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[2013] ZALAC 6
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South African Clothing Textile Workers Union (SACTWU) and Others v Yarntex (Pty) Ltd t/a Bertrand Group (PA07/10) [2013] ZALAC 6; (2013) 34 ILJ 1931 (LAC) (28 February 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case no: PA07/10
Reportable
In the matter between:
SOUTH AFRICAN CLOTHING
TEXTILE WORKERS UNION (SACTWU)
................................................
First
Appellant
NS MAVAMA AND OTHERS
..........................................
Second
and Further Appellants
and
YARNTEX (PTY) LTD
t/a BERTRAND GROUP
................................................................................
Respondent
Heard:
Delivered:
28 February 2013
Summary: Employees dismissed from
employment on account of having participated in a strike at plant
level contrary to the provisions
of the constitution of the National
Textile Bargaining Council. Employees had previously been involved in
an unlawful strike action
in respect of which they were given final
written warnings. Before dismissal employer issued an ultimatum to
each shift to recommence
work by a certain time. The employees
ignored the ultimatum in spite of advice from their union to the
contrary. Held that the
dismissal of the employees was both
procedurally and substantively fair.
JUDGMENT
SANDI, AJA
[1] This is an appeal against the
judgment of the Labour Court (Bhoola J)
dismissing
the second and further appellants’ claim that they were victims
of an automatically unfair dismissal on account
of participation in a
lawful strike. The Labour Court rejected the appellants’ claim
for reinstatement with costs, holding
that the strike was unprotected
and therefore unlawful.
[2] In the alternative, the appellants
appeal the conclusion of the Labour Court that their dismissal on
account of their participation
in the strike action was both
procedurally and substantively fair.
[3] This appeal is before us with the
leave of the Court a
quo
.
[4] The first appellant is the South
African Clothing and Textile Workers Union (SACTWU) and the second
and further appellants are
its members and employees of Yarntex (Pty)
Ltd t/a Bertrand Group (Bertrand), who is the respondent in this
appeal.
[5] Bertrand was engaged in the
textile industry and operated its business in the former Ciskei
within the Province of the Eastern
Cape. Bertrand fell under the
jurisdiction of the National Textile Bargaining Council (NTBC).
[6] Another company, Derlon, operated
its textile business in KwaZulu-Natal and also fell under the
jurisdiction of the NTBC. Though
Derlon does not take part in these
proceedings, its relevance to the matter will become apparent later
on in this judgment.
[7] The NTBC, formed in or about 2003,
is an amalgamation of a number of earlier bargaining councils. It has
its own constitution
1
which was formulated and agreed to by
the employers’ organisations, on the one hand, and SACTWU, on
the other.
[8] In terms of the constitution of
the NTBC, the textile industry is divided into different sub-sectors.
One such sub-sector is
the Wool and Mohair and Worsted Products with
which we are concerned in this case. This sub-sector is divided into
two sections.
The first is the Wool and Mohair section. The second is
the Worsted section. The Worsted section is further divided into two
sub-sections,
namely, the Spinners and the Verticals. Under each of
these sub-sections,
two
employers are involved at plant level. These employers are Bertrand,
Derlon and SA Fine and Hextex. Bertrand and Derlon fall
under the
Spinners’ sub-section while Hextex and SA Fine fall under the
Verticals’ sub-section.
[9] The founding parties to the NTBC
are stated in the constitution to be the employers’
organisations and SACTWU. The employers’
organisation involved
in this sub-sector of the bargaining council is the National
Association of Worsted Textile Manufacturers
(NAWTM). It represents
the employers in the NTBC, namely, Bertrand, Derlon, Hextex and SA
Fine. SACTWU represents the employees.
[10] One of the objectives of the NTBC
as set out in clause 3 of the constitution is ‘to regulate
collective bargaining and
industrial action in the industry, in the
sub-sectors and in any sections’.
[11] The constitution provides that
the structures of the NTBC, amongst others, are ‘[s]ub-sector
chambers and sections.’
2
[12] It was an accepted practice at
the NTBC that, after proposals were made by SACTWU for substantive
negotiations on wage rates,
the Verticals’ and the Spinners’
sub-sections of the Worsted section would negotiate with SACTWU in
separate chambers
of the NTBC in order to determine the terms and
conditions applicable to them. Such negotiations would take place
under the auspices
of the NTBC. Bertrand and Derlon acted as
representatives of the Spinners’ sub-section while SA Fine and
Hertex represented
the Verticals. Agreements reached in these two
chambers would be incorporated into one document which would be
signed by NAWTM
and SACTWU. This agreement would be binding on the
employers and employees involved in the Worsted sub-section of the
Wool and
Mohair and Worsted products sub-sector.
