About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2020
>>
[2020] ZALCJHB 114
|
|
Association of Mineworkers and Construction Union and Others v Safety and Security Sectoral Vunene Mining (Pty) Ltd (J 566/20) [2020] ZALCJHB 114 (7 July 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case
no: J 566/20
In
the matter between:
THE ASSOCIATION OF
MINEWORKERS
AND
CONSTRUCTION UNION
First Applicant
THE AMCU MEMBERS AS
PER
ANNEXURE
“A”
Second to further Applicants
and
SAFETY
AND SECURITY SECTORAL
VUNENE
MINING (PTY) LTD
Respondent
Heard: 25 June 2020,
via ZOOM
Delivered:
This judgment was handed down electronically by circulation to the
parties’ representatives by email and release
to SAFLII. The
date and time for hand-down is deemed to be 10h00 on 07 July 2020.
JUDGMENT
Mabaso
AJ
Introduction
[1]
The Applicant approached this court on an urgent basis seeking a
declaratory order
in that: the lockout implemented by the Respondent
constitutes an unprotected lockout and is unlawful. That the
Respondent be interdicted
and restrained from any conduct in
furtherance of a lockout, and prohibiting or restricting any employee
from tendering their services
to it, ask for compensation for alleged
loss due to the lockout, being salaries from 01 June 2020.
[2]
The principal issue herein is whether or not the lock-out executed by
the Respondent
against the First Applicant’s members, is not in
compliance with the Labour Relations Act 66 of 1995 (the LRA).
[1]
The
piggy-backer issue is whether the First Applicant has the necessary
authority to represent all employees herein.
[2]
At
the beginning of the oral submissions, via zoom, counsel for the
Applicants made certain concessions which are briefly dealt
with in
this judgment.
[3]
The First Applicant is the Association of Mineworkers and
Construction Union (AMCU),
a trade union, and the Second to further
Applicants are employees (collectively referred hereinafter as the
Employees) of the Vunene
Mining (Pty) Ltd (the Employer).
Who
is before this court?
[4]
The deponent to the founding affidavit is Mr Philippus Daniel Marias
(Mr Marias) employed
by AMCU as its head of legal.
[3]
He
avers that AMCU is authorised to represent all the Employees, as they
are members of AMCU.
[4]
[5]
It is common cause that AMCU is a majority union at the Employer. The
Employer in
the answering affidavit avers
inter
alia
that AMCU members embarked on an unprotected strike on both 21 and 22
May 2020, which was accompanied by violence.
[5]
The
Employer contacted AMCU representatives who in turn conducted a mass
meeting with its members. Despite these engagements, AMCU
members
refused to resume their duties, and they breached the Covid-19
lock-down regulations, therefore, endangered the health
of others. In
retaliation, the Employer locked out the striking employees. The
notice of lockout was also sent to AMCU’s
regional office.
[6]
AMCU contends that it is duly authorised to act on behalf of the
Employees. Whereas
the Employer denies this submission and challenges
AMCU to produce proof that all employees in annexure “A”
are its
members, further contends that “there is no evidence
that all the individuals …are aware that AMCU is litigating
these
proceedings in their names,”
[6]
and
submits that some of the Employees are not members of AMCU or have
not been locked out. The Employer has not stated as to which
Employees are not locked out. In response, AMCU says it represents
142 members herein and is authorised to act on their behalf.
[7]
Since AMCU concedes
[7]
that
it represents only 142 out of 223 on the list, therefore, under this
rubric, the focus is about those employees and will be
referred
hereinafter as “AMCU members.”
[8]
Section 200 of the LRA allows a
trade union to act in any dispute to which any of its members
is a
party or on behalf such member(s), or in the interest of any of its
members.
