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[2015] ZALCJHB 421
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National Union of Food Beverage Wine Spirits and Allied Workers (NUFBWSAW) and Others v Universal Product Network (Pty) Ltd; In re: Universal Product Network (Pty) Ltd v National Union of Food Beverage Wine Spirits and Allied Workers (NUFBWSAW) and Others (J2182/2015) [2015] ZALCJHB 421; (2016) 37 ILJ 476 (LC); [2016] 4 BLLR 408 (LC) (9 November 2015)
REPUBLIC
OF SOUTH AFRICA
Reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: J 2182/2015
In
the matter between:
NATIONAL
UNION OF FOOD BEVERAGE
WINE
SPIRITS AND ALLIED WORKERS (NUFBWSAW)
First Applicant
THE
PESONS WHOSE NAMES ARE LISTED
IN
ANNEXURE “A” TO THE NOTICE OF MOTION
Second and Further Applicants
and
UNIVERSAL PRODUCT NETWORK (PTY)
LTD
Respondent
In
re
:
UNIVERSAL
PRODUCT NEtWORK (PTY)
lTD
Applicant
NATIONAL
UNION OF FOOD BEVERAGE
WINE
SPIRITS AND ALLIED WORKERS
First
Respondent
THE
PERSONS WHOSE NAMES ARE LISTED IN
ANNEXURE
“A” TO THE NOTICE OF MOTION Second
to Further Respondents
Application argued: 6
November 2015
Judgment delivered:
9 November 2015
Edited:
10 November 2015
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an application in terms of Rule 8 (10) to anticipate the
return day of a rule
nisi
granted by Nkuta-Nkontwana AJ on 30
October 2015. The order reads as follows:
IT
IS ORDERED THAT:
1.
The
Applicant’s failure to comply with the time limits referred to
in Section 68(2) of the Labour Relations Act, No. 66 of
1995 (as
amended) (“the Act”), is hereby condoned, and that the
matter is dealt with as one of urgency in terms of
Rule 8 of the
Rules for the conduct of proceedings in the Labour Court.
2.
That
a
Rule
Nisi
is hereby issued, calling upon the Respondents to show cause, if any,
to this Honourable Court at
10H00
on
11
December 2015
,
or so soon thereafter as the matter may be heard, why an Order should
not be granted in the following terms:
2.1
It
is hereby declared that the current strike by the First, Second and
Further Respondents (“the individual Respondents”
as
identified in Annexure “A”) in pursuance of the strike
notice annexed as annexure “B” to the founding
affidavit
constitutes an unprotected strike as contemplated by the
Labour
Relations Act, No. 66 of 1995
;
2.2
It
is hereby declared that by virtue of the threats of violence and the
political nature of the demands associated with the present
strike
action, the actions of the Respondents no longer constitute lawful
strike action in pursuance of a demand / demands of mutual
interest,
and is on that basis also unprotected;
2.3
The
First and/or Second to Respondents are hereby interdicted from
participating in any and all strike action, including any
conduct in furtherance of any strike action, in pursuance of the
strike notice annexed as annexure “B” to the founding
affidavit;
2.4
The
sheriff is authorised to enlist the assistance of the SAPS -
Olivenhoutbosch to do all such things as may be necessary to comply
with this Order and to keep the peace;
2.5
The
First, Second to Further Respondents are directed to pay the costs of
this application, jointly and severally, the one paying
the other to
be absolved.
2.6
Further
and/or alternative relief.
3.
Pending
the outcome of this application paragraph 2.3 above operates as an
interim order with immediate effect.
4.
Service
of this order be effected as follows:
4.1
upon the First Respondent by the Applicant’s attorney sending a
copy of the order to the First Respondent’s
facsimile at 011
8331503 and the sheriff of this Honourable Court serving a copy at
the First Respondent’s premises at 4th
Floor, 1 De Villiers
Street, Johannesburg;
4.2
upon the Second to Further Respondents by copies of this Order being
distributed to so many
of the Second to Further Respondents
that are present at the Applicant’s workplace and for a copy to
be affixed to the Applicant’s
gate, and by the Sheriff of this
Honourable Court reading out the order to those individual
Respondents gathered at the Applicant’s
workplace or outside,
every morning until such time as the individual Respondents’
comply with the order.
[2]
For convenience, I refer to the parties as they are cited in the
application that served before the court on 30 October 2015,
and to
the first respondent in those proceedings as ‘the union’.
The applicant sought the interim order on two grounds.
The first is
that the strike notice issued by the union on 6 October 2015 is
invalid on account of its failure properly to articulate
the demands
that the applicant is required to meet; the second is that the strike
has in any event ceased to be protected on account
of violence
committed by the striking workers and the political nature of their
demands. It is not clear on what basis the interim
order was granted;
no reasons have been furnished for it.