[13] Because Bertrand and Derlon had
conducted their businesses in disadvantaged areas, they were granted
a concession to pay 80%
of the gazetted wage rates. This arrangement
commenced operating before the establishment of the NTBC.
[14] In 2003,
Derlon
entered into an agreement with SACTWU in terms of which it was agreed
that Derlon would pay 80% of the gazetted wage rates
for a period of
eight years subject to payment of a fixed annual increase. In 2004,
Derlon approached the NTBC and sought
exemption from the terms of this agreement, which was refused. On
appeal to the Independent
Exemptions Board, Derlon was granted an
exemption of five years which would expire in 2009. This
determination was made by the
Independent Exemptions Board on 06
September 2004.
[15] As provided for in the
constitution SACTWU submitted its proposal for wage negotiations in
respect of the 2008/2009 year. A
uniform wage increase of R70-00 per
week was proposed in respect of the Worsted sub-sector. Three rounds
of wage negotiations were
held in Cape Town. Wages and terms of
conditions of employment were agreed in respect of the Verticals’
sub-section but not
in respect of the Spinners’ sub-section.
[16] SACTWU sought to change the
agreement that Bertrand and Derlon pay 80% of the gazetted wage rates
and, instead, demanded payment
of 100% thereof.
[17] On 03 July 2008, a draft
collective agreement with the Spinners’ sub-section was signed
for and on behalf of NAWTM. SACTWU
refused to sign it and advised
that it had not been mandated to sign an agreement that covers the
Bertrand Group.
[18] On or about 9 July 2008, SACTWU
addressed a memorandum (headed: wage negotiation settlement for the
Spinners sub-sector) to
Bertrand and Derlon. The memorandum was
signed by one Kannemeyer on behalf of SACTWU and records that
substantive wage negotiations
in the Spinners sub-sector have been
finalised and that a 9.5% increase had been agreed upon. On the
memorandum provision was made
for Bertrand and Derlon to sign the
agreement. The memorandum records the following:
“
The
Worsted Sector agreement is in the process of being finalised by the
parties. This agreement will contain the improvements to
conditions
of employment for the entire Worsted sector as the new minimum wage
rates for 2008/2009.”
[19] Bertrand was satisfied with the
memorandum as it reflected the terms of the agreement reached with
SACTWU. However, Bertrand
did not sign it because Bertrand had no
authority to do so on behalf of NAWTM. According to Bertrand, it was
NAWTM and SACTWU that
had to enter into the agreement at national
level. NAWTM and SACTWU had to sign the agreement and not Bertrand
and Derlon. Besides,
the memorandum did not incorporate an agreement
with the Verticals. However, Derlon signed the memorandum thereby
entering into
an agreement with SACTWU. Thereafter, Derlon
implemented the terms of the agreement. According to Bertrand, the
effect of this
was that SACTWU entered into a separate agreement with
Derlon at plant level to the exclusion of Bertrand. Bertrand
entertained
the view that the agreement with Derlon undermined the
principles of the bargaining council.
[20] On 17, 21 and 22 July 2008,
Bertrand’s employees embarked on a wildcat strike in an attempt
to coerce Bertrand to enter
into a separate agreement with them. No
strike was directed at Derlon. I should mention that in February 2008
some of the employees
were issued with final written warnings for
having taken part in an unprotected strike.
[21] At negotiations held on 22 July
2008, SACTWU tabled a demand to Bertrand for payment of 100% of the
gazetted wage rates. Negotiations
could not resolve the matter.
[22] On 25 July 2008, SACTWU addressed
a letter to Bertrand advising that, because Bertrand had rejected
SACTWU’s proposal
they would formally declare a dispute in
terms of the constitution.
[23] On 30 July 2008, SACTWU addressed
a further letter to Bertrand withdrawing their memorandum of 9 July
2008 and advising that:
“
...
Subsequent to the draft settlement agreement sent to your Patrick
Arnold on 9 July 2008, we regrettably inform you that we have
been
mandated not to conclude an agreement that will cover the Bertrand
Group.”
