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[2011] ZALAC 4
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South African Local Government Association v South African Municipal Workers Union (JA26/07) [2011] ZALAC 4; [2011] 7 BLLR 649 (LAC); (2011) 32 ILJ 1886 (LAC) (29 March 2011)
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
Case No:
JA26/07
In the matter between:
SOUTH AFRICAN LOCAL
GOVERNMENT
ASSOCIATION
…........
Appellant
and
SOUTH AFRICAN MUNICIPAL
WORKERS UNION
….....................................................................
Respondent
_____________________________________________________________
JUDGMENT
________________________________________________________________________
Introduction
[1] This is an appeal against the
judgment of the Labour Court (per Van Niekerk AJ) delivered after an
urgent application was brought
by the appellant against the
respondent (the union), seeking to interdict the union’s
members from embarking on a secondary
strike.
1
The union represents employees in the
municipal sphere of government. It called the secondary strike in
support of a protected primary
strike by employees in the national
and provincial spheres of government who were in dispute with their
employer over wages and
other conditions of employment. The court
a
quo
granted an order in
positive terms, declaring that a one day strike excluding employees
engaged in essential services was protected,
thus effectively
dismissing the application. The court further ordered the appellant
to pay the costs of the application.
Material facts and the judgment of
the court
a quo
[2] The material facts are not in
dispute. On 1 June 2007, the union addressed a letter to the
appellant stating that it intended
calling a secondary strike in
support of wage demands made by employees engaged in national and
provincial government. On 6 June
2007, the union formally gave notice
in terms of s 66 (2)
of
the Labour Relations Act no.66 of 1995 (“the Act”)
that its members would embark on
secondary strike action
"in
support of the public servants wage demands as from 12: 01 midnight
on Wednesday, 13 June 2007"
.
While the strike notice was silent on the extent of the strike, the
affidavits filed in the proceedings made it clear that the
proposed
strike called by the union was a one-day strike, scheduled to take
place on 13 June 2007, and that those employees engaged
in essential
services would not participate in the strike.
[3] It was common cause before the
court
a quo
that
the first two conditions established by s 66(2) of the Act had been
met, i.e. the primary strike was protected, and proper
notice of the
secondary strike had been given. The issue before the court
a
quo
was whether the
secondary strike called by the union met the requirements of s 66 (2)
(c), which provided as follows:
“
(2) no person may take part in
a secondary strike unless
(a) …...
(b) …..
(c) the nature and extent of the
secondary strike is reasonable in relation to the possible direct or
indirect effect that the secondary
strike may have on the business of
the primary employer”
[4] The court
a
quo
observed that in the
founding affidavit, the appellant’s case comprised no more than
a bland statement that the withdrawal
of labour in the municipal
sector would have no direct or indirect effect on the business of the
national or provincial government,
and that the effect of the
proposed strike would only grossly inconvenience members of the
public. In addition, the appellant averred
that the business of the
national and provincial government was not dependent in any way on
the functions carried out by the municipalities,
and that the source
of authority of local government is the Constitution of the Republic
of South Africa 1996 (the Constitution)
and not the national or
provincial government. There was no further elucidation of these
averments in the papers, nor any further
factual foundation laid for
them.
[5] The court
a
quo
held that an assessment
of the nature and extent of the secondary strike clearly contemplated
that its impact on the business of
the secondary employer was a
fundamental factor, and that an assessment of that impact was
required
2
.
It further stated that the use of the words ‘
reasonable
in relation to
’
in s
66 (2) (c) imported a proportionality assessment. The test to be
applied was expressed in the following terms:
“
In short, whether or not a
secondary strike is protected is determined by weighing up two
factors – the reasonableness of
the nature and extent of the
secondary strike (this is an enquiry into the effect of the strike on
the secondary employer and will
require consideration, inter alia, of
the duration and form of the strike, the number of employees
involved, their conduct, the
magnitude of the strikes impact on the
second employer and the sector in which it occurs) and, secondly, the
effect of the secondary
strike on the business of the primary
employer, which is, in essence, an enquiry into the extent of the
pressure that is placed
on the primary employer”
3
.
