About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2016
>>
[2016] ZALAC 13
|

|

Mawethu Civils (Pty) Ltd and Another v National Union of Mineworkers and Others (PA24/14) [2016] ZALAC 13; [2016] 7 BLLR 661 (LAC); (2016) 37 ILJ 1851 (LAC) (20 April 2016)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
Case no: PA2/14
In the matter between:
MAWETHU CIVILS (PTY)
LTD

First Appellant
MAWETHU PLANT (PTY)
LTD

Second Appellant
and
NATIONAL UNION OF
MINEWORKERS AND OTHERS

Respondents
Heard:
10 March 2016
Delivered:
20 April 2016
Summary:
Common practice at employers’ workplace that employees work
five and half hours the
week preceding a public holiday so that they
may have a full paid long weekend. Employee refusing to work the
preceding week prior
to the public and employer not paying employees
for the day of which they did not work. Union declaring a dispute and
issuing a
strike notice – Although Labour Court issuing an
interim order restraining the strike, it discharged the rule
nisi
on the return date. Appeal – employers contending that
issues in dispute was a dispute of right which should be adjudicated

- court finding that issue in dispute is that of unfair labour
practice and that
the prohibition in section
65(1)(c) of the LRA did apply both in fact and in law - issue in
dispute ought to have been referred
to arbitration in terms of
section 191(5)(iv) of the LRA - strike was prohibited and unprotected
- Labour Court erring in discharging
the rule
nisi
– appeal upheld.
Coram: Waglay JP,
Sutherland JA
et
Murphy AJA
JUDGMENT
MURPHY AJA
[1] The appellants appeal
against the judgment of Lallie J in which she discharged a rule
nisi
including an interim interdict restraining the respondents from
participating in a strike.
[2] The strike in
question arose in relation to a dispute about the appellants’
alleged non-compliance with a long-standing
practice in relation to
payment for special leave for days proximate to public holidays at
the workplace of the appellants.
[3] The respondents did
not file any opposing papers. Consequently, the facts set out in the
founding papers are common cause.
[4] The appellants state
that there is a long-standing employment practice at their workplace
in terms of which employees would
work additional hours in the week
before a particular public holiday, at no extra remuneration, in
exchange for which they would
receive a paid day’s leave at the
time of the public holiday thus allowing employees a long-weekend. In
the present instance
the dispute arose in relation to the work during
the week in which the public holiday of 9 August 2012 fell on a
Thursday. In accordance
with the practice, employees were expected to
work five and a half hours unpaid overtime in the preceding week in
exchange for
which they would be entitled to paid leave for Friday 10
August 2012, the day after the public holiday. The appellants
maintain
that the practice had become an agreed term of employment of
the employees.
[5] In the week in
question, the employees refused to work the additional five and a
half hours in the preceding week and did not
report for duty on
Friday 10 August 2012.
[6] The appellants
decided not to take disciplinary action against the employees.
Instead they simply did not pay the employees
for Friday 10 August
2012, in accordance with the principle of “no work, no pay”.
[7] A dispute arose
between the appellants and the first respondent trade union and the
employees regarding the non-payment of wages
for Friday 10 August
2012.
[8] On 20 September 2012,
the respondents referred a dispute to the Commission for
Conciliation, Mediation and Arbitration (“the
CCMA”). The
referral form describes the dispute cryptically and misstates the
nature of the actual grievance. The description
reads:
‘
Employer is
refusing to pay 5½ hours as agreed that will be paid to
workers.’
The actual grievance was
that the employer refused to pay the employees a full day’s pay
for Friday 10 August 2012.
[9] The issue in dispute
between the parties was whether it was a term of the contract that
the employees had to work the unpaid
overtime in order to receive
payment for Friday 10 August 2012.
[10] Following
unsuccessful conciliation of the dispute at the CCMA on 15 November
2012, the CCMA issued a Certificate of Outcome,
identifying the
dispute between the parties to have been one of mutual interest,
declaring that it remained unresolved and recording
that a strike
could be proceeded with as the appropriate means for resolving the
dispute.
[11] The following day,
16 November 2012, the legal representatives of the appellants
addressed a letter to the respondents as follows:
‘
We refer to
the above dispute of so-called “Mutual Interest” and the
fact that Commissioner Marius Kotze has issued
a Certificate of
Non-Resolution on 15 November 2012.
The subject matter of the dispute is
clearly the alleged non-payment of wages as described in your LRA
7.11 referral form and expanded
upon at the conciliation. This is not
a dispute in which the CCMA has jurisdiction. Commissioner Marius
Kotze should have ruled
so. It is contractual dispute or at best, one
that must be dealt with by the Department of Labour. However, the
fact that a CCMA
certificate has now been issued, theoretically
entitles you to give 48 hours to embark on a protected strike.
Clearly, there is an error in law
which will be corrected by the Labour Court. We therefore wish to
inform you unequivocally that
should you utilize the opportunity that
the certificate provides you to embark upon a strike, we shall, on
behalf of our client:
1. Immediately apply for an urgent
interdict which will be successful based on current law; and
2. We shall ask for a costs order
against yourself, the union (NUM) and the CCMA, jointly and
severally.
That having been clearly said, our
client is still prepared to engage you to find a reasonable and
responsible solution to the alleged
dispute.’
[12] There was no
response to this letter. Instead, after issuing a strike notice on 23
November 2012, the respondents embarked
upon a strike on 26 November
2012, and the appellants launched an urgent application to declare
the strike unprotected and to interdict
it. The learned judge
a
quo
granted the interim interdict on 29 November 2012. On the
return date of 12 February 2013, she discharged the interdict. The
appeal
is against this order.
[13]
In her judgment, the judge correctly focused on the wording of
section 65(1)(c) of the Labour Relations Act
[1]
(“LRA”), being the provision on which the appellants had
relied to support their claim that the strike was unprotected.
It
reads:
‘
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)
….
(b)
….
(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.’
[14]
The appellants’ argument before the Labour Court was to the
effect that the prohibition in section 65(1)(c) of the LRA
should be
interpreted extensively to include disputes that could be referred to
the Department of Labour or the Labour Court in
terms of the Basic
Conditions of Employment Act
[2]
(“BCEA”). The appellants thus assumed that the dispute
was not one which the respondents had the right to refer to

