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[2010] ZALAC 11
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Platinum Mile Investments (Pty) Ltd t/a Transiton Transport v South African Transport and Allied Workers Union (SATAWU) and Another (JA 28/08) [2010] ZALAC 11; (2010) 31 ILJ 2037 (LAC) ; [2010] 10 BLLR 1038 (LAC) (14 May 2010)
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
Held at Johannesburg
Case No JA28/08
In the matter between
PLATINUM MILE INVESTMENTS (PTY) LTD
Appellant
t/a TRANSITON TRANSPORT
and
SOUTH AFRICAN TRANSPORT AND
First
Respondent
ALLIED WORKERS UNION (SATAWU)
MEMBERS OF SATAWU
Second Respondent
J U D G M E N T
Introduction
[1] On the 19
th
September 2005, the appellant, Platinum Mile Investments (Pty) Ltd
t/a Transition Transport dismissed 35 of its employees for
participating in a strike. The court
a quo
found these dismissals to be automatically unfair and reinstated
these employees without loss of earnings or benefits. This is
an
appeal, with the leave of the court
a quo
,
against the judgment and order of the Labour Court. These employees
are members of the first respondent, South African Transport
and
Allied Workers Union (“SATAWU”). These dismissed
employees have been collectively cited as the second respondent.
I
shall refer to them as either the second respondent or as ‘these
employees’.
[2] It is common cause that at the time these employees
went on strike SATAWU had declared two disputes with the appellant,
namely
‘a recognition dispute’ and a ‘labour broker
dispute’. The crisp issue to be determined in this appeal is
whether the strike which commenced on 8 September 2005 was a
protected or an unprotected strike. It became common cause that if
the second respondent had gone on a strike as a result of the failure
by the appellant to sign a recognition agreement with the
first
respondent then such a strike was unprotected and as such the
appellant was entitled to dismiss the striking employees. However
if
the strike was in respect of the appellant wanting to employ labour
brokers then the strike being a matter which concerned a
mutual
interest, would be protected. The appellant was therefore not
entitled to dismiss these employees.
[3] The court
a quo
held that the strike was about the labour broker dispute, from which
it followed that the strike was protected and the ensuing
dismissals
automatically unfair. It is the appellant’s contention that on
the conspectus of evidence and the analysis thereof,
the court
a
quo
erred in finding that the strike was
protected and the ensuing dismissals automatically unfair. It ought
to have found that the
strike was about the recognition dispute, with
the result that the strike was unprotected and the ensuing dismissals
not automatically
(or otherwise) unfair.
Factual background
[4] The appellant’s main business is transporting
carpeting and wooden flooring for the industry. At all times material
to
the dispute between the parties, there was no recognition
agreement existing whereby the appellant recognised the first
respondent
as representing its employees in general or these
employees in particular. In order to obtain recognition and enter
into an agreement
there was ongoing correspondence between the
appellant and the first respondent. On the 9 June 2005 and when no
progress was forthcoming
the first respondent referred a refusal to
bargain/organisational rights dispute to the Commission for
Conciliation, Mediation
and Arbitration (‘CCMA’) for
conciliation (‘the recognition dispute’). On the 25
th
July 2005, the CCMA notified the parties of the set down of the
conciliation of the recognition dispute for the 17
th
August 2005.
[5] In tandem but on the 27
th
July 2005, the first respondent referred a mutual interest dispute
involving the appellant’s (alleged) use of a labour broker
to
the National Bargaining Council for the Road Freight Industry (‘the
NBCRFI’) for conciliation (‘the labour
broker dispute’).
In the interim and on the 17
th
August 2005, the CCMA sought to conciliate the recognition dispute,
with the Commissioner having undertaken to issue an advisory
award in
terms of s 64(2) read with s 135(3)(c) of the Labour Relations Act 66
of 1995 (“LRA”).
[6] On the 2
nd
September 2005, without waiting for the aforesaid award to be handed
down, and in terms of s 64(1) (b), SATAWU gave the appellant
48 hours
notice of the commencement of a strike over the recognition dispute.
