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[2015] ZALAC 14
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Putco (Pty) Limited v Transport And Allied Workers Union of South Africa and Another (JA106/13) [2015] ZALAC 14; [2015] 8 BLLR 783 (LAC); (2015) 36 ILJ 2048 (LAC) (5 May 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA,
JOHANNESBURG
Case no: JA106/13
DATE: 05 MAY 2015
Reportable
In the matter
between:
PUTCO
(PTY)
LIMITED
........................................................................................................
Appellant
And
TRANSPORT AND
ALLIED WORKERS
UNION OF SOUTH
AFRICA
(On
behalf of its
members)
..........................................................................................
First
Respondent
SOUTH AFRICAN
ROAD PASSENGER
BARGAINING
COUNCIL
......................................................................................
Second
Respondent
Heard: 04
November 2014
Delivered: 05
May 2015
Summary:
Strike and lock-out – parties deadlocking on wages negotiation
– unions issuing a strike notice and employer
locking-out all
employees including union members who were not a party to the wage
negotiations – dispute of facts raised
in the affidavits as to
whether union’s members non-party to the wages negotiation also
on strike – court
a quo
rejecting parties’ submissions that matter be referred to oral
evidence – Appeal – dispute of facts of this nature
could
not be decided on papers - matter ought to have been referred to oral
evidence in order to resolve the factual dispute as
to whether
union’s members on strike.
Plascon-Evans
rule restated.
Lawfulness
of lock-out – union contending that lock-out not applicable to
it because it was not a party to the wage negotiations
–
lock-out like strike essential to the process of collective
bargaining and should be treated alike – union’s
members
benefiting from the wage negotiations – employer entitled to
lock-out all employees irrespective of their participation
in the
strike in order to compel them to accept the demand in respect of the
wage negotiations. Appeal upheld with costs - Labour
Court’s
judgment set aside and substituted with an order that the application
is dismissed.
Coram: Musi JA,
Murphy
et
Dlodlo AJJA
JUDGMENT
MUSI JA
[1]
This is an appeal against the judgment of the Labour Court (Moshoana
AJ) wherein the court
a quo
ordered the appellant to
discontinue with the lock-out against the first respondent’s
members. The court
a quo
dealt with two consolidated matters.
Both involved the first respondent, as the applicant, seeking similar
relief, separately,
against the appellant and Algoa Bus Company (PTY)
LTD. Algoa did not lodge an appeal against the court
a quo’s
order.
[2]
The first respondent approached the court
a quo
on an urgent
basis, seeking,
inter alia,
an order interdicting the
appellant from continuing to lock-out members of the first respondent
who were in its employ.
[3]
The appellant carries on business as a passenger bus operator. It
provides public passenger bus services in terms of contracts
with the
Gauteng Provincial Government and other commercial contracts. It is
also a member of the Commuter Bus Employer’s
Organisation
(COBEO) which is an employer’s organisation member of the South
African Rail Passenger Bargaining Council (SARPBAC).
The other
employer representative member at SARPBAC is the South African Bus
Employer’s Association (SABEA).
[4]
The first respondent is the Transport and Allied Workers Union of
South Africa (TAWUSA). TAWUSA, South African Transport and
Allied
Workers Union (SATAWU) and Transport Omnibus Workers’ Union
(TOWU) were the employees’ representatives at the
SARPBAC. The
first respondent resigned from the SARPBAC with effect from 21
December 2010. The first respondent was, at all relevant
times,
trying to revive its membership of the SARPBAC. The first respondent
represented approximately 26% of the employees of the
appellant while
SATAWU represented approximately 46% and the TOWU and another union
27%.
[5]
Collective bargaining on wages and other conditions of employment
occurred at the SARPBAC. The last collective agreement entered
into
at the SARPBAC, prior to the dispute germane to these proceedings,
was in April 2012. It is common cause that the first respondent
did
not participate in the 2012 wage negotiations and that it did not
sign the resultant collective agreement.
[6]
It is also common cause that the 2012 collective agreement was
extended by the Minister of Labour to other employers and employees
in the industry in terms of Section 32(2) of the Labour Relations Act
66 of 1995 (the Act),
[1]
from 9 July 2012 to 31 March 2013.
[2]
The period was further extended until 31 July 2013.
[3]
[7]
Wage negotiations in 2013, at the SARPBAC deadlocked. SATAWU and TOWU
gave notice on 17 April 2013 that they would commence
with a
protected strike on 19 April 2013.
[8]
In response to the strike notice, the appellant gave notice to the
recognised trade unions, including the first respondent,
on 19 April
2013 of its intention to lock-out all employees in the bargaining
unit with effect from 21 April 2013. Non-union employees
in the
bargaining unit were also informed of the impending lock-out. The
notice reads as follows:
‘
Subject
Notice of Intention to lock-out all members in the bargaining unit
In response to the
strike notice issued, the Company hereby gives 48 hours’ notice
of its intention to lock-out all employees
in the
bargaining unit
from all of PUTCO Limited’s workplaces in support of the
employer wage proposals
in the wage negotiations in the South
African Road Passenger Bargaining Council.’ [Original
emphasis.]
[9]
On 18 April 2013, the first respondent addressed a letter to the
appellant wherein it requested the appellant to ensure the
safety of
its members and indicated that it intends to engage with employers’
organisations represented at the SARPBAC to
better the conditions of
its members in the bus passenger industry.
[10]
Pursuant to a telephonic discussion between the appellant’s, Mr
Malherbe and the General Secretary of the first respondent,
Mr
Mankge, Malherbe wrote an e-mail to Mankge wherein he explained that
the lock-out notice was sent to all unions represented
at the
appellant, the SARPBAC and that it was “posted at all Putco
Business Units.”
[11]
In response to Malherbe’s e-mail, Mankge wrote the following
e-mail:
‘
We
refer to your email of even date and wish to record the following.
1.
In terms of the letter for Sarpbac dated
19
th
April 2013, Transport and Allied Workers Union of South Africa is not
currently a member of the bargaining Council therefore Transport
and
Allied Workers Union of South Africa and its members are therefore
not party to the dispute that gave rise to the lock-out,
in the
circumstances, Transport and Allied Workers Union of South Africa
members are not currently on strike.
