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[1993] ZASCA 158
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Amalgamated Clothing and Textile Workers Union of South Africa v Veldspun (Pty) Ltd (97/92) [1993] ZASCA 158; 1994 (1) SA 162 (AD); [1994] 1 All SA 453 (A); (1993) 14 ILJ 1431 (A) (30 September 1993)
CASE NO: 97/92
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
AMALGAMATED CLOTHING AND TEXTILE
WORKERS UNION OF SOUTH AFRICA
APPELLANT
AND
VELDSPUN (PTY) LTD
RESPONDENT
CORAM
: CORBETT C.J, SMALBERGER, EKSTEEN, GOLDSTONE JJ.A. et KRIEGLER
A.J.A.
DATE HEARD
: 20 SEPTEMBER 1993
DELIVERED
: 30 SEPTEMBER 1993
2
JUDGMENT
GOLDSTONE JA:
During 1988 negotiations were held between the respondent, Veldspun (Pty)
Limited ("the employer"), and the appellant, the Amalgamated
Clothing and
Textile Workers Union of South Africa ("the trade union"). The trade union
represented about 850 of the approximately
1000 weekly paid employees of the
employer. The negotiations related to the wages and working conditions of all of
those employees.
A number of the issues were
3
settled. Three of them were unresolved and were referred to
arbitration. The arbitrator made an award on 5 December 1988.
Only one of the
issues determined by the arbitrator is now relevant. It was defined in the
written submission to arbitration as follows:
"2.3 whether the arbitrator can arbitrate cm the introduction of a closed
shop agreement and if so, whether a closed shop agreement
should become binding
on the parties in the event of the Union representing 80% or more of the
Company's weekly paid employees by
31 March 1989."
Clause 3 of the submission provided that:
"The Arbitrator shall have the power to make an appropriate award with due
regard to fairness and reasonableness."
4
The relevant part of the award reads thus:
"3.1 It is competent for an arbitrator to arbitrate on the introduction of a
closed shop agreement;
3.2 In the event of the union becoming representative of 80% or more of the
company's weekly paid employees by the 31st March 1989,
the company shall not
continue to employ any weekly paid employee who, while being eligible for
membership of the union, does not
become a dues-paying member of the union
within 90 days of the 31st March 1989 or within 90 days of his commencing
employment with
the company (whichever is the later) unless such employee
authorises the company to deduct from his weekly wage an amount equivalent
to
the dues payable by union members from time to time and such amount is, upon
deduction, paid over by the company to a charity
agreed upon between the company
and the union.
5
4. The award made in paragraph 3.2 shall lapse -
4.1 30 days after the company gives the union written notice of the fact that
the union' no longer has as members more than 80% of
the weekly paid employees
of the company, unless within that period the union makes good the deficiency in
membership;
4.2 in any event, on the 31st March 1991, unless the parties otherwise
agree."
It was that portion of the
award that the employer sought to have set aside by the South Eastern Cape Local
Division (Kroon J). The
application, brought under
s 33(1)
of the
Arbitration
Act 42 of 1965
("the
Arbitration Act"), was
dismissed with costs. The judgment
is reported as
Veldspun (Pty) Ltd v Amalgamated Clothing and Textile Workers
Union of South Africa and Another
1990(4) SA 98 (SECLD). With leave of Kroon
J the matter went on appeal to the full court of the Eastern
6
Cape Division (Zietsman AJP, Erasmus and Melunsky JJ). That
Court (Melunsky J dissenting) upheld the appeal with costs and set aside
the
relevant part of the arbitrator's award. The judgments which were delivered by
each of the three members of the Court are reported,
see
Veldspun (Pty) Ltd v
Amalgamated Clothing and Textile Workers Union of South Africa and Another
NO
1992(3) SA 880 (E).
The present appeal was heard pursuant to special leave granted by this Court.
As there are already four reported judgments I shall
not repeat all the facts. I
shall refer only to those matters which are necessary to make the issues
discussed intelligible.
On a proper analysis, the grounds which counsel
for the employer advanced in this Court for having the
relevant part of the award set aside may conveniently be
considered under two broad headings. These are:
1. That the arbitrator exceeded his powers by making provision for an
arrangement not covered by the submission; and
7
2. That the arbitrator misconducted himself in relation to his duties by making
an award which
would:
2.1
constitute an unfair labour practice under para (j) of the
definition of "unfair labour practice" in s 1 of the Labour Relations Act,
28 of
1956 ("the Act") as inserted by s 1(h) of Act 83 of 1988 (and prior to its
deletion by s 1(a) of Act 9 of
1991);
2.2 be contrary to public
policy;
2.3
in its implementation require the employer to commit a criminal
offence by contravening certain of the provisions of s 18 or s 19
of the Basic
Conditions of Employment Act 3 of 1983 ("the Employment
Act").
These two grounds follow from the following
provisions of
s 33(1)
of the
Arbitration Act upon
which counsel for the employer
relied:
8
"33(1) Where -
(a)
any member of an arbitration tribunal has misconducted himself in
relation to his duties as arbitrator ... or
(b)
an arbitration tribunal has committed any gross irregularity in the
conduct of the arbitration proceedings or has exceeded its powers
...
