National Union of Metal Workers of South Africa obo Members v Plastic Convertors Association of SA Metal and Engineering Industries and Another (J554/19) [2019] ZALCJHB 97 (14 May 2019)

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[2019] ZALCJHB 97
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National Union of Metal Workers of South Africa obo Members v Plastic Convertors Association of SA Metal and Engineering Industries and Another (J554/19) [2019] ZALCJHB 97 (14 May 2019)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
case
no: J 554/19
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH AFRICA obo members
Applicant
And
plastic
convertors association of sa
First Respondent
metal
and engineering industries
bargaining
council
Second Respondent
Heard
:
18 April 2019
Delivered
:
14 May 2019
judgment
PRINSLOO,
J
Introduction
[1]
The
Applicant (NUMSA) approached this Court on an urgent basis for an
order
inter
alia,
declaring
a lock-out not to be in compliance with the provisions of Chapter IV
of the Labour Relations Act
[1]
(LRA).
The matter was set down for hearing on 20 March 2019, on which date
the parties agreed to postpone the matter to 18 April
2019 and
further agreed to the filing of affidavits in the application.
[2]
The First Respondent (the Respondent) took
issue with urgency. I do not intend to deal with the issue in any
detail as
this Court
has a discretion and in exercising that discretion, I am inclined to
deal with the matter notwithstanding the objections
regarding
urgency. I am of the view that it is in the interest of the parties
that the matter be decided without delay.
Brief
history
[3]
The dispute between the parties has a long
and peculiar history and it is necessary to provide a brief summary
thereof to give context
to the dispute and this application.
[4]
The National Industrial Council for the
Iron, Steel, Engineering and Metallurgical Industries was founded in
1944. In 1994 it was
registered as a bargaining council under the LRA
and its name was changed to that of the Second Respondent (MEIBC).
Several industries
fall within the scope of the MEIBC, including the
plastics industry.
[5]
The Respondent is an employers’
organisation which falls within the plastics industry, as defined in
the certificate of the
MEIBC’s registration, and it is a member
of the MEIBC.
[6]
For many years the employers in the
plastics industry had argued that their industry does not fit neatly
into the general scope
of the MEIBC and that the employers and the
unions within the said industry should negotiate separately. In June
2008, the parties
to the MEIBC concluded a collective agreement
confirming their in-principle commitment to the establishment of a
plastics chamber
under the auspices of the MEIBC.
[7]
A Plastics Negotiating Forum (PNF) was
established on 10 September 2013 as a separate negotiating chamber,
operating under the auspices
of the MEIBC. It was for the exclusive
negotiation of terms and conditions of employment within the plastics
industry. The first
meeting of the PNF took place on 4 October 2013
under the auspices of the MEIBC and the parties present agreed on
terms of reference,
which were adopted at a subsequent meeting of the
MEIBC’s management committee (MANCO). NUMSA was not party to
this.
[8]
During May and June 2014 negotiations in
the PNF took place and a collective agreement regulating terms and
conditions of employment
in the plastics industry was concluded. The
agreement remained in force until 30 June 2016.
[9]
On
6 July 2016 the Labour Appeal Court (LAC) delivered judgment
[2]
wherein it declared
inter
alia
that
the PNF was a duly established and exclusive negotiating chamber for
the plastic sector within the MEIBC. This brought a long-running

