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
>>
2016
>>
[2016] ZALCCT 33
|
|
Betafence South Africa (Pty) Ltd v National Union of Metalworkers of South Africa and Others (C194/2016) [2016] ZALCCT 33 (15 September 2016)
THE LABOUR COURT OF SOUTH AFRICA,
CAPE TOWN
Not Reportable
Case
no: C194/2016
In
the matter between:
BETAFENCE
SOUTH AFRICA (PTY) LTD
Applicant
And
NATIONAL
UNION OF METALWORKERS OF
SOUTH
AFRICA
First Respondent
THE
INDIVIDUAL EMPLOYEES LISTED IN
ANNEXURE
‘A’ TO THE NOTICE OF MOTION
Second to Further Respondents
Delivered:
15 September 2016
JUDGMENT
TLHOTLHALEMAJE, J
Introduction:
[1]
By agreement between the parties, an order was issued by
Rabkin-Naicker J on 12 April 2016 in terms of which the strike action
embarked upon by the Second to Further Respondents (The Employees) on
7 April 2016 was suspended with immediate effect. The Employees
were
to return to work on 13 April 2016. The matter was postponed to 22
April 2016, and a time table was also agreed upon in regards
to the
filing of answering and replying papers.
[2]
Despite the order, the Employees did not suspend the strike. The
matter again came before Rabkin-Naicker J on 15 April 2016
and an
order was issued in the following terms;
1.
‘
A rule
nisi is hereby issued pending the return date of 19 April 2016 at
10h.00 calling upon the respondents to show cause why an
order should
not be made in the following terms;
2.
The Second to
Further Respondents are in contempt of the order of this court dated
12 April 2016.
3.
The Second
to Further Respondents are hereby interdicted from encouraging
(engaging) in any unlawful or violent action in contempt
of the order
dated 12
April
2016.
4.
The Second
to Further Respondents are hereby interdicted and restraint from
embarking on any strike action in contempt of the order
of this court
dated 12 April 2016.
5.
The First
Respondent is ordered to take all reasonable steps to ensure that its
members whose names appear on annexure ‘A’
comply with
the orders in clause 3 and 4 above.
6.
Paragraphs
3, 4 and 5 above operate with immediate effect pending the outcome of
the matter on the return date.
7.
The return
date of both this order and other and the rule nisi issued on 12 of
April 20, is 19 April 2016’
[3]
On 19 April 2016, Van Niekerk J extended the
rule nisi
issued
on 12 and 15 April 2016 to 25 May 2016, and further directed the
respondents to show cause why they should not be held in
contempt of
court for failing to comply with the court order of 12 April 2016.
The
background to the strike:
[4]
The Applicant is in the business of manufacturing and supplying
universal perimeter fencing. The First Respondent (NUMSA) and
the
Applicant are signatory to the Metal and Engineering Industries
Bargaining Council (MEIBC) Main and Settlement Agreements entered
into on 29 July 2014, which regulate the terms and conditions of
employment within the metals and engineering sector. The Main
Agreement was also extended to non-parties on 24 of December 2014.
[5]
During December 2014 the Applicant received correspondence from the
Employees titled “
Plant Level Matters of Transformation that
are not in the Main Agreement (Matters of mutual interests)”
.
The correspondence also listed a number of demands which the
Employees required that the Applicant address at plant level. These
included housing allowance, funeral benefits, medical aid, financial
assistance, and production bonus.
[6]
The Applicant in its response on 15 January 2015 indicated that it
was not prepared to engage in plant level negotiations with
regards
to the demands made. Its main contention was that these demands
related to issues that were regulated and covered
by the Main and
Settlement Agreements concluded on 29 July 2014. On 11 March 2015
NUMSA on behalf of the Employees referred a dispute
to the MEIBC. The
matter was then set down for conciliation on 9 April 2015. At
those proceedings the Applicant raised a
preliminary point pertaining
to the jurisdiction of the MEIBC, based on the provisions of clause
20 of the Settlement Agreement.
[7]
The conciliating commissioner in a ruling dated 20 April 2015
directed that the dispute be referred to arbitration for the
determination of the jurisdictional point, and in the same ruling
indicated that a certificate of non-resolution was issued. A dispute
was then referred for arbitration and was heard on 4 November 2015.
The MEIBC Arbitrator issued a ruling to the effect that
mutual
interest dispute could not be arbitrated but must be conciliated in
terms of the provisions of section 135 (1) of the LRA.
The
Arbitrator concluded that the MEIBC did not have jurisdiction to
arbitrate the matter. On 29 February 2016, NUMSA referred
another
dispute to the CCMA for arbitration. As at the hearing of this
application, that matter was still pending before the CCMA.
[8]
On 6 April 2016, one of the individual respondents sent an e-mail on
behalf of the Employees to the Applicant’s HRM to
meet with the
Employees at the Applicant’s reception at 07h00 the next
morning to receive a list of their demands. On 7 April
2016, the
Employees failed to report for duty and started a picket outside the
office park. An ultimatum was issued at about 07h25
imploring the
Employees to return to work. Despite the involvement of a NUMSA
official and the Applicant’s Human Resources
Manager, the
Employees refused to report for duty. A second ultimatum issued on
15h00 failed to persuade the Employees to return
to work. This had
led to an urgent application being launched on 12 April 2016, which
had resulted in the order as agreed upon
before Rabkin-Naicker J.
[9]
The Applicant’s case is that the strike embarked upon by the
Employees is unprotected for failure to comply with the provisions
of
section 64 (1) (b) of the LRA, and further that the provisions of
section 65 (3) (a) (i) of the LRA precluded a party from embarking
on
strike action where they parties are bound by a collective agreement
which regulates the issues in dispute. In respect of the
last ground,
the contention was that the five issues raised in the Employees
demands are all dealt with in the MEIBC Settlement
Agreement covering
the period 1 July 2014 to 30 June 2017, and that in terms of the
provisions of Clause 37 of the Main Agreement,
the terms and
conditions of employment in the industry are negotiated at central
level.
[10]
The respondents’ case is that the
rule nisi
issued on 12
and 15 April 2016 and extended on 25 May 2016 should be discharged on
the grounds that (a) all the issues
which led to the
strike of 7 April 2016 are not regulated by the collective agreement
and thus section 65 (3) (a) of the LRA does
not apply; (b) should the
court find that not all the issues raised by the respondents are
regulated by collective agreement, the
respondents are entitled to
strike over those issues which are not regulated by the collective
agreement.
Evaluation:
[11]
Two main issues are to be determined on the return date. The first is
whether the strike embarked by the Employees on 7 April
2016 was
unprotected on the grounds as alleged by the Applicant. The
second issue is whether the Employees are in contempt
of court for
not complying with the court order of 12 of April 2016. The
Applicant, as correctly pointed out on behalf of the respondents,
must satisfy the relevant requirements for it to be granted the
relief it seeks. These are (a) a clear right, (b) an injury actually
committed or reasonably apprehended, (c) the absence of an
alternative satisfactory remedy
[1]
.
