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[2015] ZALCJHB 341
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SACCAWU v Sun International (J1951/15) [2015] ZALCJHB 341; (2016) 37 ILJ 215 (LC); [2016] 1 BLLR 97 (LC) (6 October 2015)
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Case Number: J1951/15
DATE: 06 OCTOBER 2015
Reportable
In the matter between:
SACCAWU
.................................................................................................................................
Applicant
And
SUN
INTERNATIONAL
.......................................................................................................
Respondent
Date heard: September 29
2015
Delivered: 6 October 2015
Summary: Application to interdict the
use of replacement labour after the end of a protected strike
and during the continuation
of a protected lock-out; interpretation
of section 74(1)(b) of the LRA; the judgment in Ntimane & others
v Agrinet t/a Vetsak
(Pty) Ltd (1999) 20 ILJ 896 (LC) not followed.
JUDGMENT
RABKIN-NAICKER
J
[1] This
matter came before me as an urgent application and exercise my
discretion to treat it as such. The applicant union initially
sought
a rule
nisi
but indicated that it would instead seek final
relief and referred the court to its founding affidavit containing
the averment
that it has established a clear right to the declaratory
and interdictory orders contained in the Notice of Motion. These are
as
follows:
“
Declaring
that the Respondent’s unlimited duration lock-out is not meant
to counteract the effect of the strike action by
the Applicant’s
members and is, therefore, not in response thereto as envisaged by
the latter part of the provisions of
s 76(1)(b)
of the
Labour
Relations Act, No 66 of 1995
as amended; and
Interdicting
and Restraining the Respondent forthwith from taking into its
employment any person for the purpose of performing the
work of any
employee who is locked out by virtue of a lock-out issued by the
Respondent on 22 September 2015.”
[2] The
factual matrix giving rise to this application is not in dispute. The
union embarked on a limited duration protected strike
and issued a
notice in terms of
Section 64
of the LRA on 21 September 2015. The
notice informed the respondent that the strike would start on 25
September 2015. Further,
it stated that the employees would return to
their work stations from 05H45 on 28 September 2015. Their demands
for wage increases,
minimum working hours and housing subsidy are
contained in the notice.
[3] On 22 September 2015, the Respondent issued a notice the heading
of which reads as follows:
“
NOTIFICATION
OF THE COMMENCEMENT OF A LOCKOUT IN TERMS OF SECTION 64(1)(c) READ
WITH SECTION 76(1)(b)
LABOUR RELATIONS ACT, 66 OF 1995
, AS AMENDED
(the LRA)”
[4] For our purposes the salient part of the Lock-out Notice reads as
follows:
“
4
the lockout will commence after the members of SACCAWU have embarked
on their strike and, for the
purposes of this notification, the
commencement of such lockout will be on 25 September 2015 at 0800;
5
in terms of the lockout, Sun International will exclude its employees
who are members
of SACCWU from its various workplaces for the
purposes of compelling such employees to accept Sun International’s
final offer,
regarding changes in wages and/or terms and conditions
of employment as set out ,in full, in Annexure A attached to this
writing;
and
6
the lockout will continue until such time as Sun International’s
aforesaid final
offer has been accepted and during this period such
employees will not be entitled to any remuneration or benefits.”
[5] The crisp
issue for determination in this matter is whether in terms of
section
74(1)(b)
of the LRA, an employer may continue to use replacement
labour after a strike has ended. The union concedes that the lock-out
in
casu
is protected. However, it submits that an employer’s
right to use replacement labour must be “in response to a
strike”
and once a strike has ended,
section 76(1)(b)
of the
LRA no longer applies.
[6]
Section 76
of the LRA provides a follows:
“
76 Replacement
labour
(1)
An employer may not take into employment any person-
(a)
to continue or maintain production during a protected strike if the
whole or a part of the employer's service has been designated
a
maintenance service; or
(b)
for the purpose of performing the work of any employee who is
locked out, unless the lock-out is in response to a strike.
(2)
For the purpose of this section, 'take into employment' includes
engaging the services of a temporary employment service or
an
independent contractor.”
[7] The
respondent, in lengthy heads of argument, has submitted that on a
proper interpretation of
section 76(1)(b)
, taking into
account the interpretation clause contained in the LRA, that it is
entitled to use replacement labour in a context
in which the
employer reacts to a strike by means of a protected lock-out, even
after the end of such strike. It would be anomalous
it submits, that
an employer is entitled to meet a union’s “attack”
(in the form of strike action) by way of
a “counter-attack”
(in the form of a lock-out), but with its right to an effective
counter-attack being limited by
a factor of the attacker’s
choosing – the duration of the hostilities.
