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[2009] ZALCJHB 97
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NASECGWU and Others v Donco Investments (Pty) Ltd (J1149/09) [2009] ZALCJHB 97 (20 November 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN BRAAMFONTEIN)
CASE
NO: J1149/09
In
the matter between:
NASECGWU
1
ST
APPLICANT
S
SELEKE
AND 16
OTHERS
2
ND
TO 17
TH
APPLICANTS
And
DONCO
INVESTMENTS (PTY)
LTD
RESPONDENT
JUDGMENT
AC
BASSON, J
[1]
The issue before the Court is crisp. Is the lock-out currently in
place unlawful as a result of non-compliance with section
64(1)(c) of
the Labour Relations Act 66 of 1995 (hereinafter referred to as “the
LRA”)? The Applicants are seeking
an order declaring the
lock-out of the 2
nd
to 17
th
Applicants
(hereinafter collectively referred to as “the Applicants”)
an unlawful lock-out and an order interdicting
the Respondent from
continuing with the lock-out. The Applicants are also seeking an
order that the Applicants be paid equitable
compensation in an amount
equal to the remuneration that they would have received was it not
for the lock-out.
[2]
The 2
nd
to 17
th
Applicants (hereinafter
referred to as “the Applicants”) are employed by the
Respondent at its KFC Business, Wolmaransstad.
It is common cause
that the Applicants embarked on a protected strike on 30 March 2009
after a dispute regarding the unilateral
change of conditions of
employment by the Respondent by taking away their meal benefit was
unsuccessfully referred to conciliation.
It is clear from a letter
dated 30 March 2009 that the Respondent did not consider
reintroducing staff meals in order to solve
the dispute.
[3]
It is further common cause that the Applicants decided to end the
strike and to report for duty on 15 April 2009 in response
whereto
the Respondent locked the Applicants out. It appears from the papers
that the First Applicant (hereinafter referred to
as “the
union”) informed the Respondent on 14 April 2009 that the
Applicants decided to end the strike and to resume
their duties at
the Respondent on 15 April 2009. Upon their arrival, the Respondent
advised the Applicants that they should return
on 16 April 2009 as
there was no roster prepared.
Lock-out
[4]
On 16 April 2009, when the Applicants reported for work, they were
prohibited from resuming their duties and were advised that
they were
locked-out. On 16 April at 16H44 the union received a “notice
of lock-out” in terms of which the union was
informed that the
Applicants were locked out as from 07H00 16 April 2009. Although this
letter is dated 15 April 2009 it appears
that the union only received
it on the 16
th
of April 2009. Effectively therefore the
union was advised (on 16 April 2009) that their members have been
locked-out as from 7H00
that morning.
[5]
It further appears from the notice that the Respondent was of the
view that it was not required to give 48 hours’ advanced
notice
of the lock-out and that it would be sufficient to tender two days’
payment to the Applicants in lieu of the notice
period required in
terms of section 64(1)(c) of the LRA. The union advised the
Respondent that the lock-out did not comply with
section 64(1)(c) of
the LRA. The Respondent responded by reiterating that the lock-out is
not unlawful and that the Applicants
“will remain locked out
until the dispute between the parties had been resolved”. The
salient part of the Respondent’s
lock-out notice reads as
follows:
“
We refer to
your letter dated 11 April 2009 as received by the company on 14
April 2009 in which you have indicated that the matter
in case nr
NW5615-08 remains unresolved.
Notice is hereby
given that your members will be locked out as from 07H00 on 16 April
2009
in light of the fact that the dispute between the
parties has not been resolved. Once all of your members have accepted
the change
to the terms and conditions regarding a staff meal, which
is the subject of this dispute, your members may resume their normal
duties.
Your members will
not be required to tender their services during the notice period of
the lockout. However, your members will be
remunerated for the period
of two days in lieu of the notice as required in terms of
section
64(1)(c)
of the
Labour Relations Act 66 of 1995
as amended.
Please
take further notice that your members will not be allowed on the
company premises for the duration of the lockout.”
[1]
[6]
It is also common cause that the Applicants have proposed a staff
meal allowance and that it was rejected. According to the
Respondent
it refused to accept this proposal as the payment in lieu of a meal
was excessive.
Issue
to be decided
[7]
Is the lock-out lawful? In terms of
section 64(1)
of the
Labour
Relations Act 66 of 1995
every employee has the right to strike and
every employer the right to recourse to a lock-out. This section
reads as follows:
“
(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
the 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 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 not
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...”