In
Polyoak
(Pty) Ltd v Chemical Workers Industrial Union & others
[2]
,
it was further held
in
regards to matters before the court on the return day that;
“
It
is trite that on the return day, the court must be satisfied that a
proper case has been made out for each facet of the relief
sought.
Where the original papers fail to do this – because the
allegations are either incomplete or strictly speaking inadmissible
–
the applicant should supplement them so that their deficiencies are
remedied before application is made for confirmation
of the rule”
Alleged non-compliance with the
provisions of section 64 of the LRA:
[12]
The Applicant’s main contention was that strike was unprotected
as the MEIBC did not issue a certificate of outcome as
contemplated
in section 64 (1) (a) (i) of the LRA. It was common cause that NUMSA
had requested conciliation on 11 March 2015.
The MEIBC Conciliating
Commissioner issued a ruling on 20 April 2015 in terms of which a
certificate of outcome was issued, and
NUMSA was afforded an
opportunity to refer the dispute for arbitration for the purposes of
determining the jurisdiction of the
MEIBC. The matter having been
referred for arbitration, another MEIBC Commissioner then made a
finding that the matter was erroneously
set down for arbitration;
that no certificate of outcome was issued; and that a matter of
mutual interest could not be arbitrated
and therefore the Council
lacked jurisdiction to arbitrate the matter.
[13]
The respondents’ position is that it was not correct that a
certificate of outcome had not been issued, as the Conciliating
Commissioner in her ruling had also indicated that a certificate of
outcome was issued. It was submitted that the fact that the
conciliating commissioner chose to defer the issue of the
jurisdiction of the MEIBC to arbitration was irrelevant, and that to
the extent that the issue referred to conciliation pertained to a
matter of mutual interest, the respondents acted within their
rights
in embarking on the strike action.
[14]
The right to strike is entrenched in section 23(2)(c) of our
Constitution. There can be no doubt in this case that the conduct
of
the Employees on 7 April 2016 constituted a ‘strike’ as
defined in section 213 of the LRA
[3]
.
The provisions of section 64(1) of the LRA
[4]
are peremptory and regulates the circumstances under which a
protected industrial action may take place.
[15]
Within the context of alleged unfair dismissal disputes, it has
always been held in this Court and by the Labour Appeal Court
that
the right to refer disputes for arbitration simply accrues upon a
mere referral of that dispute for conciliation; or the expiry
of a
period of 30 days from when the dispute was referred to the CCMA or
bargaining council and such dispute still remains unresolved,
or that
it is of no consequence whether a certificate of failure to settle
has been issued or not
[5]
.
The logic in this approach is that to the extent that in all cases of
an alleged unfair dismissal it is the employee that refers
a dispute,
it would not make sense to insist on an actual conciliation of the
dispute, as the employer party may show little or
no interest in that
process. Waiting for a non-willing party to come to the conciliation
process would not in any manner assist
in the expeditious resolution
of disputes.
[16]
Within the context of mutual interest disputes, it was similarly held
in
City
of Johannesburg Metropolitan Municipality and Another v SAMWU and
Others (Johannesburg Metropolitan Municipality
[6]
that;
‘
[I]t
is not necessary under the LRA for a conciliation hearing actually to
take place before a strike can be protected. In terms
of section
64(1)(a) of the LRA, it is sufficient if 30 days have lapsed since
the referral of the dispute. In other words, the
commissioner’s
ruling affected only the convening of the conciliation process; it
says no more than that the bargaining council
did not have the
jurisdiction to conciliate the dispute. Since a conciliation meeting
is not a precondition for a strike to be
protected (because it is
sufficient that 30 days have elapsed after the date of referral), the
commissioner’s ruling is not
a relevant factor.’
[17]
It is doubted that the above approach is still sound in the light of
the decision of the Constitutional Court in
Transport
and Allied Workers Union of South Africa v PUTCO Limited,
[7]
were that Court had occasion to clarify the provisions of section 64
(1) of the LRA in the following terms;
“
The
dictates of section 64(1)(a) are clear. No industrial action
can be undertaken until there has been an attempt at conciliation.
This provision also makes pertinent that an “issue in dispute”
arises prior to a matter being referred for conciliation.
Only
once a dispute has arisen can it be referred to a bargaining council
for conciliation. Moreover, industrial action can
only be taken
in the event that an attempt at conciliation fails, either because a
certificate by the bargaining council states
that the issue in
dispute remains unresolved, or because a period of 30 days, or any
extension of that period agreed to between
the parties to the
dispute, has elapsed since the referral was received by the
bargaining council. Referral to conciliation
is not merely a
perfunctory procedural step that has to be complied with in order to
obtain a licence to lock out or to embark
on a strike. The
object of section 64(1)(a) is to bring together the parties at the
negotiations, and encourage them to seek
solutions to issues of
mutual concern, thereby reinforcing a collective bargaining culture”.
And,
“
This
Court has previously recognised that the right to “collective
bargaining between the employer and . . . [employees] is
key to a
fair industrial relations environment”. The LRA is concerned
with the power imbalance between the employer and employees.
It
sanctions the use of power by employers and employees, but only as a
last resort, and only after the issue in dispute between
the parties
has been referred for conciliation. Collective bargaining
therefore implies that each employer-party and employee-party
has the
right to exercise economic power against the other once the issue in
dispute has been referred for conciliation, and only
if that process
fails in one of the manners described above.”
(Authorities omitted)
[18]
As I understand the above principle, it is not sufficient, especially
within the context of mutual interest disputes, to simply
refer such
disputes, demand a certificate of outcome at conciliation, or wait
for the thirty days to expire after the referral.
A premium is placed
on the conciliation process or at least an attempt at conciliating
the dispute between the parties, with a
view of encouraging them
through the assistance of a conciliator to find a solution to their
dispute. This interpretation of the
provisions of section 64 (1) of
the LRA is also in line with the primary objects and overall purpose
the LRA
[8]
.
[19]
Thus to the extent that the provisions of section 64 (1) (a) of the
LRA do not specifically state that conciliation or an attempt
at
conciliation
must
be made before parties embark on industrial action, or before a
certificate of outcome can be issued, those provisions ought to
be
interpreted in accordance with those of section 3 (a) of the LRA
[9]
.
Effectively then, the conciliation process within the context of
mutual interest disputes should not be seen as a mere obligatory
charade and a licence to industrial action. The CCMA or Bargaining
Councils were not meant to be mere vending machines expected
to
dispense of certificates of outcome on demand. The parties prior to
embarking on any form of industrial action, must have through
the
assistance of conciliators/mediators, embarked on a genuine process
of conciliation, or at the very least, made some concerted
effort in
that regard
[10]
.
