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[2018] ZALCJHB 352
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National Union of Metalworkers of South Africa (NUMSA) obo Members in the employ of the Respondent v Transnet SOC Ltd (JS427/15) [2018] ZALCJHB 352; [2019] 2 BLLR 172 (LC); (2019) 40 ILJ 583 (LC) (31 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JS427/15
Reportable
In
the matter between:
NATIONAL
UNION OF METALWORKERS OF
SOUTH
AFRICA (NUMSA) obo ITS MEMBERS
IN
THE EMPLOY OF THE
RESPONDENT
Applicant
and
TRANSNET
SOC LTD
Respondent
Date
of trial: 17-18 April 2018
Date
heads submitted: 29 June 2018
Date
of judgment: 31 October 2018
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
Is it
legitimate for an employer to prohibit the wearing of union t-shirts
in the workplace? The applicant (NUMSA) contends that
such a
prohibition would breach the rights of expression and freedom of
association of its members. The respondent (Transnet) contends
that
there is no substantive right to wear a union t-shirt in the
workplace as an element of the exercise of the right of expression
or
freedom of association, or on any other basis, except with its
consent.
[2]
In October
2014, the respondent (Transnet) adopted a corporate and protective
clothing policy which, amongst other things, prohibited
the wearing
of ‘
political
party clothing or non-recognised union regalia
’
during working hours. NUMSA was not then a recognised trade union
(nor is it now), with the consequence that the prohibition
impacted
directly on its members. The effect of the rule was that while
Transnet employees who were members of other recognised
trade unions
could wear ‘union regalia’ at work, NUMSA members could
not.
[3]
With effect
from 1 June 2015, the October 2014 policy was revised to extend the
prohibition to the wearing, during working hours,
of ‘
clothing
or any regalia of any sort of
any
political party or trade union
...
(Own emphasis)
.
’
The effect of this change in policy is a prohibition on the wearing
of all union clothing and regalia in Transnet’s
workplaces,
regardless of whether the union concerned is recognised for
collective bargaining or other purposes.
[4]
Although
the policy refers to clothing and regalia, the focus of the rule in
these proceedings has been on the wearing of t-shirts
bearing union
emblems or logos. For convenience, I refer to the rule that came into
effect on 1 June 2015 as the ‘union t-shirt
ban’.
The
factual background
[5]
The
material facts are not in dispute. Three witnesses testified –
a Mr Phatela and Ms Herber for NUMSA, and Mr Motlou for
Transnet. It
is common cause that on 7 March 2014, by way of a document entitled
‘Ops Brief – Code of Conduct’,
Transnet adopted the
following workplace rule:
‘
All
employees must wear uniform clothing that displays the Company logo.
Any other clothing must either be unmarked or display a
recognised
union’s logo only (SATAWU or UTATU SARWHU).
It
is prohibited to wear clothing of any political party or union that
has no organisational rights within the workplace…
It
is a requirement for all employees to comply with all organisational
policies and procedures. Not complying with any policy is
construed
in a serious light and necessary disciplinary action will be taken
against employees who fail or neglect to comply accordingly.’
[6]
NUMSA did
not meet the threshold for recognition and was not a union, that for
the purposes of the policy, enjoyed organisational
rights in the
workplace. Its members could not therefore wear union t-shirts to
work, whereas members of the two recognised unions,
SATAWU and UTATU,
were so permitted.
[7]
During
2015, NUMSA filed a statement of claim that sought first to declare
the policy that prohibited the wearing of clothing or
attire of
unions that have no organisational rights in the workplace
unconstitutional, and secondly to set aside the disciplinary
action
taken against its members in terms of the policy. Transnet responded
by submitting, amongst other things, that the wearing
of union
regalia to promote a trade union was an organisational right, a right
to which NUMSA was not entitled to since it did
not meet the
threshold of representativity for the acquisition of organisational
rights. Further, Transnet contended that NUMSA’s
members who
were disciplined, contravened a workplace rule, and they were
entitled to challenge the disciplinary action taken against
them
through the applicable channels.
