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[2017] ZALCJHB 158
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South African Airways (SOC) Ltd v South African Cabin Crew Association and Others (J949/17) [2017] ZALCJHB 158 (10 May 2017)
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Reportable
case
no: J 949 / 17
In
the matter between:
SOUTH AFRICAN AIRWAYS (SOC) LTD
Applicant
and
SOUTH AFRICAN CABIN CREW
ASSOCIATION
First Respondent
INDIVIDUAL RESPONDENTS LISTED IN
ANNEXURE
“A”
Second to Further Respondents
Heard
:
3 May 2017
Delivered
:
3 May 2017
Reasons:
10 May 2017
Summary:
Strike
–
issues
in dispute determined by collective agreement prohibiting strike
action – Section 65(1)(a) and (b) applicable –
Section
65(3)(a) applicable – proposed strike unprotected
Strike
– true nature of issues in dispute determined – issues in
dispute disposed of by making collective agreement
applicable –
strike unprotected
Strike
– issue on dispute – issue about an increase to meal
allowances – not considered to be a condition of employment
in
terms of collective agreement – issue dealt with as part of
earlier collective bargaining – strike action on this
issue
prohibited
Collective
agreement – extension of agreement – Section 23(1)(d)
considered – collective agreement applicable
– agreement
determines issue and dispute and prescribes process to deal with
issue – strike action prohibited
Certificate
of failure to settle and conciliation proceedings –
consequences considered – certificate not a determination
of
issue in dispute by CCMA – certificate and conciliation not
binding in deciding whether strike competent
Interdict
– final order – principles considered – clear right
shown and other requirements satisfied – interim
order
confirmed
REASONS
SNYMAN, AJ
Introduction
[1]
This matter arose
from an urgent application brought by the applicant on 26 April 2017
to interdict strike action by the respondents,
which application was
brought in terms of Section 68 of the LRA.
[1]
The strike started
early the morning of 26 April 2017. The application came before
Prinsloo J early afternoon on 26 April 2017,
and at the time was not
opposed by the respondents. After considering the application,
Prinsloo J granted an order in terms of
which the learned Judge
accepted the matter was urgent, condoned any non-compliance with
Section 68(2) of the LRA, and issued a
Rule
Nisi
with
a return date of 23 June 2017, calling on the respondents to show
cause why the following final order should not be granted:
‘
3.1
The conduct of the First to Further Respondents constitute an
unprotected strike;
3.2
The First to Further Respondents are interdicted and restrained from
continuing with the unprotected strike;
3.3
The First to Further Respondents are interdicted and restrained from
encouraging or inciting any of the Applicant’s
non striking
employees to participate in the unprotected strike …
’
[2]
The respondents
duly complied with the
Rule
Nisi
,
after it was granted, and stopped their strike action. Having done
so, the respondents however decided not to wait for the return
day of
23 June 2017. A notice of anticipation
[2]
of the return date
was filed by the respondents on 28 April 2017, in terms of which the
return date was anticipated to 3 May 2017.
This notice was followed
by an answering affidavit by the respondents on 2 May 2017, and a
replying affidavit by the applicant
the morning of the hearing on 3
May 2017. All considered, the matter was therefore ripe for final
determination when it came before
me on 3 May 2017.
[3]
The applicant
sought confirmation of the aforesaid paragraphs of the
Rule
Nisi
,
whilst the respondents sought that the entire Rule Nisi be
discharged. Both parties were
ad
idem
that
what was being sought was final relief. That being the case, the
applicant must satisfy three essential requirements, being:
(a) a
clear right; (b) an injury actually committed or reasonably
apprehended; and (c) the absence of any other satisfactory remedy.
[3]
[4]
Further, and as
these are motion proceedings in which final relief is sought, any
factual disputes that exist between the parties
must be resolved and
determined on the basis as set out in the regularly referred to
judgment of
Plascon
Evans Paints v Van Riebeeck Paints.
[4]
These principles
are aptly summarized in
Thebe
Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National
Bargaining Council for the Road Freight Industry and
Another
[5]
,
as follows:
‘…
where
an applicant in motion proceedings seeks final relief, and there is
no referral to oral evidence, it is the facts as stated
by the
respondent together with the admitted or undenied facts in the
applicants' founding affidavit which provide the factual
basis for
the determination, unless the dispute is not real or genuine or the
denials in the respondent's version are bald or uncreditworthy,
or
the respondent's version raises such obviously fictitious disputes of
fact, or is palpably implausible, or far-fetched or so
clearly
untenable that the court is justified in rejecting that version on
the basis that it obviously stands to be rejected.
’
[5]
Having considered
all the pleadings filed, and after hearing argument by Advocate
Redding SC for the applicant and Advocate Mooki
for the respondents,
I made the following order on 3 May 2017:
‘
1.
Paragraphs 3.1, 3.2 and 3.3 of the Rule Nisi issued on 26 April 2017
is confirmed as a final order.
2.
There is no order as to costs.
3.
Written reasons for this order will be handed down on 10 May 2017.
’
[6]
This judgment now
constitutes the written reasons referred to in paragraph 3 of my
order,
supra
.
Background
facts
[7]
For the sake of
convenience in this judgment, I will refer to the applicant as ‘SAA’,
the first respondent as ‘SACCA’
and the second to further
respondents as cited in the application and as listed in annexure “A”
to the notice of motion,
as the ‘individual respondents’.
Fortunately, and in the end, a substantial part of the factual matrix
important
to deciding this matter, turned out to be undisputed.
[8]
SAA is a state
owned enterprise and the national airline carrier. The individual
respondents are all employed by SAA to serve as
cabin crew on its
aircraft, in respect of both its domestic services and international
services. The individual respondents are
also members of SACCA, a
registered trade union representing the cabin crew in SAA. There are
also a number of other recognized
representative trade union in SAA,
which includes National Transport Movement (‘NTM’),
United Association of South
Africa (‘UASA’), and South
African Transport and Allied Workers Union (‘SATAWU’).
[9]
Collective
bargaining is SAA is currently regulated on the basis of what can be
described as an internal central level. On 17 December
2014, a ‘Main
Bargaining Forum Constitution’ was concluded between SAA and
all the representative trade unions, which
will be referred to in
this judgment as ‘the Constitution’. The Constitution is
a collective agreement under the LRA.
The Constitution created what
was called the ‘Main Bargaining Forum’ (‘MBF’),
which also had two sub-committees,
being the Cabin Crew Sub-Committee
and the Ground Staff Sub-Committee. Further, the Constitution created
what was called the ‘Main
Consultation Forum’ (‘MCF’).
The difference between these two forums will be dealt with hereunder.
[10]
The bargaining unit
for the purposes of the MBF and MCF under the Constitution was
defined as all permanent employees below management
level S3 and M3,
and in particular, the cabin crew and ground staff combined.
Employees in turn are defined as all persons employed
by SAA, save
for pilots, managers at levels S3, M3 and above, trainees, interns,
fixed term contract employees and independent
contractors. A final
definition in the Constitution of relevance is that of a ‘substantive
issue’, which reads:
‘…
any
matter of mutual interest or any issue relating to Employees’
terms and conditions of employment or any substantive agreement
concluded between the Company and the Party Trade Union/s or any
other issues with financial implications not covered by the
Employees’
contracts of employment.’
[11]
Part 4 of the
Constitution deals with collective bargaining. Clause 16 records that
collective bargaining shall take place in the
MBF, but may be
delegated to the two sub-committees, if required. In terms clause 17,
bargaining on all ‘substantive issues’,
as defined above,
shall be conducted in the MBF, through what is defined as ‘
simple
majority of fifty percent plus one votes
’
.