To the extent that the other party to the dispute may show scant
regard to that process by either frustrating it or refusing to
participate in it at all, the provisions of section 64 (1) (a) (ii)
would then take effect.
[20]
In this case, it is accepted that a dispute was referred to the MEIBC
for conciliation. At the conciliation stage, no attempt
was made to
conciliate the dispute, and part of the reason was that the employer
(Applicant in this application) had raised a preliminary
point. The
Conciliator in reliance on
EOH
Abantu (Pty) Ltd v CCMA & others
[11]
had declined to determine the jurisdictional issue, but had
nevertheless continued to ‘issue a certificate of outcome’,
even though a physical certificate of outcome within the meaning of
section 135 (5) of the LRA was not issued. The Conciliator
also in
the ruling afforded the respondents to refer the determination of the
jurisdictional point for arbitration. It did not
assist the parties
either that the Arbitrator seized of the matter had washed his hands
off it by declining to deal with it on
the grounds that the MEIBC did
not have jurisdiction to arbitrate it as it pertained to matters of
mutual interests. What can however
be accepted is that indeed the
dispute was referred for conciliation as required under section 64
(1) (a) of the LRA.
[21]
The issuing of a certificate of outcome is an administrative action
performed in terms of section 135 (5) of the LRA
[12]
.
In this case however, and as already stated, there is nothing to
suggest that a certificate of outcome was physically issued within
the meaning of section 135 of the LRA. As to whether this omission
makes the strike unprotected is rebutted by the principle that
a
certificate of outcome is merely a document that evinces that a
dispute was referred for conciliation and could not be resolved
[13]
.
As I understand the principle, the issuing of the certificate does
not confer a right to strike beyond the observance of other
requirements within the meaning of section 64 (1) of the LRA. Thus
the right to strike accrues to the employees upon attempts at
conciliation in line with the Constitutional Court principles set out
above, and/or the lapse of the 30-day period contemplated
in section
64(1) (a) (ii) of the LRA
[14]
.
[22]
A further ground upon which it was contended that the strike was
unprotected was that no strike notice was served on it by
the
respondents as contemplated in section 64 (1) (b) of the LRA. The
respondents raised an objection in regards to this ground
being
relied upon as it was raised for the first time in an affidavit filed
on 23 May 2016, some two days prior to the hearing
of this matter. It
was submitted that the decision to defend the matter was informed by
the grounds on which it was initially contended
that the strike was
unprotected, and that two days prior to the hearing, the respondents
were unaware that there were further grounds
to be relied upon as to
the reason the strike was unprotected.
[23]
A further submission made on behalf of the respondents was to the
effect that, the additional grounds or new issues relied
upon in the
replying affidavit should be struck off, and to the extent that the
court may be inclined to consider the new grounds
raised in the
reply, it was submitted that the Applicant ought to be penalised with
a cost order taking into account how it had
conducted itself in the
matter.
[24]
It is trite as correctly pointed out on behalf of the respondents,
that an applicant is required to make out its case in a
founding
affidavit, and cannot raise new matters in its replying
affidavit
[15]
.
It was nevertheless acknowledged on behalf of the respondents that
this rule is not inflexible
[16]
,
and the court may exercise its discretion as to whether to allow the
new material or not. To the extent that the issue of strike
notice is
an issue of law within the requirements of section 64 (1) (b) of the
LRA, and further to the extent that the respondents
insist that their
strike action was protected, it would be remiss of the Court not to
exercise its discretion accordingly, and
to consider whether in fact
a proper strike notice was issued or not
[17]
.
Whether a strike is protected or not cannot be determined on one or
other aspect of the provisions of section 64 (1) of the LRA.
These
provisions are a complete package and should be considered as such.
[25]
It has been held that the strike notice should be sufficiently clear
to articulate the union's demands and to place the employer
in a
position where it can take an informed decision to resist or accede
to those demands. A strike notice serves an important
purpose in that
it is aimed at warning the employer about the impending strike so
that an employer may decide to prevent the strike
and to take other
steps to protect the business when the strike starts. A notice that
does not indicate when exactly, or on which
day the strike would
commence, or what the demands are is clearly defective
[18]
.
[26]
In this case, an e-mail, which purports to be a strike notice was
sent to the Applicant’s Gustav Bothma and Bianca Garcia
on 6
April 2016. The e-mail reads as follows
[19]
;
‘
To
whom it may concern
You
are here-by advise to come and receive and sign the demands document
at 09h00, Betafence reception area.
(Sic)
It
is clear that after all legal processes is been exhausted you as the
employer including council’s are failing us as workers.
We are
tired of working for profit only. We want to be put first before
profits etc.
(Sic)
With
all do of respect we commit ourselves to peace and harmony. And you
are advised to meet our demands by receiving it for us
to negotiate
at the plant level.
(Sic)
We
trust that you will comply and avoid unnecessary delays and tactic
.
(Sic)
Respectfully yours
Shop
stewards abo Members”
(Sic)
[27]
The above e-mail cannot by any stretch of imagination be construed as
a proper strike notice. It does not indicate what the
demands of the
employees are, nor does it indicate when the strike is to
commence
[20]
.
Furthermore, the fact that the e-mail was sent to the recipients on 6
April 2016 at 10h16 when the strike action commenced at
07h00 the
following morning can hardly be construed as being in compliance with
the required 48 hours’ notice. It therefore
follows that it
cannot be said in this case that the e-mail in question constitutes a
‘strike notice’, nor can it be
said that it was properly
served on the Applicant for the purposes of compliance with section
64 (1) (b) of the LRA. Accordingly,
on this ground alone, the strike
in question was not protected. To however dispose of the matter on
this basis alone will not assist
in ending the dispute between the
parties, and to this end, I propose to deal with other grounds raised
on behalf of the Applicant.
Is
the strike action unprotected by virtue of the provisions of section
65 (3) (a) (i) of the LRA
[21]
?
[28]
The provisions of section 65 (3) (a) (i) of the LRA as Davies JA
pointed out in
Vodacom
(Pty) Ltd v CWU
[22]
sets out limitations on the right to strike or recourse to lockout
which have to be read together with those of section 64. Thus,
it is
of no consequence that there has been compliance with the provisions
of section 64, as the right to strike, such that if
it reaches one of
the limitations in terms of section 65, becomes unprotected,
notwithstanding compliance with procedures under
section 64
[23]
.
[29]
It was correctly pointed out on behalf of the respondents that an
issue is regulated by means of a substantive rule or if a
process for
resolving the issue has been created
[24]
.
In this case, the Main Agreement determines wages and conditions of
employment for employees in the industry for the duration
of the
three-year period, and prescribes that all collective bargaining on
wages and conditions of employment for employees in
the industry
shall only be conducted at centralised level under the auspices of
the MEIBC. This approach is captured in clause
37 of the Main
Agreement which provides that;
‘
(1)
Subject to sub clause (2) –
(a)
the Bargaining
Council shall be the sole forum for negotiating matters contained in
the Main Agreement.
