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[2013] ZALCPE 4
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Mawethu Civils (Pty) Ltd and Another v National Union Mine Workers and Others (P562/11) [2013] ZALCPE 4; (2013) 34 ILJ 2624 (LC) (12 February 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, IN
PORT ELIZABETH
JUDGMENT
Reportable
Case No: p 562/11
In the matter between:
MAWETHU CIVILS (PTY) LTD
..................................................................
FIRST
APPLICANT
MAWETHU PLANT (PTY) LTD
.............................................................
SECOND
APPLICANT
And
NATIONAL UNION OF MINEWORKERS
..................................................
1
ST
RESPONDENT
EMPLOYEES OF THE FIRST AND SECOND
APPLICANT THAT ARE MEMBERS OF NUM
AND FURTHER RESPONDENTS
...........................................................................
2
ND
RESPONDENT
Heard:
29 November 2012 and 23 January 2013
Delivered:
12 February 2013
Summary:
Section 65 (1)(c) of the LRA must be given a literal interpretation.
It exclude disputes which a party has the right to
refer to the
Labour Court in terms of legislation other than the LRA from the
category of disputes people may not take part in
a strike for.
JUDGMENT
LALLIE, J
[1] The applicants approached this order on an urgent basis for
interim relief and on 29 November 2012 I granted an order in the
following terms:
1.1. That the provisions of
Section 68(2) pertaining to the giving of 48 (fourty eight) hours
prior notice of this application,
is dispensed with and that the
applicants have shown good cause as contemplated by Section 68(2) (c)
as to why this matter is considered
and dealt with as a the matter of
urgency notwithstanding the fact that the applicants have not given
such 48 hours’ notices,
1.2. That the
Rule Nisi
is hereby issued calling upon the respondents herein to appear on 23
January 2013 at 10h00 to give reasons why a final order should
not be
granted in terms of the provisions of Section 68 of the Labour
Relation Act No 66 of 1995(“the Act”) which order
shall
be in the following terms:
(a) Declaring the conduct called
by the first respondent and embarked upon by the second and further
respondents, in terms of the
first respondent’s notice in terms
of section 64(1)(b) dated 23 November 2012, be declared to constitute
strike action as
envisaged by Chapter lV of the LRA and that such
strike be declared to unprotected in that;
(b) The strike called by the
first respondent to be embarked upon by the second and further
respondent is prohibited by law in that
the issue in dispute forming
the subject matter of the strike relates to alleged non-payment of
wages and is determinable through
litigation;
(c) The strike called by the
first respondent to be embarked upon by the second and further
respondents is prohibited by law in
that the issue in dispute forming
the subject matter of the strike does in fact not concern an issue of
matters of mutual interest.
1.3. That the first respondent
and or the second and further respondents are interdicted and
restrained from supporting, promoting,
instigating, advancing,
embarking upon or participating in, any such unprotected strike
action of any nature at the workplace of
the applicant pursuant to
the notice in terms of section 64(1)(b) issued by the first
respondent on 23 November 2012 and/or any
of the issues in dispute
reflected in such notice.
1.4. That the second and further
respondent properly and without reservation perform and fulfil all of
their lawful obligations
in terms of their individual contracts of
employment and their employment with the applicants,
1.5. That the first respondent
takes all reasonable steps to ensure that the second to further
respondent comply with this order.
1.6. Costs are reserved for
argument on the return date.
[2] On the return date, the respondents persisted with opposing the
application consistent with their stance on the day the interim
order
was granted. The respondents did not file opposing papers but argued
on the applicants’ papers. The applicants’
unchallenged
factual background of this matter is that a practice developed at the
applicants in terms of which prior to any public
holiday, workers
work extra hours in order not to attend work on the day before or
after the public holiday and have a long weekend.
Consistent with the
practice, a week preceding the public holiday of 9 August 2012
employees were reminded to work in approximately
five hours in order
not to attend work on Friday 10 August 2012. The second and further
respondents refused and failed to report
for duty on 10 August 2012.
They subsequently demanded payment for the five hours they refused to
work in. When the applicants
refused to accede to their demand they
referred a dispute to the CCMA and the relief they were seeking was
for the applicant to
pay second and further respondents five hours’
remuneration.
[3] The dispute was not resolved and an outcome certificate to that
effect was issued. Notwithstanding the letter warning them
not to
embark on strike action on the basis that the dispute related to an
alleged non-payment of wages, on 23 November 2012 the
first
respondent issued the applicants with a 48 hours’ notice of the
second and further respondents’ intention to
strike in terms of
section 64 (1) (b) of the Labour Relation act 66 of 1995 (LRA).