Anticipation
of the return date
[3]
Rule 8
(10) of the Rules of this court provides:
Unless
otherwise ordered a respondent may anticipate the return day of an
interim interdict on not less than 48 hours’ notice
to the
applicant and to the registrar.
[4]
The interim order in question does not preclude anticipation of the
return day. The applicant opposes the anticipation application
on the
basis that the respondents have failed to comply with the provisions
of
Rule 8
(10), that it is prejudiced in relation to its right to
reply and that the respondents have failed to establish special
circumstances
justifying anticipation of the return day.
[5]
It is not disputed that the applicant was informed by email at 21h55
on Saturday, 31 October 2015 of the intention to anticipate
the rule
nisi
at 10h00 on Tuesday 3 November 2015. It is not clear when
the application was served on the registrar as required by the Rule,
or
whether 48 hours’ notice was given to both the applicant and
the registrar. Be that as it may, on 3 November 2015 the application
was postponed, by agreement, to Friday 6 November 2015. In these
circumstances, whatever prejudice there may have been to the
applicant regarding the short service of the application to
anticipate and its right to file a replying affidavit has been cured.
The only relevance of the first two points raised by the applicant
relates to costs, an issue to which I shall return in due course.
[6]
The primary contention raised by the applicant in its opposition to
the anticipation application is that the respondents have
failed to
make out any additional facts or special circumstances as to why the
return day should be anticipated. The respondents,
on the other hand,
contend that the application raises important and unique legal
issues, that the interim order includes a declarator
which is a legal
nullity in interim proceedings and that contrary to what the
applicant submits, the respondents do not seek, in
effect, to appeal
the interim order.
[7]
The applicant sought an interim order declaring the strike to be
unprotected. The fact that it did is no doubt due to a practice
in
this court where applicants seek interim orders where the relief
sought is not truly interim, i.e. it is not sought pending
the
outcome of other proceedings. (For example, an application to stay a
writ of execution pending the outcome of an application
to review and
set aside an arbitration award.) When an applicant seeks to
have a strike or lock-out declared unprotected,
little purpose is
served by the granting of an interim order when all of the facts are
before the court and the matter has been
fully argued. I suspect that
the commonly employed practice of seeking interim relief in these
circumstances has more to do with
the lower threshold faced by an
applicant (a right
prima facie
established as opposed to a
clear right) and the prospect of a return day six or eight weeks
later (which is the norm, certainly
in Johannesburg), by which time
any final order is usually academic.
[8]
The granting of interim relief in these circumstances inevitably
results in this court becoming a vehicle through which the
power play
between the parties to industrial action is continued by another
means – an interim interdict against a strike
or lock-out, with
a return day weeks away, will in most instances put an end to the
industrial action on the applicant party’s
terms. Inevitably,
the order interferes with the power dynamics at play and more often
than not, its effect upon the exercise of
a constitutional right is
profound and the respondent’s lack of alternative remedies
acute.
[9]
Of course there are circumstances where interim orders are
appropriate, especially where despite proper service the respondent
party is not present in court, or where some other imbalance or
injustice would result from the granting of a final order. I am
not
so naïve as to think that parties to industrial action will seek
to use the law to their advantage but this court, as
an institution,
should be wary of being drawn inappropriately into the power play and
being used by one party to gain a strategic
advantage at the expense
of the other. This is perhaps best accomplished by requiring parties
to applications to declare strikes
or lockouts unprotected as far as
possible to file a full set of papers thus enabling the court to
treat the application as one
for final relief or, where interim
relief is appropriate, by fixing return days within a few days of the
granting of the interim
order.
[10]
The concerns that I have expressed are not new. As far back as
1988, Prof Kate O’Regan criticised the granting
of interdicts
in the context of industrial action:
Firstly,
because the ordinary principles of civil procedure, ensuring that
both parties have a full opportunity to present the case
prior to the
issue of an order, may be waived by the judge in the injunction
cases; and secondly, because the substantive law relevant
to labour
injunctions favours employers and gives little weight to the
legitimacy of strike action in the collective-bargaining
process.
(See
O’Regan C ‘Interdicts restraining strike action –
implications of the Labour Amendment Act 83 of 1988’
(1988) 9
ILJ
959.)
[11]
Prof Alan Rycroft has observed that the interdict process gives
applicants, usually employers, a tactical advantage because
the
likelihood of a full trial in most instances is small, and the
employer’s widely expressed assertions of ‘interference
with business’ and ‘extreme violence’ become
prima
facie
evidence (see Rycroft A ‘What can be done about
strike-related violence?’ (2014) 30 (2)
International
Journal of Comparative Labour Law and Industrial Relations
199
-216).