In the event of a deadlock in the MBF, the dispute resolution
provisions in clause 41.4 of the Constitution would be applied.
Clause 18 deals with the composition of the MBF, which is based on a
system of proportional representation, based on the percentage
membership of the trade unions in the bargaining unit. Finally,
clause 22 of the Constitution applies a time frame to collective
bargaining. Bargaining relating to wages and substantive issues
are to commence by 15 December of each year, and be concluded
by 31
March of the following year. The process commences by the
exchange of written submissions. Thereafter, meetings are
convened by
mutual agreement, to conduct the requisite bargaining.
[12]
The Constitution
also regulates issues which would not normally be the subject matter
of collective bargaining, such as issues relating
to operations and
management prerogative. This is where the MCF, and part 5 of the
Constitution, comes in. In clause 24, it is
specifically recorded
that substantive issues and matters of mutual interest will not be
dealt with in the MCF. It is provided
that the MCF will deal with
what is called ‘operational issues’. The purpose of the
establishment of the MCF is so
the parties can share information and
consult on operational decisions to be taken by SAA. In terms
of clause 26, no decisions
are taken in the MCF by way of vote, and
should the parties not achieve consensus, any party would be entitled
to pursue their
rights under the LRA.
[13]
Part 7 of the
Constitution deals with dispute resolution. Of relevance in this case
is clause 41.4, which provides that unresolved
disputes in the MBF
shall be determined by way the dispute resolution processes under the
LRA, which would clearly be Section 64
and strike action under the
LRA.
[14]
National Union of
Metalworkers of SA (‘NUMSA’) is also involved in SAA.
But, and as is clear from the Constitution,
NUMSA is not a party to
the MBF, nor is it a recognized trade union in terms of the
Constitution. However, on 24 February 2016,
NUMSA and UASA concluded
what was called an ‘agreement of coalition’. In terms of
this agreement, NUMSA and UASA would
act as an ‘alliance’
in bargaining collectively with SAA in the MBF on matters of mutual
interest. Clause 3.4 of this
agreement provided that any agreement
concluded between SAA and the coalition had to be signed by both
parties to the coalition.
[15]
Pursuant to the
collective bargaining time fames in the Constitution, there was
indeed collective bargaining between all the parties
for the 2016
year, in the MBF. SACCA was also a party to these negotiations.
Following these negotiations in the MBF in 2016, a
collective
agreement was entered into on 7 June 2016. This agreement would apply
for the period from 1 April 2016 to 31 March 2017,
as contemplated by
clause 22 of the Constitution. This collective agreement was signed
by NTM and UASA on 7 June 2016, but was
not signed by SACCA and
NUMSA. This collective agreement will be referred to in this judgment
as ‘the wage agreement’.
[16]
The wage agreement,
in clause 2 thereof, contained a provision in terms of which this
agreement was specifically extended to all
non-parties by virtue of
the provisions of Section 23(1)(d) of the LRA. It was specifically
recorded in the wage agreement that
the agreement bound NTM, UASA and
SACCA, as well as all their members. The agreement further specified
that the agreement was extended
to all employees in the bargaining
unit. The wage agreement specifically dealt with and determined a
number of conditions of employment,
including home owners assistance
allowances, medical aid subsidy, and maternity leave, in addition to
determining the annual wage
increase as being 8%.
[17]
Of critical
importance to the current matter is however the issue of meal
allowances, dealt with in clause 11 of the wage agreement.
It is
essential to precisely set out how the wage agreement deals with the
issue of meal allowances. It is written as follows:
‘…
meal
allowances are an operational cost intended to provide sustenance to
employees on official business and it therefore does not
constitute a
term and condition of employment …’.
The clause goes on
to specifically provide that meal allowances must be dealt with in
the MCF. The clause then records that SAA
had decided to increase the
domestic meal allowances to R250 per day with annual CPIX increases.
[18]
Clause 12.1 of the
wage agreement records that it is concluded in full and final
settlement of all issues relating to wages and
conditions of
employment for the 2016 / 2017 year, ending 31 March 2017. It is also
provided in clause 12.5 that any dispute about
the interpretation of
the wage agreement must be resolved by arbitration under the LRA.[19]
On 7 June 2016, SAA
sent a letter to the trade unions, including SACCA, recording that
meal allowances are an operational issue
to be dealt with in the MCF,
and stated that it was the intention of SAA to review meal allowances
in that forum. SAA committed
in this letter to consult the trade
unions about this, in the MCF, over the next three months.
[20]
Against all of the
above background, I now turn to the actual facts giving rise to this
dispute. A number of disputes arose between
SAA and SACCA, following
the conclusion of the wage agreement. The first dispute was about the
extension of the wage agreement
to SACCA in terms of Section 23(1)(d)
of the LRA, which, as set out above, SACCA refused to sign. On 10
June 2016, SACCA referred
a dispute to the CCMA, seeking a
determination as to whether the wage agreement was validly extended
to SACCA and its members,
and whether the wage agreement resolved the
conditions of employment dispute between SAA and SACCA. This dispute
came before commissioner
Yusuf Nagdee for determination, under case
number HO 2361 – 16. In an award dated 21 July 2016,
commissioner Nagdee
determined that NTM and UASA had as their members
the majority of the employee in the bargaining unit. Commissioner
Nagdee concluded
that that the disputes between SAA and SACCA had
been ‘extinguished’, because the wage agreement was
validly extended
to SACCA and its members under Section 23(1)(d) of
the LRA and they were bound by that agreement. This award by
commissioner Nagdee
was never challenged by SACCA, and stands.
[21]
On 14 September
2016, SACCA then referred what it called a mutual interest / refusal
to bargain dispute to the CCMA. This was because
SAA refused to
negotiate an increase in meal allowances with SACCA, as a result of
all the above events. SAA countered by simultaneously,
also on 14
September 2016, referring a dispute to the CCMA concerning the
interpretation / application of a collective agreement,
recording
that the basis of the dispute was that the parties disagreed as to
whether meal allowances was a matter of mutual interest
to be
negotiated on the MBF, or was an operational issue to be dealt with
in the MCF. This referral by SAA was founded on the fact
that the
award of commissioner Nagdee had determined that the wage agreement
applied to SACCA and its members.
[22]
Both these disputes
were consolidated and dealt with by the CCMA under case number HO
2837 – 16. At conciliation held
on 8 November 2016, these
disputes were then settled on the basis that the parties agreed to
meet in the MBF on 11 November 2016
for the purposes of ‘objective
discussion’. The other unions would then also be invited to
this discussion. The discussion
would be facilitated by an agreed
independent facilitator.
[23]
The parties met on
1 and 2 December 2016 in a session facilitated by commissioner
Dadabhai from the CCMA, about the issue of the
international meal
allowances, but failed to reach consensus. A further meeting was
convened on 30 January 2017. Again, the issue
of international meal
allowances was raised, but still it could not be resolved. In
one final attempt to resolve the impasse,
a final facilitated cession
was agreed to, and was then held on 24 February 2017, in which
commissioner Hilligenn from the CCMA
was the facilitator. The parties
finally agreed to disagree.
[24]
On 27 February
2017, SACCA then referred a new dispute to the CCMA. This dispute was
described as one of ‘mutual interest’,
and it was
recorded in the referral that ‘
The
employer party refused to pay meal allowance for more than seven
years.
’
The
result required in the referral was the payment of a daily meal
allowance of US$165 per day, or the issue of a certificate of
non-resolution.
