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[1991] ZASCA 168
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National Union of Mine Workers v East Rand Gold and Uranium Company Ltd. (57/90) [1991] ZASCA 168; 1992 (1) SA 700 (AD); [1992] 4 All SA 78 (AD); (1991) 12 ILJ 1221 (A) (27 November 1991)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
CASE NO.57/90 In the matter between
NATIONAL UNION OF MINE WORKERS
APPELLANT
VERSUS
EAST RAND GOLD AND URANIUM COMPANY LIMITED
RESPONDENT
CORAM
: BOTHA, SMALBERGER, MILNE, GOLDSTONE JJ.A. et PREISS AJA.
DATE HEARD
: 7 NOVEMBER 1991
DATE DELIVERED
: 27 NOVEMBER 1991
1
JUDGMENT
GOLDSTONE JA
:
INTRODUCTION
This appeal concerns an alleged unfair labour practice
on the part of an employer during the course of wage negotiations with a trade
union. The employer is the respondent, East Rand Gold and Uranium Company
Limited ("Ergo"). The complaint was made by the appellant,
the National Union of
Mineworkers ("NUM"). Ergo denied that its conduct constituted an unfair labour
practice.
The dispute came before the Industrial Court in
2 terms of s 46(9)(d) of the Labour Relations Act, 28 of 1956
("the Act") pursuant to the terms of a written agreement
dated 9 September
1987 between Ergo and NUM. It was not in
issue that the requirements for a
proper reference of the
dispute to the Industrial Court were satisfied.
The Industrial Court found in favour of NUM and it
made a determination in the following terms:
"1. Respondent's conduct in failing to implement certain wage increases
retrospective to 1 June 1 987 to that portion of its employees
who embarked upon
a legal strike in furtherance of the 1987 wage dispute constitutes an unfair
labour practice.
2.
Respondent is ordered to pay
to such employees an amount eguivalent to the wages foregone over the period
specified in para. 3 in
relation to wages of the workers who did not embark on a
strike and who received the wage increases from 1 June
1987.
3.
In terms of s 49(9)(c) read with s
49(3) of the Act, this determination shall be binding retrospectively for a
period of six months
3 from date of this
determination." The judgment of the Industrial Court is reported as
National
Union of Mineworkers v East Rand Gold and Uranium
(1989) 10 ILJ 103. Ergo
appealed to the Labour Appeal Court, Transvaal Division. The appeal succeeded
with costs including the costs
of two counsel. The determination of the
Industrial Court was set aside and replaced with the following:
"The practice of the [respondent] in refusing to implement agreed wage
increases retrospectively to those employees who embarked upon
a legal strike in
furtherance of the 1987 wage dispute does not constitute an unfair labour
practice."
In the Labour Appeal Court separate judgments were delivered
by the presiding judge and jointly by the two assessors.
Those judgments are reported as
East Rand Gold and Uranium
Co Ltd v National Union of Mineworkers
(1989) 10 ILJ 683.
NUM now appeals to this Court in terms of
4
s 17C(1)(a) of the Act, the requisite leave having
been granted by the Court a
quo
.
THE PRELIMINARY POINTS
In their heads of argument counsel for NUM
raised two preliminary arguments concerning the appealability of the decision of
the Industrial
Court. However, at the outset of the hearing of the appeal in
this Court, these arguments were abandoned. Counsel for Ergo did not
seek any
special costs order in relation to this issue. It follows that no further
consideration need be given to this aspect of
the case.
THE MERITS OF THE
APPEAL Introduction
The jurisdiction of this Court in an appeal from the Labour Appeal Court is
to be found in s 17 C of the Act. In so far as now relevant,
it is there
provided as follows:
5
"(1)(a) Any party to any proceedings before a labour appeal
court may appeal to the Appellate Division of the Supreme Court of South
Africa
against a decision or order of the labour appeal court (except a decision on a
question of fact), providing (sic) that the
labour appeal court grants leave for
such an appeal or, where such leave has been refused, the Appellate Division
grants leave thereto.
(2) After hearing an appeal, the Appellate Division may confirm, amend or set
aside the decision or order against which the appeal
has been noted or make any
other decision or order, including an order as to costs, according to the
requirements of the law and
fairness."
This provision in so far as it excludes the jurisdiction of this Court in
respect of a "decision on a question. of fact" is not happily
worded. It is not
clear what is meant by the words. Do they refer to any factual
6
finding made by the Labour Appeal Court or do they
refer to the whole of a judgment on a question which is one of fact? What of a
decision, such as the present, which is one of mixed fact and law? The further
difficulty I have with the principle of the exclusion
is that the Labour Appeal
Court does not hear evidence and has the same material before it as would be
placed before this Court in
an appeal. This Court is therefore in as good a
position to determine questions of fact as the Labour Appeal Court. The
restriction
on the jurisdiction of this Court is therefore unnecessary.
Purthermore, it_ has the effect of complicating the task of this Court
in that,
in a case such as the present one, it has to embark upon an enquiry, usually one
of difficulty, in order to determine what
decisions "on a question of fact" were
made by the Labour Appeal Court. In my view this provision merits
reconsideration by the Legislature.
7 It would appear that we are required to
determine whether, on the facts found by the Labour Appeal Court, it made the
correct decision
and order. That is a question of law. If it did then the appeal
must fail. If it did not, then this Court may amend or set aside
that decision
or order or make any other decision or order according to the requirements of
the law and fairness.
It will be convenient therefore to determine the facts which were common
cause or not in issue before the Court a
quo
and then to determine what
relevant findings of fact were made by that Court. It is upon the basis of all
those facts that the correctness
or otherwise of the decision and order of the
Court a
quo
must then be considered. The material relevant to this
exercise consists of:
(a) the documents which were placed before the Industrial Court;
8
(b)
the evidence of the only witness called in the Industrial Court,
viz. Mr L.J. Gatherer, the Manager of Manpower at Ergo;
and
(c)
the findings of fact made by the Court
a
quo
.
Facts Which were Common Cause or
Not in Issue The Recognition Agreement
.
On 29 April 1984 NUM and Ergo
entered into a recognition agreement. In terms thereof NUM was recognised by
Ergo as the sole collective
bargaining representative of its members within a
defined bargaining unit, ie "the A and B Paterson job grades". On 10 July 1987
the agreement was revised and NUM's recognition was extended to embrace all the
employees (whether its members or not) within the
aforesaid bargaining
units.