(b)
During the
currency of the Agreement, no matter contained in the agreement may
be an issue in dispute for the purpose of a strike
or lock-out or any
conduct in contemplation of a strike or lock-out.
(c)
Any provision in
a collective agreement binding on an employer and employees covered
by the Council, other than a collective agreement
concluded by the
Council, that requires an employer or a trade union to bargain
collectively in respect of any matter contained
in the Main
Agreement, is of no force and effect.’
[30]
In addition to the provisions of the Main Agreement, the ‘
Metal
Industry Settlement Agreement: 1 July 2014 to 30 June 2017’
,
deals with other issues including Labour Brokers, maternity leave
benefits, small businesses, exemptions, demarcations, non-payment
of
retirement contributions, injury on duty and disability etc. Some of
those issues are referred to the MANCO or the STANCO for
further
consideration or submission of reports.
[31]
The issue in this case is whether the collective agreements preclude
the respondents from having their demands negotiated at
plant level,
it being the Applicant’s case that those demands are regulated
in that there is a substantive rule dealing with
each demand as
contained in those agreements, or that some or all of the issues had
been referred to some other forum for resolution.
The Applicant’s
further contentions were that it engaged in centralised bargaining
with the respondents and this was done
through negotiations which are
held every three years. To that end, it did not engage in plant level
bargaining over any of those
issues which are subject of bargaining
at central level under the auspices of the MEIBC. It was further
contended that in the light
of the clauses 19
[25]
and 20
[26]
of the Settlement Agreement read together with section 37 of the Main
Agreement, plant level bargaining in the industry was outlawed,
and
thus the strike action by the respondents was unprotected.
[32]
To the extent that clause 37 of the Main Agreement is relied on by
the Applicant, it can be accepted that it in effect, establishes
the
MEIBC as ‘the sole forum for negotiating matters
contained
in the Main Agreement’
[27]
.
In
Vanachem
Vanadium
,
Van Niekerk J further held that;
“
La
grange J in CBI Electrical African Cables (Pty) Ltd v NUMSA &
others (J336/14) recently held that the exclusivity of central
bargaining reflected in clause 37 (1) extends only to those matters
contained in the main agreement; it is not a general prohibition
against collective bargaining at that level, nor is it a bar to union
demands to negotiate matters not contained in the main agreement
at
plant level. What matters is whether the demand in question is
sufficiently closely related to an issue regulated by the main
agreement to preclude plant level bargaining over it. In other words,
the main agreement does not provide that the bargaining council
is a
single forum for bargaining all matters affecting terms and
conditions of employment – the exclusivity of bargaining
at
central level is specifically limited to those matters “contained
in the main agreement”.
[28]
[33]
The issue in this case is whether the respondents’ demands are
matters that are contained in the main agreement, and
if not, whether
these demands are sufficiently closely related to the issues
regulated by the main agreement to prohibit plant
level bargaining
over them. That issue has to be determined within the understanding
that Employees may embark upon strike action
over a demand made at
plant level, where a collective agreement in place has not expressly
prohibited strike action in relation
to that particular demand. This
approach to the interpretation of section 37 cannot in my view be
deemed to be intrusive of the
right to strike, nor can it be said to
grant employees more bargaining rights outside the scope, and
contrary to spirit and purport
of collective agreements which are
inherently binding.
Housing
allowance:
[34]
The respondents’ demand is for a compulsory R2000.00 per month
housing allowance. The Applicant relies on clause 15 of
the
Settlement Agreement for the contention that the issue is accordingly
regulated. Clause 15 provides that;
‘
Housing
It is agreed that the
matter of housing will be referred to the Bargaining Council
Management Committee (MANCO).
The MANCO will appoint
a sub-committee to engage with MIBFA to consider a possible amendment
to the rules of the Fund to permit
employees access funds against
their savings in order to qualify for a housing bond. It is noted
that currently this facility is
limited to the borrowing of funds for
renovation, alteration and/or extension of existing homes’
[35]
Arguments advanced on behalf of the respondents are to the effect
that the above clause does not set a substantive rule in
respect of
housing allowance, and that the clause was silent on the issue. It
was further submitted that the issue entailed a cost
to the employer,
and that it was a separate and distinct one from the one that clause
15 dealt with, which was that of considering
allowing employees to
access their own funds in the custody of MIBFA. To this end, it was
submitted that the allowance that the
employees demanded was a
benefit which would be a cost to the employer, and that the Main
Agreement, to the extent that its section
37 was relied upon, only
dealt with allowances pertaining to ‘subsistence’,
‘abnormally dirty work’, ‘height
‘and ‘acting
allowances’.
[36]
‘Housing’ and ‘Housing Allowance’ cannot for
the purposes of clause 15 be construed as one and the
same thing. As
correctly pointed out on behalf of the respondents, clause 15 merely
refers the issue of ‘housing’ to
the MANCO, which in turn
would appoint a sub-committee to engage with MIBFA for the purposes
of considering a possible amendment
to the rules of the fund to
permit employees to access those funds against their saving. The
issues to be referred to MANCO as
per clause 15 merely pertains to
engagements with MIBFA with the possibility of amending its fund
rules to permit employees to
access funds against their savings, and
to the extent that the engagements may bear fruit, there would be no
additional costs to
the Applicant over and above what it had already
paid towards those funds.
[37]
‘Housing allowance’ on the other hand is a separate issue
which has separate costs implications for the Applicant.
The issue of
‘housing’ and ‘housing allowance’ might be
related. However, to the extent that there is nothing
in the Main or
Settlement Agreements that expressly makes reference to ‘housing
allowance’, it cannot be said that
the two are closely or
sufficiently related for the purposes of the demand being
impermissible for negotiation at plant level
[29]
.
If this was the case, any issue surrounding housing allowance would
have been expressly provided for in clause 16 (2) of the Main
Agreement (Allowances).
Funeral
benefits:
[38]
The respondents’ demand is for R18 000.00 funeral cover for up
to 12 people and platinum plan cover at a cost of R270.00
per month.
The Applicant’s response is that the demand for funeral
benefits is covered by the Industry Fund (IPF), to which
all of the
individual respondents belong. The respondents conceded that MIBFA
handles the benefits of employees falling under the
MEIBC, and makes
provision for a funeral benefit of R5000.00 for the member, which is
payable to the surviving spouse.
[39]
The demand is for a more superior and extended funeral cover, and the
issue as correctly pointed out on behalf of the Applicant
was
previously dealt with by La Grange J in
CBI Electrical Cables:
African Cables (Pty)Ltd
, who had held that clause 8 (4) of the
Sick Pay Fund Agreement prescribed funeral benefits payable to fund
members. Furthermore,
the respondents did not pursue this demand with
any conviction, and to the extent that it was found that the issue
was indeed regulated,
the demand was to be abandoned.