[12]
In the present instance, when the interim order was granted on 30
October 2015, the court had before it the founding affidavit,
an
answering affidavit and a number of supplementary affidavits. The
applicant’s representative elected to argue the application
without a replying affidavit. The legal issues, it would seem, were
comprehensively argued. The interim relief sought was the same
as the
final relief that the applicant indicated it would seek on the return
day.
[13]
In my view, the application ought to have been treated as one for
final relief. The fact of the matter is that it wasn’t.
In
these circumstances, the respondents are entitled to anticipate the
return day without establishing any additional facts on
which the
order should be reconsidered. It is sufficient that the test for
final relief is different, and that the respondents
are entitled to
have the merits of the applicant’s claim reconsidered and
adjudicated on that basis as opposed to the lower
threshold
applicable to the granting of interim relief. To hold otherwise would
ignore the effect of the interim order on a fundamental
constitutional right in the form of the right to strike and the
respondents’ acute lack of alternative remedies.
The
main application
Factual
background
[14]
The applicant fails to set out in the founding affidavit the full
factual context in which the order declaring the strike unprotected
is sought. Much of what follows is drawn from the answering
affidavit, but it is largely a matter of common cause.
[15]
On 15 June 2015, the union addressed a letter to the applicant
setting out a comprehensive list of demands relating to the
terms and
conditions of its members employment. On 25 July 2015, the union
referred a dispute to the CCMA, contending that the
applicant was
refusing to bargain with it in respect of these demands. The dispute
was conciliated on 12 August 2015. The dispute
on the refusal to
bargain was settled. A settlement agreement was concluded
between the parties, who agreed to meet on 24
and 25 August 2015 to
negotiate wages and terms and conditions of employment. On 24 August
2015, a meeting was held but no agreement
reached. On the same date,
and the union referred a dispute to the CCMA, the referral form
reflecting that the dispute was one
about wages. The desired outcome
was reflected as one that required the applicant to meet the union’s
demand in respect of
wage negotiations. That dispute was set down for
conciliation on 10 September 2015. The parties could not reach
agreement. The
conciliating commissioner urged the parties to meet
once more which they did on 18 September 2015. Again, the parties
failed to
reach agreement. Following a request for a further meeting,
the applicant informed the union that a meeting could only take place
to sign acceptance of the applicant’s offer of wages and terms
and conditions of service.
[16]
On 6 October 2015, the union issued a notice of its intention to
strike. The notice indicated that the strike was in support
of
demands negotiated on 24 August and 18 September. The full text of
the strike notice reads as follows:
Following
the negotiations held on the 24th August and 18
th
of
September 2015 between the union and company and their failure to
reach an agreement. The Union members hereby seek to exercise
its
rights to embark on a protected strike in terms of section 64
sub-section 1 paragraph (a) (ii).
As
the employer, you are therefore given notice of the Union’s
members at your Midrand Distribution centre that will be embarking
a
protected strike. The notice will run from today the 7th day of
October 2015 to the 12
th
day of October 2015. This then
implies that the morning shift of Monday the 12
th
of
October 2015 at around 0600 am will commence with the strike action
and the remain shifts will follow.
The
union remains committed for the resolution of same provided
management would bring their revised position meaningfully (sic).
[17]
After the strike notice was issued, the applicant and the union
agreed on picketing rules. The strike commenced on 12 October
2015.
[18]
The applicant later alleged that the striking employees had failed to
comply with the picketing rules and had committed various
acts of
strike-related misconduct. On 19 October 2015, this court granted an
order under case number J 2111/15 in terms of which
the picketing
rules were effectively enforced and misconduct interdicted. The union
avers that the application was set down for
14h00 on that day, and
that the application was served on the union after that time. By the
time the union’s attorney attended
court, the interim order had
already been granted. On the applicant’s version, the
application was served at 13h00 by email
and an unsigned copy handed
to the union’s shop stewards at 12h45. Be that as it may, the
applicant subsequently filed an
application to hold the union and two
of its unions’ officials in contempt of the order granted on 19
October. That application
remains pending.
[19]
It is not in dispute that during the course of the strike, banners
were displayed criticising the applicant’s holding
company,
Woolworths, for doing business with Israel and that Palestinian flags
were waved. It is also not disputed that during
the course of the
strike, members of a political party, the Economic Freedom Fighters
(EFF), became involved in strike in that
on 23 October 2015,
officials and members of the EFF visited the applicant’s
premises demanding to negotiate with the applicant’s
management. On the same evening, four EFF members travelling in two
cars addressed the individual respondents present stating that
they
should not give up hope or surrender until their demands were met,
that they should intensify the strike by targeting trucks
doing
deliveries and entering and leaving the applicants gates, that the
EFF would provide legal assistance and would publicise
the strike..
