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[2018] ZALCJHB 410
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Lanxess Chrome Mining (Pty) Ltd v National Union of Mine Workers and Others (J3472/18) [2018] ZALCJHB 410 (11 December 2018)
I
N
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
No: J3472/18
In
the matter between:
LANXESS
CHROME MINING (PTY) LTD
Applicant
and
NATIONAL
UNION OF MINE WORKERS
(“NUM”)
First Respondent
THE
MINISTER OF POLICE
Second Respondent
NATIONAL
UNION OF METAL WORKERS OF
SOUTH
AFRICA (“NUMSA”)
Third Respondent
M.B.
RAMOTSEMENG AND OTHER INDIVIDUAL
MEMBERS
OF NUMSA
Fourth to Hundred and
(AS
INDENTIFIED IN ANNEXURE “A” TO THE
Ninety Seventh Respondent
FOUNDING
AFFIDAVIT)
Heard:
20 November 2018
Delivered:
11 December 2018
JUDGMENT
MAHOSI. J
Introduction
[1]
This is an application in terms of which the third and further
respondents (respondents) seek an order in the following terms:
‘
1.
That it be declared that the strike action which the third to further
respondents had commenced with on 26 September 2018 as
the
applicant's premises constituted protected industrial action;
2.
That paragraphs 21., 2.2 and 2.7 of Rule issued by Honourable
PrinslooJ, 0n 28 September 2018, accordingly be discharged.
3.
That the applicant is to pay the 32 further respondents costs.’
[2]
The respondents elected to confine their opposition to the issue of a
clear right only. The key question is whether the strike
action is
prohibited in terms of section 65(3)(a)(i) of the Labour Relations
Act
[1]
(LRA).
[3]
Prior to outlining the applicants’ case in detail and
considering the issues that gave rise to the claim, it is necessary
to summarise the facts that form relevant background to the dispute
between the parties.
Background
[4]
The applicant concluded a recognition agreement with the first
respondent, during or about 2013. The applicant and the
representatives
of the first respondent commenced with its annual
wage negotiations on 13 April 2018. Negotiations were then continued
on 18 April
2018, 1 June 2018, 6 June 2018, 13 June 2018. On 14 June
2018, a wage agreement was concluded between the applicant and the
first
respondent for employees employed in grades 8-11.
[5]
In respect of grades 12-17, the first respondent on 15 June 2018,
referred a dispute to the Commission for Conciliation, Mediation
and
Arbitration (CCMA). A conciliation meeting in respect of the last
category of employees was conducted on 11 July 2018. On 18
July, the
wage dispute between the applicant and the first respondent in
respect of the grade 12-17 employees was settled and the
settlement
terms included in a formal written agreement. The aforementioned wage
negotiations were conducted in terms of clause
2.2 of the
aforementioned recognition agreement (Annexure B).
[6]
On 6 July 2018, the third respondent, on behalf of its members,
referred a dispute to the CCMA in Rustenburg for conciliation
(including con-arb). It appears from paragraphs 3 and 4 of the
referral document that the dispute declared, concerns the alleged
refusal by the applicant to grant organisational rights to the third
respondent. The organisational rights dispute between the
applicant
and the third respondent was settled at a conciliation meeting at the
CCMA on 8 August 2018.
[7]
On July 2018, the Rustenburg branch of the third respondent,
represented by one Violet Magatsela, forwarded a written demand
for
2018/2019 to the applicant by email. The demand concerns the duration
of the period of a wage agreement, a living allowance,
a home
ownership allowance, a 20% increase of the basic wages across the
board, a shift allowance, a transport allowance, maternity
benefits,
family responsibility leave, medical aid, subsidy for transport of
members’ children attending school, a standby
allowance, a 20%
service increment and shares of 10%.
[8]
On 28 July 2018, the third respondent referred a mutual interest
dispute to the CCMA Rustenburg for conciliation. The conciliation
meeting was held on 27 August 2018 before Commissioner Shimmy
Kgantse. The parties were unable to resolve the dispute which served
before Commissioner Kgantse. According to the certificate of outcome,
if the dispute remains unresolved, a strike is permitted.
