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[2019] ZALCJHB 58
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Civil and Power Generation Projects (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2473/16) [2019] ZALCJHB 58; (2019) 40 ILJ 2055 (LC) (22 March 2019)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
case
no: JR 2473 / 16
In
the matter between:
CIVIL AND POWER
GENERATION
PROJECTS
(PTY)
LTD

Applicant
And
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION

First
Respondent
SIPHO
TALANE N.O. (AS COMMISSIONER)

Second Respondent
NUMSA
OBO MAHLALELA AND 200 OTHERS

Third Respondent
Heard:
23 October 2018
Delivered:
22 March 2019
Summary:
CCMA
arbitration proceedings –
review of proceedings, decisions and awards of commissioners –
test for review – s 145
of LRA 1995 – issue of material
error of law – application of review principles in such
circumstances considered
Collective
agreement – interpretation of agreement – principles of
interpretation considered
Collective
agreement – clear language of agreement, proper context and
common sense approach must lead to conclusion that
employees’
entire project bonus for the year is forfeited due to participation
in unprotected strike action
Collective
agreement – holistic view indicated specific prohibition of
unprotected strike action – this misconduct treated
more
severely as other transgression where forfeiture of part of project
bonus contemplated by collective agreement
Review
of award – arbitrator misconstruing objectives of LRA and
collective agreement – arbitrator failing to properly
apply
principles relating to interpretation of agreements – as such
committing material error of law – award reviewable
Review
of award – consequential relief – factual matrix common
cause – issue of interpretation of agreement principally
legal
issue – award substituted with award that employees forfeit
entire project bonus
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
This
matter concerns an application by the applicant to review and set
aside an arbitration award of the second respondent in his
capacity
as an arbitrator of the Commission for Conciliation, Mediation and
Arbitration (CCMA) (the first respondent). This application
has been
brought in terms of Section 145 of the Labour Relations Act
[1]
(‘the LRA’).
[2]
The dispute in this case concerned the
interpretation of a collective agreement to which both the applicant
and the third respondents
were bound. For ease of reference, I will
refer to the third respondent trade union in this judgment as
‘NUMSA’, and
its individual third respondent members as
‘the individual respondents’. What was ultimately placed
before the second
respondent to decide was the interpretation of a
clause in the collective agreement relating to the forfeiture of a
project bonus
payable to the individual respondents in terms of the
collective agreement, where the individual respondents had embarked
upon
unprotected strike action.
[3]
In an award dated 1 November 2016, the
second respondent determined that the clause in the collective
agreement only contemplated
the forfeiture of the project bonus, by
the individual respondents, of the month in which they embarked upon
the unprotected strike,
and not the entire project bonus for the
year. This award came to the attention of the applicant on 3 November
2016 when it was
e-mailed to the applicant by the CCMA. The applicant
then filed its review application on 18 November 2016, well within
the time
limit permitted by section 145(1) of the LRA.  The
applicant’s review application is thus properly before this
Court
for consideration, which I will now turn to by first setting
out the background facts.
Background
facts
[4]
The relevant factual matrix in this case
was straight forward, undisputed, and in fact agreed to in a
pre-arbitration minute.
[5]
The applicant conducts business in the
construction industry. The applicant was one of the contractors
appointed to do construction
on the Eskom Medupi power station
project in the Limpopo province (‘the project’). There
were also a number of other
contractors and construction businesses
working on the project.
[6]
As part of the regulation of employment
relations on the project, there was a group collective agreement
concluded in respect of
the project, between a number of
representative trade unions and the various employers, as represented
by two employers’
organizations, being South African Federation
of Civil Engineering Contractors (SAFCEC) and Construction
Engineering Association
of South Africa (CEA(SA)). This collective
agreement was concluded in 2010 and was known as the Project Labour
Agreement (‘PLA’).
NUMSA was an actual party to the
agreement, and the applicant was bound to same by virtue of its
membership of SAFCEC. The relevant
provisions of the PLA will be set
out next.
[7]
Clause 2.2 of the PLA commits the parties
to industrial peace and harmony, as one of the core objectives of the
agreement. The clause
stipulates that the parties ‘
shall
endeavour to ensure that fair and proper channels, practices,
policies and procedures are followed pro-actively to resolve

differences …
’.
[8]
The PLA also specifically deals with
collective bargaining in clause 5. It stipulates that collective
bargaining in respect of all
matters of remuneration and conditions
of employment will only be done in industry bargaining forums (clause
5.1). Clause 5.1 in
fact goes further and then specifically prohibits
any collective bargaining at site/project level.
[9]
The regulation of strike action is further
amplified in clause 12 of the PLA, which contains a peace obligation.
Clause 12.1.1 reads:
‘
The
Parties shall not sanction, promote or participate in industrial
action until such time as the procedures contained or referred
to in
this Agreement and the applicable legislation have been exhausted.
Neither should the Parties provoke one another. No industrial
action
shall take place:
12.1.1.1
concerning any issue which is the subject matter of this or relevant
Industry Agreements;
12.1.1.2
after the Parties have agreed to refer the dispute to alternative
dispute resolution mechanisms agreed
to by parties;
12.1.1.3
following an Arbitration Award;
12.1.1.4
in breach of any provisions of the Labour Relations Act, Act 66 of
1995 as amended; or
12.1.1.5
in respect of an issue that the parties
have to refer to arbitration…
’
Clause
12.9 also imposes an obligation in parties to expeditiously take all
steps necessary to bring unprotected industrial action
to an end.
[10]
Next is the actual clause in the PLA
directly applicable in the current matter, being clause 13.25 itself.
It must first be mentioned
that the clause finds itself in the
section of the PLA dealing with what is headed ‘SITE SPECIFIC
CONDITIONS OF EMPLOYMENT’.
Clause 13 as a whole deals with
working hours, wage rates, overtime, shifts, breaks, public holidays,
wage payments, shut downs,
transport, tools, leave, accommodation and
meals, recruitment and allowances. As part of these conditions of
employment, clause
13.25 then regulates a specific employment
condition called the ‘project bonus.’
[11]
In terms of clause 13.25.1, a project bonus
equal to 15 (fifteen) hours’ wages accrues to an employee for
every completed
month worked on the project. In terms of clause
13.25.2, the project bonus is however only payable to an employee
upon demobilisation,
which in effect means the termination of the
employee’s services on the project. However, despite this due
date of payment
of the project bonus as stipulated by the agreement,
it was common cause that Eskom instructed all the contractors to pay
the project
bonus to employees accrued over a 12 month period, at the
end of a 12 month cycle, even though they were not demobilized. It is