[25]
Following this
referral, commissioner Hilligenn again became seized with the matter
under case number HO 873 – 17. The
matter was set down as
one of ‘mutual interest’ at the CCMA head office in
Johannesburg, for conciliation. All
the parties attended and
SAA raised a number of points
in
limine
.
Commissioner Hilligenn determined that SACCA was ‘in a
position’ to refer a matter of mutual interest to the
CCMA, as
the parties had tried to resolve the matter but were at an impasse.
Commissioner Hilligenn then issued a certificate of
failure to
settle, in terms of Section 135(5) of the LRA, on 17 April 2017. This
certificate reflected that the matter concerned
was one of mutual
interest about the issue of an international meal allowance, and that
strike action was competent.
[26]
On 21 April 2017,
SACCA then served a notice of intention to strike on SAA, indicating
that the strike would commence on 26 April
2017 at 04h00. In this
notice, SACCA demanded an increase of the international meal
allowance. This notice then gave rise to the
application by SAA to
this Court, referred to above.
[27]
With the issues of
urgency and compliance with the notice provisions as contemplated by
Section 68(2) of the LRA having been already
disposed of in the order
of Prinsloo J referred to above, I need not dwell on this any
further. I will therefore turn directly
to the applicant’s
prayer for final relief, starting with a consideration of the issue
of a clear right.
The
issue of a clear right
[28]
Two issues lie at
the heart of the applicant’s case relating to its clear right
to the relief sought. The first is based on
a contention that the
issue in dispute forming the subject matter of the envisaged strike
is regulated by collective agreement
(in particular the wage
agreement), and as such, strike action would be prohibited under
Section 65 of the LRA. The second issue
is a contention that the
issue in dispute had been resolved by the collective bargaining
process in the MBF, and if SACCA wanted
to table demands in this
regard, it had to do so in the next round of negotiations on
substantive issues, in the time frames and
in the manner as
prescribed by the Constitution. For this reason as well, the
applicant contends that the strike is prohibited
under Section 65 of
the LRA.
[29]
In the answering
affidavit, the respondents contend that SACCA and the individual
respondents are not bound by the wage agreement.
The reason for this
contention was based on an argument that the agreement was not
concluded with the majority of the employees
in the bargaining unit,
and thus could not be validly and competently extended to SACCA and
its members under Section 23(1)(d)
of the LRA. According to the
respondents, and since they were not bound by the wage agreement,
they were still free to pursue strike
action in respect of the
dispute relating to the meal allowances.
[30]
The respondent also
had a second string to their bow, in the answering affidavit.
This was a case founded on the fact the
issue in dispute was always
one of mutual interest, that a mutual interest dispute had been
properly referred to the CCMA, and
a certificate of failure to settle
had been issued declaring the dispute to be one of mutual interest
and that strike action was
competent. According to Mr Mooki, the
representative for the respondents, the CCMA is an administrative
organ that made a determination
about the nature of the dispute in
issuing the certificate, which determination remains binding until
set aside.
[6]
The proposition is
therefore that the respondents are entitled to rely on the
certificate as it stands, to render their strike protected,
and this
Court is in effect hamstrung to go beyond what it contains.
[31]
The principal
arguments of the parties, as set out above, can in essence be
crystalized into two broad categories of issues for
determination.
The first issue concerns deciding whether the respondents are bound
by the wage agreement, and whether the wage
agreement then determines
the issue of meal allowances. If this is so, then the strike
may very well be unprotected.
The second issue is whether the
respondents’ mutual interest referral to the CCMA on 27
February 2017 with the resulting
certificate of failure to settle
issued on that basis, rendered strike action about the meal allowance
competent, even if the respondents
were bound by the wage agreement.
I will now deal with these two principal issues, under separate
headings, hereunder.
The
wage agreement
[32]
Considering the
wage agreement, it is clear that it was concluded in the context of
collective bargaining in the MBF in terms of
the Constitution. It is
part of a process and outcome envisaged by the Constitution. It
applied to the period prescribed by the
Constitution. It is also
undisputed that the wage agreement was signed by SAA, NTM and UASA,
but not by NUMSA or SACCA.
[33]
Because SACCA did
not sign the wage agreement, the first question to be answered would
be whether SACCA is indeed bound by the wage
agreement. In this
regard, both the wage agreement and the Constitution must be
considered. In the Constitution, it is provided
that decisions taken
following bargaining on wages and conditions of employment, in the
MBF, are done by way of a simple majority
vote, ultimately based on
membership numbers. Then, and in the wage agreement, specific
provision is made for the extension
of the wage agreement to all
employees in the bargaining unit, including both union members and
non-union members, and specific
reference is made to Section 23(1) of
the LRA in this respect.
[34]
There can be no
doubt that the wage agreement is a collective agreement. That
being the case, and in terms of Section 23(1)(d)
of the LRA, a
collective agreement concluded between a majority trade union
[7]
and an employer can
be competently extended to non-parties to the agreement, provided
specific conditions are met. These are
as follows:
‘
(i) the
employees are identified in the agreement;
(ii) the
agreement expressly binds the employees; and
(iii) that
trade union or those trade unions have as their members the majority
of employees employed by the employer in the
workplace.
’
[35]
It is specifically
recorded in the wage agreement that it is extended to and
specifically binds all employees in the bargaining
unit, and in
particular, employees who are or may become members of the trade
union parties, which includes SACCA. The provisions
of Section
23(1)(d)(i) and (ii) have thus been complied with. In
Sasol
Mining (Pty) Ltd v Association of Mineworkers and Construction Union
and Others
[8]
the Court held:
‘
Section
23(1)(d)(ii) is clear. It requires the agreement expressly to bind
employees who are not members of any trade union or members
of the
trade union not party to the agreement. This principle was confirmed
by the Labour Appeal Court in
Concor
Projects (Pty) Ltd t/a Concor Opencast Mining v Commission for
Conciliation, Mediation & Arbitration & others
when
it held that reliance on s 23(1)
(d)
was
misplaced where the agreement does not state that it binds employees
who are not members of the trade unions that are signatories
to the
agreement.
’
Therefore,
and considering what is specified in the wage agreement, it is my
view that the abovementioned requirements are clearly
satisfied.
[36]
This only leaves to
the consideration as to whether the wage agreement was concluded with
the trade unions representing the majority
of the employees in the
bargaining unit, as contemplated by Section 23(1)(d)(iii) of the LRA.
This issue was pertinently raised
as part of the respondents’
defence as contained in the answering affidavit. In this respect, the
respondents contend that
because of the coalition agreement between
UASA and NUMSA, and with NUMSA not signing the wage agreement, UASA
was not authorized
to sign the agreement for its members.
Further, the respondents contend that UASA and NTM in any event did
not represent
the majority of the employees in the bargaining unit.
[37]
It must be said
that Mr Mooki, representing the respondents, did not press this part
of the respondents’ case in argument,
and in my view, wisely
so. The insurmountable obstacle in the way of the respondents raising
this case in the application now before
me, is the fact that this
very same case was advanced by the respondents before commissioner
Nagdee in the CCMA, who found against
the respondents in this respect
by determining that UASA and NTM did represent the majority of the
employees, that Section 23(1)(d)
indeed applied and extended the wage
agreement to SACCA, and that SACCA was bound by the wage agreement.