Medical
aid:
[40]
The parties are in agreement that in terms of paragraph 12 of the
Settlement Agreement, the issue of medical aid was to be
referred to
the Industry Policy Forum, and was to be dealt with within a period
of 12 months of the conclusion of negotiations.
To the extent that
there were existing medical aid arrangements, these were to remain in
place.
[41]
The respondents however contend that the negotiations were concluded
in July 2014 and that the 12 months had expired. It was
further
submitted that even though the demand was tabled prior to the expiry
of the 12 months’ period, the respondents only
embarked on
strike action on 7 April 2016, and by virtue of the provisions of
paragraph 22
[30]
of the Settlement Agreement, the parties had reserved their rights.
[42]
The negotiations were concluded on 29 July 2014, and the initial
demands were made in December 2014. These were followed up
with a
referral to the MEIBC on 11 March 2015. It is apparent from the
documents before the court that at the time of the referral,
or when
a certificate of outcome was ostensibly issued by the Conciliator on
20 April 2015, the 12 months’ period had not
expired. Thus the
issue of medical aid was at the time, regulated in terms of a process
that had been created to resolve it. For
all intents and purposes,
the referral of the issue for conciliation was clearly pre-mature as
it still fell within the confines
of the collective agreement. The
‘certificate of outcome’ at the time that it was issued,
or the expiry of the 30 days
also fell within the 12-month period. It
therefore follows that paragraph 22 of the settlement Agreement
cannot come to the assistance
of the respondents, and thus they were
not entitled to embark on any form of industrial action in respect of
the demand surrounding
medical aid.
Financial
assistance:
[43]
The Employees demand interest free loans. The Applicant’s
response was that this demand was covered in the Settlement
Agreement, as statutory wage increases were guaranteed for the next
two years, and further that the right to the demand was limited
by
the Settlement Agreement as it was a condition of employment.
[44]
The respondents’ view is that the wage increases have nothing
to do with interest free loans, and that the fact that
a meeting was
held between the parties on 18 April 2016 where the Applicant had
entertained this request demonstrates that the
demand was not dealt
with in the agreements. To this end, it was averred in the answering
affidavit, that currently, loans were
extended to employees at the
discretion of the Applicant, and that at the meeting in question, the
parties had agreed to a structured
system of extending loans to all
employees, and that an agreement on the issue has already been
reduced to writing, but has not
been signed. In a further replying
affidavit, the Applicant however denied having an interest free loan
scheme in place, and contended
that what it has is a discretionary
salary advance scheme, whereby employees can approach management to
access such a scheme.
[45]
Significant however with this demand is whether in line with the
principles set out in
CBI Electrical
African Cables (Pty) Ltd v NUMSA & others,
it
is not sufficiently closely related to an issue (wage increases)
regulated by the main agreement to preclude plant level bargaining
over it. It is accepted that in general, the courts will look at the
substance of a dispute rather than the form in which it was
presented to determine whether it concerns a matter of mutual that
the Employees can strike over. Equally so, the Court should
look at
the substance of the demand to determine whether, to the extent that
it is alleged that the issues are covered in an agreement,
a strike
over that demand is impermissible.
[46]
For the purposes of this dispute, I am prepared to accept that the
demand for financial assistance has the objective of enhancing
and
improving the terms and conditions of employment of the Employees,
and that there are costs implications for the Applicant
if the demand
is acceded to. Contrary to the respondents’ contentions, it is
thus irrelevant whether such costs are recoverable
or not. In fact,
the extent that it would have been expected of the Applicant to grant
interest free loans, it is apparent that
the demand if acceded to,
would result in financial implications for the Applicant in any
event. The granting of interest free
loans can however not be equated
with a wage increase as the Applicant sought to suggest. A wage
increase, once agreed to, entails
a cost that is not recoverable for
the employer, whilst an interest free loan if agreed to, is merely a
facility available to employees
as and when they need it, and is
recoverable. In my view, even though this facility if ultimately
granted will have the effect
of enhancing employees’ conditions
of employment, it cannot be said that the demand in that regard is
sufficiently closely
related to a wage increase as regulated by the
main agreement to preclude plant level bargaining over it.
Production
bonus:
[47]
Two provisions in the agreements regulate matters pertaining to
productivity and bonus. The first is Annexure D (Productivity
Bargaining) of the Main Agreement which cites its objectives as
being;
‘
1.
Subject to the provisions of clause 37 of the Main Agreement, an
employer, his
employees, any employee representative body and any
trade union representing the affected employees may, by mutual
agreement, enter
into voluntary negotiations to conclude a
productivity agreement with the objective of achieving measurable
improvements in productivity
performance and work life at company
level in terms of the principles and guidelines contained in this
Annexure’
Annexure
D then proceeds to set out productivity guidelines which
inter
alia
, deals with a variety of issues including agreements on a
number of items including bonuses. The guidelines also require that
such
agreements should be recorded in writing, signed by the parties,
and also entail a dispute resolution procedure.
[48] The second is paragraph 15 of the
Settlement Agreement which provides that;
‘
Productivity
and Flexibility:
De-coupling
the concluding of productivity agreements from the five-grade and
wage structure agreement, the introduction of flexible
working time
arrangements for manufacturing type operations, changing shift
patterns, introduction of a swing or fourth shift and
production
bonuses are referred to the Main Agreement Industry Policy Forum’
[49]
In the light of the above provisions, I am in agreement with the
submissions made on behalf of the Applicant that the demand
for
production bonus is covered in the main agreement. However, by virtue
of the provisions of Annexure D, the employees are entitled
to raise
the issue of production bonus at plant level within the guidelines
provided. It does not assist the Applicant in its contention
that it
cannot be compelled to subject itself to a voluntary process of
negotiation over these issues. If the issue of the production
bonus
was raised, and to the extent that the main agreement allowed such
negotiations to take place at plant level, whether the
Applicant
voluntarily or refused to subject itself to a negotiating process is
irrelevant for determining the protected nature
of the strike action.
It further does not assist the Applicant to rely on the provisions of
section 37 of the Main Agreement in
that as already pointed out, that
provision does not impose a blanket ban on plant level bargaining. A
prohibition is only in respect
of matters or issues specifically
contained in the Agreement.
[50]
The provisions of paragraph 15 of the Settlement Agreement merely
states that the issues mentioned therein are to be referred
to IPF.
No deadlines however, as with the demand surrounding medical aid, are
set as to when it should be expected that these issues
should be
resolved at the level of the IPF. It was correctly pointed out on
behalf of the respondents that to the extent that the
parties’
rights are reserved in regards to matters referred to various forums
in accordance with paragraph 22 of the Settlement
Agreement, nothing
precluded them from exercising those rights in accordance with the
Bargaining Council’s Dispute Resolution
Policy. To this end,
there is no basis for a conclusion to be reached that the Employees
could not legitimately raise the demand
pertaining to production
bonuses.