2.
In the circumstances you have implemented
an unlawful lock out against our members; you are therefore not
entitled to impose any
lock-out conditions on our members in your
employ.
3.
Our members will continue to tender
services as usual and will not sign any new conditions which you seek
to impose by way of unlawful
lock-out.
4.
We are readily available to meet with you
at short notice to discuss the improvements of our members’
conditions of employment.
5.
Copy of this letter will be forwarded to
all employers, whether or not they have implemented a lock out
against our members at this
stage. This will be done in order to
remind all employers in the industry, in order to remind them of the
fact that Transport and
Allied Workers Union of South Africa and its
members are not party to dispute that gave rise to a lock out.’
[12]
There are factual disputes in relation to what transpired on 18 and
19 April 2013 at the different Business Units. According
to the
appellant, Mr Jock Guimaraes, the General Manager at the appellant’s
Commuta Business Unit in Soweto, had a meeting
with two of the first
respondent’s shop stewards (Mr Jabu Qasha and Mr Charles
Phungwayo) on 18 April 2013 and they informed
him that they called
the first respondent’s head office and were informed that the
first respondent’s members should
support the strike as it was
about money.
[13]
The appellant further alleged that on 19 April 2013, Mr Paul Berning,
the Operations Manager at Lekoa Transport Trust, a Business
Unit of
the appellant, met with Messrs Makanyane and Mohlakoena, who are the
first respondent’s shop stewards at Lekoa, and
they informed
Berning that the first respondent’s members had decided to
participate in the strike for safety reasons. The
appellant further
alleged that at its Ipelegeng Transport Trust Business Unit not a
single driver, including approximately 60 members
of the first
respondent, reported for work on 19 April 2013. No confirmatory
affidavits by Berning, Guimaraes or any other person
with first-hand
knowledge were provided.
[14]
The first respondent denied all the appellant’s allegations. It
alleged that when workers reported for work on 19 April
2013 at the
Commuta Bus Depot, Guimaraes insisted that the workers should sign an
undertaking that they are entering the premises
for work purposes
only. The first respondent’s members signed the undertaking.
When SATAWU members saw that TAWUSA members
are signing the
undertaking they also signed.
[15]
The first respondent further alleged that Berning turned workers away
when they reported for duty on the Monday.
[4]
The deponent to the replying affidavit provided confirmatory
affidavits but it is not clear which parts of the replying affidavits
are being confirmed. I say this because no affidavits by the people
who are specifically mentioned in the answering affidavit were
filed.
[16]
Despite the first respondent’s submission that the factual
disputes are unresolvable on the papers and its request that
the
matter be referred to oral evidence, the court
a quo
resolved
the factual dispute in the first respondent’s favour. It
concluded that there was no need to refer the matter to
oral evidence
because the factual disputes are capable of being resolved on the
papers. The court
a quo
found that the appellant bore the
onus
to show that members of the first respondent were on strike. It
therefore found that members of the first respondent were not on
strike.
[17]
The court
a quo
had regard to the definition of lock-out and
said the following:
‘
This
presupposes that the employees should have refused to accept a demand
of the employer. Logic dictates that one cannot
compel somebody
who is not resisting or one who does not present a counter-demand.’
It
concluded that “a lock-out must be directed to (sic) employees
with a demand.”
[18]
The court
a quo
was
also of the view that the appellant did not show what demand, if any,
it wanted the first respondent’s members to accept.
It
concluded that section 64(1)(c) of the Act contemplated that the
lock-out notice should be given to any trade union that is
a party to
the dispute. The court
a qu
o
reasoned that TAWUSA was not a party to any dispute and therefore its
members may not be locked-out.
[19]
Mr Myburgh on behalf of the appellant, submitted that the court
a
quo
was wrong in rejecting the appellant’s version. He
argued that the facts as presented by the appellant were uncontested
and
that the court
a quo
should therefore have found that the
members of the first respondent had joined the strike.
[20]
The court
a quo
, in resolving the factual disputes, said the
following:
‘
[32]
At Ipelegeng and Lekoa Trust it is alleged that shop stewards
informed that they would participate in a strike for safety reasons,
I am not sure whether this seeks to elevate safety reasons as a
demand. Otherwise if it means that employees’ life and limb
is
threatened, then it cannot be strike notice to my mind. A
further allegation is made that on 19 April 2013 not a single
driver
reported for work and have not reported at Ipelegeng(sic) if they did
not-fearing for their lives(sic), it cannot be said
that they are or
were on strike. However what remains clear is that Putco
rejected the tender of service on 19 April 2013.
The
allegations were seriously contested owing to the lockout notice I
must accept without hesitation the applicant’s version
that
Guimaraes requested them to sign declaration. I also should accept
the version that Berning turned employees away…
[33] In any event,
the respondent on this point bears the onus to show that the
applicant’s members were on strike it is a
positive fact that
the respondent must prove in order to avert an allegation of unlawful
lockout on Plascon rule, the issue ought
to be decided in the
applicant’s favour I do not agree with Memani that this issue
ought to be referred to oral evidence
I therefore reject an
allegation of strike in this case too. That leaves the piggyback
argument in this matter too.’
[21]
I do not share Mr Myburgh’s view that the facts as alleged by
the appellant were uncontested. They were contested, albeit
very
tersely. The factual disputes relating to whether the members of the
first respondent were on strike were indeed incapable
of being
resolved on the papers. The manner in which the court
a quo
dealt with the disputed facts fortifies my view that the matter ought
to have been referred to oral evidence in order to resolve
the
factual dispute as to whether members of the first respondent were on
strike.
[22]
The appellant alleged that the shop steward at Lekoa informed Berning
that members of the first respondent decided to participate
in the
strike for safety reasons. I fail to understand what the court
a
quo
meant by stating that it was not “sure whether this seeks to
elevate safety reasons as a demand.” The appellant stated
a
factual conversation between Berning and the two shop stewards of the
first respondent. It was not stated as a demand by any
of the
parties. It was also not mentioned as a “strike notice”
as the court
a
quo
seems to suggest. There was in any event no need for the members of
the first respondent to issue a strike notice.