[8]
This phase
of the litigation was overtaken by events, in particular, the
introduction of the t-shirt ban in June 2015. A series
of amendments
were introduced to make reference to a new policy that came into
force on 1 June 2015. On that date, Transnet introduced
a Uniform and
Protective Clothing Policy. This policy remains current, and I refer
to it as the ‘2015 policy’. The
policy reads thus:
‘
12.
No clothing or regalia of any sort of any political party or trade
union may be worn during working hours.’
[9]
The parties
do not dispute that the effect of this policy, contrary to that which
was previously applied, is to prohibit the wearing
in the workplace
of t-shirts displaying the logo or insignia of any trade union,
regardless of its recognition status or whether
it enjoys statutory
or other organisational rights.
[10]
Phathela
testified that he joined Transnet in 2012. When employees are not
required to wear safety gear, they are permitted to wear
jeans and a
t-shirt. He is employed at the depot in Uitenhage, and his evidence
related only to events at the depot. He joined
NUMSA in 2014, and
became a shop steward in 2016. When he commenced employment with
Transnet, wearing a union t-shirt was not an
issue and no
disciplinary action was ever taken for doing so. The situation
changed after March 2014 when disciplinary action was
taken against
NUMSA members who wore union t-shirts to work. Some members were
dismissed for contravening the rule. At no stage
did the wearing of
NUMSA t-shirts cause conflict or antagonism in the workplace.
Phathela complained that despite the t-shirt ban,
members of unions
other than NUMSA continued to wear union t-shirts with impunity. In
his view, NUMSA members were selectively
disciplined for
contravention of the ban.
[11]
Herber
testified that she commenced employment at Transnet in 2010 as a
crane operator. She joined NUMSA during 2014, after having
been a
member of other unions. Initially there were no problems wearing
union t-shirts to work, but during February 2015 she was
suspended
for wearing a NUMSA t-shirt, and later dismissed. After a successful
challenge to the fairness of her dismissal, she
was reinstated with
retrospective effect in terms of a CCMA arbitration award.
[12]
Motlou
sought to provide a justifiable rationale for the 2014 and 2015
manifestations of the t-shirt ban. He gave evidence of the
emergence
of ‘breakaway’ unions during 2014, when new unions were
formed to challenge SATAWU, one of the two dominant
unions in the
workplace. At that time, there was no tension between the two
representative unions, and wearing union t-shirts was
not an issue.
After a strike in 2014, which was accompanied by violence and
intimidation, Transnet introduced the policy that allowed
only the
members of recognised trade unions to wear union t-shirts. The new
policy, introduced in 2015, prohibits all employees,
regardless of
union affiliation, from wearing union t-shirts on account of its
intent to maintain and ensure a peaceful environment
in the
workplace. The rationale for the t-shirt ban, he said, was one
related to ‘risk management’.
The
issues
[13]
There are
two issues to be decided. The first is whether the workplace rule
banning employees from wearing ‘
clothing
or any other regalia of any sort of any political party or trade
union …during working hours
’
is constitutional, lawful, reasonable and valid. Put another way, the
issue is whether through its conduct in prohibiting
the wearing of
union t-shirts in its workplace, Transnet has infringed the
protections accorded by the right to freedom of association
enshrined
in Chapter II of the Labour Relations Act, 66 of 1995, (LRA). The
second is whether Transnet has applied the rule selectively
by not
taking disciplinary action against members of other unions who
despite the policy, continue to wear union t-shirts to work
and if
so, whether this differentiation amounts to an act of unfair
discrimination against NUMSA’s members. I should emphasise
that
this case does not concern that part of clause 12 of the impugned
policy that prohibits the wearing of the clothing or regalia
of any
political party.
Analysis
[14]
It will be
recalled that NUMSA’s initial challenge was to the granting of
the right to wear union t-shirts only to members
of recognised trade
unions. Transnet had defended its policy on the basis that the
wearing of union t-shirts was a form of an organisational
right,
which was unilaterally entitled to grant to any trade union that it
considered sufficiently representative to meet the threshold
for the
acquisition of organisational rights. Given that the 2014 policy no
longer exists and that the ban on wearing union t-shirts
now extends
to members of all unions, it is not necessary for me to address this
issue any further.
