borne
in mind.
However, it is equally important to bear in mind that the Act also
seeks, among other things, to promote
“orderly
collective bargaining.”
There
can, therefore, be no doubt that the Act is the type of legislation
that is contemplated by sec 23 (5) of the Constitution that
is meant
to regulate the right to collective bargaining. To this extent the
Act may, in terms of sec 23(5) of the Constitution, limit
the
constitutional right to strike or to bargain collectively or to
organise entrenched in the Bill of Rights provided such limitation
complies with sec 36(1) of the Constitution.
[14] The
Act deals with collective bargaining in Chapter III. Collective
bargaining is dealt with under six parts in the chapter,
namely,
Parts A -F. Those parts relate, respectively, to organisational
rights, collective agreements, bargaining councils, bargaining
councils in the public service, statutory councils and general
provisions concerning councils.
[15] The
Act deals with strikes and lock-outs in chapter IV. Sec 213 of the
Act defines a strike as
“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 over-time
work whether it is voluntary or
compulsory”.
It
is convenient to also at this stage refer to the phrase
“issue
in dispute”
which features prominently in chapter IV. The phrase
“issue
in dispute”
is defined in sec 213 as meaning, in relation to a strike or
lock-out,
“the
dispute that forms the subject matter of the strike or lock-out.”
[16]
Section 64 (1) provides that
“(e)very
employee has the right to strike … if”
certain
conditions there set out are met. It is not necessary for purposes
of this judgement to set those out here. Ss (2) is irrelevant
for
present purposes. Ss (3) provides exemptions from compliance with
the requirements of ss (1) in certain specified circumstances.
Ss 4
and ss 5 are also of no relevance to the present matter.
[17] Sec
65 is headed:
“limitations
on right to strike or recourse to lock-out.”
Sec 65 (1) provides that
“(n)o
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”
in
certain circumstances. Those are if:
“
(a) that
person is bound by a collective agreement that prohibits a strike or
lock-out in respect of the issue in dispute;
(b) that
person is bound by an agreement that requires the issue in dispute to
be referred to arbitration;
(c) 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;
(d) that
person is engaged in-
an
essential service; or
a
maintenance service.
”
[18] Sec
65(2)(a) seeks to provide an exception to s 65(1)(c). It reads thus:
“
Despite
section 65 (1) (c), a person may take part in a strike or a lock-out
or in any conduct in contemplation or in furtherance
of a strike or
lock-out if the issue in dispute is about any matter dealt with in
sections 12 to 15.”
This
is the provision that is relied upon by the first respondent to
contend that it is entitled to call a strike in this matter in
order
to put pressure on the appellant to grant it
“the
organisational rights referred to in sec 14.”
Sec
65 (2) (b) provides:
“
If
a registered trade union has given notice of a proposed strike in
terms of s 64 (1) in respect of an issue in dispute which is
about a
matter dealt with in sections 12 to 15, such union may not
exercise
the right to refer the dispute to arbitration in terms of sec 21 for
a period of 12 months from the date of the notice.”
Ss (3) sets out further limitations to the right to strike but these
are subject to provisions of a collective agreement.
[19] The
Act deals with organisational rights in sections 11 to 22 all of
which fall within Part A of Chapter III of the Act. Sec
11 defines a
representative trade union in relation to organisational rights
provided for in Part A as meaning, unless otherwise
stated,
“a
registered trade union, or two or more registered trade unions acting
jointly, that are sufficiently representative of the employees
employed by the employer in a workplace.”
As already stated above, the Act sets out in sections 12, 13, 14, 15,
16, 17, 18, and 19, specific organisational rights and the
circumstances under which they may be acquired by trade unions.
[20] Provision
is made in
sec
21 for the exercise of organisational
rights
conferred
by Part A. In terms of s21(1) a trade union that seeks to
exercise any
organisational
rights
conferred by Part A is required to notify the employer in writing
that it seeks to exercise one or more of the rights conferred
by Part
A. In terms of ss(2) it is required to specify in the notice the
rights it seeks to exercise, the workplace in which it
seeks to
exercise them, the manner in which it seeks to exercise them, its
representativeness in the workplace concerned and the
facts on which
it relies to demonstrate that it is a representative trade union.
[21] Subsection
(3) requires the employer to meet with such trade union within 30
days of receiving the notice and to endeavour to
conclude a
collective agreement
“as
to the manner in which the trade union will exercise the rights in
respect of that workplace.”