The strike was due to commence at 14h00 on 4 September
2005. On the
2
nd
of September
the appellant responded to SATAWU warning it that the strike was
unprotected and their members participating in the
strike stood to be
dismissed.
[7] On Saturday, 3 September 2005, and while attending
to other unrelated business at the CCMA, Mr Thulani Nkosi (‘Nkosi’),
SATAWU’s official who was involved in all the antecedent
negotiations with the appellant, managed to secure a copy of the
aforesaid advisory award (‘advisory award’). The award
concluded with the following advice:
‘
1. The parties to meet within 30 days of the
receipt of this award to write a collective agreement.
Should they fail to do so, the union to exercise its
rights in terms of s64 of the Act.”
It is not in dispute that the advisory award was only
sent to the parties by the CCMA on 7 September 2005 and did not come
to the
appellant’s prior attention. In preparation for the
proposed strike which was to take place, Nkosi had a meeting with Mr
Esmon Vilakazi (‘Vilakazi’), the shop steward in the
employ of the appellant on Saturday, 3 September 2005, being the
very
day he received a copy of the award.
[8] In any event on the 3
rd
September 2005, SATAWU sent the appellant a letter advising as
follows:
‘RE: 48 HRS NOTICE, (SECTION 64 OF LRA)
Our letter regarding the above and subsequently your
letter dated 2 September 2005 refers.
The union do hereby withdraw (sic) the notice; the
company will be advised in due course of the new date and time for
commencement
of the industrial action.
NB: The door is (sic) still open to resolve the
dispute.’
On Monday 5 September 2005, despite this notice having
been sent, there was a work stoppage and an interaction between the
appellant’s
management and the strikers. It was alleged by the
appellant that Nkosi was present but this was denied by Nkosi.
[9] On the 5
th
September 2005, SATAWU sent the appellant a second s 64(1) (b) strike
notice. The notice read:
‘
RE: 48 HRS NOTICE IN TERMS OF SECTION 64(1)(B)
The above-said subject refers.
This letter serves as an official notice to embark on a
protected industrial action, in terms of section 64(1) (b) of LRA Act
No
66 of 1995, as amended from time to time.
The proposed industrial action will commence on Thursday
the 08
th
September
2005.
The union doors are open for negotiations in an attempt
to resolve the dispute.’
[10] On 6 September 2005, in response to the above, the
appellant sent to SATAWU and marked for the attention of Nkosi, a
letter
advising that the threatened strike would be unprotected and
any employee participating in the proposed strike risked dismissal.
A
further letter was attached to the above letter for attention of
Nkosi setting out various antecedents in the matter including
the
various occasions on which unprotected strikes had taken place in the
past. Of significance however was the indication that
any
participation in the strike by appellant’s workforce would
leave the appellant with ‘no option but to terminate
their
employment with immediate effect’. It was further brought to
Nkosi’s attention that members of SATAWU employed
by the
appellant had already ‘received final warnings for their
participation in previous unprotected strike action’.
[11] On 7 September 2005, SATAWU through Nkosi sent a
letter to the appellant by fax which read:
‘RE: 48 HRS/ PROTECTED INDUSTRIAL ACTION
Your letter dated 06/Sep/2005 refers.
The above said letter is misleading as it misrepresents
facts misinterprets the LRA.
The notice served on 05 September has to do with mutual
interest dispute in terms of section 64(1) and 134 of the LRA…..
Be as it (sic), the union will avail itself for
negotiation.’
The appellant denied having received this letter. Before
us counsel submitted that in light of the fax transmission report,
the
appellant was constrained to accept that the letter was sent even
if it did not come to the attention of management.