however also relevant to note that clause 13.25.2 provides that no
project bonus is payable in the case of dismissal, resignation
or
abscondment by an employee.
[12]
Clause 13.25.3 regulates the issue of
payment of the project bonus to employees, during the course of their
employment. The subclauses
to 13.25.3 then specifically and
separately deal with instances where the project bonus would not be
payable to employees, despite
having accrued to employees in terms of
clause 13.25.1. I will next individually set out these provisions,
and deal with the provisions
relating to unprotected strike action
last.
[13]
Firstly, clause 13.25.3.1 deals with what
is called absence ‘
without
consent
.’ It is worded in the
negative, recording that a project bonus will be paid to an employee
that is not absent without consent.
Be that as it may, the clause
then prescribes specific forfeitures that are applied to the payment
of the project bonus where an
employee is indeed absent without
consent. Where an employee is absent without consent on one occasion
in a calendar month, the
employee forfeits half the accrued hours for
that month (being 7.5 hours). If the employee is so absent on a
second occasion during
that same calendar month, the employee
forfeits the other half of the accrued hours for that month.
[14]
Secondly, clause 13.25.3.3 deals with the
refusal to work on an agreed Saturday, or to work overtime. The
clause does not have a
specific forfeiture provision attached to it,
as is the case with clause 13.25.3.1. As such, it must be read with
the main clause
13.25.3, and the clause in that context stipulates
that a project bonus will only be paid to an employee that does not
refuse to
work on an agreed Saturday or overtime. It follows that if
an employee does so refuse, the employee will not be paid a project
bonus. But clause 13.25.4 then applies to this kind of refusal as
well, and provides that the employee will forfeit 100% of the
project
bonus for that month in which the unauthorized absence occurs,
clearly meaning the absence caused by the refusal to work
on the
agreed Saturday or overtime.
[15]
This then brings me lastly to the
unprotected strike provision in clause 13.25.3.2. If this clause is
read with the main clause
13.25.3, it follows that employees shall
only be paid a project bonus if the employees do not embark upon
unprotected strike action.
Consequently, and as a general
proposition, employees that embark upon unprotected strike action
shall not be paid a project bonus.
Clause 13.25.3.2 then creates
specific exceptions to this general position. First, in the case of
the employees returning to work
within the cooling off period defined
in the PLA, they will not forfeit their project bonus (clause
13.25.3.2.1). Second, and where
the unprotected strike action takes
place as a result of provocation by the employer which is not
acknowledged by the employer
with an undertaking to investigate, the
employees will not forfeit their project bonus (clause 13.25.3.2.1).
[16]
Clause 13.25.3.2.3 is an important
provision relating to the matter
in
casu
. It provides as follows:
‘
Rolling
unprotected industrial action (where employees embarking upon
unprotected industrial action return to work only to go out
on
further unprotected industrial action as the result of the same
event) will result in the individuals losing their project bonus
in
terms of this PLA.
’
[17]
Turning next to the actual applicable facts
in this matter, the applicant, by 2014, employed 907 employees on the
project. Of these
employees, 201 were members of NUMSA. These members
are the individual respondents in the current matter.
[18]
On the morning of 9 October 2014, the
individual respondents embarked upon unprotected strike action. The
unprotected strike started
at 07h00 and the individual respondents
only returned to work after lunch time on that day. Three ultimatums
had to be issued in
the course of the morning before they returned to
work, the last being a final ultimatum. It was common cause that this
conduct
was part of what was called ‘rolling unprotected strike
action’.
[19]
The 9 October 2014 incident was however not
the first time the individual respondents had embarked upon
unprotected strike action.
In 2013, in particular on 20 June and 5 to
15 August 2013, they had also embarked upon unprotected strike
action. More currently
to the issue at hand, and on 23 September
2014, the individual respondents also embarked upon unprotected
strike action, which
also required an ultimatum having to be issued
before they returned to work.
[20]
As touched on above, and despite the
provisions of the PLA relating to project bonuses only being due and
payable on demobilisation,
Eskom instructed contractors on the
project to pay all employees’ accrued project bonuses up to
period ending 30 November
2013. The applicant complied.
[21]
But relating to the next period, being the
period 1 December 2013 until 30 November 2014, the applicant refused
to pay the individual
respondents their accrued project bonuses,
based upon its interpretation of the provisions of clause 13.25 of
the PLA. According
to the applicant, clause 13.25 contemplated that
the individual respondents would lose their entire project bonus for
that year,
because of the October 2014 unprotected strike action.
NUMSA disagreed, and contended that the PLA only contemplated that
its members
(the individual respondents) forfeit the accrued project
bonus for the month in which the unprotected strike took place, thus
being
only for October 2014.
[22]
NUMSA referred a dispute relating to the
interpretation and application of a collective agreement to the CCMA,
in terms of section
24 of the LRA, in order to resolve the above
dispute between the parties. This dispute came before the second
respondent for arbitration
on 20 October 2016. The issue in dispute
the second respondent was called upon to decide, in the end, was a
simple one. On the
one hand, the applicant contended that the
individual respondents forfeited their entire accrued project bonuses
for the period
from 1 December 2013 to 30 November 2014. On the other
hand NUMSA contended that the individual respondents should only
forfeit
their project bonuses for the one month in which they
embarked upon the unprotected strike, which was October 2014.
Determining
this dispute thus necessitated the second respondent
interpreting clause 13.25 of the PLA.
[23]
The
parties concluded a pre-arbitration minute on 20 October 2016 signed
by both parties, in which the parties in fact agreed that
the facts
as summarized above were common cause. In particular, the NUMSA
members (individual respondents) admitted there was a
rolling
unprotected strike on 8 October 2014.
[2]
The parties also agreed that the matter be decided based on the
content of the pre-arbitration minute, as well as the undisputed

