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[2012] ZALCJHB 107
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Transnet SOC Ltd v SATAWU (J 2697/12) [2012] ZALCJHB 107; (2013) 34 ILJ 1281 (LC) (12 October 2012)
Reportable
Of
interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Case
no: J 2697/12
In the matter between:
TRANSNET SOC LTD
Applicant
and
SATAWU
Respondent
Heard
:
11 October 2012
Delivered
:
12 October 2012
Summary:
Secondary strike – urgent interdict –
application of s 66(2)(c) of LRA.
JUDGMENT
STEENKAMP J
Introduction
The applicant seeks a rule
nisi
interdicting an imminent
nationwide secondary strike by members of the respondent, the South
African Transport and Allied Workers
Union (SATAWU). SATAWU members
have been engaged in a nationwide primary strike in the road freight
industry for the past two
weeks. The secondary strike would involve
some 42 000 workers. The applicant maintains that it does not
conform with the
provisions of section 66(2)(c) of the Labour
Relations Act.
1
Background facts
SATAWU (and three other trade unions) embarked on a nationwide
protected strike in the road freight industry on 25 September
2012,
some 2 ½ weeks ago. The strike has been marred by numerous
incidents of violence. Two days ago, a non-striking truck
driver
lost his life after a brick had been thrown at his truck and hit him
on the head. On 28 September 2012, this court granted
a rule
nisi
in the following terms:
Declaring that the violent conduct of the respondent’s
members in support of the strike action is unlawful;
Ordering the respondents:
to issue public statements to the media, calling on members to
desist from any unlawful criminal conduct;
to issue public statements to the media, recording their
opposition to any violence, intimidation or damage to property in
support of strike action.
Interdicting the respondents and their members:
from obstructing public roads or interfering with the safe flow of
traffic on any public road;
from obstructing entrances or exits to any workplace, or
interfering with the flow of traffic to and from such premises,
unless authorised by picketing rules;
from causing damage to any property including any vehicles;
from committing any act of intimidation, violence, including the
carrying of any weapons, knopkieries, pangas or other traditional
weapons;
from intimidating or otherwise interfering with any person who
does not voluntarily participating strike action, including
all
non-striking employees in the industry;
from committing any acts of public disorder or violence.
On 5 October 2012 a final order was granted by agreement between the
Road Freight Employers Association, SATAWU and another union
on the
basis that the trade unions would take all reasonable steps,
including the issuing of public statements, press releases
and
advertisements to communicate to their members the terms of the
order of 28 September 2012; to unequivocally condemn the
use of any
type of violence, intimidation or damage to property; and to
instruct union officials, shop stewards and union members
to do
whatever is reasonably necessary to prevent further incidents of
violence, intimidation or damage to property.
SATAWU complied with the terms of this order in so far as it did
issue press statements condemning the acts of violence that
continued to characterise the primary strike. However, it seems to
have had little effect. Acts of violence and intimidation
aimed at
non-striking truck drivers and other employees have continued apace.
The employers’ organisation has, in principle, reached a
settlement with three of the trade unions engaged in the strike.
However, SATAWU has not accepted the wage offer and its members are
continuing with their strike action (“the primary strike”).
After a number of false starts, SATAWU served a notice of a
secondary strike on the applicant, Transnet, on 8 October 2012. The
secondary strike is due to commence on 16 October 2012. Transnet
employs approximately 63 000 employees across six areas of
operations:
Transnet National Ports Authority
Transnet Port Terminals;
Transnet Rail Engineering;
Transnet Freight Rail;
Transnet Pipelines; and
Transnet Group.
The relevant part of the strike notice read as follows:
“
You
are hereby given seven days notice of our members’, who are
employed nationally at Transnet Freight Rail (TFR) and Transnet
Port
Terminals (TPT), intention to embark on protected secondary strike
action. The secondary strike at TFR and TPT will start
at 06h00 on
Tuesday, 16 October 2012. The strike will endure for one full day at
TFR and three full days at TPT.
The secondary strike is
reasonable in relation to its possible direct or indirect effect for
a number of reasons, including the
fact that our members in your
employee are responsible for loading and offloading of trucks,
containers and ships all of which
are critical for the operation of
the road freight industry. This will impact on the customers of the
primary employers, which
may lose customers or credibility. We
reserve our rights to explain this more fully later, should it be
necessary. Please contact
us if you require a copy of our wage
demands.”
As can be seen from the strike notice, the secondary strike is aimed
at Transnet Freight Rail (TFR) and Transnet Port Terminals
(TPT).