The applicant submits that the EFF is seeking to use political power
and threats of violence and that the strike ceased
to be lawful on
account of the associated demands made in service of the wider
political goals of the EFF. It goes so far as to
suggest, consequent
on a meeting between four EFF members and a member of the applicant’s
management that the union’s
members have aligned themselves
with political demands and objectives and in particular, that the
individual respondents are pursuing
political demands in the course
of an EFF-led action.
[20]
The union admits that banners of the sort described by the applicant
were displayed but denies having organised that display,
and denies
having sanction the use of the union’s logo on the banners. The
union further avers that it has never demanded
that Woolworths break
its ties with Israel and asserts that those organisations who have
taken this position have shown solidarity
with the strikers’
demands. Similarly, the union states that it is not in alliance or in
partnership with the EFF, and has
no control over the EFF and its
programs. While some of the union’s members may well be members
of the EFF and while the
EFF may have demonstrated solidarity with
the striking workers, these are not matters that have been sanctioned
by the union.
[21]
The background to the present dispute is best captured by an exchange
of correspondence between the parties’ respective
attorneys. On
26 October 2015, the applicant’s attorney wrote to the
respondent’s attorney in the following terms:
We
are instructed by Universal Product Network (Pty) Ltd.
We
refer to your clients notice of strike dated 6 October 2015 and a
noted that such notices defective in that your client fails
to state
what the issues in dispute/demands are and accordingly the strike
presently underway is unprotected…
Furthermore,
notwithstanding the defective nature of the strike notice, it has
become apparent that the current strike (which is
unprotected) is in
any event not in pursuit of matters of mutual interest, but it is in
pursuit of political and violent goals.
Subsequently it has become
apparent with reference to the slogans and signs of your members,
that your clients demand that our
clients cease ‘trading with
Israel’.
Furthermore
the economic freedom Fighters (‘EFF’) have become your
clients partner in the strike in that:
1)
the
EFF together with your clients members have demanded entry to our
clients premises to negotiate with management;
2)
the
EFF has threatened to ‘bring the dc down’;
3)
the
EFF have indicated that they are ‘not afraid to die’ to
support your union and its members;
4)
the
EFF threatened to bring the marchers in respect of the EFF financial
sector strike down to our clients distribution centre;
5)
the
EFF are threatened in presence of your members to ‘attack
Woolworth stores’.
It
is apparent that your union and its members have allied themselves
with the EFF and the demands made above and in the joint conduct
witnessed over the last five days.
It
is apparent that our client now faces political demands and threats
of violence including attacks on their stores (which are
workplaces
outside the ambit of this particular dispute). Accordingly your
members conduct no longer constitute a protected strike
action the
objective of the strike is now become one in pursuit of violence and
political issues are not in settlement of legislative
demands of
mutual interest …
[22]
On 27 October 2015 the union’s attorneys wrote to the
applicant’s attorneys recording amongst other things the
following instructions:
…
4.
On behalf of our client instructed by its general secretary to inform
you, as we hereby do, as follows:
4.1
The strike is protected. Our client will resist any attempt to
declare the strike unprotected
and you and your client are called
upon to deliver any application is threatened in your letter upon our
client and asked timelessly
so that our client can deal with the
application properly. A client will object most strenuously to any
further attempt on your
client’s part to rush through an
application as it did with the interim interdict obtained on 19
October 2015.
4.2
The strike concerns demands relating to wages and conditions of
employment. This has always
been the case and remains the case.
4.3
The strike notice is not defective.
4.4
The union is not aligned to any political party and that includes the
economic freedom Fighters
(EFF). Members of the union are free to
belong to any political party of their choice, as is guaranteed in
the constitution. The
union believes that its members belong to
various political parties and that some do not belong to any
political party.
4.5
That the EFF has demonstrated solidarity with the strikers and added
its voice of protest
against your client and Woolworths (Pty) Ltd on
other matters is nothing to do with the union. The union has not
aligned itself
with the EFF’s demands. Individual members may
have, but this is not sanctioned by the union and does not represent
the union’s
demand in relation to the strike. It certainly does
not transform the dispute relating to the strike, which are about
wages and
conditions of employment.
4.6
The EFF’s actions cannot prevent the union and its members from
exercising their constitutional
right to strike and to picket
peacefully.
4.7
The union has communicated to the EFF and a copy of this letter will
be sent to in due course.
4.8
The union denies that it strikers in support of political or violent
objectives.
