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[2013] ZALAC 33
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Pikitup (Soc) Limited v SAMWU and Others (JA82/13) [2013] ZALAC 33; [2014] 3 BLLR 217 (LAC); (2014) 35 ILJ 983 (LAC) (5 December 2013)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
Case no: JA82/13
Reportable
In the matter between:
PIKITUP (SOC)
LIMITED
Appellant
(Applicant
a
quo
)
and
SAMWU obo
MEMBERS First
Respondent
EMPLOYEES OF
APPLICANT Second
to Further respondents
LISTED IN ANNEXURE ‘A’
TO
NOTICE OF MOTION
Heard:
12 September 2013-
Delivered:
05 December 2013
Summary: Right to strike- health
and safety issues- whether such issues are matters of mutual
interest. Whether demand that breathalyser
testing should be
abandoned amounts to an unlawful demand.
CORAM: Tlaletsi ADJP, C.J. Musi et
Mokgoathleng AJJA
JUDGMENT
C.J. MUSI, AJA
[1]
This is an appeal, with the leave of the Court
a quo
, against
the judgment of the Labour Court. The appeal is about the right to
strike. It essentially concerns two issues, firstly,
whether the
demand by the first respondent (the union), that the appellant should
abandon the conducting of breathalyser testing
at its workplace is an
unlawful demand and secondly, whether health and safety issues are
matters of mutual interest. If the demand
is unlawful or the issues
are not matters of mutual interest, then any work stoppage pursuant
thereto, would be unlawful.
[2]
The appellant is a municipal entity, as defined in the Local
Government Municipal Systems Act and renders waste management
services in the greater Johannesburg area on behalf of the
Johannesburg Metropolitan Municipality.
[i]
The appellant’s employees collect refuse from households and
businesses within the City of Johannesburg utilising,
inter
alia
,
specialised trucks belonging to the appellant.
[3]
The appellant employed two hundred and sixty two (262) drivers. It
alleged that it experienced serious and pervasive problems
with
employees reporting for duty under the influence of alcohol,
consequently, it introduced mandatory alcohol testing, through
a
breathalyser device, for its drivers and random alcohol testing for
its other employees.
[ii]
[4]
The union, on behalf of its members, objected to the introduction and
use of the breathalyser device. On 30 April 2013, the
union referred
a dispute, relating to the breathalyser and biometric devices, for
conciliation to the Commission for Conciliation,
Mediation and
Arbitration (CCMA). The dispute could not be resolved; consequently
the CCMA issued a certificate of non-resolution.
The union gave
notice to the appellant of its intention to embark on strike action
with effect from 29 July 2013.
[5]
On 24 July 2013, the appellant sought and was granted, on an urgent
basis, a rule
nisi
by Snyman AJ in the following terms:
“
1.
Condonation is granted for the applicant’s failure to comply
with the time limits
as contemplated by
Sections 68(2)
and (3) of the
Labour Relations Act 66 of 1995
, and the applicant is permitted to
bring this application on shorter notice.
2.
This application is heard as one of urgency in terms of
Rule 8
and
the time limits imposed by
Rule 7
are hereby and herewith dispensed
with.
3.
A Rule
nisi
is hereby issued calling upon the respondents to
show cause on 12 September 2013 at 10h00 why a final order should not
be made
in the following terms:
3.1
The strike which the second to further respondents intend to embark
upon on 29 July 2013
in terms of the notice in terms of
Section 64(1)
(b) of the
Labour Relations Act given
by the first respondent and
dated 17 July 2013, is declared to be an unprotected strike as
contemplated by
Section 68(1)
of the
Labour Relations Act.
3.2
The
second to further respondents are interdicted and restrained from
embarking upon any strike action or conduct in contemplation of
strike action in respect of the strike declared to be unprotected in
terms of paragraph 3.1 above.
3.3
The first respondent is ordered to immediately call upon the second
and further respondents
not to commence strike action in respect of
the strike declared to be unprotected in terms of paragraph 3.1
above.
3.4
The first respondent is ordered to take all reasonable steps
necessary to ensure that the
second to further respondents do not
commence strike action on 29 July 2013, including but not limited to
actively communicating
and consulting with the second to further
respondents, before 29 July 2013.
4.
The provisions of paragraphs 3.1, 3.2, 3.3 and 3.4 of the rule
nisi
shall operate as an interim order with immediate effect, pending
the return date of 12 September 2013, and the first respondent and
second to further respondents shall be required to immediately adhere
to the same and give effect to the same…
6.
The issue of costs is reserved for argument on 12 September 2013.
7.
Written judgment pursuant to the granting of this order will be
handed down on
5 August 2013.”
[6]
The union anticipated the return date, as a result the matter was
argued before Hulley AJ on 5 August 2013. He discharged the
rule
nisi
with costs. This appeal is against Hulley AJ’s judgment.
[7]
The genesis of the implementation of the mandatory/random testing of
the appellant’s employees for alcohol consumption
is not
entirely clear from the record. This is caused, in part, by the fact
that the appellant attached a variety of documents
to its founding
affidavit without properly contextualising them. Although it alleged
that the documents are self-explanatory, some
of them caused one to
ask more questions than it provided explanations or answers.
[8]
During 2009, one of the appellant’s drivers, Mr M P Motlou, was
involved in a motor vehicle collision. He succumbed to
the injuries
sustained during the collision. An insurance claim lodged by the
appellant was repudiated by its insurers, because
the deceased had
driven the vehicle whilst having more than the legal limit of alcohol
in his blood. The repudiation prompted the
General Manager: Fleet of
the appellant to write an email to
inter alia
Ms Johanna Joja,
the Employee Wellness Manager, of the appellant. The email, in part,
reads as follows:
“…
In
effect it would mean that every claim related to this accident is at
risk. The driver’s family will lose the benefit of
his death
benefit and there is a chance that the vehicle claim of approximately
R250k could also be repudiated. This raises considerable
risk to the
business and I recommend that we strongly push the aspect of random
testing of the drivers.”