[4] On 26 November 2012, the second and further respondents embarked
on a strike and the applicants issued the respondents with
a number
of ultimatus warning them to abandon the strike as it was illegal.
The first respondent responded that the strike was
legal and the
respondents did not heed the applicants’ warning and continued
with the strike action.
[5] The applicants’ case was that the issue the second and
further respondents were striking for related to non-payment of
wages
and therefore a matter of mutual interest and not a matter of right.
The applicant sough to rely on section 65 (1) (c) of
the LRA in
arguing that the dispute could be entertain by the Department of
Labour or this Court in terms of section 77 of the
Basic Conditions
of Employment Act 75 of 1997 (BCEA). The applicants submitted that
the strike was unprotected as contemplated
in section 68 of the LRA
either because it did not comply with sections 64 and 65 of the LRA
or the absence of a legitimate issue
in dispute as contemplated by
law.
[6] The respondents denied that their strike was unprotected. They
submitted that on a literal reading, section 65 (1) (c) of the
LRA
contemplated and embraces only disputes which may be referred for
arbitration or adjudication in terms of the LRA. They argued
that no
legislation confers jurisdiction on the labour court over a dispute
referred to in section 65 (1) (c) of the LRA and highlighted
that
disputes concerning only claims for money cannot be referred to
arbitration or this court under any provision of LRA.
[7] The applicants argued that section 65(1) (c ) needs to be given a
wide interpretation which encompasses the jurisdiction of
this court
as contemplated in section 157 of the LRA which grants this court
exclusive jurisdiction in respect of all matters than
elsewhere in
the LRA or in terms of any other law. This interpretation, so went
the argument is also purposive as it is consistent
with the spirit of
the LRA which does not intend to extend the right to strike to
disputes which may be adjudicated by this court
of terms of
legislation other than the LRA. The argument flies in the face of a
number of judgments of our courts which require
provision of section
65 (1) (c) to be given a strict interpretation because the right to
strike is guaranteed in the constitution.
In this regard see
NUMSA
and Others v Bader Bop (Pty)Ltd Another
1
and SATAWU and Others v Moloto NO and Another.
2
[8] Section 65(1)(c) prohibits any person from taking part in a
strike if the issue in dispute is one that a party has a right
to
refer to arbitration or to the Labour Court in terms of the LRA. This
section is clear, it limits issues in dispute to those
that may be
referred to arbitration in terms of the LRA it therefore excludes
issues which may be adjudicated or arbitrated in
terms of other
labour legislation. I am not convinced that the existence of other
legislation in terms of which industrial dispute
can be arbitrated or
adjudicated had escaped the legislature’s mind when enacting
section 64 (1) (c) of the LRA. I am of
the view that as the
legislature was limiting the constitutional right to strike it was
mindful of not limiting it to a point of
obliterating it.
[9] The weakness of the applicant’s argument is that it removes
the certainty created by section 65 (1)(c) on the issues
on which
employees may not strike on and introduces uncertainty which may have
disastrous consequences. As the right to strike
is the most powerful
weapon employees have which has the ability to cripple business it is
important for its limitation be specific.
It is important for
employees to be aware of protected and unprotected strikes before
hand to enable them take conscious decisions
and not just find
themselves unknowingly, in the middle of an unprotected strike and
having to deal with its serious consequences.
Precision in
determining conduct which renders a strike protected or un protected
cannot be compromised.
[10] The rules of interpretation of statutes are clear they require
literal interpretation to be given to statutes unless doing
so would
lead to an absurdity. In this regard see
Poswa v MEC for
Environmental Affairs and Tourism, Eastern Cape.
3
.
I could find no reason for section 65 (1) (c ) not to be given its
literal meaning.
[11] On the applicants’ own version, the issue in dispute can
be referred to this court in terms of the BCEA. It therefore
falls
outside the purview of section 65 (1) (c). In the circumstances, the
applicants failed to prove that they have a right to
have the
respondents interdicted from participating in the strike. The interim
order granted on 29 November is therefore discharge.
There is no
reason for costs not to follow the result.
[12] In the premises, the following order is made:
12.1 The rule is discharged.
12.2 The applicants pay the respondents’ cost.
_______________
Lallie, J
Judge of the Labour Court
Appearances
For the Applicant: Advocate Grobler
Instructed by: Snyman attorneys
For the Respondent: Advocate Grogan
Instructed by: Wesley Pretorius and Associates
1
[2003]
2 BLLR 103 (CC)
2
[2012]
12 BLLR 1193
(CC).
3
2001
(3) SA 582
(SCA) at paras 10-11.