Contempt
of court:
[51]
The pre-requisite for making a contempt finding are well known. Thus
there must have been a court order in existence; the order
must have
been properly served on the other parties bound by it, and; there
must have been non-compliance with the order
[31]
.
In this case, it was common cause that the Employees did not suspend
the strike as per the order of Rabkin-Naicker J on 12 April
2016. It
was also conceded on behalf of the Applicant that NUMSA made attempts
to have the Employees comply with the court order
but to no avail. It
was submitted in mitigation on behalf of the Employees that they had
reacted in the manner they did out of
frustration in view of the
disputes having been on-going since December 2014 and with no
resolution in sight.
[52]
In
Pheko
and Others v Ekurhuleni Metropolitan Municipality
[32]
Nkabinde J held that;
The
rule of law, a foundational value of the Constitution, requires that
the dignity and authority of the courts be upheld. This
is crucial,
as the capacity of the courts to carry out their functions depends
upon it. As the Constitution commands, orders and
decisions issued by
a court bind all persons to whom and organs of state to which they
apply, and no person or organ of state may
interfere, in any manner,
with the functioning of the courts. It follows from this that
disobedience towards court orders or decisions
risks rendering our
courts impotent and judicial authority a mere mockery. The
effectiveness of court orders or decisions is substantially
determined by the assurance that they will be enforced”
[33]
.
Similarly,
it was held in
North
West Star (Pty)LTD (Under Judicial Management) v Serobatse and
another
[34]
that;
“
The
correct principle is that, if a court has issued an order against you
and you are unhappy with it, you must take that decision
to a court
higher than the one that issued such order and which has competent
appellate or review jurisdiction and seek to have
such order set
aside. If there is no such court, for example, where there is no
appeal or review available against that court or
against such order
or if the court which issued the order is the court of final
jurisdiction in such matters or is the highest
court in the land,
then you have no choice but must simply comply with the order. A
person cannot say: “
I
don’t like this court order; it is wrong; therefore I will not
comply with it.”
If
we want to deepen our democracy, promote the rule of law, discourage
self-help and encourage those who have disputes to take
them to the
courts of the land and not to seek to resolve them through physical
fights or violence, the whole society must frown
upon anyone who
disobeys an order of court or who, either by word or deed, encourages
or incites another or others to disobey an
order of Court”.
[53]
This Court is approached on a daily basis by both unions and
employers on a variety of issues including strike interdicts and
dismissals emanating from those strikes. Where strike interdicts are
issued and employees find themselves dismissed as a result
of
participation in those strikes or other conduct related thereto, they
are quick to exercise their rights and approach this very
Court,
sometimes on an urgent basis, to seek their reinstatement and/or
other relief. When court orders are issued in their favour,
employees
would insist, and correctly so, that employers should abide by and
comply with those orders. It therefore follows that
it would be
untenable for this Court to countenance instances where litigants
pick and choose which of its orders should be obeyed,
and which
should be disregarded with impunity.
[54]
An observation that needs to be made in this Court is that employees,
especially in the face of strike interdicts, routinely
disregard the
orders of this court for no reason other than that they simply do not
like them
[35]
.
This contemptuous approach towards orders of this court is in some or
most instances, aggravated and/or encouraged by Unions,
their
officials and/or shop stewards. In some instances, as in this case,
employees refuse to even heed the advice of their union
representatives and leaders. In the latter instance, and where unions
even confirm in papers before the court that the employees
had indeed
refused to heed court orders, the invariable conclusion to be reached
is that the non-compliance by the employees was
indeed both wilful
and
mala
fide
.
[55]
The contention that the Employees’ conduct was as a result of
being frustrated by the conduct of the Applicant in not
finding a
resolution to the on-going dispute cannot for all intents and
purposes be sustained. No amount of frustration with the
employer’s
alleged conduct can mitigate this level of contempt towards court
orders. This level of contempt has reached a
point where if
unchecked, the rule of law will become meaningless. In the end,
anarchy and mayhem, which normally characterises
most industrial
actions we have witnessed, will become the new normal. This cannot
bode well for our constitutional democracy,
and only a stern approach
by the courts can stop this slippery slope.
[56]
It is even more untenable for this court’s orders to be
disregarded in circumstances where they were issued and obtained
by
agreement. To the extent that the Employees despite having consented
to the order flagrantly disobeyed it, the inference to
be drawn is
that not only was the Court misled into believing that the Employees
would indeed abide by its order, but also, its
process was abused.
The court must thus also show its displeasure in this regard.
[57]
A further issue to be addressed pertains to the conduct of the
Employees during the strike. In terms of paragraph 3 of the
Rabkin-Naicker J’s order of 15 April 2016, the Employees were
interdicted from engaging in any unlawful or violent action
in
contempt of the order dated 12 April 2016. In instances of violent
and unlawful conduct normally associated with strikes, one
cannot
help but be sceptical when unions and/or employees on the other hand
contend that their strike action was ‘peaceful’,
‘orderly’, ‘disciplined’, and that the union
officials, stewards and marshals were in complete control.
[58]
In this case, despite a criminal case having been opened with the
SAPS with regards to violence that occurred during the strike,
the
Employees in their supplementary affidavit denied having engaged in
any violent or unlawful conduct. In this regard, the Employees
contended that the alleged acts of violence occurred outside of the
Applicant’s premises and before they had assembled at
those
premises.
[59]
I do not intent to deal with this issue in sufficient detail for the
simple reason that there is no evidence to suggest that
there had
been renewed allegations of violent conduct since the strike was
suspended on 19 April 2016. Thus there is no reasonable
apprehension
that the unlawful conduct alleged by the Employees would continue. It
is further correct from the pleadings that no
attempt was made by the
Applicant to identify the alleged perpetrators of violence. The fact
that the strike has since been suspended
makes any final order in
respect of that aspect of the order moot, and the court is
disinclined to confirm interim orders that
have become academic
[36]
.
Conclusions:
[60]
I am satisfied in this case that the Applicant has established the
requirements for the final relief it seeks. Some and not
all of the
demands raised by the Employees are covered by the collective
agreements. Confronted with a similar dispute, the Labour
Appeal
Court in
Unitrans
Fuel & Chemical (Pty) Ltd v TAWUSA
[37]
held that the fact that the union could not strike over one issue
governed by a collective agreement, did not prevent them from
striking over another discrete issue. In this case however, even if
any one of the demands contained a discrete issue, the strike
action
embarked upon by the Employees remains unprotected by virtue of
non-compliance with the provisions of section 64 (1) (b)
of the LRA.
Inasmuch as it is of no consequence that there has been compliance
with the provisions of section 64, the right to
strike becomes
limited by virtue of the provisions of section 65. Equally so, a
strike over issues which employees are entitled
to demand becomes
unprotected when there is non-compliance with the provisions of
section 64 of the LRA.