[9]The
documents also contained anecdotal evidence of collisions in which
the appellant’s drivers were involved, of which
four were
proved to have occurred whilst the appellant’s drivers were
under the influence of alcohol.
[10]
According to a report drafted by Ms Joja on 11 December 2011, the
appellant’s Alcohol and Driving Abuse Policy was reviewed
and
the substance abuse testing programme was included in the policy. It
is not clear when this was done, however the substance
abuse testing
programme was launched on 23 October 2010 at the appellant’s
Head Office. According to the aforementioned report
“EXCO”
recommended that the testing programme should continue at Head
Office. It also recommended that “negotiations
continue with
Employee Wellness and Organised Labour concerning the roll-out of the
testing programme to all depots”.
[11]
In her report to the Executive Director: Corporate Services dated 12
April 2013, she repeated the EXCO’s recommendations
and stated:
“
Negotiations
with labour were initiated but there was never an agreement between
Labour and Employee Wellness on the issue of testing.
Presentations
at LLF never brought any changes in Labour’s stance on the
testing programme.”
[12]
Ms Joja did not state what the irreconcilable differences were
between the union and her Department. The minutes of the meeting
of
the Pikitup Local Labour Forum held on 8 December 2010 sheds more
light on the issue. The minutes read as follows:
“
5.8
Organised Labour
·
Submitted
that the issue of subjecting employees to the breathalyser has to be
treated within the Employee Assistance Programme
that the company
has.
·
Is
very unhappy about this exercise as it does not even know how safe
are the tools used and how accurate they are.
·
Stated
that this practice must be withdrawn and must be included in the
Employee Assistance Programme and the company’s Code
of
Conduct.
·
Stated
that the exercise of testing people is degrading to the people being
tested.
Management
·
Management
stated that the establishment of the Employee Wellness Department was
solely to attend to such problems and that the
application of
breathalyser is part of correcting the alcohol abuse problem.
·
Explained
that even in a case in which an employee is caught being under the
influence using the breathalyser, the employee is not
going to be
dismissed with immediate effect, but will be taken through some
corrective steps to alleviate the behaviour.
·
Defended
the breathalyser being used by Pikitup by saying that the device is
designed in such a way that it is safe to use without
any
contamination to any person using it.”
[13]
The objections raised by the first respondent were despite a
memorandum, dated 3 November 2010, that was sent to all employees
at
the Head Office, by Ms Joja, wherein she explained how the
breathalyser works and assured the employees that it is hygienic.
She
also explained why everybody that enters their building should be
tested.
[14]
In its replying affidavit, the appellant reiterated that the fears
relating to hygiene are unfounded, because the person being
tested
does not even touch the device with his/her lips, because the person
only blows towards it for the tester to take a reading.
It also
stated that an employee who incorrectly tested positive for alcohol,
will be given an opportunity to have a second test
and if the result
remained positive, such employee can demand that a blood test be
administered.
14.1 The
appellant was also of the view that even if breathalysers are less
accurate than blood tests, they
are still a valuable first line of
testing, which can profitably be used to enhance the safety of its
employees and members of
the public. It also presented proof that the
breathalysers were calibrated and that the testers were trained to
operate them.
14.2 The appellant stated that the
first respondent’s contention, that the tests are degrading, is
absurd when members of
the public and other employees were injured
and killed as a result of its drivers driving under the influence of
alcohol.
[15]
The first respondent and the appellant could not reach an agreement
on these issues. The former referred the dispute to the
CCMA on 30
April 2013 and summarised the dispute as follows:
“
The
workers demand that there be no
1.
Breathalyser
test and
2.
No
Biometric time control system.”
[16]
As indicated above, the dispute remained unresolved as at 15 July
2013 and the certificate of outcome was endorsed to that
effect. The
union was of the view that its right to strike had been perfected. On
17 July 2013, it gave notice to the appellant
of its intention to
embark on strike action with effect from 29 July 2013.
[17]
The appellant pre-empted the proposed strike and approached the
Labour Court on an urgent basis seeking interim relief to interdict
the strike. During those proceedings, before Snyman AJ, the union did
not file an answering affidavit and argued the matter based
on the
appellant’s founding affidavit.
[18]
The issues, with regard to the breathalyser testing, were
inter
alia
whether the demand for the abandonment of breathalyser
testing was unlawful and whether it was an issue of mutual interest.
Snyman
AJ concluded that the demand for the cessation of breathalyser
testing was not an unlawful demand. He was however of the view that
the implementation of the breathalyser testing policy fell squarely
within the operational management of the business of the employer
that cannot form part and parcel of issues in dispute that would
qualify for or form the subject matter of legitimate collective
bargaining. He explained his conclusion as follows:
“
In
fact, the very issue of the Breathalyser testing process can be used
to illustrate what I am saying. If the issue of the Breathalyser
test
was for example coupled with a new automatic penalty such as an
unpaid suspension for the day, then it would clearly have
the
necessary nexus to an employment issue and could form the subject
matter of legitimate collective bargaining to change it.
However, and
in this case, the applicant has in its founding affidavit stated that
other than conducting Breathalyser test on the
driver before handing
over the keys, nothing else changes. The applicant has in fact
stated that the normal and existing
processes in the applicant (sic)
with regard to employees being under the influence of alcohol would
apply which processes is (sic)
not an issue in dispute between the
parties.”
Snyman AJ granted the interim relief
based, mainly, on the above reasoning.