[9]
In
Elliot International (Pty) Ltd v
Veloo and another
[2014] 10 BLLR 955
(LAC),
the
Labour Appeal Court faced with a question, of section 200 of the LRA,
wherein a voluntary severance settlement was negotiated
and concluded
on behalf of the union’s members. The LAC held that,
"However,
it seems to me logical and common sense that in a proposed voluntary
retrenchment scenario a settlement proposal
negotiated by a trade
union may bind the employee members only if such members have agreed
to the settlement proposal and specifically
mandated the union to
accept the proposal on their behalf. In the present instance, the
respondents did not sign the retrenchment
agreement, and it is clear
to me that they never gave any mandate to the union to accept the
agreement on their behalf."
[10]
Before Elliot’s judgment, the same court in
NUM
v Hernic Exploration (Pty) Ltd
[2003] 4
BLLR 319
(LAC) adjudicated on a matter involving same section 200,
emanating from a dismissal dispute. The court held as follows, about
the role of a trade union in litigation:
“
In
fact the respondent’s contention is even weaker in relation to
the appellant’s referral of the dispute to the Labour
Court
because at paragraph 1 of the appellant’s statement of claim,
the appellant stated that it was acting “
on
its own behalf and on behalf of its members dismissed by the
respondent on 31 December 1998
”.
The fact that the appellant did not furnish the names of the
dismissed employees did not affect the jurisdiction either
of the
CCMA or the Labour Court.”
[8]
[11]
In
Manyela
[9]
,
this court by Sutherland AJ held as follows regarding a union acting
on behalf of its members,
“…
Where
a union “acts on behalf of” members, it does not “become”
the agent of those members, because its
pre-existing representative
relationship already constitutes the foundation for that status and
power. In my view, the union’s
role under this rubric is akin
to that of a curator ad litem in civil proceedings; that is to say,
the union is the party in the
proceedings. Philosophically, the union
constitutes the institutional embodiment of the several members
involved in the dispute...”
[12]
Each matter has to be decided based on its facts and circumstances.
In casu
,
it is common cause that since the beginning of the unprotected
strike, the Employer had been communicating with AMCU on behalf
of
its members. Even the letter that the Employer contends that it is a
lock-out notice was sent to AMCU's offices. It is not denied
that
even AMCU members are facing the lock-out as the Employer submitted
that they were on strike.
[13]
Furthermore, after being challenged that there is no evidence that
all the Employees are members
of AMCU. In the replying affidavit, Ms
Myeni avers that at the time of launching the application, AMCU had
142 members herein.
Mr Marias, in paragraph 5.2 of the founding
affidavit, stated that AMCU is authorised to act on behalf of its
members. Further,
in terms of the notice of motion, AMCU is seeking a
declaratory order on behalf of its members herein.
[14]
Reading the papers, clearly, AMCU is acting on behalf of its members,
and this court has taken
into account that AMCU has clarified the
number of Employees that it represents. I do not understand as to
what evidence the Employer
expected AMCU to produce, because it is
common cause that some of the Applicants are AMCU’s members and
AMCU in terms of
the provisions of section 200 of the LRA, has the
right to bring this type of an application on behalf of its members.
[15]
Based on the above, this court concludes that AMCU was not required
to produce proof that it
is litigating on behalf of its 142 members
herein.
[16]
However, for those Employees, whose names appear in annexure “A”,
who are not members
of AMCU, it had not been mandated to represent
them because they have not delivered confirmatory affidavits in
support of the application.
[17]
In paragraph 24 of the replying affidavit, AMCU introduces names of
employees which it says they
joined it following delivery of the
founding papers in this matter. Since there is no joinder
application, those employees are
not accepted as parties in this
matter.
Cardinal
Controversy:
Is the lock-out both
unprotected and unlawful?
[18]
There was a wage agreement between the parties which
inter
alia
directed them to approach the CCMA
in case of any dispute. On 06 December 2019, the Employer sent a
communiqué to its employees,
advising them that it was not be
able to pay the 13
th
cheque as it had been the norm in the previous years. At the end of
December 2019, the employees were paid 40% of the 13
th
cheque. In February 2020, the Employer communicated its proposal that
the balance will be paid in full by the end of May 2020,
and an
agreement was reached, as per the suggestion of the Employer.