[9]
On 23 September 2018, NUMSA served a strike notice on the applicant.
In terms of the strike notice, the third respondent and
its members
intended to commence with a strike on 26 September 2018. On 25
September 218, Mr Wiseman Dladla, employed in the human
resources
department of the applicant, forwarded a request (LRA Form 4.1) to
establish picketing rules to the CCMA Rustenburg and
to the third
respondent. No such picketing rules have yet been established.
[10]
The applicant’s first shift commenced on the morning of 26
September 2018 at 06h00. Members of the third respondent congregated
at the applicant’s main entrance. A public road giving access
to the mine’s premises, situated on private property,
leads to
the main entrance of the applicant’s premises. Members of the
third respondent prevented fellow employees and members
of NUMSA to
enter the mine premises.
[11]
Members of the third respondent also obstructed access to the
applicant’s mining area by placing rocks and tyres in the
public road that leads to the applicant’s main entrance. The
aforementioned actions by the members of the third respondent
obstructing the entrance are of course unlawful and constitute
serious misconduct.
[12]
On 27 September 2018, the applicant filed an urgent application to
interdict the strike action. On 28 September 2018, this
Court granted
a
rule nisi
in terms of the applicant’s notice of
motion. It is parts of this
rule nisi
that the respondents
seek to discharge.
Applicable law and
analysis
[13]
It is trite that the workers must comply with the procedural
requirements set out in section 64 of the LRA to engage in a
protected strike. Section
65 of the LRA provides for the
substantive limitations on the right to strike or recourse to
lockout, and it states as follows:
‘
(3)
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.’
[14]
The crisp question for determination is whether the respondents are
prohibited from striking in respect of the demands as recorded
in the
strike notice. The applicant submitted that it operates as a mine and
it employs approximately 520 employees, approximately
179 of the
aforementioned employees are members of the third respondent and the
majority of the employees, approximately 341 employees,
are members
of the first respondent. The applicant further submitted that the
third respondent is not a majority trade union at
applicant’s
aforementioned mining premises and that on 15 June 2018, the third
respondent had only recruited 25 members.
[15]
The applicant’s contention is that the respondents are by
virtue of section 23(1)(d) of the LRA bound by the terms of
the
collective agreements entered into between the applicant and the
first respondent on 14 June 2018 and 18 July 2018 respectively.
Further that as a consequence of the aforesaid purported extension,
the dispute in question is regulated by the terms of collective
agreements binding upon the respondent, as a further consequence of
which the strike action is prohibited in terms of section 65(3)(a)(i)
of the LRA.
[16]
Section 65(3)(a)(i) provides as follows:
‘
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.’
[17]
It
is well established and settled in our law that minority unions may
be bound by collective agreements entered into with majority
unions
on matters of mutual interest and minority unions need not be
consulted in those instances. This is so despite the fact
that the
subject matter of the collective agreements affects individual
employees and their unions.
In
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of South Africa and Others
,
[2]
the
Labour Appeal Court stated as follows:
‘
Section
23(1)(d) of the LRA is
but
one instance in the LRA where the
legislature had chosen to apply the principle of majoritarianism.
There is nothing unconstitutional about the principle itself. It is a
useful and essential principle applied in all modern democracies,
including the Republic of South Africa. It has been recognised as an
essential and reasonable policy choice for the achievement
of orderly
collective bargaining and for democratisation of the workplace and
the different sectors.’
[18]
In
Association
of Mineworkers and Construction Union (AMCU) and Others Bafokeng
Rasimone Management Services (Pty) Ltd and Others
[3]
the Court
observed
that the subject matter of the collective agreement is irrelevant to
its extension to non-parties:
‘
In
my view there is merit in this submission and it matters not what the
subject matter of the collective
agreement
is. If a collective agreement had been concluded, the effect and
consequences should be the same, irrespective of the
subject matter
of the agreement and it would be inappropriate to treat some matters
of mutual interest different from others.’
