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[2010] ZALAC 31
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Vodacom (Pty) Ltd v CWU (JA16/08) [2010] ZALAC 31; [2010] 8 BLLR 836 (LAC); (2010) 31 ILJ 2060 (LAC) (6 February 2010)
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
DATE: 02/06/2009
CASE NO: JA16/08
In the
matter between
VODACOM
(PTY) LIMITED
…...................................................................................
Applicant
and
CWU
…...................................................................................................................
Respondent
_______________________________________________________________
J U D G M E N T
_______________________________________________________________
DAVIS
JA:
[1] This is an appeal against the judgment an order of Rampai AJ,
delivered on 28 May 2007.The appellants approached
this
Court with leave of the Court
a quo
.
[2] The facts can be summarised thus: On 1 November 1999,
the first appellant concluded a collective agreement with the
first
respondent following a dispute concerning organisational rights. The
agreement remains in force. The key term thereof provided
the first
respondent with certain rights of access as set out in Clause 4
thereof:
"The union accepts that the above is a once-off agreement and
that any request for other organisation rights will be dealt
with
according to the provisions of the Act. The union furthermore accepts
that (1) the workplace will be regarded as Vodacom (Pty)
Limited (the
whole company); and the 30% membership based on the above definition
of the workplace will be regarded as the absolute
minimum threshold
to grant any other organisational rights to the union in terms of the
Act."
In terms of paragraph 5 of the agreement the parties accepted that
should the need arise they would be open to renegotiate the
terms and
conditions of the agreement, including the clause to which I have
made reference.
[3] In 2002 and 2004 the first respondent demanded additional
organisational rights for its members who were employed by first
appellant. These disputes ended in arbitration, the first arbitration
award accepted the binding nature of the collective agreement
and
found that if first respondent sought new organisational rights
outside the agreement, the procedures as set out in Section
21 of the
Labour Relations Act 66 of 1995 (‘the LRA’) should be
followed.
[4] In a second arbitration award, the arbitrator accepted the
binding nature of the collective agreement and held that the
appellant
could not be ordered, in terms of Section 24 of the LRA, to
negotiate additional organisational rights.
[5] On 23 November 2006 the first respondent again referred
a dispute to the CCMA. The nature of this dispute was recorded
as an
organisational rights dispute. In the referral form, the facts of the
dispute were summarised thus:
"The company Vodacom is refusing to accord the union the
collective bargaining powers. The union have sufficient members to
be
granted to the organisational rights by Vodacom."
[6] On 8 February 2007 a conciliation meeting was held at
the offices of the CCMA. The parties were unable to resolve
the
dispute. A certificate of outcome was then issued. The commissioner
stated that if the dispute remained unresolved it could
be referred
to as a “strike/lockout". On 7 March 2007 first
respondent addressed a letter to the first appellant
advising the
company that first respondent will embark on a national industrial
strike in support of the organisational rights
dispute referred to
the CCMA. On receipt of the strike notice, appellant's attorneys sent
a fax to the first respondent in which
it referred to the dispute
which had been referred to the CCMA and the certificate of outcome,
stating that the dispute remained
unresolved and that strike action
could be taken. In that letter, it was pointed out by appellant's
attorneys that section 65(3)(a)(i)
of the LRA provided that no person
may take part in a strike if that person is bound by a collective
agreement that regulates the
issue in dispute. When first respondent
declined to provide an undertaking to withdraw its strike notice, and
to take no further
strike action, an application for an interdict was
brought on 8 March 2007.
[7] On 12 March 2007 a
rule nisi
interdicting the
strike was issued by Ngcamu AJ. On the return day, that is
19 March 2007, the matter was heard by the
court
a quo
.
Judgment was delivered on 28 May 2007. The Court discharged
the
rule nisi
and directed the appellants to pay the costs of
the respondent relating to the entire application. In essence the
judgment of the
court
a quo
was predicated on the following
from the judgment:
"Assuming without deciding that the conciliator who issued the
current certificate in terms of section 64(1) acted irregularly
in
adopting the cause of action he adopted, the irregular or unlawful
certificate remains legally protected by the evidential presumption
of the legal
maxim omnia praesumuntur vitae esse acta.