This ruling by commissioner
Nagdee, which also included a
determination on these same particular facts, was never contested and
thus remains valid and binding
on the parties. What the respondents
are in effect doing is to raise a collateral challenge on the same
issues, but now in this
Court, albeit in a different context. In
National
Education Health and Allied Workers Union on behalf of Kgekwane v
Department of Development Planning and Local Government,
Gauteng
[9]
the Court said:
‘
The
rule against collateral challenges has been accepted in South African
law with one qualification: unless proceedings of a coercive
nature
have been brought against a party, he or she is not entitled to
launch a collateral challenge against an earlier juridical
act, until
the earlier act is itself set aside. Allied to the rule against
collateral challenges is the exceptio res judicata,
which is
available where another court (or tribunal) of competent jurisdiction
has already pronounced finally on the same issue
between the same
parties. The previous judgment must have been given by a competent
court, the matter must have involved the same
parties (or their
successors-in-title) and must have been based on the same cause of
action with respect to the same subject-matter
or thing. These
elements were all present in the dispute before the commissioner in
this matter. Importantly, in this regard, the
exceptio res judicata
is applicable also to arbitration awards whether obtained in private
arbitration proceedings or in proceedings
under the LRA.
’
[38]
Accordingly, the
respondents’ entire defence where it comes to the wage
agreement not being binding on them, has been already
decided, and
would be subject to the
exceptio
res judicata
.
All the respondents have now done is to raise the exact same thing,
but now as a defence to an interdict in respect of their proposed
strike. This change of basis of proceedings does not in my view
change the fact that essentially what was pursued by the respondents
in the proceedings before commissioner Nagdee, was founded on the
exact same facts as now relied on. In simple terms, what can
be
called the ‘subject matter’ of the respondents’
defence in this regard remained the same throughout, in this
respect.
[10]
The approach of the
respondents falls foul of the following clear
dictum
in
Dumisani
and Another v Mintroad Sawmills (Pty) Ltd
[11]
where the Court
held as follows:
‘
It
is against public policy that a litigant should on the same grounds
be able to keep demanding the same relief from the same adversary.
The rule is expressed by saying that a valid defence of res judicata
may be raised where the same thing has on the same grounds
earlier
been demanded from the party:
'Where
a court has come to a decision on the merits of a question in issue,
that question, at any rate as a causa petendi of the
same thing
between the same parties, cannot be resuscitated in subsequent
proceedings.'
African
Farms & Townships Ltd v Cape Town Municipality
1963 (2) SA 555
(A) at 562D per Steyn CJ, approved in Horowitz v Brock & others
1988 (2) SA 160
(A) at 178H J.
’
[39]
Even if I am wrong
in the above regard, I am satisfied that on the evidence, properly
considered, NTM and UASA indeed represent
the majority of the
employees in the bargaining unit when the wage agreement was signed,
being 57.76% of such employees. So, and
even without NUMSA, there is
still a requisite majority. There is equally no doubt that UASA
signed the wage agreement. There is
nothing in the coalition
agreement between UASA and NUMSA that prohibits UASA from concluding
a collective agreement on behalf
of its own members. In my view, all
that the coalition agreement seeks to do is to provide NUMSA with
access to the MBF through
UASA, as a recognized union in the forum,
and it is for that reason that it would be required, as the coalition
agreement specifically
stipulates, that NUMSA would need to sign any
agreement concluded with the coalition. UASA however concluded the
agreement, not
on behalf of the coalition, but only on behalf of
itself, and its members. It must also be considered that there is
certainly what
can be called a majority vote under the Constitution,
in this respect.
[40]
In all of the above
circumstances, I am satisfied that the respondents are indeed bound
by the wage agreement, as matters now stand.
Any case to the
contrary must be rejected. That being the case, and as said in
Sasol
Mining
[12]
:
‘
If
a collective agreement has been extended to non-parties, it binds
those parties and the legal effect is that s 65(1)(a) or 65(3)(a)(i)
of the LRA will apply. No person would be allowed to strike if bound
by a collective agreement that prohibits a strike or that
regulates
the issues in dispute. The extension of collective agreements to
non-party employees effectively denies them the right
to strike in
respect of the issues regulated by the collective agreement.
’
[41]
The applicant
contends that it is this wage agreement that rendered the strike
unprotected. This means that the relevant provisions
of the LRA which
need to be considered are Sections 65(1) (a) and 65(3)(a), which
provide:
‘
(1)(a)
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
if - (a) that
person is bound by a collective agreement that prohibits a strike or
lock-out in respect of the issue in dispute
…
(3)
Subject to a collective agreement, no person may take part in a
strike or 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 ….
‘
[42]
Mr Mooki submitted
that there was nothing in the Constitution or the wage agreement that
expressly prohibited strike action on the
issue of increased meal
allowances, as demanded by the respondents. Whilst this submission is
indeed correct, it is not as simple
as that. What is contemplated by
the above provisions of the LRA is not only an out and out
prohibition of strike action specifically
described as such in a
collective agreement. Simply put, regulation or prohibition in this
context is wider than just saying strike
action is not allowed. What
is necessary to be done is to specifically consider the issue in
dispute forming the subject matter
of the proposed strike, and then
decide whether that issue is already directly or indirectly regulated
and determined by a collective
agreement. If that is indeed the case,
then Section 65(3)(a)(i) itself would render the proposed strike
unprotected. But it may
also be argued that the particular collective
agreement, by way of its application to the issue in dispute,
prohibits the strike,
thus bringing Section 65(1)(a) into play.
[43]
The issue in
dispute forming the subject matter of the respondents’ strike
is plain, and clear. They want an increase in the
meal allowances
paid to the individual respondents on the international routes. I
accept that as a matter of principle, the issue
of an increase in
meal allowances would be an issue in dispute that can competently
form the subject matter of collective bargaining
as a mutual interest
dispute, to be followed by strike action if it remains unresolved.
Accordingly, there is nothing where it
comes to the nature of the
issue in dispute itself that would stand in the way of protected
strike action in this case, considering
that it is clear in this case
that the procedural requirements in Section 64(1) of the LRA have
been complied with.
[13]
[44]
The question that
must thus be answered is whether the wage agreement determined or
regulated the issue in dispute of an increase
in the international
meal allowances of the individual respondents, to the extent of
rendering the strike action pursuant to this
demand to be
incompetent.
[45]
Mr Mooki sought to
answer this question by contending that issue in dispute was always a
dispute about a matter of mutual interest,
and as such, it could not
be dealt with in the MCF under the Constitution. According to Mr
Mooki, and once a dispute did not find
home in the MCF, it could only
be bargained upon in the MBF, this is what SACCA did, and when
agreement was not reached, SACCA
and its members were entitled to
strike. The problem with this argument, although on face value
appealing, is that it flies in
the face of the clear wording of the
wage agreement to which SACCA and the individual respondents are
bound. The wage agreement
specifically determines that meal
allowances are not considered to be a condition of employment, but
are in fact considered to
be an operational issue that must be dealt
with in the MCF. The wage agreement specifically leaves it up
to SAA to decide
the issue of international meal allowances,
following consultation in the MCF. The wage agreement however
specifically determines
the issue of domestic meal allowances, and
records that SAA has ‘revised’ the meal allowance to
R250.00 per day following
consultation.
[46]
Added to the above,
the wage agreement also specifically records that it is concluded in
full and final settlement of all issues
relating to conditions of
employment for the period of the currency of the wage agreement.
[47]
Because of these
specific provisions in the wage agreement, it is simply not
permissible for SACCA to still categorize the issue
of meal
allowances as a mutual interest issue to be bargained in the MBF.
This would be directly contrary to the dispensation brought
about by
the wage agreement, properly interpreted and applied. In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[14]
the Court said:
‘…
.