[5]
[23]
With regard to Ipelegeng, the appellant alleged that none of the
drivers, including 60 of the first respondent’s members,
reported for duty on 19 April 2013. There was no allegation that the
workers at Ipelegeng feared for their lives and therefore
did not
report for duty.
[24]
The first respondent alleged that Berning turned its members away, on
19 April 2013, when they reported for work whereas the
appellant
alleged that the workers did not turn-up at all. In an attempt to
resolve this factual dispute the court
a quo
found that
following:
‘
Owing
to the lock-out notice I must accept without hesitation the
applicant’s version that Guimaraes requested them to sign
declarations…I also should accept the version that Berning
turned employees away.’
[25]
There is, with respect, no link between the lock-out notice and the
signing of the declarations. The first respondent’s
case was
that on the Friday its members were asked by Guimaraes, at the
Commuta Bus Depot at Selby to sign the declarations, which
they did
and were allowed to work. It must be recalled that the lock-out was
to commence on Sunday 21 April 2013 at 09H00. The
lock-out notice was
issued on 19 April 2013. It is therefore more plausible that they
were asked to sign the declarations that
they entered
the premises to work because of the strike and not “owing to
the lock-out notice”. The court
a
quo
gave no reasons why it accepted the version of the
first
respondent that Berning turned the workers away. This it did contrary
to the trite test to be applied where factual disputes
arise in
motion proceeding wherein final relief is sought.
[6]
[26]
The court a
quo
,
wrongly had regard to the
onus
in motion proceedings. In
National
Director of Public Prosecution v Zuma
,
[7]
the following was said:
‘
[26]
Motion proceedings, unless concerned with interim relief, are all
about the resolution of legal issues based on common cause
facts.
Unless the circumstances are special they cannot be used to resolve
factual issues because they are not designed to determine
probabilities. It is well established under the
Plascon-Evans
rule that where in motion proceedings disputes of fact arise on the
affidavits, a final order can be granted only if the facts
averred in
the applicant's (Mr Zuma's) affidavits, which have been admitted by
the respondent (the NDPP ), together with the facts
alleged by the
latter, justify such order. It may be different if the
respondent's version consists of bald or uncreditworthy
denials,
raises fictitious disputes of fact, is palpably implausible,
far-fetched or so clearly untenable that the court is justified
in
rejecting them merely on the papers. The court below did not
have regard to these propositions and instead decided the
case on
probabilities without rejecting the NDPP's version.
[27]
The court below imposed an onus on the NDPP to prove a negative. This
appears from the finding that it 'was not convinced that
[Mr Zuma]
was incorrect' in relation to political meddling (para 216). It
reasoned that the question whether there had been political
meddling
fell within the peculiar knowledge of the NDPP and was difficult for
Mr Zuma to prove; and so, it held, less evidence
would suffice to
establish a
prima
facie
case (paras 168 - 169). This rule of evidence, namely that if the
facts are peculiarly within the knowledge of a defendant
the
plaintiff needs less evidence to establish a prima facie case,
applies to trials. In motion proceedings the question of onus
does
not arise and the approach set out in the preceding paragraph governs
irrespective of where the legal or evidential onus lies.
In applying
the 'rule', the court omitted to determine whether the NDPP had
failed to adduce evidence on the particular issues;
it used the
'rule' in spite of evidence to the contrary; and it did so in
instances where no answer was called for because the
allegations were
either not incorporated into the founding affidavit or were
inadmissible. Finally, the court failed to have regard
to another C
principle, namely that the more serious the allegation or its
consequences, the stronger must be the evidence before
a court will
find the allegation established’.
[8]
[Footnotes omitted.]
[27]
The resolution of the factual dispute in favour of the appellant
would have had disastrous consequences for the first respondent.
Likewise, a resolution in favour of the first respondent had put paid
to one part of the appellant’s case. It is clear that
the
consequences of accepting one version above the other were indeed
significant and serious. The court
a quo
clearly needed more
and stronger evidence to make the finding that it did. The hearsay
evidence was not enough. It is not clear
whether the court
a quo
applied the provisions of
section 3
of the
Law of Evidence Amendment
Act 45 of 1988
.
[28]
I am of the view that the appellant was also supposed to adduce
stronger evidence for its contention that members of the first
respondent were on strike. The fact that members of the first
respondent told Guimaraes that they supported the strike is no
indication
that they are actually striking. One can support a strike
without necessarily participating in it. The fact that some members
of
the first respondent did not report for duty for fear of their
lives cannot be constructed as participation in the strike. The
appellant alleged that 60 members of the first respondent did not
report for duty on 19 April 2013 at Ipelegeng whereas the first
respondent alleged its members were turned away. The appellant’s
evidence was based on hearsay because no confirmatory affidavit
by
Berning was supplied. The appellant’s evidence was just not
strong enough to warrant a finding that members of the first
respondent were on strike. The first respondent’s stance, in
its letter to the appellant, was that its members were not on
striking. The contrary was not communicated to the appellant by the
first respondent. In my view, the court
a
quo
should
have referred this issue to oral evidence. The fact that a matter was
brought on an urgent basis is no bar against referring
it to oral
evidence. My conclusion on the other issues in dispute militates
against referring the matter back to the court
a quo
to hear
oral evidence.
[29]
The Act contains an important interpretive instruction in section 3
thereof which reads:
‘
Any
person applying this Act must interpret its provisions –
(a)
To give effect to its primary objects;
(b)
In compliance with the Constitution; and
(c)
In compliance with the public international
law obligations of the Republic.’
[30] The purpose of
the Act is stated in section 1 as:
‘
to
advance economic development, social justice, labour peace and the
democratisation of the workplace by fulfilling the primary
objects of
this Act
,
which are-
(a
)
To give effect to and regulate the fundamental rights conferred by
section 23 of the Constitution of the Republic of South Africa,
1996;
[Para. (a) substituted by
s.
1
of
Act
6 of 2014
.]
(b) To give effect
to obligations incurred by the
Republic
as a member state of
the International Labour Organisation;
(c) To provide a
framework within which
employees
and their
trade unions
,
employers and
employers' organisations
can-
(i) Collectively
bargain to determine wages, terms and conditions of employment and
other matters of mutual interest; and
(ii) formulate
industrial policy; and
(d) To promote-
(i)
Orderly collective bargaining;
(ii)
Collective bargaining at sectorial level;
(iii)
Employee participation in decision-making
in the workplace; and
(iv)
The effective resolution of labour
disputes.’