documentary evidence submitted by the parties. The pre-arbitration
minute also defined the issue for determination, as summarized
above.
Both parties also filed written submissions, which in essence
contained the same argument presented in this Court.
[24]
The
second respondent was also presented with another example where
employees on the project, employed at another contractor, forfeited

their entire project bonus for participation in unprotected strike
action. This was in the form of an arbitration award by arbitrator
J
Tsabadi of the Metal and Engineering Industries Bargaining Council
issued on 27 September 2012,
[3]
under case number CDR-M12-98 between NUM and BCAWU on behalf of their
members and MPS – JV. The applicant contended that
this served
as precedent to support its views.
[25]
The
second respondent embarked upon the exercise of interpreting clause
13.25 of the PLA by first setting out the applicable legal
principles
where it comes to interpretation of documents. He held that he needed
to give the collective agreement a construction
that accorded with
the purposes of the LRA. He reasoned that the starting point of this
exercise was determining the plain language
of the document itself.
The second respondent was alive to the
dictum
in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[4]
,
which will be further addressed hereunder, relating to the modern
approach where it comes to the interpretation of written instruments.
[26]
The second respondent then applied the
above principles to the facts by first finding that the project bonus
accrued to each employee
on a month to month basis, at 15 hours per
month. According to the second respondent, this meant that the ‘
unit
of reckoning the bonus was a month’
.
[27]
The second respondent next referred to the
subclauses in clause 13.25, which I have summarized above. The second
respondent considered
that clause 13.25.3.1 only provided that if an
employee is absent without consent in a particular month, the
employee forfeits
either half of the full project bonus only for that
month. According to the second respondent, this again indicates the
‘unit
period of reckoning’ is a month, which he
considered to be the basis of any forfeiture provision. The second
respondent also
referred to clause 13.25.4, which provides that the
employee forfeits the project bonus hours only for a month in which
the employee
committed the misconduct referred to in that clause. All
of this, according to the second respondent, was support for the
conclusion
that forfeiture can only apply to the month in which the
misconduct was committed.
[28]
Next, the second respondent considered the
purpose of the project bonus, which according to him was to reward
the employees for
the months they properly worked, and only to punish
them for the months they did not.
[29]
Having so reasoned, the second respondent
then turned to clause 13.25.3.2 relating to unprotected strike
action, and concluded that
an unprotected strike is the same as the
misconduct referred to in the other subclauses under 13.25. This
meant, according to him,
that the employees would, in the case of an
unprotected strike, only lose their project bonus for the month in
which the strike
happened.
[30]
In addition to the aforesaid finding, the
second respondent then proceeds to down play the nature of the
misconduct where it comes
to unprotected strike action. He finds that
where an employee goes on strike, whether protected or unprotected,
the employee tries
to participate in collective bargaining which is
the employee’s right to do, because a strike is an integral
part of collective
bargaining. For this reason as well, the second
respondent concludes that it would make no sense for ‘illegal
strikers’
to forfeit their project bonus for months other than
the month they were striking.
[31]
The second respondent then concluded by
finding that any interpretation that employees who participate in
‘illegal’
strike action would forfeit the entire project
bonus for the 12 month period is not an interpretation a reasonable
person would
make, would be grossly unfair, and would not be in line
with the purpose of the LRA. The second respondent then decided that
the
individual respondents only forfeit their project bonus for the
month of October 2014, and were entitled to the payment of their

project bonus for all the remaining months.  It is this
determination that gave rise to the current matter on review.
The
test for review
[32]
The
test for review is well known. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[5]
the
Court held that ‘
the
reasonableness standard should now suffuse s 145 of the LRA
’,
and that the threshold test for the reasonableness of an award is: ‘…
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...’
[6]
.
In
Duncanmec
(Pty
)
Ltd v Gaylard NO and Others
[7]
the Court succinctly summarized the test as follows:
‘
This
test means that the reviewing court should not evaluate the reasons
provided by the arbitrator with a view to determine whether
it agrees
with them. That is not the role played by a court in review
proceedings. Whether the court disagrees with the reasons
is not
material.
The
correct test is whether the award itself meets the requirement of
reasonableness. An award would meet this requirement if there
are
reasons supporting it. The reasonableness requirement protects
parties from arbitrary decisions which are not justified by
rational
reasons.
’
[33]
In
this instance, there was no dispute of fact the second respondent had
to decide. The crisp issue is simply whether the second
respondent
committed a material error of law in applying the common cause facts
to the legal principles relating to the proper
interpretation of
contracts. It is also trite that an error of law that is material, to
the extent of that it would render the
outcome unreasonable, is
reviewable.
[8]
In
National
Union of Metalworkers of SA v Assign Services and Others
[9]
the
Court said:
‘
An
incorrect interpretation of the law by a commissioner is, logically,
a material error of law which will result in both an incorrect
and
unreasonable award. Such an award can either be attacked on the basis
of its correctness or for being unreasonable.
’
[34]
As
succinctly summarized in
Auto
Industrial Group (Pty) Ltd and Others v Commission for Conciliation,
Mediation and Arbitration and Others
[10]
:
‘
There
is a line of judgments by the LAC that establish that an arbitration
award may be set aside as constituting a gross irregularity
when a
commissioner commits
an error of
law, provided the error of law was material, in the sense that it
materially affected the commissioner’s ultimate
decision. Put
in the negative, an error of law is not material if the commissioner
would have reached the same decision on the
facts, despite the error
of law.
’
[35]
Against the above principles and test, I
will now proceed to consider the applicant’s application to
review and set aside
the arbitration award of the second respondent.
Grounds
of review
[36]
In
order to properly decide a review application, it is also important
to identify the grounds of review upon which the application
is
founded. These grounds must be properly set out and identified in the
founding affidavit.  As was said
in
Northam
Platinum Ltd v Fganyago NO and Others
[11]
:
‘…
The
basic principle is that a litigant is required to set out all the
material facts on which he or she relies in challenging the