[12] At 07h00 on the 8
th
September 2005, the strike commenced at the appellants premises. On
the same day the appellant sent a letter to SATAWU in which
it
advised that the strike was unprotected and that disciplinary action
would be taken against the participating employees. The
appellant
also issued the employees with notification of a disciplinary enquiry
which was scheduled for the 16
th
September 2005. Consistent with the position adopted by SATAWU that
the strike was protected none of the striking employees took
part in
the disciplinary enquiry.
[13] While the second and further respondents were still
on strike they were dismissed by the appellant on 19 September 2005
for
participating in an unprotected and unprocedural strike action.
As pointed out earlier the employees refused to participate in the
disciplinary enquiry. SATAWU actively encouraged the employees not to
participate in the disciplinary enquiry as is evident from
a missive
received by the appellant from SATAWU. The strike lasted from 8
September 2005 to 19 September 2005.
[14] A dispute arose between the appellant, on the one
hand, and first and second respondents, on the other, about fairness
of these
employees dismissal. The first respondent contended that the
reason for these employees dismissal was their participation in a
protected strike and that, therefore, the dismissal was automatically
unfair whereas the appellant contended that these employees’
participation in a strike was not protected and that, therefore, it
was not automatically unfair. The dispute concerning these
employees’
dismissal was referred to the NBCRFI for conciliation. When
conciliation failed to produce a resolution of the
dispute, first
respondent referred the dispute to the Labour Court for adjudication.
Proceedings in the Labour Court
[15] In the Labour Court the parties agreed that the
primary issue was whether or not the second and further respondents’
dismissal was automatically unfair. The matter came before Rampai AJ.
The court
a quo
was
asked to determine whether or not the second and further respondents
participated in a protected strike.
[16] The Labour Court found that the strike action was
lawful since the employees were participating in a protected strike
which
related to the employment of labour brokers by the appellant.
The Labour Court hence concluded that the dismissals of second and
further respondents were procedurally and substantively unfair. In
coming to this conclusion the court was required to evaluate
the
evidence led by both parties. The judgment of the court
a
quo
did not elaborate on the evidence led on
behalf of the parties. I therefore propose to engage in this exercise
under this rubric.
[17] The appellant opened its case with the evidence of
Mr. Sven Viljoen (‘Viljoen’), the Operations Manager of
the
appellant. On 5 September 2005 he arrived at the premises of the
company and noticed that some employees were just standing and
not
doing their work. When he asked them about their conduct they said
they would not work until he saw Nkosi and had the recognition
agreement signed. Viljoen explained to them that he had attempted to
facilitate two meetings to reach consensus on the recognition
agreement. Nkosi did not attend the first meeting. He arrived an hour
and a half late for the second meeting and at a time when
it was not
possible to accommodate him. On the 5
th
September 2005 the employees insisted that he see Nkosi. Nkosi
eventually arrived but security refused him entry into the premises
because he had no appointment. Security telephoned him and he met
Nkosi at the gate and told him to make an appointment for a
meeting.
Nkosi caused chaos on the premises. Nkosi told him if he did not
sign the recognition agreement he would organise a
strike. On 5
September 2005 the company received a 48-hour strike notice that the
strike would commence on 8 September 2005.
[18] On 8 September 2005 the employees refused to work
until the company signed the recognition agreement. He called Ms
Bosch, the
Industrial Relations Manager of the company, who
corroborated what he had already told the employees. She told them
that the strike
was unprotected. They enlisted the assistance of the
South African Police Services because the employees refused to heed
the ultimatum
to return to work or leave the premises and were
further intimidating other drivers who were not participating in the
strike. The
employees instead danced and insisted that management
sign the recognition agreement.
[19] He testified further that employees who were on
strike were given notifications of disciplinary hearings scheduled
for 16 September
2005. The hearings had to be postponed to 19
September 2005 because the striking employees refused to participate
in the hearings.
SATAWU despite being aware of the hearings
encouraged the striking employees not to participate in the hearings.
On the 19 September
2005 when the striking employees did not attend
they were dismissed
in absentia
and given dismissal letters. These letters were faxed to SATAWU.