The letter stated that the draft
settlement agreement was withdrawn. It reiterated that the increase
of 9.5% should be calculated
on the gazetted rate of the Spinners’
wages. The letter was not forwarded to Derlon. In this regard the
evidence tendered
on behalf of Bertrand was that: had they acceded to
this demand, they would have been required to pay substantially more
wages
than what was being paid by Derlon.
[24] In a letter to SACTWU dated 4
August 2008, Bertrand’s attorneys registered Bertrand’s
dissatisfaction with the
fact that SACTWU was making additional
demands on Bertrand only and not on Derlon. The letter went on to
state that the dispute
between the parties had to be dealt with at
national level and not at plant level.
[25] On 11 August 2008, SACTWU wrote
to Bertrand advising that it was withdrawing the dispute “declared
at plant level”
and that it would process a fresh dispute in
accordance with the constitution of the NTBC. The withdrawal of the
dispute at plant
level seems to indicate that SACTWU appreciated and
accepted that the dispute had to be declared against the employers’
organisation,
NAWTM.
[26] Indeed, on 11 August 2008, SACTWU
addressed a letter to NAWTM and the secretary of the NTBC declaring a
dispute with the “Spinners
sector”. The letter is couched
in the following terms:
“
DECLARATION
OF DISPUTE: 2008/2009 SPINNERS SECTOR OF WORSTED SUB-SECTOR
We
advise that no settlement has been concluded in the substantive
negotiations for the period 2008/2009 for the spinning compound
of
the Worsted sub-sector of the National Textile Bargaining Council.
We
further advise that we are formally in dispute with employers in the
spinning sector of the Worsted sub-sector.
We
refer you to section 18 of the Council’s constitution with
reference to sub-sections 18.9 and 18.10.1.
The
dispute will be referred to the Council for processing in terms of
the Council’s constitution.”
It is to be noted that the letter
refers to “employers” in the Spinning sector.
[27 Thereafter, on 25 August 2008,
mediation took place before the NTBC which did not resolve the
dispute and a certificate to that
effect was issued.
[28] SACTWU conducted a strike ballot
with Bertrand’s employees but not those employed by Derlon. In
an e-mail dated 8 September
2008, Bertrand reminded SACTWU that ‘…
this is sectorial and not plant level bargaining.’
The e-mail further recorded the
following:
”
Why
are Bertrand the only recipients of a strike ballot which indicates
we are not Bargaining at sub-sector levels which is clear
in the
constitution. The question has to be asked why Bertrand alone is been
(sic)
targeted.”
[29] Notice to commence a strike on 17
September 2008 was issued by SACTWU on 11 September 2008. It stated
that the strike was being
called because ‘wage negotiations for
2008/2009 Spinners sector of Worsted sub-section have not yet been
settled.’
[30] On 17 September 2008, the strike
commenced at Bertrand’s premises.
[31] While the strike was in progress,
the attorneys representing SACTWU and Bertrand had a telephonic
discussion concerning the
strike, during which an undertaking was
made. The following is a written confirmation of that undertaking:
“
We
refer to the above matter as well as to our telephone conversations
therein.
We
confirm that:
Our
client shall suspend its strike action pending further negotiations
between the parties.
Our
client’s members shall return to work on Monday morning the
22
nd
September 2008.
Our
client undertakes to provide your client with at least 48 hours
notice of any further strike.”
We
confirm that the above is without any admission on the part of our
client or its members that the strike action is unprotected.’
[32] In response to the strike notice,
Bertrand wrote to SACTWU pointing out that it did not comply with the
constitution because
the “Spinners sector” referred to in
the notice was not a party to the NTBC. This statement obviously
referred to clause
5 of the constitution, wherein the parties are
defined as registered employers’ organisations and SACTWU.
[33] At 15h30, on 17 September 2008,
strike action commenced at Bertrand’s premises. On that day,
Bertrand issued the first
ultimatum calling upon the striking
employees to resume their normal duties the following day. The notice
advised the employees
that the strike was unprotected. On the same
date, a letter was addressed to SACTWU, stating the reasons why
Bertrand was of the
view that the strike was unprotected. The letter
was also addressed to the employees and was attached to the
ultimatum. Acts of
intimidation committed by strikers against other
employees were mentioned in the ultimatum and the employees were
reminded that
they were on final written warnings for having
participated in an unprotected strike action in the past. It was
stated that if
they did not comply with the ultimatum, disciplinary
action taken against them could result in their dismissal. It urged
them to
seek advice from SACTWU. The final written warnings referred
to in the ultimatum are in respect of the unprotected strike held on
17, 21 and 28 July 2008.