[19]
On the anticipated return date, Hulley AJ heard substantially the
same arguments as Snyman AJ did, save that the first respondent
had
filed its answering affidavit and the appellant its replying
affidavit when the matter was heard by the former. He discharged
the
interim order.
[20]
His reasons for doing so were crisply that the method used to provide
a safe working environment, must necessarily be a matter
in respect
of which employees have an interest. Secondly, that the fact that the
employer proposed administering a blood test (irrespective
of whether
it was upon demand by the employee) as part of the new system, raised
serious concerns and was a matter of interest
to both employer and
employee.
[21]
With regard to the unlawfulness of the demand, he found that the
demand was lawful. He also found that it would require substantial
evidence to demonstrate that the use of breathalyser tests were the
only method or only reasonably practicable method by which
the
applicant could discharge its obligations and that such evidence was
absent in this matter.
[22]
Mr Myburgh, for the appellant, argued that Hulley AJ did not resolve
the factual controversy as to whether there was a legitimate
proven
objection to the “precautionary measure” of breathalyser
testing introduced by the appellant. According to Mr
Myburgh, this
factual issue is important, because no alternative measure was
advanced by the first respondent. Mr Myburgh therefore
persisted with
the arguments raised before Hulley AJ and submitted that Hulley AJ
failed to deal properly with the facts. He pointed
out that Hulley AJ
initially found that the introduction of breathalyser testing
per
se
as a method of alcohol testing does not involve a matter of mutual
interest, but then went on to find that because a blood sample
might
ultimately be drawn from the employee, made it a matter of mutual
interest. He further submitted that Hulley AJ was wrong
in
determining that the demand would only be unlawful if a breathalyser
test was the only method (or reasonably practicable method)
of
testing for intoxication and that, if necessary, expert testimony
should have been presented to establish that fact. He submitted
that
the strike was ultimately aimed at preventing the appellant from
complying with its legal obligations in terms of the Occupational
Health and Safety Act (the OHSA).
[iii]
Any work stoppage for the aforementioned purpose would therefore be
unlawful.
[23]
Mr Kennedy, for the first respondent, argued that the right to strike
should only be limited if the limitation is clear from
the
legislation or instrument seeking to limit the right. He submitted
that the mere fact that a statute, the OHSA in this case,
is designed
to give effect to a safety and security measure, does not necessarily
render the right to strike subordinate to such
legislation. He
further submitted that a demand by employees that an employer must
bargain collectively, and agree, on a measure
contemplated in the
OHSA, is not unlawful.
[24]
It is clear that the appellant endeavoured to limit the issues on
which it had to engage in collective bargaining with its
employees,
by excluding health and safety matters, and thereby restricting their
right to strike. It also sought to limit the employees’
right
to strike by arguing that their demand is an unlawful demand. Before
examining these issues, it is apposite to discuss the
right to engage
in collective bargaining and the concomitant right to strike.
[25]
The right to strike and the right to engage in collective bargaining
are entrenched in the Constitution.
[iv]
Section 23(2)(c) provides that every worker has the right to strike.
Section 23(5) provides that:
“
Every
trade union, employers’ organisation and employer has the right
to engage in collective bargaining. National legislation
may be
enacted to regulate collective bargaining. To the extent that the
legislation may limit a right in this Chapter, the limitation
must
comply with section 36(1)
.”
[v]
[26]
Collective bargaining, it was said, implies a right on the part of
those who engage in collective bargaining to exercise economic
power
against their adversaries.
[vi]
The Constitutional Court emphasised the importance of the right to
strike as follows:
“
Collective
bargaining is based on the recognition of the fact that employers
enjoy greater social and economic power than individual
workers.
Workers therefore need to act in concert to provide them collectively
with sufficient power to bargain effectively with
employers. Workers
exercise collective power primarily through the mechanism of strike
action. In theory, employers, on the other
hand, may exercise power
against workers through a range of weapons, such as dismissal, the
employment of alternative or replacement
labour, the unilateral
implementation of new terms and conditions of employment, and the
exclusion of workers from the workplace
(the last of these being
generally called a lockout). The importance of the right to strike
for workers has led to it being far
more frequently entrenc
hed
in constitutions as a fundamental right than is the right to
lockout.”
[vii]
[27]
The right to strike and the right to engage in collective bargaining
are interrelated. One cannot exist without the other.
The right to
engage in collective bargaining is strengthened by the right to
strike. Collective bargaining without the concomitant
right to strike
will be rendered nugatory. The right to strike is constitutionally
protected in order to redress the inequality
in social and economic
power in employer/employee relations.
[viii]
It is also important for the dignity of workers who may not be
treated as coerced employees.
[ix]
[28]
Given the historical and contemporaneous importance of the right to
strike, it should not be limited or restricted by reading
implicit
limitations into it. In
SATAWU v Moloto
it was said
that:
“
The
right to strike is protected as a fundamental right in the
Constitution without any express limitation. Constitutional
rights conferred without express limitation should not be cut down by
reading implicit limitations into them, and when legislative
provisions limit or intrude upon those rights they should be
interpreted in a manner least restrictive of the right if the
text is
reasonably capable of bearing that meaning
.”
[x]
[29]
An interpretation which limits the right to strike should therefore
be avoided if the text that seeks to limit it is susceptible
to an
interpretation that upholds and protects the right to strike.
In essence, any legislative provision that seeks to restrict
the
right to strike should do so expressly, in clear and unequivocal
terms.
[30]
The
Labour Relations Act (LRA
),
[xi]
which is the vehicle that Parliament used to give effect to and
regulate the labour rights entrenched in section 23 of the
Constitution,
contains limitations on the right to strike. It is
uncontroversial that the LRA contains both substantive and procedural
restrictions
to the right to strike. Procedurally, the right to
strike will not accrue if the dispute, to put it simply, was not
referred to
the CCMA or a Bargaining Council and a certificate of
non-resolution issued and, secondly, if the union had not issued a
strike
notice.
