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[2018] ZALCJHB 409
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J & L Lining (Pty) Ltd v National Union of Metalworkers of South Africa and Others (J 3424 / 18) [2018] ZALCJHB 409; (2019) 40 ILJ 1289 (LC) (10 December 2018)
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no:
J 3424 / 18
In the matter
between:
J
& L LINING (PTY) LTD
Applicant
and
NATIONAL
UNION OF METALWORKERS OF
SOUTH
AFRICA
(‘NUMSA’)
First Respondent
THE
EMPOYEES LISTED IN ANNEXURE “A”
Second Respondent
Heard
:
6 December 2018
Delivered
:
10 December 2018
Summary:
Strike
– issue in dispute considered – issue in
dispute concerns a demand for an increase – is a matter mutual
interest
– strike competent
Strike –
section 65(1)(c) considered – contention by employer that
dispute settled – industry settlement agreement
relied on by
employer never concluded by the employer’s representative and
the employer thus was not a party to it –
settlement agreement
cannot form the basis of the application of section 65(1)(c)
Strike –
section 65(3)(a) – employer contended that union obliged to
follow processes in bargaining council constitution
/ dispute
agreement – union did follow this process in industry dispute –
where employer itself however disavowing
industry settlement the
original dispute referral by union under constitution / dispute
resolution agreement still applicable –
union entitled to
continue with dispute against employer
Strike –
section 65(3)(a) – plant level bargaining prohibition in main
agreement relied on by applicant – employer’s
representative not party to main agreement and disavowing extension
of same to non-parties – employer thus cannot rely on
this
provision – cannot approbate and reprobate – no
prohibition to plant level bargaining
Strike –
procedural requirements – section 64(1) complied with –
no need to follow further processes in order
to render strike
protected
Strike –
none of the substantive and procedural limitations in sections 64 and
65 of the LRA contravened – strike protected
– rule nisi
discharged
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
This matter came before me on 6 December 2018 as return date of a
Rule Nisi granted by Prinsloo J on 28 September 2018, in terms
of
which strike action embarked upon by the respondents at the applicant
was declared to be unprotected, and consequently interdicted.
The
application of the applicant was originally unopposed, but it has now
been opposed at return date stage.
[2]
The applicant seeks confirmation of the Rule Nisi, whilst the
respondents contend it should be discharged. Confirming the Rule
Nisi
entails the granting of final relief, and this being so, the
applicant must establish: (a) a clear right; (b) an injury actually
committed or reasonably apprehended; and (c) the absence of any other
satisfactory remedy.[1] This matter only turns on the first
requirement of a clear right, as it accepted that the requirements of
the absence of a suitable alternative remedy and prejudice
(injury
apprehended) are met.
Background facts
[3]
The facts in this matter are uncontested.
[4]
The business of the applicant resorts under the scope and
jurisdiction of the Metal and Engineering Industries Bargaining
Council
(“MEIBC’). It is well known that collective
bargaining in the MEIBC for wages and conditions of employment is
conducted
at a central level and not plant level, between the various
parties to the MEIBC, which includes the first respondent, which I
will refer to in this judgment as ‘NUMSA’. Plant level
bargaining in individual employers is prohibited on these issues.
[5]
The applicant is a member of NEASA, an employers’ organisation
which is also a party to the MEIBC, and subject to its
constitution.
The same holds true for NUMSA. NEASA is however not a party to the
MEIBC main agreement, but NUMSA is.
[6]
In May 2017, NUMSA and the other trade union parties to the MEIBC
initiated negotiations on wages and conditions of employment
at a
central level. A set of demands were formulated, and presented to all
employer parties to the MEIBC, including NEASA.