The “primary employers” are employers in the road
freight industry.
TFR transports goods and commodities by rail, primarily to and from
six main ports. It employs approximately 36 321 employees,
of
whom 39% (14 158 employees) are members of SATAWU. TPT is
responsible for the handling of cargo that is transported through
South African ports. It employs approximately 6255 bargaining unit
employees, of whom 62% (3878 employees) are members of SATAWU.
Its
customers are primarily the shipping industry, vehicle
manufacturers, agriculture, timber and forest products, the mining
industry and exporters of minerals, metals and granite.
Transnet seeks to interdict the planned secondary strike on three
main grounds. It submits that:
the strike notice is defective;
a secondary strike by SATAWU’s members will not have any
direct or indirect effect on the business of the primary employers;
and
the nature and extent of the secondary strike will be unreasonable
in relation to the possible direct or indirect effect of
such a
strike on the business of the primary employers.
The applicable legal provisions
Helen Seady and Clive Thompson
2
have pointed out that, although the Committee of Experts of the
International Labour Organisation supports the rights of workers
to
engage in solidarity action, it recognises the need to limit this
right. Other than requiring that the primary strike must
itself be
lawful, and that national legislation should define the parameters
of a sympathy strike and the nature of the relationship
between the
parties that would justify such a strike, the committee has not
attempted to flag further regulation.
South African labour law specifically recognises and legislates for
protected secondary strikes. Section 66 of the LRA regulates
secondary strikes:
“
66
Secondary strikes
(1) In this section 'secondary
strike
' means a
strike
, or conduct in contemplation or
furtherance of a
strike
, that is in support of a
strike
by other
employees
against their employer but does not include
a
strike
in pursuit of a demand that has been referred to a
council
if the striking
employees
, employed within the
registered scope
of that
council
, have a material
interest in that demand.
(2) No person may take part in a
secondary
strike
unless-
(a)
the
strike
that is to be supported complies with the provisions of sections 64
and 65;
(b)
the
employer of the
employees
taking part in the secondary
strike
or, where appropriate, the
employers'
organisation
of which that employer is a member, has received written notice of
the proposed secondary
strike
at least seven days prior to its commencement; and
(c)
the
nature and extent of the secondary
strike
is reasonable in relation to the possible direct or indirect effect
that the secondary
strike
may have on the business of the primary employer.
(3) Subject to section 68 (2)
and (3), a secondary employer may apply to the Labour Court for an
interdict to prohibit or limit
a secondary
strike
that
contravenes subsection (2).
(4) Any person who is a party to
proceedings in terms of subsection (3), or the Labour Court, may
request the Commission to conduct
an urgent investigation to assist
the Court to determine whether the requirements of subsection (2)
(c)
have been met.
(5) On receipt of a request made
in terms of subsection (4), the Commission must appoint a suitably
qualified person to conduct
the investigation, and then submit, as
soon as possible, a report to the Labour Court.
(6) The Labour Court must take
account of the Commission's report in terms of subsection (5) before
making an order.”
Carole Cooper
3
,
after an extensive analysis of sympathy strikes or secondary strikes
in other jurisdictions, and in the context where the current
LRA was
still in Bill form, summarised the proportionality test envisaged by
section 66(2)(c):
“
The
requirements concerning the reasonableness of the nature of the
sympathy strike would mean, for instance, the prohibition of
a
sympathy strike where the primary and secondary strikers work in
unrelated sectors or occupations and where, as a result, the
secondary strike can have little impact on the primary employer’s
business. Thus, for instance, the bill aims to prohibit
the holding
of a sympathy strike by health workers in support of a primary strike
by miners with the matter in dispute is nothing
to do with the
interest of the health workers. As far as the extent of the strike is
concerned, this could relate to the length
of the strike and its
scope both in terms of the area and numbers. It could mean, for
instance, that a lengthy sympathy strike,
which is causing serious
loss to the secondary employer, will fall foul of the section if
there is little chance of its having
a direct or indirect effect on
the primary employer’s business. On the other hand, a secondary
strike involving a large number
of employees or more than one
enterprise, because of the possibility of its having the required
effect, could be found to be permissible.”
After some earlier confusion, the applicable legal principles were
succinctly summarised as follows in
SALGA v SAMWU
4
:
“
In
short, whether or not a secondary strike is protected is determined
by weighing up two factors - the reasonableness of the nature
and
extent of the secondary strike (this is an enquiry into the effect of
the strike on the secondary employer and will require
consideration,
inter alia, of the duration and form of the strike, the number of
employees involved, their conduct, the magnitude
of the strike's
impact on the secondary employer and the sector in which it occurs)
and secondly, the effect of the secondary strike
on the business of
the primary employer, which is in essence an enquiry into the extent
of the pressure that is placed on the primary
employer.”