4.8
The union is not aware of any violence associated with the strike,
although vague allegations
to this effect are bandied about by your
client and Woolworths (Pty Ltd from time to time. Insofar as any may
have occurred, which
the union is not aware of, the union condemns
the violence and disassociate itself from it…
4.10
The union has no knowledge of any threats relating to attacks on
stores and condemns any such threats.
5.
Our client calls upon your client to return to the negotiating table
for genuine
negotiations about the issue in dispute – wages and
conditions of employment – and to stop wasting all of the
parties’
energies on matters such as interdict applications,
contempt applications, the characters and suchlike. We reiterate our
client’s
suggestion that negotiations recommence in earnest
about the issues in dispute. Our client suggests that these
negotiations be
facilitated by CCMA mediator or another mutually
agreed upon private mediator…
[
23]
On the same day, the union addressed a letter to the Economic Freedom
Fighters. The relevant part of the letter reads as follows:
While
the union and its members appreciate solidarity from members of the
community and other organisations, the union is most concerned
that
the EFF and its members and supporters are encouraging the union’s
members to breach the court order, making them vulnerable
to
conviction for contempt of court.
In
addition, as a result of the EFF’s intervention, the Universal
Product Network (Pty) Ltd has threatened to have the strike
declared
unprotected because the strike is now allegedly in support of
political demands relating to, for example, Woolworths dealings
with
Israel.
We
are obviously not able to prevent the EFF and its members from
protesting in the manner they see fit and we are not able to prevent
the EFF from raising other issues, and neither would the union wish
to prevent the EFF from exercising its constitutional rights
of free
assembly, free speech and the right to peacefully protest. However,
we reiterate that the union strike is about wages and
conditions of
employment and we wish to prevail upon the EFF and its members not to
encourage members to breach the court order
or any other law.
Although
some of our members may be members of the EFF and others may be
members of other political parties, we place on record
that the union
is not aligned to any political party I trust that the EFF will not
act in a manner that is detrimental to the union,
its members and its
protected and legitimate strike for increase wages and better
conditions for its members. I also trust that
the EFF will consider
and heed the requests made herein.
Applicable
legal principles
[24]
Section 64 of the LRA establishes a number of procedural constraints
on the exercise of the right to strike. Section 64 (1)
(b) reads as
follows:
Every
employee has the right to strike and every employer has the right to
lock out if –
(b)
in the case of a proposed strike, at least 48 hours’ notice of
the commencement of the strike, in writing, has been given
to the
employer…
[25]
The legal principles that apply to the minimum content of a notice of
intention to strike are fairly well-established. In the
present
instance, what is disputed is the sufficiency of the content of the
notice in relation to the demands made by the union.
In
SA Airways
(Pty) Ltd v SATAWU
[2010] 3 BLLR 321
(LC), this court said the
following:
The
same purpose of approach adopted by the Labour appeal Court requires
that a strike notice should sufficiently clearly articulate
the
union’s demands so as to place the employee in a position where
it can take an informed decision to resist or exceed
to those
demands. In other words, the employer must be in a position to know
with some degree of precision which demands a union
and its members
intend pursuing through strike action, and what is required of it to
meet those demands. Some of the issues giving
rise to the intended
strike, as they articulated in the strike notice, are clear. The
issue of the disciplinary action demanded
in respect of Venter, as
well as the demand in relation to retention bonuses, are relatively
clearly expressed, and to require
more would be to adopt an
unnecessarily and unjustifiably technical approach. The same cannot
be said however in respect of the
reference to ‘demands for
which certificate of non-resolution was issued on 21 September 2009.’
This is particularly
so in a case such as the present, where the
referral to conciliation was made, it would seem, in respect of
unspecified in various
grievances and petitions lodged over a period
of months preceding the notice. Any employer faced with a strike
notice issued in
such imprecise terms would be hard pressed to know
which element of what grievance and petition it was being asked to
resist or
concede.
[26]
Mr Orr, who appeared on behalf of the respondent’s, submitted
that the Constitutional Court’s judgment in
South African
Transport and Allied Workers Union (SATAWU) and others v Moloto NO
and another
[2012]12 BLLR 1193 (CC) suggested that no more was
required by the LRA than that the strike notice state the date on
which the
intended strike would commence. The
SATAWU
case
concerned a strike notice issued by a majority union at a workplace
and specifically, whether it was necessary for non-union
members
employed in the bargaining unit for which the union was the
recognised representative were required to issue their own
notices.