[7]
Following negotiation, and on 23 August 2017, NUMSA and all the other
trade union parties in the MEIBC concluded a settlement
agreement on
wages and conditions of employment with SEIFSA, the principal
employers’ organization in the MEIBC. I refer
to this
settlement agreement in this judgment as ‘the settlement
agreement’. NEASA refused to sign this agreement,
and did not
settle the dispute with NUMSA and the other unions. As is said in the
applicant’s own founding affidavit:
‘…
this
follows that it (referring to NUMSA) is still in dispute with the
other employer parties to the MEIBC, including NEASA (and
by
extension, its members amongst whom is the Applicant in casu) …
’
[8]
Normally, any settlement agreement concluded between some or all of
the parties in the MEIBC would be extended by the Minister[2]
in
terms of section 32 of the LRA to all non-parties in the industry
covered by the MEIBC. Therefore, and in the ordinary course,
the
above settlement agreement would have been extended even to NEASA and
its members, despite not having been a party to it, and
that would
resolve any outstanding disputes.
[9]
But in this instance, the settlement agreement was never extended to
non-parties. As such, it only remained binding between
SEIFSA and the
union parties, including NUMSA. The settlement agreement did not bind
NEASA, and thus, the wage and conditions of
employment dispute
between NUMSA and its members who were employed at employers that
were members of NEASA, remained unresolved.
[10]
On 5 July 2018, the applicant informed its employees that they would
not be receiving an increase, because the ‘negotiations’
in the industry were not resolved, there was an issue with the
industry main agreement, and the applicant’s adverse financial
situation.
[11]
In the end, and on 15 August 2018, NUMSA referred what it labelled a
“mutual interest” dispute to the MEIBC, on
behalf of its
members employed at the applicant, against the applicant. Under the
summary of facts in the referral, it was recorded,
verbatim:
‘
There
was an agreement between the employer and the employees that they
will get an increase of 6%’
It
was requested in the referral that employees receive the 6% ‘as
per our agreement’.
[12]
NEASA answered this referral by way of a letter to NUMSA on 17 August
2018, contending that the referral did not comply with
the dispute
resolution rules in the MEIBC constitution, and the dispute was still
‘active’ at industry level. It was
further contended that
until the settlement agreement was extended to non-parties, NUMSA was
not entitled to refer a dispute concerning
conditions of employment
against the applicant. It called on NUMSA to withdraw the dispute.
[13]
The matter was unsuccessfully conciliated on 10 September 2018, and a
certificate of failure to settle was issued by the MEIBC.
[14]
On 20 September 2018 NUMSA, on behalf of its members, gave the
applicant written notice of intended strike action. In this
notice,
it was stated that the issue in dispute between the parties is that
the employees of the applicant be paid an increase
of 6%, across the
board. In terms of this notice, the strike was due to commence on 25
September 2018.
[15]
On 27 September 2018 the applicant then brought an application to
interdict the proposed strike action, on the basis that it
was
unprotected. This application came before Prinsloo J on 28 September
2018 on an unopposed basis, and the learned Judge issued
a Rule Nisi
with a return date of 6 December 2018 in terms of which the proposed
strike was declared to be unprotected and the
respondents were
interdicted from embarking upon the same. I am now tasked to either
confirm or discharge this Rule Nisi.
The
clear right
[16]
The applicant has the duty to prove that the proposed strike would be
unprotected. In this regard, the applicant relies on
two primary
considerations, being:
16.1
The issue in dispute is one that the respondents have the right to
refer to the Labour Court, and thus strike action is prohibited
by
virtue of section 65(1)(c) of the LRA;[3]
16.2
The respondents are bound by a collective agreement that regulates
the issue in dispute, and thus strike action is prohibited
by virtue
of section 65(3)(a)(i) of the LRA.[4]
[17]
From the outset, and in terms of section 64(1), every employee has
the right to strike for the purpose of remedying a grievance
or
resolving a dispute in respect of any matter of mutual interest.[5]
In this case, the matter has nothing to with resolving a
grievance.