In
ss(4) there appears, for the first time in sec 21, a reference to a
“dispute”.
Ss(4)
reads:
“If
a collective agreement is not concluded, either the registered trade
union or the employer may refer
the
dispute
in writing to the Commission.”
In subsections (5),(6) and (7) there are references to
“the
dispute”.
Those
subsections are, collectively, to the effect that, if no collective
agreement is concluded, either the union or the employer
may refer
“the
dispute”
to
the CCMA for conciliation and that, if conciliation does not succeed
in having
“the
dispute”
resolved, either party to
“the
dispute” “may request that the dispute be resolved through
arbitration.”
[22] The
question which arises is what the nature of the dispute is that is
contemplated by ss(4),(5),(6) and (7). What is clear
from ss(3) is
that the collective agreement that the employer is required to
endeavour to conclude with the trade union is a collective
agreement
“as
to the manner in which the trade union will exercise the rights in
respect of that workplace.”
This gives rise to the impression that the only dispute contemplated
in subsections(3),(4),(5),(6) and (7) is one about the manner
of the
exercise of the organisational rights.
[23] Subsection
(8) provides that
“(I)f
the unresolved dispute is about whether or not the registered trade
union is a representative trade union”,
the
commissioner must, in arbitrating the dispute, seek to minimise the
proliferation of trade union representation in a single work
place
and, where possible, seek to encourage a system of a representative
trade union in a workplace and must seek to minimise the
financial
and administrative burden of requiring an employer to grant
organisational rights to more than one registered trade union.
[24]
Subsection (8)(c) also empowers the commissioner who is arbitrating a
dispute about whether a trade union is a representative
trade union
to withdraw any organisational rights conferred by Part A which are
exercised by any registered trade union in respect
of that workplace
if that other trade union has ceased to be a representative trade
union in the particular workplace. In my view,
the fact that in ss(8)
provision is made that, if a dispute is about whether the union is a
representative trade union, such dispute
must be dealt with in the
manner there set out shows that a dispute about the manner in which a
union will exercise the rights it
seeks is not the only dispute
contemplated by sec 21. The reference in ss(8) to
“the
unresolved dispute”,
is a reference to the dispute referred to in ss(7) which provides
that
“if
the dispute remains unresolved, either party to the dispute may
request that the dispute be resolved through arbitration.”
[25] Subsection
11 gives an employer who alleges that a trade union is no longer a
representative trade union the right to apply to
the CCMA for the
withdrawal of any of the organisational rights conferred by Part A.
The process to be followed in that regard is
the referral of that
matter to conciliation and thereafter to arbitration.
[26] Sec
22 deals with disputes about the interpretation or application of
any provision of Part A. This excludes a dispute contemplated
in sec
21 of the Act. A dispute about the interpretation or application of
any provision of Part A must be referred to conciliation
and
thereafter to arbitration if conciliation fails. Under sec 21 the
body responsible for conciliation and arbitration is specified
as
being the CCMA. No specification of any kind is made in respect of
the body that is responsible for conciliation and arbitration
for
disputes falling within the ambit of sec 22. This must mean that it
can be the CCMA if there is no bargaining council with jurisdiction
or a bargaining council if there is one with jurisdiction.
[27] In
the light of all the above it seems to me that the Act prescribes
representativeness as the decisive factor on whether a
registered
trade union acquires organisational rights provided for in Part A.
For some organisational rights, sufficient representativeness
is
required but for others majority membership is required. This must be
so because of the wording employed in the relevant sections
of the
Act. This means that, all things being equal, if a trade union meets
the level of representativeness required in respect
of a particular
organisational right in a particular workplace, and the employer does
not dispute such representativeness, then,
by operation of law, such
union is entitled to such organisational right. In such a case there
can only be a dispute about the manner
in which the union will
exercise such right or the conditions subject to which the union may
exercise such right. In this regard
sec 21(3) to (7) lays down the
procedure to be followed to resolve such dispute. If it is
arbitrated, the dispute is resolved.
[28] However,
if there is a dispute between the union and the employer about
whether the union is a representative trade union for
purposes of
such a right in terms of the Act, that dispute must be referred to
conciliation and thereafter to arbitration in terms
of ss (4), (5),
(6), (7) and (8) of sec 21. If the dispute is arbitrated, the
arbitration award will end the dispute. If the arbitration
award is
that the union does not meet the required level of
representativeness, its claim will be dismissed. If the arbitration
award is to the effect that the union meets the required level of
representativeness, the union will be entitled to an award in its
favour on the organisational right in issue.