That judgement was handed down extemporaneously by Van Niekerk J. It
was upheld on appeal more than three years later.
5
The Labour Appeal Court further noted:
“
Under
the head of proportionality, the court must weigh the effect of the
secondary strike on the secondary employer and the effect
of the
nature and extent of the secondary strike on the business of the
primary employer. The subsection does not require actual
harm to be
suffered by the primary employer but that they must be the
possibility that it may. The harm that the employer may suffer
is not
required to be direct. It may be harm that indirectly affects the
business of the primary employer. It would, therefore,
in every case
require a factual enquiry to determine whether or not the possible
effect the secondary strike will have on the business
of the primary
employer is reasonable. The harm that may be suffered by the
secondary employer must be proportional to the possible
effect the
secondary strike may have on the business of the primary employer.”
Van Niekerk J also noted in
Clidet No 597 (Pty) Ltd v SAMWU
6
:
“
The
legitimacy (or otherwise) of the secondary strike must be determined
by determining the nature and extent of the proposed secondary
strike, and weighing that against the harm that will be caused to the
business of the primary employer. This approach is obviously
better
suited to employers that stand in a relationship of customer and
supplier, all who enjoy a connection by way of a common
shareholding
or some other nexus that bears on the capacity of the secondary
employer to place pressure on the primary employer
to resolve its
dispute with the union.”
However, the LAC in
SALGA v SAMWU
7
disagreed that the secondary employer should be able to place
pressure on the primary employer:
“
There
is no requirement in section 66 of the Act that the secondary
employer should exert influence on the primary employer or that
the
secondary employer should have the capacity to exert influence on the
primary employer in order to encourage it to compromise
or capitulate
to the demands of the workers. What section 66 requires is that the
secondary strike should have a possible direct
or indirect effect on
the business of the primary employer and that the nature and extent
of the secondary strike should be reasonable
in relation to the
possible direct or indirect effect on the business of the primary
employer.”
Evaluation / Analysis
I shall consider the question whether the applicant has made out a
prima facie
case for the relief sought on an interim basis at
the hand of these established principles. I shall also consider the
effect of
the request for the CCMA to conduct an investigation in
terms of section 66 (4). These principles have to be considered in
the
context of an application for urgent interim relief
8
,
i.e.:
a
prima facie
right, though open to some doubt;
a well-founded apprehension of irreparable harm;
the absence of an adequate alternative remedy; and
a balance of convenience in their favour.
In view of the discretionary nature of an interim interdict these
requisites are not judged in isolation and they interact.
9
Mr
Brickhill
, for the respondent, argued that the relief
sought is final in effect and that the requirements for a final
interdict must be met.
I do not agree. The relief sought is couched
in the form of a rule
nisi
and it was argued on that basis. I
shall therefore consider the application on that basis.
Firstly, I need to consider the applicant’s submission that the
strike notice did not comply with the provisions of the collective
agreement.
The strike notice
In terms of s 66(2)(b), no person may take part in a secondary
strike unless-
“
the
employer of the
employees
taking part in the secondary
strike
or, where appropriate, the
employers'
organisation
of which that employer is a member, has received written notice of
the proposed secondary
strike
at least seven days prior to its commencement”.
The procedural requirement is a simple one. Section 66(2)(b)
requires no more than that the union must give a written notice
of
the secondary should at least seven days before it is due to start.
It does not prescribe what that notice should contain,
aside from
when the strike will commence. To that extent, the notice given by
SATAWU complies with this provision.
However, in the present case, the parties have gone further and have
concluded a collective agreement which regulates,
inter alia
,
secondary strikes. They have chosen to include express provisions
which must be complied with before a secondary strike can
take
place. The provision requires that the trade union should include in
the statutory notice required by section 66(2)(b) --
“
The
grounds on which the union advances that the secondary strike action
is reasonable in relation to the possible direct or indirect
effect
the secondary strike action may have on the business of the primary
employer.”
Mr
Maserumule
, for the applicant, submitted that the reason
why this provision was included is that, without it, Transnet would
have to second-guess
the trade union and speculate whether the
secondary strike will comply with section 66(2)(c) of the Act. In
the absence of this
provision in the collective agreement, he says,
the only way that the applicant can establish whether or not it
wishes to challenge
a secondary strike as not complying with section
66(2)(c) is when it actually launches an application in this Court
and even
then, only when it receives the answering affidavit from
the respondent. By agreeing to the inclusion of this clause in the
collective
agreement, the parties have made it possible for Transnet
to make an assessment of whether or not to challenge the secondary
strike upon receipt of the secondary strike notice.