Put another way, the issue before the court was whether every
employee who intends to embark on a strike must notify the
employer
that intention personally, or through a representative (for example,
a trade union), for a strike to be protected. In
the course of its
judgment, the court emphasised that the right to strike is protected
in the constitution as a fundamental right
without express limitation
and that constitutional rights conferred without express limitation
should not be cut down by reading
implicit limitations into them (see
paragraph 53 of the judgment). The court observed that the provisions
of s 64 (1) (b) of the
LRA do not extend the requirements of the
content of a notice beyond the simple an express requirement of when
the strike will
start, to an interpretation that requires fuller
disclosure. The crisp issue was which interpretation of s 64 (1) (b)
was better
aligned with the spirit, purpose and objects of the Bill
of Rights – an interpretation that required only one notice
rather
than separate notices by on behalf of each employee intending
to strike. At paragraph 75 of the judgment, the court said the
following:
In
our view there is really 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.
The
majority of the court went on to find that the union, which had
represented non-members in the bargaining unit in the course
of wage
negotiations and in the referral for conciliation, was entitled to
give a single notice of intention to strike.
[27]
The paragraph 91 of the judgment, the Constitutional Court went on to
say the following:
Provided
that the strike notice sets out to the issues over which the
employees will go on strike with reasonable clarity
,
the cases show that orderly collective-bargaining and the right to
strike, in its proper sense as a counterbalance to the greater
social
and economic bar of employers, have been considered to be well served
by the acceptance of a single strike notice (emphasis
added).
[28]
In short, the approach adopted by this court in relation to the
content of a strike notice and in particular, the requirement
that
the union articulate the issue over which employees will go on
strike, does not offend an interpretation of s 64 (1)(b) that
is
aligned to the spirit, purport and objects of the Bill of Rights.
However, this court must be cautious when reading in requirements
to
s 64 (1) (b) that are not expressly stated – an interpretation
less intrusive of the right to strike must be preferred.
[29]
Turning next to the applicant’s contention that the nature of
the strikers changed to an extent that the union no longer
pursues
the settlement of legitimate demands relating to matters of mutual
interest but pursues violence and political matters,
it should be
recognised at the outset that this court’s intervention is
reactive and thus limited. The law has its limits.
What is obviously
required is a more holistic approach and a greater understanding of
the factors that contribute to mob violence,
together with a
pre-emptive process and measures that are supportive of good faith
negotiation (see Rycroft
supra
).
[30]
Be that as it may, this court has suggested on a number of occasions
that violent and unruly conduct is the antithesis of the
aim of a
strike, which is to persuade the employer through the peaceful
withholding of work to agree to the union’s demands.
In
Tsogo Sun Casinos (Pty) Ltd t/a Montecasino v Fututre of South Africa
Workers’ Union
(2012) 33
ILJ
998 (LC), the court
said the following:
[13]
This court will always intervene to protect both the right to strike,
and the right to peaceful
picketing. This is an integral part of the
court’s mandate, conferred by the Constitution and LRA. But the
exercise of the
right to strike is sullied and ultimately eclipsed
when those who purport to exercise it engage in acts of gratuitous
violence
in order to achieve their ends. When there are any of the
mob displaces the peaceful exercise of economic pressure as the means
to the end of the resolution of labour dispute, one must question
whether a strike continues to serve its purpose and thus whether
it
continues to enjoy a protected status.
[31]
Insofar as the applicant’s claim has as its basis the
contention that what may have been a protected strike has transmuted
to an unprotected strike, the Labour Appeal Court has held that such
a transmutation would only occur if it is shown that the employees
had used the protected strike as leverage to achieve objectives other
than those in respect of which strike action could legitimately
be
taken. (See
Edelweiss Glass & Aluminium (Pty) Ltd v National
Union of Metalworkers of SA & others
(2001) 32
ILJ
2939 (LAC), at paragraph 52.)
[32]
The proper approach, it would seem to me, is that proposed by Prof
Rycroft see Rycroft
supra
) who acknowledges the practical
difficulties that clearly arise, not least the determination of how
much violence will misconduct
would have to have occurred before the
court intervenes. He suggests that the court ask the following
question ‘Has
misconduct taken place to an extent that the
strike no longer promotes functional collective-bargaining, and is
therefore no longer
deserving of its protected status’? In
answering this question, Prof Rycroft proposes that the court weigh
the levels of
violence and efforts by the union concerned to curb it.
He explains that this is not an anti-union proposal; rather, he
imagines
a balancing counter-measure allowing unions to launch a
similar court application for an order granting protected status to
an
otherwise unlawful strike if it is in response to unjustified
conduct by the employer (see Rycroft
supra
fn 43). In my
view, this is an eminently sensible approach to adopt.
Analysis
[33]
I deal first with the issue of the strike notice. The issue, crisply
stated, is whether the terms of the strike notice were
sufficient to
comply with s 64 (1) (b) insofar as the demands made by the union of
the applicant are concerned. The principle,
as reflected above, is
that a strike notice must place the employer in a position reasonably
to know which demands a union and
its members intend to pursue
through strike action and that it must therefore meet to avoid the
prospect of industrial action.
