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[1990] ZASCA 158
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Photocircuit SA (Pty) Ltd. v De Klerk NO and Others (296/89) [1990] ZASCA 158; 1991 (2) SA 11 (AD); [1991] 4 All SA 119 (AD); (1991) 12 ILJ 289 (A) (30 November 1990)
1.
Case no 296/89 /MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
Between:
PHOTOCIRCUIT SA (PTY) LIMITED
Appellant
and
P P DE KLERK NO
1st Respondent
A M DE SWARDT NO
2nd Respondent
ELECTRICAL & ALLIED
WORKERS
TRADE UNION OF SOUTH AFRICA
3rd Respondent
RICHARD EDWARD MORGAN
4th Respondent
ERIC BENJAMIN WILLIAMS
5th Respondent
LUCAS JOSEPH VAN DYCK
6th Respondent
DESMOND VAN WYK
7th Respondent
JEFFREY ISAACS
8th Respondent
KAREN JANICE ALCOCK
9th Respondent
FREDA SMITH
10th Respondent
PAMELA PATRICIA JULIUS
llth Respondent
MAGDALENE SONIA PETERSEN
12th Respondent
JAMES JOHANNES ORANGE
13th Respondent
RAYMOND HAROLD ABRAHAMS
14th Respondent
NATIONAL INDUSTRIAL
COUNCIL FOR
IRON, STEEL, ENGINEERING AND
METALLURGICAL INDUSTRY
15th Respondent
CORAM:
VAN HEERDEN, MILNE, EKSTEEN,
NIENABER JJA et PREISS AJA.
HEARD:
8 NOVEMBER 1990
DELIVERED:
30 NOVEMBER 1990.
JUDGMENT
2.
PREISS AJA:
The appellant is a manufacturer of electronic
printed
circuit boards. It conducts business in
Lansdowne within the magisterial
district of Wynberg,
Cape Province. In 1987 a number of its
employees
became members of the ELECTRICAL AND ALLIED WORKERS'
TRADE UNION
OF SOUTH AFRICA ("the union"), a trade
union incorporated and registered in
terms of the
Labour Relations Act, No 28 of 1956 ("the Act").
The
employees and the union requested the appellant to
deduct union
subscriptions from their wages and pay
them directly to the union. The
appellant was
furnished with stop orders authorising such deductions.
The
appellant refused to comply with the request. By
reason of the appellant's
refusal the union on 14 March
1988 declared a dispute with the appellant and
referred
3/...
3.
it to the NATIONAL INDUSTRIAL COUNCIL FOR IRON, STEEL,
ENGINEERING AND METALLURGICAL INDUSTRY ("the industrial council"). The
industrial
council called a meeting between the parties for 15 April 1988 to
resolve the dispute. The appellant failed to attend the meeting.
On 16 May 1988
a strike ballot was held; thirteen out of a total of fourteen members of the
union were present at the ballot. They
voted in favour of calling a strike. The
strike commenced on the following day, 17 May 1988. On 19 May 1988 the appellant
dismissed
the striking employees.
On 2 June 1988 the union, together with eleven aggrieved employees referred
the dispute in regard to the dismissals to the industrial
council in terms of s
27 A(l) (a) of the Act and on the same day applied for a reinstatement order in
terms of s 43(2), thereby susperseding
the earlier dispute. The
4/...
4.
appellant was not represented at the hearing of the
application. The industrial court issued an order reinstating the eleven
employees.
This dispute not having been settled by the industrial council,
the next step was a further application by the eleven employees and
the union to
the industrial court for a final determination in terms of s 46(9)(a) of the
Act. The appellant was not represented
when the hearing commenced, but on the
second day Mr Peschkes, its sole director, made an appearance and argued that
the industrial
court had no jurisdiction to make the determinacion. The
industrial court dismissed this objection and made the following order on
14
July 1988:
"In terms of s 46(9) of the Labour Relations
5/...
5.
Act No 28 of 1956, as amended, the following Order is made as a final
determination of the dispute between the parties:
1. Respondent is ordered to pay each of the
second to twelfth. Applicants
their
weekly wages for the period 19 May 1988
to date hereof at the rates
which were
applicable in each case immediately
prior to their dismissal on
19 May 1988,
which payment shall be made to first
Applicant at 18a
Capuchin Street,
Athlone on or before 12 noon on 15 July
1988. Any sums
already paid to
Applicants in lieu of notice, fall to be
deducted from
payments to be made in
terms of this Order.
