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[2016] ZALAC 87
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Mawethu Civils v NUM and Others (PA2/14) [2016] ZALAC 87 (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.