Interpretation
is the process of attributing meaning to the words used in a document
…. having regard to the context provided
by reading the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon
its coming into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light
of the ordinary rules of grammar
and syntax; the context in which the provision appears; the apparent
purpose to which it is directed
and the material known to those
responsible for its production. Where more than one meaning is
possible each possibility must be
weighed in the light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred
to one that leads to insensible or
unbusinesslike results or undermines the apparent purpose of the
document. ….’
Applying
the above
ratio
,
it is apparent that in terms of the clear language used in the wage
agreement, what that agreement sought to determine, and applying
a
sensible and businesslike approach as to its effect, the parties
intended, and then agreed, not to consider meal allowances as
a
matter of mutual interest but an operational issue, and then leave
the determination of such allowance up to SAA as employer,
subject
only to consultation in the MCF. The wage agreement thus
specifically precluded bargaining on this issue in the MBF.
[48]
Mr Mooki argued that that there was in
effect a contradiction between clause 24.1 of the Constitution and
the wage agreement, in
that clause 24.1 of the Constitution
specifically provided that substantive issues and matters of mutual
interest could not be
dealt with in the MCF, and a meal allowance was
as a matter of principle one of mutual interest. But this argument
does not constitute
a correct interpretation of the Constitution and
resultant wage agreement. In actually interpreting a collective
agreement, the
Court in
Commercial
Workers Union of
SA v Tao Ying Metal Industries and Others
[15]
said that proper
effect must be given to every clause in the document and if there is
a contradiction in clauses, these clauses
must be reconciled so as to
do justice to the intention of the drafters of the document. Bearing
this in mind, there is nothing
prohibiting the bargaining parties
from designating, by agreement, what would normally be a condition of
employment (mutual interest
issue), to be an operational issue to be
dealt with in the MCF. Any substantive issue as defined in the
Constitution (which could
feasibly include a meal allowance) can be
resolved by agreement in the MBF on whatever basis the parties
decide. And this they
did,
in
casu
.
[49]
It does not matter
if SACCA disagreed with this approach and determination, and refused
to sign the agreement, which it clearly
did because of the meal
allowance issue. It must be held bound by the will of the majority,
considering what is specifically contained
in the wage agreement and
the Constitution. In
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of SA and Others
[16]
the Court
said:
‘…
A
collective agreement extended to non-parties does not apply to them
indefinitely. It applies only for the duration of the agreement
and
regarding the specific issues it covers. Section 23 (1) does not
countenance indefinite or far-reaching extension. It directly
ties
the limitation of the right to strike to the outcome of the
collective bargaining. It is narrowly tailored to the specific
goal —
orderly collective bargaining. Given the carefully circumscribed
ambit of the limitation and the importance of its
purpose, it is
reasonable and justifiable.
’
[50]
The above
ratio
in
Chamber
of Mines
then
also provides the answer of what SACCA and its membership can do,
should they wish to still pursue the issue of meal allowances.
The
wage agreement, that determined the issue of meal allowances, has a
sell by date. What would normally follow is a new wage
agreement upon
expiry, which new agreement is then arrived at in terms of the
process prescribed by the Constitution. This process
has a time
frame, from December to March, a method of negotiation, which
includes written submissions setting out demands, and
then bargaining
on one central level between SAA and all unions on one joint basis in
the MBF, where an agreement is ultimately
arrived at on the basis of
majority vote. This is the dispensation the parties have agreed to
for themselves, and they are all
bound by it, including SACCA.
Accordingly, and what SACCA has to do is to declare, in the next
round of bargaining for wages
and conditions of employment, its
dispute about international meal allowances, in its submissions. This
dispute would include that
the issue of meal allowances must be
considered to be a condition of employment to be bargained on. It is
then up to SACCA to convince
its fellow unions in the MBF to support
this demand, and not to conclude any agreement that does not provide
for this demand. If
SACCA is unable to do so, and the majority of
unions decide to retain the
status
quo
and
so agree in the MBF, then so be it. This is the nature of majority
rule, as agreed to in the Constitution. In
Chamber
of Mines
[17]
the Court said:
‘
It
may be posited that if there is to be orderly and productive
collective bargaining, some form of majority rule in the workplace
has to apply. …
’
[51]
It is simply not
permissible for SACCA to in effect subvert the agreed collective
bargaining process and the clear terms of the
wage agreement and
Constitution, by pursuing its and its members’ own singular
demand for an increase in the international
meal allowance outside
the central forum, as a mutual interest and employment condition
issue, and then contend that they are entitled
to strike just because
they have complied with the procedures under the LRA. In
BMW
SA (Pty) Ltd v National Union of Metalworkers of SA on behalf of
Members
[18]
,
Waglay DJP (as he then was), and writing for the majority, said:
‘
The
respondent on the other hand argues that it is not obliged to comply
with the procedure set out in clause A.8.3 because its
demand is one
of mutual interest and it is entitled to embark on a strike in
support of its demand as long as it does so in compliance
with the
provisions of the
Labour Relations Act
66 of 1995
(as
amended) (the Act). I disagree. Where parties have concluded an
agreement which does not deny any of the parties to the agreement
the
rights and obligations provided in the Act, I see no reason why that
agreement cannot be enforced. In fact the Act seeks to
promote
collective bargaining, particularly at the sectoral level and gives
primacy to collective agreements.
A
collective agreement concluded between the parties is binding between
them. It is a contract that sets the agreed terms between
them and as
long as what is agreed upon is not in conflict with the applicable
legislation or contra bones mores it is binding
and enforceable
between them. …
’
[52]
In the end, it is
thus contemplated by the provisions of
Section 65(3)(a)(i)
that the
issue in dispute forming the subject matter of the strike can be
regulated by collective agreement not only by way of
determining the
substance of the issue in dispute itself, but in prescribing a
process or structure in terms of which or in which
the issue in
dispute must be bargained and determined. The failure to then
adhere to such kind of provisions in a collective
agreement would
render a strike unprotected under
Section 65(3)(a)(i)
, even if the
procedural requirements under
Section 64
of the LRA have been
satisfied. As the Court said in
Fidelity
Guards v PTWU and Others
[19]
:
‘
I
am of the opinion that the phrase "regulates the issue in
dispute" refers to a substantive regulation of the issue or
a
process leading to the resolution of the issue.
Must
this regulation be comprehensive? Or is it sufficient that the issue
be regulated generally by providing for instance, that
the issue is
settled, at least for the present year of bargaining, or is assigned
to a specific process or that an issue is assigned
to a particular
level of bargaining or to a particular forum? I think that the wider
sense is meant here.’
[53]
A pertinent and
comparable example of this scenario can be found in the provisions in
bargaining council collective agreements which
prescribe that
conditions of employment can only be negotiated at central level in
the council, and not in individual employers
at plant level. The
judgment in
Cape
Gate (Pty) Ltd v National Union of Metalworkers of SA and Others
[20]
,
which dealt with this scenario, contains a number a
ratios
which can readily
be applied to the conduct of the respondents
in
casu
.
In this respect, the Court in
Cape
Gate
held:
[21]
‘
The
objective underlying the clause is to ensure that negotiation of such
matters takes place only at the level of the bargaining
council and
in no other forum, such as at plant level. It is also to preclude any
strike action over such matters while they continue
to be regulated
by the main agreement. The clause would make little sense if it had
the effect now contended for on behalf of NUMSA,
namely that where
wage increases are determined in the main agreement, employees and
their unions are free to agitate for further
increases by way of
plant level negotiation and ultimately strike action. This would be
subversive of the objective of promoting
collective bargaining at the
level of bargaining councils and the effectiveness of their
agreements. This would not accord with
the clear and worthy
objectives of the LRA. Accordingly the interpretation which is
advanced on behalf of NUMSA cannot be sustained.