[61]
Further to the extent that it was not contested that the Employees
were indeed in contempt of the order of this Court issued
on 12 April
2016, and further to the extent that they had only pleaded leniency,
it follows that the
rule nisi
in this regard ought to be
confirmed. In the light of the conclusions reached in regards to the
level of contempt displayed by
the Employees towards the court order
of 12 April 2016, including the fact that they even went to the
extent of refusing to listen
to their own leaders, it is my view that
an appropriate and heavy penalty should be imposed on them.
[62]
In regards to the issue of costs, the provisions of section 162 of
the LRA empowers the court to make such an order upon a
consideration
of the requirements of law and fairness. It has always been said that
a cost order should not follow in circumstances
where the parties are
engaged in a collective bargaining relationship, and where an order
for costs has the potential to prejudice
that relationship
[38]
.
It is
however my view that there are limits to this principle. This is even
moreso in circumstances where employees in the face
of a court order
obtained by consent, wilfully and with
mala
fides
,
disobey that order. To the extent that the Applicant was compelled to
approach the court again some two days after the original
consent
order was obtained, the inference to be drawn is that the employees
other than being in contempt of that order, paid scant
regard to any
meaningful relationship they had with the Applicant. Worst still,
notwithstanding such a relationship between the
parties, it would be
remiss of this court not to show its displeasure if its orders are
ignored with impunity.
[63]
The Applicant however as a member of SEIFSA was represented by an
official of that Association in these proceedings. Inasmuch
as a cost
order would have been appropriate given the circumstances of this
case, it is trite that costs in court proceedings,
entail legal costs
in the strict sense. SEIFSA therefore is not entitled to costs in
these proceedings.
Order:
i.
The
rule
nisi
issued on 15
April 2016 by Rabkin-Naicker J is confirmed only to the extent as
specified hereunder;
(a)
The Second to Further
Respondents are in contempt of the order of this court dated 12 April
2016.
(b)
The Second to Further
Respondents are interdicted and restrained from embarking on any
strike action in contempt of the order of
this Court dated 12 April
2016
ii.
To the extent that the
Second to Further Respondents have been found to be in contempt of
court for failing to suspend their strike
action as per the Court
order of 12 April 2016, they are collectively ordered to pay a fine
in the amount of R1 000 000.00 (One
Million Rands only).
iii.
The order in (ii) above
is suspended for a period of 24 months provided the Second to Further
Respondents are not found guilty of
contempt of any order of this
Court.
iv.
There is no order as to
costs
_______________
Tlhotlhalemaje, J
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Mr. Menzi Vilakazi of SEIFSA
On
behalf of the Respondents: Ms T Ralehoko of
Cheadle Thompson & Haysom Inc
[1]
See
Newcastle
Local Municipality v SAMWU and Others (D448/2014) [2014] ZALCD 36
(12 August 2014) at para [20], where it was held that;
“
The
central question in the current matter is whether the proposed
strike by the first respondent and its members would be protected
or
unprotected. If the strike is found to be unprotected, then it would
follow that the applicant would have no alternative remedy
other
than the granting of an interdict. In addition, to allow an
unprotected strike to occur would certainly cause the applicant
harm. The consequence therefore is that once the strike is found to
be unprotected in casu, the requirements for the granting
of a
final order will be satisfied. However, and if the proposed strike
is found to be protected, then the applicant will fail
to show the
existence of a clear right and the interim order would have to be
discharged.”
[2]
(1999) 20
ILJ 329 (LC) at 395 para B
[3]
“
strike”
means
the partial or complete concerted refusal to work, or the
retardation of obstruction of work, by persons who are of have
been
employed by the same employer or by different employers, for the
purpose of remedying a grievance or resolving a dispute
in respect
of any matter of mutual interest between employer and employee, and
every reference to ―work in this definition
includes overtime
work, whether it is voluntary or compulsory;
[4]
Which
provides that:
“
(1)
Every employee has the right to strike and every employer has
recourse to
lock-out if—
(a)
the issue in dispute has been referred to a council or to the
Commission as required by this Act, and—
(i)
a certificate stating that the dispute remains unresolved
has been
issued; or
(ii)
a period of 30 days, or any extension of that period agreed to
between the parties to the dispute, has elapsed since the referral
was received by the council or the Commission.”
(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, unless-
(i)
the issue in dispute relates to a collective agreement to
be
concluded in a council, in which case, notice must have been given
to that council; or
(ii)
the employer is a member of an employers’ organisation that
is
a party to the dispute, in which case, notice must have been given
to that employers’ organisation; or…”
[5]
See also
Swissport (SA) (Pty) Ltd v SA Transport and Allied Workers Union and
Others (2011) 32 ILJ 1256 (LC) at para 13; and also
South African
Municipal Workers Union obo Manentza v Ngwathe Local Municipality
and Others (2015) 36 ILJ 2581 (LAC) at para [39]
where the LAC held
that;
‘
Thus,
unlike under s136 of the LRA, the issue of a certificate of
non-resolution does not found the right of referral to arbitration
or adjudication under s191(5) of the LRA, as the subsection confers
this right upon the lapsing of the 30- day period contemplated
in
the subsection regardless of whether conciliation actually
takes place or a certificate of non-resolution is issued by
the CCMA
or the bargaining council concerned. It follows that neither the
holding of an actual conciliation nor the issue of
a certificate of
non-resolution by the CCMA or the bargaining council concerned, is a
prerequisite for purposes of referring
an unfair dismissal or unfair
labour practice dispute to arbitration or adjudication in terms of
s191(5)(a) and (b) of the LRA,
where there has been a lapse of 30
days from the date on which the CCMA or bargaining council received
the referral and the dispute
remains unresolved.’
agreement
amends s set out in A policy for theand the effectiveness of
section 37, as set out in annexure E, will
join the cur
[6]
[
2011]
7 BLLR 663
LC at para [15]
[7]
(2016) 37
ILJ 1091 (CC) at para [45] and [46]
[8]
Section 1,
which reads:
“
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 27 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 workplace; and
(iv) the effective resolution of
labour disputes.”
[9]
Which
provides:
“
Interpretation
of this Act
Any
person applying this Act must interpret its provisions-
(a)
To give effect to its primary objects
(b)
………
(c)
………
..”
[10]
See also
City
of Johannesburg Metropolitan Municipality v SAMWU J2236/07.
[11]
[2010] 2 BLLR 172 (LC)
[12]
Which provides that;
‘
When
conciliation has failed, or at the end of the 30-day period or any
further period agreed between the parties−
(a)
the commissioner must issue a certificate
stating whether or not the dispute has been resolved;
(b)
the Commission must serve a copy of that
certificate on each party to the dispute or the person who
represented a party in the
conciliation proceedings; and
(c) the
commissioner must file the original of that certificate with the
Commission.’