The preamble to the recognition agreement (clause 2) reads as follows:
"The parties to this agreement hereby:
9
2.1 recognise and acknowledge that sound employer/employee relations are
essential for the mutual benefit of all concerned;
2.2 declare their joint commitment to the common objectives of the maintenance
of industrial peace, maintenance of recognised work
and safety standards, and
the equitable treatment of employees;
2.3 declare their common commitment to the application of this agreement in good
faith and in a spirit of mutual respect;
2.4 intend this agreement to be legally binding on
them."
In clause 3.1 Ergo agreed to:
"recognise the union
as the sole collective bargaining representative of the union members, while the
union is sufficiently representative."
"Sufficiently representative" is defined in clause 1 to mean "signed up union
membership of 50% + 1 of the employees as defined".
There is no issue in this
case concerning NUM having been sufficently representative and it is
unnecessary
10
to consider the terms of the agreement which would apply if it ceased to be
sufficiently representative. Suffice it to say that Ergo
undertook not to
recognise any other union unless it is "sufficiently representative" (clause
5.2.7).
In clause 3.2 Ergo undertook to negotiate agreements with NUM, inter
alia, on wages and "mutually agreed" conditions of employment.
Clause 5.2.5
provides:
"The company and the union reaffirm their mutual commitment that any failure to
agree shall be resolved by dialogue in a climate
free from extraneous pressures
and stresses. Accordingly, should deadlock be reached on any negotiable issue, a
cooling off period
shall come into operation and thereafter the Negotiating
Parties shall meet again within 72 hours after the last meeting for the
purpose
of resolving the disagreement."
Clause 5.3 provides
for the resolution of disputes. In terms of 5.3.1 either party may declare a
dispute by written notice to the
other. Within 72 hours of
n
the declaration of the dispute the parties are
required to meet in an attempt to resolve the dispute: 5.3.3. If they are unable
to
resolve the dispute they are then reguired to meet on not less than two
further occasions over a period of 13 days, for the purpose
of attempting to
reach agreement: 5.3.4. In terms of 5.3.5, the parties may at any stage agree to
mediation and arbitration in an
attempt to settle the dispute. If the dispute is
not referred to arbitration and should it remain unresolved after the third
meeting,
then NUM or Ergo becomes entitled to invoke the dispute-resolving
mechanisms provided in the Act: 5.3.7.3.
In terms of clause 5.3.9 it was agreed that should NUM and its members
exhaust the procedures contained in the agreement and then
resort to lawful
industrial action, Ergo would not dismiss such members unless the action
persisted for more than three days. Clause
5.3.9.1 obliges Ergo, after the three
days, to dismiss either all or none of
12 the members who engage in such
action.
Clause 5.7 provides that the agreement would come into operation with effect
from 29 May 1984 and remain in force until terminated
in terms of the provisions
of clause 7. Clause 7, in turn, provides for termination as follows:
"This agreement shall terminate:
7.1
upon expiry of 3 months
written notice by either party to the other of its intention to withdraw from
the agreement;
7.2
if, af ter 60 days of being
notif ied by the company, the union cannot prove that it is sufficiently
representative of the employees
in the A and B job
grades:
7.3
upon the failure to remedy a
breach within a period of 14 days should either party act in material breach of
this agreement or of
the dispute resolving procedures set out in the Act or of
the agreement entered into by the parties which sets out the dispute
procedure."
13
The 1984, 1985 and 1986
Negotiations
During 1984, 1985 and 1986 NUM and Ergo entered into
negotiations over wages and other conditions of employment. According to
Gatherer,
during the 1986 negotiations NUM and its members -
"entered into illegal industrial action in the
form of a sit-in for two days which created
enormous difficulties and certainly quite
significant damage to the
Company."
That evidence was not placed in issue by NUM.
The 1987
Neqotiations
NUM' s intial demands in 1987 were f or a 55% wage increase for certain job
categories and a 40% increase for other job categories.
According to Gatherer
those increases together with the other demands made by NUM would have meant an
increase in costs to Ergo of
116%-120%.
The first negotiation meeting was held on 27 May 1987. NUM raised two
pre-conditions to commencing the annual negotiations, viz a
response to the
demand made in
14 1986 for June 16 to be a paid holiday and an undertaking
from Ergo that any wage increase which might successfully be negotiated
be
implemented with effect from 1 June 1987, regardless of the date of settlement.
It was stated on behalf of Ergo that the purpose
of the meeting was to hear NUM'
s reasons for the demands made by it. The representative of NUM, Mr Marcel
Golding, stated that if
no offer was presented by Ergo then NUM would declare a
dispute. He said that the following meeting would then be the first in terms
of
the dispute resolution procedure. Gatherer testified that he found NUM's
attitude at the meeting to be "very threatening". He
felt that the threat to
declare a dispute was "very provocative".
A dispute was then declared by NUM. Dispute resolution meetings were held on
29 May and 2 June 1987. At the second meeting Ergo tabled
its wage proposals.
They provided for increases in some cases of 15% and in others of
15
17%. It would appear that Gatherer found
Golding's attitude
and language to be objectionable. He testified that:
"We went in with what we felt was a very sincere and credible offer and we
certainly felt that the tecniques and the tactics being
used, certainly by Mr
Golding, were very disparaging and did not in any way lean towards a very
positive climate for negotiating."
At a f urther
meeting held on 5 June 1987, NUM withdrew the dispute relating to the alleged
failure by Ergo to present an offer for
increased wages at the first meeting. It
also lowered its wage demand for the one category from 55% to 35% and for the
other category
from 40% to 30%. According to the evidence of Gatherer that still
left a very substantial gap between the parties.
At a meeting held on 9 June
1987 Ergo tabled a new offer in which the wage increases ranged from 15,5% and
18,5% respectively. In
response, as it was described by Gatherer:
16
"Mr Golding then launched into those personal scathing attacks, as he is
sometimes inclined to do, and certainly the actual negotiating
climate started
plumetting pretty sadly at that
stage."
On 11 June 1987 a meeting was
held and no progress
was made. Then, on 12 June 1987, NUM addressed a letter to
Ergo in which
it declared a dispute on wages and conditions
of employment. On the same day
the first meeting of the
dispute resolution procedure was held. One of the shop
stewards, Mr Nkadimeng, said that he believed that NUM and
Ergo were not far away from a wage settlement. With regard
to wage increases, Nkadimeng said that NUM was prepared to
move further -
that for the one category of employees it
would drop its demand from 35% to 30% and for the other from
30% to 27%. He stressed that whatever movement Ergo
offered, the wage demands were still negotiable issues. He
stressed that it was his firm belief that Ergo and NUM could
still agree to settle on a wage increase at that meeting or
17
possibly at the next meeting.