reasonableness or otherwise of the commissioner's award in his or her
founding affidavit’
.
[37]
However,
in the case of review applications, these grounds of review may be
supplemented, after the filing of the record, by way
of a
supplementary affidavit.
[12]
The applicant did not seek to supplement the grounds of review set
out in the founding affidavit.
[38]
In the founding affidavit, the applicant
has raised several individual grounds of review. All of these grounds
of review point to
the applicant’s contention that the second
respondent committed an error of law in the manner in which he
interpreted clause
13.25 of the PLA. Pertinent individual grounds of
review relating to the findings of the second respondent are:
38.1
He misinterpreted the agreement because he
failed to distinguish between the individual sub-clauses and their
differing underlying
rationale.
38.2
He erroneously relied on clause 13.25.1 of
the PLA in that it did not apply to instances of strike action.
38.3
It was improper to equate strike action to
absence without leave and other forms of misconduct.
38.4
He failed to consider that unprotected
strike action is frowned upon in terms of the objectives of the LRA.
38.5
The limitation of the forfeiture of the
project bonus to only the month of the unprotected strike action
offends against the clear
and unambiguous wording of the PLA.
[39]
I will now proceed to consider the
applicant’s review application based on these   principal
grounds of review,
as summarized above.
Analysis
[40]
As an opening remark, I am unfortunately
compelled to say that this is a case where the interpretation of an
agreement is unduly
influenced by subjective considerations of the
second respondent as a decision maker, rather than him remaining
objective as required.
A proper consideration of the reasoning of the
second respondent in his award leaves me convinced that what
materially influenced
the second respondent in his reasoning is that
he simply found it unpalatable that employees should forfeit their
entire project
bonus for the year for one incident of unprotected
strike action. It just did not sit right with him, and he adapted his
interpretation
of the PLA accordingly.
[41]
But
needless to say, these kind of subjective considerations and personal
views of what is fair is not a permissible basis upon
which to
interpret an agreement. This is especially so where it comes to
broader based collective agreements such as the PLA, which
has much
wider implications to other unions, employers, employees and the
industry itself.
[13]
In
dealing with the interpretation specifically of an industry
collective agreement, the Court in
Commercial
Workers Union of SA v Tao Ying Metal Industries and Others
[14]
said:
‘
The
proper approach to the construction of a legal instrument requires
consideration of the document taken as a whole. Effect must
be given
to every clause in the instrument and, if two clauses appear to be
contradictory, the proper approach is to reconcile
them so as to do
justice to the intention of the framers of the document. It is not
necessary to resort to extrinsic evidence if
the meaning of the
document can be gathered from the contents of the document.'
[42]
In
his award, the second respondent in fact correctly identified all the
legal principles applicable to the interpretation of agreements.
But
unfortunately, where it came to the manner in which he applied these
principles, it is clear to me that he just paid lip service
to these
principles, and did not in reality properly or rationally apply the
same. It is perhaps best, as a point of departure,
to now summarize
these principles. What is now often referred to as the ‘modern’
basis of the interpretation of agreements,
was enunciated in
Endumeni
Municipality
[15]
as follows:
‘
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective, not subjective.
A
sensible meaning is to be preferred to one that leads to
insensible or unbusinesslike results or undermines the apparent

purpose of the document. Judges must be alert to, and guard against,
the temptation to substitute what they regard as reasonable,
sensible
or businesslike for the words actually used. To do so in regard to a
statute or statutory instrument is to cross the divide
between
interpretation and legislation; in a contractual context it is to
make a contract for the parties other than the one
they in fact
made. The "inevitable point of departure is the language of the
provision itself", read in context and having
regard to the
purpose of the provision and the background to the preparation and
production of the document.'
[43]
The
Constitutional Court in
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of SA and Others
[16]
applied the aforesaid
dictum
in
Endumeni
Municipality
,
and said:
‘
All
interpretations of law are themselves in a sense ‘factual’:
certain textual and other sources (for example, statutes,
common and
customary law) are excavated and marked out as factually ‘law’,
in contradiction to non-law. But this process
itself involves a
contextual analysis of those sources. See in this regard
Natal
Joint Municipal Pension Fund
v
Endumeni Municipality
[2012]
ZASCA 13
;
2012
(4) SA 593
(SCA)
at
para 18. Indeed, interpretation and application are simultaneous and
intricated. The most imaginative exponent of this insight
is Ronald
Dworkin. See Dworkin
Law’s
Empire
(Harvard University Press Cambridge 1986) at vii: ‘legal
reasoning is an exercise in constructive interpretation’,
in
which we advance ‘the best justification of our legal practices
as a whole’.
’
[44]
I
wish to make a final reference to the following useful
dictum
in
Democratic
Nursing Organisation of SA on behalf of Du Toit and Another v Western
Cape Department of Health and Others
[17]
where the Labour Appeal Court made the following observations, after
considering the dictum in
Endumeni
Municipality
:
‘…
Of
course, context is not a secondary consideration but is part of the
very process required to resolve any linguistic difficulty.
The words
employed and the purpose of the speaker are inextricably linked. This
follows inherently from the very concept of the
language. In the same
manner, the content of an ordinary conversation cannot, in general,
be divined from the meaning of the sentences
employed or even with
the conversationalist's goals in saying what they did, so the content
of a legal text cannot, in general,
simply be determined by the
ordinary or technical meanings of the sentences in the text or indeed
with the policy goals motivating
the drafting thereof. As Scott
Soames has noted:
'The
content of a legal text is determined in essentially the same way
that the contents of other texts or linguistic performances
are, save
for complications resulting from the fact that the agent of a
legislative speech act is often not a single language user
but a
group, the purpose of the speech is not usually to contribute to the
cooperative exchange of information but to generate
behaviour
modifying stipulations, and the resulting stipulating contents are
required to fit smoothly into a complex set of existing
stipulations
generated by other actors at other times.'
[45]
I
now return to the matter at hand, and apply what is set out above.
One issue must be immediately disposed of. The second respondent’s