dispute to an end. The effect of the judgment was that the plastics
industry was recognised as a separate sub-sector within the
MEIBC,
that was able to regulate its own affairs through collective
agreements.
[10]
During August 2016 the Respondent initiated
negotiations in terms of the MEIBC Constitution (the Constitution)
for the conclusion
of a new collective agreement to comprehensively
regulate the terms and conditions of employment applicable in the
plastics industry.
The Respondent tabled a comprehensive draft
agreement for the bargaining parties’ consideration and
negotiation meetings
were held between October 2016 and May 2017.
[11]
The negotiations resulted in a collective
agreement titled ‘Consolidated 2016/2021 Plastic Industry
Agreement’ (the
Consolidated Agreement) which was signed by six
employers’ organisations. On 17 May 2017, the MEIBC’s
MANCO adopted
the Consolidated Agreement as a collective agreement of
the council. The said agreement only binds the parties to the
agreement
and as NUMSA has not signed the agreement, the parties
remained in dispute over the terms and conditions of employment for
NUMSA
members in the plastics sector.
[12]
On 15 June 2017 NUMSA declared a formal
dispute under cover of a letter titled ‘Notice of dispute on
wages and other substantive
issues – PNF negotiations 2017’.
After the plastics employers’ organisations lodged a point
in
limine
to declare that the dispute was
invalid, NUMSA withdrew the dispute.
[13]
On 27 July 2017, NUMSA sent another letter
with revised demands. The demands included
inter
alia
that the wages and terms and
conditions of employment for workers in the plastics industry should
be the same as those in the rest
of the industry covered by the
MEIBC’s Main Agreement (the Main Agreement) and should be
regulated by the said agreement.
After an extended period of
negotiation and mediation, the demands were not agreed to.
[14]
On 27 February 2018, NUMSA declared a
deadlock on the demands it had tabled for negotiation at the PNF. It
is undisputed that the
deadlock was a two-way street in that the
employers’ organisations refused to accept NUMSA’s demand
for the conclusion
of a collective agreement based on the terms of
the Main Agreement and that NUMSA on the other hand and at the same
time, refused
to accept the employers’ organisations’
demand that the agreement should be based on the terms of the
Consolidated
Agreement. The gist of the dispute is which of the two
documents should form the basis of the agreement on terms and
conditions
of employment to be concluded between the parties.
[15]
On 7 March 2018, NUMSA referred the dispute
to the MEIBC for conciliation. Its demands were clarified in a letter
dated 29 June
2018. After conciliation failed, the dispute remained
unresolved and NUMSA issued a strike notice on 9 October 2018 for
strike
action to commence on 15 October 2018.
[16]
On 12 October 2018, the Respondent launched
an urgent application in this Court to declare the strike action
unprotected. The matter
was argued on 17 October 2018 and on 19
October 2018 this Court (per Moshoana, J) concluded that the strike
action was protected
and the application was dismissed. The Court
identified the true issue in dispute to be the demand to conclude a
new collective
agreement.
[17]
Members of NUMSA have engaged in protected
strike action since 15 October 2018. On 24 October 2018, the
Respondent, on behalf of
its members, gave notice to NUMSA’s
members of the intention to institute a lock-out and the lock-out was
indeed instituted
with effect from 26 October 2018.
[18]
It is evident from the lock-out notice
issued in terms of section 64(1)(c) of the LRA that the lock-out was
in response to NUMSA’s
members strike and to compel them to
agree to the Respondent’s demands. The Respondent’s
demand was that NUMSA and
its members agree to the conclusion of a
collective agreement adopting the provisions of the Consolidated
Agreement and once agreeing
to those, to support a request to the
Minister of Labour to extend the agreement to non-parties.
[19]
NUMSA’s case is that between the
period October 2018 and March 2019 hundreds of its members returned
to work and they were
not required to accede to the demands as set
out in the lock-out notice. This is disputed by the Respondent on the
basis that the
deponent to the founding affidavit has no personal
knowledge of these allegations and that it constitutes hearsay and
also because
the deponent failed to identify the employees returning
to work or the employers allegedly permitting them to return. The
issues
disputed by the Respondent were not addressed in NUMSA’s
replying affidavit.
[20]
On 1 March 2019 NUMSA had addressed a
letter to the Respondent and advised that it had called off the
strike with immediate effect,
that the demands underlying the strike
were unconditionally abandoned and that the lock-out was unprotected
in that several issues
in the Consolidated Agreement had not been
referred to conciliation and are different to those that NUMSA had
referred to conciliation.
[21]
In response the Respondent advised that
unless NUMSA accedes to the Respondent’s demands, the parties
remain in dispute and
the lockout remained operative. The
Respondent’s case is that calling off the strike, does not
terminate the negotiations
and the fact that NUMSA’s members
are no longer striking in pursuit of their demands, is just that.
[22]
NUMSA subsequently approached this Court
for relief on the basis that the lock-out is unlawful and
unprotected.
The
relief sought
[23]
NUMSA seeks an order declaring that the
lock-out is not in compliance with the provisions of the LRA. NUMSA’s
case is that
the lock-out is unlawful and unprotected in that several
of the employer’s demands have not been referred to the MEIBC
for
conciliation.
[24]
The Respondent’s case on the other
hand is that the demand that NUMSA agrees to all the terms of the
Consolidated Agreement
formed part of the negotiation and
conciliation processes and as the demand has not been acceded to, the
Respondent’s members
are engaging NUMSA and its members in
economic power play in the ongoing collective bargaining process in
pursuit of its demands.
As such, the lock-out is protected.
Analysis
NUMSA’s
novel point
[25]
NUMSA raised a novel proposition in
argument relating to the distinction between the status of strikes
and lock-outs. The gist of
the argument is that a far stricter
standard of compliance is to be applied to a lock-out than to a
strike.
[26]
NUMSA’s
point of departure on the merits of the case and in support of its
novel point is the statement made in
TAWUSA
v Public Utility Transport Corporation
[3]
(TAWUSA)
that
‘
Given
that the Constitution and the LRA do not accord the right to strike
and recourse to lock-out similar status, one cannot equate
the two.’
[27]
On this basis NUMSA’s case is that
strike cases dealing with sections 64(1) and 64(3) of the LRA are not
applicable in the
case of a lock-out, particularly to the extent that
those cases made reference to the need to read the said sections as
broadly
as possible so as not to impermissibly limit the right to
strike. NUMSA’s case is that in considering whether a lock-out
is protected, the Court must require strict compliance with the
procedural requirements set out in sections 64(1) and (3) of the
LRA.
[28]
The
statement made by the Constitutional Court in
TAWUSA
[4]
must
be considered in the context within which it was made and the one
sentence referred to cannot be read in isolation. The entire
content
of paragraph 67 of
TAWUSA
should
be considered. It reads as follows:
‘
Our
decision in
Moloto
to
permit employees who did not issue a strike notice to embark upon a
strike follows the deliberate scheme and design of
the Constitution
and the LRA. The same cannot, however, be said to apply to the
recourse to lock­out.  As Professor John
Grogan points out,
employers have recourse to a number of “weapons” to end a
dispute:
‘
Under
the common law, employers could exercise power against employees
through a range of ‘weapons’ such as dismissal,