[19]
The
Constitutional
Court recently dealt with the validity of the extension of a
collective agreement to members of a union who are not
a party to the
collective agreement in
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of South Africa and Others
[4]
where
it held as follows:
‘…
The
decision by private parties to invoke the power of section 23(1)(d)
affords them to extend their collective agreement to parties
entirely
alien to it has a coercive effect: it binds nonparties to the
agreement willy-nilly. And, as AMCU rightly points out here,
the
statutes empower contracting parties to do this with just about
industry wide effects. The extension of the agreement also
has
extensive implications for members of the public. For its duration,
non-members employees are bound. Even more, they forfeit
the right to
strike if the collective agreement regulates the issue in
dispute.’
[5]
[20] Therefore, in
circumstances where the majority trade unions had concluded a
collective agreement with the employer which prohibited
strike action
over the issue in dispute (as it is in this case), the strike by the
minority union would be unprotected.
[21] In this case, the
respondents’ contention is that the applicant has failed to
prove its claim that the first respondent
had represented the
majority of its workforce as at the time of the conclusion of the two
agreements. It submitted that as at 14
June 2018, it had in fact
recruited in excess of 300 members, continued to increase that number
up to the conclusion of the second
agreement and further continued to
do so up to date. In support of this allegation, the respondents
submitted that as from 5 June
2018 to 14 June 2018, it had presented
the applicant physically with an excess of 300 signed membership and
that the applicant
confirmed in writing that as at 14 June 2018, the
third respondent had claimed that it had recruited 339 employees in
the applicant’s
workplace.
[22] The respondent’s
further contention is that against the backdrop of the aforesaid
indisputable facts and with the full
knowledge that the first
respondent could no longer claim majority status and that it was not
longer mandated to conclude agreements
on behalf of the workforce,
the applicant and the first respondent in a most cynical manner
entered into the two collective agreements
in question. Accordingly,
the respondents argued that these agreements were entered into in
extreme bad faith and its right remained
reserved to challenge their
validity to the extent that this may be required in future.
[23] Whilst the
respondents are of the firm view that in the absence of the applicant
showing a clear right, its application should
be dismissed out of
hand, it is also acutely aware of the serious consequence a finding
to the contrary by this Court will have
for them given the content
and ambit of the two collective agreements. Accordingly, the
respondents requested the Court, only to
the extent that the Court
may have concerns relevant to the extent of factual dispute on the
papers and be disinclined to dismiss
the applicant’s
application, to refer the matter for oral evidence on the basis that
the parties may amplify their papers.
[24] In its replying
affidavit, the applicant submitted that it is apparent that there are
factual disputes, which it could not
have foreseen at the launching
of this application. Further that in the premise, the factual dispute
should be referred for oral
hearing alternatively the matter be
postponed until after the CCMA’s completion of the verification
process.
[25]
In order to assess the parties conflicting contentions, the Court has
to have regard to the disputed facts. Rule 7(7)(b) of
the Rules of
this Court makes provision for exactly this scenario. It provides
that
the Court must deal with an
application in any manner it deems fit, which may include referring a
dispute for the hearing of oral
evidence. This is a case where the
court should invoke the sub-rule. The dispute in this case can only
be decided by reference
to oral evidence
[26]
Accordingly, I make the following order:
Order
1.
This matter is referred for hearing of the oral evidence. The
affidavits filed in this application may serve as pleadings in
the
trial and
may be amplified.
2.
The costs are to be determined at the end of the trial.
D. Mahosi
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate. ESJ van Graan SC
Instructed
by:
De Swardt
Vogel Myambo Attorneys
For
the First Respondent: Mr M Niehaus of Minnaar Niehaus Attorneys
[1]
Act 66 of 1995 as amended.
[2]
[2016]
9 BLLR 872 (LAC) at para 105
[3]
(2017) 38 ILJ 931 (LC) at para 133
[4]
2017
(6) BCLR 700 (CC).
[5]
At
para 78.