[29]
What then if the union admits or it is common cause that it does not
have the level of representativeness required for a particular
organisational right that it seeks to exercise? That is a worse
scenario for a union than one where it is only the employer who
alleges
that the union does not have the requisite level of
representativeness. In respect of the latter case, sec 21(11) is to
the effect
that the employer may apply to the CCMA for the withdrawal
of any organisational rights that such a union may have been granted
and
sec 21(8) gives a commissioner of the CCMA dealing with such
application the power to withdraw such rights from such union.
[30]
It seems me that, in such a case, if a trade union insisted on its
demand for an organisational right whose requisite level
of
representativeness it does not meet and the dispute about whether or
not it is entitled or it should be granted, the particular
organisational right were referred to arbitration, the outcome of the
arbitration would be a foregone conclusion. Such a union’s
claim to
such a right would definitely be dismissed in an arbitration.
[31] Only
a registered trade union that has the prescribed level of
representativeness for a particular organisational right is
contemplated
by the Act as eligible to acquire that organisational
right. That is why:-
(a) in
each one of the sections providing for the various organisational
rights in the Act, reference is made to a representative
trade union;
(b)
the reference to a representative trade union is a reference to
either a majority trade union or to two or more registered trade
unions that, acting jointly, have the majority of employees in the
workplace as their members or to a registered trade union that
is
sufficiently representative of the employees in the workplace even
though it does not have majority membership or to two or more
registered trade unions that, acting jointly, are sufficiently
representative of the employees in the work place;
(c) in
sec 21(2)(b) of the Act a trade union that seeks to exercise one or
more of the organisational rights provided for in the Act
is required
to specify its representativeness in its sec 21 notice;
(d) in
terms of sec 21(8)(c) a commissioner who arbitrates a dispute about
whether or not a trade union is a representative trade
union is given
power to withdraw any organisational rights conferred by Part A from
a trade union that has ceased to be a representative
trade union;
(e) in
terms of sec 21(11) an employer who alleges that a trade union is no
longer a representative trade union is given a right to
apply to the
CCMA for the withdrawal of any organisational rights conferred by
Part A on such a trade union and, sec 21(8) (c) becomes
applicable to
such an application which gives the commissioner dealing with such
application power to withdraw any organisational
rights from such a
union if it is no longer a representative trade union.
[32] The
problem that is presented by this matter arises from the fact that
the legislature saw fit to enact the provision of sec
65(2)(a).
Without sec 65(2)(a) of the Act, there could have been no doubt that
a trade union that is not the representative trade
union as defined
in sec 14(1) has no right to call a strike in order to compel an
employer to grant it the organisational rights
referred to in sec 14
particularly where there is a registered trade union in the workplace
which meets the level of representativeness
required by sec 14(1).
This is so because a strike in such circumstances would have been
precluded by the limitation of the right
to strike contained in sec
65(1)(c) which is to the effect that no person may take part in a
strike 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.”
[33] The
first respondent demands to be given
“organisational
rights referred to in section 14".
If the appellant is refusing to grant the first respondent such
rights in circumstances where the first respondent believes it is
entitled to or in circumstances where it believes the appellant
should grant it such rights, the dispute resolution process that
the
first respondent would be confined to would be to refer such dispute
to arbitration and, because it has a right to refer it to
arbitration
in terms of the Act, it would have no right, in the light of sec
65(1)(c), to call a strike about it. I have already
said above that
the first respondent relies on the provision of sec 65(2)(a) to found
its alleged right to call a strike about the
issue in dispute in this
matter. The question which all of the above raises is whether the
provision in sec 65(2)(a) does give the
first respondent the right to
call a strike, and, its members the right to go on strike, in a case
such as this one.
[34] As
already stated above, the section of the Act that confers the general
right to strike is sec 64(1). That right to strike may
only be
exercised if certain conditions there set out are met. Further, the
exercise of such right is subject to the limitations
set out in sec
65 of the Act. The limitation in sec 65(1)(c) is to the effect that
no person may take part in a strike if
“the
issue in dispute is one that a party has a right to refer to
arbitration or to the Labour Court in terms of this Act.”
