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[2017] ZALCPE 5
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Wallenius Wilhelmsen Logistics Vehicle Services South Africa (Pty) Ltd v National Union of Metal Workers of South Africa and Others (P06/17) [2017] ZALCPE 5 (3 April 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
Case
no: P06/17
In
the matter between:
WALLENIUS
WILHELMSEN LOGISTICS VEHICLE
SERVICES
SOUTH AFRICA (PTY) LTD
Applicant
and
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH AFRICA
First Respondent
STATION
COMMANDER: SAPS UITENHAGE
Second Respondent
EMPLOYEES
AS PER ANNEXURE “A”
Third to Further Respondents
Heard
:
7
March 2017
Delivered
:
3
April 2017
Summary:
Return day of urgent application to declare strike action
unprotected. Rule
nisi
discharged.
JUDGMENT
PRINSLOO,
J
Introduction
[1]
On
25 January 2017 I granted the Applicant an interim interdict
declaring the intended strike action by the Third to Further
Respondents
(the employees) unprotected and they were interdicted and
restrained from any conduct in furtherance or contemplation of such
strike
action.
[2]
On
25 January 2017 the matter was unopposed and the return day was set
for 7 March 2017, when the matter came again before this
Court. The
Respondents filed an answering affidavit, to which the Applicant
filed a reply.
[3]
The
Applicant seeks confirmation of the rule
nisi.
[4]
The
First and the Third and Further Respondents (the Respondents) filed a
counter application to declare the Applicant’s conduct
of
25 January 2017 when they were refused access to the
Applicant’s premises to be an unprotected lock-out.
[5]
When
the urgent application was considered by this Court on
25 January 2017, it was conveyed to the Applicant that the
citation of the Second Respondent as a party to the proceedings is
inappropriate and is more so since no case is made out in respect
of
the Uitenhage station commander of the South African Police Service
as an interested party and no relief is sought against him
or her in
the papers before this Court. No relief is granted against the Second
Respondent who should never have been a cited party
in these
proceedings.
Brief
history
[6]
The
Applicant operates a yard management and technical services business
in the motor industry. More specifically it performs operations
on
the premises of Volkswagen South Africa (VWSA) in Uitenhage where it
is responsible for driving the new vehicles manufactured
[7]
by
VWSA from the VWSA plant to the Volkswagen storage facilities on the
same premises.
[8]
Every
minute a vehicle is released from the VWSA production line and those
vehicles should be moved continuously to the storage
facilities. If
that does not happen, the production plant will come to a standstill,
rendering the Applicant liable to a damages
claim in terms of its
contract with VWSA.
[9]
The
Applicant operates within the registered scope of the Motor Industry
Bargaining Council (MIBCO) and is a member of the employer’s
organisation, Retail Motor Industry Organisation (RMI). RMI and the
First Respondent (NUMSA) are parties to and signatories of
the MIBCO
constitution and they are bound by the provisions of the said
constitution.
[10]
On
25 January 2017 the Applicant approached this Court to interdict
NUMSA and the employees from engaging upon strike action pursuant
to
the notice of strike action that was delivered on 23 January 2017.
[11]
There
is some history to the strike notice issued on 23 January 2017, which
is relevant in deciding the issues before Court.
[12]
NUMSA
demands from the Applicant the payment of a transport allowance in
the sum of R40 per working day, which, according to NUMSA,
is the
actual daily cost of transport the employees have to bear. The
dispute was referred to the Commission for Conciliation,
Mediation
and Arbitration (CCMA) and after it remained unresolved, NUMSA issued
a strike notice on 28 October 2016. The strike
was set to commence on
31 October 2016 at 06h00.
[13]
The
Applicant approached this Court urgently to interdict the strike
action and obtained an interim order on 28 October 2016. The
strike
was declared unprotected as it was not a matter that NUMSA was
entitled to strike on, prior to compliance with clauses 11
and 12 of
the MIBCO constitution, alternatively it was not a matter subject to
strike action at all.
[14]
The
return date was 25 November 2016 and the Applicant’s argument
was that the strike was unprotected by virtue of NUMSA’s
membership of MIBCO and the fact that the MIBCO constitution was
binding on the parties. Sections 11 and 12 of the MIBCO constitution
lays down the procedures to be followed by members of trade unions
intending to embark on protected strike action and NUMSA failed
to
follow those procedures. Alternatively, that the strike should be
interdicted pending the outcome of arbitration proceedings.
[15]
NUMSA
opposed the application and submitted that the MIBCO main agreement
the Applicant sought to rely on expired on 31 August 2016.
This fact
is common cause.
[16]
On
18 November 2016 the parties signed a new main agreement which has a
peace clause and which prohibits plant level bargaining.
On the
return date the Court found that the existence of the new main
agreement does not assist the Applicant as the urgent application
was
filed before the new agreement was signed and at the time of the
filing of the urgent application, there were no valid reasons
to
prevent NUMSA and its members from embarking on the intended strike
as they have fulfilled all the legal requirements for a
protected
strike. On 7 December 2016 the rule
nisi
issued
on 28 October 2016 was discharged in respect of NUMSA and its
members.
[17]
On
8 December 2016 the Applicant’s attorneys addressed a letter to
NUMSA, requesting to be advised whether it was still NUMSA’s
intention to proceed with the strike action. NUMSA did not respond to
the letter and the employees continued to work as they did
after the
interim order was obtained on 28 October 2016.
[18]
On
23 January 2017 and at 22h32 NUMSA gave the Applicant notice of
strike action to commence on 24 January 2017 at 07h00 and that
sparked the second urgent application that was brought on 25 January
2017.