It is therefore only about resolving a dispute about a matter of
mutual interest. In Pikitup (SOC) Ltd v SA Municipal
Workers Union on
behalf of Members and Others[6] the Court held:
‘…
the
phrase 'any matter of mutual interest' defies precise definition. The
phrase is couched in very wide terms. According to Grogan,
the phrase
is extremely wide, 'potentially encompassing issues of employment in
general, not merely matters pertaining to wages
and conditions of
service. …
Grogan
concludes, correctly in my view, that 'the best one can say,
therefore, is that any matter which affects employees in the
workplace, however indirectly, falls within the scope of the phrase
"matters of mutual interest" and may accordingly
form the
subject matter of strike action'
[18]
There can be no doubt that the actual issue as raised by NUMSA, being
a 6% increase for its members, would thus as a matter
of general
principle qualify as a matter of mutual interest susceptible to form
the subject matter of permitted (protected) strike
action.
[19]
It is also true that the right to strike is substantively limited in
section 65 of the LRA, and indeed the applicant relies
on sections
65(1)(c) and 65(3)(a). It follows that if the applicant is correct in
its contentions in this regard, the applicant
will have shown a clear
right to exist, and would be entitled to the relief sought. But when
construing these restrictions, one
should always be mindful of the
fact that the right to strike is a fundamental right under the
Constitution,[7] and as such the
Court should not too readily adopt
an interpretation or determination that limits such right. In Pikitup
the Court said:[8]
‘
Given the historical and contemporaneous
importance of the right to strike, it should not be limited or
restricted by reading implicit
limitations into it. In
SATAWU
v Moloto
it was said that:
'The
right to strike is protected as a fundamental right in the
Constitution without any express limitation. Constitutional rights
conferred without express limitation should not be cut down by
reading implicit limitations into them, and when legislative
provisions
limit or intrude upon those rights they should be
interpreted in a manner least restrictive of the right if the text is
reasonably
capable of bearing that meaning.'
An interpretation which limits the right to strike
should therefore be avoided if the text that seeks to limit it is
susceptible
to an interpretation that upholds and protects the right
to strike. In essence, any legislative provision that seeks to
restrict
the right to strike should do so expressly, in clear and
unequivocal terms.
’
[20]
Turning to the case at hand, what does the applicant then rely upon
to establish the application of section 65(1)(c)? The applicant’s
case where it comes to the application of section 65(1)(c) is founded
squarely on a contention that the issue in dispute between
the
parties is that NUMSA and its members are demanding the enforcement
of an agreement in terms of which the applicant’s
employees
would receive a 6% increase. If that is true, then of course NUMSA’s
members would have a right to such an increase
which, if not honoured
by the applicant, would have to form the subject matter of
adjudication to enforce it, rendering the proposed
strike
unprotected.[9]
[21]
As a point of departure in considering this issue, it is always
critical for this Court to nonetheless conduct a proper enquiry
into
the true or real issue in dispute between the parties, no matter how
it may be labelled or described by one of the parties,
as part of the
enquiry of establishing whether the substantive limitations
apply.[10] This is important in this case, because it
is true that if
one reads the conciliation referral by NUMSA to the MEIBC of 15
August 2018, it on face value suggests the existence
of an agreement
for a 6% increase which was sought to be enforced. As said in
Commercial Workers Union of SA v Tao Ying Metal Industries
and
Others[11]:
‘
A
commissioner must, as the Labour Relations Act requires, “deal
with the substantial merits of the dispute”. This can
only be
done by ascertaining the real dispute between the parties. In
deciding what the real dispute between the parties is, a
commissioner
is not necessarily bound by what the legal representatives say the
dispute is. The labels that parties attach to a
dispute cannot change
its underlying nature.’
[22]
Despite what the referral may reflect, and when considering what in
essence was now the undisputed factual matrix, it must
surely be
apparent that the issue in dispute cannot concern the enforcement of
an agreement in terms of which a wage increase of
6% was afforded to
the applicant’s employees. Mr Groenewalt, representing the
applicant, was hard pressed to indicate to
the Court where exactly
this agreement was to be found. He conceded, which is obviously
correct considering the content of the
applicant’s own founding
affidavit, that the applicant was not bound by the settlement
agreement because NEASA was not a
party to it, and as such, this
settlement agreement could not be enforced against any NEASA member,
such as the applicant. Secondly,
it was confirmed by Mr Groenewalt
that there was no agreement struck between the applicant and NUMSA
directly with regard to a
6% increase. In sum, and on the evidence,
there was actually no agreement for an increase in existence between
the parties that
entitled NUMSA and its members to enforce it by way
of adjudication.