[15]
The
constitutionality, lawfulness and validity of the t-shirt ban of the
June 2015 policy is challenged on the basis that it infringes:
15.1
The right
of freedom of expression guaranteed by s 16 of the Constitution;
15.2
The labour
relations rights established by s 23 (2)(a) and (b) and (4) (a) and
(b) of the Constitution and s 4(1)(b) and 4 (2)(a)
of the LRA;
15.3
The right
of freedom of association in terms of s 18;
15.4
The
prohibition of unfair discrimination in terms of s 5 (1) and s 5
(2)(c)(i), (iii), (iv), (v) and (vi) of the LRA;
15.5
The
prohibition of unfair discrimination in terms of s 6 (1) of the EEA,
on the grounds of conscience, belief, political opinion,
the
arbitrary grounds of union membership and minority trade union
membership, and unreasonableness.
[16]
The
Constitution affords everyone the right of freedom of expression (s
16(1)). Section 18 affords the right of freedom of association.
In
the labour context, this right is affirmed in s 23 (2), which affords
every worker the right to form and join a trade union,
to participate
in its activities and programmes, and to strike. Section 23 (4)
confers on every trade union and employers’
organisation the
right to determine its own administration, programmes and activities
and to organise.
[17]
The
principle of subsidiarity requires that where legislation is enacted
to give effect to the Constitutional right, reliance must
be placed,
firstly, on the provisions of the specific legislation (see
Baron
and others v Claytile (Pty) Ltd & another
2017 (5) SA 329
(CC)). In
Safcor
Freight (Pty) Ltd t/a Safcor Panalpina v SA Freight and Dock Workers
[2012] 12 BLLR 1267
(LAC), Murphy AJA said the following, at
paragraph 18 of the judgment:
‘
In
my view, the Labour Court erred in declaring the award of increased
remuneration inconsistent with section 9 (equality) and section
23
(fair labour practices) of the Constitution. Where legislation has
been enacted to give effect to a constitutional right, a
party may
not bypass that legislation and rely directly on … the general
provisions of constitutional right to fair labour
[practices in
section 23 or the equality clause in section 9 of the Constitution.’
The
LRA gives expression to the constitutional right of freedom of
association, and the Employment Equity Act (EEA) prohibits unfair
discrimination. NUMSA’s claims must necessarily be
adjudicated within that legislative framework.
[18]
Sections 4
and 5 of the LRA read as follows:
‘
4.
Employees' right to freedom of association
(1)
Every employee has the right-
(a)
to participate in forming a trade union or federation of trade
unions; and
(b)
to join a trade union, subject to its constitution.
(2)
Every member of a trade union has the right, subject to the
constitution of that trade union-
(a)
to participate in its lawful activities;
(b)
to participate in the election of any of its office-bearers,
officials or trade union representatives;
(c)
to stand for election and be eligible for appointment as an office
bearer or official and, if elected or appointed, to hold
office; and
(d)
to stand for election and be eligible for appointment as a trade
union representative and, if elected or appointed, to carry
out the
functions of a trade union representative in terms of this Act or any
collective agreement.
(3)
Every member of a trade union that is a member of a federation of
trade unions has the right, subject to the constitution of
that
federation-
(a)
to participate in its lawful activities;
(b)
to participate in the election of any of its office-bearers or
officials; and
(c)
to stand for election and be eligible for appointment as an
office-bearer or official and, if elected or appointed, to hold
office.
5.
Protection of employees and persons seeking employment
(1)
No person may discriminate against an employee for exercising any
right conferred by this Act.
(2)
Without limiting the general protection conferred by subsection (1),
no person may do, or threaten to do, any of the following-
(a)
require an employee or a person seeking employment-
(i)
not to be a member of a trade union or workplace forum;
(ii)
not to become a member of a trade union or workplace, forum; or
(iii)
to give up membership of a trade union or workplace forum;
(b)
prevent an employee or a person seeking employment from exercising
any right conferred by this Act or from participating in
any
proceedings in terms of this Act; or
(c)
prejudice an employee or a person seeking employment because of past,
present or anticipated-
(i)
membership of a trade union or workplace forum;
(ii)
participation in forming a trade union or federation of trade unions
or establishing a workplace forum;
(iii)
participation in the lawful activities of a trade union, federation
of trade unions or workplace forum;
(iv)
failure or refusal to do something that an employer may not lawfully
permit or require an employee to do;
(v)
disclosure of information that the employee is lawfully entitled or
required to give to another person;
(vi)
exercise of any right conferred by this Act; or
(vii)
participation in any proceedings in terms of this Act.
