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[2015] ZALAC 88
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CSS Tactical Pty (Ltd) v SOCRAWU (JA 69/14) [2015] ZALAC 88 (24 June 2015)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 69/14
In the matter between:–
CSS TACTICAL (PTY)
LTD
Appellant
and
SECURITY OFFICERS
CIVIL RIGHTS AND ALLIED
WORKERS UNION
(SOCRAWU)
First Respondents
ZWABESHO MBATHA and
302 others
Second and further Respondents
Heard: 19 May 2015
Delivered: 24 June
2015
Summary: Employer
seeking to interdicting strike in support of certain demands –
parties concluding agreement at national
level on certain issues –
agreement specifying issues negotiating at national level and at
company level- employer contending
that issues raised by union at
company level ought to be negotiated at national level –
employer conceding only at the appeal
stage that some issues
negotiating at company level – evidence proving national
agreement silent on remaining issues –
striking on remaining
issues not limited by national agreement and union having
constitutional right to strike on these issues
- Appeal dismissed
with costs.
Coram: Tlaletsi DJP,
Ndlovu
et
Landman JJA
JUDGMENT
LANDMAN
JA
Introduction
[1] The appellant, CSS
Tactical (PTY) Ltd, unsuccessfully sought to interdict the Security
Officers Civil Rights and Allied Workers
Union (SOCRAWU) and 302
members (henceforth the respondents) from striking in support of
certain demands on the basis of section
65(3)(a) of the Labour
Relations Act 66 of 1995 (the LRA). The appeal is with the leave of
the Labour Court (AC Basson J).
The dispute
[2]
On 23 August 2013, the respondents submitted a list of demands to the
appellant. The appellant then recorded its willingness
to enter into
negotiations on one of the demands namely the demand for limited
organisational
rights.
But the parties deadlocked on the appropriate forum. The appellant
referred a dispute to the Commission for Conciliation,
Mediation and
Arbitration (the CCMA) in terms of section 24 of the LRA pertaining
to the interpretation of the Framework Agreement.
The union referred
a dispute to the CCMA concerning matters of mutual interest. The
referrals were consolidated and considered
by the CCMA.
[3]
The dispute with which this appeal is concerned arose when the
respondents gave notice to the appellant that they intended striking
on 17 December 2013. The issues set out
in
this
notice were fewer than those listed in the letter of 23 August. The
following issues were listed in the strike notice:
1.
travelling
allowance;
2.
two
structures of tactical unit;
3.
two
full-time shop stewards;
4.
quality
SABS approved bullet vests;
5.
one
roster system; and
6.
payment
for attending criminal cases as witnesses arising out of arrests made
while on duty.
[4]
The appellant applied for and was granted a rule
nisi
by the
Labour Court calling on the respondents to show cause why they should
not be interdicted from striking. The interdict was
discharged on the
return day.
The
context
[5]
It is necessary to sketch the background and collective bargaining
regime in which the demands were made. I do so, at this stage,
without analy
s
ing
or applying it to the problem.
The
national forum
[6]
The appellant, the union and others engaged in the security sector do
not have a bargaining council for this industry. Instead
,
they
have concluded a collective agreement entitled
“
The
Negotiating Framework Agreement for the National Bargaining Forum for
the Private Security Sector
”
(‘the
Framework Agreement’) providing, as the title indicates, for a
National Bargaining Forum for the Private Security
Sector (
“
the
Forum
”
).
The appellant through its employers’ organi
s
ation
The
South African National Security Employers’ Association (
SANSEA
)
is
a member of the forum. It is common cause that the union is by
association bound by this agreement. The forum operates by
negotiating,
periodically, at national level, terms and conditions
which are applicable to the private security sector. The bargain is
then
recorded in a collective agreement entitled
“
The
Memorandum of Agreement
”
(‘the
Memorandum’) for submission to the Minister of Labour, in order
that she may, in her discretion, incorporate it
or parts of it in a
sectoral determination for the private security sector in accordance
with the
Basic Conditions of Employment Act 75 of 1997
. Potentially
(and in practice) portions of the Memorandum reached at the
F
orum
are extended to all participants in the sector, including non-parties
to the Forum and the resultant Memorandum. On promulgation
of a
sectoral determination containing all or some of the terms of the
Memorandum, the Memorandum comes into operation as a collective
agreement binding its signatories and members of those signatories.
See clause 9.3 of the Framework Agreement.
[7]
Clause 8.5 of the Framework Agreement provides that:
`Unless
otherwise agreed no party or member of the party to this agreement
shall raise for negotiation with any other party or member
of such a
party to this agreement, any issue that has been tabled, traded off
or negotiated in the course of in the round of negotiations
and to
all the commencement of the next round of negotiations in terms of
this agreement.’
The
Memorandum of Agreement
[8]
The members of the
F
orum
concluded a Memorandum of Agreement on 2 April 2012. It was signed,
inter
alia
,
by the appellant, but not by the first respondent although it is
conceded that the agreement is binding on the respondents.