[31]
Section 23 of the Constitution of the Republic of South Africa 1996
(Constitution) reads as follows:
‘
(23)
(1) Everyone has the right to fair labour practices.
(2) Every worker has
the right-
(a) To form and join
a trade union;
(b) To participate
in the activities and programmes of a trade union; and
(c) To strike.
(3) Every employer
has the right-
(a) To form and join
an employers’ organisation; and
(b) To participate
in the activities and programmes of an employers’
organisation.’
[32]
There is a constitutional right to strike, but there is no right to
lock-out. The exclusion of the right to lock-out was explained
in the
first certification case where the Constitutional Court
[9]
stated that:
‘
A
related argument was that the principle of equality requires that, if
the right to strike is included in the NT, so should the
right to
lock out be included. This argument is based on the proposition that
the right of employers to lock out is the necessary
equivalent of the
right of workers to strike and that therefore, in order to treat
workers and employers equally, both should be
recognised in the NT.
That proposition cannot be accepted. 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 entrenched in constitutions as a
fundamental right than
is the right to lock out. The argument that it
is necessary in order to maintain equality to entrench the right to
lock out once
the right to strike has been included, cannot be
sustained, because the right to strike and the right to lock out are
not always
and
necessarily
equivalent
.’
[10]
[Footnote omitted and own emphasis]
[33]
Brassey
also points out that lock-outs are not equivalent to
strikes
and puts it thus:
‘
That
the two [the lock-out and the strike] should be treated differently
is not purely a matter of historical accident or political
expediency. Formally they may seem symmetrical, but in practice
they play very different roles. When employers want
to change
terms of employment, they do not reach for the lock-out; provided
they negotiate to impasse first, they can implement
the changes
unilaterally. Then, if the workers refuse to accept the changes, the
law gives their employer the right to retrench
or dismiss them. If
they refuse to leave the premises, the law provides a range of
sanctions that range from judicial interdicts
to the police baton.
The strike in contrast, is the only means, short of resignation, by
which workers can change their lot. It
is the way they fend off
exploitation and give teeth to the demands that they make at the
bargaining table. For them it is a vital
necessity, for the employers
just an optional extra. By giving collective rights only to workers
the law seems to favour then at
the expense of their employers. Those
who believe in the free interplay of market forces would be quick to
condemn this as wrong.
What they forget, however, is how much
employers are favoured by the legal and social institutions of our
society.’
[11]
[34]
Creamer agrees with Brassey and points out that the inclusion of the
right to strike and the exclusion of a right to lock-out
in the
Constitution amounts to a decisive shift towards an asymmetrical
approach to the regulation of industrial action, based
on the
understanding that treating strikes differently from lock-outs would
bring greater substantive parity to the collective
bargaining
relationship.
[12]
[35]
The approach to follow when interpreting a provision that seeks to
limit the right to strike was succinctly set out in
Moloto
where
Yacoob ADCJ said the following:
‘
As
mentioned earlier, the right to strike is protected in the
Constitution as a fundamental right without express limitation. Also,
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 intrusive of the right,
if the text
is reasonably capable of bearing that meaning.’
[13]
[Footnote omitted.]
[36]
The approach adopted in relation to interpreting a fundamental right
without express limitation cannot be employed when interpreting
the
provisions of the Act relating to lock-outs.
[37]
Strikes and lock-outs are primarily regulated in Chapter IV Act. The
provisions of Chapter IV of the Act were summarised as
follows in
Chemical
Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd
(
CWIU
):
[14]
'Strikes and
lock-outs are regulated by chapter IV (ss 64 – 77) of the LRA.
Section 64(1) provides in general terms that every
employee has the
right to strike and every employer has the right to lock-out, subject
to certain conditions. These are set out
in paras
(a)
to
(d)
,
read with subsections (2) and (3). They comprise an attempt at
conciliation in regard to the issue in dispute (para
(a)
), and
notice (paras
(b)
,
(c)
and
(d)
). Section 65 is
headed Limitations on right to strike or recourse to lock-out. It
provides that no person may take part in a strike
or lock-out or in
any conduct in contemplation or furtherance of a strike or lock-out
if (in summary terms) a collective agreement
prohibits it, the issue
in dispute is arbitrable or justiciable, or (subject to exceptions)
the person is engaged in an essential
or a maintenance service.
Secondary
strikes are dealt with in s 66. In terms of s 66(1), in s 66,
secondary strike means a strike, or conduct in contemplation
or furtherance of a strike, that is in support of a strike by
other employees against their employer but does not include
a strike
in pursuit of a demand that has been referred to a council if the
striking employees have a material interest in that
demand. Section
66(2) prohibits participation in a secondary strike unless the strike
that is to be supported complies with the
provisions of ss 64 and 65
(para
(a)
);
notice has been given (para
(b)
)
and 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 (para
(c)
).'”
[15]
[38]
Section 64 is important for the resolution of the dispute in this
matter. It provides:
‘
Right
to strike and recourse to lock-out
(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).
(2) If the
issue
in dispute
concerns a refusal to bargain, an advisory award must
have been made in terms of section 135 (3)
(c)
before notice
is given in terms of subsection (1)
(b)
or
(c)
. A
refusal to bargain includes-
(a) A refusal-
(i) To recognise a
trade union
as a collective bargaining agent; or
(ii) To agree to
establish a
bargaining council
;
(b) A withdrawal of
recognition of a collective bargaining agent;
(c) A resignation of
a party from a
bargaining council
;
(d) A
dispute
about-
(i) appropriate
bargaining units;
(ii) Appropriate
bargaining levels; or
(iii) Bargaining
subjects.
(3) The requirements
of subsection (1) do not apply to a
strike
or a
lock-out
if-
(a) The parties to
the
dispute
are members of a
council
, and the
dispute
has been dealt with by that
council
in accordance with its
constitution;
(b) The
strike
or
lock-out
conforms with the procedures in a
collective
agreement
;
(c) The
employees
strike
in response to a
lock-out
by their employer that
does not comply with the provisions of this Chapter;
(d) The employer
locks out its
employees
in response to their taking part in a
strike
that does not conform with the provisions of this
Chapter; or
(e) The employer
fails to comply with the requirements of subsections (4) and (5).