[xii]
Both procedural requirements were fulfilled in this matter. The
substantive requirements set out in section 65 of the LRA are
strictly speaking also not relevant for the resolution of this
dispute.
[xiii]
[31]
The definition of “strike” in the LRA also restricts the
right to strike. It is defined as follows:
“’
Strike’
means the partial or complete concerted refusal to work, or the
retardation or obstruction of work, by persons who
are or have been
employed by the same employer or by different employers, for the
purpose of remedying a grievance or resolving
a dispute in respect of
any matter of mutual interest between employer and employee, and
every reference to ‘work’
in this definition includes
overtime work, whether it was voluntary or compulsory.”
[xiv]
[32]
The disputes in this matter hinge on two parts of the definition of a
strike. It is clear that the cessation, retardation or
obstruction of
work must be for the purposes of remedying a grievance or resolving a
dispute. It is also beyond cavil that the
dispute or grievance must
be about a matter of mutual interest. The appellant contended that
the intended strike in this matter
is not about a matter of mutual
interest and that it is not aimed at remedying or resolving a lawful
dispute or grievance. I turn
to deal with the last mentioned issue
first.
[33]
This Court said that industrial action for the purpose of requiring
or compelling an employer to perform an unlawful act cannot
be
protected.
[xv]
Therefore the cessation, retardation or obstruction of work must be
aimed at remedying a lawful grievance or resolving a lawful
dispute.
Both parties accepted this to be the legal position.
[34]
Mr Myburgh submitted that the first respondent’s proposed
industrial action is essentially geared at forcing the appellant
to
commit a crime in terms of the OHSA. He contended that the OHSA
places onerous duties and responsibilities on the appellant,
which it
has to comply with on pain of criminal sanction. Both Snyman AJ and
Hulley AJ rejected this argument. Was the rejection
justified?
[35]
Section 8 of the OHSA reads as follows:
“
8
General duties of employers to their employees
(1)
Every
employer shall provide and maintain, as far as is reasonably
practicable, a working environment that is safe and without risk
to
the health of his employees.
(2)
Without
derogating from the generality of an employer’s duties under
subsection (1), the matters to which those duties refer
include in
particular-
(a)
the
provisions and maintenance of systems of work, plant and machinery
that, as far as is reasonably practicable, are safe and without
risks
to health;
(b)
taking
such steps as may be reasonably practicable to eliminate or mitigate
any hazard or potential hazard to the safety or health
of employees,
before resorting to personal protective equipment;
(c)
making
arrangements for ensuring, as far as is reasonably practicable, the
safety and absence of risks to health in connection with
the
production, processing, use, handling, storage or transport of
articles or substances;
(d)
establishing,
as far as is reasonably practicable, what hazards to the health or
safety of persons are attached to any work which
is performed, any
article or substance which is produced, processed, used, handled,
stored or transported and any plant or machinery
which is used in his
business, and he shall, as far as is reasonably practicable, further
establish what precautionary measures
should be taken with respect to
such work, article, substance, plant or machinery in order to protect
the health and safety of
persons, and he shall provide the necessary
means to apply such precautionary measures;
(e)
providing
such information, instructions, training and supervision as may be
necessary to ensure, as far as is reasonably practicable,
the health
and safety at work of his employees;
(f)
as
far as is reasonably practicable, not permitting any employee to do
any work or to produce, process, use, handle, store or transport
any
article or substance or to operate any plant or machinery, unless the
precautionary measures contemplated in paragraphs
(b)
and
(d)
,
or any other precautionary measures which may be prescribed, have
been taken;
(g)
taking
all necessary measures to ensure that the requirements of this Act
are complied with by every person in his employment or
on premises
under his control where plant or machinery is used;
(h)
enforcing
such measures as may be necessary in the interest of health and
safety;
(i)
ensuring
that work is performed and that plant or machinery is used under the
general supervision of a person trained to understand
the hazards
associated with it and who have the authority to ensure that
precautionary measures taken by the employer are implemented;
and
(j)
causing
all employees to be informed regarding the scope of their authority
as contemplated in section 37(1)
(b)
."
[36] Section 9
of the OHSA reads as follows:
9.
General duties of employers and self-employed persons to persons
other than their
employees
(1)
Every employer shall conduct his undertaking in such a manner as to
ensure, as far
as is reasonably practicable, that persons other than
those in his employment who may be directly affected by his
activities are
not thereby exposed to hazards to their health or
safety.
(2)
Every self-employed person shall conduct his undertaking in such a
manner as to ensure,
as far as is reasonably practicable, that he and
other persons who may be directly affected by his activities are not
thereby exposed
to hazards to their health or safety.”
[37] Section 14
places duties on employees at work and reads as follows:
“
Every
employee shall at work-
(a)
take
reasonable care for the health and safety of himself and of other
persons who may be affected by his acts omissions;
(b)
as
regards any duty or requirement imposed on his employer or any other
person by this Act, co-operate with such employer or person
to enable
that duty or requirement to be performed or complied with;
(c)
carry
out any lawful order given to him, and obey the health and safety
rules and procedures laid down by his employer or by anyone
authorized thereto by his employer, in the interest of health or
safety;
(d)
if
any situation which is unsafe or unhealthy comes to his attention, as
soon as practicable report such situation to his employer
or to the
health and safety representative of his workplace or section thereof,
as the case may be, who shall report it to the
employer; and
(e)
if
he is involved in any incident which may affect his health or which
has caused an injury to himself, report such incident to
his employer
or to anyone authorized thereto by the employer, or to his health and
safety representative, as soon as practicable
but not later than the
end of the particular shift during which the incident occurred,
unless the circumstances were such that
the reporting of the incident
was not possible, in which case he shall report the incident as soon
as practicable thereafter.”