[34] The letter attached to the
ultimatum was, as stated above, also addressed to SACTWU. Therein
Bertrand’s attorneys gave
a comprehensive analysis of the
constitution in support of the view that the strike was unprotected.
I shall refer to the relevant
provisions of the constitution later on
in this judgment. In the said letter Bertrand’s attorneys make
the following observation:
‘
It
is apparent from your fax of 17 September 2008 that you have
misunderstood our client’s letter (of 16 September 2008) and
are misreading the Constitution of the National Bargaining Council
(the constitution).’
[35] Again, on 17 September 2008,
Bertrand’s attorneys wrote to SACWTU seeking their ‘urgent
response to this matter
before decisions are taken by our client
regarding commencement of discipline against your members.’
[36] The following day, SACTWU
acknowledged receipt of the comprehensive letter addressed to it by
Bertrand’s attorneys and
advised that they had considered it
carefully and were seeking legal advice.
[37] On two occasions, on the 18
September 2008, the employees stormed Bertrand’s premises and
threats of violence were made
against monthly- paid employees.
Written notices to vacate the premises were issued in which the
employees were advised that disciplinary
action could be taken
against them which could result in their dismissal.
[38] Bertrand’s attorneys
discussed the employees’ behaviour referred to above with an
official of SACTWU as well as
SACTWU’s attorneys. A letter
confirming the discussions was addressed to SACTWU in which they were
advised that disciplinary
action against the employees was likely to
be instituted.
[39] In a telephonic discussion held
on 19 September 2008, SACTWU’s attorneys agreed to attend to
the matter on an urgent
basis. At about 12h18, on the same day,
SACTWU’s attorneys wrote to Bertrand’s attorneys advising
that the strike action
would be suspended pending further
negotiations. An undertaking was made that the employees would return
to work on the morning
of Monday, 22 September 2008 and that SACTWU
would give Bertrand 48-hours notice of any intended strike action.
[40] On the morning of 22 September
2008, officials of SACTWU addressed the employees at Bertrand’s
premises. They addressed
them in an endeavour to persuade them to
return to work. The employees refused to stop the strike and to
return to work.
[41] That same morning Bertrand’s
attorneys had a telephonic discussion with SACTWU’s attorneys
wherein SACTWU’s
attorneys expressed their appreciation of the
seriousness of the situation and advised that they were endeavouring
to persuade
the workers to return to work.
[42] In a telephonic discussion
between an official of SACTWU and Bertrand’s attorneys SACTWU
advised that the employees refused
to comply with the ultimatum and
that SACTWU had done all it could to persuade the employees to return
to work. SACTWU then pulled
out of the whole scenario in frustration.
[43] Thereafter Bertrand issued a
final ultimatum at 09h10 on 22 September 2008. This was after the
employees had been addressed
by the officials of SACTWU between 06h00
and 07h00. It was three hours from the normal starting time.
[44] Those employees who were working
on the morning shift were given a final ultimatum to commence their
duties at 10h00. They
were advised that if they failed to do so it
was management’s intention to have serious regard to dismissing
those who do
not start work in accordance with that ultimatum. Those
who do not commence duties in accordance with that ultimatum were
invited
to elect representatives to make submissions to management.
[45] No representations were made by
or on behalf of the employees.
[46] At 11h15, the morning shift
employees were dismissed from employment. Day shift employees were
dismissed at 12h00 after they
had been given an ultimatum in the same
terms. The difference in the ultimatums was the time each shift was
requested to commence
its duties. The later shift employees were
dismissed at 16h00 after having been issued with an ultimatum at
10h04 instructing them
to return to work at 11h00.
[47] The employees did not make
representations before their dismissals and did not lodge appeals.
[48] In its judgment, the Labour Court
reasoned that in terms of the constitution of the NTBC wage
negotiations take place only
at sub-sector and sub-section level and
not at plant level as SACTWU sought to do in this case. It was for
this reason that the
Court a
quo
held that the appellants had
embarked on an unprotected strike and held that the dismissals were
substantively and procedurally
fair.
[49] The issues before us are the
following:
Whether the strike was unprotected on
any of the following grounds:
Alleged breach by the appellants of a
written undertaking ;
Breach of the provisions of the
constitution of the NTBC which prohibit strike action;
Whether the constitution of the NTBC
is a collective agreement.