It is significant that the parties have also elected to treat
protest action under section 77 of the LRA in the same manner as
a
secondary strike. Section 77 requires notice of commencement of
protest action to be given to NEDLAC. Clause 23.4 of the collective
agreement requires that the union should also give a separate notice
to Transnet and that the notice should include,
inter alia
,
the nature and extent of the strike as well as its anticipated
duration. Section 77 does not require this additional information
but the parties have elected to provide for it.
The parties, in relation to primary strikes, did not made provision
for any additional procedural requirements. This seems to
demonstrate that the parties intended to deal with primary strikes
differently from the way they deal with secondary strikes
and
protest action.
Recently, the Labour Appeal Court in
BMW (Pty) Ltd v NUMSA &
Others
10
upheld the principle that where parties have concluded a collective
agreement that contains additional procedural requirements
for a
primary strike, those requirements must be complied with before any
strike can take place. The union cannot elect to only
comply with
the requirements of the LRA. Waglay DJP, for the majority, stated
the position as follows
11
:
“
It is
common cause between parties that the clause sets out the procedure
which the parties need to follow in dealing with the demand...
Parties by way of a collective agreement set out certain procedural
steps which they will follow in dealing with their demands,
grievances, concerns etc . In this respect, appellant is correct to
submit that the respondent was obliged to follow clause 8.3
in having
its demand addressed.
The respondent, on the other
hand, argues that it is not obliged to comply with the procedure set
out in clause 8.3 because its
demand is one of mutual interest and it
is entitled to embark on a strike in support of its demand as long as
it does so in compliance
with the provisions of the Labour Relations
Act 66 of 1995 (as amended) (“the Act)”. I disagree.
Where parties have
concluded an agreement which does not deny any of
the parties to the agreement the rights and obligations provided in
the Act,
I see no reason why that agreement cannot be enforced. In
fact the Act seeks to promote collective bargaining, particularly at
the sectoral level and gives primacy to collective agreements.
A collective agreement concluded
between the parties is binding between them. It is a contract that
sets the agreed terms between
them and as long as what is agreed upon
is not in conflict with the applicable legislation or
contra bonos
mores
it is binding and enforceable between them.”
In finding as it did, the majority of the LAC in
BMW (Pty) Ltd
thus overruled
County Fair Foods (Pty) Ltd v FAWU and Others
12
,
in which the LAC had previously held in relation to a primary strike
that a trade union party to a collective agreement could
elect to
either comply with the procedural requirements contained in a
collective agreement, or those prescribed by the LRA.
The minority
judgment of Landman AJA in
BMW
expressly relied on the
County
Fair
judgment, and the majority, in holding otherwise, albeit
without referring to it expressly, overruled it.
The approach in
BMW
seems to be consistent with that adopted
by the LAC in
North East Cape Forests v SAAPAWU
13
,
where it upheld the principle that parties can regulate strike
related processes in terms of a collective agreement.
The obligation to hold parties to the terms of collective agreements
which regulate secondary strikes was recognised by the Labour
Court
in
Chubb Guarding SA (Pty) Ltd v SATAWU
14
.
In that case, the parties had concluded a collective agreement that
provided for a “cooling off period” before union
members
could embark on a secondary strike, which was additional to the
notice period required by the LRA. In upholding the employer’s
contention that the collective agreement was binding and that the
union and its members were bound to observe its terms before
the
strike could commence, the Court observed as follows
15
:
“
In my
view, where there is an additional requirement of reasonableness in
the case of the secondary strike, with its limitations,
a collective
agreement should be respected by both parties particularly when the
secondary strikers are so disproportionally higher
in number than the
primary strikers, even if there is a
nexus
between
the two companies in question. Reasonableness could also be inferred
from the actual conduct of employees in respecting
the relevant and
applicable collective agreements.
...
Here was a procedure that had to
be followed, to which the union and the employer have agreed upon, in
a collective agreement. It
provides for a cooling-off period, which
is a wise route to follow before crippling an employer with whom
employees have no direct
dispute. If there is a
nexus
between
the two businesses, the employees may strike. But before the
provisions of clause 13 have not yet been complied with in
full,
workers may not go on strike. This strike action is therefore delayed
until there is such compliance.”