(3)
No person may advantage, or promise to advantage, an employee or a
person seeking employment in exchange for that person not
exercising
any right conferred by this Act or not participating in any
proceedings in terms of this Act. ‘
[19]
The
provisions of s 4 are drawn from the ILO Convention 187, the Freedom
of Association and Protection of the Right to Organise
Convention. At
its core, ILO Convention 187 provides that workers and employers,
without distinction, have the right to establish
and, subject only to
the rules of the organisation concerned, to join organisations of
their own choosing. The ILO’s Declaration
of Philadelphia,
1944, records that ‘
freedom
of expression and of association are essential to sustained progress’
and are
fundamental principles on which the ILO is based.
[20]
Sections 4
and 5 of the LRA are interrelated – s 4 is definitional (in the
sense that it accords substantive content to the
scope of the right
to freedom of association), while s 5 has, as its purpose, the
protection of that (and other statutory rights)
against acts of
discrimination and interference. Section 4 establishes the right of
every employee to participate in the formation
of a union, to join a
union, and to participate in its lawful activities. Section 5 (1)
provides that no-one may discriminate against
an employee for
exercising any right conferred by the LRA. Having regard to the
wording of s 5 (1) and the words ‘
without
limiting the general protection conferred by subsection (1)
’
it is clear that the umbrella protection provided by s 5 (1) is
followed by the specific forms of proscribed conduct that
are
identified by s 5 (2), without seeking to limit the broad protection
of s 5 (1). Subparagraphs (i) to (iii) of s 5 (2)(c) address
themselves to protections in respect specifically of the
participation in the formation of a trade union, membership of a
trade
union and participation in its lawful activities.
[21]
The
relationship between sections 4 and 5 of the LRA and what is required
of an applicant seeking to enforce the right to freedom
of
association was explained by Murphy AJA in
Safcor
Freight (Pty) Ltd v SA Freight and Dock Workers
(supra)
in the following terms:
‘
[20]
The provisions must be read,
inter
alia
,
with section 4 of the LRA which guarantees every employee the right
to freedom of association, in particular the right to join
a trade
union and to participate in its lawful activities.
[21]
Simply put, the provisions of section 5 of the LRA constitute a
prohibition against “anti-union discrimination”.
Although
section 5(1) does not qualify the term “discriminate”
with the adverb “unfairly”, our constitutional
and
anti-discrimination jurisprudence generally require that
discrimination be unfair and/or unjustifiable in order to constitute
an infringement or violation. Differentiation which is fair and/or
reasonable will not amount to discrimination. A contravention
of
section 5(1) therefore comprises two elements: discriminatory conduct
or action and such being unjustifiable because it is irrational,
lacking in proportionality, unreasonable or actuated by improper or
illegitimate motives.
[22]
The party alleging discrimination (or violation of the specific
protections in section 5) must establish the facts of the allegedly
objectionable behaviour, in which event the onus of justifying it
shifts to the party who engaged in the conduct.
Moreover,
the existence of differentiation or disparate treatment is not
enough; generally, it must be established that the reason
for the
differentiation relates to a proscribed ground, in this case union
membership or union activities. Where there is more
than one reason
for the differentiation, the requirement normally will be met where
it is shown that the prescribed ground has
an element of
predominance. The general prohibition against discrimination in
section 5(1) is given content, without its generality
being limited,
by the provisions of sections 5(2) and 5(3) which impose stricter
liability in respect of specific forms of anti-union
discrimination.
Two of these are of greater significance in the present appeal,
namely: section 5(2)(c)(i) which prohibits prejudicing
an employee
because of past, present or anticipated trade union membership; and
section 5(3) which proscribes advantaging an employee
in exchange for
not exercising any right conferred by the LRA.