[19]
On
24 January 2017 the strike action commenced and ultimatums were
issued during the course of the morning. In the afternoon of
24
January 2017 NUMSA informed the Applicant that the employees would
return to work on 25 January 2017. The employees tendered
their
services on 25 January 2017 but were turned away by the
Applicant following their failure to sign a document in
terms of
which they would abandon their demand for the payment of a transport
allowance.
[20]
On
25 January 2017 the Applicant secured an interim order from this
Court.
The
urgent application
[21]
The
Applicant approached this Court on an urgent basis and submitted that
the intended strike action is unprotected for a number
of reasons.
[22]
Firstly,
a new main collective agreement was concluded under the auspices of
MIBCO on 18 November 2016. The implementation date
is the effective
date being the date of publication in the Government Gazette, which
is yet to take place, but the employers who
implemented the main
agreement prior to the effective date are immunised from industrial
action that may arise from any dispute
in any other sector of the
industry.
[23]
As
the Applicant implemented the increase with retrospective effect, it
enjoys the aforesaid immunity.
[24]
Secondly,
as the Applicant implemented the increases retrospectively and as it
was accepted by NUMSA, the parties have
inter
partes
agreed
to the implementation of the main agreement, which includes a peace
clause prohibiting plant level bargaining and provisions
governing
transport allowances.
[25]
Thirdly,
the previous main agreement, insofar as it governed substantive terms
and conditions of employment that expired in August
2016 became part
of the employees’ individual agreements, despite the
termination of the main agreement in August 2016.
[26]
The
previous main agreement provided for transport and such provision
became a substantive term of the individual agreements of
employment
and persists after termination of the main agreement. The agreed
obligation is to provide transport, which the Applicant
does, and not
to grant an increase in monetary terms which would constitute nothing
but a wage increase, which had already been
agreed to between the
parties and thus compromised by agreement when the collective
agreement was concluded in November 2016.
[27]
Fourthly
the Applicant and NUMSA agreed that if no agreement could be reached
on transport, the regional council must assist. Transport
is not a
wage increase issue but an obligation to provide transport, which the
Applicant does. NUMSA cannot strike on this issue
but has to refer it
to the regional council, which was not done.
[28]
Fifthly,
the MIBCO constitution is a collective agreement and the parties are
bound by it. The MIBCO constitution remains binding
and enforceable
in the period between its expiry and implementation of the new
agreement. The MIBCO constitution expressly governs
the process of
bargaining and the regulation of strike action. Clauses 11 and 12
prohibit industrial action pursuant to a matter
of mutual interest
without it first being tabled in accordance with the prescribed
procedure. These procedures were not complied
with and the strike
action is thus premature and unprotected.
[29]
Sixthly,
the strike action that NUMSA and the employees intended to embark
upon in October 2016 is abandoned as the employees returned
to work
unconditionally and they cannot simply resume the old strike action
without a new referral or alternatively without providing
48 hours’
notice.
[30]
Furthermore,
there is no demand which the Applicant could accept or reject.
[31]
Lastly
the conclusion of the settlement agreement in November 2016 settled
all wage increases, allowances and the provision of transport
and
therefore the dispute had been unequivocally settled or compromised.
[32]
This
matter raises a number of pertinent issues, which will be dealt with
infra.
Waiver
of the right to strike
[33]
The
first question to be considered is whether the Respondents waived
their right to strike.
[34]
The
Applicant’s case is that when the employees continued to render
their services after 7 December 2016, they did so unconditionally
without reserving their right to strike and thereby waived their
right to strike. The fact that the employees failed to resort
to
strike action once the Court discharged the rule
nisi
indicates that the strike action they intended to embark upon in
October 2016 was abandoned.
[35]
The
Respondents on the other hand explained that they returned to work at
the end of October 2016 pursuant to the interim order
the Court had
granted on 28 October 2016. Their compliance with an order of this
Court cannot be construed as waiver of their right
to strike. The
judgment discharging the rule
nisi
was
handed down on 7 December 2016, shortly before the annual motor
industry shut down and strike action would have served very
little
purpose at that time. Mr le Roux for the Respondents submitted that
the entitlement to strike is not equivalent to an obligation
to
strike.
[36]
The
Respondents’ case is that the strike action in January 2017 is
merely a continuation of the same strike action that was
intended to
commence in October 2016, but was interdicted by this Court.
[37]
In
deciding whether the Respondents waived their right to strike, two
aspects call for consideration. The first is the right to
strike and
the second the legal concept of waiver.
The
right to strike
[38]
Section
23(2)(c) of the Constitution enshrines the fundamental right to
strike, which right is given effect to by the provisions
of
sections 64 to 68 of the Labour Relations Act
[1]
(the Act).
[39]
The
Constitutional Court in
South
African Transport and Allied Workers Union (SATAWU) and Others v
Moloto NO and Another
[2]
held that:
“
It
is thus important to recognise that the right to strike protected in
the Constitution must be interpreted in the general context
that it
is a right that is based on the recognition of disparities in the
social and economic power held by employers and employees.
But
its importance does not only lie in that. It is also an aspect of
associational freedom, as recognised in International Labour
Organisation (ILO) jurisprudence and by this Court in
Bader
Bop
,
and may reinforce other social and political rights as well. It is
significantly more than merely a means to an end.
Another
feature of the right to strike is that it is an integral part of the
collective bargaining process. As noted in
Bader
Bop
,
the committees engaged with the supervision of the ILO Conventions
have asserted that the right to strike is essential to collective
bargaining. This was also recognised in the
First
Certification
case.