The collective agreement between Transnet and SATAWU requires that
the union should state its reasons for believing that the
secondary
strike will be protected.
In its notice of 8 October 2012, SATAWU stated:
“
The
secondary strike is reasonable in relation to its
possible
direct or indirect effect
for a number of reasons, including the fact that our members in your
employ are responsible for loading and off loading of trucks,
containers and ships all of which are critical for the operations of
the road freight industry. This will impact on the customers
of the
primary employers, which may lose customers or credibility. We
reserve our rights to explain this more fully later, should
it be
necessary.”
I agree with Mr
Maserumule
that the notice does not fully
comply with the requirements of the collective agreement. It
mentions only one of “a number
of reasons” why it is of
the opinion that the secondary strike is reasonable in relation to
the possible direct or indirect
effect on the business of the
primary employers. It does not set out why the one factor –
the loading and off-loading of
trucks – would make the strike
reasonable in relation to its effect on the primary employers. All
it alleges is that the
primary employers may lose customers or
credibility because the strike may impact on their customers.
It would be overly formalistic, though, to interdict the planned
strike action for this reason alone. The Constitutional Court
very
recently considered a different question relating to a strike notice
for a primary strike, and whether the notice governed
non-members of
the union, in
SATAWU & Others v Moloto NO & Another.
16
That judgment considered the requirements of the Act and not of a
collective agreement. Nevertheless, the following
dictum
of
Yacoob J (for the majority) is instructive regarding the choice
between an interpretation requiring more information in a
strike
notice and an interpretation requiring less:
“
We
assume, for present purposes, that the interpretation requiring more
information than that is constitutionally permissible. Which
interpretation, then, sits better with the spirit, purport and
objects of the Bill of Rights?
In our view really there is no
contest. Interpreting the section to mean what it expressly says is
less intrusive of the right to
strike; creates greater certainty than
an interpretation that requires more information in the notice;
serves the purpose of the
Act – specifically that of orderly
collective bargaining – better; and gives proper expression to
the underlying rationale
of the right to strike, namely, the
balancing of social and economic power.”
I am not entirely convinced that the same considerations apply in
this case. Firstly, the parties have elected to impose more
stringent obligations on the union than are required by the Act.
Secondly, the requirement to spell out the grounds in the
collectively agreement arguably provides greater certainty and would
lead to more orderly collective bargaining. On balance, though,
I
would not prohibit the planned secondary strike for this reason
alone.
The further question of compliance with s 66(2)(c) remains.
Nature and extent of the secondary strike
As Van Niekerk J pointed out in
SALGA v SAMWU
17
,
the reasonableness of the nature and extent of the secondary strike
entails an enquiry into the effect of the strike on the
secondary
employer, i.e. Transnet. It will require consideration,
inter
alia
, of –
the duration and form of the strike;
the number of employees involved;
their conduct;
the magnitude of the strike's impact on the secondary employer; and
the sector in which it occurs.
Duration and form of the strike
The strike is set to last for one full day at TFR and three full
days at TPT. It will take the form of a full-blown strike as
opposed
to the workers withholding their labour for a limited duration
during the day or an overtime ban.
Although a strike for one day does not appear to be extensive, the
cumulative effect of four days’ strike action in this
sector
will be significant.
The applicant has shown that the proposed strike by Transnet Freight
Rail employees, although only for one day, will nonetheless
have a
major disruptive effect on its operations and on its customers.
According to the applicant – and SATAWU does not
contest this
-- it will take Transnet Freight Rail approximately a month to
recover from a one day strike. SATAWU has not shown
precisely how
such a strike may possibly have an effect on the business of the
primary employers, other than to allude to the
“contractual
chain” that flows from Transnet to its customers to primary
employers. It is against this background
that the court has to
assess the requirements of reasonableness and proportionality set by
section 66(2)(c).
Likewise, the applicant has shown that the effect of the strike on
the business operations of Transnet Ports Terminal over a
period of
three days will be major, and will in addition, have a catastrophic
effect on what is already an ailing economy. All
imports and exports
transported by ship go through Transnet Port Terminals. The
intention of the strike is to prevent all cargo
from being loaded or
off-loaded. Thus for three days, Transnet Port Terminals will not be
able to conduct its business. This
will affect not just Transnet
Port terminals, but also Transnet Freight Rail, which delivers cargo
to the ports for export and
collect imported goods. Overall, the
Applicant’s business will be severely and negatively affected.
The Court needs to
evaluate whether given the impact of the
secondary strike on the Applicant – i.e. the secondary
employer -- and the likely
effect on the business of the primary
employers, the secondary strike should be allowed.