[8] The
respondent thus argues that its right to employ replacement labour
occurs at the stage that the employer acts in reply to
a strike and
endures until the protected lock out ceases. It relies on
Ntimane
& others v Agrinet t/a Vetsak (Pty) Ltd (1999) 20 ILJ 896 (LC),
a
matter on all fours with this one, in which Landman J (as he then
was) had this to say:
‘
[16]
At the outset it was mentioned that it was common cause
between the parties that the lock-out was in response to the
strike.
This being so there could be no valid objection to Agrinet employing
replacements. In the meantime the employees have
abandoned their strike. Does this alter the situation? The union
contends that it does. It is submitted that the lock-out is no
longer
in response to a strike and so the general rule applies and therefore
Agrinet may not utilize replacement labour.
[17]
It is clear that the abandonment of the strike has no
legal effect on the lock-out.
Section 76
interferes with
an employer's common-law and constitutional rights, in the interests
of levelling the playing fields in an economic
battle between
employees and their employer. It grants an exception to the ban on
replacement labour in certain well-defined situations.
The section
does not provide that it is rendered inapplicable when the strike in
response to which the lock-out was instituted
terminates. On the
contrary, it seems, on a reasonable interpretation, that the
nature of the lock-out as a defensive one,
and the concomitant right
to employ replacement labour, accrues at the stage the defensive
lock-out is implemented and endures
until the lock-out ceases.
[18]
I am of the view that the employer's right to continue
making use of the replacement labour is counterbalanced
by the right
afforded by the
Labour Relations Act 1995
to registered trade unions
to picket the employer's premises, inter alia, with the purpose of
discouraging persons from accepting
work.’
[9] The applicant union has referred the court to the
matter of
National Union of Technikon Employees v Technikon SA
(2000) 21 ILJ 1645 (LC)
in which Pillay AJ (as she then was)
stated
obiter
in reference to
section 74(1)(b)
that:
‘
[9]
A literal interpretation of the words, 'in response to' means that
whenever an employer wishes to employ replacement labour,
it can only
qualify to do so if its lock-out
is
at that stage in response to a strike. If the strike ends then so
must the employment of replacement labour. (my emphasis)
[10]
A literal interpretation is incomplete. It does not address the
employment of replacement labour in the context of the entire
Act.
[11]
However,
ss 64(1)
and
76
must be read with
s 5
and one
of the primary objectives of the Act, namely to promote orderly
collective bargaining
(s 1(c)
(i) and (d) (i)). They must also be
interpreted in the context of the constitutional right to strike and
the right of trade unions
and employers to engage in collective
bargaining (s 23(5) of the Constitution (Act 108 of 1996)). Employees
have a constitutional
right to strike. Employers merely have recourse
to a lock-out. The distinction is substantive and not merely
semantic. Furthermore,
it signals a clear intention of the
legislature not to treat strikes and lock-outs symmetrically….
[12]
Furthermore, s 76(1)(b) cannot be available in an offensive lock-out
if there is to be substantive parity
in collective bargaining. It
would have untenable results if it were allowed. An employer could
then make any demand, lock-out
its workforce and employ replacement
labour. It is conceivable that an employer may prefer to run its
operations under such conditions.
The employees will be
disproportionately disadvantaged. The right to picket peacefully is,
with respect, not an adequate countervailing
right. To this extent I
disagree, with respect, with my brother Landman J in
Ntimane &
others v Agrinet t/a Vetsak (Pty) Ltd
(1999) 20 ILJ 896 (LC) at
900I-J. If recourse to replacement labour were available to an
employer during an offensive lock-out,
then collective bargaining
will degenerate to collective begging.”
[10]
The above judgment was overturned on appeal in
Technikon
SA v National Union of Technikon Employees
[1]
,
and the applicant drew the court’s attention to the following
paragraphs of that judgment per Zondo JP (as he then was)
to support
its case:
“
[42]
The rationale behind s 76(1)(b) is that if an employer decides to
institute a lock-out as the aggressor in the fight between
itself and
employees or a union, it may not employ temporary replacement labour.