As the first respondent has described the issue in dispute as the
appellant’s refusal to grant it
“the
organisational rights referred to in sec 14"
of the Act, there can be no doubt that there is a right to refer a
dispute about such rights to arbitration in terms of sec 21(7)
of the
Act. In the light of this it can be accepted that, subject to what
the effect of sec 64(2)(a) is, the right to strike about
a dispute
relating to organisational rights referred to in sec 14 is limited by
the provisions of sec 65(1)(c) of the Act.
[35] What
then is the effect of sec 65(2)(a) of the Act on the right to strike
about such a dispute and on the limitation to that
right provided for
in sec 64(1)(c)? Sec 65(2)(a), as already stated, provides that,
despite section 65(1)(c), a person may take part
in a strike
“if
the issue in dispute is about any matter dealt with in sections 12 to
15.”
The
acquisition by a trade union of the organisational rights referred to
in sec 14 - which is what this matter is about- is a matter
that, in
my view, falls within the ambit of the phrase
“any
matter dealt with in sections 12 to 15"
appearing
in sec 65 (2)(a). It is therefore clear that sec 65(2)(a) seeks to
confer a right to strike about a matter such as this
one in
circumstances where there otherwise would be no such right in the
light of the limitation to the right to strike provided
for in sec
65(1)(c). The question which arises is whether sec 65(2)(a) does
succeed in providing for an effective right to strike
in a case such
as the one before us and, therefore, makes the limitation in sec
65(1)(c) inapplicable.
[36] I
think the legislature was aware that, without a specific provision
granting a special right to strike for matters dealt with
in sections
12 to 15, there would be no such right because of the limitation in
sec 65(1)(c). It was also aware that enacting a provision
granting
such special right to strike in respect of such matters would place
unions in a position where they would have both the
right to call a
strike and the right to refer such matters to arbitration with the
result that they could start with a strike but
change after some time
to arbitration if the strike did not produce the desired results and
this would be unfair to employers.
[37] It
must then have been decided that a trade union must be given a choice
between a strike and arbitration to resolve such dispute.
That is why
the provision in sec 65(2)(a) and the provision in sec 65(2)(b) were
enacted. Through secs 21(7) and 65(2)(a) the Act
makes both
arbitration and a strike or lock-out available in order to resolve an
issue in dispute about a matter dealt with in sections
12 to
15. Sec
65(2)(b)
provides that if
“a
registered trade union has given a notice of the proposed strike in
terms of sec 64(1) in respect of an issue in dispute referred
to in
par (a), it may not exercise the right to refer the dispute to
arbitration in terms of section 21 for a period of 12 months
from the
date of the notice.”
Through
this provision the Act ensures that, once a trade union has elected
to follow the strike route by issuing a strike notice
in order to
resolve such a dispute it cannot thereafter change its mind and refer
the dispute to arbitration within 12 months of
the notice.
[38] There
are two serious deficiencies in sec 65(2)(b). The one is that the
preclusion to use the route of arbitration in respect
of the dispute
is directed only against the trade union and there is no preclusion
directed against the employer so that, if the
employer resorts to a
lock-out in terms of sec 65(2)(a) to resolve such a dispute, it may
not refer such a dispute to arbitration
within a period of 12 months
from the date of the lock-out notice issued in terms of sec 64(1).
[39] This
means that, if the employer instituted a lock-out in terms of sec
65(2)(a) in order to compel the union and the employees
to agree to
his demands on the dispute and he realised after some time that the
lock-out was ineffective, he would not be precluded
to at that stage
refer the dispute to arbitration whereas a trade union would be so
precluded once it has issued a strike notice.
No justification for
this inconsistency is apparent.
[40]
The other serious deficiency is that no provision has been made to
the effect that, when a trade union elects to call a strike
as
opposed to referring the dispute to arbitration and gets precluded
from referring it to arbitration after the issuing of a strike
notice, the employer is also precluded from exercising the right to
refer the dispute to arbitration or that once the union has issued
a
strike notice, the dispute is disqualified from arbitration or
adjudication. No justification for this omission is apparent. As
a
result of this deficiency in the Act, an employer is able in a case
such as this one to frustrate a trade union’s attempts to
resolve
such a dispute through strike action. I demonstrate this below.