…
The
issue in dispute relevant to the present strike is what wage
increase, if any, non-artisans should receive. That seeks to reopen
a
matter already regulated by the main agreement, for that determined,
for the currency of the agreement, the matter of wage increases,
in
what was agreed to be the exclusive forum, namely the bargaining
council.’
[54]
This is not an
undue or improper limitation on the right to strike. In
SA
Clothing and Textile Workers Union and Others v Yarntex (Pty) Ltd t/a
Bertrand Group
[22]
,
the Court held:
‘
I
do not agree that the prohibition of strikes at subsection or plant
level violates the fundamental right to strike. Indeed it
is correct
that the right to strike is guaranteed to every employee, but like
other rights entrenched in the Constitution of the
Republic of South
Africa, it is not an absolute right and is subject to certain
limitations. The LRA gives effect to the right
to strike in the
context of fair labour practices, and does so by creating a framework
in which the right is to be exercised. Thus
the statutory collective
bargaining mechanisms, as well as other means of regulating strike
action, are necessary to ensure that
the purpose of orderly
collective bargaining, as set out in s 3 of the LRA, is met. ….
On the facts it is clear that
the applicants are not denied the right
to strike - they are entitled to exercise this right provided it
occurs at the level of
the industry, the subsector or the section in
which agreement on the demand submitted could not be reached.’
[55]
The Labour Appeal
Court in
South
African Clothing and Textile Workers Union and Others v Yarntex (Pty)
Ltd t/a Bertrand Group
[23]
upheld the judgment
of the Labour Court referred to above. In addition, the LAC in
Yarntex
dealt with an
argument similar to that of Mr Mooki
in
casu
,
to the effect that either the Constitution or the wage agreement had
to specifically prohibit strike action, in order for a strike
to be
prohibited under Section 65(1)(a) or 65(3)(a)(i). The Court
held as follows:
[24]
‘
The
submissions made by Mr Freund regarding the absence of a specific
provision in the constitution prohibiting a strike, such as
the one
embarked upon by the appellants is correct. However, I do not agree
with the further submission he made that the non-existence
of such a
provision specifically prohibiting the strike in question renders the
strike immune from being declared unlawful and
therefore unprotected.
If it were so, chaos would reign in the industry. …’
[56]
If what the
respondents are seeking to do in this instance is permitted, it is my
view that chaos will reign in SAA. It means
that no matter what
was agreed in the MBF, an individual trade union can simply record
its dissatisfaction, extract itself from
the structure, and pursue
its own demands and that of its members. This would completely
subvert and negate the very reason
for the establishment of the
central bargaining forum in SAA, being structured and orderly
collective bargaining on conditions
of employment, at a specific time
and in terms of an agreed process, and where the will of the majority
would ultimately prevail.
Any strike action outside these
parameters is not permitted.
[57]
As I have said
above, the wage agreement also contains a provision that it was
concluded in settlement of the issue of wages, conditions
of
employment and benefits, for the period of the agreement. If
the respondents are correct that a meal allowance was a condition
of
employment susceptible to being negotiated in the MBF, then that
issue was specifically settled in the wage agreement, on the
basis
that SAA would determine the allowance as an operational issue.
Accordingly, and when SACCA sought to pursue this issue,
seek to
negotiate on it, and then ultimately refer the dispute to the CCMA on
27 February 2017, there was no longer any live dispute
in this
respect in existence which could form the subject matter of the
intended strike.
[58]
In the end, as the
Court said in
CSS
Tactical (Pty) Ltd v Security Officers Civil Rights and Allied
Workers Union and Others
[25]
:
‘…
Section
65 of the LRA limits the right to strike in several respects. One of
the limitations gives expression to so-called peace
clause in terms
of which the parties agree that neither employers nor employees may
lock out or strike for the period and concerning
the issues agreed
upon.
Section
65(3)
(a)
permits
parties to limit the right to strike by regulating the issue in
dispute. The term 'regulate' includes regulation by way
of creating a
process to resolve the issue.
’
These
provisions, in my view, find application
in
casu
.
[59]
I therefore
conclude that having regard to the provisions of the Constitution,
and the wage agreement, the respondents would be
prohibited from
striking by virtue of the provisions of either Section 65(1)(a), or
Section 65(3)(a)(i), of the LRA. The issue
in dispute of demanding an
increase in the international meal allowance is clearly regulated by
such collective agreements, to
which the respondents are bound. This
regulation exists in the form of a prescribed process, which the
respondents have failed
to follow and adhere to, and the fact that
the issue in dispute has been specifically resolved on the terms as
contained in the
wage agreement which was concluded in settlement of
all disputes concerning employment conditions. The applicant has thus
shown
a clear right to the relief sought, in this respect.
The
issue of the certificate
[60]
All that now
remains is the respondents’ case relating to the alleged
determination already made by commissioner Hilligenn
in the CCMA, and
the certificate of failure to settle that has been issued. As
stated above, Mr Mooki argued that it had
been decided by the CCMA
that the dispute was one of mutual interest, and when it issued a
certificate of failure to settle, the
issue of that certificate
constituted administrative action that bound the parties, unless set
aside. That meant, in terms of this
argument that strike action was
permitted on this basis alone.
[61]
I do not believe
that there is merit in this argument. Mr Mooki is seeking to elevate
the proceedings in the CCMA and the certificate
of failure to settle
into something it is not. Further, the certificate simply
cannot trump what this Court is expected,
if not obliged, to do in
terms of Section 68 (as read with Section 65) of the LRA when asked
to decide if strikes are permitted.
I will now proceed to deal with
the substance of this argument.
[62]
Firstly, and
considering the written ruling of commissioner Hilligenn that
accompanied the issuing of the certificate of failure
to settle, it
does not decide the nature of the dispute at all. I must confess that
the ruling is badly written and difficult to
follow. But the gist of
it was that because the respondents made a demand to negotiate the
meal allowance, and the parties remained
at an impasse, the
respondents were entitled to refer a mutual interest dispute to the
CCMA, and the CCMA thus had jurisdiction.
There can of course be no
fault with this reasoning. When deciding whether to assume
jurisdiction, commissioner Hilligenn had to
consider the case as
brought and pleaded by the respondents. This consideration does not
entail any decision as to whether this
pleaded case was true, or
whether the dispute brought can ultimately be sustained. Van
Der Westhuizen J, in
Gcaba
v Minister for Safety and Security and Others
[26]
held:
‘
Jurisdiction
is determined on the basis of the pleadings, as Langa CJ held in
Chirwa
,
and not the substantive merits of the case. …. In the event of
the court's jurisdiction being challenged at the outset
(in limine),
the applicant's pleadings are the determining factor. They contain
the legal basis of the claim under which the applicant
has chosen to
invoke the court's competence. While the pleadings - including
in motion proceedings, not only the formal terminology
of the notice
of motion, but also the contents of the supporting affidavits - must
be interpreted to establish what the legal basis
of the applicant's
claim is, it is not for the court to say that the facts asserted by
the applicant would also sustain another
claim …
’
And
in
Mbatha
v University of Zululand
[27]
,
Jafta J referred with approval to the above
dicta
of Van der
Westhuizen J in
Gcaba
,
and said:
‘
Ordinarily
the question of jurisdiction is determined with reference to the
allegations made in the plaintiff's or applicant's pleadings.
….
In assessing whether this procedural requirement has been met, the
proper approach is to take the allegations in the
particulars of
claim (summons) or the founding affidavit at face value. Usually
those allegations are taken to be true for purposes of
determining jurisdiction. The question whether a court has
jurisdiction does not depend on the substantive merits of the case.