[38]
Regulation 2A of the regulations promulgated under the Machinery and
Occupational Safety Act
[xvi]
provides that an employer shall not permit any person who is or who
appears to be under the influence of intoxicating liquor or
drugs, to
enter or remain at a workplace.
[39] In terms of
section 38 of the OHSA, any person who contravenes or fails to comply
with the provisions of sections 8, 9, 14
is guilty of an offence and
shall on conviction be liable to be sentenced to a fine not exceeding
R50 000.00 or to imprisonment
for a period not exceeding one year or
to both such fine and such imprisonment.
[40] Section 8
of the OHSA places a duty on the appellant to maintain as far as is
reasonably practicable a working environment
that is safe and without
health risks for its employees. Section 9 places a duty on the
appellant to conduct its business in such
a manner as to ensure as
far as reasonably practicable that persons who are not its employees
who may be directly affected by its
activities are not thereby
exposed to health or safety hazards.
[41] Reasonably
practicable means practicable having regard to:
(a)
the severity and scope of the hazard or risk concerned;
(b)
the state of knowledge reasonably available concerning that hazard or
risk and of any means
of removing or mitigating that hazard or risk;
(c)
the availability and suitability of means to remove or mitigate that
hazard or risk; and
(d)
the cost of removing or mitigating that hazard or risk in relation to
the benefits deriving
therefrom.
[xvii]
[42] Sections 8
and 9 therefore place a duty on the employer to act proactively to
avoid any harm or injury to its employees and
others. There is no
standard as to what is reasonably practicable. Each case will have to
be determined on its own facts and circumstances.
As can be seen from
the definition of reasonably practicable it involves weighing
different considerations from risk evaluation,
means of removing or
avoiding the risk, resource availability and a cost-benefit analysis.
In
Edwards v National Coal Board
, Lord Justice Asquith stated:
“
Reasonably
practicable as traditionally interpreted, is a narrower term than
‘physically possible’ and implies that
a computation must
be made in which the quantum of risk is placed in one scale and the
sacrifice, whether in money, time or trouble
involved in the measure
necessary to avert the risk is placed in the other; and that, if it
is shown that there is a gross disproportion
between them, the risk
being insignificant in relation to the sacrifice, the person upon who
the duty is laid discharges the burden
of proving that compliance was
not reasonably practicable. This computation falls to be made
at a point of time anterior
to the happening of the incident
complained o
f.”
[xviii]
[43] Mr Myburgh
argued that the appellant has made an assessment and concluded that
the reasonably practicable way to fulfil its
obligations and comply
with its duty is by subjecting its drivers to mandatory breathalyser
testing. The appellant considered the
breathalyser as an effective
precautionary measure as compared to mere physical observation. He
further contended that the breathalyser
testing policy assists the
employees because they are obliged to take reasonable care of their
own health and safety and that of
other persons who may be affected
by their conduct. He correctly submitted that all employees are
obliged to:
(i)
cooperate with their employer in order to enable it to acquit itself
of its
duties under the OHSA;
(ii)
carry out lawful health and safety orders; and
(iii)
comply with health and safety rules and procedures.
A refusal by the
employees, so the argument went, to undergo breathalyser testing
would be in breach of all three the abovementioned
statutory duties,
because it would involve a failure to cooperate and disobedience with
a health and safety order, rule or procedure.
[44] Mr Kennedy
submitted that the appellant’s arguments are flawed, because it
sought to subordinate the right to strike
to the provisions of the
OHSA in circumstances where the OHSA does not contain any express
intention to limit the right to strike.
He contended that the demand
of the employees properly construed, did not mean that they wanted no
testing measures at all. He
further submitted that the OHSA, by using
reasonableness as a touchstone, adopted a variable standard which
meant that both employers
and employees are permitted to negotiate
over the most effective means to implement the measures contained in
the OHSA.
[45] Before
attending to the issue of the lawfulness or otherwise of the demand,
I propose to deal briefly with what Mr Myburgh
styled as the factual
controversy that went undetermined, by Hulley AJ. In my view, there
is no controversy at all. The facts are
that the first respondent
objected to the introduction of breathalyser testing, at the meeting
of 8 December 2010, and stated that
it is unhygienic, inaccurate and
degrading. At that meeting, the appellant only addressed the hygiene
issue. Likewise of the three
issues of concern to the first
respondent only the hygiene issue was addressed by Ms Joja in her
memorandum dated 3 November 2010.
The issues relating to the accuracy
of the breathalyser devices and the fact that testing is degrading to
the persons being tested
were only addressed in the replying
affidavit. The issue with regard to the reliability of the device was
also not proved. The
concern that breathalyser testing was degrading,
was dismissively and contemptuously, without proper consideration
rejected, by
the appellant.
[46] I accept
that the appellant has done a risk assessment and concluded that it
is reasonably practicable to ensure the safety
of its employees and
the public by introducing breathalyser testing. The subsequent
implementation was done without properly engaging
the first
respondent. The employees demanded that “there be no
breathalyser test”. They did not propose an alternative.
Their
reticence does not, in my view, mean that the employer may
unilaterally impose breathalyser testing.
[47] It is our
duty to look at the true nature of the dispute and not the manner in
which it has been packaged by the employees.
In
NUMSA v Bader Bop
it was stated that:
“
It
is the duty of a court to ascertain the true nature of the dispute
between the parties. In ascertaining the real dispute a court
must
look at the substance of the dispute and not at the form in which it
is presented. The label given to a dispute by a party
is not
necessarily conclusive. The true nature of the dispute must be
distilled from the history of the dispute, as reflected in
the
communications between the parties and between the parties and the
Commission for Conciliation, Mediation and Arbitration (CCMA),
before
and after referral of such dispute. These would include referral
documents, the certificate of outcome and all relevant
communications.