[34]
Each case must be determined on its own facts. In the present
instance, it is not disputed that a comprehensive list of demands
relating to the wages and other terms and conditions of employment of
union members was tabled by the union on 15 June 2015. The
settlement
agreement reached between the parties on 12 August 2015 specifically
records that the parties agreed to meet and negotiate
wages and
substantive issues. These can only be the issues raised in the
union’s initial list of demands. The referral to
the CCMA when
agreement could not be reached on 24 August reflects the unions
desired outcome as one in which the applicant exceeds
to the workers’
demands in respect of wage negotiations. A further meeting on 18
September 2015 failed to resolve the dispute
between the parties.
Subsequently, in response to a request for a date to continue
negotiations, the applicant assumed the stance
that it was willing to
agree to a date only if the union accepted the applicant’s
wages and conditions of service. In the
circumstances, the only
reasonable conclusion to be drawn is that the applicant was at all
times fully aware of nature and extent
of the union’s demands
and that this remained the position as at the date on which the
strike notice was issued. This conclusion
is fortified by the fact
that the strike had endured for more two weeks without the validity
of the strike notice being attacked.
[35]
Mr. Cook, who appeared for the applicant, made much of the
distinction between wages and other substantive issues. What
this
submission ignores is that the industrial relations term of art ‘wage
negotiations’ almost inevitably extends
not only to
negotiations concerning actual wages but also other substantive
conditions of employment that have a monetary implication.
These are
the issues included in the union’s list of demands tabled on 15
June 2015 and which had been the subject of engagement
between the
parties.
[36]
Finally, the applicant has always been fully aware of the purpose of
the strike. In the founding affidavit, the deponent says
the
following:
It
is also become apparent that the first respondent and its members
(‘the second to further respondents) are no longer pursuing
a
settlement of legitimate demands of mutual interest but the objective
of the strike has become one in pursuit of violence and
political
issues.
For
the applicant to concede that the strike was originally in support of
legitimate demands of mutual interest, it must have been
aware of the
nature of the demands. In addition, on 28 October 2015, the applicant
sent out an SMS to workers stating amongst other
things, “The
company will not offer more than it has.” Further, as is
apparent from the supplementary affidavit filed
on 4 November 2011,
when employees tendered the services in accordance with the interim
order, they were required to sign a form
indicating whether there was
acceptance to the applicant’s final wage offer. In these
circumstances, it cannot be said that
the applicant was ignorant of
the union’s demands or that it did not reasonably know what was
required to meet them.
[37] In relation to the
acts of violence in respect of which is the applicant seeks to have
the strike declared unprotected, it
is regrettable that the acts of
wanton and gratuitous violence appear inevitably to accompany strike
action, whether protected
or unprotected. Strike -related misconduct
is a scourge and a serious impediment to the peaceful exercise of the
right to strike
and picket. More than that, it is a denial of the
rights of those at whom violence is directed, typically those who
elect to continue
working and suppliers of those employers who are
the target of strike action, and poses serious risks to investment
and other drivers
of economic growth. A week in the urgent court
where employers seek interdicts against strike-related misconduct on
a daily basis
bears testimony to this. What is more concerning is
that those institutions whose function it is to uphold order (in most
instances,
the South African Police Services) appear content to
remain spectators of wanton acts of violence, intimidation and
sabotage, adopting
the view that they will intervene if and only if
the court order is granted. Why this court should be called upon
routinely to
authorise and direct the SAPS to execute its statutory
functions in relation to strike -related violence is
incomprehensible.
[38] While, as it has
previously indicated, this court will in appropriate circumstances
declare an initially protected strike unprotected
on account of
levels and degrees of violence which seriously undermine the
fundamental values of our Constitution, this is not
a conclusion that
ought lightly to be reached. A conclusion to this effect itself
denies the exercise of fundamental labour
rights, and as the
Constitutional Court pointed out in
SATAWU
, this court ought
not to easily to adopt too intrusive an interpretation of the
substantive limits on the exercise of the right
to strike.
[39] What the particular
threshold might be is not a matter that I am called on to decide, but
Prof Rycroft’s proposals make
eminent sense. On the facts
before me, I am not able to find that in the present instance, the
nature and degree of violence is
not such that the strike no longer
promotes functional collective bargaining. Further, the efforts made
by the union to curb acts
of violence and to disassociate itself from
those acts appear to me to be sincere.