[13]
See
Bombardier
Transportation (Pty) Ltd v Mtiya N.O and Others
[2010] 8 BLLR 840
(LC); NUMSA v Driveline Technologies (Pty) Ltd & another
[2000]
1 BLLR 29
(LAC), and Seeff Residential Properties v Mbhele NO &
others [2006] 27 ILJ 1940 (LC)
[14]
See
Gillet
Exhaust Technology (Pty) Ltd t/a Tennaco v NUMSA on behalf of
Members and Another (2010) 31 ILJ 2552 (LAC) at para [17],
where it
was held that;
‘
Finally,
while the appellant is entitled to an order declaring that the
respondent's members are not entitled to embark upon a
strike in
respect of their demand for 'transport subsidy/allowance', the
appellant's prayer for the setting aside of the certificate
of
non-resolution of the dispute is misconceived. I say this because
whether the certificate of non-resolution is valid or not,
in this
case this did not affect the legality of the strike the employees
may have been planning to embark upon. This is so because
in terms
of s 64(1)(a)(i) and (ii) of the Act a strike will be a protected
strike even if there is no certificate of non-resolution
of the
dispute provided that a period of 30 days from the date of the
referral of the dispute to conciliation has lapsed and
all the other
requirements of s 64 of the Act have been complied with.’
[15]
In reference to Betlane v Shelly Court CC
(2011) (1) SA 388
(CC).
See also Rule 7 (5) (b) of the Rules of this Court which provide
that:
“
The
replying affidavit must address only those issues raised in the
answering affidavit and may not introduce new issues of fact
or of
law”.
[16]
See
Shephard
v Tuckers Land and Development Corporation (Pty) Ltd
1978 (1) SA
173(W)
at 177, where it was held that;
“
This
is not however an absolute rule. It is not the law of the Medes and
Persians. The court has a discretion to allow new matter
to remain
in a replying affidavit, giving the respondent the opportunity to
deal with it in a second set of answering affidavits.”
[17]
See
CUSA v
Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009 (2) SA 204
(CC);
2009 (1)
BCLR 1(CC)
at para
[68]
, where it was held that;
“
Where
a point of law is apparent on the papers, but the common approach of
the parties proceeds on a wrong perception of what
the law is, a
court is not only entitled, but is in fact also obliged, mero motu,
to raise the point of law and require the parties
to deal therewith.
Otherwise, the result would be a decision premised on an incorrect
application of the law. That would infringe
the principle of
legality. Accordingly, the Supreme Court of Appeal was entitled mero
motu to raise the issue of the Commissioner’s
jurisdiction and
to require argument thereon.”
[18]
See Ceramic
Industries Ltd t/a Better Sanitary Ware v National Construction
Building and Allied Workers Union (1997) 18 ILJ 671
(LAC); SA
Airways (Pty) Ltd v SATAWU
[2010] 3 BLLR 321
(LC) at paragraphs [26]
to [27]; and Metsimaholo Local Municipality v South African
Municipal Workers Union (JA123/2014) ZALAC
[2016].
[19]
Annexure ‘GJB10’ – Consolidated Index
[20]
See South
African Transport and Allied Workers Union (SATAWU) and others v
Moloto NO and another [2012]12 BLLR 1193 (CC) at para
[91]
[21]
Which
provides;
65.
Limitations on right to strike or recourse to lock-out
“
(3)
Subject to a collective agreement, no person may take part in a
strike or
a lock-out or in any conduct in contemplation or
furtherance of a strike or lock-out-
(a) if that
person is bound by-
(i)
any arbitration award or collective agreement that regulates the
issue in dispute; or…”
[22]
[2010] 8
BLLR 836 (LAC)
[23]
At para
[10]
[24]
In reference to Fidelity Guards v PTWU
[1997] 11 BLLR 1425
(LC) at
1433. See also
Komatsu
Southern Africa (Pty) Ltd v National Union of Metal Workers of South
Africa and Others (J 1437/2013) [2013] ZALCJHB 298
(17 September
2013) at para [35] where it was held that;
“
The
judgment in Fidelity Guards was approved of in
Air
Chefs (Pty) Ltd v SA Transport and Allied Workers Union and Others
where the Court said: ‘In
summary, the learned judge concluded that an issue is regulated if
it is contained in a substantive
rule, or if the process for dealing
with the issue is set out in the regulating agreement. In this case,
the parties did agree
on a process regulated by a procedure.’
A further reference is made to the judgment in ADT Security
(Pty) Ltd v SA
Transport and Allied Workers Union and Another
where it was held also with
specific reference to Section 65(3)(a) that ‘the prohibition
against a strike action where there
is a binding collective
agreement is not limited to substantive issue/s in dispute but
includes the procedure laid out in the
collective agreement.”
[25]
Which provides
‘
Section
37:
The
Parties agree that subject to the full and final settlement clause
hereunder, section 37 remains unchanged
’
[26]
Which provides;
‘
Full
and Final Settlement:
The
1 July 2014 to 30 June 2017 MEIBC settlement agreement amends
existing terms and conditions of employment, of all employees
covered by the main agreement, and is in full and final settlement
of wages and conditions of employment for the period of the
agreement.
Conditions
of employment that are not amended by this agreement shall continue
to apply.
It
is agreed that the above provision will not affect existing
company-level agreements. Furthermore, in the case of existing
company-level agreements, only party trade unions registered with
the bargaining council will be entitled to engage with employers
at
company level.
Furthermore,
it is agreed that the future of industry collective bargaining and
the effectiveness of Section 37, as set out in
Annexure E,
will during the currency of this agreement be discussed in the
Industry Policy Forum’
[27]
Vanachem
Vanadium Products (Pty) Ltd v National Union of Metalworkers of SA
and Others (2014) 35 ILJ 3241 (LC)
[28]
At para [3]
[29]
See also
CBI Electric: African Cables - A Division of ATC (Pty) Ltd v NUMSA.
CASE NO J 818/14 at para [7]
[30]
Which provide:
‘
22.
It is agreed that in relation to matters referred to various
Bargaining Council
Forums for further deliberation, the parties
reserve their rights in relation to the Bargaining Council’s
Constitution
and the Bargaining Council’s Dispute Resolution
Policy’
[31]
Fakie NO v
CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)
[32]
2015 (6)
BCLR 711 (CC)
[33]
At para [1]
[34]
(2005) 26
ILJ 56 (LAC) at para [18]
[35]
Pikitup
Johannesburg (Pty) Ltd v SAMWU (J2362/15) [2016] ZALCJHB
149 (19 April 2016)
[36]
See
Potgietersrust Platinum Ltd v Ditsela and Others Case No JA66/12
[37]
[2011] 2
BLLR 153 (LAC)
[38]
National
Union of Mineworkers v East Rand Gold and Uranium Ltd
992 (1) SA 700
(AD)