employment of alternative or replacement labour, unilateral
implementation of new terms and conditions of employment, and the
exclusion of employees from the workplace.”
Striking
is one of the few powerful tools in the hands of employees.  Not
permitting employers to lock-out all employees, but
only those whom
the employer has attempted to conciliate with under section 64(1),
does not blunt the weapon of the employer.
Instead, it promotes
the fair and orderly resolution of labour disputes.  Given that
the Constitution and the LRA do not accord
the right to strike and
recourse to lock-out similar status, one cannot equate the two.
Hence my view that the Labour Appeal
Court’s conclusion was
flawed’. (Footnotes omitted)
[29]
Paragraph
67 of
TAWUSA
made
specific reference to paragraph 43 of
Moloto
[5]
which reads as follows:
‘
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. The procedural
pre-conditions and substantive limitations of the right to strike
in
the Act contain no express requirement that every employee who
intends to participate in a protected strike must personally
or
through a representative give notice of the commencement of the
intended strike, nor that the notice must indicate who will
take part
in the strike’. (Footnotes omitted)
[30]
In
Moloto
[6]
it
was held that the right to strike must not be limited by imposing a
requirement not provided for in the LRA in the context that
there is
no requirement that every employee who wants to participate in a
strike, must personally or through a representative give
notice of
the intended strike.
[31]
In
TAWUSA
[7]
and within this context, the Constitutional Court held that
employees
who did not issue a strike notice, were permitted to embark upon a
strike, but that the same cannot be said to apply to
the recourse to
lock­-out.
[32]
It is within this
context that the Constitutional Court held that a strike and a
recourse cannot be equated.
[33]
In
TAWUSA
[8]
it
was also held that:
‘
This
Court has previously recognised that the right to “collective
bargaining between the employer and . . . [employees] is
key to a
fair industrial relations environment”. The LRA is concerned
with the power imbalance between the employer and employees.
It
sanctions the use of power by employers and employees, but only as a
last resort, and only after the issue in dispute between
the parties
has been referred for conciliation.  Collective bargaining
therefore implies that each employer-party and employee-party
has the
right to exercise economic power against the other once the issue in
dispute has been referred for conciliation, and only
if that process
fails in one of the manners described above.’
[34]
It is an accepted principle that parties in
a collective bargaining relationship have the right to exercise
economic powerplay tactics
against the other.
A
lock-out is one of the tools that the LRA provides to an employer in
order to resolve disputes between an employer and employees.