[8]
Conradie J
in
Metal
& Electrical Workers Union of SA v National Panasonic Co
(1991) 12 ILJ 533 (C) aptly refers to the power struggle between
employers and employees in the workplace as a boxing match.
[2]
Once parties resort to industrial action they are given boxing gloves
to engage in a boxing match with the aim of inflicting as
much pain
on the other as possible. The sole aim of this contest is to bring
the other party to submission by exerting as much
economic power on
the other as possible. Conradie J also correctly points out that
there are rules to be observed and that this
Court, who acts as a
referee in labour disputes, will as a rule not intervene and will
only do so in limited circumstances. The
precondition for entering
the boxing arena is compliance with the procedural requirements as
set out in section 64(1) of the LRA.
Where one of the parties has not
complied with the procedural requirements their action will be
unlawful and this Court as referee
will intervene. This is exactly
what the Applicants in this case are asking the Court to do. The
Applicant are arguing that the
lock-out is illegal as the lock-out
notice issued to them did not comply with section 64(1)(c) of the
LRA.
[9]
It appears
from a reading of section 64(1)(c) of the LRA that the legal or
procedural requirements for a legal lock-out and a strike
are
virtually identical. Firstly, the dispute must be referred to
conciliation. Secondly, once conciliation has failed and the
certificate of non-resolution has been issued (or after the lapse of
the 30-day period), the employer must give the trade union
concerned
(or the individual employees if there is not a trade union) 48 hours’
notice of the intention to institute a lock-out.
These procedures
need not be followed where the lock-out is in response to an
unprotected strike. A distinction is sometimes drawn
between an
offensive and a defensive lock-out. Although the Court in
Technikon
SA v National Union of Tecknikon Employees of SA
(2001) 22 ILJ 427 (LAC) cautions against the use of this terminology,
it is clear from this judgment that a lock-out may only be
instituted
with notice as contemplated by section 64(1)(c) of the LRA
irrespective of the label such a lock-out is given.
[3]
What
are the requirements for the notice?
[10]
Before turning to the specific requirements of a strike or lock-out
notice, it must be stressed that the requirement of giving
prior
notice of a strike or a lock-out is not merely a perfunctory
procedural step that an employer or a union should merely
mechanically
comply with in order to acquire the license to lock-out
or to embark on a strike. It is patently clear from a long line of
cases
(and recently again confirmed by the Labour Appeal Court) that
the strike notice has a very specific purpose and that it is in light
of that purpose that every strike and lock-out notice must be
considered. This is in line with the approach followed by this (and
other Courts) in terms of which the effect, ambit and content of a
legislative provision should be understood and interpreted bearing
in
mind the constitutional as well as the statutory context of such a
provision. I do not intend for purposes of this brief judgment
to
give a detailed exposition of the constitutional and statutory
framework against which provisions of the LRA should be interpreted.
Suffice to point out that in interpreting a provision of the LRA,
this Court should be mindful of the primary objects of the LRA
as set
out in section 1. This section states that the purpose of the LRA is
“to advance economic development, social justice,
labour peace
and democratisation of the workplace”. This the LRA seeks to
achieve by fulfilling the primary objects of the
LRA which are the
following:
“
(a)
to give effect to and regulate the fundamental rights conferred by
section 27 of the Constitution;
(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 sectoral level;
(iii)
employee participation in decision-making in the workplace; and
(iv)
the effective resolution of labour disputes.”
[11]
It is further clear from section 3 of the LRA that this Court, in
interpreting any provision of the LRA, must give effect to
the
primary objects of the LRA. Two of the objects listed here are of
particular importance to this matter. The first is that the
LRA seeks
to promote collective bargaining and the second is that the LRA seeks
to promote the effective resolution of labour disputes.
It is against
this background that the lock-out notice in the present case will be
considered in order to decide whether or not
it complied with the
provisions of section 64(1)(c) of the LRA. Before turning to this
point, it is necessary to refer to two passages
from
Equity
Aviation Services (Pty) Ltd v SA Transport & Allied Workers Union
& Others
(2009) 30
ILJ
1997 (LAC) which, in my view,
succinctly summarises the approach that this Court must follow in
interpreting a section of the LRA.
The first is by Khampepe ADJP in
the
Equity Aviation
-judgment (supra) where she sets out the
framework against which sections of the LRA should be interpreted as
follows:
“
[154] The
primary objects of the Act are: to give effect to and regulate
fundamental rights; to give effect to International
Labour
Organization obligations; to provide a framework for and to promote
orderly collective bargaining; to promote employee participation
in
decision making at the workplace and to promote the effective
resolution of labour disputes. The overriding purpose of the Act
is
to advance economic development, social justice, labour peace and the
democratization of the workplace. It is trite that the
right to
strike is an extension of the bargaining process.