[23]
The evidence thus answered the question of what the real issue in
dispute was. To simply rely on the referral form, as the
applicant
did, is unduly formalistic and inappropriate. In September and Others
v CMI Business Enterprise CC[12] the Court said:
‘
The Labour Appeal Court adopted an overly
formalistic approach as it held that to answer the question whether
the real dispute had
been conciliated necessitates a very narrow
factual enquiry which entails only looking at two aspects, namely
‘the characterisation
on the referral form and the contents of
the certificate of outcome’. The Labour Appeal Court failed to
take into account
the purpose and context of the Labour Relations Act
and the dispute-resolution mechanisms for which it provides. By
relying only
on the referral form and the certificate of outcome the
Labour Appeal Court essentially held that no evidence from the
conciliation
proceedings may be led as evidence in subsequent
proceedings.
’
The
Court concluded as follows:[13]
‘
It would therefore be wrong to adopt the
Labour Appeal Court’s approach, which essentially precludes the
courts from referring
to evidence outside of the certificate of
outcome and referral form, to determine the nature of the dispute
conciliated. The general
rule is that the referral form and
certificate of outcome constitute prima facie evidence of the nature
of the dispute conciliated.
However, if it is alleged that the nature
of the dispute is in fact different from that reflected on such
documents, the parties
may adduce evidence as to the nature of the
dispute.’
[24]
Thus, a proper conspectus of the facts show that the wage dispute
between the applicant and NUMSA and its employees remained
unresolved, at the time when NUMSA referred the dispute to the MEIBC
on 15 August 2018. The settlement agreement did not apply,
and there
was no individual agreement between NEASA or the applicant, and
NUMSA. There was thus nothing that NUMSA could enforce
to the Labour
Court. Section 65(1)(c) thus cannot apply, and the applicant has
shown no clear right to exist in this regard.
[25]
The next question is whether NUMSA and its members, in pursuing their
unresolved wage dispute against the applicant, was bound
by a
collective agreement that regulated that issue in dispute, as
contemplated by section 65(3)(a). In this regard, the applicant
does
not say that the collective agreement concerned determines the
substance the wage increase sought by NUMSA for its members.
Rather,
the applicant contends that there exist a procedural limitation, in
that NUMSA is compelled to apply a prescribed procedure
in pursuit of
the wage demand, before referring it to the MEIBC for conciliation,
which it has not done.
[26]
It is accepted law that section 65(3)(a) of the LRA does not only
apply to substantive regulation of the issue in dispute.
Regulation
also includes regulation by way of a process created in the
collective agreement which must be applied to resolve the
issue in
dispute.[14] As held in CSS Tactical (Pty) Ltd v Security Officers
Civil Rights and Allied Workers Union and Others[15]:
Section
65(3)(a) permits parties to limit the right to strike by regulating
the issue in dispute. The term 'regulate' includes regulation
by way
of creating a process to resolve the issue.
’
[27]
A prime example of this kind of procedural regulation can be found in
the provisions in bargaining council collective agreements,
which
prescribe that conditions of employment can only be negotiated at
central level in the council, and not in individual employers
at
plant level that resort under the council. In such cases, it has been
accepted that any attempts by a trade union to seek to
collectively
bargain for wages and conditions of employment at an individual
employer and then pursue strike action, would be unprotected
by
virtue of the application of section 65(3)(a) of the LRA.[16] But it
must be considered that this kind of regulation has a specific
objective, described in
Cape Gate (Pty) Ltd
v National Union of Metalworkers of SA and Others[17]
as
follows:
‘The objective
underlying the clause is to ensure that negotiation of such matters
takes place only at the level of the bargaining
council and in no
other forum, such as at plant level. It is also to preclude any
strike action over such matters while they continue
to be regulated
by the main agreement. The clause would make little sense if it had
the effect now contended for on behalf of NUMSA,
namely that where
wage increases are determined in the main agreement, employees and
their unions are free to agitate for further
increases by way of
plant level negotiation and ultimately strike action. This would be
subversive of the objective of promoting
collective bargaining at the
level of bargaining councils and the effectiveness of their
agreements. This would not accord with
the clear and worthy
objectives of the LRA. …’
[28]
The MEIBC is indeed a bargaining council where there is such a
centralized bargaining structure in place, as I have touched
on
above. The applicable structural collective agreements in the MEIBC
can be found in the Constitution of the MEIBC, as well as
its main
agreement.
