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[2011] ZALCJHB 13
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National Entitled Workers Union v Leonard Dingler (Pty) Ltd and Another (J145/2011) [2011] ZALCJHB 13; [2011] 7 BLLR 706 (LC); (2011) 32 ILJ 1968 (LC) (1 March 2011)
IN THE LABOUR
COURT OF SOUTH AFRICA
(HELD AT
JOHANNESBURG)
CASE
NO J145/2011
National
entitled workers union
Applicant
and
LEONARD
DINGLER (PTY) LTD
1
st
Respondent
MINISTER
OF LABOUR
2
nd
Respondent
JUDGMENT
__________________________________________________________________________
LAGRANGE, J
Introduction
Judgment in this
matter was handed down earlier today and my brief reasons for the
decision are set out below.
Background
The applicant in
this matter is the National Entitled Workers Union (‘NEWU’),
which is currently deregistered,
pending
an appeal to the Labour Appeal Court against a decision of the
labour court to dismiss its appeal against the decision
of the
registrar of labour relations to deregister it. On 30 November 2010,
following the decision of the labour court to dismiss
the union's
appeal against the registrar's decision
1
,
the first respondent ('the company') cancelled all collective
agreements between itself and the union. The second respondent
was
joined in the matter because of the alternative relief initially
sought which entailed a possible constitutional challenge
to a
number of provisions in the Labour Relations Act, 66 of 1995 (‘the
LRA’).
Analysis
The reasons relied
upon by the company at that stage were twofold. Firstly, the
respondent relied on the provisions of section
106 (3) of the LRA,
which reads "
When a trade unions or employers organisations
registration is cancelled, all the rights it enjoyed as a result of
being registered
will end
." Secondly, in terms of the
collective agreement between the company and the union the union had
to be registered.
The union attempted
to persuade the company that pending the outcome of its application
for leave to appeal, the effect of the
labour court's judgement was
stayed and accordingly the union should be treated as registered for
the time being. The company
was of the view that unless the union
obtained a special order to stay the effect of the labour court's
decision to dismiss the
appeal against the NEWU’s
deregistration, the registered status of the union did not revive,
even if leave to appeal against
that decision was granted. In a
further letter of 10 December 2010, the company also advised that on
the basis of the reasons
given for the registrar's decision, which
the labour court upheld, the company was unwilling in any event to
be party to a collective
agreement between itself and the union,
given the gravity of the findings which were made against NEWU.
According to clause
4 (1) of the Consolidated Collective Agreement between the union and
the company dated 22 September 2003,
collective bargaining in
respect of wages and other terms and conditions of employment would
take place annually during the month
of May, though it was suggested
that this was to have changed this year to February, which made the
matter urgent.
In the notice of
motion, the union sought a wide range of relief against the company
aimed at declaring the decision of the company
to cancel the
collective agreements, and the organisational rights contained in
it, unlawful. However, at the hearing of the
matter on 24 February
2011, the union expressly abandoned all its other prayers for urgent
relief, including alternative prayers
declaring certain provisions
of the LRA inconsistent with the Constitution, and sought only to
obtain a declaratory order in
the following terms:
"
Declaring
that, regardless of whether or not NEWU is an unregistered,
registered or deregistered trade union:... (2) NEWU has the
right to
engage in collective bargaining with the first respondent.
"
The first
respondent’s representative, Ms Savage, argued that this was a
right which NEWU ‘already had’. On
the face of it, this
proposition appears paradoxical: the company is refusing to engage
in collective bargaining with the union,
but asserts in the same
breath that the union still has a right to engage in collective
bargaining.
The paradox is
resolved if one has regard to the true nature of the right to engage
in collective bargaining. The right is derived
from section 23(5) of
the Constitution
2
,
which states:
“
(5)
Every trade union, employers' organisation and employer has the right
to engage in collective bargaining. National legislation
may be
enacted to regulate collective bargaining. To the extent that the
legislation may limit a right in this Chapter, the limitation
must
comply with s 36(1).