[41] The
provision of s21(7) has particular significance. It is that, when
conciliation fails in respect of a dispute contemplated
in sec 21,
the employer may frustrate any attempts on the part of the trade
union to resort to a strike in terms of sec 65(2)(a)
to put pressure
on the employer to agree to its demands. The employer can do this by
invoking the provisions of sec 21(7) which are
to the effect that, if
such a dispute remains unresolved after conciliation, either the
employer or the trade union may request that
the dispute be resolved
through arbitration. Soon after the issuing of the certificate of
outcome, the employer would be able to
send to the CCMA a request for
an urgent arbitration of the dispute. This could be just before, or,
simultaneously with, the issuing
of the 48 hours strike notice by the
union. There is no reason why the CCMA would not be able to arbitrate
such a dispute on an urgent
basis if there is a strike looming.
[42] If,
as in this matter, it is common cause that the union did not have the
level of representativeness required for the organisational
right it
seeks, the evidence that the employer would need in order to obtain
an award denying the union such rights would be minimal.
It would
hardly take 30 minutes. All a witness from the employer would need to
say is what the total number of employees in the workplace
is, how
many employees in the workplace are members of the union, and, if
there is another trade union that has members in the same
workplace,
to also mention that and, may be, also the number of the latter
union’s members. By the time the 48 hours required for
the strike
notice expires, the arbitration award could be out. The issuing of an
arbitration award would bring the dispute to an
end with the result
that the intended strike would become unprotected if it was pursued
because there would no longer be an issue
in dispute between the
parties as contemplated by sec 64(1) of the Act.
[43] Subsequent
to the hearing of argument, the parties were afforded an opportunity
to deal with the question of how it could be
said that sec 65 (2)(a)
provides for an effective right to strike in respect of an issue in
dispute such as the one in this matter
when the employer can easily
frustrate such a right by invoking arbitration and securing an
arbitration award in its favour before,
or soon after, the
commencement of the strike. Mr Van der Riet submitted that the
employer would not have the right to invoke arbitration
in a case
such as this one because the rights that the first respondent seeks
are not rights conferred by Part A to chapter III but
rights that
fall outside Part A.
[44] I
have already rejected this contention earlier in this judgement and
have given full reasons for rejecting that submission.
It is not
necessary to repeat the reasons. It is sufficient to say that in
making this submission, Mr Van der Riet must have overlooked
par 7.4
of the respondents’ answering affidavit. There the respondents
accepted that
“a
party has the right to refer the issue in dispute in this matter to
arbitration in terms of the Act.”
That could only be a reference to arbitration in terms of Part A to
Chapter III of the Act. It stands to reason that Mr Van der Riet’s
contention that the appellant would have no right to refer the issue
in dispute in this matter to arbitration and thereby frustrate
the
first respondent’s members’ alleged right to strike based on sec
65 (2)(a) falls to be rejected.
[45] What
does all of this mean with regard to the question whether a minority
trade union such as the first respondent has a right
to call a strike
in order to put pressure on an employer to grant it
“the
organisational rights referred to in sec 14"
particulary
when there is a majority union in the work place? As I have already
said, if such a union has a right to call a strike,
it can only be
because of the provisions of sec 65(2)(a). The question that arises
is whether sec 65(2)(a) has conferred an effective
right to strike in
a situation such as this one. A trade union in the position of the
first respondent cannot exercise the right
to call a strike in such a
situation because the employer can very easily block it through
arbitration. Further, through arbitration
the employer would be able
to not only block a strike but also to secure an award in his favour
on the issue in dispute which would
also have the effect that there
could be no resort to a strike.
[46] In
such a case the minority union cannot do anything either to prevent
the employer from requesting the CCMA to arbitrate the
dispute or to
prevent him from getting an arbitration award in his favour. The
only thing I can think of that the union can do in
order to be able
to pursue a strike in such a case is to beg the employer not to
invoke arbitration. If the strike is likely to
be effective, there
is no way that the employer would agree to that. If he were to agree,
it would only be because he knew that the
strike would not hurt his
business. Of course, the workers’ need to exercise the right to
strike arises when a strike will hurt
the employer. Unions and
workers have no need for a strike when a strike will not hurt the
employer. When a strike will not hurt
the employer, unions and
workers need arbitration. This means that such right to strike as sec
65(2)(a) may be said to confer is
one that workers cannot exercise
when they need it most but is one that would be available to them
when they least need it.
[47] If
the employer agrees not to invoke arbitration, which in reality would
be unlikely, that is not the end of the matter because,
if, as in
this matter, there is another trade union that has as its members the
majority of the employees in the workplace, such
a trade union may
seek and obtain an interdict restraining the employer from concluding
any agreement with the minority union purporting
to grant it
organisational rights provided for in s 14. This would be on the
basis that the majority union is the only trade union
that is
entitled to such rights for as long as it maintains the level of
representativeness required for such rights.