arbitration or the Labour Court in terms of the LRA. The rationale of
their argument rather was that the dispute was quintessentially
a
rights dispute which should not be resolved as if it were an interest
dispute by resort to industrial action.
[15] The Labour Court
held that in light of the right to strike being a fundamental right
under our Constitution, section 65(1)(c)
of the LRA must be given a
strict interpretation. It accordingly declined to interpret the words
“in terms of this Act”
in the section to mean in terms of
the LRA or any other employment legislation. For that reason, the
Labour Court held that the
fact that the respondents had the right to
refer the dispute to the Department of Labour or to the Labour Court
under the BCEA
was no bar to their exercising the right to strike in
relation to the dispute.
[16] Much effort was
spent in the heads of argument filed in this appeal to persuade us to
adopt the appellants’ arguments
and to purposively interpret
section 65(1)(c) of the LRA to exclude the right to strike in
relation to rights disputes which can
be resolved by adjudicative
means under statutes other than the LRA. Subsequent to this dispute
arising, the provisions of section
65(1)(c) of the LRA were amended
to achieve that purpose. With effect from 1 January 2015, section
65(1)(a) of the LRA now reads:
‘
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)
….
(b)
….
(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
or any
other employment law
.’
It is common cause that
the amendment does not operate retrospectively.
[17] I do not propose to
engage with the arguments put forward by the appellants in support of
reading in the provisions of the
amendment into the earlier version
of section 65(1)(c) of the LRA prior to its amendment. They are
unpersuasive and the Labour
Court was correct not to read in the
additional wording. The omission in the section was properly a matter
for the legislature.
In any event, for reasons that will appear
presently, it is not necessary to interpret the provision
extensively.
[18] The dispute about
payment for the leave day is indeed a dispute of right. The
undisputed averment of the appellants in the
founding papers was that
the arrangement was a “practice”. In argument, it was
contended further that such practice
had become a contractual term.
Whatever the niceties, the underlying dispute was plainly not about
the creation of fresh rights,
and thus lacked the dimension of an
interest dispute aimed at the modification of existing rights. The
parties were essentially
ad idem
that the dispute related to
the entitlement of payment for leave taken by the individual
respondents on 10 August 2012. They agreed
that it could have been
resolved by adjudication in a reference to the Labour Court in terms
of section 77 of the BCEA. The dispute
was quite obviously one
amenable to resolution through a process of adjudication to determine
any enforceable rights or expectations.
The workers were not
demanding rights they did not have; they wanted enforcement of a
right they claimed entitled them to wages
for the day’s leave
they took.
[19] The categorisation
of the dispute as either one of right or interest is strictly
speaking not determinative. That is not the
issue the Labour Court
had to decide in order to reach a conclusion on whether the strike
was prohibited under section 65(1)(c)
of the LRA prior to its
amendment in 2014. The issue the court had to decide was whether the
respondents had the right to refer
the issue in dispute to
arbitration or to the Labour Court in terms of the LRA. The answer to
that question appears to me to be
in the affirmative. In my opinion,
the issue in dispute involves an alleged unfair labour practice which
could and should have
been referred to the CCMA in terms of section
191(1)(a) of the LRA. If and when conciliation failed, the
respondents would at that
point have acquired the right to request
arbitration in terms of section 191(5)(iv) of the LRA.
[20] Section 186(2) of
the LRA defines an unfair labour practice to include
inter alia
any unfair act or omission that arises between an employer and an
employee involving unfair conduct by the employer relating to
the
provision of benefits to an employee. The practice of giving
employees a full day’s paid leave in exchange for overtime
for
a lesser period in the preceding week undoubtedly falls within the
concept of a “benefit”. The arrangement arises
ex
contractu
and bestows an advantage or privilege granted in terms
of a policy or practice followed by the employer in its discretion.
It does
not consist solely of the payment of remuneration in exchange
for labour. It involves a beneficial arrangement beyond the normal

