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[2017] ZALCJHB 419
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York Timbers Limited v National Union of Metal Workers of South Africa and Others (J2892/17) [2017] ZALCJHB 419 (15 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 2892/17
In
the matter between:
YORK
TIMBERS LIMITED
Applicant
and
NATIONAL UNION OF
METAL WORKERS OF
SOUTH AFRICA
First Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Second Respondent
COMMISSIONER G
KHOZA
N.O
CEPPWAWU
Third Respondent
Fourth Respondent
Heard:
13
November 2017
Delivered:
15
November 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
[1]
The
applicant approached this Court on an urgent basis on 6 November 2017
to seek interim relief. In summary, the applicant
sought an order
that;
a)
The effect
of the certificate of outcome issued by the second respondent
(Commissioner) be stayed pending the finalisation of a
review
application to set aside the certificate;
b)
That NUMSA
and its members be prohibited from engaging or proceeding with
industrial action after the strike notice was issued on
31 November 2017, pending the finalisation of the review
proceedings;
c)
In the
alternative, that the suggested picketing rules annexed to the
founding affidavit be enforced by way of an interdict pending
the
agreement on the rules.
[2]
The
unopposed application came before La Grange J on 9 November 2017,
who had issued a
rule
nisi
returnable on 14 December 2017 in the following terms;
‘
2.1
The first respondent and its members are prohibited from engaging
and/or proceeding with the strike
of which it gave notice on
31 October 2017 on the basis that it is unprotected strike
action in terms of the Labour Relations
Act, 66 of 1996.’
[3]
The
National Union of Metalworkers of South South Africa (NUMSA)
anticipated the return date on 13 November 2017
by
filing a notice of opposition together with an answering affidavit.
The opposition does not address a variety of factual issues
raised in
the founding affidavit, and chose instead to focus on the protected
nature of the strike.
[4]
The dispute
between the parties relates to a demand that NUMSA be given
organisational rights in terms of the provisions of sections
12, 13,
14,15 and 16 of the Labour Relations Act (LRA).
[1]
NUMSA had referred a dispute to the Commission for Conciliation
Mediation and Arbitration (CCMA) on 22 July 2017, and
conciliation proceedings held on 13 October 2017 failed to
resolve the dispute.
[5]
The
Commissioner issued a certificate of outcome, indicating that NUMSA
could either refer the dispute for arbitration, or that
it could
embark on strike action. NUMSA issued a strike notice on
31 October 2017, with the strike to commence on
6 November 2017.
The nub of NUMSA’s case is that its
strike is protected.
[6]
The
applicant’s contention on the other hand is that NUMSA and its
members are not entitled to embark on strike action as
it remains
unprotected. The applicant relies solely on the principles set out in
NUMSA &
others v Bader Bop (Pty) Ltd and another
[2]
in contending that the strike action is unprotected. The essence of
the applicant’s case in line with its interpretation
of that
judgment is that once NUMSA persisted with its claim that it was
representative, it was duty bound to refer the dispute
for
arbitration after the certificate of outcome was issued. Thus, the
argument went, the right of NUMSA or its members to engage
in strike
action was only available to them if they had admitted that they were
not representative for the purposes of triggering
the provisions of
section 21 of the LRA.
The
legal principles and evaluation:
[7]
The
starting point in determining whether the applicant is entitled to
the relief it seeks is section 23 of the Constitution of
the
Republic
[3]
, which
inter
alia
guarantees every employee the right to strike
[4]
,
to form and join a trade union; and to participate in the activities
and programmes of a trade union. These rights are in turn
regulated
by the provisions of Parts A and B of Chapter III of the Labour
Relations Act and the accompanying right to strike in
Chapter IV of
that Act.
[8]
To the
extent that the applicant placed emphasis on the principles
enunciated in
Bader
Bop
,
the central issue before the Court in that matter was whether,
because of the statutory regulation of organisational rights in
Part
A of Chapter III of the LRA, the right to strike of a minority trade
union in support of a demand for organisational rights,
where such
trade union would not ordinarily qualify for these statutory rights,
would be excluded. The Court’s stance was
that a representative
trade union had two options available to in securing organisational
rights. The first was to utilise the
statutory enforcement provisions
in Section 21 of the LRA, which entailed an attempt to reach a
collective agreement followed by
a referral to the CCMA where, if the
dispute remains unresolved, the trade union could either request that
the dispute be arbitrated
or embark on strike action
[5]
.
[9]
To the
extent that NUMSA had not responded to the factual disputes raised in
the founding affidavit, the applicant contends that
NUMSA regards
itself as having sufficient representation at the workplace to be
recognised by it in accordance with the provisions
of section 21 of
the LRA, and it had referred its dispute within the ambit of that
provision.
