About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2014
>>
[2014] ZALCCT 58
|
|
Bidvest Food Services (Pty) Ltd v NUMSA and Others (C 946/2014) [2014] ZALCCT 58; (2015) 36 ILJ 1292 (LC) (31 October 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGEMENT
CASE
NO: C 946/2014
REPORTABL
OF
INTEREST TO OTHER JUDGES
DATE:
31 OCTOBER 2014
In
the matter between:
BIDVEST
FOOD SERVICES (PTY) LTD
..................................
Applicant
And
NUMSA
........................................................................
First
respondent
GALLANT
& 158 others Second and
.....................
further
respondents
Heard
:
30 October 2014
Delivered
:
31 October 2014
Summary:
Urgent strike interdict – question
whether union members may strike at workplace that does not fall
within scope of union
constitution. LRA ss 4, 21, 22, 23, 64, 65, 135
considered.
Judgement
STEENKAMP J
Introduction
[1]
This urgent application raises the
interesting and important question whether the members of a trade
union may strike in support
of organisational rights at a workplace
that does not fall within the scope of that union’s
constitution.
[2]
Given the novel nature of this question,
the Court would have appreciated more time to apply its mind to it.
However, the application
came before court at 14:00 on a Thursday
afternoon. It was fully argued, albeit without the benefit of
answering papers from the
respondents – they only filed an
affidavit pointing out that a previous jurisdictional ruling by the
CCMA has not been reviewed.
Both parties agreed that it is urgent. I
undertook to give judgment at 10:00 on Friday morning; hence the
brief reasons accompanying
this ruling.
The
relief sought
[3]
The applicant, Bidvest, seeks the following
final relief:
“
1.
Dispensing with the normal Rules of this Honourable Court with regard
to time periods and service of process and directing and
permitting
this matter to be heard as one of urgency in terms of Rule 8 of the
Rules of this Honourable Court;
2.
Interdicting and restraining the … respondents from:
2.1
engaging upon, perpetuating, instigating or participating in strike
action and declaring the strike action embarked upon by
the (union)’s
members and directing the strike action embarked upon by the
individual respondents to be in contravention
of Chapter IV of the
Labour Relations Act;
2.2
in any way interfering with or obstructing access to or egress from
the applicant’s premises;
2.3
committing any acts of violence, damage to property, intimidation or
the like in relation to customers, third parties and the
employees of
the applicant;
3.
Directing those respondents who oppose the application to pay the
costs hereof.”
Background
[4]
Bidvest
operates in the food services industry. The first respondent, NUMSA
(the National Union of Metalworkers of South Africa),
approached it
in July 2014 seeking organisational rights in terms of section 21 of
the Labour Relations Act.
[1]
Bidvest refused on the basis that NUMSA, in terms of its constitution
(and as suggested by its name), may only organise workers
in the
metal industry as broadly defined in that constitution.
[5]
NUMSA
referred a dispute to the CCMA in terms of section 22(1) of the
LRA.
[2]
It was set down for
conciliation in Cape Town on 15 September 2014. Bidvest raised a
preliminary point that the CCMA lacks jurisdiction
to entertain the
dispute on the grounds that the union lacked
locus
standi
to claim and be awarded organisational rights in terms of the Act.
The basis for that argument was that the union’s scope,
as
defined in its constitution, does not cover workers who are engaged
in the food industry.
[6]
The
commissioner, Vusumzi Landu, ruled that the CCMA did have
jurisdiction to conciliate the dispute. He accepted that NUMSA was
acting in its own interest as well as that of its members, as
provided for in section 200 of the LRA. He also accepted the
authority
of this court in
NUM
obo Mabote v CCMA & ors
[3]
that a registered trade union may represent its members at the CCMA
irrespective of the scope of the union. He further concluded:
“
Whilst
I accept that the organisational rights dispute is determined among
other aspects by having regard to the union’s constitution
and
in fact this clear distinction between right of representation at the
CCMA and the right to have organisational rights was
succinctly
covered in the above mentioned
NUM
case.
However
it cannot be correct that the union lacks locus standi to refer the
matter simply because its constitutional scope does
not cover
employees in that sector. At worst it could mean that if the union
decides to refer this dispute to arbitration once
conciliation fails,
the union may fail to prove that it is entitled to the relief it is
seeking.”