That is to discourage the resort by employers
to lock-outs. The
rationale is to try and let employers resort to lock-outs only in
those circumstances where they will be prepared
to do without
replacement labour (ie when they are the aggressors) or where they
are forced to in self-defence in the sense that
the lock-out is 'in
response to' a strike by the union and the employees - in other
words, where the union and the employees are
the aggressors.
[43] The policy is
one that also says to unions and employees: Do not lightly resort to
a strike when a dispute has
arisen because,
in the absence of a
strike, the employer may not employ replacement labour even if it
institutes a lock-out but, if you strike,
the employer will be able
to employ replacement labour - with or without a lock-out.
The
sum total of all this is that the policy is to encourage parties to
disputes to try to reach agreement on their disputes and
a strike or
lock-out should be the last resort, when all reasonable attempts to
reach agreement have failed. (my emphasis)
[11] The LAC was not called
upon to deal directly with the issue before me. In the result, I must
decide whether I agree
with the decision in
Agrinet
that a “reasonable interpretation” of section
76(1)(b) is that where the nature of the lock-out is a defensive
one,
the concomitant right to employ replacement labour, accrues at the
stage the defensive lock-out is implemented and endures
until the
lock-out ceases.
[12]
In interpreting section 76(1)(b), I note that the proper approach to
the interpretation of statutes was recently
repeated by the Supreme
Court of Appeal in
Natal Joint Municipal
Pension Fund v Endumeni Municipality
.
[2]
Wallis JA, writing for the court, explained:
'[18]
. . . The present state of the law can be expressed as
follows: Interpretation is the process of attributing
meaning to the words used in a document, be it legislation, some
other statutory instrument, or contract, having regard to the
context
provided by reading the particular provision or provisions in the
light of the document as a whole and the circumstances
attendant upon
its coming into existence. Whatever the nature of the document,
consideration must be given to the language used
in the light of the
ordinary rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which
it is directed and
the material known to those responsible for its production. Where
more than one meaning is possible each possibility
must be weighed in
the light of all these factors. The process is objective, not
subjective. A sensible meaning is to be preferred
to one that leads
to insensible or unbusinesslike results or undermines the apparent
purpose of the document. Judges must be alert
to, and guard against,
the temptation to substitute what they regard as reasonable, sensible
or businesslike for the words actually
used. To do so in regard to a
statute or statutory instrument is to cross the divide between
interpretation and legislation;….The
inevitable point of
departure is the language of the provision itself, read in context
and having regard to the purpose of the
provision and the background
to the preparation and production of the document.'
Evaluation
[13]
Subsection (1)(b) of Section 74 of the LRA is one of the
exceptions to the prohibition of the use of replacement
labour by an
employer in terms of the provision. No replacement labour can be used
by an employer where it initiates a lock-out
in terms of the LRA, but
the exception provides that it may do so “
in
response to a strike”
. The plain
meaning of ‘
in response to’
is ‘
in reply or reaction to”
[3]
.
However, for our purposes it is necessary to determine whether the
phrase should be read to mean ‘whether the strike has
ceased or
not.” Or as Landman J put it, whether given the nature of the
lock-out as a defensive one, the ‘concomitant
right’ to
employ replacement labour, accrues at the stage the defensive
lock-out is implemented, and endures until the lock-out
ceases. The
question to answer is whether the exception to the prohibition in
section 74(1)(b) is instead to be given the restrictive
interpretation the applicant seeks.
[14] The interpretation clause contained in the LRA reads as follows:
“
3
Interpretation of this Act
Any
person applying this Act must interpret its provisions-
(a)
to give effect to its primary objects;
(b)
in compliance with the Constitution; and
(c)
in compliance with the public international law obligations of the
Republic.”
[15] The primary objects of the LRA are contained in section 1 as
follows:
‘
1
Purpose of this Act
The
purpose of this Act is to advance economic development, social
justice, labour peace and the democratisation of the workplace
by
fulfilling the primary objects of this Act, which are-
(a)
to give effect to and regulate the fundamental rights conferred by
section 23 of the Constitution of the Republic of South Africa,
1996;
(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.’
[16] It
is important when taking into account the imperative laid out by the
above sections of the LRA to give effect to the
Constitution
(and section 23 thereof in particular), to remind ourselves of what
was said in to the
Certification
judgment
[4]
where the Constitutional Court stated:
'A
related argument was that the principle of equality requires that, if
the right to strike is included in the NT, so should the
right to
lock out be included.