[29]
NEASA and NUMSA are both parties to the constitution of MEIBC.
However, NEASA is not a party to the main agreement, but NUMSA
is. As
matters currently stand, the main agreement has not been extended to
non-parties by the Minister, in terms of section 32(2)
of the LRA. An
attempt to do was made on 24 November 2014,[18] but this was reviewed
and set aside and declared to be null and
void by this Court in
National Employers’ Association of SA and Others v Minister of
Labour and Others[19]. As such, the
main agreement of MEIBC only
applies between the actual parties thereto, and thus would not apply
to NEASA and its members, such
as the applicant.
[30]
The MEIBC constitution, in clause 11, provides that ‘The
negotiation procedures and the procedures to be followed for
the
resolution of disputes arising within the jurisdiction of the
Council, are contained in Annexure “E” and “F””.
Annexure “E” contains what is called the negotiation and
disputes procedure. Clause 2 of this procedure sets out the
process
to be followed in the case of negotiating new agreements or amending
existing agreements, within the council. In summary,
this procedure
entails the following: (1) the party initiating the negotiation must
submit its proposals to the secretary of the
council; (2) these
proposals are then circulated to all interested parties, and if
considered to be an industry matter, negotiating
meetings are
convened; and (3) if the negotiations do not lead to a resolution, a
dispute is then declared.
[31]
Clause 3 of the negotiating and disputes procedure in the
constitution then deals with what transpires once a dispute is
declared
in terms of clause 2(d) as set out above. If it is an
industry matter, it is dealt with in various committee meetings,
depending
on circumstances, and may be referred to conciliation under
clause 7 or arbitration in term of clause 8. However, and in terms of
clause 3(d), if the dispute referred remains unresolved in 30 days,
any of the parties has the right to apply the dispute provisions
under the LRA.
[32]
The above provisions in the MEIBC constitution are virtually mirrored
in clauses 6.1.1 and 6.1.2 of the MEIBC dispute resolution
agreement,
which is a collective agreement to which both NEASA and NUMSA are
indeed parties.
[33]
In this instance, and as dealt with above, NUMSA indeed pursued its
industry dispute regarding wages and conditions of employment
by way
of a declaration of a dispute to the council secretary on 2 May 2017,
in terms of clause 2 of annexure “E”,
which of course
would also serve as a referral in terms of clause 6.1.1 of the
dispute resolution agreement. It was undisputed
that negotiation
followed as contemplated by the aforesaid dispute resolution
processes, and this culminated in the settlement
agreement being
concluded in August 2017. But because NEASA refused to be a party to
the settlement agreement, the dispute pursued
by NUMSA remained
unresolved. As 30 days have clearly lapsed, as contemplated by clause
3(d) of the constitution and clause 6.1.2(c)
of the dispute
resolution agreement, NUMSA was thus entitled to invoke the dispute
resolution process under the LRA against the
applicant, as member of
NEASA. It thus cannot be legitimately contended that NUMSA
contravened the dispute resolution process under
the MEIBC
constitution or the dispute resolution agreement.