[48] Mr
Van der Riet submitted that the majority union would not be able to
obtain such interdict because it would not be able to
show that any
of its rights is threatened. He submitted that this was so because
sec 14 did not
“confer
any rights on the majority trade union not to have shop stewards’
rights
granted
to other employees belonging to other trade unions.”
I do not agree.
Quite
clearly
throughout sec 14 the rights that are conferred on, and the
functions that are attached to, employees and trade union
representatives, are conferred on, or attached to, employees and
trade union representatives who are members of that registered trade
union that constitutes, or those two or more registered trade unions
that, acting jointly, constitute the representative trade union
as
defined in s 14(1) of the Act. There cannot be two or more trade
unions in one workplace that, acting separately, can both have
the
majority of the employees employed in the workplace as their
respective members. A registered trade union that is a minority
trade
union simply falls outside the contemplation of sec 14.
[49] This
therefore means that, if the minority union wishes to pursue a
strike, it may need to beg not only the employer not to refer
the
dispute to arbitration but it may also need to beg the majority trade
union not to seek an interdict restraining the employer
from granting
it such rights. What type of a right to call a strike can such a
minority trade union be said to have if such right
can only be
exercised at the pleasure or convenience of the employer or of a
rival union? In my view no proper right to strike can
be said to
exist if workers need the employer’s blessing or the blessing of
their rival union before they can exercise it.
[50] It
seems to me that, after sec 65(1)(c) had been enacted as a limitation
to the right to strike, an attempt was made through
sec 65(2)(a) to
make that limitation inapplicable in respect of disputes involving
matters dealt with in sections 12 to 15 by providing
for an exception
to the limitation. I think that attempt failed. The result is that in
a case such as this the limitation in sec
65(1)(c) is fully
applicable and enforceable and the exception that was attempted is
not effective because it provides for a right
to strike that can only
be exercised at the employer’s convenience and pleasure as well as
at the convenience and pleasure of a
rival union. Accordingly the
first respondent has no right to call a strike in this matter.
[51] Mr
Van der Riet submitted that, if the Act was interpreted to mean that
sec 65(2)(a) was ineffective in a case such as this one,
such
interpretation would be understood to limit the constitutional right
to strike without such limitation being expressly stated
in the
statute. In this regard he referred to
S
v Zuma 1995(2) SA 642 (CC) at 6511 and CWIU v Plascon Decorative
(Inland) (Pty)Ltd
[1998] 12 BLLR 1191(LAC)
at 1197B.
I
do not agree. On this interpretation sec 65(2)(a) is not a
limitation. The limitation is s65(1)(c). The right to strike is
provided
for in sec 23 of the Constitution and sec 64(1) of the Act.
Sec 65(1) then expressly provides for limitations to that right. Sec
65(2)(a) seeks to create an exception to the limitation contained in
sec 65(1)(c) and, in my judgement, ineffectively so in a case
such as
this one. Accordingly the limitation is expressly stated in the
statute. There can be no doubt that the limitation of the
right to
strike that is provided for in sec 65(1)(c) is one that meets the
requirements of sec 36(1) of the Constitution.
[52] Much
reliance was placed by the first respondent on the provisions of s20
to support the contention that the first respondent
could call a
strike in a matter such as this one. Sec 20 reads:
“Nothing
in this Part precludes the conclusion of a collective agreement
that
regulates organisational rights.”
This
provision has no legal significance. It is clarificatory in nature.
It does not give anyone any right that such person does not
otherwise
already have. A collective agreement is an agreement like any other
agreement. As in the case of any agreement, a collective
agreement
can be concluded in any circumstances in which the law does not
preclude its conclusion.
[53] A
reading of a few sections in Part A reveals clear indications that
the conclusion of collective agreements was contemplated
rather than
that it was not. I list some of those sections:
(a) s
14(4)(d) which contemplates the performance by a trade union
representative of
“any
other function agreed to between the representative trade union and
the employer”.
(b) s
15(2) which contemplates that a representative trade union and the
employer
“may
agree to the number of days of leave, the number of days of paid
leave and the conditions attached to any leave.”
(c) s
16(3) which contemplates consultation and collective bargaining
between a representative trade union and the employer.
(d) S
16(8) which contemplates the process of conciliation to resolve a
dispute and, obviously, conciliation may lead to the conclusion
of an
agreement that could constitute a collective agreement.