(4) Any
employee
who or any
trade union
that refers a
dispute
about a
unilateral change to terms and conditions of employment to a
council
or the Commission in terms of subsection (1)
(a)
may, in the
referral, and for the period referred to in subsection (1)
(a)
-
(a)
Require the employer not to implement unilaterally
the change to terms and conditions of employment; or
(b)
If the employer has already implemented the change
unilaterally, require the employer to restore the terms and
conditions of employment
that applied before the change.
(5) The employer
must comply with a requirement in terms of subsection (4) within 48
hours of
service
of the referral on the employer.’
[39]
Lock-out is defined in section 213 of the Act as:
‘‘‘
lock-out
”
means the exclusion by an employer of
employees
from the employer's workplace, for the purpose of compelling the
employees
to accept a demand in respect of any matter of mutual interest
between employer and
employee
,
whether or not the employer breaches those
employees'
contracts of employment in the course of or for the purpose of that
exclusion.’
[40]
The purpose of and the procedural requirements for a protected strike
or lock-out are similar. They both serve as deadlock
breaking
mechanisms when the process of collective bargaining fails to live up
to its purpose; which is for the parties to enter
into a collective
agreement.
[16]
In terms of section 23(5) of the Constitution, every trade union,
employers’ organisation and employer has the right to engage
in
collective bargaining. In
NUMSA
and Others v Bader Bop (Pty) Ltd and Another
(
Bader
Bop
)
,
[17]
it was said that the right to strike is an important component of a
successful collective bargaining system.
[18]
The inclusion of the employer’s recourse to lock-out in the Act
is indicative of the fact that the legislature recognised
and
accepted that the employer’s recourse to lock-out is equally an
important component of an effective collective bargaining
system. The
Constitutional Court also recognised the importance of industrial
action as a deadlock breaking mechanism. In
Bader
Bop,
it said:
‘
Where
employers and unions have the right to engage in collective
bargaining on a matter, the ordinary presumption would be that
both
parties would be entitled to exercise industrial action in respect of
that matter.’
[19]
[41]
In analysing the definition of lock-out, Zondo JP (as he was then)
stated that a lock-out has three essential elements, namely:
(a)
There must be an exclusion of employees
by the employer from the employer’s workplace, and,
(b)
The purpose of the exclusion of
employees from the workplace-must be to compel them to accept the
employer’s demand, and,
(c)
The
demand must be in respect of any matter of mutual interest between
employer and employee.
[20]
[42]
He went on to state that the exclusion of employees must be for an
authorised purpose. He said:
‘
In
the light of the above it goes without saying that, for a lock-out to
exist, the exclusion of employees from the employer’s
workplace, must be for the authorised purpose. The authorised purpose
is to compel the employees to accept the employer’s
demand in
respect of a matter of mutual interest between employer and employee.
This does not mean that there cannot be an exclusion
of employees
from premises for a purpose other than the purpose in the definition
of a lock-out. An employer has a right at common
law as owner or
lawful occupier of premisses (sic) to refuse employees entry into the
workplace where the purpose of their coming
into the workplace is not
to perform their duties. Also if, after employees have entered the
workplace, they refuse to work, the
employer would be entitled to
exclude them from the workplace
.’
[21]
[43]
Mr Memani on behalf of the first respondent, argued that since TAWUSA
was not a party to the dispute that had arisen at the
SARPBAC, and
since TAWUSA had not declared any dispute with PUTCO the lock-out
against TAWUSA members was unlawful. He submitted
that section
64(1)(c) requires that the employer must give notice of the intended
lock-out to any trade union that is a party to
the dispute, since
TAWUSA was not a party to any dispute, a lock-out may not be
instituted against it. He pointed out that section
64(1)(b) only
requires that notice must be given to the employer without requiring
that the employer must be a party to dispute.
[44]
Mr Myburgh on behalf of the appellant argued that an employer party
to a bargaining council should be entitled to lock-out
employees who
are members of a non-party union because the non-party union members
have a material interest in the outcome of the
dispute; the lock-out
would promote collective bargaining at sectoral level and it would
give effect to the majoritarian principle
which is at the heart of
the collective bargaining dispensation.
[45]
The court
a quo
accepted Mr Memani’s arguments and found
that the wage demand or offer was not made to the respondent but at
the bargaining
council where the respondent was not represented.
Before discussing the submissions of the parties I pause to set out
the manner
in which the parties negotiated at the SARPBAC.
[46]
Collective bargaining on wages and other conditions of employment
occurred at the SARPBAC. The last collective agreement entered
into
at the SARPBAC, prior to the dispute germane to these proceedings,
was in April 2012. It is common cause that TAWUSA did not
participate
in the 2012 wage negotiations and that it did not sign the resultant
collective agreement.
[47]
On 29 June 2012, the collective agreement was extended in terms of
section 32(2) of the Act to the employees and employers
in the
industry
[22]
from 9 July 2012 to 31 March 2013. The period was further extended
until 31 July 2013.
[48]
Clause 2.2 and 2.3 of the Constitution of the SARPBAC read as
follows:
‘
2.2
This Constitution and all agreements concluded under the auspices of
SARPBAC shall apply and be binding on:
2.2.1 Employers’
Organisations an Trade Unions that are party to SARPBAC, as well as
members of these Parties.
2.2.2 All eligible
Employees in the employ of members of the above Employers’
Organisations regardless of any Union affiliation.
2.3 Agreements
concluded under the auspices of SARPBAC shall also apply and be
binding upon all other parties and/or individual
to whom the
operation of a collective Agreement concluded under the auspices of
SARPBAC is extended in terms of section 32 of the
Act.’
[49]
It is therefore clear that collective agreements entered into under
the auspices of the SARPBAC were binding on all eligible
employees in
the employ of the employer’s organisations and to those parties
and or individuals to whom it was extended in
terms of section 32 of
the Act.