The
regulatory scheme for the exercise of the right to strike under the
Act also places it squarely within the context of collective
bargaining.”
[40]
The
right to strike is a fundamental right without any express
limitation. Sections 64–68 of the Act provide the
substantive
limitations and procedural pre-conditions for the
exercise of the right to strike and the employer’s
corresponding recourse
to lock-out. It is within this context that
the question of waiver should be considered.
Waiver
[41]
The
Applicant’s case is that the Respondents waived their right to
strike and this contention is supported by the following
facts: after
judgment was handed down in favour of the Respondents on 7 December
2016, they did not resort to strike action at
the time, the
employees’ return to work was unconditional, without
reservation of their right to continue with strike action
and the
Respondents did not respond to a letter from the Applicant’s
attorney requesting an indication whether they still
intended to
proceed with strike action.
[42]
The
Respondents explained that they returned to work at the end of
October 2016 pursuant to the interim order this Court had
granted on 28 October 2016 and it would have served very little
purpose to continue with strike action after 7 December 2016,
shortly
before the annual motor industry shut down.
[43]
Can
the Respondents’ non-resuming of strike action in the immediate
aftermath of the judgment of 7 December 2016 and the non-responding
to a letter from the Applicant’s attorneys be construed as an
act of waiver or abandonment of their right to strike?
[44]
In
Lufuno
Mphaphuli and Associates (Pty) Ltd v Andrews and Another
[3]
the Constitutional Court
had occasion to consider whether and to what extent parties, by
entering into an arbitration agreement,
can be taken to have waived
the constitutional right to a fair and impartial hearing under
section 34 of the Constitution.
In deciding this question, the
Court set out the requirements of a waiver as follows:
“
Waiver
is first and foremost a matter of intention; the test to determine
intention to waive is objective, the alleged intention
being judged
by its outward manifestations adjudicated from the perspective of the
other party, as a reasonable person. Our
courts take cognisance
of the fact that persons do not as a rule lightly abandon their
rights. Waiver is not presumed; it
must be alleged and proved;
not only must the acts allegedly constituting the wavier be shown to
have occurred, but it must also
appear clearly and unequivocally from
those facts or otherwise that there was an intention to waive.
The onus is strictly
on the party asserting waiver; it must be shown
that the other party with full knowledge of the right decided to
abandon it, whether
expressly or by conduct plainly inconsistent with
the intention to enforce it. Waiver is a question of fact and
is difficult
to establish.”
[4]
(Footnotes omitted.)
[45]
In
Schoombee
and Another v S
[5]
the Constitutional Court remarked as follows about waiver:
“
Was
this a waiver? Perhaps. This Court has emphasised that waiver of a
constitutional right is difficult. The bar is high.
To
waive a right, a party must intentionally and knowingly abandon it.
The onus to prove waiver is strictly on the party asserting
it –
here, the State. Even so, this Court has questioned whether waiver is
applicable in relation to constitutional rights.
And it has
noted the distinction between waiver in the contractual sense and a
mere choice not to exercise a constitutional right.”
[6]
(Footnotes omitted.)
[46]
The
Applicant bears the onus to prove that the Respondents have abandoned
their right to strike and the bar to prove waiver is high.
I am not
convinced that the mere fact that the Respondents did not resume
strike action on 8 December 2016 and failed
to respond to a
letter from the Applicant’s attorneys constituted a clear and
unequivocal intention to waive their right
to strike. These facts are
simply not enough to establish waiver. More so where the right
allegedly waived is a constitutional
one and the bar to establish
waiver even higher.
[47]
In
Public
Servants Association of South Africa v Minister of Justice and
Constitutional Development and Others
[7]
it
was confirmed that the Act does not provide for a limitation of the
right to strike by estoppel, waiver or abandonment and held
that even
where there was a delay of 19 months before strike action actually
commenced, there was no overt act to show that the
right to strike
was indeed waived.
[48]
In
casu
the
delay is a few weeks, with a reasonable explanation for that and
there is no evidence placed before this Court to satisfy the
requirements for waiver.
[49]
Having
found that the Respondents have not abandoned or waived their right
to strike, it remains to be decided whether they were
entitled to
strike. As already alluded to, the Applicant has raised a number of
reasons why the Respondents are not entitled to
embark on strike
action and why such strike is unprotected. I will deal with those
separately.
The
Applicant is immunised from industrial action
[50]
The
previous MIBCO constitution or main agreement was signed in
April 2012 and expired on 31 August 2016 (the old agreement).
On
18 November 2016 the parties signed a new main agreement
(the new agreement). The implementation date of the new agreement
is
the effective date as published by the Minister of Labour in the
Government Gazette and the duration of the agreement will be
from the
date of publication and extension thereof until 31 August 2019. It is
common cause that publication in the Government
Gazette is yet to
take place.
[51]
It
appears from a document the Applicant relies on that the parties
agreed to the implementation date as
supra
but
where an employer has implemented the terms of the agreement with
effect from 1 September 2016, such employer shall
be immune
to any industrial action. The Applicant’s case is that it has
implemented the agreement retrospectively and is
therefore immunised
from industrial action and for this reason the Respondents’
strike action is unprotected.
[52]
This
contention is disputed by the Respondents and they submitted that the
immunity agreement only attaches to motor component manufactures,
a
category that excludes the Applicant. The Applicant insisted that the
immunity against strike action is not limited to the motor
component
manufactures. It is not disputed that the Applicant is not a motor
component manufacturer.