[6] Applying the aforestated test to
the facts, the court
a quo
noted that the strike called by the
union was neither continuous nor intermittent: it was limited to a
single day. While the impact
of the withdrawal of labour for a day by
those of the union's members not engaged in essential services would
obviously be felt
by the municipalities affiliated to the appellant
and also by members of the public, any inconvenience to the latter
would be limited
to a single day. Turning to the possible effect that
the proposed strike would have on the business of the primary
employer, the
court referred to those provisions of the Constitution
establishing the three tiers of government and observed that
government
at all levels is in the business of providing services.
Municipalities play a role in the activities of national and
provincial
departments and the municipal sector provides operational
and administrative services to the national and provincial spheres of
government. This had the result that:
“
Given the integrated,
coordinated and cooperative structure of government as a whole, it is
entirely possible that the withdrawal
of municipal services will
have, at least, an indirect, if not a direct effect on the business
of those high levels of government
engaged in the primary strike, and
will, at least, place pressure on them in the national bargaining
process currently underway”
4
.
[7] On the above basis, the court
a
quo
concluded that the union had succeeded in establishing that
the nature and extent of the secondary strike was reasonable in
relation
to its effect on the business of national government and
that the appellant had accordingly failed to establish a clear right
to
the relief that it sought.
[8] The decision of the Court a quo
was contrary to other decisions of the Labour Court which had
rejected proportionality as a
relevant factor in determining the
reasonableness or otherwise of the nature and extent of the secondary
strike on the business
of the primary employer in terms of Sec 66 (2)
( c) of the Act.
The appeal
[9] This Court has not yet had an
opportunity to consider the meaning of s 66(2) (c) of the Act, which
requires that “
the nature and extent of the secondary strike
is reasonable in relation to the possible direct or indirect effect
that the secondary
strike may have on the business of the primary
employer”.
In these proceedings, quite properly, neither
the appellant nor the union contest the proposition that section
66(2)(c) of the Act,
imports a proportionality test. What is required
to be determined, as the court
a quo
correctly observed, is
the reasonableness of the nature and extent of the secondary strike
(which inevitably involves an enquiry
into the effect of the strike
on the secondary employer) in relation to the effect on the business
of the primary employer (which
inevitably involves an enquiry into
the extent of the pressure placed on the primary employer).
[10]
Under the
head of proportionality, the court must weigh the effect of the
secondary strike on the secondary employer and the effect
of the
nature and extent of the secondary strike on the business of the
primary employer. The
sub-section
does not require actual harm to be suffered by the primary employer
but that there must be the possibility that it may.
The harm that the
employer may suffer is not required to be direct. It may be harm that
indirectly
affects the business of
the primary employer. It would, therefore, in every case require a
factual inquiry to determine whether
or not the possible effect the
secondary strike will have on the business of the primary employer is
reasonable. The harm that
may be suffered by the secondary employer
must be proportional to the possible effect the secondary strike may
have on the business
of the primary employer.
[11] The notice of appeal sets out a
number of grounds on which the appeal is brought, but only the
following were pursued:
(i) that the true issue in striking
the balance postulated by the principles of proportionality is the
extent to which the secondary
employer can exert influence on the
primary employer in order to encourage it to compromise or capitulate
in the dispute;
that the relationship between local
government on the one hand and provincial and national government on
the other was but one
factor to be taken into account in determining
the legitimacy of the strike;
that the degree of integration,
co-ordination and co-operation between local and central government
was too slight to legitimate
a secondary strike against
municipalities and that in any event, municipalities were provided
with too little power to enable
them to influence decisions of
national government in the collective bargaining process; and
that the court ought to have held, in
determining the legitimacy of the secondary strike, that the
interests of third parties
deserve at least as much consideration
and weight as the interests of the secondary employer and the
striking union and its members.
[12] In his argument Mr. Brassey,
counsel for the appellant, made reference to the distinction between
a sympathy and a secondary
strike. I do not propose to go into that
distinction because in the case of a strike dealt with in s66 of the
Act what is important
in the context of the requirement contained in
s66 (2) (c) is the reasonableness or otherwise of the nature and
extent of the secondary
strike in relation to the possible direct or
indirect effect that such strike may have on the business of the
primary employer.