[20] Under cross-examination he conceded that a dispute
of interest relating to the appellant allegedly wanting to use labour
brokers
was referred to the NBCRFI on 27 July 2005, however this
matter was handled by their labour consultant and he did not know the
details. He agreed that a notice dated 5 September 2005 was given
after 30 days had lapsed but reiterated that the strike, as explained
to him by the striking employees, was for signing of the recognition
agreement and it was unprotected. He did not agree that the
strike
was about the use of a labour broker. He only became aware of this
contention much later, and in any event after the strike
was over. He
confirmed that the fax transmission report dated 7 September 2005,
and the fax number used was the appellant’s.
It was not in
dispute that they used casual employees but he was not aware of any
labour broker employed by them. Although counsel
for the respondent
meandered in his cross-examination of the alleged use by the
appellant of labour brokers, at no time was it
specifically put to
Viljoen that the company used the services of a labour broker, namely
DHF Labour Hire. He agreed that Vilakazi
was carrying a placard
which read “Transiton down with casuals and drivers hire”.
[21] A video recording was made of the first day of the
strike. The transcription thereof was received as Exhibit C. This
recording
provides, in part at least, the objective evidence as to
what transpired on the morning of 8 September 2005 when the strike
began.
I shall advert to this a little later. He was emphatic that
at no time during the strike did anybody raise the issue of the
alleged
use by the company of a labour broker. With regards to
SATAWU’s letter dated 5 September 2005, he had no reason to
believe
that the reason for the strike had changed to anything other
than the failure by the company to sign a recognition agreement. On
8
September 2005, one of the striking employees, Vilakazi, had asked
him to sign the recognition agreement. He testified that due
to the
ongoing strike the company employed temporary workers.
[22] The next person to testify for the appellant was Ms
Ilse Bosch (‘Bosch’). She is employed as the Human
Resources
Manager by the appellant. She corroborated the testimony of
Viljoen that Nkosi apologised for not being able to make it to the
first meeting when the question of the content of the recognition
agreement was to be discussed. When a second meeting was arranged
Nkosi arrived very late and because of other commitments the meeting
could not continue. She had no doubt in her mind that the
strike of 8
September 2005 was for signing of the recognition agreement. On the
morning of 8 September 2005 she addressed the striking
employees and
implored them to return to work or to leave the premises and not to
intimidate the workers who were not striking.
According to her
testimony Vilakazi once again raised the failure by the appellant to
sign the recognition agreement as a reason
for the strike. This
conversation was recorded on video. As far as the disciplinary
hearing of 16 September 2005 was concerned,
she was the complainant
on behalf of the company and Helena Roux was the chairperson. The
dismissed employees did not attend the
hearing and it was postponed
to 19 September 2005. The message was communicated to the union. The
union responded by saying that
the industrial action was procedural
and protected and no employee was to attend that hearing.
[23] On 19 September 2005 these employees were found
guilty. There was an internal appeal which was unsuccessful. She
further testified
that subject to certain restrictions the Main
Agreement governing the Road Freight Industry permitted them to
employ casuals. Since
the Main Agreement regulated the industry as a
whole and since the agreement permitted the employment of casuals
this could not
have been the subject matter of a strike. She
testified that on 8 September 2005 the demonstrations were peaceful
the whole day
and one of the employees came to her with the SATAWU
standard recognition agreement and asked her to sign it in order to
end the
strike. She denied that the company ever employed the
services of a labour broker prior to the strike. Under
cross-examination
and in face of this evidence it was not put to this
witness that the company employed the services of a labour broker.
[24] Under further cross-examination she denied having
seen the union letter dated 7 September 2005 before 15 March 2007.
She steadfastly
denied that she had so structured the address to the
employees on the 8 September 2005 so as to steer the employees’
response
to the recognition agreement. On the first day of the
strike there was some intimidation and victimization which did not
last
for long. The employees wanted the company to sign the
recognition agreement. She had no doubt in her mind that the reason
the
employees went on strike was the recognition agreement and not a
matter of mutual interest.