[53]
The
question whether the immunity agreement applies to the Applicant
requires an interpretation of the terms of the said agreement.
The
Supreme Court of Appeal in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[8]
affirmed the principles applicable to the interpretation of
legislation and contracts. The Court held that
:
“
The
present state of the law can be expressed as follows: interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective, not subjective. A sensible
meaning is to be preferred to one that leads
to insensible or
unbusinesslike results or undermines the apparent purpose of the
document…. The “inevitable point
of departure is the
language of the provision itself” read in context and having
regard to the purpose of the provision and
the background to the
preparation and production of the document…”.
[54]
The
document relied upon by the Applicant bears the heading “Sector 1
Chapter III Component Manufacturers” and
in the body of the
agreement the issues of wages, duration and implementation date are
recorded. Under implementation date it is
recorded that—
“
Effective
date as published by the Minister of Labour in the Government
Gazette. The RMI however undertakes to recommend to its
members to
implement the terms of this agreement with effect from 1 September
2016, provided that where an employer has elected
to implement these
terms retrospectively, it shall be immune to any industrial action
that may arise as a consequence of any dispute
in any other sector of
the Industry, with the express understanding that such industrial
action will be automatically unprotected.”
[55]
Applying
the principles applicable to the interpretation of documents, words
should be given their ordinary meaning and the clause
dealing with
the implementation date cannot and should not be read, construed or
considered in isolation. The broader context and
operation of the
agreement should be considered and it should be read and considered
as a whole and not in isolated, fragmented
compartments.
[56]
It is
evident from the heading of the agreement that it is an agreement
that will find application in sector 1 with specific reference
to
component manufacturers. The agreement is not applicable in the
entire motor industry. The clause dealing with the implementation
date should be read and understood as applicable to motor component
manufacturers. The clause provides that once an employer implemented
the terms of the agreement retrospectively “
it
shall be immune to any industrial action that may arise as a
consequence of any dispute in any other sector of the Industry”.
This clause not only foresees the possibility of industrial action in
other sectors of the industry, but it also indicates that
this
agreement is not applicable to any other sector of the industry where
industrial action may still occur.
[57]
The
Applicant is not a motor component manufacturer and despite the fact
that it implemented the terms of the agreement retrospectively,
it is
excluded from the immunity in respect of industrial action that was
agreed to and is afforded to employers in the component
manufacturing
industry. The Respondents’ industrial action is not unprotected
for reasons related to the Applicant’s
alleged immunity.
The
implementation of the main agreement
[58]
The
Applicant’s case is further that the strike action is
unprotected because it has already implemented the increases with
retrospective effect and paid the increases agreed to as from 1
September 2016. The Respondents have accepted the implementation
of
the terms of the new agreement and accordingly
inter
partes
the
parties agreed to the implementation of the agreement, including all
its provisions. The provisions included are a peace clause,
the
prohibition against plant level bargaining and the provisions
governing transport allowances.
[59]
The
Respondents on the other hand stated that the Applicant has
unilaterally implemented the retrospective wage increases and denied
that this accelerated the effective date of the new agreement.
[60]
Mr
le Roux for the Respondents submitted that the suggestion that the
new agreement is operative
inter
partes
ignores
the clear terms of the agreement which stipulate that the effective
date is postponed until the agreement is published in
the Government
Gazette. The effective date is not only postponed in relation to
non-parties, but also
inter
partes.
[61]
Section
31 of the Act provides that a collective agreement concluded in a
bargaining council binds the parties to the bargaining
council who
are parties to the agreement, each party to the collective agreement
and members of a trade union or employers’
organisation that is
a party to the collective agreement. council. The binding nature of
such agreement is qualified by the opening
words of section 31
namely “
Subject
to the provisions of section 32 and the constitution of the
bargaining council”
which
makes it clear that although a collective agreement is legally
binding, such binding effect is contingent on the provisions
of
section 32 or the bargaining council’s constitution.
Promulgation by the Minister of Labour is necessary before a
collective agreement can be extended to non-parties in terms of
section 32.
[62]
In
City
of Cape Town v Independent Municipal and Allied Workers Union and
Others
[9]
the
Court held that:
“
The
use of the words: “subject to section 32” in section 31
of the LRA, is best understood as meaning: “except
as curtailed
by”. In particular, I note that Section 32(2) of LRA thus
curtails the period of the binding nature of a collective
agreement
entered into by the parties to a bargaining council to one “from
a specified date and for a specified period”.
[63]
In
my view the same principle applies where the binding nature of the
collective agreement is subject to the constitution of the
bargaining
council and the period of the binding nature of the collective
agreement is curtailed from a specified date for a specified
period.
[64]
In
casu
the
new agreement, which is the MIBCO constitution and a collective
agreement, provides that the implementation date is “
Effective
date as published by the Minister of Labour in the Government
Gazette
.”
Although the agreement will be binding on the parties, it will only
be binding and effective once it is promulgated
by the Minister of
Labour and until that happens, the new agreement has no legal force
or effect.
[65]
The
new agreement signed on 18 November 2016 is not yet operative and
there is no merit in the Applicant’s submission that
the
parties have
inter
partes
agreed
to the implementation of the new agreement with all its provisions,
which include a peace clause, prohibition against plant
level
bargaining and transport allowances. It follows that the new
agreement, which is not presently operative, cannot be a reason
why
the Respondents’ strike action should be regarded as
unprotected.