[34]
The simple point is that if NEASA refuses to be a party to the
settlement reached, which of course would apply to its members
as
well such as the applicant, then the applicant must expect to be
subjected to the further dispute resolution process under the
LRA, as
specifically contemplated by the constitution and the dispute
resolution agreement. This would include strike action. In
my view,
there is accordingly nothing contained in the MEIBC constitution or
dispute resolution agreement that would stand in the
way of NUMSA
being entitled to have referred the wage dispute in this case to the
MEIBC, in terms of the LRA, for conciliation.
Section 65(3)(a) of the
LRA thus cannot find application in this respect.
[35]
This the only leaves the main agreement. Clause 37 of the main
agreement provides as follows:
‘
(1)
Subject to subclause (2) –
(a) the
Bargaining Council shall be the sole forum for negotiating matters
contained in the Main Agreement;
(b)
during the currency of the Agreement, no matter contained in the
Agreement may be an issue in dispute for the purposes of a
strike or
lock-out or any conduct in contemplation of a strike or lock-out;
(c) any
provision in a collective agreement binding an employer and employees
covered by the Council, other than a collective agreement
concluded
by the Council, that requires an employer or a trade union to bargain
collectively in respect of any matter contained
in the Main
Agreement, is of no force and effect. (2) Where bargaining
arrangements at plant and company level, excluding agreements
entered
into under the auspices of the Bargaining Council, are in existence,
the parties to such arrangements may, by mutual agreement,
modify or
suspend or terminate such bargaining arrangements in order to comply
with subclause (1). In the event of the parties
to such arrangements
failing to agree to modify or suspend or terminate such arrangements
by the date of implementation of the
Main Agreement, the wage
increases on scheduled rates and not on the actual rates shall be
applicable to such employers and employees
until the parties to such
arrangement agree otherwise.
(3)
The provisions of this clauses shall apply equally to any trade
unions not party to this Agreement.
’
[36]
It is clear that clause 37 of the main agreement would indeed have
stood firmly in the way of NUMSA being entitled to have
pursued plant
level collective bargaining at the applicant. But once again, the
problem for the applicant is that NEASA is not
a party to the main
agreement. NEASA was also the party responsible to scupper the
extension of the main agreement to non-parties.
As matters stand now,
the MEIBC main agreement only applies to the parties to that
agreement, and this does not include NEASA and
its members, such as
the applicant. The applicant has thus forfeited the centralized
bargaining level protection in terms of section
37 of the MEIBC
agreement. If NEASA had been a party to the main agreement, or if the
main agreement was extended to non-parties,
that would not be the
case.
[37]
I consider the proposition of the applicant that it should be
entitled to rely on the centralized bargaining provisions applying
to
the MEIBC to immunize it from plant level bargaining, where its own
employer’s organization seeks to disavow this very
agreement,
to be untenable and opportunistic. NEASA does not want to be a party
to the main agreement and does not want to agree
to the settlement
reached following industry centralized bargaining. But despite this,
NEASA contends that NUMSA is not allowed
to conduct plant level
bargaining at its members. This approach leaves NUMSA in effect in
limbo, rendering it incapable of negotiating
wages and conditions of
employment for members of NEASA. This is inconsistent with the right
of NUMSA under the LRA to collectively
bargain on behalf of its
members. In National Union of Metalworkers of SA and Others v Bader
Bop (Pty) Ltd and Another[20]
the Court
said:
‘…
the Act seeks to provide a
framework whereby both employers and employees and their
organizations can participate in collective
bargaining and the
formulation of industrial policy. Finally, the Act seeks to promote
orderly collective bargaining with an emphasis
on bargaining at
sectoral level, employee participation in decisions in the workplace,
and the effective resolution of labour disputes.
[38]
The approach propagated by NEASA, and with it the applicant, is
destructive of this sentiment expressed in Bader Bop. It in
effect
renders NUMSA impotent to bargain on behalf of its members for wages
and conditions of employment. The facts of this case
illustrate the
point. NUMSA negotiated a settlement for its members at a central
level in the MEIBC, and concluded a settlement
agreement. But NEASA
refuses to agree to it, meaning that NUMSA’s members at the
applicant cannot enjoy the benefits of the
settlement. NUMSA then
seeks to negotiate a wage directly with the applicant, but is then
told that it cannot do so, and can only
negotiate at central level
complying with central processes, despite the central level dispute
being settled with all other parties.