Number of employees involved
The strike at TFR will involve some 36 000 employees as opposed
to the now less than 25 000 employees still participating
in
the primary strike. At TPT the strike will last for three days and
involve more than 4000 employees. As in
Chubb Guarding
18
,
the disproportionate number of Transnet employees who will embark on
the secondary strike relative to those of the primary employers
still on strike is a factor to be considered.
Conduct of the employees
It is difficult to assess the possible future conduct of the
employees. However, the court has the benefit of being able to
consider the conduct that has characterised the primary strike to
date. It has been particularly violent and disruptive, going
far
beyond the aims of orderly collective bargaining and peaceful
picketing.
In this regard, one cannot but be reminded of the words of WB Yeats
in “
The Second Coming”:
Turning and turning in the
widening gyre
the falcon cannot hear the
falconer;
Things fall apart; the centre
cannot hold;
Mere anarchy is loosed upon the
world,
The blood-dimmed tide is loosed,
and everywhere
the ceremony of innocence is
drowned;
The best lack all conviction,
while the worst
are full of passionate
intensity.”
In the case of the primary strike, SATAWU has indeed called upon its
members to act peacefully, in accordance with the orders
of this
Court; but it seems to have had little effect. In the era since the
tragedy at Marikana when workers embarking on a wildcat
strike were
fatally wounded by members of the South African Police Services,
nationwide strikes have occurred where the falcon
(the workers) will
not hear the falconer (their union representatives). Even though the
current primary strike is protected and
sanctioned by SATAWU, it
does not appear as if the union has managed to maintain control over
its members. Anarchy has indeed
prevailed; blood has been spilt and
non-striking workers have been killed. One cannot predict with any
certainty what would happen
if the secondary strike were to proceed;
but there is a real apprehension that the strike could exacerbate
the violence that
has characterised the primary strike thus far.
Magnitude of strike’s impact on secondary employer and the
sector in which it is to occur
I have already pointed out what a major impact the strike will have
on the secondary employer. TPT and TFR do not fall within
the road
freight sector; as such, the major impact of the strike on the
secondary employer would appear to be disproportionate
to its
possible direct or indirect effect on the business of the primary
employers.
Direct or indirect effect on business of the primary employers
The court has to consider the extent of the pressure placed on the
primary employers by the secondary strike.
Dealing, firstly, with TFR, the applicant has shown that Transnet
Freight Rail and the primary employers are in fact competitors.
They
both transport goods and it is a business strategy of Transnet
Freight Rail that it should lure business away from the primary
employers. As was observed by Bhoola J in
Coca Cola Fortune (Pty)
Ltd v FAWU & Others,
19
in such a case, the possibility of the secondary strike having an
effect on the primary strike is remote, or is not one that
is
contemplated by section 66(2(c).
In relation to the Transnet Port Terminals, SATAWU has alleged that
if cargo is not off-loaded or loaded, this will have some
impact on
the business of the primary employers. However, if one accepts that
the primary strike has brought to a halt the collection
of
containers by the employees of the primary employers, a secondary
strike at Port Terminals will not have any effect nor is
it likely
to have any effect on the business of the primary employers.
It must be said that there is a factual dispute on the papers as to
the extent to which a secondary strike may have a possible
direct or
indirect effect on the business of the primary employers. Mr
Brickhill
urged me to resolve the conflict by applying the
well-known rule in
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
20
,
i.e.
‘
[W]here
in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order ... may be granted if those
facts
averred in the applicant’s affidavits which have been admitted
by the respondent, together with the facts alleged by
the respondent,
justify such an order.’
However, as I have already stated, this application is not one for a
final order. The rule in
Plascon-Evans
does not apply. In
interlocutory interdicts, the approach of the court in the face of a
dispute of facts on the papers is this:
21
“
The
proper manner of approach is to take the facts set out by the
applicant, together with any facts set out by the respondent which
the applicant cannot dispute, and to consider whether, having regard
to the inherent probabilities, the applicant should on those
facts
obtain final relief at the trial. The facts set up in contradiction
by the respondent should then be considered. If serious
doubt is
thrown on the case of the applicant he could not succeed in obtaining
interim relief, for his right,
prima
facie
established, may only be open to ‘some doubt’.”
The court would be greatly assisted in resolving those factual
disputes, were it to be furnished with a report by the CCMA as
envisaged by section 66(5). But that report is not yet available. I
shall return to that aspect of the relief sought shortly.