The
old MIBCO main agreement
[66]
The
old MIBCO main agreement was signed in April 2012 and expired on
31 August 2016. On 28 October 2016 the Respondents’
gave notice of strike action to commence on 31 October 2016, which
strike action was interdicted until 7 December 2016. On 18 November
2016 the parties signed a new main agreement, which is awaiting
promulgation.
[67]
The
Applicant alleges that the strike action is unprotected because,
despite the fact that the old agreement expired at the end
of August
2016, its terms and conditions still apply for two reasons. Firstly,
the terms and conditions of the old agreement became
part of the
employees’ individual agreements of employment and secondly it
is wrong to argue that the constitution is only
binding when and for
the periods that the main agreement is in force. I will deal with
these submissions
infra.
[68]
In
my view the Applicant has taken a shot gun approach in this
application and made averments and submissions as to why the
Respondents’
strike action is unprotected which submissions are
to some extent contradictory or mutually exclusive. This application
reminds
one of an unedited brainstorming process.
[69]
On
the one hand the Applicant relies on an agreement that provides
immunity against strike action, which renders the status of the
old
agreement or the promulgation of the new agreement irrelevant.
Without any qualification or in the alternative to the claim
that the
Applicant enjoys immunity, the Applicant alleges that the new
agreement has been accepted and implemented
inter
partes
and
as a result of that, all the terms of the new agreement have been
implemented, including the peace clause. In the same breath
and once
again without any qualification or in the alternative, the Applicant
alleges that the terms of the old agreement became
part of the
employees contracts of employment and that the old agreement is still
applicable.
[70]
The
Applicant’s position is thus that the strike is unprotected
because it enjoys immunity and because the new agreement has
been
implemented and because the old agreement is still valid and binding.
I find it difficult to see how all these could at the
same time
render the strike unprotected.
[71]
Be
that as it may, I will deal with the Applicant’s allegations in
this regard. Firstly, the Applicant stated that the strike
action is
unprotected because the old agreement governed substantive terms and
conditions of employment, which became part of the
employees’
employment agreements and remained so, despite the expiry of the old
agreement. The old agreement provided for
transport and the
Applicant’s obligation to provide transport to employees whose
shifts end after 20h00 and where the employer
and employees cannot
reach mutual agreement, the regional council may be requested to
assist in arriving at such an agreement.
[72]
The
agreed obligation is thus to provide transport, which the Applicant
does and not to pay a transport allowance which would constitute
no
more than a wage increase. A wage increase had already been agreed to
between the parties and such claim was thus compromised
by agreement
between the parties when they concluded the new agreement on
18 November 2016.
[73]
Furthermore,
the parties agreed that if no agreement regarding transport could be
reached, the council must assist. The Applicant’s
case is that
the transport issue is not a wage increase but an obligation to
provide transport and this is not an issue on which
the Respondent
can strike, but has to be referred to the council and the Respondents
have failed to do that.
[74]
In
answer to these allegations, the Respondents submitted that even if
the terms and conditions of employment governed by the old
agreement
became part of the employees’ contracts of employment, it is
distinct from the operation of a collective agreement
for purposes of
the substantive limitations on strike action contained in section 65
of the Act.
[75]
The
Respondents further distinguished their demand for the payment of a
transport allowance from the issue of transport as set out
by the
Applicant. The Respondents’ demand does not concern the
availability of transport at the end of an evening shift or
the
provision of transport by the employer, but it concerns the payment
of an allowance for the actual cost of transport, regardless
of the
time of day. The Respondents deny that the demand for transport
allowance was compromised as it is an issue in its own right
and was
pursued outside the ambit of centralised MIBCO negotiations. The
demand could not have been compromised in the central
forum when it
was not pursued in that forum in the first place.
[76]
As
to the allegation that the regional council should have been
involved, the Respondents submitted that the old agreement expired
and its terms are no longer binding and the role of the regional
council is no more than one of facilitation and its involvement
cannot oust the right to strike where the statutory requirements for
strike action have been fulfilled.
[77]
The
first issue to be considered is what is the status of the old
agreement that expired on 31 August 2016.
[78]
In
SAMWU
v City of Tshwane and Another
[10]
the status of an expired collective agreement regulating a shift
system was considered and the Court held that:
“
It
is trite that the terms of a collective agreement are not only
binding on the individual employees but as a matter of law are
incorporated into the employees’ contract of employment. It is
therefore my view that even though the 2006 collective agreement
lapsed, its provisions having been incorporated into the employment
contracts of the individual members of the applicant continued
beyond
the life span of the collective agreement. The shift system remained
as was before the lapse of the collective agreement
because its
provisions became part of the individual employees’ employment
contracts. In other words those terms and conditions
set out in the
collective agreement remained in force even after the lapse of the
collective agreement and would remain as such
until another
collective agreement was concluded changing those provisions that had
been incorporated into individuals’ contracts.”
[79]
It
has to be decided whether the provisions of the old agreement became
part of the employees’ contracts of employment and
whether it
created a vested right that preserved the transport provisions as
part of the employees’ working conditions. If
so, the
conditions may remain in force even after the lapse of the old
agreement and would remain in force until the new agreement
becomes
effective.
[80]
The
Applicant’s case is that clause 4.1B(3)(h) of Division A of the
old agreement provided for transport for employees whose
shifts end
after 20h00 that may be arranged by mutual agreement between an
employer and its employees and where the employer and
employees
cannot reach mutual agreement, the regional council may be requested
to assist in arriving at such an agreement. The
agreed obligation is
to provide transport, which the Applicant does and not to pay a
transport allowance.