Section 213 of the LRA defines a lock-out as—
‘
the
exclusion by an employer of employees from the employer’s
workplace, for the purpose of compelling the employees to

accept a demand in respect of any matter of mutual interest between
employer and employee, whether or not the employer breaches

those employees’ contracts of employment in the
course of or for the purpose of that exclusion’.
[35]
The purpose of a lock-out in terms of
section 213 is to compel employees whose trade union is party to
certain negotiations to accede
to an employer’s demand.
Its object is to end a stalemate reached as a result of an impasse in
negotiations between
employer and employee in respect of matters of
“mutual interest”.
[36]
In
my view there is no merit in the novel point argued by NUMSA. Not
only does
TAWUSA
[9]
(read
holistically) not support or promote an approach or interpretation
that requires a stricter compliance with the provisions
of sections
64(1) and (3) of the LRA in the event of a lock-out, but the LRA also
does not make such a distinction.  To interpret
the LRA to
impose such a distinction, may undermine the process of orderly
collective bargaining. I can see no reason to impose
a stricter
compliance in the event of a lock-out.
Compliance
with the provisions of the LRA
[37]
The crisp issue is whether the Respondent’s
lock-out is protected or not.
[38]
NUMSA’s case is that the lock-out is
unprotected for non-compliance with section 64(1)(a) of the LRA in
that the issue in
dispute was not referred to conciliation.
This
is so because in the negotiations leading up to the section 64(1)
referral, NUMSA had demanded that the employer organisations
agree
that the provisions of the MEIBC Main Agreement be made applicable to
the plastics sector. The employer organisations demanded
that NUMSA
assent to the Consolidated Agreement. There are differences between
the two agreements going beyond the differences
in rates of pay.
[39]
NUMSA referred a dispute to the
bargaining council on 7 March 2018, with the issue in dispute being
the demand that the employer
organisations agree to apply the
provisions of the Main Agreement. The Respondent has not referred a
dispute and the Respondent’s
demand that NUMSA assents to the
Consolidated Agreement, was not referred to conciliation.
[40]
Beyond the dictates
of section 213, the circumstances under which an employer may resort
to a lock-out are further refined in section
64(1) of the LRA.
[41]
Section 64(1)(a) of the LRA provides:
‘
(1)
Every
employee
has the right to strike and every
employer has recourse to
lock-out
if—
(a)
the
issue
in dispute
has been referred to
a
council
or
to the Commission as required by
this
Act
, and—
(i)
a certificate stating that the
dispute
remains
unresolved has been issued; or
(ii)
a period of 30 days, or any extension of that period agreed to
between the parties
to the
dispute
, has elapsed since the
referral was received by the
council
or the
Commission.’
[42]
Section 64(1) envisions a multi-staged
process.  It states under which circumstances industrial action
may take place; that
is, when may employees exercise their right to
strike as well as when may an employer have recourse to a lock­out.
[43]
The
LRA defines “issue in dispute” in relation to a strike or
lock-out as “the demand, the grievance, or the dispute that