reasoning that the conduct of the individual respondents must in some
way be mitigated or understood because unprotected strike
can be seen
as being simply part of their fundamental right to collective
bargaining, is completely unsustainable and a misdirection.
Where
fundamental rights under the Constitution are regulated by statute,
those rights must be determined based on the content
of the statute
concerned, and direct reliance on the constitutional provision is not
permissible.
[18]
In this case,
the right to collectively bargain is regulated by the LRA, which has
as one of its core objectives orderly and legitimate
collective
bargaining. An unprotected strike action is in breach with what the
LRA requires and is simply not consistent with it.
[19]
It therefore follows that where employees strike in a manner
prohibited by the LRA,
[20]
it
simply cannot be seen as being part of their right to collective
bargaining as collective bargaining in terms of the LRA envisages

only legally permissible conduct, and not unlawful behaviour.
[46]
By
adopting the approach referred to above, the second respondent
negated an important context. This context is that unprotected
strike
action is very serious misconduct, not functional to collective
bargaining, and may justify dismissal.
[21]
It is also the kind of conduct that causes material prejudice to an
employer. The object of the LRA is clearly to dissuade employees
from
strike action that is not in compliance with the provisions of the
LRA. In turn, this constitutes a proper context in terms
of the LRA
for treating this misconduct far more seriously in the PLA, namely by
way of the forfeiture of the entire project bonus.
So therefore, and
contrary to what the second respondent believed, an interpretation of
clause 13.25 to the effect that employees
forfeit their entire
project bonus for the year is fully in line with the objectives of
the LRA.
[47]
My
view in this regard is cemented by the manner in which clause
13.25.3.2 is structured. As dealt with earlier in this judgment,
the
provision in fact contemplates that, at the risk of exaggerating, it
is not every little strike of a few minutes that will
lead to
forfeiture of the project bonus. Employees are given the opportunity
to save their project bonus by returning to work within
the cooling
off period defined in the PLA itself.
[22]
There is thus a balance, as envisaged by the LRA, that a strike of
short duration does serve as mitigation.
[23]
Also, the clause specifically recognizes the concept of provocation
by the employer as a mitigating factor.
[24]
In that instance as well, employees do not forfeit their project
bonus. This is fully in line with the objective of fair dealing
under
the LRA, and an important factor the second respondent did not
contemplate at all.
[48]
A proper interpretation of clause
13.25.3.2, by simply considering the clear language in the clause,
can in my view only have one
result. This result is that the clause
provides, as a general principle, that where employees embark upon an
unprotected strike,
they forfeit their project bonus. This is not
their project bonus for only a month, but their project bonus for the
year. However,
if they go back to work immediately (within the
cooling off time) or if they are provoked by their employer, this
would serve as
an exception to losing their project bonus. This is
the only construction that fully accords with the clear language of
the provisions.
[49]
The
provisions of clause 13.25.3.2.3 even further supports this
construction. It serves to deal specifically with ‘rolling’

industrial action. This is the kind of unprotected strike action that
has an element of deliberateness to it, in that it is planned.
It is
a stratagem where employees, for example, strike for a short period,
return to work, then later strike for a short period
and return to
work, and so on, based on the same underlying issue in dispute. This
conduct is simply unacceptable, and clause 13.25.3.2.3
contemplates
this.
[25]
So where employees
return to work within the cooling off period, for example, but the
unprotected strike was part of ‘rolling’
industrial
action, this clause specifically provides that the project bonus is
lost. In simple terms, the language in the clause
is clear –
rolling unprotected strike action equals loss of the project bonus.
[50]
I
have dealt above with the issue of appropriate context where it comes
to the provisions of the LRA, but the PLA itself also provides