(c)
the court may, on the application of any party to the reference after due
notice to the other party or parties, make an order setting
the award
aside."
Before considering these grounds, it is as well to emphasise that the basis
upon which a court will set aside an arbitrator's award
is a very narrow
one.
9
The submission itself declared that the
arbitrator's determination "shall be final and binding on the parties". And
s 28
of the
Arbitration Act provides
that an arbitrator's award shall:
"be final and not subject to appeal and each party to the reference shall abide
by and comply with the award in accordance with its
terms."
It is only in those cases which fall within
the provisions of
s 33(1)
of the
Arbitration Act that
a court is empowered to
intervene. If an arbitrator exceeds his powers by making a determination outside
the terms of the submission
that would be a case falling under
s 33(1)(b).
As to
misconduct, it is clear that the word does not extend to
bona fide
mistakes the arbitrator may make whether as to fact or law. It is only where a
mistake is so gross or manifest that it would be evidence
of
10
misconduct or partiality that a court might be
moved to vacate an award:
Dickenson & Brown v Fisher's Executors
1915
AD 166
at 174-181. It was held in
Dormer v Ehrlich
1928 WLD 159
at 161
that even a gross mistake, unless it establishes
mala fides
or
partiality, would be insufficient to warrant interference.
In the present case the parties referred to the arbitrator the very question
as to his jurisdiction to make a determination on a closed
shop and they are
bound by his finding that he had the power to do so. That the parties were
entitled to refer that question to the
arbitrator is clear:
Heyman and
Another v Darwins, Ltd
1942 AC 356
(HL) at 392-3; and see
Allied Mineral
Development Corporation (Pty) Ltd v Gemsbok Vlei Kwartsiet (Edms) Bpk
1968(1) SA 7(C) at 15 A-B; 16A-17A.
When parties agree to refer a matter to arbitration, unless the submission
provides otherwise,
11
they implicitly, if not explicitly, (and, subject
to the limited power of the Supreme Court under
s 3(2)
of the
Arbitration Act)
abandon
the right to litigate in courts of law and accept that they will be
finally bound by the decision of the arbitrator. There are many
reasons for
commending such a course and especially so in the labour field where it is
frequently advantageous to all the parties
and in the interests of good labour
relations to have a binding decision speedily and finally made. In my opinion
the courts should
in no way discourage parties from resorting to arbitration and
should deprecate conduct by a party to an arbitration who does not
do all in his
power to implement the decision of the arbitrator promptly and in good
faith.
Indeed, in the present case, the result of the attack made by the employer on
the arbitrator's award has had the result of making
it a
brutum fulmen
.
Its terms would have expired on 31 March 1991. It is for that
12
reason that the only real issue in this appeal is
that relating to costs.
I turn now to consider the grounds upon which the
employer sought to attack the award of the arbitrator.
Whether the arbitrator
exceeded his powers.
This issue turns on the meaning, in the submission
to arbitration, of the phrase "closed shop agreement". On behalf of the employer
it was contended that this was a reference only to what is known in the field of
labour relations as a "hard" closed shop, that is
the kind of closed shop where
the employee must be a trade union member to be employed. The arbitrator's
award, on the other hand,
provided for a type of "soft" closed shop, where the
employees were required to join the union within a certain period after being
employed or to authorise their employer to deduct from their wages
13
and pay to an agreed charity an amount equal to the trade
union's dues.
The closed shop has been the subject of debate
for more than a century in most, if not all, of the
countries in which
there has been a trade union movement.
In Kahn-Freund's
Labour and the Law
3 ed 240-242 there is
a useful description of what a "closed shop" actually
means "because it is in fact a term of many meanings".
One reads there, inter alia, the following:
"In the first place we must distinguish the pre-entry and the post-entry
closed shop (called 'union shop' in America). The pre-entry
closed shop is the
agreed practice whereby no one can apply for a job unless he is a member of a
particular union. ... The post-entry
closed shop arrangement imposes no
restriction on application for jobs and no condition on the making of the
contract of employment,
but makes it incumbent on every worker to join the union
(or a specified union) within a stated period after having taken up the
job:
union membership is a term of the
contract of employment, not a condition of
its making.
Secondly, we must distinguish between a requirement that the
worker should be or become a member of a union in general, and a requirement
that he should be or become a member of a union of a particular description
(e.g. affiliated to the TUC), or that - the most important
in practice - he
should be or become a member of a particular union, or -more stringent - of a
particular section of a particular
union, e.g.
Section 1
, the skilled section of
the Amalgamated Union of Engineering Workers.
Thirdly, as Lord McCarthy has shown ... there is the vital difference between
a formal closed shop agreement between a union and an
employer or employers'
association, and an informal closed shop practice observed by the workers and
tolerated by the employer, but
not articulated.
Fourthly, there is a distinction which cuts across all the previous
categories and is in its way as important as they are. This is
the distinction
between the open union closed shop and the closed union closed shop. An open
union is one which, in relation to a
particular
15
occupational group, does not restrict the categories of persons whom it will
admit to membership, while a closed union is one which
does place such
restrictions."