[155]
Section 3 of the Act contains a further interpretive injunction. It
provides that the Act must be interpreted
to give effect to its
primary objects (National Union of Metalworkers of SA & others v
Bader Bop (Pty) Ltd & another
[2002] ZACC 30
;
2003 (3) SA 513
(CC); (2003) 24 ILJ
305 (CC)).
There
is a wealth of judicial authority in which the purpose of s 64(1)'s
procedural requirements has been succinctly and authoritatively
decided. These decisions clearly demonstrate that the procedural
purpose of this section is to compel the parties to attempt
to
resolve the dispute through negotiations before resorting to
industrial action
[4]
………
.
The academic writers, Helen Seady and Clive Thompson in '
Labour
Relations Act 66 of 1995
: Strikes and Lock-Outs' (Part AA of Thompson
& Benjamin SA Labour Law vol 1) are also of the view that:
'Conciliation is not
intended as just another perfunctory step on the way to winning the
licence for action. It is the process sponsored
by the Act to promote
the adjustment of competing interests and industrial peace.”
[12]
The second is by Davis JA where he states the following with
reference to the interpretative approach followed by Zondo JP
in the
minority judgment in the
Equity Aviation
- judgment:
“
[184]
Zondo JP contends that in order to interpret the Act one must -
'always give [effect
to] the primary objects of the LRA [and to always give an
interpretation] that will also be in compliance with
the Constitution
and with the public international law obligations of the
Republic.... Accordingly, before you settle on
a particular
interpretation of any provision of the LRA,.. [it] requires you to
stand back and ask yourself the questions: Does
this interpretation
give affect to any one or more of the primary objects of the LRA? Is
this interpretation in compliance with
the Constitution? Is this
interpretation in compliance with the public international law
obligations of the Republic?' (See para
40.)
In my view, this
approach needs some refinement. Interpretation must always begin with
the words employed in the statute. Indeed
the very purpose of the
traditional rules of statutory interpretation was to attempt to
control the context of the words
which were so employed by the
legislature. The golden rule of interpretation, for example,
attempted to restrict meaning to the
'ordinary meaning' of the words
employed in the provision and authorized a departure under very
strict circumstances. Further,
this aim was pursued by restricting
the sources of meaning, that is to restrict the range of
resources which the interpreter
could access so as to gain meaning to
the context of the words so employed; that is, the long title, the
preamble and the headings
were regarded as permissible aids to
construction but then only in the case of ambiguity. In this way,
courts attempted to attain
closure of the text by producing a result
which reflected only one statutory message.
[185] With
the advent of constitutional democracy, the responsibility of the
statutory interpreter became more complex.
A broader contextual
approach was mandated. Context had to include core constitutional
values, the historical background of the
statute, its purpose
mediated through the aims of the Constitution as well as the relevant
social, political and economic
context and, where necessary,
international law. But this approach does not mean that the words of
the statute can be ignored.
The judicial interpreter commences with
the text and then seeks to engage in a dialogue with various
contextual pointers, both
pro and anti, the initial conclusion at
which she arrives.”
[13]
It is in
light of this interpretative context that the strike and lock-out
notice must be examined. I have already pointed out that
the issuing
of a strike and lock-out notice in which 48 hours’ notice must
be given to the other party is not merely a procedural
step that must
be mechanically adhered to. The Courts have, on various occasions
interpreted what should be contained in the notice
and what the
purpose of the notice is. It is accepted that the purpose of such a
strike notice “
is
to warn the employer of collective action, in the form of a strike,
and when it is going to happen, so that the employer may
deal with
that situation'
.
(
Ceramic
Industries Ltd t/a Betta Sanitary Ware v National Construction
Building & Allied Workers Union (2
)(1997)
18 ILJ 671 (LAC) at 676D-E).
[5]
See also
Equity
Aviation Services (Pty) Ltd v SA Transport & Allied Workers Union
& Others
(2009) 30
ILJ
1997 (LAC) where the LAC gave a brief exposition of the historical
background to the statutory requirement for a strike and lock-out
notice. I do not intend to refer in detail to the court’s
exposition of this history. Suffice to point out that the LAC in
this
judgment again confirmed the purpose of a strike notice and that is
that it gives an employer an opportunity to reflect on
whether or not
to accede to the demand and if it decides not to do so to prepare for
the strike. See in this regard
Equity
Aviation
-supra
at paragraph [104]:
“
[104] In
the light of all the above it seems to me that the legal position is
that the content of a strike notice is of critical
importance in the
determination of which employees or categories
[6]
of
employees acquire the right to commence a strike on the day given in
a strike notice. The content of a strike notice is of critical
importance for conveying to the employer concerned the information
that s 64(1)(b) requires to be contained in a strike notice.