If it is found that the strike was
unprotected; then
Whether dismissal was, in the
circumstances of this matter, unfair on any of the grounds alleged
by the appellants; and
The remedy.
The appellant has abandoned any
reliance on (a)(i) above.
[50] Relevant to the determination of
the issues set out above are the constitution of the NTBC, ss
65(1)(a) and 65(3)(a)(i) of
the Labour Relations Act
3
(the LRA).
[51] The constitution of the NTBC
deals
inter alia
with the its legal Status (clause 1),
registered scope (clause 2), objectives (clause 3), powers (clause
4), parties to the Bargaining
council (clause 5), its structures
(clause 6), sub-sector chambers (clause 13) and collective agreements
(clause 18).
[52] It is clear from the constitution
as a whole that it is the product of bargaining between NAWTM and
SACTWU. A perusal of the
constitution also reveals that it was the
intention of the founding parties to the NTBC to produce an
all-embracing document which
not only caters for the constitution but
also “to advance the interests of the industry”; “to
regulate collective
bargaining and industrial action in the industry,
in the sub-sectors and in any sections; to promote cohesion of
representation
from among employees; and avoid fragmentation of
centralised bargaining.”
[53] The constitution sets out
comprehensively, in the manner prescribed by s 30 of the LRA, all the
terms required for the establishment
of a bargaining council in the
Mohair and Wool industry. The constitution goes further than that and
it prescribes the procedure
to be followed in achieving these ends
and deals specifically with collective agreements in the terms set
out in ss 23 and 24 of
the LRA. Of note, the provisions of the
constitution are similar to those of ss 64 and 65 of the LRA.
[54] I turn to the argument advanced
by Mr Freund SC on behalf of the appellant. Counsel submitted that
the strike embarked upon
by the appellants was a protected strike. He
submitted with reference to s 65(1)(a) of the LRA that the
constitution of the NTBC
does not prohibit a strike. He further
submitted that unless there is a clause in the constitution which
prohibits a strike, the
strike in question is not a prohibited
strike.
[55] Section 65(1)(a) of the LRA
provides:
‘
Limitations
on right to strike or recourse to lock-out
(1)
No person may take part in a
strike
or a
lock-out
or in
any conduct in contemplation or furtherance of a
strike
or a
lock-out
if –
that
person is bound by a
collective agreement
that prohibits a
strike
or
lock-out
in respect of the
issue in
dispute
.’
[56] The constitution of the NTBC
prescribes that the rights, powers and functions of sub-sector
chambers are to conclude collective
agreements within each sub-sector
and section(s) on wages and conditions of employment. The
constitution states further that wages
and conditions of employment
will only be negotiated
: (my emphasis)
(a) at sub-sector and section level;
and
(b) within any sub-sector or section
to which they apply.
[57] The submissions made by Mr Freund
regarding the absence of a specific provision in the constitution
prohibiting a strike, such
as the one embarked upon by the appellants
is correct. However, I do not agree with the further submission he
made that the non-existence
of such a provision specifically
prohibiting the strike in question renders the strike immune from
being declared unlawful and
therefore unprotected. If it were so,
chaos would reign in the industry. The resultant effect of which
would be the selective crippling
of those plants which did not
conduct their affairs with SACTWU in the fashion adopted by Derlon in
this case, i.e. entering into
negotiations and concluding private
agreements with SACTWU on the determination of wage levels to the
exclusion of other role players,
such as Bertrand.
[58] The constitution is premised on
centralised bargaining between NAWTM and SACTWU, the main purpose of
which is to create and
maintain uniformity in the determination of
wage levels so as to ensure that all employers in a given sub-sector
or section level
in this industry are treated in an equitable
fashion. Employers and employees in these sub-sectors should enjoy
the same treatment
to ensure that employers compete with their
counterparts in a fair manner in order to sustain the industry and to
prevent job losses.
[59] Any contrary interpretation of
the relevant provisions of the Act and the constitution would result
in catastrophic circumstances
which would be inimical to the
operation of the industry in question. Clearly the overarching
purpose of the constitution was to
avoid fragmentation of the
bargaining process. This interpretation of the constitution is in
accord with the intentions of the
drafters thereof to outlaw plant
level bargaining.
[60] My interpretation of the
constitution therefore is that the strike in question is not
protected by the provisions of the constitution.
Neither is it
protected by the LRA.
[61] In the circumstances, I find that
the strike in question was not a protected strike.