[19]
On 21 May 2020, the Employer communicated that it would not be able
to pay the balance to its
employees, due to what it termed severe
economic hardship. It is common cause that this caused controversy as
some employees were
not satisfied with this explanation. The founding
affidavit states that, as a result, “[t]he General Manager was
escorted
from the premises by some of the employees”. The
Employer submits that the General Manager was also attacked and
violence
erupted.
[20]
On 22 May 2020, all the employees of the Employer were issued with a
notice (lock-out notice)
which
inter
alia
detailed the incident mentioned
above.
The Employer further avers that AMCU
members refused to return to work and intimidated those who wanted to
work. This is denied
by AMCU. The lock-out notice further provides
that the General Manager was attacked and,
“
forcefully
led outside the premises…where he was then unceremoniously
told not to come back without the money…In order
to safeguard
mine employees including management and other officials all
operations, excluding that is required for the maintenance
of
critical infrastructure and safety critical services, will be
suspended with immediate effect and until further notice…In
effect [the Employer] will enter a forced care and maintenance
period…”
.
[10]
[21]
Clearly, this excerpt shows that the employees of the Employer were
being restricted from the
premises. I interpose and state that the
Employer had wanted to deliver a supplementary affidavit in an
endeavour to show that
AMCU and the Employees were aware that a
lockout notice was issued on 22 May 2020. Initially AMCU denied this;
however, following
arguments and subsequent concessions, I ruled that
the supplementary affidavit was not accepted, as it was clear that
the lock-out
date (22 May 2020) was apparent from this notice.
[22]
Section 213 of the LRA defines lock-out as follows:
“
means
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."
[23]
In this matter, the applicable subsection is ss 64(3)(d) of the LRA,
which provides that in response
to employees taking part in a strike
that does not conform with the provisions of Chapter IV, an employer
may issue a lock-out
notice. The difference between the
in
casu
subsection and ss 64(1) lock-out is the procedure that must be
followed.
[11]
In
ss 64(3)(d) lock-out an employer is expected to act swiftly if
employees are on an unprotected strike and the notice is not always
expected to be in writing. As the LAC in
Technikon
South Africa v National Union of Technikon Employees of South
Africa
[12]
said:
"If
the Employer had to first comply with the requirements of s 64(1)
before it could respond with a lockout to an unprotected
strike, that
would take too long. By the time the requirements of s64(1) were met,
the lockout could no longer be effective. That
is if the Employer’s
business would still be there as the strike would have been going on
for quite some time.”
[13]
[24]
Under the circumstances, this court concludes that the lock-out
notice was not required to be
issued in terms of ss 64(1) of the LRA,
because it was issued in response to an unprotected strike as
anticipated by ss 64(3) (d)
of the LRA.
[25]
Be that as it may, the requirements as provided in the definition
above, para 22, still has to
be met for one to be in a position to
claim lawfulness
,
in
casu
,
the principal contested requirement is “a demand”. The
Constitutional Court
in
Transport and Allied Workers Union of South Africa v Putco
Ltd
[14]
held
that,
“
Accordingly,
any
exclusion of employees from an employer’s workplace
that
is not preceded by demand
in respect of a disputed matter of mutual interest does not qualify
as a lockout in terms of section 213 of the LRA."
[15]
[26]
I must reiterate that both the founding and replying affidavits, on
behalf of the AMCU, deponents
therein are officials of AMCU. Whereas,
the deponent to the answering affidavit, on behalf of Respondent is
its Group Chief Executive
Officer (Mr Letlaka). Ms Promise Myeni (Ms
Myeni) who signed the replying affidavit does not claim to be an
employee of the Employer
nor suggests that she was present when Mr
Letlaka circulated a lock-out notice to employees informing them that
the Employer was
forced to suspend operations and to enter a forced
care and maintenance period
.
[16]
[27]
I have also taken into account that Ms Myeni in the answering
affidavit had denied being part
of a meeting held on 28 May 2020, a
date after the lock-out, during argument it was conceded that she was
part of that meeting.
Moreover, the shopstewards who delivered a
confirmatory affidavit denied that this meeting was held. I conclude
that in respect
of whether or not there was a demand, I will have to
follow what the Employer is saying because Ms Myeni and the
shopstewards were
not candid with this court.