[22]
In essence,
NUMSA contends that by prohibiting the wearing of union t-shirts,
Transnet has breached the provisions of s 5 of the
LRA. It is
well-established that the Bill of Rights provides the context within
which the LRA must be interpreted. That much is
clear from s 39 (2)
of the Constitution, which requires the Court to promote the spirit,
purport and objects of the Bill of Rights
when interpreting any
legislation. Further, the LRA itself, in s 3, requires the Court to
interpret its provisions to give effect
to its primary objects, in
compliance with the constitution and in compliance with the public
international law obligations of
the Republic.
[23]
In
National
Union of Public Service and Allied Workers obo Mani and Others v
National Lotteries Board
2014
(3) SA 544
(CC)
,
the Constitutional Court had occasion to consider the interpretation
of s 5 of the LRA. The majority of the Court commenced with
a
reference to the right to freedom of expression in s16 (1) of the
Constitution, the right to freedom of association in s 18 of
the
Constitution and the labour rights established by s 23 of the
Constitution. The Court set out the approach to be followed in
regard
to the interpretation of the LRA:
[146]
This
matter requires an interpretation of certain provisions of the LRA
that confer certain rights on trade unions, employees and
union
members. For that reason it is important to bear in mind
certain provisions of the Constitution and the LRA relevant
to
interpretation. These include section 39 of the Constitution,
the primary objects of the LRA as well as section 3 of that
Act.
[147]
Section
39(1) and (2) of the Constitution reads:
“
(1)
When interpreting the Bill of Rights, a court, tribunal or forum—
(a) must promote
the values that underlie an open and democratic society based on
human dignity, equality and freedom;
(b) must
consider international law; and
(c) may consider
foreign law.
(2) When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must
promote the
spirit, purport and objects of the Bill of Rights.”
[148]
The
purpose of the LRA is to advance economic development, social
justice, labour peace and the
democratisation
of the workplace
by
fulfilling
the primary objects of that
Act.
Those objects
include—
“
(a)
giving effect to section 23 of the Constitution;
(b) giving
effect to obligations incurred by the Republic as a member state of
the International Labour Organisation;
(c)
to
provide a framework within which employees and their trade unions,
employers and employers’ organisations can—
(i)
collectively
bargain to determine
wages, terms and conditions of
employment
and other matters of mutual interest
; and
. . .
(d) to promote—
(i) orderly
collective bargaining;
. . .
(iii)
employee
participation in decision-making in the workplace
; and
(iv)
the
effective resolution of labour disputes
”
(Emphasis
added.)
…
[149]
Section
3 of the LRA provides that any person applying the LRA must interpret
its provisions—
“
(a)
to give effect to its primary objects;
(b) in
compliance with the Constitution; and
(c) in
compliance with the public international law obligations of the
Republic.
[24]
Section 5
(2) (c) (i) proscribes conduct which prejudices an employee on
account of membership of trade union. In the present instance,
it is
an adjunct of trade union membership that members would wish to
engage in associative conduct or expression, which disclosed
or
displayed such membership. One instance of such engagement would be
the wearing of union t-shirts. This much was confirmed by
the
evidence of Herber, whose testimony disclosed the close nexus between
association and identity. She gave the following response
to a
question that related to her identity with the union of which she was
a member:
How
did you feel about the disciplinary action that was taken against you
on this basis? I felt it was unfair and very discriminatory
to me
because I was wearing a T-shirt of a union that I have chosen to
represent me and it was infringing on my rights as a worker
for
freedom of association and freedom of expression because that was
what I was doing when I am wearing the T-shirt, showing the
union
that I had chosen to represent me for whenever there are cases and
they had to go now be off when we give them mandate. Even
the way
that we were, I was taken out of the company I felt embarrassed by
the choice that I have taken for wearing this T-shirt
and being part
of this, of this union because I was escorted just for wearing a
T-shirt out of the company. It too was really,
it was painful, it was
hurting because I… If felt like I had to say as an employee,
that I had to say just say as the employer
told me whichever union
they choose that I should follow that union and do whatever they
want. When I come to work I could not
do anything, evening shift
meetings I could not have a say because when I have a say they know
it is a NUMSA member say you have
no right to say anything or
whatever you say is not taken seriously.