The
employer depends largely on the content of that notice for important
decisions to make in relation to the proposed strike such
as the
decision whether he is going to accede to the union's demands or
whether he will make a final offer of settlement
of the dispute
before the commencement of the strike so as to avoid the strike or
whether he will make certain plans including
arrangements to employ
temporary replacement workers for the duration of the strike and, if
so, how many and in which workplaces,
in order to minimize the impact
of the strike on his business.”
[14]
The same principle also applies to the lock-out notice. Essentially
it affords the union and employees an opportunity to reflect
on the
dispute and the option of acceding to the demands of the employer or
to propose a counter offer. It also affords the strikers
an
opportunity to reflect on whether or not they, in the face of an
impeding lock-out, wish to accept the risks associated with
no-work-no-pay. In short, the mandatory notice period offers the
union an opportunity to reflect on their preferred course of action
in the boxing match. I will return to this point hereinbelow.
[15]
In some decisions the Courts have decided that the strike notice must
be fairly specific and must, for example, indicate the
time of the
commencement of the strike (see
Ceramic Industries Ltd t/a Betta
Sanitary ware & Another v NCBAWU & Others
[1997] 6 BLLR
697
(LAC) at 702 and
Fidelity Guards Holdings (Pty) Ltd v PTWU &
Others
[1997] 9 BLLR 1125
(LAC) at 1133 – 1134 (obiter);
County Fair Foods v Hotel Liquor Catering Commercial & Allied
Workers Union & Others
[2006] 5 BLLR 478
at paragraph [44]).
Although the strike notice must indicate when the strike is to
commence, the employees are not obliged to commence
with their strike
at the time indicated in the notice (see
Tiger Wheels Babelegi
(Pty) Ltd t/a TSW International v NUMSA & Others
[2007] ZALC 43
;
[1999] 1
BLLR 66
(LC) at par 34 – 42). Where the strikers suspend their
strike, (after the initial proper strike notice), the strikers may
again commence with the strike at a later stage (see
Transportation
Motor Spares v NUMSA & Others
[1999] 1 BLLR 78
(LC). In
circumstances where strikers have given insufficient time to the
employer in the first notice and then issue another,
the time given
in the two notices is taken cumulatively. See
SA Clothing &
Textile Workers Union v Stuttafords Department Stores Ltd
(1999)
20
ILJ
2692 (LC) and
Transportation Motor Spares v NUMSA
(1999) 20 ILJ 690 (LC). In both of these cases with reference to
section 64(1)(c) of the Act which requires an employer to provide
at
least 48 hours’ notice in writing of its intention to embark on
a lock-out before having recourse to a lock-out, the Courts
concluded
that where there are two notices, the cumulative effect of the two
notices must be taken into account. In both of these
cases the Court
accepted that ultimately the employer had given more than 48 hours'
notice of the commencement of the lock-out
and therefore the union
and or employees had sufficient time to reflect on their position.
[16]
What, however, stands out from all of these cases is the fact that it
is the purpose of the strike or lock-out notice to give
the employer
or the union and employees an opportunity to reflect on the proposed
action and their response thereto. The reason
for allowing the
parties this opportunity is obvious: Once a lock-out is instituted,
the employer does not have to remunerate the
locked-out employees.
Likewise, once the employees embark on strike action because the
employer does not wish to accede to their
demands, the principle of
no-work-no-pay will apply. The economical consequences of any
decision taken during the 48 hour notice
period are therefore
important to both parties. The possibility of settling the dispute
either by making a counter proposal which
may eventually settle the
dispute or acceding to a demand in order to avert the strike or even
abandoning the strike or lock-out,
is of equal importance. It
is therefore, in my view, clear that the legislature had intended to
afford parties an opportunity
to reflect on the consequences of the
lock-out or strike notice. Section 64(1)(c) read in its proper
context and read against at
least two of the primary objects of the
LRA which is to promote collective bargaining and to promote the
effective resolution of
labour disputes, must be interpreted to mean
that the 48 hours notice serves as an opportunity to parties to
reflect on the consequences
of the strike or lock-out notice. Any
other reading of this section will, in my view, undermine the primary
objects of the LRA
as set out in section 1 of the LRA.