terms of the standard
quid pro quo
. It is a labour practice at
the workplace and allegations about the fairness of the respective
conduct of the parties relating
to it are amenable to resolution by
arbitration.
[21]
In
the premises, the prohibition in section 65(1)(c) of the LRA did
apply both in fact and in law. The issue in dispute was one
which the
respondents had the right to refer to arbitration in terms of section
191(5)(iv) of the LRA and thus the strike was indeed
prohibited and
unprotected with the result that the Labour Court should have
confirmed the rule
nisi
and not discharged it.
[22] The fact of the
issue in dispute involving an alleged unfair labour practice was not
raised in the court
a quo
, but emerged for the first time
during the appeal. Be that as it may, it is the order of the court
not its reasoning that is appealable.
If in fact and law the issue in
dispute could have been referred to arbitration, the appeal against
the refusal to confirm the
rule
nisi
must succeed.
[23] Counsel for the
respondents argued that the appeal has become moot with the passage
of time and will have no practical effect.
That is not correct. There
is a live dispute between the parties about the legal character and
consequences of the strike that
has continued relevance in the
on-going industrial relations in which they are involved. The
appellants legitimately seek judicial
affirmation of their stance in
regard to the appropriate means of resolution of a dispute of this
nature.
[24] The appellants have
not pressed us to award them costs.
[25] In the premises, the
order of the Labour Court of 12 February 2013 is set aside and
substituted with the following:
“
The
rule
nisi
is confirmed and a final order is granted.”
____________________
JR
Murphy AJA
I
agree
________________
Waglay
JP
I
agree
_________________
Sutherland
JA
APPEARANCES:
FOR THE
APPELLANTS:
Mr  Snyman of Snyman Attorneys
FOR
THE RESPONDENTS:          Adv
J Grogan SC
Instructed
by Wesley Pretorius Attorneys
[1]
Act 66 of 1995.
[2]
Act 75 of 1997.