2. Respondent is
ordered to reinstate such
of the second to twelfth Applicants as
tender
their services to Respondent on
or before 8h00 on Monday 15 July 1988
on
terms and conditions no less favourable
than those which governed
their
employment prior to their dismissal on
19 May 1988.
6/...
6.
3. The reinstatement as aforesaid is to be retrospective to 19 May 1988 and any
payments made in terms of clause 1 of this Order
shall be deemed to have been
made in compliance with this clause.
4. Should Respondent fail to reinstate any of the Applicants as contemplated in
clause 2 of this Order, Respondent is ordered to
pay to each such Applicant his
weekly wages as aforesaid for a further period of three months as from date of
this Order.
5. Leave is granted to Respondent to apply to this Court, on one week's notice
to First Applicant, for a variation of clause 4 of
this Order should any of the
affected Applicants be reinstated by Respcndent or obtain alternative employment
prior to the expiry
of the three month period
aforementioned.
6. Should any of the second to
twelfth
Applicants succeed in obtaining
alternative employment within
three
months from date hereof, such Applicant
7/..,
7.
is to notify First Applicant who in turn, shall notify Respondent of the fact of
such alternative employment having been obtained
and the date at which such
alternative employment commenced."
On
26 September 1988 the appellant launched review proceedings in the Cape
Provincial Division for the setting aside of the reinstatement
order and the
determination. The member of the industrial court who had granted the
reinstatement order was cited as the first respondent.
The member of that court
who had made the determination was cited as the second respondent. The union was
the third respondent. The
eleven aggrieved employees were cited as the fourth to
fourteenth respondents. The industrial council was joined by the appellant
as
the fifteenth respondent soon after the proceedings were commenced. All the
8/...
4 8.
respondents opposed the review proceedings, the fifteenth respondent
confining itself solely to the question whether s 23(1) of the
Act conferred
jurisdiction upon it over the appellant.
In these proceedings the appellant
applied for the review and setting aside of
"(a) the order given by the first respondent in his capacity as additional
member of the industrial court on 20 [June] 1988 in the
application brought by
third to fourteenth respondents against the applicant in terms of the provisions
of section 43 of the Labour
Relations Act No 28 of 1956; (b) the determinarion
made by second respondent in her aforesaid capacity made on 14 July 1988 in the
application by third to fourteenth respondents against the applicant in terms of
the provisions of section 46(9)(a) of the said Act."
The review was heard by FRIEDMAN and
9/...
9.
BERMAN JJ who, on 28 April 1989, dismissed the application.
The matter has since been reported as
Photocircuit SA (Pty) Ltd v De Klerk NO
and De Swardt NO and Others
1989(4) SA 209 (C). At the same time, and in
terms of a counter-application brought by the third to fourteenth respondents
(which
was unopposed), paragraphs 4, 5 and 6 of the above determination were set
aside on the ground that the matters dealt with ±n
those paragraphs did not
constitute a final determination and were in conflict with a reinstatement
order. The counter-application
and the setting aside of the above paragraphs
have no part in the appeal now before us; they are mentioned merely to complete
the
factual background.
The appellant thereupon sought leave to appeal against the whole of the
judgment and order of
10/...
10.
the court a
quo
. Leave to appeal was, however, limited
by the court to the following issues:
1. Whether s 23(1) of the Act confers
jurisdiction
on the fifteenth respondent over the appellant, a non-member;
2. Whether the strike was illegal, i.e. whether the matter which led to the
strike was already dealt with in the industrial agreement
which was operative on
19 May 1988; and
3. Whether a reference of the dispute to the industrial court at the instance of
the aggrieved employees was a proper reference in
terms of s 46(9) of the
Act.
These grounds of appeal will be
addressed in the same order. Before I proceed to deal with them it remains only
to mention that the
first and second
11/...
11.
respondents, although they opposed the review in the court a
quo
,
chose not to contest the appeal and filed a notice in terms of which they
undertook to abide by the result. The third to fourteenth
respondents opposed
the appeal on each of the three grounds. The fifteenth respondent was concerned
solely with the first ground
and confined its argument accordingly.
The Act, as it reads now, diff ers in a number of respects from the Act as it
was in force at the time that the dispute was dealt
with by the industrial
court, first in terms of s 43 for a reinstatement order and thereafter in terms
of s 46 for a final determination.
Any reference to the Act is accordingly
confined to such provisions as were in force at that time.
12/...
12.
1st Ground
-
Whether the industrial council had
jurisdiction over the appellant in terms of s 23(1) of the Act.