[81]
The
Respondents’ case on the other hand is that even if the terms
and conditions of employment governed by the old agreement
became
part of the employees’ contracts of employment, their demand
for the payment of a transport allowance is different
from transport
as set out in clause 4.1B(3)(h) of Division A of the old
agreement. The Respondents’ demand does not
concern the
provision of transport by the employer, but it concerns the payment
of an allowance for the actual cost of transport.
[82]
The
Respondents’ argued that the payment of a transport allowance
is not an issue regulated by the old agreement.
[83]
In
my view there is a distinction to be drawn between terms and
conditions of employment governed by a collective agreement which
are
substantive issues and the portion of the agreement that provides for
procedural issues.
[84]
Terms
and conditions of employment are regulated in the substantive part of
a collective agreement and those may be incorporated
in an employee’s
contract of employment and may stay alive after the expiry of the
collective agreement. The procedural portion
of the agreement sets
out the process to be followed for tabling and negotiating the
substantive issues. These procedural aspects
cannot be regarded as
terms and conditions of employment, but set out procedures the
parties must follow in dealing with each other
and the substantive
part of the agreement.
[85]
Even
if I were to accept that the provisions of the old agreement became
part of the employees’ contracts of employment and
remain in
force after the expiry of the old agreement, it does not assist the
Applicant for a number of reasons.
[86]
Firstly,
it is evident from the provisions of the old agreement that the
Applicant relies on in support for the argument that transport
is
provided for in the old agreement, that the payment of a transport
allowance is not an issue regulated by the old agreement.
It can
therefore not be part of the terms and conditions of the employees’
contracts. It is indeed a separate issue that
was not catered for in
the old agreement or the new agreement and could therefore not have
been compromised.
[87]
Secondly,
the
Labour
Appeal Court in
SA
National Security Employers Association v TGWU and others
[11]
(
SANSEA
)
confirmed that a strike is not prohibited during the currency of a
collective agreement when the issue in dispute relates to terms
and
conditions applicable after its expiry. In the
SANSEA
case the unions and the employers' organization had negotiated wages
and other conditions of employment with unions annually since
1993.
The LAC made it clear that the legislature had intended to provide
that the parties were bound by a collective agreement
for the period
that it was operative and that they were precluded from resorting to
industrial action to change its terms. The
parties were, however, not
prohibited from striking about an issue not provided for in the
collective agreement. The LAC in
SANSEA
held that:
“
What
the legislature intended with s 65(3)
(b)
(i),
in my view, was to provide that the parties are bound to the terms of
the collective agreement for the period that it is operative
and that
they are precluded from resorting to industrial action to change its
terms. So, for example, having agreed on wages in
the security
industry for the period 7 April 1997 to 6 April 1998, the unions are
not entitled to strike to increase the wages
for
that period
.
What
the 1995 Act does not expressly prohibit is a resort to industrial
action by one of the parties to a collective agreement to
resolve a
dispute about an issue which is
not
regulated by the collective agreement.
On
the facts of this case the dispute between SANSEA and the unions
which forms the subject-matter of the strike is the wage dispute
for
the 1998/1999 year. The 1997/1998 agreement does not regulate that
issue. Accordingly, in terms of s 65(3)
(b)
(i)
the unions are not prohibited from embarking on a strike to compel
compliance with its demand.”
[88]
This was
followed in
SA
Federation of Civil Engineering Contractors on behalf of its members
v NUM and Another
[12]
where the Court held that:
“
What
is thus clear from the foregoing is that a collective agreement
remains binding in respect of the issues identified and regulated
in
the current collective agreement. A fundamental consequence of this
principle is therefore that the parties may not strike about
any
issue which is regulated by the current agreement. Nothing, however,
prevents parties from bargaining in respect of an issue
to be
regulated in a following (or new) agreement.”
[89]
As
there is currently no binding agreement that is operative and the
issue of transport allowance is not catered for in the old
or new
agreement, the reasons advanced by the Applicant cannot render the
strike action unprotected.
[90]
The
last reason advanced by the Applicant as to why the strike action is
not protected, is that clauses 11 and 12 of the MIBCO constitution
provide for negotiations, collective agreements, strikes and
lock-outs. Clause 11 provides for negotiations in respect of the
amendment of any existing collective agreement, the introduction of a
new agreement or any matter of mutual interest and the procedure
to
be followed and the timeframes within which it has to take place.
Clause 12 provides that no strikes or lock-outs shall take
place
until the matter giving rise thereto has been dealt with in
accordance with the aforesaid clause 11 and section 64 and 65
of the
Act and shall not take place during the currency of an agreement
arrived at by the parties.
[91]
The
question is whether clauses 11 and 12 that prohibit industrial action
in respect of a matter of mutual interest without it first
being
tabled in accordance with the procedure set out in clause 11, before
strike action could be the recourse, apply
in
casu.
[92]
Clause
12 specifically prohibits strikes or lock-outs until the matter has
been dealt with in accordance with clause 11 and provides
that
strikes and lock-outs shall not take place during the currency of an
agreement.
[93]
Ms
Nel for the Applicant argued that the MIBCO agreement contains a
peace clause that prohibits any form of industrial action as
a result
of any dispute on wage and or salary adjustments and other conditions
of employment relating to any sector in the agreement.
It further
provides that there shall be no two-tier bargaining on any matter of
mutual interest and Ms Nel argued that the
demand for a
transport allowance is nothing but a demand for a wage increase at
plant level, which is clearly prohibited by the
terms of the
agreement.
[94]
One
of the most important consequences of a peace clause in a binding
collective agreement is that the parties may not strike over
any
issue regulated in terms of the collective agreement (see s 65(1)
(a)
and
(b)
of the Act).