This
argument is based on the proposition that the right of employers to
lock out is the necessary equivalent of the right of workers
to
strike and that therefore, in order to treat workers and employers
equally, both should be recognised in the NT. That proposition
cannot
be accepted.
Collective bargaining is based on the recognition of the fact that
employers enjoy greater social and economic power than individual
workers. Workers therefore need to act in concert to provide them
collectively with sufficient power to bargain effectively with
employers. Workers exercise collective power primarily through the
mechanism of strike action. In theory, employers, on the other
hand,
may exercise power against workers through a range of weapons,
such as dismissal, the employment of alternative
or
replacement labour, the unilateral implementation of new terms and
conditions of employment, and the exclusion of workers from
the
workplace (the last of these being generally called a lockout). The
importance of the right to strike for workers has led to
it being far
more frequently entrenched in constitutions as a fundamental right
than is the right to lock out. The argument
that it is
necessary in order to maintain equality to entrench the right to lock
out once the right to strike has been included,
cannot be sustained,
because the right to strike and the right to lock out are not always
and necessarily equivalent.'
[5]
(my emphasis)
[17]
The constitutionally protected right to strike is not equivalent to
the statutory right to lock-out as provided by the LRA.
This
principle must be borne in mind in approaching the interpretation of
section 76(1)(b). The interpretation of that provision
should not
lend itself to a limitation of the right to strike, bearing in mind
that there are no internal limitations of that right
in the
Constitution
[6]
.
In addition, I take cognisance of the ILO Committee of Experts’
considerations in reference to the Convention of the Right
to
Organise and Collective Bargaining Convention (no 98) of 1949 which
are reported as follows:
“
The
Committee considers that if the right to strike is to be effectively
guaranteed, workers who participate in a lawful strike
should be able
to return to work once the strike has ended and the fact of making
their return to work subject to certain time
limits or the consent of
the employer is an obstacle to the effective exercise of this
right”
[7]
[18] In
SATAWU and Others
(supra), the Constitutional Court stated:
‘
[44]
The right to strike is protected as a fundamental right in the
Constitution without any express limitation. 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 restrictive of the right if the text
is
reasonably capable of bearing that meaning. ‘
[19] Given all of the
above, I have decided not to follow the
Agrinet
judgment. I find that the interpretation to be accorded to section
74(1)(b) of the LRA is that the statutory right of an employer
to
hire replacement labour is restricted to the period during which a
protected strike pertains, and not after it has ceased. The
requisites for a final interdict are settled law
[8]
.
The applicant must establish a clear right; an injury committed or
reasonably apprehended; and the absence of protection by any
other
ordinary remedy.
[20] Given my interpretation of section 74(1)(b) the
applicant has established a clear right to the interdictory relief it
seeks.
On the basis of that analysis, I have found that the
applicants’ constitutional right to strike is being infringed
as a result.
Given that I have found that the stance taken by the
respondent is in contravention of the provisions of LRA and is in
violation
of a constitutional right, I do not find that a
satisfactory alternative remedy exists for what would in effect be a
claim
for constitutional damages. Taking into account my
analysis above, a declarator is not warranted since it would not
serve
any purpose.
[21] Both parties asked for costs should they be
successful in the application. In all the circumstances I make the
following order:
Order
1. The
respondent is interdicted forthwith from utilising replacement labour
for the purpose of performing the work of any employees
who are
locked out by virtue of the lock-out declared by the Respondent on 22
September 2015.”
2. The respondent is to pay the costs of this
application.
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicant: D.Z. Kela instructed by Nduumiso Voyi Inc
Respondent:
D.R. B Van Zyl instructed by Van Zyl Rudd Inc
[1]
(2001) 22 ILJ 427 (LAC)
[2]
2012 (4) SA 593 (SCA)
[3]
The New Shorter Oxford Dictionary, Volume 2 ,
1993
[4]
Ex parte Chairperson of the Constitutional
Assembly: In re Certification of the Constitution of the Republic of
South Africa,
1996 1996 (4) SA 744
(CC)
[5]
At paragraph 66
[6]
Satawu and Others v Moloto & Others and
Another NNO
2012 (6) SA 249
(CC) at
paragraph 44
[7]
General Survey on the fundamental conventions
concerning rights at work in light of the ILO Declaration on Social
Justice for
a Fair Globalisation, Report of Experts ILO Conference
101 Session, 2012, at paragraph161
[8]
Setlogelo v Setlogelo
1914 AD 221
at 227