Section 23(1) reads as follows :
"23(1) An industrial council shall, within the undertaking, industry, trade or
occupation, and in the area, in respect of which it
has been registered,
endeavour by the negotiation of agreements or otherwise to prevent disputes from
arising, and to settle disputes
that have arisen or may arise between employers
or employers' organizations and employees or trade unions and take such steps as
it may think expedient to bring about the regulation or settlement of matters of
mutual interest to employers or employers' organizaticns
and employees or trade
unions."
This ground of appeal involves the
interpretation of the above sub-section. One must commence, however, with the
provisions of the
Act in
13/...
13.
terms of which the industriai court was cailed upon to deal with the dispute
between the appellant on the one hand and its employees
and the trade union on
the other. Section 43(2)(a) of the Act provided that any party to a dispute who
refers it to an
industrial council having jurisdiction in respect of the
dispute
may apply to the industrial court for relief under sub-section (4)
which includes reinstatement. Section 46(9) similarly provided
that where an
industrial council having iurisdiction in respect of a dispute
has failed
to settle it within a prescribed period, such dispute shall be referred to the
industrial court fcr a determination. In
each case, therefore, a pre-requisite
for an order of reinstatement or a ,determination was that the industrial
council has jurisdiction
in respect of the dispute.
14/...
14.
The appellant's contention is that since it was neither a
party to the industrial council nor a member of an employers' organisation
which
was a party to the council, it could never have been the intention of the
legislature that an industrial council, essentially
a voluntary organisation,
would have jurisdiction to settle disputes between persons who are not
represented on it.
It will be appreciated that the first part of s 23(1) provides for a
limitation of jurisdiction in two respects: an industrial council
can only
exercise its powers in recard to the undertaking, industry, trade or occupation
(hereinafter simply described by the single
generic word "occupation") in
respect of which it has been registered - an occupational limitation; and in the
area in respect of
which it has
15/...
15.
been registered - a territorial limitation. It is common
cause that in respect of both the above requirements the appellant, by reason
of
the nature of its occupation and the location of its operations, would fall
within the council's jurisdiction.
In regard to a limitation of parties the sub-section is silent. In ordinary,
grammatical parlance jurisdiction is enjoyed in respect
of disputes between
"employers" or "employers' organisations" and "employees" or "trade unions"
without any suggestion that membership,
directly or indirectly, of the
industrial council is a further requirement. Each one of these parties is
defined in s 1 of the Act
without reference to membership of any industrial
council. True, the definitions section contains the usual reservation, "unless
the context otherwise indicates",
16/...
16.
but there is nothing in the wording of s 23(1) which in my
view would lead to the conclusion that membership of the council is a necessary
concomitant.
Disputes between labour and management must frequently involve non-members of
an industrial council. The legislature must have been
aware of this. If it was
intended to limit the council's jurisdiction to the settlement of disputes
involving members only, one would
have expected the legislature to have said so
explicitly.
Where the legislature wished to draw a distinction between members of a
council and ncn-members that distinction is drawn in clear
and express language.
See, for example, s 24(3); s 25(4); s 51(6) and s 65(2)(a). An industrial
agreement, to which a non-member
is not a party, can by notice in the
17/...
17.
Gazette becóme binding, in whole or in part, upon him (s 48(l)(b)).
All these features in the Act point to an exercise of jurisdiction
by the
industrial council over parties who are not necessarily members.
This approach was criticised by counsel for the appellant on the ground that
it is unlikely that the legislature would enact that
a non-member would be
subjected to the authority of an industrial council upon which he has no direct
or indirect representation.
This criticism is overstated. Provision is made in
the Act for safeguarding a non-member's interest. Section 19 of the Aec deals
with the registration of industrial councils. The registrar will only register a
council in respect of a particular area and occupation
if he is satisfied,
inter alia
, that the parties to the council are
18/...
18.
"sufficiently representative in respect of the whole of such
area" and are "sufficiently representative of the undertaking, industry,
trade
or occupation" (s 19(3) and s 19(4)). The registrar is given power to vary the
area or the occupation in order to ensure that
they are sufficiently
representative (s 19(8)). These provisions serve to ensure that the council is
adequately representative of
all employers within the area and in regard to the
same f ield of operation. These safeguards are in my opinion a further
indication
that the legislature intended to subject non-members as well as
members to its jurisdiction.
There are thus numerous indications to support a literal construction of s
23(1), in terms of which all employers are bound to the
jurisdiction of the
industrial council irrespective of membership.
19/...
19.
Moreover, it is significant that the powers of
a
council relate,
inter alia
, to an endeavour "to prevent
disputes
from arising" and "to settle disputes that
have arisen". Nowhere in s 23(1)
is an adjudicatory
function specifically conferred upon the council.