[9]
Clause 2 of the Memorandum provides that:
‘
2.1
The parties agree that the Agreement shall be submitted to the
Minister of Labour in order that she may in accordance with the
provisions of Chapter 8 of the
Basic Conditions of Employment Act 75
of 1997
, include the conditions of employment contained therein in in
the promulgation of a Sectoral Determination for the Private Security
Sector thereby extending such conditions of employment to all
participants in the said sector including but not limited to
non-parties
to this agreement, National Key Points, Armed Response,
independent contractors, sub-contractors, car guards and labour
brokers.
2.2 The parties
agree that the Agreement and its provisions shall become effective
only upon the promulgation of a Sectoral Determination.
Insofar as
the provisions of the Sectoral Determination differ from the
Agreement by variation or omission, the promulgated provisions
shall
supersede any provision of the Agreement.
2.3 …
2.4. The Parties
specifically record that all provisions of the Negotiating Framework
Agreement are implied in this agreement.’
[10]
Clause 12 of the Memorandum, under the heading
“
Centralised
collective bargaining
”
provides
that:
‘
12.1
The parties reaffirm their commitment to bargain centrally on all
issues relating to the private security sector and the national
bargaining forum, with the exception of the following items that may
be dealt with at company level:
12.1.1 bicycle
allowance, and
12.1.2 dog
allowance.
12.2.
Notwithstanding [12.1] above, the Parties agree that the individual
trade unions may engage at company level with individual
Employers on
issues relating to compliance with the Sectoral Determination.’
[11]
The Memorandum came into operation when the Sectoral Determination
was amended with effect from 1 September 2012 to include
some parts
of the Memorandum. It is common cause that clause 12 was not included
in those amendments.
Failure
to stay decision pending the outcome of CCMA ruling
[12]
Mr Soldatas, who appeared on behalf of the appellant, submitted,
while accepting that the court
a quo
was not obliged to have
stayed its judgment on whether the respondents’ demands were
permissible ending a ruling on the interpretation
of the memorandum
by the CCMA, submitted that it ought to have done so.
[13]
The submission outlined above differs radically from the grounds of
appeal. In para 4.6 of the notice of appeal
,
it
is asserted that the CCMA has the sole and exclusive power to
interpret the Memorandum, as a collective agreement, and that the
court
a
quo
incorrectly usurped these powers. It does not appear that the court
a
quo
was asked to exercise a discretion to stay the proceedings; rather it
seems that it was submitted to that court that it could not
do
otherwise. Where a party has not asked a court to exercise a
discretion and where there is no duty on a court to have exercised
a
discretion
suo
motu
,
it is not competent to raise such a complaint on appeal.
The
appellant’s concession
[14]
During the appeal hearing, Mr Soldatas conceded that demands 2, 3, 4
and 5 in the strike notice (two structures of tactical
unit; two
full-time shop stewards; quality SABS approved bullet vests and one
roster system) were issues that could properly be
determined at
company level and that the respondents were entitled to strike to
bring about an agreement concerning them. This
concession was not
made in the court
a quo
.
[15]
The import of this concession is twofold. First the demands were
permissible demands and so a strike relating
solely
to those demands would be protected. The second is that
notwithstanding the terms of the Memorandum that it constitutes the
entire
agreement between the parties, it is flawed in respect of the
regulation of the issues of mutual interest designated for company
level bargaining. However, notwithstanding this concession, Mr
Soldatas submitted that the remaining demands in the strike notice
(the travelling allowance and payment for court attendance) were not
designated by the Framework Agreement or the Memorandum for
company
level bargaining but restricted to national level bargaining. He
makes two submissions in this respect; one based on clause
8.5 of the
M
emorandum,
the other based on clause 12. These are the issues which this court
is required to decide.
Limitations
on the right to strike
[16]
Both submissions are founded on the right of parties to limit a right
to strike by means of a collective agreement. The Constitution
of the
Republic of South Africa of 1996 acknowledges the right of employers
and employees to engage in collective bargaining. In
Minister
of Defence and Others v SA National Defence Union and Another
,
[1]
the
SCA said that:
‘
A
trade union does not have a constitutional right to engage in
collective bargaining on any issue at large. Counsel for both parties
accepted that the scope of the right to engage in collective
bargaining is limited to bargaining in respect of legitimate labour
issues. But the scope of the bargaining right is itself capable of
being limited if that can be justified under s 36.’
[17]
A protected strike, which is a permissible mechanism to give effect
to the right to bargain collectively, cannot extend further
than the
permissible bargaining issues. Every
worker
has the right to strike.
[2]
But
the right to strike like other rights set out in the Bill of Rights
may be limited in terms of a law of general application
to the extent
provided for in section 36(1).
[3]
Section 64(1) of the LRA, a law of general application, echoes the
constitutional provision. It provides that every employee has
the
right to strike subject to certain procedural conditions.
[4]
Section 65 of the LRA limits the right to strike in several respects.