context. In my view, the PLA is squarely aimed at the prohibition of
unprotected strike action. This is made clear in clauses 2.2,
5.1 and
12 I have set out earlier in this judgment. In the face of such clear
prohibition, it explains the reason why unprotected
strike action is
dealt with more harshly where it comes to the project bonus. It then
makes sense why a single transgression can
lead to the forfeiture of
the entire project bonus. It serves as the strongest discouragement
possible to employees not to flout
the provisions of the LRA, and act
contrary to one of the primary objectives of the PLA itself, which
after all is an agreement
to which they all are a party.
[26]
In any event, the PLA is not adverse to the concept of the total
forfeiture of the project bonus, which would happen, in terms
of
clause 13.25.2, in the case of fair dismissal, resignation and
absconding.
[51]
All of the above leaves me convinced that
when considering the clear language of clause 13.25.3, the context
provided by the actual
objectives of the LRA and the PLA itself, and
with a generous helping of common sense and logic, the result that
must follow when
objectively interpreting this clause is that where
employees embark upon unprotected strike action, they forfeit their
entire project
bonus for the year, even if it is only a single
instance. The only way to avoid this is for employees to show that
they returned
to work in the cooling off period, that they were
provoked into striking, and that this was not ‘rolling’
industrial
action.
[52]
In the current matter, none of the
exceptions in clause 13.25.3.2 applied. There was no case made out
that the employees retuned
to work within the cooling off period. In
any event, the trail of ultimatums show that this was not the case.
There was no allegation
or case made out that the employees were
provoked. And then, to top it all off, it was common cause that this
was ‘rolling’
industrial action. In terms of the PLA,
only one result could follow. The individual respondents’
project bonus for the year
from 1 December 2013 to 30 November 2014
was forfeited.
[53]
The second respondent tried several avenues
to get around this clear and logical conclusion. He sought to rely on
clause 13.25.1,
which provides that the project bonus accrues on a
month to month basis for as long as the employee works on the
project. He in
effect reasoned that because it accrues monthly, it
can only be forfeited monthly. This is not only a misdirection, but
reasoning
that flies in the face of the clear language of clause
13.25 as a whole, as discussed above. The second respondent also
ignores
that although the project bonus accrues monthly, it is not
paid monthly. It is paid as a once off lump sum at the end of the
applicable
12 month period. The monthly accrual of the project bonus
is nothing but a formula. So, and in the ordinary course, at the end
of 12 months, the employees concerned will receive a once off payment
equivalent to 15 working hours accruing month to month over
that
period. This constitutes the so-called carrot given to employees for
being at work and working properly over a period of a
year.
[54]
However, and usually where a carrot is
provided, there is inevitably always a stick. This stick is found in
clauses 13.25.2, 13.25.3.1,
12.35.3.2, 12.35.3.3 and 12.35.4. In
terms of these provisions, either the whole or part of the project
bonus is forfeited, obviously
before payment is made. In sum, these
provisions contemplate total forfeiture in the case of fair
dismissal, resignation and absconding.
It also contemplates total
forfeiture subject to specific exceptions in the case of unprotected
strike action. Finally, it contemplates
only part forfeiture for
unauthorized absenteeism and refusal to work overtime or on an agreed
Saturday. What is immediately apparent
is that each of these
instances of forfeiture are regulated separately.
[55]
In my view, the second respondent
completely failed to appreciate this distinction. The second
respondent in fact sought to panel
beat all forfeitures into one
category. The second respondent in effect reasoned that all
transgressions should be treated exactly
the same where it comes to
the
quantum
of forfeiture. That approach is however in my view contrived and
misdirected, for a number of reasons, to follow.
[56]
The approach of the second respondent is
entirely incompatible with the clear language of the provisions he
relies on. The PLA itself
contemplates that the wielding of the stick
of forfeiture of the project bonus is done differently depending on
specifically defined
circumstances. It flies in the face of the PLA
to merge it into one, so as to secure an outcome most favourable to
employees, which
is what the second respondent did. In the end, a
simple and common sense approach to interpreting and applying clause
13.25 shows
it is not difficult to understand and apply. First, the
employees are given an ‘extra’ as part of their
conditions
of employment, if they work properly over a defined
period, and is payable at the end of that period. Second, this extra
is completely
lost if an employee is dismissed fairly, resigns, or
absconds before it is payable. Third, the extra is completely lost if
the
employees embark upon unprotected strike action in this period,
unless they return to work within a cooling off period or are
provoked.
Fourth, the extra is only partially forfeited on a month to
month basis for unauthorized absenteeism, or a refusal to work
overtime
or on agreed Saturdays. In my view, it is as simple as that.
[57]
The point can be best illustrated by
example. An employee works on the project for a period of a year. As
such, the employee accrues
the full project bonus and would in the
ordinary course be entitled to payment thereof at the end of the
period. But in one month
during the period, the employee was absent
without leave for two days. In another month in the period, the
employee refused to
work on an agreed Saturday. As a result, and
before payment of the project bonus is made, applying clauses
13.25.3.1 and 13.25.3.3
(as read with 13.25.4) two months must be
deducted,. These are different forfeitures, separately provided for
in clause 13.25.
The one need not be grafted into the other. In the
context of this same example, if the employee however resigns, even
after 11
months of the 12 month period, the employee gets no project
bonus. Again, it is a different application of another provision of

the clause to a different circumstance.
[58]
In the context of this separation of
forfeitures, strike action is viewed much more seriously. The
rationale for this is common
sense, as I have touched on above. The
PLA itself regards this as serious. The consequences to the applicant
as employer as a result
of unprotected strike action by employees is
far more serious than the consequences to the applicant of an
individual employee
that, for example, is absent without leave on one
day. The nature of the misconduct of unprotected strike action is far
more egregious
that the other instances contemplated by clause
13.25.3. In my view, it thus follows that a proper interpretation of
the PLA leaves
me convinced that it was intended as a measure to
discourage unprotected strike action in the strongest possible terms,
in that
there would be a total forfeiture of the project bonus where
there is unprotected strike action.
[59]
The
judgment in
Renaissance
BJM Securities (Pty) Ltd v Grup
[27]
has a number of similarities to the matter now before me as it also
concerned the payment of a bonus to an employee. It was contended

that the bonus was paid as a retention bonus, meaning that it was
paid on condition that the employee remains in the employment
of the
employer. After referring to
Endumeni
Municipality supra
,
the Court held:
[28]
‘
The
language used in the impugned clause is unambiguous and contains no
condition relating to the respondent remaining in the appellant's