[25] The next person to testify on behalf of the
appellant was Ms Helena Roux, a Labour Relations Consultant. On the
16
th
September
2005 she was supposed to have chaired the disciplinary enquiry which
was scheduled for that day. I do not propose to
consider her
evidence in any detail since her evidence related in the main to the
disciplinary enquiry which did not proceed. It
is further not in
dispute that SATAWU had advised the striking workers not to
participate in the enquiry as they considered the
strike to be a
protected one. In any event, on the evidence given by the company
she came to the conclusion that the strike that
commenced on 8
September 2005 was unprotected and the appropriate sanction was
summary dismissal. Her reasoning was that the dispute
was about the
recognition agreement and the CCMA had sent an advisory award on the
evening of 7 September 2005. The strike started
on the following day
and that was contrary to provisions of section 64(2) of LRA. Her
evidence concluded the evidence for the appellant.
[26] The first person to testify on behalf of the
respondent was Vilakazi, a shop steward. Vilakazi was of the view
that the strike
was lawful and protected because the appellant had
employed casuals without consulting with the employees of the first
respondent.
He emphasised this aspect in his entire evidence both in
chief and cross-examination. He denied that the strike was about a
recognition
agreement and nor had anybody mentioned anything about a
recognition agreement to the appellant’s representative when
the
strike started. This is not borne out by the video recording
made by the company.
[27] Despite being a shop steward he knew nothing about
a collective bargaining agreement which governed the industry and
permitted
an employer to use casual workers. According to Vilakazi
the company had employed casual workers since he saw new faces from
time
to time. From his evidence it became apparent that Vilakazi did
not know the difference between a labour broker and a casual worker.
He erroneously assumed that the mere fact that the company employed
casual workers from time to time meant that they were necessarily
employing labour brokers. Nor could he give any testimony that the
appellant had employed any casual workers in contravention
of the
collective bargaining agreement. All he said was and I quote:
“
…Today we see new faces,
tomorrow it is other faces, those are gone and we did not know their
names actually.
”
[28] In any event counsel for the respondents did not at
any time put to the appellant’s witnesses that they had
employed
casual workers contrary to the collective bargaining
agreement. Under cross-examination Vilakazi was constrained to admit
that
as far as he was aware Nkosi had on the 3
rd
September 2005 received a letter from the CCMA which allowed them to
strike. He admitted under further cross-examination apropos
the
letter of the 3
rd
September 2005, I quote :
“
I cannot say precisely if this is the letter,
M’Lord but what I know is that the letter which Mr Nkosi had in
his possession
was saying that I must go and tell the other employees
that we were allowed to go on strike on Monday.
”
[29] The evidence of Vilakazi provides corroboration,
irrespective of Nkosi’s evidence, that the strike which
commenced was
about the recognition agreement. If anything,
Vilakazi’s evidence corroborates the evidence of the
appellant’s witnesses,
despite Vilakazi insisting that they
were striking about casual workers, that the strike in fact was about
the recognition agreement
since it was common cause that the only
missive emanating from the CCMA on the 3
rd
September 2005 was the CCMA award which only permitted the
appellant’s employees to strike if no recognition agreement
could
be reached from the handing down of the award on the 3
rd
September 2005.
[30] On Monday, 5
September
2005, Vilakazi and the other workers came in late and found Viljoen
already on the company premises. They did not clock
in that morning
and the work stoppage commenced. Vilakazi became evasive when
counsel for the appellant tried to elicit answers
about the stoppage
and responded by stating that Nkosi would respond on those aspects
when he testified. He further denied that
they were given any notice
to attend a disciplinary hearing. He testified that even if a notice
had been given they would not
have participated in any disciplinary
hearing.
[31] The next person to testify was Nkosi, a trade union
organiser employed by SATAWU. In his evidence in chief he testified
that
he had encountered problems with the appellant’s
representative in agreeing upon a recognition agreement and
discussion about
the use of a labour broker by the appellant. I
shall not deal with his further evidence on what is common cause
since the same
is on record relating to the two disputes in which
appellant and the respondents were engaged in.
