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[2019] ZALCD 2
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MAHLE Behr SA (Pty) Ltd v NUMSA and Others; Foskor (Pty) Ltd v NUMSA and Others (D448/19;D439/19) [2019] ZALCD 2; (2019) 40 ILJ 1814 (LC) (20 March 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case
no: D448/19
In
the matter between:
MAHLE
BEHR SA (PTY)
LTD
Applicant
And
NUMSA AND FURTHER
RESPONDENTS
LISTED
ON ANNEXURE
A
Respondent
Case
no: D439/19
In
the matter between:
FOSKOR
(PTY)
LTD
Applicant
And
NUMSA AND FURTHER
RESPONDENTS
LISTED
ON ANNEXURE
X
Respondent
Heard:
19 March 2018
Delivered:
20 March 2018
judgment
GUSH
J
[1]
The applicants in both
the above matters applied as a matter of urgency for an order
interdicting the first and further respondents
from engaging in a
strike.
[2]
It was common cause
that the respondents in both matters had not conducted a secret
ballot of members prior to engaging in the strike.
[3]
Before hearing argument
in the matters I inquired from the parties whether the transitional
provisions set out in section 19 of
the Labour Relations Amendment
Act Number 8 of 2018 were relevant to a consideration of the
applications and whether the transitional
provisions contained in the
act applied to the respondents. The amendment act came into operation
on 1 January 2019.
[4]
The transitional
provisions set out in section 19 of the amendment act are as follows:
1.
the registrar must, within 180 days of the
commencement of this Act, in respect of registered trade unions …
That do not
provide for recorded and secret ballot in the
constitutions –
a.
consult with the national office bearers of
those unions … On the most appropriate means to amend the
constitution to comply
with section 95; and
b.
issue a directive to those unions …
As for the period within which the amendment to the constitution is
to be affected, in
compliance with the procedures set out in the
amended constitution.
2.
Until a registered trade union …
complies with the directive made in terms of subsection (1(b) and the
requirements of section
95 (5)(p) and (q) of the Act, before engaging
in a strike … , must conduct a secret ballot of members.
[5]
It became clear that it
was also common cause that the respondent in both matters was a
registered trade union that its constitution
did not provide for a
“recorded and secret ballot” to be held prior to engaging
in a strike. It was also clear and
common cause that the respondent’s
did not comply with the requirements of
section 95
(5)(p) or (q) of
the
Labour Relations Act 66 of 1995
.
[6]
In order to properly
deal with the issue the applications were adjourned to 19 March 2019
to allow the parties to prepare argument
on whether the provisions of
section 19
(2) applied to the respondent and obliged it to conduct a
secret ballot before engaging in the strike.
[7]
Section 95
(p) and (q)
of the Act have, from its inception, required a trade union that
applies for registration to include in its Constitution
a provision:
that the trade union … before
calling a strike, must conduct a ballot of those of its members in
respect of whom it intends
to call the strike; and
that
members of the trade union … may not be disciplined will have
the membership terminated for failure or refusal to participate
in a
strike if … no ballot was held … or majority of members
who voted did not vote in favour of the strike.
[8]
It is so that section
67 (7) provides that the failure of a trade union to comply with a
provision in its Constitution regarding
a ballot may not give rise to
or constitute a ground for any litigation affecting the legality of
section conferred on the strikers.
It is apposite to emphasize that
section applies only to those trade unions who have complied with the
requirements of section
95 with regard to the inclusion in their
constitution of the requirement to ballot before engaging in a
strike.
[9]
Mr. Purdon, on behalf
of the respondents in both matters, argued, firstly, that the
transitional provisions amounted to an infringement
of the
respondent’s constitutional right to strike. Secondly, Mr.
Purdon argued that the transitional provision could not
apply to the
respondents as the obligation to conduct a secret ballot arose only
after the registrar had issued the directive.
[10]
As far as the first
issue is concerned it appears clear from the transitional provisions
that the right to strike is not limited.
All that is required should
a union not wish to be subject to the transitional provisions is for
that union’s constitution
to essentially comply with the
requirements of section 95 (5)(p). This provision has been a
requirement since the inception of
the
Labour Relations Act 66 of 95
.
It is inconceivable that a trade union would have been registered if
its constitution at the time did not comply with the requirements
of
section 95(5).
The section specifically provides that “the
constitution of any trade union that intends to register must”
comply
inter alia
with subsection 5.
[11]
It is also simply so
that in order to engage in a strike or that is required is for the
union to conduct a secret ballot of members.
That is the extent of
the compliance the transitional provision requires.
[12]
Mr Purdon’s
second argument was premised on what he suggested was an issue
related to the interpretation of the section. He
suggested that the
section should be interpreted to mean that the transitional
provisions would only apply after the registrar
had issued the
directive and before there was compliance with the directive.
[13]
In interpreting
statutes the court is required to apply the accepted canons of
interpretation. In this matter I am of the view that
the provisions
of
section 19
are clear and unambiguous and the court is obliged to
effect thereto.
[14]
The purpose of the
legislation is clear in that its purpose
inter
alia
is to provide
that before a union may engage in a strike it should conduct a secret
ballot of its members. In addition to this
provision and to regulate
the interim position the transitional provisions require the holding
of a secret ballot by a union (and
employers organisation in respect
of a lock out) prior to engaging in a strike. The requirement is
peremptory and applies only
to registered trade unions that do not
include in their constitution the requirement of a ballot.
[15]
To interpret the
section as not applying to the respondents negates any suggestion
that the transitional provisions will apply in
the interim pending
compliance.
[16]
That being so I am
satisfied that the transitional requirements apply to those unions
whose constitutions do not provide for a “recorded
and secret
ballot” and that in the interim prior to complying with the
requirements relating to a secret ballot they “must
conduct a
secret ballot of members” before engaging in a strike.
[17]
This is a peremptory
provision and until the respondents comply they may not engage in a
strike.
[18]
That being so and for
the reasons set out above I am satisfied that in the absence of a
secret ballot the respondents are not entitled
to engage in the
strike and I grant the following order:
a.
In the absence of the
first respondent having conducted a secret ballot as required by
section 19 of the Labour Relations Amendment
Act 8 of 2018, in both
matters, the respondents are interdicted from engaging in the current
strikes.
D H Gush
Judge of the Labour Court
of
South
Africa
APPEARANCES:
In
Case No 448/19
FOR
THE APPLICANT:
Mr Haslop: Woodhead Bigby
FOR
THE RESPONDENT:
Mr
Purdon: Brett Purdon Attorneys
Case
no: D439/19
FOR
THE APPLICANT:
Ms Allen.
FOR THE RESPONDENT:
Mr Purdon: Brett Purdon Attorneys