In
Consolidated Textile Mills Ltd v President of the
Industrial
Court and Others
1987(4) SA 665(E) ZIETSMAN
J (at 681 B-C) held that in
respect of some disputes an
industrial council would have to endeavour to
settle
them "by enquiring into the matter and deciding which
party is
right and which party is wrong". In the
light of the limitation of the
function of the council
to an endeavour "to settle disputes", I cannot
agree
with the remarks of the learned judge if he intended
to convey that
the section conferred adjudicatory
powers. The duty of the industrial council
is to
20/...
20.
attempt to avoid or to "settle" disputes "by the negotiation
of agreements or otherwise". It is by no means clear what the words "or
otherwise" mean in this context. Perhaps they are intended to refer to an
informal agreement falling short of an agreement as def
ined in the Act. I do
not consider that the legislature could have intended by the use of this laconic
phrase to confer a jurisdiction
to adjudicate. Its interpretation must be
affected by what precedes it. (
Director of Education Transvaal v McGagie and
Others
1918 AD 616
at 623).
In other words an industrial council would seem to be limited to fulfilling a
mediating role. This conclusion is fortified in my opinion
by the absence of any
machinery in the Act to compel or exact compliance with any decision or
"settlement" should any
21/...
21.
one of the parties to the dispute fail to honour it.
This
conclusion is more than merely academic. The absence of adjudicatory powers
reduces the possibility that non-members will be
unfairly treated at the hands
of an industrial council since it is no more than a settlement that will affect
them.
In my view the same considerations apply to the other functions of a council
in terms of s 23(1), namely, to "endeavour by the negotiation
of agreements or
otherwise to prevent disputes from arising" and to "take such steps as it may
think expedient to bring about the
regulation or settlement of matters of mutual
interest". This terminology does not comprehend adjudication, nor is there any
mechanism
in the Act whereby compliance can be exacted from a defaulting party.
It is in my opinion unnecessary to spell out
22/...
22.
exactly what is included in the functions of an industrial
council; it suffices for present purposes to state that an adjudicatory
function
does not appear to be part of its powers.
I conclude accordingly that the jurisdiction of an industrial council is
extended by s 23(1) to non-members and, in this case, to
the appellant. The same
conclusion was reached in the Cape Provincial Division in a full bench decision
of
Photocircuit SA (Pty) Ltd v Roux S.C. NO and Douglass
(case no 240/88
CPD 5 June 1989) - a review by the same appellant, but in other proceedings: and
in the Natal Provincial Division
in the case of
Nasionale Suiwelkooperasie
Bok v De Villiers NO and Another
1990(2) SA 751(N).
In the case of
National Industrial Council of the Printing and Newsoaper
Industry v Copystat
23/...
23.
Services (Pty) Ltd and Others
1980(3) SA
631(W)
GOLDSTONE AJ held that s 21(l)(f) of the Act referred only to disputes
between persons subject to the jurisdiction of an industrial
council and that
non-members were excluded. In my view the learned judge was considering a
different provision in the Act and did
not consider the ambit of s 23(1). Should
the decision be regarded, however, as analogous, I prefer the reasoning in the
above Cape
and Natal decisions.
It follows that the court a
quo
correctly held that the appellant was
subject to the jurisdiction of the industrial council and that the requirements
of s 43(2)(a)
and s 46(9) were fulfilled. The appeal on this first ground is
accordingly without merit.
2nd Ground
-
Whether the strike was illegal.
The court a
guo
granted leave to appeal on
24/...
24.
this issue but on the limited ground as to whether the legality of the strike
was bound up with the appellant's contention that the
matter giving occasion for
the strike was already dealt with in the industrial agreement which was binding
on the parties, and that
the strike was accordingly forbidden under s 65(1)(a)
of the Act.
The court a
quo
held that s 65(1)(a) had no application because "the
matter giving occasion for the strike was applicant's refusal to discuss with
third respondent the question of the deduction of fourth to fourteenth
respondents' dues; it was not the fact that deductions were
dealt with in clause
8(3) of the agreement". I cannot, with respect, agree with this reasoning. The
section does not require the
fact that a matter is dealt with in an agreement to
be the cause
25/...
25.
of the strike; it requires (a) that the matter should be dealt with in an
agreement and (b) that the matter should be the cause or
occasion for the
strike. It is difficult to conceive of employees striking
because
a
matter is dealt with in an industrial agreement. What is required is that the
dispute should be about a matter that is dealt with
in the agreement. The
dispute here was about the demand that the appellant should deduct the
employees' union dues. The deduction
is dealt with in an agreement.