It would be impossible for
NUMSA to initiate centralized industry negotiation again for a
dispute that has been settled between
all the other parties. This
leaves NUMSA in effect remediless. This is an untenable proposition.
[39]
The conduct of NEASA has a further consequence. This consequence is
that all other employees in the industry, save for those
employed by
NEASA members, receive a wage increase. All the other employers have
to pay the increase. This gives NEASA an unfair
advantage in the
industry, because its members are in effect given a competitive
advantage off the back of employees’ conditions
of employment.
As said in South African Clothing and Textile Workers Union and
Others v Yarntex (Pty) Ltd t/a Bertrand Group[21]:
‘
The
constitution is premised on centralised bargaining between NAWTM and
SACTWU, the main purpose of which is to create and maintain
uniformity in the determination of wage levels so as to ensure that
all employers in a given sub-sector or section level in this
industry
are treated in an equitable fashion. Employers and employees in these
sub-sectors should enjoy the same treatment to ensure
that employers
compete with their counterparts in a fair manner in order to sustain
the industry and to prevent job losses.’
[40]
In sum, the applicant extract itself from centralized bargaining, on
the one hand, but seeks rely on it on the other, when
it is
confronted with plant level bargaining as a result. Because clause 37
of the main agreement does not apply, there is exists
no prohibition
in a collective agreement, to which the applicant is a party
(directly or by extension), to plant level bargaining
at the
applicant. That is the unfortunate consequence to any NEASA member in
the current state of affairs in the MEIBC. It was
thus competent for
NUMSA to engage the applicant, as NEASA member, with a wage demand at
plant level.
[41]
It is thus my conclusion that section 65(3)(a) does not find
application in this instance, and the applicant’s reliance
on
this provision is misplaced. This is because the applicant, as member
of NEASA, is not bound by the MEIBC main agreement, and
since the
applicant is not bound by the industry settlement agreement relating
to wages and conditions of employment, the original
dispute referral
by NUMSA under the MEIBC constitution / dispute resolution agreement
still remains valid and applicable to the
wage dispute with the
applicant.
Conclusion
[42] In all the circumstances as set out above,
the applicant has failed to demonstrate a clear right to the relief
it seeks. The
strike initiated by NUMSA in its notice of 20 September
2018 concerns a legitimate matter of mutual interest and is not hit
by
any of the two prohibitions in terms of section 65(1)(c) and
65(3)(a) of the LRA. As NUMSA has complied with the procedural
requirements
in section 64(1), the strike action would be permitted,
and protected.
[43]
Where is comes to the issue of costs, it is trite that section 162 of
the LRA affords me a wide discretion. In exercising this
discretion,
I consider the fact that the applicant and NUMSA in effect now stand
at the threshold of a plant level bargaining relationship,
at least
whilst the current state of affairs in the MEIBC continues to exist,
and in my view it would unduly interfere with such
a fledgling
relationship to mulch either of the parties with a costs order.
Fairness dictates that no order as to costs be made.
Order
[44]
In the circumstances, I make the following order:
1.
The rule nisi issued on 28 September 2018 is discharged.
2.
There is no order as to costs.
Sean Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
Advocate D J Groenewalt
Instructed
by:
Serfontein, Viljoen & Swart Attorneys
For the
Respondents: Ms R
Edmonds of Ruth Edmonds Attorneys
[1]
Setlogelo v
Setlogelo
1914 AD 221
at 227;
V
& A Waterfront Properties (Pty) Ltd and Another v Helicopter and
Marine Services (Pty) Ltd and Others
2006
(1) SA 252
(SCA) at para 20;
Royalserve
Cleaning (Pty) Ltd v Democratic Union of Security Workers and Others
(2012) 33 ILJ 448 (LC) at para 2.
[2]
The Minister of Labour, as responsible Minister under the LRA.