”
[xix]
[48]
The dispute properly considered, is not a demand that the appellant
should not have any policy or practice in place to detect
whether
employees, or drivers specifically, are under the influence of
alcohol. They had specific problems with the breathalyser
device. The
appellant had an alcohol/substance abuse policy in place before it
decided to introduce breathalyser testing. Its original
policy did
not include any form of pre-incident mandatory testing.
[49]
It is not in dispute that breathalyser testing is but one of a range
of measures that can be used to detect alcohol consumption;
observation, urine test, blood test and the stroop test – are
some of the other methods that can be used.
[xx]
[50]
The employees complained that there were instances where the
breathalyser produced inaccurate and unreliable results. The
appellant stated in its replying affidavit that to the extent that
the breathalyser gives an incorrect result, the employee will
be
given an opportunity to have a second test and, if the result is
still positive, such employee can demand that a blood test
be
administered. It further stated that even if the breathalyser is less
accurate than blood tests, which appears to be unknown
to either of
the parties, it is still a valuable first line of testing which can
profitably be used to enhance the safety of the
employees and members
of the public.
[51]
The appellant’s evidence relating to the reliability of the
breathalyser is equivocal. The employees raised a genuine
concern
relating to the reliability of the breathalyser. Although the first
respondent does not say what should replace breathalyser
testing it
is clear that in the absence of breathalyser testing there are other
lawful means of testing for alcohol consumption
be it observation,
blood tests, urine tests or any other reasonably practicable means.
On the facts of this matter it cannot be
said that the breathalyser
was the only reasonably practicable way to ensure the safety of the
employees and others.
[52] Reasonably
practicable is a variable standard that must be determined
objectively. The employer and to a lesser extent the
employee as the
duty holders (in terms of sections 8, 9 and 14 of the OHSA) must do a
risk assessment and consider what can or
should be done under the
circumstances, considering their knowledge of the situation to ensure
the health and safety of employees,
co-workers and others who might
be put in harm’s way, because of their activities. They must
then consider, given the circumstances,
whether it is reasonable to
do all that is possible to comply with their duty. In essence, this
means that what can be done, should
be done, unless it is reasonable
in the circumstances to do something less, or in extreme
circumstances, more.
[53]
The appellant, as stated above, had an alcohol and substance abuse
policy in place before deciding on breathalyser testing.
Does it mean
that it operated in contravention of sections 8 and 9 of the OHSA
before it introduced breathalyser testing? The answer
is no. The
absence of breathalyser testing surely did not mean that the
appellant contravened the provisions of the OHSA. Mandatory
breathalyser testing for all drivers or employees is also not a
requirement of the OHSA. A policy that an employee will be tested
for
alcohol consumption where there are reasonable grounds to believe
that he/she had consumed alcohol whilst on duty, can be reasonably
practicable. Moreover the demand that “there be no breathalyser
test” may mean that the union is of the view that the
measure
introduced by the appellant to avoid the risk is disproportionate to
the risk, i.e. that the risk is so small that the
preventative
measure is not necessary. The union can be convinced otherwise at the
bargaining table. The demand was justified and
would not necessarily
result in a crime being committed by the appellant. I therefore agree
with Snyman and Hulley AJJ. I now turn
to consider whether the
dispute was a matter of mutual interest.
[54]
I agree with Hulley AJ that the phrase any matter of mutual interest
defies precise definition. The phrase is couched in very
wide terms.
According to Grogan, the phrase is extremely wide, “potentially
encompassing issues of employment in general,
not merely matters
pertaining to wages and conditions of service”.
[xxi]
[55]
In Rand Tyres & Accessories v Industrial Council for the Motor
Industry (Transvaal)
the following was said about the phrase:
“
Whatever
can reasonably and fairly be regarded as calculated to promote the
well-being of the trade concerned, must be of mutual
interest to
them; and there can be no justification for restricting in any way
powers which the Legislature has been at the greatest
pains to frame
in the widest possible language.
”
[xxii]
[56]
Grogan concludes, correctly in my view, that “the best one can
say, therefore, is that any matter which affects employees
in the
workplace, however, indirectly, falls within the scope of the phrase
‘matters of mutual interest’ and may accordingly
form the
subject matter of strike action.”
[xxiii]
[57]
The phrase mutual interest seeks to limit the issues that may form
the subject matter of a strike. It can therefore not be
without
boundary. The matter should not be too far removed from the
employment relationship so that it can properly be said that
it does
not concern the employment relationship. Matters that are purely
socio-economic or political would generally not be matters
of mutual
interest. If employees were to be allowed to strike over any
political or socio-economic issues, uncertainty will reign
and the
employer will in most cases be confronted with a situation over which
he/she has no control or influence. Many disputes
however have, at
bottom, political and/or socio-economic issues. The facts of each
matter will determine whether such issue is
one of mutual
interest.
[xxiv]
[58]
Although ensuring the health and safety of employees and others is
predominantly the employer’s responsibility, it is
clear from
the OHSA that the employee also bears duties and responsibilities
towards other employees and members of the public.
The employer may
not always have all the solutions to health and safety issues at the
workplace. The employees on the other hand
may have the necessary
knowledge and experience of a risk, how it affects or may affect them
and or others and how to avoid it.
The term reasonably practicable
which is the touchstone in the OHSA also demands that various
interests be considered as well as
a cost-benefit analysis to be
done. The whole scheme of the OHSA points to a need for employers and
employees to work together,
in order to ensure the health and safety
of everybody. Employers might consider the minimum that can be done
in order to satisfy
the reasonably practicable requirement whilst
employees, who are at the coalface, might want more to be done.