At the stage of argument before us counsel for the appellant sought leave to
extend this ground to the issue which had been argued
in the court a
quo
and which was duly canvassed by that court. Both counsel who appeared for the
respondents had no objection. The leave sought from
this Court involved no more
than
26/...
26.
a slight amplífication of the ground for which leave to appeal was
originally granted. This Court agreed to hear submissions
on the amplified
ground (cf
Ngqumba en 'n Ander v Staatspresident en Andere
1988(4) SA
224(A) at 246B - 247D).
An agreement, as defined in the Act during the
relevant period, "means an agreement entered into or deemed to have been entered
into
by parties to an industrial council or conciliation board under this Act"
(s 1(1)). In regard to deductions from the remuneration
of employees s 24(1)(d)
provides as follows:
"24(I) An agreement, which may be declared binding under section forty-eight,
may include provisions as to all or some of the following
matters -
27/...
27.
(d) the prohibition of deductions from remuneration payable to any employee or
class of employees, other than deduc= tions which
the employer is required or
permitted to make in terms of the agreement or of any law or order of a
competent court."
Agreements are put into force by
the Minister of Manpower through the publication of notices in the Government
Gazette. Section 48(1)(a)
and (b) provide as follows :
"48(1) Whenever an industrial council trans= mits to the Minister any agreement
such as is referred to in section
twenty-four
, entered into by some or
all of the parties to the council, the Minister may, if he deems it expedient to
do so, at the request of
the
28/...
28.
council made either at the time of such transmission or at any time
thereafter -
(a) by notice in the
Gazette
declare that
from a date
and for a period fixed by
him in that notice, all the pro=
visions of the
agreement, as set
forth in that notice, shall be
binding upon the
employers who and
the employers' organizations and
trade unions which
entered into the
agreement and upon the employers and
employees who are
members of those
organizations or unions;
(b) in a notice published under
paragraph
(a) or by notice in the
Gazette
at
any time thereafter
and from time to
time declare that from a date and for
a period fixed by
him in that notice
all the provisions of the agreement,
or such provisions
thereof as he may
specify, shall be binding upon all
employers and
employees other than
those referred to in any relevant
29/...
29.
notice published under paragraph (a), who are engaged or
employed in the undertaking, industry, trade or occupation to which the
agreement
relates, in the área or any specified portion of the area in
respect of which the council is registered."
Clause 8(3)(e) is a provision which appeared in the main agreement relating
to the Iron, Steel, Engineering and Metallurgical Industry,
published in
Government Notice R1329 dated 27 June 1980 (Government Gazette No 7103). It
states:
"8(3) Except as otherwise provided in this Agreement, no deduction of any
description, other than the following, may be made from
the amount payable in
terms of this Agreement to any
employee:
(e) with the written consent
of the
30/...
30.
employee, deductions in respect of subscriptions to a trade union which is a
party to this Agreement."
It will be seen that
clause 8(3) contains a general prohibition against deductions, while providing
for an exclusion
inter alia
in sub-clause (e).
Government Notice R1744 dated 22 August 1986 (Government Gazette No 10392)
consisted of two separate declarations. First, and in terms
of s 48(1)(a), the
Minister declared that the provisions of the agreement which appeared in the
schedule to the notice would be binding
"upon the employers' organisations and
the trade unions which entered into the said agreement and upon the employers
and employees
who are members of the said organisations or unions". Secondly,
and in terms
31 /...
31 .
of s 48(l)(b), the Minister declared that the
provisions of the agreement, "excluding those contained in clauses 1(1)(d), 2, 3
and
8 of Part 1" would be binding upon all employers and employees other than
those referred to in the s 48(1) (a) notice. One of the
excluded clauses, namely
clause 3 of Part 1 provided,
inter alia
, that the provisions contained in
clause 8(3)(e) above shall apply to all employers and employees.
By Government Notice R2455 dated 30 October 1987 (Government Gazette No
11014) the Minister made a similar declaration in terms of
s 48(1)(a) and s
48(1) (b) in respect of the same group of parties as in the previous notice, but
this time in regard to the provisions
of an agreement which appeared in the
schedule to the notice (and referred to as the amending
32/...
32.
agreement). The amending agreement purported
"to amend the Main Agreement published under Government Notlce R1744 of 22
August 1986 (hereinafter referred to as the Re-enacting
Agreement) as renewed
and amended by Government Notices R1567 of 14 July 1987 and R1568 of 17 July
1987."
The amending agreement did not alter the
exclusion of clause 8(3)(e) of the main agreement brought about by Government
Notice R1744
of 22 August 1986 aforesaid in terms of s 48(1)(b).