[28]
Furthermore, according to the Employer, on 25 May 2020 three days
following the lock-out notice,
the Employer through Mr Letlaka
circulated a second notice to its employees wherein it stated that
due to the response to unprotected
strike and violence that a
decision had been taken, which partly reads thus:
“
In
response to the unlawful and unprotected strike and violent conduct,
on 22 May 2020, the Company took the decision to issue a
notice
disallow all its employees’ access to the mine. This was in
direct response to mitigate any further unlawful activities
at the
instance of those striking employees
.
Accordingly,
the Company will not be in the position to resume its operations
until the safety of managers, all employees, service
providers and
property of the mine can be ensured and guaranteed
.
[17]
The
principle of no work, no pay will continue to be applied
.”
The
problem with the second notice is that employees had already been
locked out, as this happened on 22 May 2020 as Mr Letlaka’s
version in paragraph 35 of the answering affidavit.
[27]
Mr Letlaka, in paragraph 34 of the answering affidavit, says it was
carefully explained to AMCU's
representatives when they were served
with a lock-out notice. Still, he does not state that there was a
demand made, because when
it comes to a lock-out issued in terms of
subsection 64(3)(d),in my view, a demand might be made orally
before a lock-out,
if there was a demand he would have stated as
such. As he has done with the notice issued on 25 May 2020.
[28]
It is clear that the lock-out notice, as issued on 22 May 2020 by the
Employer was in response
to an unprotected strike. The answering
affidavit does not suggest that there was a demand. I say this
because there is no indication
that the employees were ordered to do
something or refrain from doing something. Instead, they were told
that they were suspended
until further notice as the Employer entered
into a forced care and maintenance period. I, therefore, conclude
that the exclusion
of the AMCU members was an exclusion which does
not meet the definition of lock-out in terms of the LRA.
Prayer
for compensation
[29]
In order to decide a just and equitable compensation, this court has
to take into account
inter alia
whether there was compliance with an order granted by this court, and
the financial position of the employer, trade union or employees
respectively. In the papers, the Employer states that its financial
position is not good. Therefore, this court will require evidence
relating to financial position of the Employer before it decides what
is just and equitable.
Urgency
[30]
The LC in
Maqubela
v SA Graduates Development Association and Others
[18]
held
thus:
“
Whether
a matter is urgent involves two considerations. The first is whether
the reasons that make the matter urgent have been set
out and
secondly whether the applicant seeking relief will not obtain
substantial relief at a later stage. In all instances where
urgency
is alleged, the applicant must satisfy the court that indeed the
application is urgent. Thus, it is required of the applicant
adequately to set out in his or her founding affidavit the reasons
for urgency, and to give cogent reasons why urgent relief is
necessary. As Moshoana AJ aptly put it in Vermaak v Taung Local
Municipality:
'The
consideration of the first requirement being why is the relief
necessary today and not tomorrow, requires a court to be placed
in a
position where the court must appreciate that if it does not issue a
relief as a matter of urgency, something is likely to
happen. By way
of an example if the court were not to issue an injunction, some
unlawful act is likely to happen at a particular
stage and at a
particular date
.'’
[31]
The Applicants are challenging an on-going lock-out and one of the
prayers is to restrain the
Employer from participating in a lock-out
or in furtherance of a lock-out, and they explain that they do not
have an alternative
recourse. After considering the nature of the
application and the affidavits, specifically paras 16.1 to 26.6, I
was satisfied
that the Applicants showed the requirements of urgency
as stated in the preceding paragraph.
Order
[32]
In the circumstances, the following order is made:
The
matter is heard on urgent basis.
It
is declared that those individuals, whose names appear in annexure A
of the notice of motion and were not members of the First
Applicant
by 19 June 2020, are not applicants or represented by the First
Applicant in these proceedings.
It
is declared that the First Applicant is acting on behalf of 142
employees, whose names appear in annexure A of the notice of
motion
and were its members by 19 June 2020.