Since it is common cause that the requirement
contained in s66 (2) (c) of the Act is the only requirement in issue
in this matter
the question for determination is whether the
appellant has shown that the nature and extent of the secondary
strike is unreasonable
in relation to the possible effect it may have
on the business of the primary employer.
[13] In the present instance, Mr
Brassey submitted that the secondary strike was called with the
object of giving emotional support
to the primary strikers and place
the national and provincial government under greater socio-economic
pressure. These objects,
while not in themselves illegitimate,
failed, he argued, to pass the test of reasonableness under s 66(2)
of the Act.
[14] I disagree. The clear aim of
those employees participating in the secondary strike was to support
the primary strike in order
to have some impact on the bargaining
process between the primary employer and the trade union engaged in
the primary strike. The
secondary strike was confined to a single
day. While there was harm done to municipalities that are members of
the appellant and
their residents for the day of the strike, the harm
was not excessive. Essential services continued to operate. The only
factual
basis that the appellant laid for the relief it sought was a
blanket statement that the withdrawal of labour in the municipalities
would have no direct or indirect effect on the business of the
national or provincial government, and that the business of the
national or provincial government was not dependent in any way on the
functions carried out by local government.
[15] In the answering affidavit of the
union, the linkages between national, provincial and local government
were explored in some
detail. Apart from the fact that the state
provides services through all three spheres of government, the union
observed that all
three spheres form part of the public
administration as envisaged by s195 of the Constitution and in that
sense, the proposed strike
was an extension of the primary strike.
The constitutional imperative of co-operative governance entrenched
in the Constitution
was canvassed in some detail. In the replying
affidavit, the appellant described these averments as vague
generalities, and submitted
that an obligation to co-operate fails to
explain why a strike in one sector necessarily had an adverse effect
on the business
or functions of another. From the papers before this
Court, I am of the view that the court
a quo
correctly found
that municipalities play a role in the activities of national and
provincial governments, and that they provide
operational and
administrative services to the national and provincial spheres of
government. In the context of the system of co-operative
governance
established by the Constitution, in my view, the court
a quo
correctly assessed the possible impact of the secondary strike on the
business of the primary employer and its finding that the
secondary
strike would have some impact on the bargaining process between the
primary employer and the trade union involved in
the primary strike
was justified.
[16]
Mr. Brassey also submitted that the secondary strike must bring its
influence to bear in some tangible or
material way on the secondary
employer who must then put pressure on the primary employer to
compromise or capitulate to the demands
of its workers. I cannot
agree. There is no requirement in s66 of the Act that the secondary
employer should exert influence on
the primary employer or that the
secondary employer should have the capacity to exert influence on the
primary employer in order
to encourage it to compromise or capitulate
to the demands of the workers. What sec 66 requires is that the
secondary strike
should have a possible direct or indirect effect on
the business of the primary employer and that the nature and extent
of the
secondary
strike should be reasonable in relation to the possible direct or
indirect effect on the business of the primary employer.
[17] In conclusion the contention by
the appellant that the secondary strike was unreasonable falls to be
rejected. Accordingly,
the appeal must fail. With regard to costs, I
am of the view that the requirements of the law and fairness dictate
that there should
be no order as to costs in the appeal.
[18] In the result I make the
following order:
“
The appeal is dismissed with
no order as to costs.”
___________________________
Waglay JA
I agree
________________________
Zondo JP
I agree
________________________
Kruger AJA
Appearances
For the Appellant: Adv MSM Brassey SC
with him Adv W.R Mokhare
Instructed by: Werkmans Inc
For the Respondent: Adv J.G Van der Riet SC
Instructed by: Cheadle Thompson & Haysom
Date of Judgment: 29 March 2011
1
The
judgment is reported at
[2007] ZALC 43
;
[2008] 1 BLLR 66
(LC).
2
see
paragraph [14] of the judgment of the Court
a
quo
3
at
paragraph [16] supra
4
at
paragraph [21] of the judgment