Brief Summary

Labour Law — Strike Action — Unprotected Strike — The applicants sought to interdict strike action by the first respondent's members, arguing that the strike was unprotected due to the binding nature of a collective agreement adopted by the bargaining council. The first respondent contended that the collective agreement was not binding on it as it did not sign the agreement and would only become binding upon ministerial extension. The court held that the collective agreement was not binding on the first respondent as there was insufficient evidence of compliance with the bargaining council's constitutional procedures for adopting the agreement, rendering the strike action lawful and protected.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were an application in the Labour Court on the return day of a rule nisi previously granted on an urgent basis. The interim order had (a) enforced agreed picketing rules, and (b) interdicting ongoing strike action, declaring it unlawful and unprotected, and directing the union to counsel its members accordingly.

The first applicant was Bravo Group Sleep Products (Pty) Ltd, the employer. The second applicant was the Furniture, Bedding & Upholstery Manufacturers’ Association, an employers’ organisation participating in the relevant bargaining structures. The first respondent was CEPPWAWU, a registered trade union acting on behalf of its members (the second respondents, described as individual members). The third respondent was the Furniture Bargaining Council, a registered bargaining council.

Procedurally, the Labour Court had granted interim relief on 9 July 2008. The respondents anticipated the return date and opposed the confirmation of the parts of the rule nisi relating to the strike interdict and the declaration of unlawfulness, while consenting to the parts relating to the enforcement of picketing rules.

The general subject-matter of the dispute concerned the lawfulness (protected status) of strike action in circumstances where a collective agreement had been concluded in the bargaining council between the employer parties and another union, but CEPPWAWU had not signed that agreement and contended that it was not bound until extended by the Minister in terms of the Labour Relations Act.

2. Material Facts

It was common cause that wage and conditions of employment negotiations in the relevant bargaining council did not resolve the dispute, and the bargaining council issued a certificate of non-resolution on 3 June 2008.

On 17 June 2008, the second applicant concluded a collective agreement with NUFAWSA determining wages and conditions of employment in the furniture industry for the period 1 July 2008 to 30 July 2010. CEPPWAWU did not sign that collective agreement.

Following its non-signature, CEPPWAWU issued a notice of intention to strike on 27 June 2008, and the strike commenced on 1 July 2008.

On 8 July 2008, the bargaining council resolved to apply to the Minister of Labour to have the collective agreement extended to non-parties. At that stage, on the figures recorded in the judgment, CEPPWAWU represented approximately 28.4% of party employees at the bargaining council and NUFAWSA represented 71.6%.

The applicants contended that, by virtue of the bargaining council’s constitution and majority voting within the council, the collective agreement (or its adoption by council) bound CEPPWAWU despite its non-signature, with the consequence that continued strike action was prohibited by section 65(3) of the Act. CEPPWAWU disputed this, maintaining that it would only be bound after ministerial extension, and that its strike therefore remained protected.

The court treated as material that the constitution clause relied upon by the applicants (clause 8.9) appeared in the section dealing with meetings of the bargaining council, and that, on the papers, there was no evidence that the formal requirements contemplated by clause 8.9 had been complied with when the collective agreement was said to have been “adopted” by the council (including the mechanism of a motion and voting by show of hands). The constitution’s provisions under the heading dealing with procedures for negotiations of collective agreements were also materially silent on what happens where a majority reaches settlement and another party does not sign.

3. Legal Issues

The central legal question was whether the strike by CEPPWAWU’s members was unlawful and unprotected on the basis that they were bound by a collective agreement regulating the issue in dispute, notwithstanding that CEPPWAWU had not signed it. This required determination of whether a collective agreement concluded in a bargaining council could, in the circumstances, bind a party to the council that was not a party to the collective agreement, either by operation of statute or through the bargaining council constitution and majority decision-making.

A closely related question was whether, if the collective agreement bound CEPPWAWU, section 65(3) of the Labour Relations Act operated to limit the right to strike because the issue in dispute was regulated by a collective agreement binding on the strikers.

The dispute primarily concerned the interpretation and application of legal instruments to largely common-cause facts: the interpretation of the bargaining council constitution and the relevant statutory provisions (particularly the binding effect provisions and strike limitation provisions), and their application to the events surrounding the conclusion of the collective agreement and the ensuing strike. It also engaged an evaluative component insofar as the applicants sought a final interdict, requiring application of established requirements for final interdictory relief.

4. Court’s Reasoning

The court approached the matter on the basis that the practical question of strike legality turned on whether the collective agreement bound CEPPWAWU. The applicants’ argument depended on reading the bargaining council constitution as providing that a majority decision of council could bind a party even where it did not sign the settlement/collective agreement, thereby rendering the strike unprotected by operation of section 65(3).

In considering statutory context, the court referred to authority emphasising that the Labour Relations Act must be interpreted to give effect to its primary objects and in conformity with the Constitution, including the constitutional right to strike under section 23. The judgment cited the caution against cutting down constitutional rights by reading in implicit limitations where none are expressed, and treated this as relevant to the applicants’ contention, because the interpretation advanced would effectively impose a limitation on CEPPWAWU’s right to strike.

Turning to the statutory scheme governing the binding effect of collective agreements concluded in bargaining councils, the court referred to section 31 of the Act, which binds specified categories, including parties to the bargaining council who are also parties to the collective agreement, and members of parties to the collective agreement within the scope of the agreement. On the court’s reading, section 31 did not itself provide a basis for automatically binding a non-signatory union merely because it was a party to the council. The judgment further noted that section 32 provides for extension to non-parties by the Minister, but held that the section 32 process did not arise for decision because extension was still pending before the Minister.