employ. The clause clearly states that the respondent would be paid
'cash of equal value to the forfeited value'. The money was
therefore
paid to compensate the respondent for the loss he suffered or would
suffer as a result of resigning from Investec. The
money was payable
in three tranches, which were not linked to the respondent remaining
in the appellant's employ.
The
context within which the clause should be considered is that the
appellant desired the services of the respondent. Both parties
were
aware that the recruitment process would not succeed unless the
respondent was compensated or sufficiently compensated for
the loss
that he would suffer on resignation from Investec. The only way in
which the appellant could procure the services of the
respondent was
to facilitate his resignation from Investec by offering to pay him
what he would forfeit on resignation. It is clear
that clause 4.5
came into existence because of these considerations.
’
[60]
The
approach I adopt now is similar to that of the Court in
Grup
.
As said above, clause 13.25.3.2 is unambiguous. It contains no
provision to the effect that where it applies, only the project
bonus
for the month within which the unprotected strike action occurred is
forfeited. On the contrary, and in the case of rolling
industrial
action, as was the case
in
casu
on the common cause evidence, clause 13.25.3.2.3 specifically
provides for forfeiture of the entire project bonus for the period.

These provisions were intended to discourage unprotected strike
action which is specifically prohibited by the PLA. This leaves
no
room for the interpretation suggested by the second respondent. As
said in
Phaka
and Others v Bracks NO and Others
[29]
:
‘…
the
contract falls to be interpreted by having regard to its plain and
unambiguous language understood contextually and purposively
…’
[61]
Therefore, in summary, the second
respondent’s determination that the individual respondents that
partook in the ‘rolling’
unprotected strike action on 9
October 2014 only forfeited their project bonus for the month of
October 2014 is a misdirection
and a material error of law. Such
determination is incompatible with the clear and unambiguous language
of clause 13.25 and the
manner in which it is structured. It ignored
the objectives of the LRA relating to unprotected strike action and
negated the intended
consequences of a violation of the strict
prohibition of unprotected strike action found in the PLA. It is
based on an artificial
construct, subjectively intended to cause the
least possible prejudice to employees. It is unsustainable on review,
and thus an
unreasonable outcome.
Conclusion
[62]
Therefore, and based on all the reasons set
out above, I conclude that the second respondent’s award
constitutes a material
error of law to the extent that the
determination he arrived at is unreasonable and thus cannot be
sustained. The award thus falls
to be reviewed and set aside.
[63]
Having reviewed and set aside the award of
the second respondent, I see no reason to remit this matter back to
the first respondent
again for determination
de
novo
before another arbitrator. In
terms of section 145(4), I have the power to determine the matter. As
stated above, the factual matrix
in this matter was undisputed and
actually agreed to. The interpretation of the PLA is in essence a
legal conclusion, and need
not be decided again. I therefore consider
it appropriate to finally determine this matter, once and for all. As
a result, I consider
it appropriate that the arbitration award of the
second respondent be substituted with an award that the individual
respondents
forfeit their entire project bonus for the annual period
of 1 December 2013 to 30 November 2014, as a result of their
participation
in rolling unprotected strike action on 9 October 2014.
Costs
[64]
This
then only leaves the issue of costs. In terms of the provisions of
section 162(1) of the LRA, I have a wide discretion where
it comes to
the issue of costs. Even though
the
applicant was successful, I do not intend to burden the third
respondents with a costs order, especially considering and the

ongoing relationship between the parties and the opportunity afforded
to me to bring this matter finally to an end. I am also mindful
of
the
dictum
of the Constitutional Court in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[30]
where
it comes to costs awards in employment disputes before this Court,
and in this case there certainly exists no reason to depart
from
this. Also, neither party pressed the issue of costs when the matter
was argued.
I
accordingly exercise my discretion as to costs in this matter, by
making no order as to costs.
[65]
In the premises, I make the following
order:
Order
1.
The applicant’s review application is
granted;
2.
The
arbitration award of the second respondent, arbitrator Sipho Talane,
dated 1 November 2016 and issued under case number LP 6903
–
16, is reviewed and set aside.
3.
The arbitration award is substituted with
the following award and determination:
“
The
members of NUMSA that embarked upon unprotected strike action on 9
October 2014 forfeit their entire project bonus for the period
from 1
December 2013 to 30 November 2014.”
4.
There is no order as to costs.
_____________________
S. Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:

Advocate M Van As
Instructed
by:

Fluxmans Inc Attorneys
For
the Third Respondents:

