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[2018] ZALCJHB 434
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Glencore Operations South Africa (Pty) Ltd and Others v National Union of Metal Workers of South Africa (NUMSA) (J1984/18) [2018] ZALCJHB 434 (29 June 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: J1984/18
In
the matter between:
GLENCORE
OPERATIONS SOUTH AFRICA (PTY) LTD.
TWEEFONTEIN
COMPLEX 1
st
Applicant
GOEDGEVONDEN
COMPLEX 2
nd
Applicant
IMPUNZI
COMPLEX 3
rd
Applicant
GROUP
SERVICES 4
th
Applicant
and
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH AFRICA
(“NUMSA”) Respondent
Heard:
22 June 2018
Delivered:
29 June 2018
Summary:
Urgent interdict- strike alleged to be in contravention of the
provisions of the LRA - in the midst of a referral of a
dispute of
mutual interest, the collective agreement was amended to include a
peace clause. This effectively thwarted the
en route
strike
action. Peace clauses do not trump the right to strike in an
unconstitutional manner. Where a party alleges
mala tides,
capriciousness and arbitrariness in the extension, facts must be
pleaded in support of such a conclusion. Absent pleaded facts,
the
court shall not simply conclude that there was
mala fides,
capriciousness and arbitrariness. Held: (1) The
application for interdict is granted. (2) There is no order as to
costs.
JUDGMENT
Introduction
[1]
This is an urgent application in terms of which the applicant is
seeking to interdict and restrain an intended strike action
following
a notice to embark on a strike action issued by the respondent. The
application is opposed by the respondent. The only
basis upon which
the application is opposed is that the applicants’ collective
agreement which prohibits the intended strike
action is not binding
on the respondent.
Background
[2]
The applicants before me are members of the Minerals Council of South
Africa (MICSA), formerly known as the Chamber of Mines
of South
Africa. In the coal sector, the national Union of Mineworkers (NUM),
United Association of South Africa (UASA) and Solidarity
are members
of MICSA.
[3]
In 2017, the respondent participated in wage negotiations for the
first me. On or about 22 November 2017, an agreement on wages
and
conditions of employment was concluded with various Trade Unions,
whose members are employees of employers represented in MICSA,
through employers' organizations. This agreement was amended on 26
January 2018. The 22 November 2017 agreement did not contain
a peace
clause. The amended collective agreement contained a peace clause.
[4]
In the meanwhile, on or about 13 December 2017, the respondent
referred a dispute to the Commission for Conciliation, Mediation
and
Arbitration (CCMA). The dispute was simply that the respondent was
excluded from the wage agreement. The dispute was enrolled
on 10
January 2018. Parties agreed to extend the life of the conciliation
process. At conciliation a number of jurisdictional points
were
raised. The appointed commissioner was to hand down a ruling on a
particular time, but failed to do so. In the meanwhile,
on 8 June
2018, the respondent issued a strike notice, intending to call its
members to a strike action from 11 June 2018.
[5]
On 8 June 2018, my sister Witcher J issued an interim order
effectively interdicting participation in a strike action pending
the
outcome of this matter. The matter served before me on 22 June 2018.
After hearing submissions on the narrow point on which
the matter
turned, I reserved judgment to carefully consider the submissions and
the authorities relied upon.
Why
should the intended strike be declared unprotected and accordingly
curtailable?
[6]
The only basis upon which the applicants contend that the strike
action is to be limited is that section 65(1) (a)
[1]
of the Labour Relations Act
[2]
(LRA) finds application.
Evaluation
[7]
In matters of this nature, the starting point is as always the
Constitution of the Republic of South Africa
[3]
(the Constitution). Section 23(2) (c) of the Constitution, provides
that
'every worker has the
right to strike'.
The right
to strike is an individual right guaranteed in the supreme law of
this country. Like many other rights guaranteed in the
Bill of
Rights, the right to strike is subject to limitations in terms of the
law of general application. The law that seeks to
limit the right to
strike in this instance is the LRA.
Is
the amended wage agreement a collective agreement?
[8]
I did not understand Ms Edmonds for the respondent to be contending
that the amended wage agreement is not a collective agreement.
However, for good measure, section 213 of the LRA define agreement to
mean "a
written
agreement
concerning
terms and conditions of employment or any other matter of mutual
interest
concluded
by one or more registered trade unions on the one hand and, on the
other hand – one or more employers; or one or
more registered
employers' organisations or one or more registered employers'
organizations".
[4]
[9]
The clause upon which the applicant relies to limit the intended
strike action is the new clause 17, the relevant portion reads
thus:
“
17.3 No party to this agreement
or any other person or entity bound by it will call for, encourage,
or participate in any strike
or lock-out in support or furtherance of
any demand or proposal to amend wages and or other conditions of
employment applicable
during the period of operation of this
agreement."