The applicants sought to locate binding force in the bargaining council constitution, especially clause 8.9 (majority vote on motions at meetings). The court construed clause 8.9 as part of the procedures regulating meetings, and found that the constitution under the negotiation procedures heading was silent on the consequence of a settlement where a party union does not sign. On that basis, the court concluded that the constitution made no provision for automatic binding of a collective agreement upon parties that were not signatories.

The court then reasoned that, even if clause 8.9 could be read implicitly to support the applicants’ position, the evidence did not demonstrate compliance with the clause’s procedural requirements. There was no evidence that the chairperson called for a written motion (even though that element was discretionary), and, critically, there was no evidence that adoption occurred through a vote by those present with voting by show of hands as contemplated by the clause. In the court’s view, the absence of such evidence meant that the applicants could not rely on clause 8.9 to show that CEPPWAWU became bound through a majority decision of council.

With the claim to binding effect not established, the court held that there was no textual support to justify the limitation of the right to strike contended for by the applicants, and accordingly the reliance on section 65(3) fell away because CEPPWAWU was not shown to be bound by a collective agreement regulating the issue in dispute.

The court then addressed the standard for final interdictory relief, recording that it is trite that an applicant must show a clear right, an injury committed or reasonably apprehended, and the absence of an adequate alternative remedy. Applying that standard, the court held that the applicants failed to show the requisite right not to face a strike by CEPPWAWU in the circumstances, because the foundational contention that the strike was rendered unprotected by a binding collective agreement was unsustainable on the papers before it.

Finally, the court noted that the matter did not concern the merits of the extension application to the Minister. The judgment indicated that once the Minister promulgated extension to non-parties, the position could be different, but this did not affect the conclusion on the return day.

5. Outcome and Relief

The court confirmed, by consent, the interim relief relating to the enforcement of picketing rules and the directive that the union advise and counsel members to comply with those rules, namely clauses 1.1 and 1.4 of the rule nisi.

The court refused to confirm the remainder of the rule nisi relating to the strike interdict and the declaration that the strike was unlawful and unprotected. It accordingly discharged the rule nisi, and the effect was that the strike-related interdictory relief did not survive as final relief.

On costs, the court held that there was no reason for costs not to follow the result and therefore discharged the rule nisi with costs.

Cases Cited

Chemical Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd [1998] 12 BLLR 1191 (Labour Appeal Court).

Business South Africa v Congress of South African Trade Unions and another (1997) 18 ILJ 474 (Labour Appeal Court).

Ceramic Industries t/a Betta Sanitary Ware v National Construction, Building & Allied Workers' Union (1997) 18 ILJ 671 (Labour Appeal Court).

Carephone (Pty) Ltd v Marcus NO and others (case no JA 52/98, paragraph [8]).

Attorney-General v Moagi 1982 (2) Botswana LR 124.

S v Zuma and others 1995 (2) SA 642 (Constitutional Court).

UMSA and Others v Comark Holdings (Pty) Ltd (1997) 18 ILJ 516 (Labour Court).

Legislation Cited

Labour Relations Act 65 of 1995, sections 1, 3, 31, 32, 64(1), and 65(3).

Constitution of the Republic of South Africa Act 108 of 1996, section 23, and the Bill of Rights (as referenced in the interpretive approach).

Rules of Court Cited

No specific rules of court were cited in the judgment.

Held

The court held that the applicants had not established that the collective agreement concluded between the employer parties and NUFAWSA was binding on CEPPWAWU merely because CEPPWAWU was a party to the bargaining council. The court held that the bargaining council constitution did not provide for automatic binding of non-signatories, and in any event the applicants had not shown compliance with the meeting and voting procedures in clause 8.9 on which they relied.

The court held that, because CEPPWAWU was not shown to be bound by a collective agreement regulating the issue in dispute, the strike could not be interdicted as unprotected under section 65(3) on the basis contended for. The applicants therefore failed to establish the requirements for a final interdict against the strike.

The court confirmed the picketing-rule related portions of the rule nisi (clauses 1.1 and 1.4), discharged the remainder of the rule nisi, and ordered the applicants to pay costs.

LEGAL PRINCIPLES

The Labour Relations Act must be interpreted to give effect to its primary objects and in conformity with the Constitution, including the constitutional protection of the right to strike, and courts should exercise caution against reading implicit limitations into constitutional rights where none are expressed.

A strike is limited by section 65(3) only where the person is bound by an arbitration award or a collective agreement regulating the issue in dispute; the existence of a collective agreement does not, without a proper basis for binding effect, automatically render a strike unprotected.

In terms of section 31 of the Labour Relations Act, a collective agreement concluded in a bargaining council binds those categories stipulated by the section, including parties to the bargaining council who are also parties to the collective agreement; the extension mechanism in section 32 concerns ministerial extension to non-parties and was treated as pending and not determinative in this case.

Where reliance is placed on a bargaining council constitution to establish binding effect through majority decision-making, compliance with the constitution’s procedural requirements for decision-making (including the mechanism for motions and voting requirements where applicable) is material to whether such reliance can succeed.

Final interdictory relief requires proof of a clear right, injury committed or reasonably apprehended, and the absence of an adequate alternative remedy; failure to establish the underlying clear right is fatal to final interdict relief.

Bravo Group Sleep Products (Pty) Ltd and Another v CEPPWAWU and Others (J1398/08) [2008] ZALCJHB 89 (12 September 2008)