[7]
The commissioner handed down that
jurisdictional ruling on 16 October 2014. On 20 October 2014 he
issued a certificate that the
dispute remains unresolved and noted
that it could either be referred to arbitration or the union’s
members could go on strike.
[8]
On 24 October 2014 NUMSA gave Bidvest
notice of a strike to commence on 28 October 2014 in terms of section
64(1)(b) of the LRA.
The strike commenced on that day and Bidvest
launched this application the next day, 29 October, to be heard on 30
October 2014.
Legal
principles
[9]
In
terms of section 64 of the LRA,
every
[4]
employee
has the right to strike if certain prerequisites are met. These are:
9.1
the issue in dispute must have been
referred to the CCMA, and
9.1.1
a certificate stating that the dispute
remains unresolved has been issued; or
9.1.2
a period of 30 days, or any extension of
that period agreed to between the parties to the dispute, has elapsed
since the referral.
After that –
9.2
48 hours’ notice of the commencement
of the strike must have been given in writing to the employer.
[10]
In this case, these prerequisites have been
met. NUMSA referred the issue in dispute to the CCMA. The
commissioner issued a certificate
stating that the dispute remains
unresolved; and in any event, the period of 30 days has elapsed.
[11]
Despite this, Bidvest argues that the
strike is unprotected because it is in pursuit of an unlawful demand.
The demand is for organisational
rights. That demand is unlawful,
Bidvest argues, because the union cannot obtain organisational rights
in an industry that falls
beyond its scope as delineated in its
constitution.
Evaluation
[12]
The
applicant asks for final relief. The prerequisites for a final
interdict are trite.
[5]
The
applicant must establish:
12.1
a clear right;
12.2
an injury actually committed or reasonably
apprehended; and
12.3
the absence of any other satisfactory
remedy.
[13]
Before dealing with the main relief sought,
I should note that the union has conceded that the applicant is
entitled to the relief
sought in prayers 2.2 and 2.3 of its notice of
motion, that is prohibiting the striking employees from committing
unlawful acts
such as violence, intimidation and blocking entrances.
[14]
The more fundamental question is whether
the strike is unprotected because it is in pursuit of an unlawful
demand.
[15]
As I’ve pointed out above, in terms
of section 64 of the LRA,
every
employee has the right to strike once the procedure in section 64 has
been complied with. In this case, it is common cause that
the
respondents have complied with that procedure.
[16]
It is not a prerequisite for a worker to
belong to a trade union before he or she can go on strike, provided
it is the “concerted”
refusal to work for the purpose of
resolving a dispute in respect of a matter of mutual interest. Even
less so is it a prerequisite
that the worker must belong to a
registered trade union. If every worker – whether or not that
worker belongs to a trade
union – can strike lawfully, provided
they have followed the process in section 64, it cannot be said, in
my view, that a
strike by workers in pursuit of a demand that a
certain trade union acquire organisational rights becomes unlawful
because that
union’s constitution does not include the
employer’s industry in its scope.
[17]
If
an organisational rights dispute is not resolved at conciliation, the
union has an election: it may either refer the dispute
to arbitration
or its members may strike. As O’Regan J explained in
NUMSA
v Bader Bop (Pty) Ltd
[6]
:
“
Ordinarily
the scheme of the Act is that where a dispute may be referred to
arbitration, it is not a matter that can constitute
the basis for a
strike. Section 65(1)(c) provides that:
‘
(1)
No person may take part in a strike or a lock-out or in any conduct
in contemplation or furtherance of a strike or a lock-out
if –
(a)
. . .;
(b)
. . .;
(c)
the issue in dispute is one that a party has the right to refer to
arbitration or to the Labour Court in terms of this Act”.
However,
section 65(2) creates an exception to this rule. It provides that:
(2)
(a) Despite section 65(1)(c), a person may take part in a strike or
lock-out or in any conduct in contemplation or in furtherance
of a
strike or lock-out if the issue in dispute is about any matter dealt
with in sections 12 to 15.
(b)
If the registered trade union has given notice of the proposed strike
in terms of section 64(1) in respect of an issue in dispute
referred
to in paragraph (a), it may not exercise the right to refer the
dispute to arbitration in terms of section 21 for a period
of 12
months from the date of the notice.’
Accordingly,
a trade union or employer still dissatisfied after the failure of the
section 21 conciliation proceedings may opt for
industrial action or
for arbitration. If a union opts for strike action, however, it may
not then refer the matter to arbitration
for a period of 12 months
from the date on which it gives notice of the strike in terms of
section 64(1) of the Act.”