And later, under cross-examination, in
relation to recruitment:
When
I recruit a member I tell them of past experience. I tell them of
things that has happened like for instance I am, I tell them
about
myself, how I had won her case because of NUMSA the union which I
have not Bader sent yet from them yet they hired a legal
assistance
for me to find my case at the CCMA. How I am proof of NUMSA, I am a
product of NUMSA, I am proof that NUMSA does work
for the week is
because I am back at work now
[25]
However,
it does not necessarily follow that the effect of the t-shirt ban is
to prejudice an employee on account of membership
of a trade union
(and thus breach s 5 (2) (c) (i)). The ban extends to all trade
unions; is not directed at membership of a union.
Put another way,
the wearing of a union t-shirt is not an adjunct of membership
per
se
.
It seems to me that the real issue in this instance is whether the
scope of protection in respect of participation in the lawful
activities of a trade union can be said to extend to a right to
wear a union t-shirt in the workplace.
Section
5 (1) (c) (iii) proscribes conduct which prejudices an employee
because of participation in the lawful activities of a trade
union.
In
NUPSAW
(
supra
),
the Constitutional Court went on to hold in relation to the
definition of the phrase ‘lawful activities’ of a trade
union in s 5 (2)(c)(i) (footnotes omitted) –
‘
[151]
The
meaning of the phrase “lawful activities” in sections
4(2) (a) and 5(1) (c) (iii) plays an important role in the
present
case. In interpreting this phrase we must be guided by various
factor- and principles. These include that—
(a)
in accordance with the interpretive injunction in section 39(2) of
the Constitution we must prefer the meaning of the provision
that
promotes the workers’ right to “participate in the
activities and programmes of a trade union” to an
interpretation
that undermines that right;
(b)
in compliance with the instruction in section 3 of the LRA, we must
promote the LRA’s primary object of giving effect
to and
regulating the fundamental rights conferred by section 23 of the
Constitution;
(c)
section 4(2) (a) must be construed restrictively so as to give the
workers a full measure of the protection afforded by section
23 of
the Constitution; and
(d)
we must heed the rule of constitutional interpretation that
constitutional rights conferred without an express limitation should
not be cut down by reading implicit restrictions into them.
[152]
We
must also bear in mind what this Court said in
SAPS
v POPCRU
and in
SATAWU
v Moloto.
In
SAPS
v POPCRU
it said:
“
The
provisions in question must thus not be construed in isolation, but
in the context of other provisions of the LRA and the SAPS
Act. For
this reason, a restrictive interpretation of essential services must,
if possible, be adopted so as to avoid impermissibly
limiting the
right to strike. Were legislation to define essential services
too broadly, this would impermissibly limit the
right to strike”.
In
SATAWU v Moloto
it said:
“
The
relevance of a restrictive approach is to raise a cautionary flag
against restricting the right more than is expressly provided
for.
Intrusion into the right should only be as much as is necessary to
achieve the purpose of the provision and this requires
sensitivity to
the constraints of the language used”.
[26]
The Court
went on to say, at paragraph 153 of the judgment:
‘
Although
it may not be necessary on the facts of this case to give an
exhaustive definition of the phrase “lawful activities”
in sections 4 (2) (a) and 5(2) (c)(iii), it seems to me that, on a
proper restrictive approach, the phrase must exclude illegal
activities or activities that constitute contraventions of the law.
It definitely excludes conduct that constitutes criminal offences.
The provisions include participation by union members in union
activities that form part of the core functions of a trade union.
These include taking up members’ complaints or grievances with
their employer, representing them in grievance and disciplinary
proceedings, collective-bargaining, attending statutory tribunal to
represent their members’ interests and communicating
with its
member’s employer about workplace issues…’
[27]
An earlier
judgment by the Constitutional Court that gives meaning to the range
of activities contemplated by the phrase ‘lawful
activities ‘
is
National
Union of Metalworkers of South Africa and Others v Bader Bop
(Pty) Ltd & Another
[2002] ZACC 30
;
2003 (3) SA 513
(CC), where the Constitutional Court, in a case that
concerns the rights of the minority union to embark on a protected
strike
action to persuade the employer to recognise it’s shop
stewards, conform to the important principle of freedom of
association
enshrined in Article 2 of the Convention on Freedom of
Association and Protection of the Right to Organise which states:
‘
Workers
and employers, without distinction whatsoever, shall have the right
to establish and, subject only to the rules of the organisation
concerned, to join organisations of the choosing without previous
authorisation’ (see paragraph 31 of the judgment).