[3]
The section reads; ‘
No
person may take part in a strike or a lock-out or in any conduct in
contemplation or furtherance of a strike or a lock-out
if - ,,, (c)
the issue in dispute is one that a party has the right to refer to
arbitration or to the Labour Court in terms of
this Act or any other
employment law’.
[4]
The section reads:
‘Subject to a collective agreement, no person may take part in
a strike or a lock-out or in any conduct
in contemplation or
furtherance of a strike or lock-out- (a) if that person is
bound by- (i) any arbitration award
or collective agreement
that regulates the issue in dispute …’.
[5]
See the definition of a ‘strike’ in section 213 of the
LRA.
[6]
(2014) 35 ILJ 983 (LAC) at paras 54 and 56.
[7]
Section 23(2)(c) of the Constitution.
[8]
(supra) at paras 28 – 29. See also
SA
Transport and Allied Workers Union and Others v Moloto NO and
Another
(2012) 33 ILJ 2549 (CC) at para
43;
SA Police Service v Police and Prisons
Civil Rights Union and Another
(2011) 32
ILJ 1603 (CC)
at paras 29-30.
[9]
See
Mawethu Civils
(Pty) Ltd and Another v National Union of Mineworkers and Others
(2016) 37
ILJ
1851 (LAC) at paras 19 and 21.
[10]
Coin Security Group (Pty) Ltd v Adams and Others (2000) 21 ILJ 924
(LAC) at para 15;
TSI Holdings
(supra) at
paras 29 and 31;
Pikitup (supra) at para
47;
Unitrans Supply
Chain Solutions (Pty) Ltd v SA Transport and Allied Workers Union
and Others
(2014) 35 ILJ 265 (LC) at paras
9 – 11;
City of Johannesburg
Metropolitan Municipality v SA Municipal Workers Union and Others
(2009) 30
ILJ
2064 (LC) 2069G-H;
SATAWU v Coin Reaction (2005) 26 ILJ 1507
(LC) at 1512D.
[11]
(2008) 29
ILJ
2461 (CC)
at para 66. See also
National
Union of Metalworkers of SA on behalf of Sinuko v Powertech
Transformers (DPM) and Others
(2014) 35
ILJ 954 (LAC) at para 17.
[12]
(2018) 39 ILJ 987 (CC) at para 44
[13]
Id at para 52.
[14]
Fidelity Guards v PTWU and Others
[1997] 11 BLLR 1425
(LC)
at
1433F-H;
Unitrans Fuel and Chemical (Pty)
Ltd v Transport and Allied Workers Union of SA and Another
(2010) 31
ILJ
2854 (LAC) at para 18;
Air Chefs (Pty) Ltd
v SA Transport and Allied Workers Union and Others
(2013)
34
ILJ
119 (LC)
at para 27;
ADT Security (Pty) Ltd v SA
Transport and Allied Workers Union and Another
(2012)
33
ILJ
2061 (LC)
at para 18;
Transnet Ltd v SA Transport
and Allied Workers Union and Others
(2011)
32 ILJ 2269 (LC) at paras 21 – 24.
[15]
(2015) 36
ILJ
2764 (LAC) at para
18.
[16]
See
BMW SA (Pty) Ltd v National Union of
Metalworkers of SA on behalf of Members
(2012)
33 ILJ 140 (LAC) at paras 9 – 10;
SA Clothing and
Textile Workers Union and Others v Yarntex (Pty) Ltd t/a Bertrand
Group (2010) 31 ILJ 2986 (LC) at para 56
[17]
(2007) 28 ILJ 871 (LC) at para 38.
[18]
GN R1050 and GN R1051 published in Government Gazette 38366 dated 24
December 2014.
[19]
(2017) 38 ILJ 2034 (LC).
[20]
(2003) 24 ILJ 305 (CC) at para 26. See also
Kem Lin Fashions CC v Brunton and
Another
(2001) 22 ILJ 109 (LAC) at paras
17 – 18.
[21]
(2013) 34 ILJ 2199 (LAC)
at
para 58.