(e) s
16 [11] which contemplates the effective engagement of a
representative trade union in consultation or collective bargaining.
(f) s
18(1) which contemplates the conclusion of a collective agreement
establishing a threshold of representativeness required in
respect of
one or more of the organisational rights referred to in sections 12,
13, and 15.
(g) s21(3)
which contemplates the conclusion of a collective agreement about the
manner in which the union will exercise the organisational
rights it
seeks to exercise.
[54] My
conclusion that there is nothing in Part A that precludes the
conclusion of a collective agreement may give rise to the following
question: But does that not mean that there is a right to strike if a
union demands that the employer conclude a collective agreement
with
it on organisational rights and the employer refuses because, if
there is no right to strike in such a situation, it must mean
that
there is no right to bargain collectively? I think the answer to this
question is the following. Sec 20 does not say :
“Nothing in this Part precludes the exercise of a right to strike
about organisational rights.”
Accordingly
it does not, without more, affect the right to strike. Furthermore,
the limitation to the right to strike that I am of
the view precludes
the first respondent from calling its members out on strike about the
organisational rights it seeks is not to
be found in Part A. It is
to be found in sec 65(c).
[55] Sec
20 contemplates nothing more than that a trade union and an employer
are not precluded from concluding an agreement that
meets the
requirements of a collective agreement as defined in sec 213 in
regard to organisational rights if they are both happy
to do so. This
must obviously refer to a situation where to do so will not adversely
affect another union’s rights or other employees’
rights. The
mere fact that they are not precluded from concluding such an
agreement does not necessarily mean that, if the employer
refuses to
enter into such an agreement, there is, without more, a right to
resort to a strike. Such agreements may be concluded
even when a
strike has not been called. However, a strike may not be resorted to
in a case where the right to strike has been limited
by the Act and
such limitation meets the requirements of sec 36(1) of the
Constitution. In any event the Constitution recognises
the right to
strike separately from, and, independently of, the right to bargain
collectively.(see sec 23(2)(c) and 23(5) of the
constitution).
[56] Although
it is trite that a court will not lightly conclude that a provision
in a statute is superfluous, it will equally not
hesitate to say a
provision is superfluous when, after careful consideration, it is
satisfied that the provision is, indeed, superfluous.
In my judgement
s20 is definitely a superfluous provision in the Act. In the absence
of anything in Part A that suggests in any way
that the conclusion of
a collective agreement is or may be prohibited, there was no need for
a provision that does nothing more than
to simply state the obvious.
[57] Lastly
it seems to me that, if a minority trade union demands the employer
to grant it
“organisational rights referred to in sec 14"
in a workplace where there is a majority trade union that has been
granted the organisational rights provided for in sec 14, which
is
the case in this matter, the employer would be entitled to adopt the
attitude that it cannot give what it does not have. This
is so
because, once sec 14 rights have been granted to one trade union in a
workplace and, properly so granted, there would be no
further sec 14
rights which the employer can grant to another trade union. There
might, and I would put it no higher than that, be
something else akin
to sec 14 rights but there cannot be any sec 14 rights left to be
granted to another trade union. In this case
the first respondent has
repeatedly stated both in correspondence with the appellant and in
the answering affidavit that what it
seeks is that the appellant must
grant it
“organisational
rights referred to in s14".
[58] The
first respondent has also said that it wants the appellant to
conclude with it a collective agreement on the manner in which
it
will exercise such rights. There can only be one such collective
agreement relating to sec 14 rights in one workplace. That is
because
there can only be one majority trade union in one workplace in the
scenario contemplated by s14 or if there are two or more
trade unions
that are party to such a collective agreement, it can only be so if
they are acting jointly for purposes of being the
representative
trade union as defined in s14(1). For the second trade union to
demand the employer to grant it such rights at a time
when the
majority trade union still has such rights on the strength of meeting
the requisite level of representativeness is to demand
the
impossible.
[59] I
am satisfied that the first respondent has no right to call a strike,
and its members have no right to strike, for the purpose
for which
the strike was sought to be called in this matter.
RMM
Zondo
Judge
President
Date
of Judgement : 29 November 2001
Appearances
For
the appellant : Adv. J Grogan
Instructed
by : RC Futter Attorneys
For
the Respondent : Adv. J.G. Van der Riet SC
Instructed
by : Cheadle Thompson & Hayson