forms the subject matter of the strike or lock-out”.
A resolution of a dispute can be reached only between
adversaries.
As a matter of logic, then, there must be a dispute between an
employer and employees or their trade union before
a lock-out is
instituted
[10]
.
[44]
TAWUSA
[11]
confirmed that the dictates of section 64(1)(a) are clear.  No
industrial action can be undertaken until there has been an
attempt
at conciliation. This provision also makes pertinent that an “issue
in dispute” arises prior to a matter being
referred for
conciliation.  Only once a dispute has arisen can it be referred
to a bargaining council for conciliation.
Moreover, industrial
action can only be taken in the event that an attempt at conciliation
fails, either because a certificate
by the bargaining council states
that the issue in dispute remains unresolved, or because a period of
30 days, or any extension
of that period agreed to between the
parties to the dispute, has elapsed since the referral was received
by the bargaining council.
Referral to conciliation is not
merely a perfunctory procedural step that has to be complied with in
order to obtain a licence
to lock out or to embark on a strike.
The object of section 64(1)(a) is to bring together the parties
at the negotiations,
and encourage them to seek solutions to issues
of mutual interest, thereby reinforcing a collective bargaining
culture
[12]
.
[45]
However, the LRA provides in section
64(3) that the requirements of section 64(1) do not apply to a strike
or a lock-out in certain
circumstances and relevant to this
application is section 64(3)(a) which provides that:
‘
(a)
the parties to the dispute are members of a council and the dispute
has been dealt with by that
council in accordance with its
constitution;
[46]
The Respondent contends that the lock-out
complied with the procedure set out in the MEIBC Constitution and
because of the provisions
of section 64(3)(a) of the LRA, section
64(1) finds no application. Even if the issue in dispute had not been
referred to conciliation,
the lock-out was still protected by virtue
of section 64(3)(a) of the LRA.
[47]
NUMSA accepted that it must demonstrate
non-compliance with both sections 64(1)(a) and 64(3)(a) of the LRA to
succeed on the merits.
Compliance
with section 64(3)(a) of the LRA
[48]
NUMSA declared a formal dispute on 7
March 2018 in terms of clause 2(d) of Annexure E to the Constitution.
[49]
The Respondent’s case is that
during the negotiation leading up to the referral of the dispute on 7
March 2018, and more specifically
the first facilitated negotiation
held on 27 February 2018, NUMSA tabled its demand that the parties
should conclude an agreement
on the same terms as the Main Agreement.
In turn, the Respondent presented a counter-demand that NUMSA should
accept the terms
contained in the Consolidated Agreement. The
negotiations resulted in a deadlock.
[50]
The Respondent’s case is that
conciliation meetings took place on 24 – 25 April and 10 -11
May 2018. NUMSA disputed
that the said meetings constituted
conciliation as contemplated in section 64(1) of the LRA as the said
meetings were held under
clause 3(b) of the MEIBC Constitution, in
circumstances where there was no compliance with clause 3(a).
Compliance
with clause 3 of the MEIBC Constitution
[51]
The obvious question that leaps out at
this point is whether there was indeed compliance with clause 3(a) of
the Constitution.
[52]
NUMSA declared a dispute on 7 March 2018
in terms of clause 2(d) of Annexure E to the Constitution, which
provides that if negotiations
have not been resolved, any party to
the negotiations may declare a dispute by notice in writing to the
Council. Industry disputes,
such as this one, are to be processed in
accordance with clause 3 of the Constitution.
[53]
Clause 3(a) stipulates that in the event
that the secretary, in consultation with the president of the Council
decides that a dispute
declared in terms of clause 2(d) is an
industry matter, he/she shall arrange for the MANCO to meet within 14
days of the declaration
of such dispute, for purposes of considering
the matter.
[54]
Clause 3(c) of the Constitution provides
that if the dispute has not been settled within 30 days from the date
on which it was referred
to the MEIBC, any party to the dispute shall
be entitled to pursue whatever means are available in the LRA to
process the dispute.
[55]
Initially NUMSA’s case was that no
such meeting took place within 14 days of 7 March 2018, when the
dispute was declared,
but it was subsequently corrected in a
supplementary affidavit wherein it explained that a MANCO meeting was
indeed held on 19
March 2018, which was within 14 days of the
declaration of the dispute.
[56]
In my view there is no merit in NUMSA’s
case that there was no compliance with clause 3(a) of the
Constitution for a number
of reasons. Firstly, MANCO indeed met
within 14 days of the declaration of the dispute.
[57]
Clause 3(a) of the Constitution requires
of MANCO to meet within 14 days for purposes of considering the
matter. Evidently the matter
was considered on 19 March 2018 and the
parties agreed to convene a special MANCO to decide on the best
option to deal with the
dispute. Clause 3(a) does not require that
the matter be finally disposed of by MANCO on the first occasion it
meets (within 14
days of declaration of the dispute), it requires
that the matter be considered, which it clearly was.
[58]
Secondly, it is evident from the minutes
of the MANCO meeting of 19 March 2018 that the PNF dispute submitted
in terms of clause
2(d) was discussed and that the parties had agreed
to convene a special MANCO on 10 April 2018 to consider the options
to deal
with the dispute.
[59]
Further evident from the said minutes is
that numerous NUMSA delegates attended the MANCO meeting on 19 March
2018 wherefore they
were party to the agreement that a special MANCO
be convened to deal with the dispute.
[60]
NUMSA’s case is that because the
MANCO meeting of 19 March 2018 did not debate the dispute and did not
consider the options
set out in clause 3(b)(i)-(iv) of the
Constitution but simply agreed to convene a special meeting on 10
April 2018 to discuss the
issue, there was no compliance with the
Constitution. This complaint is equally without merit considering the
wording of clause
3(b) of the Constitution.
[61]
Clause 3(b) of the Constitution provides
that MANCO should use its best endeavours to settle the dispute and
shall meet as often
as it deems necessary for this purpose and in the
course of its deliberations, it may give consideration to the options
set out
in clause 3(b)(i)-(iv). This clause does not support NUMSA’s
case that the consideration of the available options to resolve
the
dispute should have happened within 14 days or on the first occasion
that the matter was considered. Clause 3(b) clearly envisaged
not
only a single meeting as it provides for MANCO to meet ‘as
often as deemed necessary’ for the purpose of resolving
the
dispute.
[62]
Clause 3(b)(ii) of the Constitution
provides that MANCO may refer the dispute to conciliation in terms of
clause 7. Clause 7 provides
that a dispute may be referred to
conciliation and any appointed conciliator must determine a process
to resolve the dispute, which
may include mediating the dispute,
conducting a fact finding exercise or making a recommendation to the
parties, which may be in
the form of an advisory arbitration award.
[63]
On 10 April 2018 a special MANCO meeting
was held to discuss the NUMSA dispute and following consideration of
the options set out
in clause 3(b)(i)-(iv) of the Constitution, MANCO
decided that the dispute should be mediated over a two-day period
under the guidance
of a senior commissioner of the Commission for
Conciliation, Mediation and Arbitration (CCMA).
[64]
Commissioner Derrick Hilligenn was
mandated to endeavour to resolve the dispute.
[65]
The Respondent’s case is that
conciliation meetings took place on 24 – 25 April and 10 -11
May 2018. During the said
meetings NUMSA tabled its demand that the
terms of the Main Agreement be agreed on and the Respondent, on the
other hand, tabled
its counter-demand that an agreement on the same
terms as the Consolidated Agreement be concluded. No agreement could
be reached.
[66]
An advisory arbitration award was issued
on 7 June 2018.
[67]
NUMSA disputed that the said meetings
constituted conciliation as contemplated in section 64(1) of the LRA
as the said meetings
were held under clause 3(b) of the MEIBC
Constitution, in circumstances where there was no compliance with
clause 3(a).
[68]
I have already found that there was
compliance with clause 3(a). The parties agreed to follow a
conciliation process, as provided
for in clause 3(1)(b) read with
clause 7 of the Constitution and there is no basis to find that the
meetings held did not constitute
conciliation, as is provided for in
the Constitution.
[69]
The referral process mandated by the LRA
did take place.  The issue in dispute was referred to the MEIBC
where the conciliation
efforts occurred in terms of the Constitution
and were unsuccessful.
[70]
Clause 3(c) of the Constitution provides
that if the dispute has not been settled within 30 days from the date
on which it was referred
to the MEIBC, any party to the dispute shall
be entitled to pursue whatever means are available in the LRA to
process the dispute.
[71]
In short: the dispute was referred to the MEIBC in accordance
with the provisions of the Constitution, both parties tabled their