[50]
It is clear that when the parties negotiated until impasse was
reached; their intention was to enter into a collective agreement
that would be binding on all employees and employers within the
industry. All the parties were aware that the will of the majority
would prevail during the negotiations. This is in sync with the
general scheme of the Act. In
Kem-Lin
Fashions CC v Brunton and Another,
[23]
it was said that:
‘
The
legislature has also made certain policy choices in the Act which are
relevant to this matter. One policy choice is that the
will of the
majority should prevail over that of the minority. This is good for
orderly collective bargaining as well as for the
democratisation of
the workplace and sectors. A situation where the minority dictates to
the majority is, quite obviously, untenable.
But also a proliferation
of trade unions in one workplace or in a sector should be
discouraged. There are various provisions in
the Act which support
the legislative policy choice of majoritarianism. Some of them are s
14(1); 16(1); 18(1); 25(1) and (2);
26(1) and (2); 32(1) (a) and (b);
32(3) (a), (b), (c) and (d) and 32(5); 78(b)).’
[24]
[51]
Although the will of the majority prevails, the minority would
benefit if the negotiations yield positive results. Likewise
the
minority would be prejudiced or disadvantaged if the negotiations do
not yield any fruit. The same would apply if the majority
decides to
strike and the strike puts enough pressure on the employer so that
the latter accepts the workers’ demands. The
minority would
benefit from the fruits derived from the strike. Should the minority
be spared when the employer decides to lock-out
its employees?
[52]
Mr Memani seems to conflate the requirements in section 64(1)(a) with
those in section 64(1)(c) of the Act. Whether the employer
is
entitled to lock-out employees is a question which must be answered
by construing section 64(1)(a) and thereafter section 64(1)(c)
of the
Act to discern whether the notice was properly given.
[54]
When parties who are engaged in collective bargaining cannot reach
agreement in order to conclude a collective agreement, they
have the
right to resolve the impasse by way of industrial action. Before
resorting to lock-out or strike, the dispute must be
referred to a
council or the CCMA for conciliation. A certificate of non-resolution
indicating that the dispute remains unresolved
should have been
issued by the council or the CCMA or a period of 30 days should have
elapsed since the referral was received by
the council or the CCMA.
Only after the above requirements have been satisfied may the party
intending to embark on a strike or
lock-out give notice to the other
party of its proposed industrial action.
[55]
In the case of a lock-out, the employer must give at least 48 hours
written notice of the commencement of the lock-out. The
written
notice must be given to any trade union that is a party to the
dispute, or if there is no 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 be given
to the council as
well.
[56]
In this matter, the parties could not reach an agreement in the
SARPBAC. After satisfying the requirements in section 64(1)(a)
of the
Act, the majority unions issued a proper and valid strike notice. Mr
Memani did not take issue with the fact that there
was compliance
with section 64(1)(a) of the Act – by the employer and the
employees’ parties. The first respondent
also accepted that the
majority unions issued a proper strike notice. The first respondent
argued that the lock-out notice was
improperly issued to it.
Although, in my view, this case is not about giving notice to a
non-party union – because notice
was given – but rather
whether a lock-out can be instituted against a non-party union, I
will now briefly deal with the notice
requirement.
[57]
The purpose of a strike notice was discussed in
Moloto
wherein
the Constitutional Court cited with approval Helen Seady and Clive
Thompson’s description of the purpose of a strike
notice. They
stated that:
“
The
purpose of the [strike] notice would seem to be four-fold:
•
settlement
brinksmanship
. The notice tells the
other party that words are about to escalate into deeds, and by that
token offers a last-gasp and pressure-cooker
invitation to settle;
•
more
orderly industrial action
. Industrial
action is inherently volatile. A lead-in notice affords some
opportunity to regulate the event, for instance through
agreed or
imposed picket rules;
•
damage
limitation
. Strikes (in particular) are
intended to cause financial loss, but a notice requirement checks
some of the more gratuitous associated
damage. For instance, an
employer working with perishable goods can take steps to protect
stock once it knows that action is imminent;
•
health
and safety considerations
. In the case
of certain operations, an orderly wind-down of production might
prevent or limit health and safety risks to employees
and the
public.”
The
Supreme Court of Appeal accepted this description and correctly added
another purpose to the list — the protection of
the striking
employees whose conduct is rendered lawful by a proper strike
notice.’
[25]
[58]
The notice requirements for a strike being similar to those of a
lock-out, the description also holds true for lock-out notices.
In
CWIU,
this Court accepted the argument that the purpose of section 64(1)’s
procedural requirements is to compel employees (and
employers) to
explore the possible resolution of their dispute through negotiations
before exercising their right to strike (or
recourse to
lock-out).
[26]
The lock-out notice therefore serves essentially two purposes,
firstly, it allows the parties a last opportunity to reach an
agreement
in order to avert the lock-out and secondly, it allows the
employees to make contingency plans in anticipation of the lock-out.
I will return to this issue later.
[59]
The lock-out notice in this matter stated that the employer intends
to lock-out all employees in the bargaining unit in support
of the
wage proposals of the employer tabled at the SARPBAC. The lock-out is
therefore about the wage proposals which were not
accepted at the
SARPBAC – where the first respondent did not enjoy
representation but the SARPBAC’s decisions would
be binding on
the first respondent.
[60]
“Issue in dispute” in relation to a strike or lock-out,
means the demand, the grievance, or the dispute that forms
the
subject matter of the strike or lock-out.
[27]
In
Moloto,
it was said that:
‘
The
regulatory scheme of the Act and the provisions of s 64 envisage only
one strike in respect of one 'issue in dispute' or 'dispute'.
The
definite article, 'the', before the words 'issue in dispute' and
'dispute' in s 64(1)
(a)
and before the second use of the word 'strike' in s 64(1)
(b)
makes this clear. '(T)he strike' in s 64(1)
(b)
can only be in relation to 'the [unresolved] dispute' of s 64(1)
(a)
.
And if there can only be one strike in relation to one dispute, there
seems to be little in language or logic to suggest that
more than one
notice in relation to the single strike is necessary.’
[28]
[61]
The lock-out in 64(1)(c) can also only be in relation to the
unresolved dispute in section 64(1)(a).