On the same day the
Confederation of South African Trade Unions ("Cosatu"), of which NUM is a
member, sent a telex to Ergo in which
it threatened to enter the fray on behalf
of the workers at Ergo. This telex was viewed in a very serious light by
Gatherer who regarded
it as a third party intervention during the conduct of the
dispute procedure. Gatherer raised the contents of the telex at a meeting
held
on 17 June 1987. Golding said that he did not know about the telex but that he
saw nothing unusual about such a message being
sent by Cosatu to:
"exploitative and aggressive managements." He said that NUM saw management as
trying to "pull everything in the book" to drag out
the negotiations. He was
prepared to report back to Cosatu, acknowledging their "solidarity with the
workers' struggle", but would
say that settlement with Ergo was close and that
in future telexes
18 from Cosatu should be sent directly to NUM for
communication to Ergo management. When Gatherer insisted on some formal response
by NUM to the Cosatu telex Golding stated that management was pushing NUM "a bit
too far" and that he was "sick and tired of this".
On 23 June 1987, a further
meeting was held in terms of the dispute resolution procedure. Ergo presented
what was described as its
"final offer". Golding made no counter proposal.
However, he stated that the teams were not far apart and that a further offer
might
well result in settlement. Gatherer indicated that:
"the Management Team was at the end of the line".
The meeting ended with Golding informing Gatherer that NUM was in dispute
with Ergo.
The Conciliation Board Proceedings
On the following day, 24 June 1987, NUM requested the Divisional Inspector:
Department of Manpower, to
19 establish a conciliation board in terms of s 35
of the Act. Ergo did not oppose the application.
Notwithstanding the
application for the establishment of a conciliation board, Ergo called a further
meeting with NUM on 3 July 1987.
In response to Gatherer requesting NUM to
reveal its final position on wages, Golding replied that management was asking
the workers
to give up the only weapon they had. Golding also stated that the
parties were not too far apart and that any of fer from management,
providing it
was not a foolish one, would be carefully considered. He said that NUM would
present management with its "bottom line"
at the conciliation board meeting.
On 23 July 1987 the Minister of Manpower approved of the establishment of a
conciliation board. At the first conciliation board meeting,
held on 31 July
1987, Ergo tabled a further offer which was expressed to be
20 conditional.
The suggested increases were 19,45% and 16,05%. Golding's response was that NUM
was disappointed with the 0,5% increase.
He said that the of fer came no-where
near settlement and was therefore unacceptable. He added that Ergo had been
advised of what
NUM considered as a settlement; it believed that settlement was
close but not close enough, and unless Ergo had a fresh offer or
wished to
obtain a fresh mandate from its principals, the negotiations were at an end.
As was pointed out by counsel for Ergo, NUM, in breach of its undertaking at
the meeting of 3 July 1987, failed to inform Ergo of
its final demands. The last
occasion on which NUM had tabled an offer was on 12 June 1987.
The second conciliation board meeting was held on 10 August 1987. NUM
insisted that Ergo should make a further offer. At the same
time it refused to
table its
21
final demand. Golding stated that if there was no
forthcoming offer deadlock had been reached. Gatherer then proposed mediation.
That
was rejected by NUM. Golding indicated that NUM was in favour of voluntary
arbitration. That, however, was unacceptable to Ergo.
The Strike and
Sit-In
A strike ballot was held by NUM on 11 and 12 August 1987. The
ballot was overwhelmingly in favour of strike action. On 11 August 1987
Ergo
addressed and delivered a letter to the general secretary of NUM, Mr C
Ramaphosa, in which NUM was called upon to take all reasonable
steps to ensure
that in the event of members adopting strike action they would not enter or
remain on Ergo's premises for the duration
of that action. In response, on 12
August 1987 NUM suggested in a telex that Ergo discuss the matter with the local
branch committee.
On the same day the strike commenced.
22
On the night of 12 August a meeting
was arranged
by Ergo with the shop stewards' committee. According to
the evidence of
Gatherer the following occurred:
"... at a meeting on the 12th, the evening of the 12th, they took rather a
strange response, almost in a childishness type of description,
where they said
f ine, you want to talk to Mr Ramaphosa directly, if that is the case and you
want to actually omit to come through
our body then be our guests then you go
and speak to him. If you want to address letters to him then you go to him for
an answer.
We were then being put between two different facilities on two
different bodies without a formal response to what we believed was
a very ...
very presssing, very important
query."
Earlier on 12 August, members
of NUM commenced a
sit-in on the premises of Ergo. On 13 August, Ergo
brought an application to the Witwatersrand Local Division
in which it sought and was granted an order evicting the
strikers and interdicting them from entering the premises.
NUM was not cited as a party to that application. In
23
consequence of the court order and police
intervention the
employees vacated the premises of Ergo.
The Offer by
Ergo to the Employees
.
A further occurrence on 12 August was the
distribution by Ergo of a "Letter of Acceptance and
Undertaking" to all
its employees in the bargaining units
covered by the recognition agreement. The letter embodied
an offer to
employees to the effect that they would receive
Ergo's final offer to NUM backdated to 1 June 1987 provided
they undertook, inter alia -
"not to embark upon or support any form of industrial action in respect of
any issue which has been the subject matter of the 1987
wages and conditions of
employment ..."
It was also stated that employees who did embark upon
strike action would not be eligible to receive increases at
that stage and in any event would not receive increases
backdated to 1 June 1987.
24
According to Gatherer, some seventy
employees of
Ergo accepted the offer and did not strike. In his
evidence he explained
the decision to make the offer to
employees as follows:
"We went out to our workforce at that stage because all mechanisms and
opportunities of trying to relate to the representative body,
being the NUM
team, had failed . .. and we had been enormously frustrated at not arriving at a
settlement and after the formal mechanisms
of conciliation had been totally
exhausted and we again had seen that we were not realizing our objective of
reaching settlement,
we actually did consider alternative measures of working
directly with the employees."