[59]
It is counter-intuitive to say that an employee has no interest in
his/her own health and safety. The giving of a breath sample
might be
less invasive than giving a blood sample, but it is still invasive.
It represents an inroad into the employee’s
right to privacy.
The worker is coerced to give a sample in circumstances where his/her
consent was not sought before the decision
to subject him/her to
breathalyser testing was taken.
[60]
On the appellant’s arguments the employer may unilaterally, by
virtue of its managerial prerogative, set unreasonable
health and
safety rules and policies, under the guise of it being reasonably
practicable measures, and the employees will have
to obey without
demur. On the other hand, the employer may determine that it is
reasonably practicable to implement a measure whereas
the employees
might be of the view that the proposed measure does not give them
adequate protection. The employees would, on the
appellant’s
argument, not have a right to engage in collective bargaining with
the employer for the best possible protection.
This would in my view
be against the general purpose of the OHSA.
[61]
The employees’ complaint that breathalyser testing is
degrading, was answered as follows in the replying affidavit:
“
The
allegation that the tests are degrading is, with respect, absurd. It
has been shown comprehensively above that employees do
attend at work
under the influence of alcohol and that this is extremely dangerous.
There can be no reason whatsoever why employees
should feel that it
is degrading for drivers to be tested when other employees and
members of the public have lost their lives
and, in one instance
referred to above, been permanently disabled, as a result of a driver
driving whilst under the influence of
alcohol. The respondents should
welcome this initiative as it can only be to their benefit…”
[62]
It is correct that the appellant did show that some of its employees
reported for duty or drove its vehicles whilst they were
under the
influence of alcohol. The evidence did not indicate that the problem
of driving under the influence is so pervasive that
breathalyser
testing had to be implemented without having regard to the rights of
employees or without negotiating with the first
respondent. The
appellant only referred us to four vehicle collisions for the period
2008 – 2013 where the drivers were under
the influence of
alcohol. During the pilot phase of the breathalyser testing, October
2010 to December 2010, none of the drivers
tested positive for
alcohol consumption.
[63]
There is no indication that proper consideration was given to the
right to privacy of the employees. In
Communications, Energy and
Paperworkers Union of Canada v Irving Pulp & Paper, Limited
the Supreme Court of Canada said the following:
“
49
On the other side of the balance was the employee right to privacy.
The board accepted
that breathalyser testing ‘effects a
significant inroad’ on private ‘involving coercion and
restriction on movement.
Upon pain of significant punishment,
the employee must go promptly to the breathalyser station and must
co-operate in the provision
of breath samples… Taking
its results together, the scheme effects a loss of liberty and
personal autonomy.
These are at the heart of the right ot
privacy.”
50
That conclusion is unassailable. Early in the life of the
Canadian Charter of
Rights and Freedoms, this Court recognized that
‘the use of a person’s body without his consent to obtain
information
about him, invades an area of personal privacy essential
to the maintenance of his human dignity…”
And
in
R v Shoker
2006 SCC 44
,
[2006] 2 S.C.R. 399
it
notably drew no distinction between drug and alcohol testing by
urine, blood or breath sample concluding that the “seizure
of
bodily samples is highly intrusive…”
I
can think of no reason why the position should be different here. The
rights to human dignity, privacy, freedom of movement and
bodily
integrity are entrenched in our Constitution.
[xxv]
In my view, an employee’s consent is required before such an
invasive and intrusive act can be required from him/her.
[64] The OHSA is
underpinned by co-operation between employer and employees. It should
be viewed through the prism of shared duties
and responsibilities
which can in most cases only be achieved if the employees consent and
buy-in to the measures. It does not
exclude collective bargaining.
[65] The
provisions of the OHSA are compatible with collective bargaining. As
stated above, the Act is underpinned by mutual cooperation
between
employer and employees. Such cooperation can be achieved by way of
collective bargaining and in cases where no agreement
is reached, by
using the weapons available to the bargaining parties. It is telling
that Ms Joja was mandated by EXCO to negotiate
with the first
respondent. Such negotiations could only have been aimed at reaching
an agreement on the breathalyser testing. It
is strange that when the
negotiations failed the appellant then changed tack and alleged that
it had no duty to engage in collective
bargaining with the first
respondent.
[66] I therefore
agree with Hulley AJ that the health and safety issues in this matter
are matters of mutual interest. In my view,
Snyman AJ’s
judgment unjustifiably limits the phrase matters of mutual interest
to terms and conditions of employment only.
In any event, the fact
that an employee would work in a safe and healthy environment and the
parties’ (employer and employee)
duties thereanent is at least
an implied term of a contract of employment. Snyman AJ found that
nothing changed except that the
employee had to give a breath sample
before receiving the keys to a truck. This is an over simplification
of the situation. The
Constitutional rights of the employees where
infringed without their consent. In my view, that represents a
substantial change.
[67] In my
judgment, health and safety issues are primarily the responsibility
of the employer but they are matters of mutual interest
over which
the parties may engage in collective bargaining and if they cannot
agree, the employees may embark on strike action
in order to resolve
the dispute.
[68] There is no
reason in law or equity why the costs should not follow the result in
this matter. Both parties employed two counsel.
The matter was
sufficiently complex to warrant the employment of two counsel on both
sides.
[69]
I accordingly make the following order:
The appeal is
dismissed with costs, such costs to include the costs occasioned by
the employment of two counsel.
_____________
C.J. Musi, AJA
Tlaletsi ADJP and Mokgoatlheng AJA
concur in the Judgment of Musi AJA
APPEARANCES:
FOR THE APPELLANT:
Adv A Myburgh
SC
Assisted
by Adv A Snider
Instructed
by Tshiqi Zebediela Attorneys
KEMPTON
PARK
FOR THE RESPONDENTS:
Adv P Kennedy SC
Assisted
by Adv T Ngcukaitobi
Instructed
by Cheadle Thompson & Hayson
JOHANNESBURG
[i]
See section 1 of
the Municipal Systems Act, 32 of 2000 for the definition of a
municipal entity.