The allegations which, if established, would prove jurisdiction are
sufficient.
’
[63]
In this instance,
there was never any determination by commissioner Hilligenn as to
whether the dispute advanced and brought by
the respondents had
substance. All the commissioner said is that they were entitled
to bring the dispute, which, as already
said, is correct. It is
always up to this Court to determine the true or real issue in
dispute when asked to deal with a possible
unprotected strike.
[28]
Added to that, and
when confronted with an application by an employer to interdict a
strike based on any of the provisions of Section
65 of the LRA, it is
the duty of this Court to compare this true or real issue in dispute
to all of the various components of the
subsections in Section 65, as
applicable, to ascertain if there is a match that would render the
strike unprotected. These duties
of this Court cannot be compromised
by what happened in the CCMA where it comes to conciliation
proceedings, the issuing of a certificate
of failure to settle, and
compliance with Section 64 of the LRA. In
Vodacom
(Pty) Ltd v Communication Workers Union
[29]
the
Court held as follows:
‘…
In
short no matter that there has been compliance with s 64, the LRA
limits a right
to strike, such that if the strike reaches one of the limitations in
terms of s 65, it is an
unlawful strike,
notwithstanding compliance with procedures under s 64. To express it
differently, the certificate cannot trump
the limitations of s 65.
… What is before us is the clear provision
of s 65 (1) which
provides that no person may take part
in a strike or lock-out or in any conduct in contemplation
of or furtherance of a strike
or lock-out if that
person is bound by a collective agreement that
prohibits a strike or lock-out in
respect of the
issue
in dispute.’
The
Court concluded:
[30]
‘
In
this particular case,
it is common
cause that there was a collective agreement which applied.
Accordingly whatever certificate may
have been produced and may have
been shown to the employer, the certificate cannot override the
clearly stated limitation upon
the right to strike as contained
in s 65 (1)
(a)
.
In short, a certificate can in no way trump the clear
provisions of the limitation. For this reason, the court a quo
erred in its approach to the law. It should not have held that the
certificate issued in terms of s 64 provided an unqualified
and
unlimited 'passport' to the employees to strike, no matter the
provisions of s 65 (1)
(a)
, as I
have
outlined them.
’
In
my view, this
ratio
directly applies
in
casu
,
and is a complete answer to most of the argument of Mr Mooki which
was presented in a similar respect.
[64]
The proceedings at
the CCMA, and before commissioner Hilligenn, were conciliation
proceedings under Section 135 of the LRA. The
primary purpose of such
proceedings is to attempt an amicable resolution of the dispute, and
not to decide the dispute. This is
evident from Section 135(5), which
compels the commissioner to issue a certificate of failure to settle
based on one simple reason
only, being that the dispute remained
unresolved. That is indeed what happened
in
casu
.
This certificate of failure to settle is of no significance in itself
in deciding whether the strike is protected or unprotected.
All it
proves is that the dispute remains unresolved. It may be added that
the respondents would not even need this certificate
in order to
embark upon a protected strike, as all that is needed is that 30 days
must have elapsed since the dispute was referred
to the CCMA, and
with the dispute still remaining unresolved.
[31]
In
Gillet
Exhaust Technology (Pty) Ltd t/a Tennaco v National Union of
Metalworkers of SA on behalf of Members and Another
[32]
the Court said:
‘…
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.
’
[65]
The certificate of
failure to settle in this instance was clearly issued in the form as
prescribed by Form 7.12.
[33]
As such, it does
not constitute a ruling. In this respect, the Court in
Strautmann
v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg & Bean Suncoast
and Others
[34]
said:
‘
When
a commissioner completes form 7.12 and categorizes the dispute
referred to the CCMA by ticking one of the boxes provided, the
commissioner does not make a jurisdictional ruling. Nor does the
ticking of any of the boxes marked "CCMA arbitration",
"Labour Court" "None" or "Strike/Lockout"
amount to a ruling on which of those courses of action
must be
pursued by a referring party.
’
[66]
In a number of
judgments it has been consistently held that a certificate of failure
to settle has no legal significance beyond
simply recording that a
particular dispute was referred to the CCMA, and remained unresolved
following conciliation under Section
135 of the LRA. It does
not serve as a determination of the dispute or the actual issue in
dispute, binding on the parties,
going forward. In
Bombardier
Transportation (Pty) Ltd v Mtiya NO and Others
[35]
it was held:
‘…
a
certificate of outcome is no more than a document issued by a
commissioner stating that, on a particular date, a dispute referred
to the CCMA for conciliation remained unresolved. It does not confer
jurisdiction on the CCMA to do anything that the CCMA is not
empowered to do, nor does it preclude the CCMA from exercising any of
its statutory powers. In short, a certificate of outcome
has nothing
to do with jurisdiction. If a party wishes to challenge the CCMA's
jurisdiction to deal with an unfair dismissal dispute,
it may do so,
whether or not a certificate of outcome has been issued. …
’
And
as said in
Helderberg
International Importers (Pty) Ltd v McGahey NO and Others
[36]
:
‘
I
align myself with the conclusions reached in the
Bombardier
judgment,
as have a number of other decisions in this court, that a certificate
of outcome has no legal significance beyond a statement
that the
dispute referred to conciliation has been conciliated and was
resolved or remained unresolved, as the case may be. …
’
[67]
Even though
Bombardier
,
and all the authorities following and applying that judgment, related
to dismissal disputes, there is no reason why this same
ratio
cannot apply to
mutual interest disputes. After all, the only thing that
differs is simply the manner in which the dispute
is resolved, being
that dismissal disputes are resolved by way of adjudication or
arbitration, and ‘mutual interest’
disputes by way of
collective action (strike and/or lock out). In
SA
Post Office Ltd v Moloi NO and Others
[37]
the Court said:
‘
The
status of the certificate of outcome has received attention in a
number of cases in the Labour Court and Labour Appeal Court.
Although the status of the certificate of outcome was dealt
with in the context of unfair dismissal cases, in my view the
same
principle applies in cases involving disputes of mutual interest. In
this respect, I align myself with Van Niekerk J, in
Bombardier
Transportation (Pty) Ltd v Mtiya NO & others …
’
[68]
Therefore, and in
summary, the conciliation proceedings at the CCMA on 17 April 2017,
and the certificate of failure to settle issued
by commissioner
Hilligenn pursuant thereto, does not stand in the way of SAA in
obtaining the relief it seeks. It cannot serve
as a determination of
the nature of the dispute, binding on the parties, thus hamstringing
this Court in deciding whether one of
the strike prohibitions in
Section 65 find application. Accordingly, the certificate of failure
to settle, and what is contained
therein, has no legal significance
to the contradict the application of Section 65(3)(a)(i) (or Section
65(1)(a) for that matter),
in
casu
.
The strike of the respondents remain unprotected, for the reasons
elaborated on above.
Conclusion
[69]
Based on all of the
above reasons, I am satisfied that the applicant, SAA, has
established a clear right to the relief sought, and
I so determine.
[70]
As to the other
considerations of prejudice, balance of convenience and an
alternative remedy, I am also convinced that SAA has
satisfied these
requirements. There can be no doubt that if the strike is allowed to
continue, SAA would suffer not only severe
financial prejudice, but
also reputational prejudice. With the anticipation of the
Rule
Nisi
,
and the additional process filed as a result thereof, it has been
shown that the one day the strike endured, before the intervention
of
the order of Prinsloo J, cost SAA about R25 million. Prejudice
is thus a reality, and manifest. As opposed to this,
the
respondents are not left stranded if relief is granted. As dealt with
above, the respondents have an avenue open to them, fully
in line
with the Constitution, to pursue their demand for an increased
international meal allowance. Finally, SAA has no alternative
remedy
available to stop the strike. SAA is thus entitled to the declaratory
relief and the interdict it sought, as a final order.