[62] In the alternative, Mr Freund
submitted that the constitution of the NTBC is not a collective
agreement.
[63] Section 213 of the LRA defines a
collective agreement as “a written agreement concerning terms
and conditions of employment,
or any other matter of mutual interest
concluded by one or more registered trade unions, on the one hand
and, on the other hand:-
(a) one or more employees;
(b) one or more registered employers’
organisations; or
(c) one or more employers and one or
more registered employers’ organisations.”
[64] In my view, the constitution is a
collective agreement as defined by s 213 of the LRA. There is merit
in allowing employers
and employees to form bargaining councils.
Often after protracted deliberations they reach agreement as to how
their affairs are
to be resolved. They do this by fashioning
constitutions which establish bargaining councils which are to govern
them.
[65] In this case the parties to the
NTBC agreed, among other things, to set out in one document, the
constitution, the level at
which they would bargain with each other
and the manner of resolving disputes that arise between them. I
refer, in particular,
to that part of the document which deals with
collective agreements.
[66] While establishing their
constitution, they also consciously and deliberately decided to
incorporate into that document the
laws that govern the day to day
running of the NTBC, the creation of collective agreements and the
resolution of disputes arising
between the parties to the NTBC. In so
doing, they were alive to the provisions of the LRA. They prescribed
the level of the council
which would have jurisdiction to resolve
certain issues. For instance, they agreed that wage negotiations
would occur at sub-sector
or sub-section levels and not at plant
level. Plant level negotiations would entail among other things that
in the event of disagreement
SACTWU would take industrial action
against one employer only to the exclusion of the others. Such action
would undermine the very
existence of the NTBC.
[67] Section 31 of the Labour
Relations Act provides as follows:
‘
Binding
nature of collective agreement concluded in bargaining council
Subject
to the provisions of section 32 and the constitution of the
bargaining council
, a
collective agreement
concluded in
a
bargaining council
binds
-
(a)
the parties to the
bargaining council
who are also parties to
the
collective agreement
;
(b)
each party to the
collective agreement
and the members of
every other party to the
collective agreement
in so far as the
provisions thereof apply to the relationship between such a party and
the members of such other party; and
(c)
the members of a registered
trade union
that is a party to the
collective agreement
and the employers who are members of a
registered
employers' organisation
that is such a party, if
the
collective agreement
regulates-
(i)
terms and conditions of employment; or
(ii)
the conduct of the employers in relation to their
employees
or
the conduct of the
employees
in relation to their employers.’
See also section 23 of the LRA which
deals with the legal effect of a collective agreement.
[68] In my view, the constitution of
the NTBC is a collective agreement as set out in s 213 of the LRA.
[69] From what is stated above it
follows that the employees embarked upon an unprotected strike action
contrary to the provisions
of the LRA and the constitution. In the
circumstances, I hold that the finding of the Labour Court that the
dismissal of the employees
was substantively fair is correct.
[70] Regarding whether the dismissals
were procedurally fair, account has to be taken of the following
factors: on 17, 21 and 22
July 2008 the employees were involved in a
wildcat strike in respect of which they received final written
warnings. After they
had been advised by Bertrand’s attorneys
that plant level demands were not permitted by the constitution,
SACTWU withdrew
the dispute declared at plant level and lodged a
dispute against NAWTM. However, the employees commenced unprotected
strike action
against Bertrand in spite of the fact that there was
acknowledgement that plant level disputes were not allowed.
[71] The fact that the employees were
initially advised by SACTWU to participate in the unprotected strike
is of no assistance to
them. They participated in the strike with
full knowledge of its consequences. Ultimatums given to them which
provided them with
sufficient time to reflect on their conduct were
ignored. There is evidence too that the premises of Bertrand were
invaded by them
and they were involved in the intimidation of a
number of workers who had disassociated themselves from the strike.
In light of
the above, I find that the Labour Court was correct in
concluding that the dismissal of the second to further appellants was
procedurally
fair. The Labour Court was also correct in rejecting the
reinstatement claim by the appellants. Their conduct was clearly
wanton
and brazen and ignored advice by Bertrand and its lawyers as
well as their own union SACTWU to desist from same.
[72] Insofar as costs are concerned, I
am of the view that these should follow the result. I am, however, of
the view that the matter
was not of such complexity that it justified
the employment of two counsel. This is a matter that revolved around
the facts and
the interpretation of the constitution of the NTBC.