[17]
From the aforegoing it should thus be clear that the strike and
lock-out notice, properly viewed in the legislative and
constitutional
framework within which it operates, can never be
viewed as a mechanical step. Applied to the present set of facts I am
of the view
that it could therefore never have been the intention of
the legislature to allow employers simply to pay employees two days’
salary in lieu of the 48 hours’ notice required for a lock-out
notice in terms of section 64(1)(c) of the LRA.
[18]
In light of the aforegoing I am of the view that the lock-out notice
did not comply with the provisions of section 64(1)(c)
of the LRA.
The lock-out is therefore unlawful. There is therefore no reason why
the Respondent should not be interdicted from
continuing with the
lock-out and pay the 2
nd
to 17
th
Applicants
their remuneration that they would have received was it not for the
unlawful lock-out. I can also see no reason why
costs should not
follow the result.
[19]
In the event the following order is made:
1.
The lock-out instituted by the Respondent on 16 April 2009
constitutes an unlawful lock-out.
2.
The Respondent is interdicted from continuing with the lock-out.
3.
The Respondent is ordered to pay the 2
nd
to 17
th
Applicants their remuneration that they would have received was it
not for the lock-out.
4.
The Respondent is ordered to pay the costs.
AC
BASSON, J
20
November 2009
Date
of proceedings:
6 November 2009
Date
of judgment:
20 November 2009
For
the Applicants:
GF Kristen of Kirsten & Van Niekerk
Attorneys.
For
the Respondents:
MA Verster of CEASAR Employers
Organisation
[1]
My emphasis.
[2]
At 536: “
A
strike or lock-out is like a boxing match. Each opponent tries,
within the rules, to hurt the other as much as possible. There
is a
referee to see that the rules are observed. The court is the
referee. It does not intervene simply because one of the opponents
is being hurt - that is the idea of the contest. The referee may
intervene if one of them is struck a blow below the belt, but
he
would be astounded while the bout is in progress to receive a
complaint that something had gone wrong with the weigh-in.
Parties
to an industrial contest take time and trouble to shape up for the
fight. There are all kinds of things which they are
expected to do
before they are permitted to enter the ring. Some of these things
may be done carelessly or maybe not at all;
but if the opponent has
not taken the point before he has entered the ring, I do not think
that he should lightly be permitted
to do so once the blows have
started landing”.
[3]
See
Technikon
SA v National Union of Tecknikon Employees of SA
(2001) 22 ILJ 427 (LAC) where the Court stated the following: “
[30]
In my judgment there is nothing confusing or ambiguous in the
lock-out notice. Such confusion and ambiguity as there might
be are
not based on the notice but on the respondent's erroneous
understanding of the legal position. To say the lock-out notice
in
terms of s 64(1)(c) is only applicable to an offensive lock-out is
erroneous. Section 64(1) confers on an employer the recourse
to a
lock-out if certain requirements are met. It also confers on
employees the right to strike if certain requirements are met.
It
makes no reference to an offensive lock-out nor does it make a
reference to a defensive lock-out. The only situation in respect
of
which the Act contemplates that a lock-out may be instituted without
the notice required by s 64(1)(c) is where s 64(3)(d)
applies. In
all other situations a notice in terms of s 64(1)(c) must be
given before a lock-out can be instituted irrespective
of the label
such a lock-out is given.”
[4]
My emphasis.
[5]
In Transportation Motor Spares v NUMSA & others
(1999) 20 ILJ 690 (LC); para [32] of the judgment which states:
“
Also,
on the same assumption as referred to in the preceding paragraph,
insofar as a s 64(1)(b) notice is meant to give
the employer
an opportunity to make whatever arrangements (including hiring
replacement labour for the duration of the strike),
such purpose
would have been served by the single notice given prior to the
commencement of the strike. I say this because, if
the applicant
wanted to make other arrangements for its business in the light of
the proposed strike, it would have been able
to make those
arrangements between the time of the s 64(1)(b) notice and the
day when the strike commenced.”
[6]
In respect
of whether or not the strike notice must inform the employer who
will take part in the strike the court was split.
Zondo JP was of
the view that the strike notice must inform the employer for example
that only members of the union will commence
striking or those only
employees of a particular branch or city or province will embark on
strike notice (see in particular paragraph
[105] of the judgment.
Khampepe ADJP and Davis JA are of the view that an employer is not
entitled to the identifies of the parties
to the dispute (see
paragraph [161]0.