”
The limited relief
now sought by the union, in effect relies on the direct enforcement
of its constitutional right to engage in
collective bargaining in
terms of this provision of the Bill of Rights. In the Constitutional
Court case dealing with whether
or not a military trade union,
SANDU, was entitled to compel the Defence Force to engage with it in
collective bargaining in
a Military Bargaining Council the court had
the following to say about the direct enforceability of
Constitutional Rights, after
analysing the issue:
“
[52]
Accordingly, a litigant who seeks to assert his or her right to
engage in collective bargaining under s 23(5) should in the
first
place base his or her case on any legislation enacted to regulate the
right, not on s 23(5). If the legislation is wanting
in its
protection of the s 23(5) right in the litigant's view, then that
legislation should be challenged constitutionally.
”
3
No doubt informed
by this judgment, Mr Maluleke, who appeared for NEWU, had correctly
sought to challenge a number of provisions
of the LRA as alternative
relief and had duly cited the Minister of Labour as the second
respondent in the matter. Nonetheless,
as the matter now stands,
NEWU is relying solely on a constitutional right to engage in
collective bargaining. Leaving aside
the union’s procedural
problem of abandoning a challenge to the LRA, the question can still
be asked whether the constitutional
right it seeks to assert could
conceivably lay the foundation for the urgent relief sought. If not,
then the application stands
to fail, even if the union could
overcome the procedural obstacle of not pursuing its alternative
claim about the unconstitutional
status of the provisions of the
LRA.
Because the
Constitutional Court found that SANDU’s assertion of its
rights to collective bargaining did not entail a constitutional
challenge but relied on the enforcement of the regulations governing
bargaining in SANDF, the court found it unnecessary to interpret
the
ambit of the right to engage in collective bargaining set out in
section 23(5) of the Constitution and declined to endorse
any of the
dicta of the High Courts or Supreme Court of Appeal in the trilogy
of cases which had previously addressed the issue.
4
The highest court
to have considered the issue is the Supreme Court of Appeal in a
consolidated appeal against the three decisions
of the Pretoria High
Court.
5
In that case,
Conradie, JA,
held
that:
“
[5]
The expression ‘right to engage in collective bargaining’
in ss(5) is open to more than one interpretation. It may
mean that
the contemplated national legislation to regulate collective
bargaining must provide for an employer or a union called
upon to
bargain to comply with the demand on pain of being ordered to do so.
On the other hand it may mean that the envisaged national
legislation
must provide the framework within which employers, employers’
organisations and employees may bargain; or it
may mean no more than
that no legislative or other governmental act my effectively prohibit
collective bargaining.
”
After a careful
analysis of the genesis of the section 23(5) and the meaning
attached to collective bargaining by the Constitutional
Court in the
first
Certification
judgment,
the learned judge held that the legislature had not intended a major
departure from the previous provision protecting
labour rights in
the interim Constitution of 1994
6
,
namely section 27 which contained,
amongst
other provisions,
sub-sections
27(3) and (4). These provisions read: “(3)
Workers
and employers shall have the right to organise and bargain
collectively.(4) Workers shall have the right to strike for
the
purpose of collective bargaining.
”
7
In interpreting
these earlier constitutional provisions, Conradie, JA,
said the following:
“
[15]
Subsection (4) tied the right to strike directly to ‘collective
bargaining’. This right was given to workers as
a means of
enforcing the right to ‘bargain collectively’ in ss (3).
In addition, of course, workers had the right,
by striking, to secure
an outcome to any demand whether or not the parties had
(inconclusively) bargained about it.
Any disagreement
about collective bargaining was considered as a dispute of interest:
that is why workers were permitted to strike
about it. Like every
other ‘interest’ in the labour-relations field (as
opposed to a justiciable dispute of right),
collective bargaining had
to be secured by negotiation prompted by the threat of collective
action. In the classic dispute of interest
case, the parties have no
right to enforce; they attempt to establish a right, in the final
resort by coercive economic action.
Allowing workers to
strike ‘for the purpose of collective bargaining’ firmly
puts collective bargaining in the category
of interest disputes,
excluding any right to judicially obliged collective bargaining
.
”
(emphasis added)
Considering that
the court found no material change of meaning had been effected by
the change of wording from the right to collective
bargaining to the
right ‘to engage’ in collective bargaining, the position
remains that the right to engage in collective
bargaining does not
entail a right to compel an employer to bargain, on the reasoning of
that decision. What this means for present
purposes is that an order
confirming the existence of NEWU’s right would have no
practical consequences in the circumstances
of this matter. It also
means that an order of the court could not prevent the harm which
NEWU anticipates will befall the union
if negotiations do not take
place, and accordingly it cannot be said the union runs the risk of
irreparable harm if the order
is not granted.