Gatherer
also referred to the decision to deal
directly with employees in the context of the danger of a
sit-in. He was asked by Ergo's counsel:
"And how did you decide to defend yourself, Mr Gatherer?" He replied
"The best way we felt was to continue as we have a
25
very open policy on communicating to employees, was to continue with those
channels of contact with individual employees to try and
give all the time
almost a choice to the individual employee. ... And we felt it was very
important to sketch out, as we saw it,
the prospects of strike action, the
implications of strike action but at the same time to still try and induce to
both members and
non-members ... a commitment to not engaging in industrial
action."
Further Meeting Between Ergo and
NUM
Notwithstanding the strike and the other actions taken by both sides,
on 16 August 1987 the management of Ergo called a further meeting
with NUM. It
was held at the President Hotel in Johannesburg. Ergo's spokesman, Mr Kemble,
said that the purpose of the meeting was:
"to examine how the parties could be brought together
again."
The meeting was in fact inconclusive.
Allegations of
26
physical injuries to some of its members were
made by Golding on behalf of Num. The following inter alia is recorded in the
minutes
of the meeting:
"Mr Golding said that it was strange that the Company merely wanted the workers
to accept the offer after beating up the employees.
Mr Golding re-emphasised
that the Union was interested in talking about wages. He went on to elaborate by
saying that if the Company
wished to settle they should bring in a new wage
offer. Mr. Golding said that the position of the Union was negotiable and that
it
had not presented its final demand."
"She [Mrs
Nchwe, a NUM official] went on to say that the purpose of the strike was for
workers to attempt to pressurize the Company
into improving their wage offer.
She said that if the workers were to come back and sign, accepting the final
offer, then there would
be no purpose to the strike. Mr Kemble replied by saying
that he believed in the right of workers to strike. Mr Golding interrupted
by
saying that the Union was willing to resolve the dispute and keep the
27
negotiations open.
He emphasised the fact that workers were wanting to return to work but only a
fresh offer from the Company would induce this."
"Mr Kemble said that there were no new issues to discuss at this stage, however,
he emphasised that he saw the meeting as important.
He said that the Management
delegation would report back to their principals and re-affirm that the Company
was also open to communicate
with the Union."
In a
circular letter to its employees on 18 August 1987,
Ergo stated:
"Whilst it is Management's intention to maintain open channels of communication
with the Union and Shop Stewards at all times, the
Company is currently in the
process of recruiting replacement labour on a temporary basis. Such recruitment
is in accordance with
clause 5.3.9 of the ERGO/NUM recognition agreement, which
stipulates that during industrial action, the Company has the right to
maintain
production by any lawful means."
28
The Termination of the Strike and Post-Strike
Agreement
On 24 August 1987 Ergo gave the strikers an ultimatum to return
to work by 28 August 1987 or face dismissal. Virtually all the striking
workers
returned to work on the last-mentioned date. Thereafter further meetings were
held between NUM and Ergo in order to resolve
the issues still outstanding. A
settlement was reached and an agreement signed on 9 September 1987. The terms of
that settlement
were substantially the same as those offered by Ergo to NUM at
the conciliation board hearing. The agreement took effect on 28 August
1987, ie
the date on which the strike ended. In terms of that agreement the parties
agreed to refer the present dispute directly
to the Industrial Court for
determination.
The Findings of Fact Made by the Court a quo
.
In the Court a
quo
it was submitted on behalf of
29
Ergo that NUM had not negotiated in good faith.
In his
judgment, the chairman of the Court, De Klerk J said the
following
concerning this issue (at 692 C - 693 C):
"In his evidence Mr Gatherer expressed the opinion, and Mr
Lazarus
in
argument submitted, that the Union did not negotiate in a bona fide manner. The
union did not, as stated already, lead evidence
to refute the allegation. The
disposition of a man, like the state of his digestion, is patent only to
himself. In the absence of
evidence by witnesses on behalf of the union the
court can only draw inferences from the union's conduct at the time in question,
in an attempt to assess its disposition and its bona fides or lack
thereof.
I agree with Mr
Lazarus
that it is
not necessary for present purposes to define good faith bargaining. It is clear
however that good faith bargaining entails
that the purpose of the negotiations
must be to reach an agreement. If the purpose is to draw out matters or to avoid
reaching an
agreement at all, or to do so only at a later stage in the
negotiations, there could be
30
a lack of good faith in the negotiations or
bargaining under
scrutiny.
Normally when bargaining in the market place, no holds are barred. However
the moment the obligation to bargain in a bona fide manner
is imposed, certain
bargaining tactics which are allowed in the marketplace would be improper.
The conduct of the union during some of the meetings was confrontational and
abrasive. On a number of occasions the representatives
of Ergo were insulted.
Remarks and accusations on a personal level aimed at the man and not at the work
at hand were made.
I realise that there are many different styles of bargaining and that a
certain measure of abrasiveness, robustness, or aggressiveness,
should be
tolerated. One should be very careful not to place unwarranted restrictions on
the manner in which negotiations, also bona
fide negotiations, are conducted.
However, if a participant to the negotiations without any apparent justification
descends to the
level where personal insults are bandied about, in the
31
absence of an explanation or an apology, the inference may be justified that
that party is not bargaining in good
faith."
The learned judge went on to
refer to the failure
and refusal by NUM to indicate "what its bottom line was".
He referred to
its changes of stance between stating that
settlement was close and rejecting
Ergo's offers as being
nowhere near the required amount. He continued (at 693
J -
694 A):
"This type of bargaining is likely to lead to the cessation of negotiations or
an impasse or deadlock as it indeed did in the present
matter. It is common
cause that a deadlock arose although the reason for the impasse or deadlock is
not common cause. ...
Unexplained conduct which may bring about the termination of negotiations
unnecessarily cannot be reconciled with good faith
bargaining."
It was also submitted on
behalf of Ergo, in the
Court a
quo
, that the motive for NUM failing to negotiate in
32
good faith was that it wished to align itself with
the
stance taken by NUM at its negotiations which were then also
being
conducted with the Chamber of Mines. De Klerk J said
that it was not
necessary for the purpose of his judgment to
draw that inference and (at 694
H) added that:
"The evidence is probably not sufficient to support such an inference."
The conclusion reached by De Klerk J is the
following (at 695 B);
"In the result, in the absence of an explanation, the complaints touched on,
cumulatively, lead to the conclusion that the union did
not negotiate in a bona
fide manner.
The deadlock was therefore on the probabilities precipitated by the lack of
good faith."