Such
certificate however, invalid is in law accorded official recognition
and protection of a valid official act or documented
remains valid
with all its imperfect attributes until it is set aside by a court of
review [indistinct] on review."
Rampai AJ
then continues:
"Through their compliance with all the prerequisites of Section
64(1) the trade union and its members have thereby acquired
a
passport so to speak, deemed to be valid to engage in an industrial
strike action. The right to strike can now be declared to
be an
illegal and unprotected strike on the basis of a document which the
applicants did not and do not seek to have reviewed and
set aside.
Public policy which favours legal certainty militates against passive
litigation stance (sic) and practice as displayed
by the applicants.
I would, therefore, discharge the
rule nisi
on the ground that
it has not been shown that the proposed industrial strike action
constitutes an unlawful strike which infringes
the applicant's clear
right."
[8] In short, the judgment of the court
a quo
is predicated on
the recent jurisprudences pawned by the Supreme Court of Appeal's
judgment in
Oudekraal Estates (Pty) Limited v City of Cape Town
and others
2004 (6) SA 222
(SCA) at 32 to 34, namely the
principle of the collateral challenge. In other words the judgment
adopted the approach that, until
such time as a decision by an
administrator is set aside, even if it is illegal, it remains in
force until such time as a court
declares it to be so illegal.
[9] Mr Redding who appeared on behalf of appellants pointed out
that Section 64 is not the section to which one must
turn in
order to resolve this dispute. It is correct that section 64 of LRA
sets out the procedures which are required to be adopted
by an
employee when that employee exercises its constitutional right to
strike, or an employer has recourse to a lockout. In terms
of that
provision, a strike cannot take place until such time as the dispute
has followed the procedures set out in Section 64(3),
and, as in this
particular case, a certificate has been issued by the relevant
commissioner to the effect that the dispute cannot
be resolved. That
however, simply provides, to use the term adopted by Rampai AJ, a
‘passport to strike’ in circumstances
where there is no
other prohibition insofar as the right to strike is concerned.
[10] Section 65 sets out limitations on the right to strike or
recourse to lockout which have to be read together with section
64.
In short no matter that there has been compliance with section 64,
the LRA limits a right to strike, such that if the strike
reaches one
of the limitations in terms of section 65, it is an unlawful strike,
notwithstanding compliance with procedures under
section 64. To
express it differently, the certificate cannot trump the limitations
of section 65. What can trump such a limitation
is a constitutional
challenge, in effect to contend that the limitations contained in the
LRA breach the right to strike, as enshrined
in the constitution, and
constitutes an unjustifiable limitation on that constitutional right.
That of course was never the dispute
in this case, nor was the point
ever argued. Therefore it is not before us. What is before us is the
clear provision of section 65(1)
which provides that no person
may take part in a strike or lockout or in any conduct in
contemplation of or furtherance of a strike
or lockout if (a) that
person is bound by a collective agreement that prohibits a strike or
lockout in respect of the issue in
dispute.
[11] In this particular case, it is common cause that there was a
collective agreement which applied. Accordingly whatever certificate
may have been produced and may have been shown to the employer, the
certificate cannot override the clearly stated limitation upon
the
right to strike as contained in section 65(1)(a). In short a
certificate can in no way trump the clear provisions of the
limitation.
For this reason, the court
a quo
erred in its
approach to the law. It should not have held that the certificate
issued in terms of section 64 provided an unqualified
and unlimited
‘passport’ to the employees to strike, no matter the
provisions of Section 65(1)(a),as I have outlined
them.
[12] For this reason, I would uphold the appeal and alter the
judgment of the court
a quo
to read thus:
"The
rule nisi
issued on 12 March 2007 is
hereby confirmed. The respondents are directed to pay the costs of
the applicants relating
to the entire application."
Finally as this appeal was not opposed, I would not make an order of
costs insofar as the appeal is concerned.
LEEUW
JA:
I agree.
JAPPIE
JA:
I agree.
COURT
: It
is so ordered.