[18]
In this case, the respondents elected to go
on strike. Had they elected to refer the dispute to arbitration, as
the Commissioner
noted, the union may have failed to prove that it is
statutorily entitled to organisational rights at Bidvest. But they
elected
not to. Instead, they elected to go on strike in an effort to
obtain rights and strike an agreement through collective bargaining
and power play. That is a right that every worker has.
[19]
The demand of the workers in this case is
that NUMSA must be allowed to represent them and to exercise the
organisational rights
set out in section 21 of the LRA. That is a
demand in respect of a matter of mutual interest. It is not unlawful.
[20]
In
Mabote
[7]
,
the case on which the Commissioner relied in making his
jurisdictional ruling, this court considered the right of a worker to
be represented by a trade union of his choice. Some of the principles
outlined in that case are also applicable and relevant to
this one.
Given the time constraints, I will quote some of those principles in
full:
“
[13]
The Constitution
[8]
guarantees the right to fair labour practices.
[9]
That right, in turn, includes the right of every worker to join a
trade union; and every trade union has the right to determine
its own
administration.
[14]
Section 233 of the Constitution enjoins a court, when interpreting
legislation, to prefer any reasonable interpretation of
the
legislation that is consistent with international law to any
alternative interpretation that is inconsistent with international
law. And section 1 of the LRA specifies:
“
1.
Purpose of this Act.
—The purpose
of
this Act
is to advance economic development, social justice, labour peace and
the democratisation of the work-place by fulfilling the primary
objects of
this Act
,
which are—
(
a
)
to give effect to and regulate the fundamental rights conferred by
section
27
[10]
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 work-place; and
(iv)
the effective resolution of labour disputes.”
…
[35]
A purposive approach to the interpretation of the LRA is mandated by
section 1, read with section 3(a) of the LRA. The Labour
Appeal Court
has emphasised the link between the purposes of the Act and section
23 of the Constitution, adding that if the LRA
is to achieve its
constitutional goals, courts have to be vigilant to safeguard those
employees who are particularly vulnerable
to exploitation.
[11]
”
[21]
As
the Constitutional Court remarked in
Chirwa
v Transnet Ltd
[12]
,
the objects of the Act:
““
must
inform the interpretive process and the provisions of the LRA must be
read in the light of its objects. Thus where a provision
of the LRA
is capable of more than one plausible interpretation, one which
advances the objects of the LRA and the other which
does not, a court
must prefer the one which will effectuate the primary objects of the
LRA.”
[22]
With
regard to the public international law obligations of the public, the
Constitutional Court noted in
Bader
Bop
[13]
:
“
Although
none of the ILO Conventions specifically referred to mentions the
right to strike, both committees engaged with their supervision
have
asserted that the right to strike is essential to collective
bargaining. The Committees accept that limitations on the right
to
strike for certain categories of workers such as essential services,
and limitations on the procedures to be followed do
not
constitute an infringement of the freedom of association.”
[23]
Section
23(2)(c) of the Constitution guarantees, for
every
worker
,
the right to strike. That right is limited only by the provisions of
section 64 of the LRA. In the case before me, the workers
cited as
respondents have complied with those provisions. They have acquired
the right to strike. That right should not be further
limited by
reading into the provisions of ss 64 and 65(2) a provision that
workers may not strike in pursuit of a demand for organisational
rights for a union that is restricted in its scope by its own
constitution. As the majority of the Constitutional Court noted in
SATAWU
v Moloto NO
,
[14]
“
the
right to strike is protected in the Constitution as a fundamental
right without express limitation. Also, constitutional rights
conferred without express limitation should not be cut down by
reading implicit limitations into them and when legislative
provisions
limit or intrude upon those rights they should be
interpreted in a manner least intrusive of the right, if the text is
reasonably
capable of bearing that meaning. These are general
interpretative principles that are also applicable to the
interpretation of
provisions of the Act,
as explicitly affirmed in section
1(a) of the Act.”
[24]
There
is one further issue. The jurisdictional ruling of the CCMA stands.