Counsel for NUM drew a distinction between "bad faith tactics" on the one
hand, and "bad faith bargaining" on the other. The former
may be consistent with
a bona
33
fide intention to reach an agreement. "Bad
faith
bargaining", however, means the absence of a bona fide
intention to reach an agreement. It means going through
the motions, pretending to negotiate or, as it was put by
counsel for
Ergo:
"It went through the outward motions knowing that they were a sham."
It was submitted on behalf of NUM that De Klerk J had held that NUM was
guilty of having adopted bad faith tactics and not that it
was guilty of bad
faith bargaining in the sense I have just described. I do not agree. Although
not clearly stated in so many words
by the learned Judge I am of the opinion
that he found as a fact that NUM did not bargain with a genuine intention of
reaching an
agreement with Ergo. He held further that such bad faith bargaining
led to the deadlock, or as counsel described it, the impasse.
If those findings of fact were those of the Court
34
a
quo
then, it was common cause between
counsel, this Court is bound thereby. However, the position is complicated by
the f act that the
majority of the Court a
guo
, the two assessors,
delivered a separate judgment in which they concurred in the order upholding the
appeal.
In terms of s 17A(3)(e) the decision or finding of the majority of
the members of the court, save on a question of law or whether
or not a matter
is a question of law, shall be the decision or finding of the court. It becomes
necessary, therefore, to ascertain
what findings of fact were made by the
assessors on the question of bad faith bargaining by NUM.
In their joint judgment the assessors said the following (at 698 A - B):
"We agree with the finding that the union participated in the wage
negotations, with Ergo, in bad faith. However, we do not find it
necessary to
decide the appeal on the basis that the impasse was caused, in part, by the
Union's
35
lack of good faith in the course of
negotiations.
Rather, we are of the opinion that the question
whether the
conduct which Ergo adopted in response
to the impasse can be decided
regardless of
whether the impasse was preceded by or caused by
bad faith or good faith
bargaining."
The agreement by the
assessors with the finding
that NUM bargained in bad faith is unambiguous and on that
factual aspect,
therefore, the finding of De Klerk J must be
accepted as being the finding of
the Court a quo. The
assessors did not say that they agreed with the
further
finding by De Klerk J that bad faith bargaining led to
the
impasse. They said no more than that the appeal need not
be decided
upon that basis. In my opinion they did not
express a view on that issue.
Indeed, they expressly held
that they did not need to do so for the purpose
of their
decision. They then added that the guestion before them
could be decided "regardless of whether the impasse was
preceded by or caused by bad faith or good faith
I 36
bargaining". If they had agreed with the
further finding
by De Klerk J that bad faith bargaining did cause the
impasse, it is unlikely that in this passage they would have
referred in
the alternative to bad faith bargaining having
preceded
or
caused
the impasse.
It follows that the majority of the Court a
quo
did not hold that the
impasse was a direct result of bad faith bargaining and this Court is therefore
not bound by the finding to
that effect by De Klerk J.
The Decision of the
Assessors
.
In their judgment the assessors stated that an
impasse is reached when it is no longer possible to
reach a bilateral agreement. Where one of the parties then
resorts to unilateral action, in this case the strike, it is
not unfair for the other party to resort to unilateral
action, in this case:
"the implementation of an offer which has been put to the bargaining agent
during the course of the
37
negotiations." (at 698 I).
They continued thus (at
698 J - 699 A):
"The offer, which the employer may unilaterally implement, must be an offer
which falls within the compass of its offer to the collective
bargaining agent.
The employer would not in our view be justified in offering any wages or terms
and conditions which have not been
placed on the bargaining table. If this were
allowed it would mean that the employer is using the impasse to bypass the
bargaining
agent of his employees. Tt would not be fair or equitable for him to
do this."
In the present case Ergo did
not simply
and unilaterally implement its offer falling "within the
compass of its offer to the collective bargaining agent".
In fact it offered to do so only to those employees who
agreed in writing not to embark upon or support any
industrial action in respect of any issue which had become
the subject matter of the 1987 wages and conditions of
employment. It was a conditional offer and amounted to a
negotiation directly with its employees. Indeed, it is in
38 that context
that it offered to backdate the implementation of its offer to 1 June 1987. And
it was the acceptance of the offer
on those terms that at the end of the day
resulted in the non-strikers obtaining a better deal than those employees who
went on strike.
That is the complaint made by NUM and the basis upon which the
Industrial Court held that Ergo was guilty of an unfair labour practice.
Later in their judgment the assessors again advert to the nature of the offer
made by Ergo and state (at 700 F):
"... it was the same offer that had been presented
to the union as the representative of its members ...."
The assessors erred in regarding the terms of the offer made by Ergo directly
to its employees as having been the same as those offered
to NUM. Throughout the
negotiations the question of backdating the agreement was a material issue. In
the last offer made by Ergo
it
39
undertook to backdate the agreement to 1 June
1987 only if a final agreement was reached by 31 July 1987. No agreement was
reached
by that date. The last offer made by Ergo to NUM was at the first
conciliation board meeting held on 31 July 1987. In respect of
that offer
Golding asked Gatherer if he could give an undertaking in relation to the
backdating of the implementation date. Gatherer
replied that that was an issue
open for negotiation.
The offer put by Ergo directly to the employees, therefore, contained a
material term which had not been included in the last offer
made to NUM. The
materiality of the term concerning the backdating of the agreement can also be
gauged by reference to the facts
that:
(a)
At the very first meeting
held in the 1987 negotiations NUM attempted to raise it as one of the two
pre-conditions to the negotiations;
and
(b)
Ergo strongly resisted that attempt and emphasized that it was a
negotiating point
40
each year. The question of backdating is
obviously a weapon in an employer's armoury which can be used as an inducement
to obtain
agreement on other issues.
Having regard to the fact that Ergo had earlier in its negotiations with NUM
offered to backdate to 1 June 1987 any agreement reached
by 31 July 1987, it may
be that Ergo was entitled on impasse to regard that term as falling within the
compass of offers already
made to NUM. It is not necessary to decide in this
case whether permissible unilateral action may include a term of that kind which
was not contained in the
last
offer made to the union.
The Decision of
the Judge
.
De Klerk J found it unnecessary to decide whether
an impasse simpliciter would justify the employer bypassing
the trade union. He said the following (at 695 I - 696 A):
"The guestion in the present matter is whether bad faith bargaining coupled
with an impasse, and added to that a possibility of illegal
action, ie
41
a sit-in with the probabillty of disruption, sabotage and severe damage,
together, constitute sufficient cause, in fairness and on
equitable grounds, to
bypass the acknowledged collective bargaining agent. In my view such
circumstances did in the present matter
justify such
bypass."