Proportionality
Is the nature and extent of the secondary strike reasonable in
relation to the possible direct or indirect effect on primary
employers?
The nature and extent of the secondary strike will be such that it
will have a major impact on Transnet. Is that reasonable in
relation
to the possible direct or indirect effect on the primary employers?
SATAWU alleges in its answering affidavit that there is a link
between TFR and Transnet insofar as customers may leave containers
on a road vehicle trailer for collection by TFR. How this link may
impact on the business of the primary employers, is not clear.
The
potential harm caused to Transnet appears to me to be
disproportionate to the very slight possible effect the strike may
have on the primary employers.
The same holds true for TPT. At best, SATAWU may establish that
employees in the road freight industry deliver goods to TPT for
off-loading. But in the context of a primary strike having the
result that those trucks are not running – except, perhaps,
for a few that are being driven by replacement workers at the risk
of life and limb – it is difficult to see how a strike
at TPT
could have an effect on the primary employers in the road freight
industry. Even if it did, the nature and extent of the
secondary
strike would not be reasonable in relation to the possible direct or
indirect effect on the primary employers.
It is difficult, though, to ascertain the possible effect on the
primary employers, and the relationship between the different
employers, on the basis of affidavits drawn in haste. That brings me
to the next point to be considered.
Section 66(4) report
To reiterate – the LRA envisages a specific role for the CCMA
in disputes of this nature. The following subsections of
s 66 are
relevant:
“
(4)
Any person who is a party to proceedings in terms of subsection (3),
or the Labour Court, may request the Commission to conduct
an urgent
investigation to assist the Court to determine whether the
requirements of subsection (2)
(c)
have been met.
(5) On receipt of a request made
in terms of subsection (4), the Commission must appoint a suitably
qualified person to conduct
the investigation, and then submit, as
soon as possible, a report to the Labour Court.
(6) The Labour Court must take
account of the Commission's report in terms of subsection (5) before
making an order.”
In this case, the applicant has requested the CCMA to conduct an
investigation in terms of s 66(4). The CCMA has identified suitably
qualified persons to conduct the investigation, but has not yet
appointed them. It is envisaged that such an appointment can
be
made, the investigation carried out, and a report furnished to the
Court within seven days.
Seady & Thompson
22
have noted that the practicalities associated with trying to conduct
a meaningful investigation under urgent circumstances makes
the
CCMA’s job and an enviable one, and places a question mark
over the utility of the exercise contemplated by section
66 (4).
In terms of section 66 (6), though, this court
must
take
account of the CCMA’s report before making an order. At the
moment, that the report has not yet been submitted and
indeed, a
suitably qualified person has not yet been appointed to conduct the
investigation in terms of section 66 (5). In my
view, the most
practical way of enabling the court to consider the report to be
furnished by the CCMA in terms of section 66
(5) is to adopt a
process similar to that adopted by the court in
Sealy of South
Africa (Pty) Ltd & others v PPWAWU
23
.
Although that the matter was heard as an
ex parte
application
and the matter before me is opposed, with both parties having filed
substantial pleadings and heads of argument, I
intend to consider
whether the applicant has made out a case for interim relief; and if
so, to issue a rule
nisi
pending the furnishing of a report
contemplated in section 66 (5). That report must be in place before
the court on the return
day in terms of section 66 (6).
Has the applicant satisfied the requirements for urgent interim
relief?
Against this background, the court must finally consider whether the
applicant has satisfied the requirements for an urgent interdict
outlined earlier.
A prima facie right?
On the evidence currently before the Court, and without the benefit
of a report from the CCMA, I am satisfied that the applicant
has
made out at least a
prima facie
case, though open to some
doubt, to satisfy the requirements for interim relief.
The nature and extent of the envisaged strike action is such that it
will have a major effect on Transnet and on the economy
of the
country. It does not appear to be reasonable in relation to the
slight possible effect it may have on the primary employers.
It is
disproportionate to the goal of the strike action, i.e. to force the
primary employers to accept SATAWU’s demands.
It may be that, once an investigation has been conducted in terms of
section 66(5), a clearer picture emerges and that the applicant
may
not be able to establish a clear right for the Court to issue a
final order in terms of s 66(5). At this stage, though, the
applicant has established a
prima facie
right for the interim
relief I intend to grant.
Apprehension of irreparable harm?
The applicant faces a clear apprehension of irreparable harm.
Economic loss is envisaged by any strike; but in this case, it
is
not proportionate or reasonable in relation to the possible effect
on the primary employers.