The
lock-out implemented by the Respondent, on the First Applicant’s
members, as per the order 3 above, is both unlawful
and unprotected.
The
Respondent is interdicted from participating in a lock-out or any
conduct in contemplation or furtherance of the lockout notice
issued
on 22 May 2020.
The
Respondent is interdicted from prohibiting or restraining the First
Applicant’s members from tendering their services
to it.
The
Respondent is directed to file an affidavit within 30 days of this
order, explaining its financial position for the period
of November
2019 and the date of this order. Thereafter, First Applicant and its
members employed by the Respondent may deliver
an affidavit, within
10 days thereafter, in response to the Respondent’s affidavit.
No
order as to costs.
__________________
S Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For the Applicant:
Adv Cook
Instructed
by:
Larry Dave Incorporated
Attorneys
For the Respondent: Adv
Mooki SC
Instructed
by: Malatji & Co Inc
[1]
Section
68(1) of the LRA.
[2]
List
attached to the supporting affidavit. P 5 to 8. The total
[3]
Page
10, founding affidavit.
[4]
Founding
affidavit, para 2 & 5.2
[5]
Answering
affidavit, p 101
[6]
Ibid,
p 107
[7]
in
paragraph 60.1 of the replying affidavit
[8]
See
also para 44 where it was held thus:
Apart
from section 200(1) another reason why the Respondent’s
contention cannot be sustained lies in the primary function
of a
trade union. The primary function of a trade union is to act as the
representative of its members. Without that capacity
it is doubtful
whether a trade union can survive. The ordinary meaning of the
concept of representing somebody is that you act
in that person’s
place and stead. If that is correct a trade union must be able to
act in the place and stead of its members.
Strictly speaking it
cannot act in the place and stead of its members if its members also
occupy the same place and stead. That
must mean that in most cases
it is when its members are not applicants that a union finds it
necessary to act in their place
and stead by being the applicant in
such proceedings itself. In fact, where union members are cited as
applicants, there is little,
if any, need for the union to be cited
as an applicant as well, especially in dismissal cases because the
union does not usually
seek any relief for itself in such
proceedings and there is also little need, if any, for the union
members to be joined as applicants
as well where the union is
already an applicant and is acting either on behalf of its members
or in the interest of its members.
See section 200(1) of the Act.
That is why in the General Industries Workers Union case (supra)
Goldstein J dismissed the appeal
in regard to an application to join
the employees, when their union was already an applicant in the
proceedings and was acting
for the benefit of its members
[9]
Manyele
& others v Maizecor (Pty) Ltd & another [2002] 10 BLLR 972
(LC)
[10]
Annexure
“F”, p 82.
[11]
64.
Right to strike and recourse to lock-out.—(1) Every
employee has the right to strike, and every Employer
has recourse to
lockout 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; and after that—
(b)in the case of a
proposed strike, at least 48 hours' notice of the commencement of
the strike, in writing, has been given to
the Employer, unless—
(i)the issue in dispute
relates to a collective agreement to be concluded in a council, in
which case, notice must have been given
to that council; or
(ii)the Employer is a
member of an employers' organisation that is a party to the dispute,
in which case, notice must have been
given to that employers'
organisation; or
(c)in the case of a
proposed lockout, at least 48 hours' notice of the commencement of
the lockout, in writing, has been given
to any trade union that is a
party to the dispute, or, if there is no such trade union, to the
employees, unless the issue in
dispute relates to a collective
agreement to be concluded in a council, in which case, notice must
have been given to that council;
or
(d)in the case of a
proposed strike or lockout where the State is the Employer, at least
seven days' notice of the commencement
of the strike or lockout has
been given to the parties contemplated in paragraphs (b) and (c).
[12]
(JA11/00)
[2000] ZALAC 24
[13]
Ibid,
par 35.
[14]
2016
(7) BCLR 858 (CC)
[15]
Ibid,
para 33. Own emphasis.
[16]
Para
33, replying affidavit.
[17]
Own
emphasis.
[18]
(2014)
35 ILJ 2479 (LC)