The order sought by
NEWU does not say in so many words that it seeks an order which is
enforceable against the company, though
clearly that was the thrust
of the primary relief which it abandoned. The question then arises,
should the court not simply confirm
that the union does indeed have
a right to engage in collective bargaining even if no practical
consequences flow from such a
declaration of rights? The absence of
any consequential relief which would flow from such an order means
that the question the
court is asked to answer is essentially
academic. The situation might be very different in circumstances
where, for example,
the state sought to outlaw collective bargaining
by legislation or executive action. In such a case, an order
affirming the union’s
right to engage in collective bargaining
would necessitate consequential relief striking down the offending
statutory provision
or decision.
However, in the
case before me no consequential relief would flow from an order
affirming NEWU’s right to engage in collective
bargaining in
the voluntarist sense identified in the SCA’s decision. If the
company refuses to deal with it, it is free
provided it complies
with the pre-requisites for protected strike action, to seek to
compel the company to accept it as a collective
bargaining partner.
The mere fact that a party has a right does not necessarily entitle
it to relief in the form of a confirmatory
order to that effect. The
Labour Appeal Court has upheld the general principles that underlie
the court’s reluctance to
grant declaratory orders which have
no practical consequences. In the LAC’s decision in the
Solidarity
case,
Jappie AJA, writing for the court, cited the following authorities
with approval
8
:
“
[16]
Section 158(1)(a) (iv) of the Act grants the Labour Court the power
to issue a declaratory order. The principles which are
applicable to
the granting of declaratory orders were dealt with in Mohamed v
Mohamed & others
1976 (3) SA 151
(T). At 154F Marais J stated the
position as follows:
'The position now
is that the Courts would entertain (not necessarily grant) an
application for a declaratory order if neither an
infringement nor a
concrete dispute exists, the only condition precedent being that the
declaratory order, if granted, would bind
one or more interested
parties as well as the applicant, who must be a party ''interested'
in a decision on a contingent right
or obligation.'
At 156A, he made
the point that:
'The matter
before us is clearly of academic interest only and therefore not
capable of a proper declaratory order in terms of the
section.'
In Rutherford v
Furguson & others
[2000] 1 All SA 113
(O) at 119F the following
was said:
'Prior to 1963 an
existing and concrete dispute between persons was required but this
requirement was modified in Ex Parte Nell
(supra ). This modification
has not eroded the rule that a party is not entitled to approach the
court for what amounts to a legal
opinion upon an abstract or
academic matter. The court will not make a declaration of rights
unless there are interested parties
upon whom the declaration would
be binding.'
”
The court is
confronted with similar considerations in this matter, and
accordingly, must decline to make a declaratory order
as requested.
Costs
I believe the
application was brought
bona fide
and the respondents were
given ample time to respond, given the time limits for filing
replies stipulated in the notice of motion.
The matter also concerns
an important issue. In the circumstances, I do not think costs
should follow the result, but parties
should pay their own costs.
Order
The application for
urgent relief declaring that, regardless of whether or not the
applicant is an unregistered, registered or
deregistered trade
union, it has the right to engage in collective bargaining with the
first respondent is dismissed.
No costs order is
made.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing : 24 February 2011
Date
of judgment: 01 March 2011
Appearances:
For
the applicant: Mr G Maluleke
For
the first respondent: Ms K Savage of Bowman Gilfillan Attorneys
For
the second respondent: Mr W Mokhare, SC instructed by the state
attorney.
1
National
Entitled Workers Union v The Ministry of Labour and 4 others
(J 2180/06 dated 25/11/2010)
2
The
Constitution of the Republic of South Africa, Act 108 of 1996
3
South
African National Defence Union v Minister of Defence and Others
2007(5) SA 400 (CC)
at 420
4
At
421, [56]
5
South
African National Defence Union v Minister of Defence and others;
Minister of Defence and others v South African National
Defence
Union and others
2007 (1) SA 402
(SCA)
[zRPz]
2
6
At
413,[16] of the SCA decision
7
Constitution
of the Republic of South Africa, 1993
8
Minister
for Public Service & Administration v Solidarity & Others
(2007) 28
ILJ
1747 (LAC)
at 1752