[32] He had received the advisory award on 3 September
2005 which led him to issue a letter on the same day countermanding
the strike
which was due to commence on the 5
th
September 2005.
On 5 September 2005, he caused to be issued a further
notice in terms of s 64 (1) (b) of the LRA and this was supposed to
be in
respect of the labour broker issue, despite the absence of such
mention in the notice itself. He further testified that the letter
he wrote on 7 September 2005 in response to appellant’s letter
dated 6 September 2005 was to inform the appellant that the
strike
which was due to commence on 8 September 2005 was a strike relating
to a mutual interest dispute. In his view the strike
was protected
because 30 days had elapsed since referral to the bargaining council
of the dispute between the parties of the alleged
use of labour
brokers by the appellant.
[33] In his evidence in chief he testified that when he
wrote a letter dated 17 September 2005 in response to the appellant’s
letter dated 16 September 2005 with regards to the disciplinary
hearing, he thought that the appellant had engaged in a lockout
and
it would only be uplifted once the strike was over and then he would
have advised the workers to attend a disciplinary hearing.
This
reasoning is both illogical and inconsistent with the provisions of
the LRA. As far as the letter of 19 September 2005 in
which the
appellant informed him that the striking workers employment had been
terminated since they failed to attend a disciplinary
hearing, he
testified that the disciplinary hearing of 19 September 2005 was
unfair because there was a lockout and a strike going
on. In any
event an urgent application brought by him on behalf of the dismissed
employees, was in itself dismissed by the Labour
Court for lack of
urgency.
[34] I do not propose to deal in any detail with his
evidence in cross-examination save to refer to certain aspects. He
testified
that the letter of 7 September 2005 to which I have
adverted earlier and which the appellant said it did not receive
could not
be attached to the urgent application because they were
running against time. He further testified that the original letter
was
missing. I do not propose saying anything further on this aspect
since the appeal before us was argued on the basis that the
transmission
slip indicates that a letter was sent although not
received by the appellant.
[35] What is however of significance is his testimony
that the appellant was already using a labour broker namely, DHF
Labour Hire,
prior to the strike. This aspect was not canvassed with
any of the appellant’s witnesses when they testified. Nor is
it
mentioned in the referral made to NBCRFI by the first respondent
as evidenced by annexure TCN1. One would have expected the first
respondent to particularize the name of the broker in its referral.
I accept that language is not an instrument of mathematical
precision, however since the court
a quo
was constrained for probabilities in the language used by the parties
whilst not attaching sufficient weight to the
viva
voce
evidence led before it, one would have
expected the first respondent to use the name of the labour broker.
Instead in annexure
TCN1 which forms part of Exhibit A the nature of
the dispute set out is as follows:
“
The dispute is about mutual interest in that
the employer wants to use labour broker, while the employees working
the employer to
employ employees permanent where there is vacancies.
”
[36] We are left with the impression that this is an
after thought since Mr Baloyi who acted for the respondent in the
court
a quo
would not
have failed to canvass this salient aspect and put it to the
appellant’s witness since it forms the gravamen of
the
respondents’ complaint against the appellant. He conceded that
the letter dated 5 September 2005 did not say what the
dispute was
all about. He further conceded that there was no letter in the
bundles which pointed to the use by the appellant of
labour brokers.
ON APPEAL
[37] The critical question before us, as it was before
the court
a quo
, was
the nature of the dispute giving rise to the strike and whether the
finding by the court
a quo
of an automatically unfair dismissal can stand in light of the
evidence tendered in the court
a quo
.