[10]
I am satisfied that the amended wage agreement is a collective
agreement and its binding effect are dealt with in section 23
of the
LRA.
[11]
In
AMCU v Chamber of Mines
obo Harmony Gold Mining Co Pty Ltd
[5]
,
the Labour Appeal Court
(LAC) held thus:
"[43] It is apparent from a
reading of ss32 and 23, within their proper contexts within the LRA,
that the two sections contemplate,
essentially two different kinds of
collective
agreement.
In s23, collective agreements outside bargaining councils are
contemplated and provided for, whereas s32 contemplates
collective
agreements concluded on a broader basis and more particularly within
bargaining councils.''
[6]
[12]
The source of force or binding effect of this collective agreement is
section 23 (1) (d)
[7]
.
The contention of the respondent in its papers is simply that the
section is not applicable to it. It does not seem to be the
respondent's case as pleaded that the limitation is not reasonable
and justifiable. It was only in argument that a submission to
the
following effect was made:
"It is NUMSA's submission that it
is impermissible for Glencore to bypass the rights of NUMSA members
to strike through artificial
means in the form of
ex post facto
"peace clause”. What this amounts to is an attempt to
usurp the right to strike which s23 (1) (a) of the Labour Relations
Act, and s23 (2) (c) of the Constitution prohibits.”
[13]
The issue of reasonableness and justifiability of the limitations has
been decisively resolved by the Constitutional Court
in AMCU and
others v
Chamber of Mines of
SA and others
[8]
.
This court had an occasion
to determine the rationale for the extension of a peace obligation to
minorities in terms of section
23 (1) (d) of the LRA in
Chamber
of Mines of SA acting on its own name and on behalf of Harmony Gold
Mining Co Ltd and other v AMCU and others.
[9]
In there, my brother Van Niekerk J functional collective bargaining
requires that peace obligation clauses be extended to minority
employees not belonging to any party unions. To this suggestion I
agree. Might I add that this court is obligated to strike a balance
between the right to bargain collectively and the individual right to
strike. Where collective bargaining protects the overarching
right to
fair labour practices, its gains should not be overturned by an
individual right to strike. In my view section 23 (5)
[10]
of the Constitution buttresses this point. Of course the poignant
question is always one that deals with the individual right to
strike
and its limitation through collective agreements. In other countries,
peace obligations do not bind individual employees.
For instance in
Japan, the peace obligation only binds the parties to a collective
agreement because it lacks normative effect.
In Turkey, too, only
signatories agreement are bound. In Finland, the peace obligation
binds the trade union and employers' association
as parties to the
collective agreement, as well as affiliated associations and
individual employees. However it does not bind individual
employees
not affiliated. In Germany individual employees are not bound. In
Spain, employees and trade unions are bound by the
peace obligation.
[14]
The situation in South Africa is that only in instances set out in
section 23 (1) (d) would individual employees be bound by
the peace
obligation. In
Numsa
obo Members v Transnet SOC LTD and others
[11]
I
had an occasion to say
the following:
[16] it is
common cause
that the applicant is not a party to the On that
simple proposition, the agreement will have no binding effect on it
and its members
unless the provisions of the law provides otherwise.
Section 23 (1) (d) provides that a collective agreement binds
employees who
are not members of the registered trade union party to
the agreement if the employees are identified in the·agreement;
the
agreement expressly binds the employees and the trade union that
have, as their members, the majority of employees employed by the
employer in the workplace... "
[15]
Once the requirements of the section are met, the individual
employees are bound. Accordingly, the individual employees cannot
exercise their individual right to strike.
[16]
My brother Lagrange J in
AMCU
v Minister of Labour and others
[12]
correctly held that a party seeking to challenge any extension must
claim that the decision to extend the agreement was
mala
fide,
capricious or
arbitrary. In argument, Ms Edmonds submitted that such was the
respondent's claim. The difficulty with such a submission
is that the
claim is not borne out in the respondent's opposing papers. It is
trite by now that in motion proceedings, affidavits
serve dual
purpose. On the one hand, it is a pleading and on the other it is
evidence. A party can only make a claim by presenting
evidence in
support of such a claim. It is not worth repeating to state that in
motion proceedings, a party stands and fall by
the allegations made
in its affidavit.
[17]
In the opposing papers an allegation was made that the respondent is
not bound by the collective agreement within the contemplation
of
section 23 (1) (d) of the LRA. However, there is no evidence to
gainsay an allegation that the employees are identified, that
the
agreement expressly binds the employees and that the Trade unions
that concluded the agreement are in the majority. Those being
the
requirements of section 23 (1) (d) of the LRA. In argument though,
one of the two points pursued was that the peace clause
was concluded
ex post facto.