[10]
In summary,
section 21 of the LRA provides that that any registered trade union
may notify an employer in writing that it seeks
to exercise one or
more of the organisational rights conferred on it by Chapter III of
the LRA in a workplace. Within 30 days of
receiving the notice, the
employer must meet with the trade union and endeavour to enter into a
collective agreement which regulates
the trade union’s exercise
of organisational rights in the workplace.
[11]
Under
section 21(4), if a collective agreement is not concluded, either the
registered trade union or the employer may refer the
dispute in
writing to the Commission, and in terms section 21 (7), If the
dispute remains unresolved, either party to the dispute
may request
that the dispute may request that the dispute be resolved through
arbitration. Section 21 (8) then proceeds to provide
Commissioners
with guidelines as to what to do in instances where the unresolved
dispute is about whether or not the registered
trade union is a
representative.
[12]
It was
submitted on behalf of the applicant that to the extent that NUMSA
had referred the dispute in the manner it had, and where
there was no
agreement on the issue of representivity, either on the basis of
majority or sufficient representation, NUMSA’s
level of
representivity had to be determined at arbitration. Furthermore,
since NUMSA had not admitted that it was not sufficiently
representative, by engaging in a dispute in terms of section 21, it
was prevented by virtue of the provisions of section 65 (1)
(c)
[6]
of the LRA from embarking on strike. Thus, the argument went, the
right to strike was only available to a union which admitted
or
conceded that it did not have the necessary representative
capacity
[7]
.
[13]
In terms of
section 64 of the LRA, every employee has the right to strike if
certain prerequisites are met. These are that the issue
in dispute
must have been referred to the CCMA, and a certificate stating that
the dispute remains unresolved has been issued;
or a period of 30
days, or any extension of that period agreed to between the parties
to the dispute, has elapsed since the referral.
Thereafter, 48 hours’
notice of the commencement of the strike must have been given in
writing to the employer. NUMSA in
this case had complied with these
prerequisites. The question then is whether NUMSA on the grounds that
it had alleged that it
was sufficiently representative is deprived of
the right to strike on account that it had pursued the dispute in
terms of the provisions
of section 21 of the LRA?
[14]
This Court
Bidvest
Food Services (Pty) Ltd v NUMSA and Others
[8]
in dealing with a similar matter within the context of whether a
union was entitled to organisational rights outside the scope
of its
own constitution held that if an organisational rights dispute is not
resolved at conciliation, the union has an election:
it may either
refer the dispute to arbitration or its members may strike
[9]
.
This conclusion was reached on the basis of the interpretation of the
provisions of section 65 (1) (c) and the exception in section
65
(2)(a) of the LRA by O’Reagan J in
Bader
Bop
,
where it was held that;
‘
Accordingly, a trade union or
employer still dissatisfied after the failure of the section 21
conciliation proceedings may opt for
industrial action or for
arbitration. If a union opts for strike action, however, it may not
then refer the matter to arbitration
for a period of 12 months from
the date on which it gives notice of the strike in terms of section
64(1) of the Act’
And,
‘
So far, the scheme of the Act
is clear. Sufficiently representative trade unions, and those unions
that claim to be sufficiently
representative, may seek to enforce
those organisational rights which they claim the Act confers upon
them by adjudication (mediation
and arbitration) or by industrial
action. It is not clear what options (if any) those unions that are
not sufficiently representative
to be the beneficiaries of the rights
conferred by Chapter III, Part A of the Act have to obtain
organisational rights. There is
no express provision of the Act
regulating their position. The question that arises is whether the
Act must necessarily be interpreted
to preclude non-representative
unions from obtaining organisational rights, either through agreement
with the employer, or through
industrial action.’
[10]
[15]
The
difficulty with the applicant’s case is that section 23(2)(c)
of the Constitution guarantees, for every worker, the right
to
strike, and as already indicated, that right is only constrained by
the provisions of sections 64, which NUMSA had complied
with, and
those of section 65. NUMSA seeks organisational rights envisaged in
sections 12 to 15 of the LRA, and the strike is therefore
protected
under the provisions of section 65 (2) (a) of the LRA.