[40] The video and other
evidence proffered by the applicant establishes that at least some of
the respondents have on the face
of it acted in breach of the interim
interdict granted by this court under case number J 2111\15 on 19
October 2015. I must emphasise
that any act of intimidation and
violence or the threat of violence is to be deplored in the strongest
terms. By resorting to or
condoning acts of gratuitous violence a
union calling the strike runs the risk that the exercise of the right
to strike no longer
supports the legitimate purpose of collective
bargaining. In the present instance, there is a remedy available to
the applicant.
The application to hold the union and to individuals
in contempt of this court on account of their alleged breach of an
order granted
by this court remains pending and it remains open to
the applicant to set the matter down for hearing and to ensure that
the relevant
parties are sanctioned if the requirements of contempt
are met.
[41] In so far as the
applicant contends that the strike is no longer functional to
collective bargaining in that it has assumed
a different and
political purpose, I am similarly not persuaded on the available
evidence that this is so. It is not uncommon,
both in South Africa
and elsewhere, for community groups and even political parties to
express their solidarity with striking workers
and to identify with
the course. The fact that one or more opportunistic fellow travelers
elect to support a strike and during
the course of that support, to
express their own views or pursue their own more parochial interests
ought to come as no surprise.
That is not to say that there may well
be a threshold that is crossed when the purpose of industrial action,
initially in pursuit
of matters of mutual interest, becomes directed
at other purposes.
[42] In my view, the
facts do not support a contention that the industrial action
currently undertaken is not directed at matters
of mutual interest
between an employer and employees. The evidence does not disclose
that any ‘political’ demands have
been made by the union.
To the extent that the EFF has made demands of the applicant these
are not demands made by the union, and
indeed, the union has
expressly disassociated itself from both the EFF’s conduct and
its demands. To the extent that the
applicant remains aggrieved at
the conduct of the EFF (which appears to be opportunistic at best),
this is a matter that should
be addressed with the EFF directly. In
so far as the EFF has encouraged any of the individual respondents to
breach the terms of
the order granted on 19 October 2015, those
respondents may in due course be required to answer for their
actions. In so far as
the EFF itself or its officials have made
themselves guilty of criminal acts, the applicant has remedies
against them.
[43] Similarly, to the
extent that persons display banners during the course of the strike
in support of the BDS movement, none
of that organisation’s
objectives are the subject of any demand made by the union, nor is
there any evidence to suggest that
these are matters that give rise
to the strike. What the papers disclose is that an unspecified number
of banners appeared on unspecified
days criticising Woolworths doing
business with Israel, that on an unspecified day, and unspecified
persons displayed a banner
bearing the logos of both the union and
the BDS movement and that an unspecified number of and unspecified
persons waved Palestinian
flags. It can cannot reasonably be
concluded that on this basis, the strike is no longer in support of
demands concerning matters
of mutual interest and has transformed.
For all of the reasons stated above, it follows that the rule
nisi
issued on 30 October 2015 ought to be discharged.
[44] In relation to
costs, s 162 of the LRA affords this court a broad discretion to make
orders for costs according to the requirements
of the law and
fairness. Ever since what was then the Appellate division of the
Supreme Court’s judgment in
NUM v East Rand Gold and Uranium
Co Ltd
[1991] ZASCA 168
;
1992 (1) SA 700
(A), this court has been reluctant to make
orders for costs where the litigants parties to an ongoing collective
bargaining relationship,
and where a costs order might serve to
prejudice that relationship. This principle must militate against a
costs order particularly
where the parties, as they are in the
present instance, remain in dispute and where settlement continues to
elude them. Mr Orr
submitted that a costs order is appropriate given
what he termed the deliberate attempt by the applicant to mislead the
court in
relation to the strike notice and its misrepresentation of
the evidence in its supplementary affidavit. I make no finding in
this
regard, but the application for interim relief was misguided. I
equally have a degree of sympathy with Mr Cook’s submission
that the union ought to be liable at least for the costs of 3
November 2015, when the application was postponed on account of short
service of the application to anticipate by the union. However, in my
view, the broader interests of reconciliation between the
parties
must prevail and for that reason, I intend to make no order as to
costs.
[45] Finally, this ruling
should not be construed as legitimising or condoning those acts of
strike -related misconduct that have
occurred, or the political
interference in the strike by either the EFF or the BDS. The ruling
means no more than that on the facts
placed before the court, the
levels and degree of violence and interference by outside parties do
not tilt the balance toward a
finding that the protected strike
called by the union should be declared unprotected. Of course, the
applicant is not precluded
from seeking similar relief should future
circumstances warrant such an order.
I make the following
order:
1.
The
rule
nisi
issued on 30 October 2015 is discharged.
2.
There is no
order as to costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the Applicant: Adv. AL Cook instructed by Mcgregor Erasmus Attorneys
For
the Respondent: Adv. C Orr instructed by Haffegee Roskam Savage
Attoneys