He later added the following (at 696 B -
E):
"The bad faith was displayed by the sole collective bargaining agent and clearly
affected its position and also that of the employees
it represented and of Ergo.
Furthermore, it does not become the participant who breaks the rules to insist
that the other party adhere
to the rules unless the other party first formally
terminates the status of the party who deviated from the rules. The conduct of
Ergo in this matter was akin to self-defence and was justified and not
unfair.
The bad faith of the union coupled with the
impasse and the threat of disruption and damage, in fairness, released Ergo, if
only temporarily,
from its obligation to negotiate solely through the union.
Ergo could at that stage do so without first terminating the status of
the union
in the hope that matters would revert to normal
42
again even though it would mean that a temporary bypass of the collective
bargaining agent would take place with the result that
the union's image as
recognized collective bargaining agent would suffer. The union has only itself
to blame for that state of affairs,
and the union is the employees'
agent."
It follows that if it is held that impasse
alone did not justify the conduct of Ergo, it will be necessary to decide, again
as a question
of law, whether in the face of the impasse together with the
additional factors taken into account by De Klerk J the conduct of Ergo
constituted an unfair labour practice.
The Industrial Court and the Relevant Principles of Collective
Bargaining
.
It must not be forgotten that this appeal is one in respect of a matter which
came before the Industrial Court. In
South African Technical Officials'
Association v President of the Industrial Court and Others
1985(1) SA
43 597(A), it was held by this Court that the industrial court
is not a
court of law even if it exercises functions of a judicial nature. Since that
decision there have been a number of important
amendments of the Act. Those
amendments, however, in my opinion, have in no way changed the juridical nature
of the industrial court.
In exercising its functions the industrial court
must have regard to the statutory context in which it operates. The fundamental
philosophy
of the Act is that collective bargaining is the means preferred by
the Legislature for the maintenance of good labour relations and
for the
resolution of labour disputes. (That, too, is the clear if unexpressed basis
upon which the parties entered into the recognition
agreement.)
In Davies and Freedland,
Labour Law: Text and Materials
, one reads at
112/3:
By collective bargaining we mean those social structures
whereby employers (either alone or in
44
coalition with other employers) bargain with the representatives of their
employees about terms and conditions of employment, about
rules governing the
working environment (e,g. the ratio of apprentices to skilled men) and about the
procedures that should govern
the relations between union and employer. Such
bargaining is called 'collective' bargaining because on the workers' side the
representative
acts on behalf of a group of
workers."
It follows from the
aforegoing that the integrity
of the collective bargaining agents (in the sense of their
wholeness and
effectiveness not being violated) is a matter
of primary importance. The
maintenance of that integrity
must therefore be given proper weight by an
industrial court
in proceedings before it. When an employer, in the face of
a recognition agreement, treats directly with members of the
recognised union that conduct will usually, if not
invariably, have a detrimental effect upon the union and as
a consequence upon its members. As counsel for NUM put it,
45
it would be subversive of collective bargaining
and could, in the long run, be detrimental also to the employer itself. It is
obviously
correct, and was so accepted by counsel on both sides, that the very
stuff of collective bargaining is the duty to bargain in good
faith.
As stated in Brassey et al,
The New Labour Law
at 151:
"There is nothing so subversive of collective bargaining, however, as to refuse
to bargain entirely or to pretend to bargain without
doing so, going through the
motions with no intention of reaching agreement."
It
was also accepted by counsel on both sides that the strike is an essential and
integral element of collective bargaining. See
Barlows Manufacturing Co Ltd v
Metal and Allied Workers' Union and Others
1990(2) SA 315(T) at 322 F-G.
In the exercise of its powers and the discretion given to it, the industrial
court is obliged to have regard
46
not only or even primarily to the contractual or
legal
relationship between the parties to a labour dispute. It
must have
regard to the application of principles of
fairness. I agree with the observation made in Brassey et
al
,
supra
, at 354/5 that:
"... it is indeed peculiar to an unfair labour practice determination that it
may have the effect of suspending the common-law and
law of contract
conseguences."
See, too:
Marievale Consolidated Mines Ltd v President of
the Industrial Court and Others
1986(2) SA 485(T) at 498 I-
499 I. In essence the industrial court is one in which
both law and equity are to be applied.
Yet another principle upon which counsel were in
agreement was that when an impasse is reached in the
negotiations, either party is free to take unilateral
action. It was put as follows in an instructive article by
Professor Archibald Cox in
(1958) 71
Harvard Law Review
47
1401, entitled "The Duty to Bargain in Good
Faith" (at
1423):
"When taken during negotiations or upon subjects on which the union wishes to
bargain it weakens the union by showing the employees
that it is useless to try
to negotiate. If the employer unilaterally raises wages or makes some other
concession, his conduct effectively
tells the employees that without collective
bargaining they can secure advantages as great as, or possibly greater than,
those the
union can secure. Unilateral changes made while the employees'
representative is seeking to bargain also interfere with the normal
course of
negotiations by weakening the union's bargaining position. Consequently, proof
that an employer changed wage rates or other
terms of employment in the midst of
contract negotiations ordinarily gives rise to the inference that he had no
intention of comlng
to an agreement; the factual inference can be negated by
showing that there was a need for immediate action or by proving that the
negotiations had reached an
impasse."
In Gorman,
Basic Text on
Labor Law
at 445/6
48
the author says the following concerning the
attitude of
American Law to unilateral action on impasse:
"The law is clear that an employer may, after bargaining with the union to a
deadlock or impasse on an issue, make 'unilateral changes
that are reasonably
comprehended within his pre-impasse proposals.' Taft Broadcasting Co. (1967),
enf'd
(D.C.Cir. 1968). Another formulation is that after an impasse
reached in good faith, 'the employer is free to institute by unilateral
action
changes which are in line with or which are no more favourable than' those it
offered or approved prior to impasse. Bi-Rite
Foods, Inc. (1964). A detailed
rationale for the post-impasse change in working conditions was set forth by the
Board in Bi-Rite
Foods, Inc, ibid.:
This freedom of
action which the employer has after, but not before, the impasse springs from
the fact that having bargained in good
faith to impasse, he has satisfied his
statutory duty to determine working conditions, if possible, by agreement with
his employees.