It is not in dispute that as early as 29 June 2005, following the
CCMA referral on 9 June 2005, the first respondent had threatened
a
strike over the recognition dispute. On 2 September 2005, the union
notified that its members would commence with a strike over
the
recognition dispute at 14h00 on Sunday, 4 September 2005. On 3
September 2005 and at midday, Nkosi met the employees at the
first
respondent’s offices to discuss plans. He however, had
fortuitously and on the same day had come into possession of
the
advisory arbitration award which recommended that the parties enter
into a recognition agreement within the next 30 days before
striking.
Nkosi appeared to have come to the conclusion that the union was
bound by the advice given by the commissioner and that
the strike the
following day would be unprotected. Nkosi in his evidence informed
the court that he had informed Vilakazi that
they should not strike
on Monday, 5 September 2005.
[38] Work stoppage did occur on Monday, 5 September 2005
despite the advisory award. Vilakazi testified that Nkosi had told
him
on Saturday, 3
rd
September 2005, to tell the other employees that they were allowed to
go on strike on Monday, in light of the “letter”
which
Nkosi had received from the CCMA. The “letter” clearly
is a reference to the award given by the CCMA. This
evidence of
Vilakazi corroborates the evidence of Viljoen that some employees
embarked on a work stoppage in the morning and that
they would not
return to work until such time as Viljoen signed a recognition
agreement. We viewed the video tape and although
a worker was
carrying a placard about casual workers, Vilakazi demanded that the
recognition agreement be signed. If one takes
into account
Vilakazi’s evidence in the court
a quo
together with what appears on the video footage, the probabilities
are overwhelming that the stoppage related to the signing of
the
recognition agreement.
Bosch also corroborated the version of Viljoen that the
strike demand was for the conclusion of a recognition agreement and
not
about any labour brokers since although the appellant was
employing casuals from time to time no labour broker was being used
by
the company. She also corroborated Viljoen’s evidence that
one of the employees presented her with a copy of the standard
union
recognition agreement for signature.
[39] The appellant’s version of the events of 5
September 2005 has to be accepted since it was substantially
unchallenged
and in fact in part corroborated by Vilakazi and the
video tape. I am left with the impression that Nkosi used the
dormant labour
broker dispute as a disguise for a strike over the
recognition agreement which had already commenced. I am thus
satisfied that
the strike which commenced on 5 September 2005 related
to the failure by the appellant to sign the recognition agreement.
[40] The respondents withdrew their first notice of
intention to strike over the recognition dispute and did not give the
appellants
another notice of intention to strike over that issue. On
the respondents own version the second strike notice did not relate
to a recognition dispute. In the result, the strike which commenced
on 5
th
September
2005 contravened s 64 (1) (b) (read with s 64 (2) of the LRA), and
therefore once it is accepted that the strike was
about the
recognition dispute it follows that the strike was unprotected.
[41] I shall in passing advert to what in our view
constituted a misdirection by the court
a quo
in not allowing the admission of the Main Collective Agreement and
the Dispute Resolution Collective Agreement of the NBCRFI which
was
duly promulgated and which was binding on the parties at the time of
the strike. I am in agreement with the court
a
quo
that the agreement was not specifically
pleaded by the appellant in the court
a quo
but that cannot provide a cogent basis for its non- admission. It
is trite law that the legal status of a published national
collective
bargaining agreement is that of a subordinate legislation. Such an
agreement fits into the juristic pigeon hole of
a statute rather than
contract.
[42] In terms of s 23 of the LRA the legal effect of a
collective agreement extends beyond the parties to the collective
agreement.
The relevant provisions appear below:
‘23. Legal effect of
collective agreement –
(1) …
(2) A
collective agreement
binds for the whole period
of the
collective agreement
every
person bound in terms of subsection (1) (c) who was a member at the
time it became binding, or who becomes a member after
it became
binding, whether or not that person continues to be a member of the
registered
trade union
or
registered
employers’ organisation
for
the duration of the
collective agreement
.
(3) Where applicable, a
collective
agreement
varies any contract of employment
between an
employee
and employer who are both bound by the
collective
agreement
.
(4) Unless the
collective
agreement
provides otherwise, any party to a
collective agreement
that is concluded for an indefinite period may terminate the
agreement by giving reasonable notice in writing to the other
parties.’