Further, the Constitutional Court
acknowledged that the ILO jurisprudence extends to the principle that
freedom of association is
ordinarily interpreted to afford unions the
right to recruit members and to represent those members at least in
individual workplace
grievances. In other words, the statutory right
to freedom of association extends to majority and minority unions,
the right to
recruit new members and the right to organise those
members (at paragraph 34 of the judgment).
[28]
In the
present instance, the wearing of trade union t-shirts in the
workplace would be encompassed by each of the above activities.
Trade
union members would wear their t-shirts in the workplace as a form of
promotion, aimed at recruiting new members. Unions
would manufacture
and distribute t-shirts as a component of their organising
activities. Minority unions would wear a t-shirt as
a component of
their efforts to challenge majority unions by seeking to persuade
members to associate with the minority union,
with a view to it
ultimately attaining majority.
[29]
In those
circumstances, and having regard to the interpretation of s 5 (2) (c)
(iii) adopted by the Constitutional Court, in my
view, the wearing of
union t-shirts constitutes a lawful activity as contemplated by s 5
(2) (c) (iii). The imposition of the union
t-shirt ban, with its
underlying threat of disciplinary action for an infringement of the
band, constitutes a form of prejudice
proscribed by that provision.
In short, the t-shirt ban is unlawful and invalid with reference to s
5 (2) (c) (iii).
[30]
To the
extent that s 5 (2)(c)(vi) proscribes an employer from prejudicing an
employee on account of the exercise of any rights conferred
by the
LRA, the wearing of a union t-shirt constitutes a lawful activity
under the LRA. This is particularly so in so far as the
wearing of a
t-shirt is an associative act and s 4 specifically protects an
employee’s right to freedom of association by
joining trade
unions and participating in its lawful activities. On this basis, the
union t-shirt ban is also an infringement of
s 5 (2) (c) (vi) and is
invalid.
[31]
There
is
support
for
the interpretation advanced by NUMSA in the application and
interpretation of s 7 of the US National
Labour Relations Act. That
section guarantees employees
‘…
the
right to self-organization, to form, join, or assist labor
organizations to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection.
[32]
The
US Supreme Court has explicitly recognised and upheld this right in
relation to the wearing of what are termed ‘union
buttons’.
In
Republic
Aviation Corp. v NLRB
[1945] USSC 100
;
324 US 793
(1945), the court held that an employer had violated
s 8 of the Act (s 8 provides that it is an unfair labour practice for
an employer to interfere with, or restrain a case employees in the
exercise of the rights guaranteed in section 7) by dismissing
three
employees for wearing union insignia. The Court stated that the
employees concerned had been “
entirely
deprived of their normal right to “full freedom of association”
in the plant on their own time, the place uniquely
appropriate and
almost solely available to them therefor. The respondent’s rule
is therefore in clear derogation of the rights
of its employees
guaranteed by the Act”
(at
1195). The court also quoted the NLRB’s conclusion that the
right of employees to wear union insignia at work ‘
has
long been recognized as a reasonable and legitimate form of union
activity
’.
What this language recognises is that the workplace is an ideal forum
for expressing union sympathies and that an employee’s
freedom
of association includes the right to wear union insignia (See John W
Teeter J., ‘Banning the Buttons: Employer Interference
with the
Right to wear Union Insignia in the Workplace’ 80
Ky
Law Journal
vol 80 (1991 – 92) at 380.) For present purposes, the
significance of this decision is the Court’s view that in
addition
to assuring workers the right to form unions and bargain, s
7 also guarantees the freedom “
to
engage in other concerted activities for the purpose of… other
mutual aid protection”
(at
179). As the learned author suggests, such broad language would
clearly seem to encompass the right of workers to nurture unity
and
collective strength by wearing insignia (at p386). Further, the
managerial absolutism inherent in denying workers their right
to wear
union insignia takes its toll on individual dignity and subjugates
individual autonomy.
[33]
This is not
to say that the exercise of the right to freedom of association by
wearing a union t-shirt in the workplace is unlimited.