Meaning that when the peace clause was added,
the respondent had already referred a dispute.
[18]
This submission seems to suggest that by a mere referral a strike
action gains legitimacy and is then immune from any form
of
limitation. That cannot be the case. As I have already stated above,
the right to strike is an individual right. In order for
a strike to
be protected, it must satisfy both the procedural and substantive
requirements. Referral to the dispute resolution
bodies only
satisfies the procedural requirements. The issue whether a person is
entitled to strike in the face of a peace obligation
is a substantive
requirement. Therefore, engaging in a strike action is not similar to
running a relay. It does not mean that once
a runner has left the
starting line, then the relay run is in process. The fact that a
dispute that is later to be prohibited by
a peace clause is referred
does not legitimize the strike action. Fact that a peace obligation
agreement was entered into after
the referral is neither here nor
there. It is a red herring.
[19]
Even in instances where a strike had commenced and it becomes
apparent that the strike contravenes a peace obligation, this
court
is empowered to place a disjuncture. Therefore, what renders this
strike unprotected is not the procedural requirements but
the
substantive requirements. To my mind, nothing turns on the fact that
the collective agreement was entered into when the procedural
requirements were being complied with. It may well be so that the
intention of the applicants was to thwart the possible strike
by the
respondent and its members. To my mind doing so is not unlawful and
is actually a part of power play. It must be remembered
that in the
peace obligation clause, the applicants equally limit their power
flex their muscles, as in locking out. Similarly,
the majority unions
equally clipped their wings to call its members for a strike. As Van
Niekerk J aptly puts it, the majoritarian
principle underlies section
23 (1) (d) and it promotes orderly collective bargaining with a
legitimate purpose of advancing labour
peace.
Conclusion
and summary
[20]
For all the above reasons, I conclude that the peace obligation
clause quoted above binds the respondent's members as required
by
section 23 (1) (d) of the LRA. Accordingly, I am inclined to adopt
the draft order presented by the applicants' counsel barring
the
issue of costs, which the applicants' counsel wisely abandoned.
[21]
In the results I make the following order:
Order
1. The provisions of the Rules
relating to times and manner of service referred to therein are
dispensed with and the matter is
dealt with as one of urgency in
terms of Rule 8 of the Rules of the Labour Court of South Africa;
2. The respondent is interdicted and
restrained from calling or taking part in any strike or any conduct
in contemplation or furtherance
of a strike by the applicant’s
employees (the respondent’s members at the applicant’s
work places pursuant to
the strike notice issued on 08 June 2018
(“the strike notice”);
3. The respondent and its officials
must take all reasonable steps to encourage its members not to
participate in any strike action
pursuant to the strike notice and/or
in the event that members have commenced strike action to cease their
participation in any
strike forthwith;
4. The respondent is to withdraw the
strike notice;
5. The service of the above final
order is to be effected as follows:-
5.1
Upon the respondent’s
offices by telefaxing a copy of the final order to its offices
situated at 153 Bree Street, Newtown,
at telefax number (011) 689
1701 and by email to
Luckyn@numsa.co.za
;
5.2 By posting a copy of this final
order at the entrances to all the applicant’s premises, and on
notice boards used to communicate
with staff at the premises.
6. There is no order as to costs.
________________________
GN
Moshoana
Judge
of the Labour Court of South Africa.
Appearances
For
the Applicant: Advocate A Myburg SC.
Instructed
by: Mervyn Taback Inc, Parktown
For
the Respondent: Ms R Edmonds of Ruth Edmonds Attorneys, Observatory
[1]
65.
Limitations on right to strike or recourse to lock-out
(1) No person may take part in a
strike or 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.
[2]
66 of 1995, as amended.
[3]
Act 108 of 1996.
[4]
Own emphasis.
[5]
[2016] 37 1333 (LAC)
[6]
Quoted with approval in NUMSA obo Members v Transnet SOC ltd [2018]
5 BLLR 448 (LAC)
[7]
23.
Legal effect of collective
agreement
(1) A collective agreement binds -
(d) employees who are not members of
the registered trade union or trade unions party to the agreement if
-
(i) the employees are identified in
the agreement;
(ii) the agreement expressly bind 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.
[8]
[2017] 38 ILJ 831 (CC) at paragraph 58.
[9]
[2014] 35 ILJ 3111 (LC) at paragraph 69.
[10]
Every trade union, employers' organisation has the right to engage
in collective bargaining... To the extent that the legislation
may
limit a right in this chapter, the limitation must comply with
section 36(1).
[11]
Case P88/16 delivered on 13 May 2016.
[12]
Case number JR46/16 delivered on 13 March 2018.