The extensive binding nature of the provisions of a
collective agreement provides support for the view that such
agreements are
a form of subordinate legislation.
[43] The LRA further provides for the enforcement of the
collective agreement reached by the bargaining council. Section 33
provides:
‘
33. Appointment and powers of designated
agents of bargaining councils –
(1) The
Minister
may at the request of a
bargaining council
appoint any person as the designated agent of that
bargaining
council
to promote, monitor and enforce
compliance with any
collective agreement
concluded in that
bargaining council
.
(1A) A designated agent may –
(a) secure compliance with the council’s
collective agreements
by –
publicising the contents of the agreements.
…’
[44] Parliament has authorized the relevant Minister,
who is a member of the Executive, to make an appointment of a
designated agent
at his or her discretion. The agent’s powers
are specifically provided for in the rest of the section. These
powers are
necessary for the effective implementation of the LRA.
Parliament intended a national collective bargaining agreement to be
subordinate
legislation.
[45] The requirement for publicising the contents of the
collective agreement is further support for the contention that
national
collective bargaining agreements constitute subordinate
legislation. This requirement enjoys constitutional recognition in
terms
of s 101 (3) of the Constitution of the Republic of South
Africa, 1996 which reads:
‘101 Executive decisions
–
(1) …
(2) …
(3) Proclamation, regulations and other instruments of
subordinate legislation must be accessible to the public.’
[46] There can be no dispute that a collective
bargaining agreement or an industrial agreement is not a contract but
rather a piece
of subordinate legislation. In
S
v Prefabricated Housing Corporation (Pty) Ltd and Another
1974 (1) SA 535
(A) the court considered the validity of an
industrial agreement made by the Pietermaritzburg Industrial Council
and promulgated
by the Minister in the Government Gazette. The court
asked the question whether the correct ‘juristic pigeon-hole’
for industrial agreements was contract or statute. Trollip JA, on
behalf of a unanimous court, held at 539G-540A that the type
of
document, although referred to as an “agreement” in
industrial parlance, was not a contract in the legal sense.
The
parties to the industrial council to the employers’
organizations and the trade unions do not contract
inter
se
to produce the measure. They ‘negotiate’
the ‘agreement’ but ultimately the industrial council
decides
whether to adopt and transmit the measure to the Minister.
The learned Judge also referred to the requirement of publication in
the Gazette as a further indication that the industrial agreement was
a piece of subordinate legislation. The court also referred
to the
fact that the Minister could provide that the agreement was binding
on employers and employees in the industry other than
those who
entered into the agreement. Accordingly, the court held that an
industrial agreement is not a contract but a piece of
subordinate
legislation.
[47] That being so the court
a
quo
was not only bound to admit the main
agreement but also allow cross-examination on it. The agreement
clearly provides for the
employment of casual workers. No evidence
was presented in the court
a quo
that casuals were employed contrary to the agreement and as far as
labour brokers are concerned it was never put to any of the
appellant’s witnesses that a labour broker was employed. Be
that as it may in light of the conclusion to which we have come,
I am
satisfied that the strike pertained to the recognition agreement.
[48] In the premises the appeal is upheld and the order
made by the court
a quo
is set aside in its entirety. As far as costs are concerned, one is
left with the clear impression that the first respondent failed
to
properly direct the cause of events which led to the strike and did
not provide proper advice to the striking workers. Accordingly,
fairness dictates that the first respondent is ordered to pay the
costs of the proceedings in the court
a quo
and the costs occasioned by the appeal.
PATEL JA
I agree
WAGLAY ADJP
I agree
SANGONI AJA
Appearances:
For the Appellant/s: Mr F. BODA
Instructed by: YUSUF NAGDEE ATTORNEYS
For the Respondent/s: Mr. J S MPHAHLANI
Instructed by : M M BALOYI ATTORNEYS
Date of Judgment: 14 MAY 2010
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