[95]
In
my view the provisions of clauses 11 and 12 of the MIBCO constitution
do not assist the Applicant as there is currently no applicable
agreement which prohibits strike action or which prescribes a
procedure to be followed before strike action could follow, as set
out in clauses 11 and 12 of the old agreement. In
SANSEA
the Labour Appeal Court confirmed that
the
legislature had intended to provide that the parties were bound by a
collective agreement for the period that it was operative
and that
they were precluded from resorting to industrial action to change its
terms for that period
.
[96]
T
he
Act provides the legal framework for the exercise of the right to
strike. Section 64(1) of the Act subjects the right to
strike to
a number of limitations. The first limitation relates to the
procedural requirements that must be followed for a strike
to be
protected. In essence it is required that the issue in dispute must
be referred to conciliation. Once conciliation fails
and a
certificate of non-resolution is issued, employees may embark on
strike action provided that the required strike notice is
given to
their employer. Of particular relevance to the present application is
the limitation on strike action in terms of a peace
clause (see s
65(1)
(a)
of the A) and the limitation on strike action where the subject of
the strike is regulated by a collective agreement (s 65(3)
(a)
of the Act).
[97]
In
casu
there
is no operative agreement and once there is compliance with the
provisions of sections 64 and 65 of the Act, the strike action
should
be protected. Even if I am wrong on this and there is indeed an
operative agreement, the strike action is still protected
as the
subject of the strike is not regulated by the agreement and
non-compliance with procedures set out in an agreement, cannot
render
the strike unprotected. In
Country
Fair Foods (Pty) Ltd v FAWU and Others
[13]
the Labour Appeal Court confirmed that the Act sets out specific
requirements which must be met in order for an employee to acquire
the right to strike and once those requirements have been complied
with, the Act confers the protection and status of a protected
strike
as defined in section 67(1) of the Act. The only requirement for a
strike to be protected is that it must comply with the
provisions of
the Act. The Court held that:
“
What
the legislature has sought to achieve is to give parties a choice of
either following a pre-strike dispute procedure contained
in a
collective agreement or following the statutory procedure in s 64(1).
Compliance with either procedure suffices to confer
on employees the
right to strike and the resultant strike acquires the status of a
protected strike with all the benefits and consequences
which flow
from such status. I have considered the question whether there could
be any basis on which, applying purposive interpretation,
it could be
said that a strike which has been resorted to without prior
compliance with a procedure in a collective agreement but
has
complied with the procedure of s 64(1) of the Act can
nevertheless be said not to be a protected strike. I do not think
that that can be said without the court unjustifiably usurping the
legislature's legislative function”.
[98]
When
the Respondent issued a strike notice on 28 October 2016 there
was compliance with the provisions of the Act and it follows
that the
strike was protected, notwithstanding the fact that procedural issues
as set out in the old or new agreement had not been
complied with.
[99]
The
strike that was intended to commence on 31 October 2016 was merely
suspended until 24 January 2017. The strike action in January 2017
was a continuation of the strike action that was intended in October
2016. It is not a separate or different strike, but a mere
resumption
of the strike of which a section 64(1)(b) notice had already been
given. Once an adequate notice as required by the
Act had been given,
there is no obligation to give another notice on resumption of a
temporarily suspended strike
[14]
and there is no need for the Respondents to refer a new dispute or to
issue another 48 hours’ strike notice.
[100]
The
Respondents’ strike action is not unprotected and the Applicant
is not entitled to have the rule
nisi
confirmed
insofar as it declared the strike action unprotected.
[101]
The
Applicant submitted that it is entitled to confirmation of the rule
nisi
in
respect of the unlawful conduct displayed during the strike action.
The Applicant sought an order interdicting and restraining
the
Respondents’ from intimidating, harassing or interfering with
the Applicant’s employees, customers, suppliers,
service
providers or any other person involved in or connected with the
business of the Applicant and from unlawfully interfering
with or
damaging the property or assets of the Applicant, its clients,
employees, service providers or any other person involved
in the
Applicant’s business.
[102]
In
support of the relief so sought the Applicant stated that the
Respondents are conducting themselves unlawfully and video footage
depicting the unlawful conduct will be made available at the hearing
of the matter. No video footage was made available to this
Court.
[103]
The
Applicant alleges that the video footage depicted the employees as
blocking the roads and preventing undisturbed entry and egress
to the
premises of VWSA, setting tyres alight and stoning the Applicant’s
vehicles. In support of these allegations the Applicant
appended
affidavits deposed to by three individuals, describing the aforesaid
events.
[104]
In
opposition the Respondents submitted that the affidavits deposed to
by P Mzwazi, J D Deysel and M A Seekoei do not implicate
the
employees and it is denied that they were responsible for the conduct
as described in the affidavits referred to. In the replying
affidavit
the Applicant did no more than to state that a typed affidavit
deposed to by P Mrwebi was submitted and accepted as evidence
in the
employees’ disciplinary hearings.
[105]
Whether
the Applicant is able to place sufficient or convincing evidence
before the chairperson of an internal disciplinary hearing
to show
that the employees conducted themselves unlawfully, is an entirely
different question and irrelevant for purposes of deciding
the issue
before this Court.
[106]
In
casu
the
affidavits placed before Court do not identify the employees, in fact
they state specifically that it is not known who threw
stones and
state that ‘people’ were blocking the roads. I am not
satisfied that on the facts and evidence placed before
this Court
that the Applicant has made out a case that entitles it to the
confirmation of the second part of the rule
nisi
.