[62]
The issue in dispute arose at the SARPBAC which is the forum where
all negotiations pertaining to wages and conditions of employment
for
the entire industry were conducted. All parties, including the first
respondent, knew that the negotiations at the SARPBAC
relates to
bargaining for a multi-party collective agreement and that the will
of the majority would prevail. Members of the first
respondent would
be bound by the collective agreement and would therefore reap the
benefits of the wage negotiations should the
majority unions’
demand be accepted. They had an interest in the negotiations and the
dispute was indeed about a matter of
mutual interest to the employer
and the employees. The whole bargaining unit would therefore
have benefited from any wage increase.
[63]
The definition of lock-out in the Act does not state that it should
only be directed at striking employees. The definition
is clear and
unambiguous that a lock-out “means the exclusion by an employer
of employees from the employer’s workplace…”
[29]
The employer can therefore exclude all employees - striking and
non-striking – who do not accept the employer’s demand,
from the workplace when it decides to institute a lock-out.
[64]
The employer may, as part of its strategy to put pressure on its
employees to accept its demand, decide to lock-out all employees
in
order to achieve a systematic consecutive group or individual
capitulation. As the one group capitulates and accept the employer’s
demand; pressure would be put on the other group/s or individuals to
do the same. The more employees as individuals or a group
accept the
demand the less effective the strike might become thereby forcing the
remaining employees to accept the employer’s
demand. Striking
workers will not receive a salary during the strike. Union funds
would be drained whilst those employees who have
decided to accept
the demand would be able to work and receive their salaries. The
lock-out would exert economic pressure on the
union to accept the
employer's demand.
[65]
Members of the first respondent could decide to join the strike at
any time without giving notice to the appellant. In my view,
it would
be unfair to expect the appellant not to institute a lock-out against
them whilst they refuse to accept its demand. Those
employees can
strategically decide to strike at a time that could cause serious
economic damage to the employer. The employer would
be caught by
surprise and would not be able to make contingency arrangements. The
employer should, in my view, be able to act proactively
against them.
[65]
Creamer illustrates how a lock-out can be used by employers to exert
economic pressure on unions and to reduce economic pressure
on the
employer. He states:
‘
As
most of these challenges turn on the regulation of employer lock-out
action, it is important to draw a distinction between 'offensive'
and
‘defensive’ lock-outs. Defensive lock-outs involve the
closure of an employer’s premises or the shutting
down of its
operations during industrial action initiated by workers. Such action
strengthens the employer’s bargaining position
as it has the
effect of increasing the economic costs of industrial action for
workers who had engaged in a go-slow or work-to-rule
action rather
than on a full-blown strike action. Furthermore, where employees
included in the lock-out were not party to the original
industrial
action this places increased pressure on the representatives of the
striking workers to reach agreement with the employer.
Offensive
lock-outs (also known as ‘pre-emptive lock-outs’) amount
to an employer initiated form of industrial action
where the premises
are locked and workers are excluded and prevented from working. This
enables an employer to put pressure on
workers to accept the terms
and conditions of service which it is offering in the collective
bargaining process. This amounts to
an attempt to compel workers to
accept certain new terms or to agree to the variation of existing
terms. The offensive lock-out
also enables the employer to influence
the timing of industrial conflict, which can prove strategic in
increasing the cost to workers
of disagreements in the bargaining
process and reducing the economic pressures of such disagreements for
employers. For example,
the costs of industrial action are much
reduced for employers if the action takes place outside of periods of
peak production or
demand.’
[30]
[66]
If an employer’s entitlement to lock-out its employees is
limited to striking employees only, it would blunt the employer’s
weapon. Firstly it would mean that an employer would not be able to
cease operations and shut down its premises because there are
non-striking workers who are not prepared to accept the employer’s
demand. Secondly, in a pre-emptive lock-out, the non-striking
employees would have to be paid whilst they do not accept the
employer’s offer, thereby making it costly for the employer
who
may not employ replacement labour. The non-striking workers would
actually be pressurising the employer to capitulate.
[31]
[67]
It must be remembered that in this matter, the first respondent
expressly rejected the employer’s wage demand. Its general
secretary made it plain and in express terms when he wrote that “our
members will continue to tender services as usual and
will not sign
any new conditions which you seek to impose by way of unlawful
lock-out”. Had they tendered their services
and accepted the
employer’s proposal, the employer would have no reason to lock
them out.
[68]
A lock-out which is aimed at all employees in the bargaining unit,
promotes collective bargaining at sectoral level and seeks
to give
effect to the majoritarian principle which is at the heart of the
collective bargaining dispensation. The Act also has
a bias in favour
of collective bargaining at sectoral level. One of the objects of the
Act is to promote collective bargaining
at sectoral level.
[32]
Majoritarianism is also preferred by the Legislature.
[33]
[69]
It is accepted that a bargaining council is the representative of the
industry over which it has jurisdiction, and that as
long as a
dispute that has been dealt with at the bargaining council remains
unresolved, all employees that fall under the scope
of the bargaining
council and have a material interest in the demand over which impasse
was reached may strike. Strikes against
non-party employers in the
context of a bargaining council dispute are permitted.
[34]
I
can see no reason why, by parity of reasoning, the same should not
hold true for lock-outs.
[70]
In my view, the appellant acted lawfully when it locked-out members
of the first respondent. I now turn to finalise the issue
of the
notice.
[71]
Mr Memani submitted that the fact that the Act stipulates that the
notice must be given to any trade union that is a party
to the
dispute means that a lock-out notice may not be given to a trade
union that is not a party to the dispute; therefore a lock-out
cannot
be directed at a union that is not a party to the dispute. I have
already found that the first respondent was a party to
the dispute
because its interests at the SARPBAC were represented by the majority
unions, based on the majoritarian principle and
the Constitution of
the SARPBAC. There was only one dispute between the employer parties
and the employees parties. The resolution
of the dispute in the
employee parties' favour would have benefited the first respondent’s
members as well. The employer
complied with the definitional and
legislative requirements for a protected lock-out. The notice
requirement has nothing to do
with the employer’s entitlement
to lock-out, but is a further procedural requirement to warn the
employees about the implementation
of the employer’s decision.
[72]
In
Moloto
the Constitutional Court said, in an
obiter
dictum
, that:
‘
The
applicants accepted that, in relation to lock-outs, the express
provisions of s 64(1)
(c)
of the Act require notice only to a trade union, if there is one at
the workplace, and not to non-unionised employees as well.