Mr X
Ngako of Ruth Edmonds Attorneys Inc.
[1]
66
of 1995 (as amended).
[2]
The date of 8 October 2014 is a typographical error. The actual date
of the strike was 9 October 2014.
[3]
There was a variation of the award on this date – the original
award was handed down on 5 September 2012.
[4]
2012
(4) SA 593 (SCA).
[5]
(2007)
28 ILJ 2405 (CC).
[6]
Id
at para 110. See also
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC)
at
para 134;
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96;
Herholdt
v Nedbank Ltd and Another
(2013)
34
ILJ
2795 (SCA)
at
para 25;
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
(2014)
35 ILJ 943 (LAC) at para 14;
Monare
v SA Tourism and Others
(2016) 37 ILJ 394 (LAC) at para 59;
Quest
Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate
(2015) 36 ILJ 968 (LAC) at paras 15 – 17;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2015) 36 ILJ 2038 (LAC) at para 16.
[7]
(2018)
39 ILJ 2633 (CC) at paras 42 – 43
[8]
Head
of Department of Education v Mofokeng and Others
(2015)
36
ILJ
2802 (LAC)
at paras 32 – 33.
[9]
(2017)
38 ILJ 1978 (LAC) at para 32. The judgment of the LAC was upheld by
the Constitutional Court in
Assign
Services (Pty) Ltd v National Union of Metalworkers of SA and others
(Casual Workers Advice Office as Amicus Curiae)
(2018) 39 ILJ 1911 (CC). See also with regard to this principle the
judgments in
Democratic
Nursing Organisation of SA on behalf of Du Toit and Another v
Western Cape Department of Health and Others
(2016)
37
ILJ
1819 (LAC)
at
paras
21-22
;
MacDonald’s
Transport Upington (Pty) Ltd v Association of Mineworkers and
Construction Union and Others
(2016)
37
ILJ
2593 (LAC)
at
para
30
.
[10]
(2019)
40 ILJ 550 (LC) at para 31.
[11]
(2010)
31 ILJ 713 (LC) at para 27.
[12]
See Rule 7A(8) of the Labour Court Rules;
Brodie
v Commission for Conciliation, Mediation and Arbitration and Others
(2013)
34 ILJ 608 (LC) at para 33;
Sonqoba
Security Services MP (Pty) Ltd v Motor Transport Workers Union
(2011)
32 ILJ 730 (LC) at para 9;
De
Beer v Minister of Safety and Security and Another
(2011)
32 ILJ 2506 (LC) at para 27.
[13]
For a discussion of this broader impact see
Cape
Gate (Pty) Ltd v National Union of Metalworkers of SA and Others
(2007)
28 ILJ 871 (LC) at paras 38 – 40;
Solidarity
v Metal and Engineering Industries Bargaining Council and Others
(2017) 38 ILJ 2109 (LC) at paras 48 – 49.
[14]
(2008)
29
ILJ
2461 (CC)
at
para
90
.
[15]
Supra
id fn 4 at para 18. See also:
Bothma-Batho
Transport (Edms) Bpk v S Bothma en Seun Transport (Edms) Bpk
2014
(2) SA 494
(SCA) at para 12.
[16]
(2017)
38 ILJ 831 (CC) at fn 28.
[17]
(2016)
37 ILJ 1819 (LAC) at para 33.
[18]
See:
SANDU
v Minister of Defence and Others
(2007)
28 ILJ 1909
(CC)
at para 51.
[19]
See: Section 1(d)(i) of the LRA;
National
Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and
Another
(2003)
24 ILJ 305 (CC) at para 26;
SA
Transport and Allied Workers Union and Others v Moloto NO and
Another
(2012)
33 ILJ 2549 (CC) at para 33;
Transport
and Allied Workers Union of SA v Putco Ltd
(2016)
37 ILJ 1091 (CC) at para 70.
[20]
This is where the procedural requirements for the right to strike to
accrue as set out in section 64 have not been met, or the
strike is
prohibited by way of section 65.
[21]
Section
68(5) reads: ‘Participation in a strike that does not comply
with the provisions of this Chapter, or conduct in
contemplation or
in furtherance of that strike, may constitute a fair reason for
dismissal. In determining whether or not the
dismissal is fair, the
Code of Good Practice: Dismissal in Schedule 8 must be taken into
account’. See also
National
Union of Metalworkers of SA and Others v CBI Electric African Cables
(2014) 35 ILJ 642 (LAC) at para 28;
Transport
and Allied Workers Union of SA on behalf of Ngedle and Others v
Unitrans Fuel and Chemical (Pty) Ltd
(2016)
37
ILJ
2485 (CC)
at
para 50.
[22]
Clause 12.9.3 of the PLA refers to 4(four) hours.
[23]
See:
SA
Commercial Catering & Allied Workers Union on behalf of Mokebe
and Others v Pick ’n Pay Retailers
(2018)
39 ILJ 201 (LAC) at para 35;
Mediterranean
Textile Mills (Pty) Ltd v SA Clothing and Textile Workers Union and
Others
(2012) 33 ILJ 160 (LAC) at para 44;
Association
of Mineworkers and Construction Union and Others v Anglogold Ashanti
Ltd
(2016) 37 ILJ 2320 (LC) at para 263
;
National Union of Metalworkers of SA and Others v Pro Roof Cape
(Pty) Ltd
(2005) 26 ILJ 1705 (LC) at para 33.
[24]
See Item 6(1)(c) of Schedule 8 to the LRA;
National
Union of Metalworkers of SA and Others v Lectropower (Pty) Ltd
(2014)
35 ILJ 3205 (LC) at paras 20 - 22;
Food
and Allied Workers Union and others v Supreme Poultry (Pty) Ltd
(Formerly known as Country Bird)
[2016]
JOL 35779
(LC) at para 14;
Transport
and General Workers Union and others v Coin Security Group (Pty) Ltd
(2001)
22 ILJ 968 (LC) at paras 134 – 135.
[25]
See:
National
Union of Metalworkers of SA & others v CBI Electric African
Cables
(2014)
35 ILJ 642 (LAC) at para 39;
County
Fair Foods (Epping), a division of Astral Operations Ltd v Food and
Allied Workers Union and Others
(2018) 39 ILJ 1953 (LAC) 22;
Mndebele
and Others v Xstrata SA (Pty) Ltd t/a Xstrata Alloys (Rustenburg
Plant)
(2016) 37 ILJ 2610 (LAC) at para 34.
[26]
Section
23 reads” ‘(1) A collective agreement binds-the members
of a registered trade union and the employers who
are members of a
registered employers' organisation that are party to the collective
agreement if the collective agreement regulates-
(i) terms and
conditions of employment …’
[27]
(2016)
37 ILJ 646 (LAC).
[28]
Id fn 27 at paras 23 – 24.
[29]
(2015)
36 ILJ 1541 (LAC) at para 18.
[30]
(2018)
39 ILJ 523 (CC) at para 25.