Having fulfilled his obligation to fix working conditions by
49
joint action, he acquires a limited right to
fix them
unilaterally, that is, he is limited
to the confines of his preimpasse offers
or
proposals. Any other changes he were to
institute might, if offered
before or after
the impasse, have led or lead to progress or
success in
the collective negotiations;
hence unilateral action of this
different
scope forecloses this possibility, just as
would his refusal to
consider a proposal,
with a violation as apparent in the one
instance as
in the other. In explaining
this result, it is sometimes said that
the
employer's postimpasse action 'breaks' the
previous impasse, although
it is perhaps more
precise and less susceptible of
misinterpretation to
say that no impasse can
be said to have been reached when the
reference is
to changes never introduced into
the collective bargaining arena.
Or,
applying another familiar formulation, the
employer may not be heard
to say that had he
offered his unilaterally-instituted changes
to the
employees' representative, the
resulting negotiations (which could as
a
result have taken on new directions or scope)
50
would nevertheless have ended in deadlock.'
In effect, the
employer's action is not 'unilateral', since at least that much of a concession
was being demanded by the union when
good-faith negotiations resulted in
impasse. The employer ought not be forbidden to implement such an agreed-upon
concession merely
because the union remains fixed in its bargaining position.
The announcement implementing the change is not viewed either as an avoidance
of
the duty to bargain or as a disparagement of the representative status of the
union. The union can take credit for the granted
benefit, the employer
demonstrates that it has acknowledged its duty to deal with the union and not
with employees directly, and
good-faith negotiations can now proceed on the
residual benefits which continue to separate the parties (the'unilateral' grant
being
deemed to 'break' the impasse). Such a grant of benefits thus differs
sharply from that condemned by the Supreme Court in NLRB v
Katz (U.S.1962),
where the subject matter of the benefits was still under negotiation and the
union had no notice of the employer's
intention to implement its grant."
51
In my opinion the views expressed above with
regard to American Law are the logical and necessary consequence of a collective
bargaining
regime whether under the United States' statutes or our own. They are
also consistent with fairness in the labour law context. I
would emphasize that
unilateral action does not comprehend any
negotiation
with the employees.
It means no more than that the employer may unilaterally implement changes in
wages or conditions of employment
no more favourable than those offered prior to
impasse. If the employer wishes to negotiate further he remains bound to do that
only
with the collective bargaining agent, i.e. the union. I should add that
this approach is consistent with the views expressed by the
assessors.
In the passage quoted from Gorman,
Basic Text on Labor Law
, the author
refers to the situation where the impasse is reached in good faith. In that case
the
52
employer may not put a better offer to the employees than he
put to their union. Where the impasse is reached because of bad faith
bargaining
the position may be different and it may be that direct negotiation would not be
unfair, unjust or inequitable. The "requirements
of fairness" to which reference
is made in the Act may, in a proper case, entitle an employer to suspend the
terms of the recognition
agreement to the extent of dealing directly with its
employees. In strict law it would be obliged to elect either to be bound by
all
the terms of the recognition agreement or to cancel it and be bound by none of
them. In the field of the unfair labour practice,
however, there would appear to
be substantial grounds for holding that an employer would not be put to that
election. Having regard
to the conclusion I have reached on the facts of this
case it is not necessary to express a final opinion on this question.
53
The Present Case.
As already stated Ergo's conditional offer to its
employees constituted an attempt to negotiate directly with them. It amounted to
more than the unilateral implementation of an offer previously made to NUM. It
follows from the principles set out above that the
impasse alone would not have
justified that conduct.
The implementation of that offer resulted in the two groups of employees (the
strikers and the non-strikers) being treated unequally.
The non-strikers
received wage increases retrospectively from 1 June 1987. The strikers received
their wage increases only from the
date on which they returned to work, ie 28
August 1987. That unequal treatment could have been avoided by Ergo backdating
the increases
of the strikers to 1 June 1987. It chose not to do so. It was the
latter conduct which was stated in the order of the Industrial
Court to
constitute an unfair labour
54 practice. The consequential relief granted by
the Industrial Court was directed at rectifying the unequal treatment of the two
groups of employees.
In argument before this Court, counsel on both sides devoted most of their
attention to the propriety of the direct approach made
by Ergo to its employees.
In my opinion counsels' approach was a proper one. If the ! earlier conduct
(which, after all, was the
real cause of the unequal treatment), was
unjustified, then the subsequent failure by Ergo to avoid the inequality was
equally unjustified.
One must look at both cause and effect. That is what the
Industrial Court did in its judgment and that is what led to the conclusion
that
Ergo committed an unfair labour practice. It was the effect of Ergo's conduct
which, in essence, was held to constitute the
unfair labour practice. That
conduct and its effect clearly fell within the definition of "unfair labour
practice" as it read
55
at the relevant time, ie prior to the 1988
amendments of the
Act. It was conduct which may have had the effect that:
"the relationship between employer and employee is or may be detrimentally
effected thereby".
The assessors' reason for
disagreeing with that conclusion by the Industrial Court was that the
conditional offer made directly to
the employees was justified and proper
because of the impasse
simpliciter
. It follows from what I have said
earlier in this judgment that I cannot support that decision.
It becomes necessary therefore to consider whether De Klerk J was correct in
his conclusion that the impasse was a direct result of
bad faith bargaining by
NUM. The relevant evidence in this regard is the following:
(a) At all times and in particular during the proceedings before the
conciliation board Ergo, by its conduct, appeared to accept that
56
NUM was negotiating seriously and that agreement might be reached with
it.
(b) At the second conciliation board meeting NUM offered to go to arbitration
and that offer was declined by Ergo. Gatherer conceded
under cross-examination
that an agreement to go to arbitration might have avoided the strike;
(c) During the strike action, on 16 August 1987,
Ergo called a meeting
with NUM at which both
parties committed themselves to
further
negotiation;
(d) During the strike Ergo acted on the basis
that it was still bound by
the terms of the
recognition agreement;
(e) After the strike the parties negotiated
further and concluded a final
agreement.
It is apparent that notwithstanding any misconduct
57
by NUM, Ergo continued at all times to regard it
as the bargaining unit of its employees. There is no evidence which indicates
that
it intended to suspend that recognition even temporarily. The evidence,
indeed, points in the opposite direction. There is no suggestion
that prior bad
faith bargaining by NUM caused Ergo to consider that further negotiations would
serve no purpose. The relationship
continued, negotiation continued and that
resulted in agreement.