[ii]
The appellant also
introduced a biometric access control device. The respondents
objected to the introduction of both devices.
The issue
relating to the biometric device was settled and the only live issue
in the Court
a
quo
was the one relating to the breathalyser device.
[iii]
Act 85 of 1993.
[iv]
Constitution of
the Republic of South Africa, 1996.
[v]
[v]
Section 36(1)
reads as follows:
“
(1)
The rights in the Bill of Rights may be limited only in terms of law
of general application
to the extent that the limitation is
reasonable and justifiable in an open and democratic society based
on human dignity, equality
and freedom, taking into account all
relevant factors, including
(a)
the
nature of the right;
(b)
the
importance of the purpose of the limitation;
(c)
the
nature and extent of the limitation;
(d)
the
relation between the limitation and its purpose; and
less
restrictive means to achieve the purpose.”
[vi]
In re:
Certification of the Constitution of the Republic of South Africa
1996 (4) SA 744
(CC) at para [64].
[vii]
In re:
Certification of the Constitution of the RSA
supra
at para [66].
[viii]
See
SATAWU
and Others v Moloto
2012 (6) SA 249
(CC) at para [61].
[ix]
National Union
of Metal Workers of SA and Others v Bader Bop (Pty) Ltd and Another
[2002] ZACC 30
;
2003 (3) SA 513
(CC) at para
[13]
.
[x]
At para [44].
[xi]
Act 66 of 1995.
[xii]
See section 64 of
the LRA which reads:
“
(1)
Every employee has the right to
strike and every employer has recourse to lock-out if-
(a)
the issue in dispute has been referred to a
council or to the Commission as required
by this Act, and-
(i)
a certificate stating that the
dispute remains unresolved has been issued; or
(ii)
a period of 30 days, or any
extension of that period agreed to between the parties
to the
dispute, has elapsed since the referral was received by the council
or the Commission; and after that-
(b)
in the case of a proposed strike, at least
48 hours' notice of the commencement of the
strike, in writing, has
been given to the employer, unless-
(i)
the issue in dispute relates to a
collective agreement to be concluded in a council,
in which case,
notice must have been given to that council; or
(ii)
the employer is a member of an employers'
organisation that is a party to the dispute,
in which case, notice
must have been given to that employers' organisation; or
(c)
in the case of a proposed lock-out, at
least 48 hours' notice of the commencement of
the lock-out, in
writing, has been given to any trade union that is a party to the
dispute, or, if there is no such trade union,
to the employees,
unless the issue in dispute relates to a collective agreement to be
concluded in a council, in which case,
notice must have been given
to that council; or
(d)
in the case of a proposed strike or
lock-out where the State is the employer, at least
seven days'
notice of the commencement of the strike or lock-out has been given
to the parties contemplated in paragraphs (b)
and (c)…”
[xiii]
Section 65 of the
LRA reads as follows:
“
(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-
(a)
that person is bound by a collective
agreement that prohibits a strike or lock-out in
respect of the
issue in dispute;
(b)
that person is bound by an
agreement that requires the issue in dispute to be referred
to
arbitration;
(c)
the issue in dispute is one that a party
has the right to refer to arbitration or to
the Labour Court in
terms of this Act;
(d)
that person is engaged in-
(i) an
essential service; or
(ii)
a maintenance service.15
(2)
(a) Despite section 65 (1) (c),
a person may take part in a strike or a lock-out
or in any conduct
in contemplation or in furtherance of a strike or lock-out if the
issue in dispute is about any matter dealt
with in sections 12 to
15.16.
(b)
If the registered trade union has given notice of the proposed
strike in terms of
section 64 (1) in respect of an issue in dispute
referred to in paragraph (a), it may not exercise the right to refer
the dispute
to arbitration in terms of section 21 for a period of 12
months from the date of the notice.
(3) Subject
to a collective agreement, no person may take part in a strike or a
lock-out or in any conduct
in contemplation or furtherance of a
strike or lock-out-
(a)
if that person is bound by-
(i)
any arbitration award or collective agreement that regulates the
issue in
dispute; or
(ii)
any determination made in terms of section 44 by the Minister that
regulates
the issue in dispute; or
(b)
any determination made in terms of the Wage Act and that regulates
the issue in
dispute, during the first year of that determination.”
[xiv]
See section 213 of
the LRA.
[xv]
TSI Holdings
(Pty) ltd and Others v National Union of Metalworkers of South
Africa and Others
(2006)
27 ILJ 1483 (LAC) at para [48].
[xvi]
Act 6 of 1983.
Regulations published in Government Notice R1031 in Government
Gazette 10252 of 30 May 1986. Regulation 2A inserted
by GNR928 of 25
June 2003.
[xvii]
See section 1 of
the OHSA.
[xviii]
[1949] 1 ALL ER
743
CA.
[xix]
Ibid at para [52].
[xx]
See McCann
et
al
:
Alcohol Drugs and Employment, Second Ed, Juta Chapter 10.
[xxi]
John Grogan:
Collective Labour Law Juta 2007 at 134.
[xxii]
1941 TPD 108
at
115.
[xxiii]
Ibid at 134.
[xxiv]
A useful
discussion of the cases and an article in which the phrase was
defined is contained in
SADTU
v Minister of Education and Others
(2001) 22 ILJ 2325 (LC) at para [43].
[xxv]
See sections 10,
12(2), 14 and 21(1) of the Constitution of the Republic of South
Africa, 1996.