[71]
This then only
leaves the issue of costs. Mr Redding asked for the costs of two
counsel. But I do not believe any costs order is
appropriate. The
parties still have a continued relationship with one another, in the
context of the MBF. I believe that the existence
of a costs order,
with all the collective bargaining still to come in the MBF, can only
serve to harm this relationship. I also
consider that the respondents
immediately responded to the order of Prinsloo J when granted, and
stopped the strike, and acted
responsibly by rather engaging in the
litigation so that the issues can be clarified. In any event, I have
a wide discretion, under
Section 162, where it comes to the issue of
costs, and this is a case where I believe that a proper exercise of
this discretion
compels me to make no order as to costs.
[72]
It is for all the
reasons above that I made the order that I did on 3 May 2017, as
referred to in paragraph 5 of this judgment.
_____________________
Sean Snyman
Acting Judge of the Labour Court
Appearances:
For the Applicant:
Advocate
A Redding SC together
Advocate M Van As
Instructed by:
ENS Africa Attorneys
For the Respondents:
Advocate O Mooki
Instructed by:
Mbuysa Neale Attorneys
[1]
Labour
Relations Act 66 of 1995
.
[2]
Filed in terms of
Rule 8(10)
, which reads: ‘
Unless
otherwise ordered a respondent may anticipate the return date of an
interim interdict on not less than 48 hours' notice
to the applicant
and the registrar.’
[3]
Setlogelo
v Setlogelo
1914
AD 221
at 227;
V
& A Waterfront Properties (Pty) Ltd and Another v Helicopter and
Marine Services (Pty) Ltd and Others
2006
(1) SA 252
(SCA) at para 20;
Royalserve
Cleaning (Pty) Ltd v Democratic Union of Security Workers and Others
(2012)
33 ILJ 448 (LC) at para 2.
[4]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) a
t
634E 635C. See also Jooste v Staatspresident en Andere
1988 (4) SA 224
(A)
at
259C – 263D; National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)
at paras 26
– 27; Molapo Technology (Pty) Ltd v Schreuder and Others
(2002) 23
ILJ 2031 (LAC) at para 38; Geyser v MEC for Transport, Kwazulu Natal
(2001) 22
ILJ 440 (LC) at para 32; Denel Informatics Staff Association and
Another v Denel Informatics (Pty) Ltd
(1999) 20
IL
J
137 (LC) at para 26.
[5]
2009
(3) SA 187
(W) at para 19.
[6]
This
argument was based on the “
Oudekraal
principle”, emanating from the judgment in
Oudekraal
Estates (Pty) Ltd v City of Cape Town and Othe
rs
2004 (6) SA
222
(SCA)
at
para 26. See also
Plastics
Convertors Association of SA on behalf of Members v National Union
of Metalworkers of SA and Others (2016) 37 ILJ 2815
(LAC) at para
40;
K
aroo
Hoogland Municipality v Nothnagel and Another (2015) 36 ILJ 2021
(LAC) at paras 20 – 21;
Bengwenyama
Minerals (Pty) Ltd and Others v Genorah Resources (Pty) Ltd and
Others
2011
(4) SA 113
(CC)
at
p
aras
84.
[7]
This
includes trade unions acting together to form a majority.
[8]
(2017)
38 ILJ 969 (LC) at para 47.
[9]
(2015)
36 ILJ 1247 (LAC) at para 26. See also
Bidvest
Food Services (Pty) Ltd v National Union of Metalworkers of SA and
Others
(2015)
36 ILJ 1292 (LC) at para 24.
[10]
Compare
Score
Supermarket Kwathema v Commission for Conciliation, Mediation and
Arbitration and Others
(2009)
30 ILJ 215 (LC)
at
paras 29 – 31.
[11]
(2000)
21 ILJ 125 (LAC) at para 6. See also
Fidelity
Guards Holdings (Pty) Ltd v Professional Transport Workers Union and
Others
(1999)
20 ILJ 82 (LAC).
[12]
(
supra
)
at para 28.
[13]
See
Sections 64(1)(a)
and (b) – The dispute was referred to the
CCMA, a certificate of failure to settle was obtained, and proper
notice of intention
to strike was given.
[14]
2012
(4) SA 593
(SCA) at para 18. See also
Bothma-Batho
Transport (Edms) Bpk v S Bothma en Seun Transport (Edms) Bpk
2014
(2) SA 494
(SCA) at para 12.
[15]
(2008)
29 ILJ 2461 (CC) at para 90.
[16]
(2017)
38 ILJ 831 (CC) at para 58.
[17]
(
supra
)
at para 44.
[18]
(2012)
33 ILJ 140 (LAC) at paras 9 – 10.
[19]
[1997]
11 BLLR 1425
(LC)
at
1433F-H. See also
Air
Chefs (Pty) Ltd v SA Transport and Allied Workers Union and Others
(2013)
34 ILJ 119 (LC) at para 27;
ADT
Security (Pty) Ltd v SA Transport and Allied Workers Union and
Another
(2012)
33 ILJ 2061 (LC) at para 18;
Transnet
Ltd v SA Transport and Allied Workers Union and Others
(2011)
32 ILJ 2269 (LC) at paras 21 – 24.
[20]
(2007)
28 ILJ 871 (LC).
[21]
Id
at paras 38 and 40.
[22]
(2010)
31 ILJ 2986 (LC) at para 56
[23]
(2013)
34 ILJ 1931 (LAC).
[24]
Id
at para 57.
[25]
(2015)
36 ILJ 2764 (LAC) at paras
17
– 18.
[26]
(2010)
31 ILJ 296 (CC) at para 75.
[27]
(2014
)
35 ILJ 349 (CC) at paras 159 and 160. See also Makhanya v
University of Zululand (2009) 30 ILJ
1539 (SCA)
at para 71;
SA Maritime Safety Authority v McKenzie
(2010)
31 ILJ
529
(SCA)
at
para 8.
[28]
See
Coin
Security Group (Pty) Ltd v
Adams and Others
(2000)
21 ILJ 924
(LAC) at
para 15;
Pikitup
(SOC) Ltd v SA Municipal Workers Union on behalf of Members and
Others (2014) 35 ILJ 983 (LAC) at para 47; Unitrans Supply
Chain
Solutions (Pty) Ltd v SA Tra
nsport
and Allied Workers Union and Others
(2014)
35 ILJ 265 (LC) at para 9.
[29]
(2010)
31 ILJ 2060 (LAC) at para 10.
[30]
Id at para 11.
[31]
See
Section 64(1)(a)
which reads: ‘… 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 …’
[32]
(2010)
31 ILJ 2552 (LAC) at para 17.
[33]
See
the
Labour
Relations Regulations, 2014 published under GN R1016 in GG 38317 of
19 December 2014.
[34]
(2009) 30
ILJ
2968
(LC)
at
para 9
[35]
(2010)
31 ILJ 2065 (LC) at para 14. See also
Mbele
and Others v Chainpack (Pty) Ltd and Others
(2016)
37 ILJ 2107 (LC) at paras 31 – 32;
Cook4life
CC v Commission for Conciliation, Mediation and Arbitration and
Others
(2013)
34 ILJ 2018 (LC) at paras 8 – 9.
[36]
(2015) 36
ILJ 1586 (LAC)
at
para 11.
[37]
(2012)
33 ILJ 715 (LC) at para 37.