In addition to the aforegoing there is the further important consideration
that Gatherer, in his evidence in the Industrial Court,
made no allegation that
the impasse was the direct result of bad faith bargaining by NUM. The allegation
to that effect was made
by Ergo's counsel. In my opinion it was unsupported by
the evidence led on behalf of Ergo.
I do not leave out of account that even at the
58
post-strike meeting with Ergo, NUM still failed to put forward
any counter-offer. However, that was clearly not regarded by Gatherer
as a block
to the continuation of the relationship with NUM and negotiations continued
between the parties.
I have come to the conclusion that, on a balance of
probabilities, the impasse was not the direct result of bad faith bargaining by
NUM. Whatever bad faith bargaining NUM was guilty of, the evidence does not
establish that it was present or relevant at the point
of impasse. In that
regard the of fer by Num to go to arbitration and the aforementioned concession
made by Gatherer in relation
thereto are crucial. The conclusion to the opposite
effect reached by De Klerk J, therefore cannot be upheld. It follows that his
reasons for setting aside the determination by the Industrial Court also cannot
be supported.
59
Counsel for Ergo submitted that their client's
conduct was in no way destructive of collective bargaining since that had ceased
upon
impasse. It had not. The strike was part of that process and no less the
meeting of 16 August 1987 which was called by Ergo. And
then there were the
further successful negotiations at the beginning of September 1987 which led to
the agreement of 9 September
1987. It was also submitted that NUM had ceased to
fulfil its role as bargaining agent. The evidence to which I have referred does
not support such a conclusion.
In the result, I agree with the decision of the Industrial Court that the
conduct of Ergo constituted an unfair labour practice. That
the Industrial Court
granted appropriate consequential relief was correctly not placed in issue on
behalf of Ergo.
In finding that Ergo committed an unfair labour
60
practice by negotiating directly with its
employees I do not wish to be understood as condoning the conduct of NUM during
the negotiations.
On the evidence led in the Industrial Court the
representatives of Ergo had every reason to have felt frustrated and aggrieved.
They
were also entitled to feel concern and anxiety over the feared sit-in and
imminent strike. However, all of those factors and occurrences
are not unusual
when the collective bargaining process does not result in agreement for whatever
reason.
In the result, the appeal must be upheld.
Costs
In terms of s 17(12)(a) of the Act:
"The industrial court may in the performance of any of its functions under
paragraph (a) or (f) of subsection (11), make an order
as to costs according to
the requirements of the law and fairness."
61
And, in terms of s 17(21A)(c), the Labour Appeal
Court may:
"On appeal .. . confirm, vary or set aside the order or decision appealed
against or make any other order or decision, including
an order as to costs
according to the requirements of the law and
fairness."
Similar powers are conferred upon this
Court by s 17C(2) of the Act.
It follows that in respect of any costs order in a matter which comes before,
or on appeal from, the industrial court, the legislature
has decreed that both
the law and fairness shall be taken into account in exercising a discretion with
regard thereto.
Where matters of judicial discretion are concerned, an appeal court should be
slow to lay down general rules. However, in recent judgments
of the
62
industrial court one sees that an attempt is
being made to establish the correct approach to the exercise of the discretion
conferred
upon it and more particularly to determine the general considerations
which properly may be taken into account. I refer in particular
to the helpful
judgment of D A Basson AM in
Chamber of Mines of SA v Council of Mining
Unions
(1990) 11 ILJ 52 (IC) at 73 E-80J. In my opinion, this Court should
assist this process by enunciating the following considerations
which may be
relevant in relation to costs:
1.
The provision that "the
requirements of the law and fairness" are to be taken into account is consistent
with the role of the industrial
court as one in which both law and fairness are
to be applied.
2.
The general rule of our law
that in the absence of special circumstances costs follow the event is a
relevant consideration. However,
it will yield where considerations of fairness
require it.
63
3. Proceedings in the industrial court may not infrequently be a part of the
conciliation process. That is a role which is designedly
given to it. Parties,
and particularly individual employees, should not be discouraged from
approaching the industrial court in such
circumstances. Orders for costs may
have such a result and consideration should be given to avoiding it especially
where there is
a genuine dispute and the approach to the court was not
unreasonable. With regard to unfair labour practices, the following passage
from
the judgment in the
Chamber of Mines
case (
supra
) at 77G-I
commends itself to me:
"In this regard public policy demands that
the industrial court takes into account considerations such as the fact that
justice may
be denied to parties (especially individual applicant employees) who
cannot afford to run the risk of having to pay the other side's
costs. The
industrial court should be easily accessible to litigants who
64
suffer the effects of unfair labour practices, after all,
every man or woman has the right to bring his or her complaints or alleged
wrongs before the court and should not be penalized unnecessarily even if the
litigant is misguided in bringing his or her application
for relief, provided
the litigant is bona fide ..."
4. Frequently the parties before the industrial court will have an on-going
relationship that will survive after the dispute has
been resolved by the court.
A costs order, especially where the dispute has been a bona fide one, may damage
that relationship and
thereby detrimentally effect industrial peace and the
conciliation process.
5. The conduct of the respective parties is obviously relevant especially when
considerations of fairness are
concerned.
The aforegoing
considerations are in no way intended to be a
numerus clausus
. A very
wide discretion
65 is given by the Act to the three courts with regard to the
exercise of their powers and no less in respect of orders for costs.
Such a
discretion must be exercised with proper regard to all of the facts and
circumstances of each case.
In the present case the following considerations appear to be relevant:
1.
NUM is the successful
party;
2.
NUM's conduct in the negotiation
process led to justifiable unhappiness and frustration on the part of
Ergo;
3.
There was and presumably still is an
on-going relationship between the parties;
4.
The issues raised are of
fundamental
66
importance not only to the parties but to all the
players in the important arena of industrial conciliation.
In all of those circumstances I am in agreement with counsel for NUN that no
award of costs should be made in respect of this appeal.
None was made in the
industrial court and none should have been made in the Labour Appeal Court.
The following order is made:
1. The appeal is upheld.
2. The order of the Court a quo is set aside and the following order is
substituted therefor:
67 "The appeal is dismissed."
R J GOLDSTONE
BOTHA JA ) SMALBERGER JA ) MILNE JA ) CONCUR
PREISS AJA )