To hold
otherwise would, in relation to s 64(1)
(c)
,
mean that the express wording would have to be disregarded. There is
no need to do that either to fulfil the purposes of the Act.’
[35]
[73]
The minority was however of the view that the provisions of 64(1)(c)
must mean that notice should be given to a trade union
where there is
one and separately to non-unionised employees as well.
[36]
[74]
Mr Memani argued that the majority view is incorrect and invited us
to pronounce on the issue. We do not have to decide this
issue
because, in this matter, the appellant gave notice to all the unions,
including the first respondent, all the non-unionised
employees and
to the council.
[75]
In
United
Transport & Allied Trade Union/SA Railways & Harbours Union
and Others v Autopax Passenger Services (SOC) Ltd and
Another,
[37]
the
Labour Court considered a similar matter and disagreed with the
conclusion of the court
a
quo
in
this matter.
In
my view, the conclusion of the Labour Court in the
Autopax
matter is correct. The appeal ought to succeed.
[76]
The appellant requested that costs should follow the cause and that
we should order the first respondent to pay the costs including
the
costs consequent upon the employment of two counsel. Mr Memani did
not proffer any argument against Mr Myburgh’s request.
This
matter was sufficiently complex and important to warrant the
employment of two counsel. In my view, the dictates of fairness
and
the law require that such costs order be made.
[77]
I therefore make the following order:
1)
The appeal succeeds.
2)
The order of the court
a quo,
in respect of PUTCO Limited, is
set aside and replaced with the following:
“
The
application is dismissed with costs”.
3)
The first respondent is ordered to pay the costs of the appeal, such
costs to include those consequent upon the employment of
two counsel.
Musi
JA
Murphy
et Dlodlo AJJA concur in the Judgment of Musi JA
APPEARANCES:
FOR
THE APPELLANT: Advocates Myburgh SC, Ngcukaitobi and Raizon
Instructed
by Bowman Gilfillan INC
FOR THE FIRST
RESPONDENT: Adv. Memani
Instructed
by Medupi Lehong INC
[1]
The
relevant part of section 32 of the Act reads as follows:
“
(1)
A
bargaining council
may ask the
Minister
in writing to extend a
collective
agreement
concluded in the
bargaining
council
to any non-parties to the
collective agreement
that are within its
registered scope
and are identified in the request, if at a meeting of the
bargaining
council
-
(a)
one or more registered
trade
unions
whose members constitute the
majority of the members of the
trade
unions
that are party to the
bargaining council
vote in favour of the extension; and
(b)
one or more registered
employers'
organisations
, whose members employ
the majority of the
employees
employed by the members of the
employers'
organisations
that are party to the
bargaining council
,
vote in favour of the extension.
(2)
Within 60 days of receiving the request, the
Minister
must
extend the
collective agreement
, as requested, by publishing
a notice in the
Government Gazette
declaring that, from a
specified date and for a specified period, the
collective
agreement
will be binding on the non-parties specified in the
notice.”
[2]
See
Government Notice No R482 of 29 June 2012.
[3]
See
Government Notice No R247 of 5 April 2013.
[4]
The
replying affidavit states that the incident happened on Monday 19
April 2013. This must be a mistake because the Monday was
22
nd
April 2013.
[5]
See
SATAWU
v Moloto NNO
(
Moloto
)
2012
(6) SA 249
(CC) at para 45.
[6]
See
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635 D.
[7]
2009
(2) SA 277 (SCA).
[8]
National
Director of Public Prosecution v Zuma
at
paras 26 and 27. Footnotes omitted.
[9]
Ex
parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa
1996 1996 (4) SA 744 (CC).
[10]
At para 66.
[11]
Brassey
M “Sam’s Missile: Entrenching Industrial Action in a
Bill of Rights”
EL
(1993) 10-28.
[12]
Creamer
K “The meaning and Implications of the Inclusion in the
Constitution of a Right to Strike and the Exclusion of a
lock-out
Right: Towards Asymmetrical Parity in the Regulation of Industrial
Action”
ILJ
(1998) 19(1) 1-20.
[13]
At
para 53.
[14]
(1999)
20 ILJ 321 (LAC).
[15]
At para 17.
[16]
Equity
Aviation Service (Pty) Ltd v SATAWU and Others
(2009) 30 ILJ 1997 (LAC) at para 76.
[17]
2003
(3) SA 513 (CC).
[18]
At
para 13.
[19]
At
para 43.
[20]
Technikon
SA v National Union of Technikon Employees
of
SA
(2001)
22 ILJ 427 (LAC) at para 15.
[21]
At
para 16.
[22]
Section
32(2) of the Labour Rations Act 66 of 1995 reads as follows:
“
(2)
Within 60 days of receiving the request, the
Minister
must extend the
collective agreement
,
as requested, by publishing a notice in the
Government
Gazette
declaring that, from a
specified date and for a specified period, the
collective
agreement
will be binding on the
non-parties specified in the notice.”
[23]
(2001)
22 ILJ 109 (LAC).
[24]
At
para 19.
[25]
Moloto
at
para 25.
[26]
At
para 27.
[27]
See
section 213 of the Act.
[28]
At
para 65.
[29]
Section 213 of the Act.
[30]
Creamer
supra
at page 17. See
Technikon
SA
supra
where Zondo JP warns against the fixation of using the terms
offensive and defensive lock-out at para 30.
[31]
Section
76(1)(b) reads as follows: “ An employer may not take into
employment any person--
(b)
for the purpose of
performing the work of any
employee
who is locked out, unless the
lock-out
is in response to a
strike
.”
[32]
See
section 1(d) (ii) of the Act.
[33]
See
section 32 of the Act. See also
Kim-Lin
Fashions
supra.
[34]
See
Tiger
Wheels Babelegi (Pty) Ltd t/aTSW International v NUMSA and Others
[2007] ZALC 43
;
[1999] 1 BLLR 66
(LC) at paras 23 and 24,
Plastics
Convertors Association of SA v Association of Electric Cable
Manufacturers of SA and 4 Others
[2011] 11 BLLR 1095
(LC) at para 23.
[35]
At
para 87.
[36]
At para 36.
[37]
(2014)
35 ILJ 1425 (LC).