The latter Government Notice, namely, R2455 of 30 October 1987 remained
operative for the period 9 November 1987 until 30 June 1988.
It was during this
period that the dispute, the subject-matter of this appeal, arose and was dealt
with.
33/...
33.
The appellant was not a member of any of
the
organisations which entered into the agreement.
It was common cause that in terms of the notices issued under s 48(1)(b), the
appellant
became bound by the general prohibition in clause 8(3), but that the
specific exclusion provided by sub-clause (e) did not apply
to it. I agree that
this is the effect of the abovementioned notices.
As a result of these notices, the appellant was, save for exceptions not
material to this appeal, prohibited from making a "deduction
of any
description
from the amount payable .... to any
employee" in terms of clause 8(3). ' Had it made any such deduction, the
appellant would have been guilty of an offence in terms of
s 53(1) of the Act
which during the relevant period read as follows:
34/...
34.
"53(1). Any person who contravenes or fails
to comply with any provision of
any agreement
.... binding upon him in terms of this Act
shall be guilty
of an offence."
In respect of both hearings the
industrial court did not appear to consider whether the appellant was subject to
a prohibition against
deductions. The first respondent furnished no reasons for
the reinstatement order. The second respondent furnished reasons for the
determination, but this issue was not considered. It was raised in the review
proceedings for the first time, and then only in a
later supplementary affidavit
from Mr Peschkes.
The court a
quo
dealt with this issue and came to the conclusion that
the prohibition in clause 8(3) was not applicable in that the Minister, by
35/...
35.
excluding certain provisions of the main agreement (including
clause 8(3)(e)) had purported to re-write the agreement and had accordingly
acted
ultra vires
. As stated already, the decision of the court a
quo
is reported as
Photocircuit SA (Pty) Ltd v De Klerk NO and De
Swardt NO and Others
1989(4) SA 209(C). FRIEDMAN J (at 219I-220C)
states:
"The main agreement contained a prohibition against deductions 'other than
deductions which the employer is required or permitted
to make in terms of the
agreement'. The deduction referred to in clause 8(3)(e) was a deduction which
the employer was permitted
to make in terms of the agreement. In terms of
48(1)(b) the Minister is entitled by notice in the
Gazette
to declare
that all the provisions of an agreement, or such provisions as he may specify,
shall be binding on all employers and employees
in
the
36/...
36.
particular industry, i.e. to non-parties.
What the Minister has purported
to do is to issue a notice in terms of s 48(1)(b), the effect of which is that
clause 8(3)(e) of the
agreement is inapplicable to non-parties like the
applicant. The question is whether he is permitted to do so. The deduction in
question
is one which the employer is permitted to make in terms of the
agreement. The Minister cannot by regulation prohibit a deduction
which is
permitted in terms of an agreement. Any application of the agreement to
non-parties by a notice in terms of s 48(1)(b) which
purported to exclude a
deduction permitted in terms of the agreement would amount to a rewriting of the
agreement by the Minister,
which would be contrary to s 24(1)(d). To the extent
therefore, that the Minister has purported by regulation to declare clause
8(3)(e)
inapplicable to applicant, the regulation is
ultra vires
s
24(1)(d)."
It seems as though the court a
quo
,
37/...
37.
presumably as a result of a concession made by counsel, did
not fully consider the ambit of the Minister's powers as derived from
s
48(1)(b). I am of the view that it cannot be held that the Minister was
purporting to re-wrlte the agreement under the guise of
applyihg s 48(l)(b). In
my opinion the Minister was doing precisely what s 48(1)(b), read with s
24(1)(d), empowered him to do, namely,
to declare that all the provisions or
"such provisions thereof as he may specify" shall be binding upon non-parties to
the agreement
(which, of course, included the appellant). By specifying in the
Government Notices what provisions were to be excluded, the Minister
was doing
no more than indicating the provisions which were binding, i.e. such provisions
were thus specified, albeit by an identification
of the excluded provisions.
38/...
38.
Accordingly, the Minister in my view acted within the ambit
of his powers in terms of s 48(1)(b) of the Act. The contention that he
acted
ultra vires
cannot be sustained.
This conclusion bears directly upon the legality or otherwise of the strike
and the dismissals. In terms of s 53(1) of the Act it
would have been unlawful
for the appellant to have consented to the deductions or to have made them. It
was therefore not entitled
to comply with the request made by its employees and
the union. Its failure to negotiate or discuss the question was justified in
law. It could not be expected to negotiate about a matter which it was
specifically prohibited from implementing. Its conduct could
never amount to an
unfair labour practice. The strike was accordingly illegal and the
39/...