Bidvest has not applied to review it. In terms of that
ruling, the
CCMA had jurisdiction and NUMSA had locus standi to refer the
organisational rights dispute to the CCMA. That ruling
remains valid
until it is set aside. As the SCA pointed out in
Oudekraal
[15]
:
“
Until
the administrator’s approval (and thus also the consequences of
the approval) is set aside by a court in proceedings
for judicial
review it exists in fact and it has legal consequences that cannot
simply be overlooked. The proper functioning of
a modern state would
be considerably compromised if all administrative acts could be given
effect to or ignored depending upon
the view the subject takes of the
validity of the act in question. No doubt it is for this reason that
our law has always recognised
that even an unlawful administrative
act is capable of producing legally valid consequences for so long as
the unlawful act is
not set aside.”
[25]
But in any event, the Commissioner’s
ruling in this case is not unlawful. Neither is his issuing of the
certificate stating
that the dispute remains unresolved. And neither
is the consequent action by the respondents to embark on strike
action in terms
of section 64 of the LRA.
[26]
The union may not succeed in obtaining
organisational rights at Bidvest. But the workers are not precluded
from striking in pursuit
of that demand.
Conclusion
[27]
Given the conclusion I have come to, the
applicant has not established a clear right for the relief it seeks
in prayer 2.1. It is
not necessary to consider the other
prerequisites for final relief. As far as the relief sought in
prayers 2.2 and 2.3 of the notice
of motion is concerned, the union
has conceded that the applicant is entitled to it.
[28]
With regard to costs, I take into account
that the union and the individual employees are in the process of
attempting to persuade
the applicant to grant NUMSA organisational
rights. That is what gave rise to the strike action and this
application. The applicant
has been partly successful. In all the
circumstances, it may have a chilling effect on any further attempts
at collective bargaining
between the parties to make a cost order at
this stage. I exercise my discretion in law and fairness, as this
court may do in terms
of section 162 of the LRA, not to order costs.
Order
[29]
I therefore make the following order:
29.1
The application to declare the strike
unprotected is dismissed.
29.2
The respondents are interdicted and
restrained from:
29.2.1
interfering with or obstructing access to
or egress from the applicant’s premises;
29.2.2
committing any acts of violence, damage to
property, intimidation or the like in relation to customers, third
parties and the employees
of the applicant.
29.3
There is no order as to costs.
Steenkamp
J
APPEARANCES
APPLICANT:
D O Pretorius of Fluxmans Inc.
RESPONDENTS: R
Daniels and T Ralehoko of
Cheadle
Thompson & Haysom.
[1]
Act 66 of 1995 (“the LRA”).
[2]
It is recorded as such in the founding affidavit and in the
jurisdictional ruling, although the referral clearly flowed from
a
dispute in terms of ss 21(1) and 21(4).
[3]
[3]
[2013] 10 BLLR 1030
(LC). Leave to appeal in that case was granted
on 7 August 2013. As far as I am aware, it has not yet been argued
before the
Labour Appeal Court.
[4]
My emphasis.
[5]
Cf
Setlogelo
v Setlogelo
1914
AD 221.
[6]
[2002] ZACC 30
;
2003 (3) SA 513
(CC);
[2003]
2 BLLR 103
(CC);
[2003]
2 BCLR 182
(CC)
para
[24].
See
also
Digistics (Pty) Ltd v SATAWU
(2010) 31
ILJ
2896
(LC) para [11].
[7]
NUM
obo Mabote v CCMA & ors
[2013] 10 BLLR 1020 (LC).
[8]
Constitution of the Republic of South Africa, 1996.
[9]
Section 23 of the Constitution.
[10]
The reference to s 27 of the Interim Constitution must be read as a
reference to s 23 of the final Constitution:
Business
SA v COSATU
[1997]
5 BLLR 511
(LAC) at 517 A-B.
[11]
“
Kylie”
v CCMA
[2010]
7 BLLR 705
(LAC) para [41]. See also
NUMSA
v
Bader
Bop (Pty) Ltd
[2002] ZACC 30
;
2003 (3) SA 513
(CC);
[2003] 2 BCLR 182
(CC);
[2003]
2 BLLR 103
(CC)
para [37].
[12]
[2007] ZACC 23
;
2008 (4) SA 367
(CC) para [110].
[13]
Supra
para [32] (footnotes omitted).
[14]
[2012]
12 BLLR 1193
(CC) para [52] (footnotes omitted).
[15]
Oudekraal
Estates (Pty) Ltd v City of Cape Town & ors
2004 (6) SA 622
(SCA) para [26].