[73] In the result, the appeal is
dismissed with costs.
________________
SANDI, AJA
Acting Judge of the Labour Appeal
Court
Mlambo JP and Mocumie AJA concur in
the judgment of Sandi AJA
Appearances
For the Appellant: Advocate Fruend, SC
Instructed by: Cheadle Thompson and
Haysom Inc.
For the Respondent: Advocate Myburgh,
SC and Adv Wade, SC
Instructed by: Kirchmanns Inc.
1
The
provisions of the Constitution relevant to this matter are the
following:
13.7. The rights, powers
and functions of
sub-sector
chambers are to conclude
collective agreements within each
sub-sector
and
section(s)
on:
13.7.1 wages and
conditions of employment
13.8. The issues set out
in sub-clauses 13.7.1 to 13.7.3 will only be negotiated:
13.8.1 at the
sub-sector
or section level; and
13.8.2 within any
sub-sector
or
section
to which they apply, subject to
the provisions of the National Textile Bargaining Council
Transitional Agreement, signed on 25
June 2003.
Other matter of mutual
interest, not set out in clause 13.7 will be negotiated and
managed at
Council
or plant level, including frame work
agreements which will be negotiated at
Council
level and
are intended to apply to the
industry
.
In the event of a
dispute arising as to the level at which such matters of mutual
interest are negotiated the provisions of
clause 18.8 apply
In the event of a
dispute arising as to the level at which a matter of mutual
interest is negotiated, which is not expressly
referred to in
clause 13.7, the dispute over the issue must be referred to the
Executive Committee to determine where the
issue should be
negotiated. In the absence of a decision in the Executive
Committee, any party of the Bargaining Council
may take such
further steps as may be available to it under this Constitution or
in terms of any law.”
Clauses of the
Constitution relevant to
collective agreement
are the
following:
18.1 Any part to the
Bargaining council may introduce proposals for the conclusion of a
collective agreement in terms of the provisions
and procedures
outlined in this
constitution.
18.2 A collective
agreement may be concluded in a
sub-sector
chamber or
section
to apply to a
sub-sector
or
section(s)
in a
sub-sector.
18.9 The parties to
negotiation must hold at least three (3) meetings within forty five
(45) days of submission of the proposals
contemplated in sub-clause
18.4 and 18.5 to negotiate on the proposals presented to it for
consideration unless a collective
agreement has already been
concluded.
18.10 If either a
collective agreement is not concluded at the second or third meeting
contemplated in sub-clause 18.9, or any
subsequent agreed meeting,
or alternatively a period of forty five (45)
days
has
elapsed:
18.10.1 any part may
declare a dispute by submitting a written notice to this effect to
the
Secretary
and the other affected parties to the
Bargaining
Council
engaged in the dispute; and
18.10.1.1 the parties to
the dispute may agree to refer the dispute to arbitration; or
18.10.1.2 any party to
the dispute may;
18.10.1.2.1 resort to
strike or a lock out in accordance with section 64 of the Act across
the
industry,
if the proposals for the conclusion of a
collective agreement were made in the
Council;
or
18.10.1.2.2 resort to
strike or lock out in accordance with
section
64 of the Act
in the sub-sector in which the proposals for the conclusion of a
collective agreement were made; or
18.10.1.2.3 resort to
strike or a lock out in accordance with section 64 of the Act in
that section of the sub-sector in which
the proposals for the
conclusion of a collective agreement were made; and
18.10.1.2.4 the
provisions of 18.10.1.1 to 18.10.1.2.3 do not preclude a strike
action in terms of section 66 of the Act or the
remaining provisions
of Chapter IV of the
Act
and shall be interpreted in
accordance with Schedule 3.
18.10.1.3 refer the
dispute or arbitration if the
Act
requires that the dispute
be referred to arbitration.’
2
6.
The Structures of the Bargaining Council
6.1 The Bargaining
council structures include the following:
6.1.1 the Council;
6.1.2 an Executive
Committee;
6.1.3 Sub-sector
chambers and sections;
6.1.4 an exemptions
committee; and
6.1.5 other committees
as decided from time to time by the Council and as required by this
constitution.
6.2
The powers and functions of these structures are set out in this
Constitution provided that the Council may delegate specific
powers
and functions that it may have, to any structure provided for
in
its own
constitution.
6.3
Any representative to any of the structures of the Bargaining
council may vote by proxy.
3
Act
no 66 of 1995.