39.
subsequent dismissals justifiable.
In his heads of
argument counsel for the third to fourteenth respondents relied upon the
reasoning of LAW J in
National Industrial Council of the Leather Industry of
SA (Footwear section) v National Union of Textile Workers and Others
(1987)
8 ILJ 296. The argúment was not pressed before this court. In that case
the learned judge commenced with s 24(1)(d)
of the Act which provides that an
industrial agreement may include a provision prohibiting deductions "other than
deductions which
an employer is required or permitted to make in terms of ...
any law
...". The court was there dealing with s 78(lC)(a)
of the Act which provides :
78(lC)(a) "No employer shall deduct any
40/...
40.
membership fees payable to a trade union which is not registered or deemed to be
registered under this Act from the remuneration
of any employee unless the
Minister has approved of such deduction."
The
learned judge concluded that the prohibition in s 78(lC)(a) against deductions
in favour of unregistered unions a
contrario
implied the permission of
such deductions in favour of registered unions. On the strength of this approach
counsel for the respondents
concerned argued that the third respondent was a
registered union, that s 78(lC)(a) was "a law" within the meaning of s 24(1)(d),
and that since that law permitted the deduction in favour of the third
respondent, the prohibition of deductions in clause 8(3) of
the industrial
agreement applicable to the appellant offended against s 24(1)(d). The
41/...
41.
argument was that the latter section outlaws a prohibition of
such deductions in an agreement when they are permitted by another law.
Consequently clause 8(3) was
ultra vires
.
This argument, constructed as it is on the reasoning of LAW J, cannot be
supported. In relying upon a necessary. implication the learned
judge in my
opinion erred. There is simply no room for such an implication. Section 78(1C)
above is entirely silent on the question
of deductions in the case of a
registered trade union. The Act accordingly contains no provision, either
positively or negatively
couched, which permits such deductions. Section
24(1)(d) above refers to a deduction "permitted .... in terms of any law". There
is no such law. It follows that the reasoning in the above case is flawed and
the
42/...
42.
decision cannot serve to assist the case of the third to
fourteenth respondents on the second ground.
During the course of argument counsel for the third to fourteenth respondents
raised a point which had not been argued before the
court a
quo
. He
referred to s 19(1)(e) of the Basic Conditions of Employment Act No 3 of 1983.
It provides:
"19(1) No employer shall -
(e) deduct from an employee's remuneration an amount
except-
(i) in accordance with a written authority given to him by such employee;
(ii) in accordance with an order of court or a provision
of any law."
43/...
43.
On the face of it this provision would appear to strike at
the prohibition in clause 8(3) of the agreement. On further analysis, however,
this problem resolves itself. Section 1(3) of Act 3 of 1983 aforesaid provides
chat a number of statutes, including the Labour Relations
Act No 28 of 1956
(i.e. the Act) shall not be affected by the former Act. The sectlon recites:
"1(3) The Mines and Works Act, 1956 (Act No 27 of 1956), the Labour Relations
Act, 1956 (Act No 28 of 1956), the Wage Act, 1957 (Act
No 5 of 1957), and the
Manpower Training Act, 1981 (Act No 56 of 1981), or any matter regulated
thereunder in respect of an employee,
shall not be affected by this Act, but
this Act shall apply in respect of any such employee in so far as a provision
thereof provides
for any matter which is not regulated by or under any of the
said Acts in
44/...
44. respect of such employee."
The matters regulated
in clause 8(3) of the agreement are obviously matters regulated under the Labour
Relations Apt No 28 of 1956
in respect of employees. It follows that Act 3 of
1983 cannot be invoked to override the prohibition in clause 8(3) of the
agreement.
In finding that the Minister had acted
ultra vires
in issuing the s
48(1)(b) notices the court a
quo
precluded itself from deciding that the
appellant was prohibited in law from making the deductions and from negotiating
in respect
of them. In the light of this conclusion it would have to be held
that the court a
quo
erred and that the appeal should succeed on this
second ground.
45/...
45.
It is necessary, however, to deal first with a final argument
which was put forward by counsel for the third to fourteenth respondents.
He
contended that the appellant, in respect of this ground alone, was relying upon
an issue which was not justiciable by way of review.
Since the application
before the court a
guo
was a review, and not an appeal, his argument was
that under the guise of a review the appellant was impermissibly seeking to
challenge
the merits and the correctness of the decision of the industrial
court.
In order to deal with this argument it is necessary to have clarity about the
issue or issues before the industrial court on each
of the two occasions.