There is also the real apprehension of harm in the form of violent
conduct, leading not only to damage to property, but also
physical
harm – or even death – for non-strikers. In the
documentation attached to SATAWU’s answering affidavit,
16
incidents of violence are recorded in one municipality in three
days. It appears from the documents attached by the union
that
stones and petrol bombs have been thrown and vehicles set alight
during the primary strike. Although it disavows any collusion
with
the perpetrators and it has in fact condemned the violence, the
union seems incapable of preventing it.
Absence of alternative remedy
The applicant has no other remedy other than the one prescribed by
section 66(3) of the LRA, i.e. the procedure that it has followed.
Balance of convenience
The balance of convenience favours the applicant. Should the strike
proceed at this stage, before the Court has had the benefit
of the
report envisaged by s 66(6), it will lead to major disruption,
losses and possible physical harm to the applicant. The
members of
SATAWU employed by the applicant, on the other hand, will suffer no
prejudice. They will carry on with their work
and be paid for their
labour. They do not stand to gain from the secondary strike; on the
contrary, they would only suffer the
loss of four days’ wages,
were they allowed to strike in solidarity with their comrades in the
road freight industry at
this stage. SATAWU and its members in that
industry suffer no immediate prejudice; and should the Court decide
in their favour
on the return day, the secondary strike can still
proceed.
Order
Having considered all of these factors, I make the following order:
A rule
nisi
is issued calling on the respondent (SATAWU) to
show cause on 26 October 2012 at 10h00 why the following orders
should not be
made final:
declaring that the secondary strike by the respondent’s
members employed by the applicant at Transnet Port Terminals
and
Transnet Freight Rail due to commence on 16 October 2012 is in
contravention of section 66(2)(c) of the LRA;
directing the respondent to withdraw its secondary strike notice
addressed to the applicant and dated 8 October 2012;
interdicting and restraining the respondent from calling for a
secondary strike by applicant employees at Transnet Port Terminals
and Transnet Freight Rail pursuant to the notice issued on 8
October 2012; and
directing the respondent to notify its members employed at
Transnet Port Terminals and Transnet Freight Rail not to embark
on
a secondary strike pursuant to its strike notice issued on 8
October 2012.
The orders in subparagraphs 1 to 4 shall operate as an interim
interdict bending the return date.
The CCMA is directed to furnish its report in terms of section 66
(5) of the LRA to this court and to the parties by no later
than 19
October 2012.
The parties are directed to deliver any supplementary affidavits or
further submissions pursuant to the report of the CCMA
by no later
than 24 October 2012.
The question of costs is to be decided on the return day.
_______________________
Anton Steenkamp
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Puke Maserumule of
Maserumule Inc.
RESPONDENT:
Jason Brickhill
Instructed by Cheadle
Thompson & Haysom.
1
Act
66 of 1995 (the LRA).
2
Seady
and Thompson, “Strikes and Lock-outs” in Thompson &
Benjamin,
South African Labour Law
(Juta) AA1-329.
3
Cooper,
“Sympathy Strikes” (1995) 16
ILJ
759 at 783.
4
[2007] ZALC 43
;
[2008]
1 BLLR 66
(LC); (2007) 28
ILJ
2603 (LC) para [16].
5
SALGA
v SAMWU
[2011] 7 BLLR 649
(LAC); (2011) 32
ILJ
1886 (LAC)
para [10].
6
[2011]
3 BLLR 225(LC)
para [8].
7
Supra
para [16].
8
LF
Boshoff Investments (Pty) Ltd v Cape Town Municipality
1969 (2)
SA 256
(A) 267 A-F.
9
Eriksen
Motors (Welkom) Ltd v Protea Motors, Warrenton & ano
1973
(3) SA 685 (A) 691 E-G.
10
(2012)
33
ILJ
140 (LAC).
11
At
paras [8] – [11].
12
[2001]
5 BLLR 494 (LAC).
13
(1997)
18
ILJ
971 (LAC) at 977-978.
14
[2005]
11 BLLR 1062
at 1064.
15
Paras
[11] – [12].
16
[2012]
ZACC 19
(21 September 2012) paras [73] – [74].
17
Supra
(LC) para [16].
18
[2005]
11 BLLR 1062
(LC) para [11].
19
(2010)
31
ILJ
1855 at para [13].
20
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634H-635C.
21
CB
Prest
Interlocutory Interdicts
(Juta, 1993) p 60;
Webster
v Mitchell
1948 (1) SA 1186
(W) at 1189.
22
Supra
at AA1-330.
23
[1997]
4 BLLR 421
(LC).