One of the limitations gives expression to a so-called peace
clause
in terms of which the parties agree that neither employers nor
employees may lock-out or strikes for the period and concerning
the
issues agreed upon. Section 65(3)(a) provides that:
`(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;’
[18]
Section 65(3)(a) permits parties to limit the right to strike by
regulating the issue in dispute. The term
“
regulate
”
includes
regulation by way of creating a process to resolve the issue. See
Fidelity
Guards v PTWU and Others
.
[5]
The
clause 8.5 argument
[19]
remaining demands made by the respondents. He bases this submission
on two legs. The first is that there was no other agreement
to the
contrary as envisaged by clause 8.5 and secondly the respondents as a
member of a party to the agreement are precluded by
the clause from
raising for negotiation with the appellant
“
any
issue that has been tabled, traded off or negotiated in the course of
in the round of negotiations
”
and
must stand over until the commencement of the next round of
negotiations. The first leg may be accepted as a fact.
[20]
As regards the second leg, Mr Soldatas concedes that the papers do
not show that a travelling allowance or court attendance
pay
“
had
been tabled, traded off or negotiated in the course of in the round
of negotiations
”
.
This would ordinarily mean that absent such evidence
,
clause
8.5 would not apply.
[21]
However, Mr Soldatas contended that this
C
ourt
may infer that the remaining issues/demands as they involved a cost
to the employers bargaining at the Forum would have featured
in the
minimum terms and conditions ie the costs to the employers and so
these demands were on the negotiating table and may not
in terms of
clause 8.5 be bargained for until the next round of negotiations.
[22]
The law regarding the drawing of factual inferences in a civil case
is clear. The law is summari
z
ed
by Zulman JA in
Cooper
NO and Another v Merchant Trade Finance Ltd
,
[6]
as
follows:
‘
If
the facts permit of more than one inference, the court must select
the most “plausible” or probable inference. If
this
favours the litigant on whom the onus rests he is entitled to
judgment. If on the other hand an inference in favour of both
parties
is equally possible, the litigant will have not discharged the onus
of proof.’
[7]
[23]
In my view
,
an
inference that respondents did not place a travelling allowance or
pay for court attendance on the bargaining table at the Forum
is at
least as plausible as an inference that they did place such a demand
on the table. The result is that the appellant who bears
the
onus
of showing that its inference is the more plausible inference has not
done so and consequently clause 8.5 does not assist the appellant.
The
clause 12 argument
[24]
Mr Soldatas then fell back on clause 12 of the Memorandum which
featured in his concession. He submitted that this section
is capable
of being read that the parties agree to bargain centrally on all
issues relating to the private security sector at the
national
bargaining forum, with the exception of the bicycle allowance, and
dog allowance and other issues mentioned in his concession
that may
be dealt with at company level. In effect
,
the
contention is that by precluding collective bargaining at company
level
,
clause
12 of the Memorandum
“
regulates
”
the
issues in dispute by creating a process for resolving all such
matters of mutual interest. And therefore section 65(3)(a) of
the LRA
precludes a strike on the issues raised by the respondents.
[25]
It is true that on its wording
,
clause
12 may be read as restricting the issues that may be raised at
company level and reserving all other issues for national
level
bargaining. But when it is conceded that clause 12 is not all
embracing it must follow that clause 12 may not be intended
to
eliminate the two remaining demands from bargaining at that level. If
this is the case
,
then
it cannot be said that the collective agreement has competently
limited the constitutional right to strike.
[26]
The agreement is silent on what is to happen to demands or issues not
raised at the national forum although it may be implied
that demands
that are not tabled cannot be raised during the currency of a
collective agreement and must stand over until the next
round of
negotiations.
[27]
The submission that the parties bargain at national level on actual
terms and conditions and not minimum terms and conditions
does not
take the matter any further.
[28]
It follows that the appeal stands to be dismissed.
Costs
[29]
It was submitted that this
C
ourt
should be slow to grant an order for costs where the parties are
engaged in an ongoing relationship. This is true but had concession
been made in the court
a
quo
,
it
may have led, at least, to the abandonment of the grounds labelled
impermissible and, as I have found, the refusal of the interdict
prohibiting the strike. There is no reason to interfere with the
costs order of the court
a
quo
.
It is fair that the respondent should be awarded the costs of the
appeal.
[29]
In the premises
,
I
make the following order:
The
appeal is dismissed with costs.
A A
Landman
Tlaletsi
DJP, Ndlovu JA concurred in the judgment.
APPEARANCES:
FOR
THE APPELLANT:
A C Soldatos of Fluxmans
Inc
FOR
THE RESPONDENTS:
Chris Todd and Nikita Reddy of Bowman Gilfillan Attorneys
[1]
(2007)
28 ILJ 828 (SCA) at para 11.
[2]
Section
23(2)(c) of the Constitution.
[3]
(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
(e)
less restrictive means to achieve the purpose.
(2)
Except as provided in subsection (1) or in any other provision of
the Constitution, no law may limit any right entrenched
in the Bill
of Rights.
[4]
The conditions
are:
(
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 or
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.
[5]
1997 11 BLLR 1425
(LC).
[6]
(474/97)
[1999] ZASCA 97
(1 December 1999).
[7]
At para 7.