[16]
Accordingly,
NUMSA had on the strength of the interpretation of section 21 of the
LRA read with those of section 65 (2) (a) by O’Reagan
J in
Bader
Bop
acquired the right to strike. In my view, the provisions of section
21(7) of the LRA, by virtue of its reference to ‘
may’
further accords a party an election. The right to strike cannot
in my view be limited by an incorrect reading into Ncgobo J’s
approach in
Bader
Bop
[11]
that once a registered trade union claims to be representative, it
must utilise the provisions of section 21, and therefore of
necessity, ought to refer the dispute for arbitration if it remains
unresolved. This limitation is not expressed in the provisions
of
section 21 of the LRA
[12]
. To
the extent that Ncgobo J nonetheless stated that a union that claimed
to be representative must utilise the provisions of section
21, and
on the strength of O’Reagan’s interpretation that the
union in such an instance has an election, it follows
that by
electing to embark on strike action, that strike would be lawful and
protected.
[17]
It
therefore follows from the above that the applicant has not
demonstrated a clear right to the relief that it seeks, and it would
not be necessary to consider other requirements relating to the
relief sought. The applicant sought ancillary relief in the form
of
the enforcement of picketing rules contained in a draft agreement
attached to the founding affidavit
[13]
in view of the violent conduct that has characterised the strike
embarked upon by NUMSA members, pending agreement on new rules
to be
concluded with NUMSA. I am satisfied that a case has been made out in
this regard in the founding and supplementary affidavits
submitted on
behalf of the applicant in this regard. It would be remiss of the
Court not to appreciate that violent conduct invariably
accompanies
strike actions in workplaces. I have further had regard to
requirements of law and fairness in regard to the issue
of costs, and
hold the view that the circumstances and facts of this case do not
call for any cost order.
Order:
[18]
In the
premises, the following order is made:
1.
The
rule
nisi
granted on 9 November 2017 is discharged.
2.
The
applicant is granted leave to implement and enforce the draft
Picketing Rules as contained in a draft agreement attached to
the
founding affidavit marked ‘
YT7’
,
pending the finalisation of an agreement on Picketing Rules with
NUMSA.
3.
There is no
order as to costs.
__________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Adv. GJ Scheepers with Adv. J van den Bergh
Instructed
by:
Coetzee Attorneys
On
behalf of the First Respondent:
Ms. R. Edmond of Ruth Edmonds Attorneys
[1]
Act 66 of 1995, as amended
[2]
2003 (2) BLLR 103
CC
[3]
Act 108 of 1996
[4]
See
Bader
Bop
at para 67 where it was held that;
‘
...The
right to strike is essential to the process of collective
bargaining. It is what makes collective bargaining work. It is
to
the process of bargaining what an engine is to a motor vehicle.
Section 64(1) of the LRA confers this right upon every worker.
The
Constitution guarantees this right to every worker in s 23(2)(c).
Once it is accepted that an unrepresentative union has
a right to
bargain collectively to obtain organizational rights, as it must be,
it must follow that it has the right to resort
to strike action in
the pursuit of those rights…’
[5]
Under section 21
(7) and 65 (2) (a) of the LRA
[6]
Which provides that;
(1)
‘
No person may take part
in a strike or a lock-out or in any conduct in contemplation or
furtherance of a strike or a lock-out
if –
(a)
that person is bound by a
collective agreement that prohibits a strike or lock-out in respect
of the issue in dispute.
(b)
that person is bound by an
agreement that requires the issue in dispute to be referred to
arbitration;
(c)
the issue in dispute is one
that a party has the right to refer to arbitration or to the Labour
Court in terms of this Act or
any other employment law’
[7]
In reliance to
Bader
Bop
at para 71 where Ncgobo J held that;
‘
Relying
on the phrase “any registered trade union” in section
21, Du Plessis AJA concludes that all registered trade
unions that
seek to exercise organisational rights must use the procedure in
section 21. This requires some qualification. A
registered trade
union that claims that it has the majority or sufficient
representation must use this procedure. However, a
union that
accepts that it is not a representative union as defined in the LRA,
cannot use section 21. The section is only available
to enforce the
rights conferred by Part A and those rights are conferred on
representative unions – they are not conferred
upon
unrepresentative unions and they cannot therefore be enforced by
such unions through section 21’
[8]
(2015) 36 ILJ 1292 (LC)
[9]
At para 17
[10]
At para 24 - 25
[11]
At para 71
[12]
See
SATAWU
v Moloto NO
2012] 12 BLLR 1193
(CC)
para [52] (as referred to in
Bidvest
)
where it was held that;
“
..the
right to strike is protected in the Constitution as a fundamental
right without express limitation. Also, constitutional
rights
conferred without express limitation should not be cut down by
reading implicit limitations into them and when legislative
provisions limit or intrude upon those rights they should be
interpreted in a manner least intrusive of the right, if the text
is
reasonably capable of bearing that meaning. These are general
interpretative principles that are also applicable to the
interpretation of provisions of the Act, as explicitly affirmed
in section 1(a) of the Act.”
[13]
Annexure ‘YT7’
to the founding affidavit