[107]
This
is not to say that this Court condones unlawful conduct during strike
action or that this Court turns a blind eye to conduct
that should be
interdicted and restrained. There is simply not sufficient evidence
placed before this Court to conclude that the
employees have acted
unlawfully and that the Applicant has a clear right to the relief it
seeks.
[108]
The
rule
nisi
issued
by this Court on 25 January 2017 is discharged.
Counter
application
[109]
The
Respondents have filed a counter application seeking a declaratory
order that the Applicant’s conduct on 25 January 2017
is an
unprotected lock out and that the Applicant be interdicted and
restrained from the continued imposition of the lock-out and
that it
be ordered to uplift the lock-out and permit the employees to resume
their duties.
[110]
Alternatively,
and in the event that the lock-out is found to be protected,
interdicting and restraining the Applicant from making
use of
replacement labour during the duration of the lock-out.
[111]
The
Respondents’ case is that on 24 January 2017 their attorney
informed the Applicant that the strike was suspended and that
the
employees were tendering their services in accordance with their
contracts of employment. When the employees returned to work
on 25
January 2017, they were not allowed access to the Applicant’s
premises and they were required to sign a document in
terms of which
they had to abandon their right to pursue the demand for the payment
of a transport allowance as a precondition
for being permitted to
resume work. When the employees refused to sign the document, they
were not permitted to work. The Respondents’
attorneys alerted
the Applicant that its conduct amounted to the imposition of an
unprotected lock-out.
[112]
The
Applicant’s case is that it is entitled to reject the
conditional tender of services in circumstances where such tender
would allow the employees to proceed with their discontinuous strike
action which is unprotected. Until the employees give an unequivocal
relinquishment of the unprotected strike action, the Applicant is
entitled to refuse the conditional tender of services.
[113]
The
Applicant further submitted that the employees were not locked out
but that they were suspended to face charges arising from
their
unlawful conduct during the course of the strike. Even if the
suspension was capable of being construed as a lock-out, it
was
protected given that it was in response to the Respondents’
unprotected strike action.
[114]
The
Respondents insisted that they were locked-out and such lock-out was
not in compliance with the requirements of the Act in that
they were
not given notice of the lock-out as required by the Act and it was
not imposed in response to an unprotected strike,
but was in fact an
offensive lock-out wherefore the Applicant is not entitled to make
use of replacement labour.
[115]
When
the matter was argued I enquired from the parties what the current
state of affairs was and they informed me that the employees
are
currently back at work and that the Applicant is in the process of
finalising the internal disciplinary processes. It appears
from the
affidavits filed in this matter that the disciplinary hearings ran
their course and that the parties are awaiting the
chairperson’s
determination in relation to the issue of guilt.
[116]
In
my view the relief sought by the Respondents in their counter
application has been overtaken by events subsequent to the filing
of
papers and the relief became moot to a great extent. The Respondents
seek an order declaring the Applicant’s conduct on
25 January
2017 an unprotected lock-out, interdicting the continued imposition
of the lock-out and ordering the Applicant to uplift
the lock-out and
permit the employees to resume their duties.
[117]
The
employees are no longer locked-out and they were subsequently
permitted back at work, wherefore relief in that regard and an
order
as sought by the Respondents is unnecessary.
[118]
The
Respondents’ strike action is not unprotected and the normal
consequences in respect of lock-out should follow from that.
There is
no need to decide the issues raised in the counter application in
view of my findings on the protected status of the strike
action and
as the issues became academic in light of subsequent events.
Costs
[119]
In awarding
costs this Court has a very wide discretion. In my view the interest
of justice will be best served by making no order
as to costs, having
regard to the ongoing collective bargaining relationship between the
parties and the prospect of prejudice
to that relationship and the
successful resolution of outstanding issues should an order for costs
be made.
Order
[120]
In
the premises I make the following order:
1.
The rule
nisi
issued on 25 January 2017 is discharged;
2.
The Respondents’ counter application is dismissed;
3.
There is no order as to costs.
_______________________
Connie Prinsloo
Judge of the Labour Court
Appearances
For
the Applicant:
Advocate C A Nel
Instructed
by:
Macgregor Erasmus Attorneys
For
the First. Third
and
Further Respondents: Advocate F
le Roux
Instructed
by:
Gray Moodliar Attorneys
[1]
Act
66
of 1995 as amended.
[2]
(2012)
(6) SA 249
(CC);
2012 (11) BCLR 1177
(CC);
[2012] 12 BLLR 1193
(CC);
(2012) 33 ILJ 2549 (CC). (
Moloto
)
[3]
[2009] ZACC 6
;
2009 (4) SA 529
(CC);
2009 (6) BCLR 527
(CC).
(Mphaphuli)
[4]
Id at
para
81.
[5]
[2016] ZACC 50.
[6]
Id at para 25.
[7]
(2001) 12 BLLR 1385 (LC).
[8]
2012 (4) SA 593 (SCA).
[9]
[2015] ZALCCT 58;
[2015] 12 BLLR 1197
(LC); (2016) 37 ILJ 147 (LC) at para 13.
[10]
[2013] ZALCJHB
104; (2014) 35 ILJ 241 (LC) at para 18.
[11]
[1998] 4 BLLR 364 (LAC).
[12]
(2010) 31 ILJ 426 (LC) at para 26.
[13]
(2001) 5 BLLR 494
(LAC), (2001) 22
ILJ 1103 (LAC).
[14]
Transportation Motor Spares v
NUMSA and others
(1999)
20 ILJ 690 (LC).