Initially, the third to fourteenth respondents invoked the assistance of the
industrial
46/...
46.
council because of the appellant's failure or refusal to make
the deductions for union subscriptions. By the time that the industrial
court
was first approached in terms of s 43(4) of the Act, the third to fourteenth
respondents set out an amplified series of complaints.
They maintained that the
appellant
"has committed the following unfair labour practices and/or has unfairly
dismissed" (the fourth to fourteenth respondents) in that:
1.
it dismissed them 'without
good and sufficient cause';
2.
it dismissed
them 'while they were engaged in a strike which complied with the provisions of
s 65 of Act 28 of 1956';
3.
it dismissed them
'prematurely, hastily and without having considered other
alternatives';
4.
it 'failed to negotiate in
good faith'
47/...
47.
(with the union) 'on any of the matters which were referred by the industrial
council as a dispute';
5. it 'failed to attend the industrial council meeting which had been convened
in an attempt to resolve the dispute';
6. it failed to grant to each of' (the fourth to fourteenth respondents) 'the
opportunity to attend a disciplinary hearing prior
to their dismissal';
7. it 'refused to negotiate with' (the union) 'subsequent to its dismissal of'
(the fourth to fourteenth respondents);
8. it had 'thereafter refused to reinstate' (the fourth to fourteenth
respondents) 'in its employ'."
The
above complaints are listed in the union's application to the industrial court
in terms of s 43(4) of the Act, and which is dated
2 June 1988.
All these complaints were directed to the
48/...
48.
establishment of an unfair labour practice, the legality of
the strike and the reinstatement of the dismissed employees. In ordering
a
reinstatement the industrial court based its decision upon a finding that the
appellant's conduct amounted to an unfair labour
practice, that the strike was a
legal one and that the dismissals were consequently unfair and unreasonable. In
making the determination
the industrial court expressly based its decision upon
the above findings.
In my view these decisions by the industrial court are justiciable by means
of review. The decisions in both cases were reached by
a failure to appreciate
the cogency of clause 8(3), in the light of the exclusion of clause 8(3)(e).
There was thus a faiiure to
appreciate that the appellant was bound not
49/...
49.
to make the deductions sought to the extent of committing an
offence if he failed to comply with the prohibition in clause 8(3). Had
the
industrial court in each case given due consideration to this prohibition it
would have had to come to the opposite conclusion
and would have been driven to
hold that there
was.no
unfair labour practice, no
legal strike and no unfair or unreasonable dismissal. To state this conclusion
simply, the industrial
court arrived at two grossly unreasonable decisions.
(W.C. Greyling & Erasmus (Pty) Ltd v Johannesburg Local Road
Transportation Board and Others
1982(4) SA 427(A) at 448H-449A).
Support for this conclusion is derived in my opinion from two further
considerations. In the first place the decision as to the legality
of a strike
in
50/...
50.
terms of s 65 of the Act involves an objective determination.
In my view this renders the decisions of the industrial court all the
more
assailable as
being grossly unreasonable. In the second place had
the decisions been allowed to stand the appellant would
have been confronted once more with an alleged duty to
make the deductions sought - an untenable and unlawful
situation. These features indicate with additional
cogency that the decisions of the industrial court were
grossly unreasonable and should be set aside.
This conclusion renders it unnecessary to deal with the third ground of
appeal.
Finally, the costs of the fifteenth respondent must be dealt with on a
special basis. It was joined in the review proceedings by the
appellant solely
because of its interest in the correct
51/...
51 .
interpretation of s 23(1). It confined its argument in this
Court to that issue only and it was successful, although the fate of this
appeal
was decided on another ground, namely, the second one. It is accordingly proper
that the fifteenth respondent should have
its costs in both the court a
quo
and on appeal, irrespective of the result.
The appeal succeeds. The third to fourteenth respondents must pay the
appellant's costs on appeal jointly and severally. The appellant
must
nevertheless pay the costs of the fifteenth respondent on appeal.
The order of the court a
quo
is set aside and replaced with the
following :
1. An order is granted setting aside the
52/...
52.
decisions of the first and second respondents in terms of prayers (a) and (b) of
the notice of motion dated 26 September 1988.
2. The third to fourteenth respondents are
ordered jointly and severally to
pay the
applicant's costs, including the costs
wasted by the hearings on 6
December
1988 and 6 March
1989.
3. The applicant is ordered to
pay the
costs of the fifteenth respondent.
H.J. PREISS AJA.
VAN HEERDEN JA)
MILNE JA) concur.
EKSTEEN JA)
NIENABER JA)