demands and the dispute was conciliated as provided for in the
Constitution.
[72]
The Respondent’s demand, made in response to NUMSA’s
demand emerged in the negotiation process and was part of the
conciliation
process. It will be artificial to find that the demands
constitute separate disputes that must be conciliated separately.
There
are no two separate disputes but two facets of a single
dispute. The Respondent’s counter demand equally formed part of
the
dispute that was conciliated. As the dispute remained unresolved,
the parties acquired the right to strike and to lock-out.
[73]
As there was compliance with section
64(3)(a) of the LRA, section 64(1) does not find application
in
casu.
Even if section 64(1) applies, there was compliance
with the provisions of the LRA in that the dispute was conciliated.
[74]
The lock-out complies with the provisions of the LRA and
cannot be declared unlawful or unprotected.
The
application has to fail.
Costs
[75]
In awarding costs this Court has a wide
discretion. In my view the interest of justice will be best served by
making no order as
to costs, having regard to the ongoing collective
bargaining relationship between the parties and the prospect of
prejudice to
the relationship and the successful resolution of the
current dispute, should an order for costs be made.
[76]
In the premises I make the following order:
Order
1.
The application is dismissed;
2.
There is no order as to costs.
_______________________
Connie
Prinsloo
Judge
of the Labour Court of South Africa
Appearances
For NUMSA:

Advocate C Orr
Instructed
by:

Cheadle Thomson & Haysom Attorneys
For the First Respondent:
Advocate G A Leslie
Instructed
by:

Anton Bakker Attorneys
[1]
Act
66
of 1995 as amended.
[2]
Plastic
Converters Association of South Africa (PCASA) v National Union of
Metalworkers of South Africa
(2016)
37 ILJ 2815 (LAC).
[3]
[2016]
6 BLLR 537
(CC) at para 67.
[4]
Id
n 3.
[5]
SATAWU
and Others v Moloto and Another NNO
[2012]
ZACC 19
;
2012
(6) SA 249
(CC);
2012
(11) BCLR 1177
.
[6]
Ibid.
[7]
Supra
n
3.
[8]
Id
n 3 at para 46.
[9]
Supra
n
3.
[10]
Supra
n 3
at
para 32.
[11]
Supra
n
3.
[12]
Supra
n 3
at
para 45.