One can
imagine a justification on the basis of a significant threat to
safety, and a number of other reasons. Indeed, Matlou gave
the
example in his evidence of employees engaged in work on tracks being
prohibited from wearing red clothing, on account of signals
being the
same colour and the potential for confusion that may arise. Transnet
chose not to raise a plea of justifiability as a
defence to NUMSA’s
claim. It is not necessary therefore for me to consider the factors
that might serve as a rational justification
for a limitation on or
prohibition of the wearing of union t-shirts in the workplace. To the
extent that Matlou in his testimony
sought to justify the t-shirt ban
on the basis of ‘risk management’, while he spoke about
tension in the workplace
occasioned by the split in SATAWU and the
emergence of breakaway unions, I did not understand him to be
proffering a rational justification
for the limitation of a right
rather than ascribing a motive for the new rule. I have no doubt that
in appropriate circumstances,
inter-union rivalry and any associated
violence in the workplace may justify intervention by an employer in
the form of a limitation
on the wearing of t-shirts and union
insignia (or even its prohibition in extreme cases), but that is not
the case made in the
present instance. Matlou testified in the most
general terms regarding ‘tension’ in the workplace
consequent on a split
in the previously dominant unions. The
pleadings aside, there is simply no evidentiary basis on which to
make a finding that
the limitation of the right to freedom of
association, represented by the t-shirt ban, is reasonable and
justifiable.
[34]
In
view of the
conclusion
to
which I have come on the application of sections 4 and 5 of the LRA,
it is not necessary for me to make any findings in relation
to the
part of NUMSA’s claim that concerns the discriminatory nature
of what it alleges to be the inconsistent application
of the rule
prohibiting the wearing of union t-shirts. Specifically, it is not
necessary for me to decide whether the failure to
institute
disciplinary action against members of unions other than NUMSA for a
breach of the t-shirt ban constitutes unfair discrimination
as
defined by s 6 of the EEA.
[35]
To
the extent that Transnet
submits
that
because NUMSA employees have an alternative remedy in the form of a
referral to the bargaining council should they be disciplined
for
breaching the 2015 policy, this submission overlooks that what is at
issue in the present instance is an alleged breach by
Transnet of a s
4 right, and its enforcement through the mechanism of s 5 (1).
Section 9 makes it clear that any dispute about
the interpretation
and application of sections 4 and 5 may be referred to this Court for
adjudication. NUMSA is entitled to approach
this court on that basis,
and need not delay until the dispute manifests itself in the form of
a dispute concerning an unfair dismissal,
nor is it precluded from
approaching this court by any referral already made to the bargaining
council of any unfair dismissal
dispute.
[36]
Finally,
in
regard
to
costs, this is quintessentially a matter in which costs ought not to
be awarded. Although the parties are not collective bargaining
partners, the concern expressed by what was then the Appellate
division of the Supreme Court of Appeal in
National
Union of Mine Workers v East Rand Gold and Uranium Company Ltd
[1991] ZASCA 168
;
1992
(1) SA 700
(AD) that orders for costs may in some instances prejudice
a relationship between a trade union and an employer and render a
difficult
relationship even more fraught, holds good. In my view, and
in the exercise of the broad discretion conferred by s 162, the
interests
of the law and fairness are best served by there being no
order as to costs.
[37]
I
make the
following
order:
1.
Paragraph
12 of the respondent’s policy on uniforms and protective
clothing introduced with effect from 1 June 2015, to the
extent that
it prohibits the wearing of any trade union clothing or regalia
during working hours, is declared to be in breach of
s 4
(2) (a),
5
(2) (c) (iii) and (vi) of the
Labour Relations Act, and
is set aside.
2.
Any
disciplinary action taken by the respondent on charges of a breach of
paragraph 12 of the 2015 policy on uniforms and protective
clothing
is declared to be in breach of
s 5
, to the extent that the breach
concerned the wearing of trade union clothing or regalia, and is set
aside.
3.
There
is no order as to costs.
André van Niekerk
Judge of the Labour Court
of South Africa
Appearances:
For
the applicants: Adv. A Dodson SC, with him Adv. M Thys,
Instructed
by: Ruth
Edmonds Attorneys
For
the respondent: Mr P Maserumule, Maserumule Attorneys.