In South Africa the
closed shop developed when
trade unions were first established in the last quarter
of the nineteenth
century:
Report of the National
Manpower Commission on the Closed
Shop in the Republic
of South Africa,
RP60/1981 Ch II para 3.1.1 p
12, The
effect of a closed shop agreement lay at the heart of the
action in
Matthews and Others v Young
1922 AD 492.
And,
the validity of a closed shop agreement at common law was
considered in
R v Daleski
1933 TPD 47.
In the
Report of
the National Manpower Commission
(
supra
) it is stated
that:
"Security arrangements take different forms, ranging from the strict form of
the closed shop binding on both employer and employee
to the kind in which the
employer merely undertakes when employing workers to give preference to
16
trade union members
or where the employee is not obliged to take up
membership but nevertheless has to make some sort of financial contribution
.
Although the debate in South Africa is mainly about the less flexible
arrangement in the form of some sort of closed shop as such,
the NMC
nevertheless thought it useful to review various kinds of security arrangements,
even if only by outlining their main features
rather than by detailed
discussion. It should be emphasised that only a few of these types of
arrangements are found in South Africa."
Ch I para 3.4 p 4. (Emphasis
supplied.)
The Report went on to discuss the various
kinds of closed shop. One of them is the "agency shop" about which the following
was said:
"3.10 The agency shop leaves the worker the choice whether he wants to become
a member of the trade union or not. Even if he does
not accept trade union
membership, he is still obliged
17
to pay the trade union a service fee, which is normally
equivalent to the trade union dues. A variation of this type of arrangement
allows the non-member to contribute the amount concerned to an agreed
charity.
3.10.2 The object of this type of arrangement is usually to meet objections
(conscientious, religious or other) to compulsory trade
union membership. The
fees are nevertheless considered a levy in favour of the trade union for its
involvement in concluding and
maintaining collective agreements and also serve,
it is said, to protect the loyal members against the 'free-riders' who enjoy all
the benefits of collective bargaining but do not share in its cost."
It is clear from the relevant literature, both South African and foreign,
that the term "closed shop" is a generic one. There are
various forms of closed
shop.
18
It follows, in my opinion, that the reference to a closed shop
agreement in the submission to arbitration, on the plain meaning of
the words,
was not limited to the hard variety of closed shop. On this ground alone the
contention on behalf of the employer must
fail.
If, contrary to the view I have just expressed, it were to be found that the
expression "closed shop agreement" is ambiguous, it is
clear from the parties'
negotiations which preceded the submission to arbitration that the type of
arrangement referred to in the
award had been contemplated by them. The evidence
in this regard was set out and fully considered by Kroon J at 112H-114B;
119B-120A
of the reported judgment. I agree with the conclusion expressed by the
learned Judge that:
"In the light of the above and contrary to the allegations made on behalf of
the applicant, the probabilities point strongly, if not
overwhelmingly, to the
parties having intended the alternative proposal to be included within
19
the concept of 'closed shop' submitted to the second respondent [the arbitrator]
for arbitration." (at 120 A).
It is also relevant in
this context that the only reason advanced by the trade union, during the
negotiations, for wishing to have
a closed shop was in order to deal with the
problem of the "free-rider", (which is referred to in para 3.10.2 of the Report
of the
National Manpower Commission cited above).
Furthermore, as also pointed out by Kroon J, (at 120E), when the alternative
of a soft closed shop was raised in argument before the
arbitrator there was no
objection made by the employer, Finally, with regard to this ground, it should
be remembered that the employer
sought final relief on motion and could only
succeed if the facts stated by the trade union together with the admitted facts
in the
employer's affidavits justified the
20
relief sought:
Plascon-Evans Paints Ltd v Van Riebeeck
Paints (Pty) Ltd
1984(3) SA 623(A) at 634 H-I.
It follows, in my opinion,
that the arbitrator in making his award did not exceed his powers and this
ground for setting it aside
must fail.
Whether the arbitrator misconducted himself
.
The broad submission made on behalf of the employer is that where an award is
itself contrary to
public policy or where, in implementing it one or both parties would be
obliged to commit a criminal act, then in making such an award
the arbitrator
was guilty of misconduct in relation to the proceedings. Such an award would
therefore fall to be set aside under
the provisions of
s 33(1)(a)
of the
Arbitration Act. The
trade union's counsel conceded that that would be the
consequence in the case of criminal conduct being required in the implementation
of, an award. He made no similar
21
concession in the case of an award being contrary to public
policy.
On the face of it there would appear to be force in the submission
made by the employer's counsel. However, in view of the conclusions
I have
reached in this case it is unnecessary to express a firm view on these
interesting questions. I shall assume in favour of
the employer that in both
cases making such an award would constitute misconduct by the arbitrator and
that it could on that ground
be set aside by the court.
Unfair Labour Practice
Prior to the substitution of para (x) in s 24(1) of the Act by s 6 of Act 51
of 1982, there was no reference in any South African
statute to closed shop
agreements. The effect of the substitution was to make provision for forms of
closed shop in industrial council
agreements. It is unnecessary now to consider
the detail
22
thereof, save that such an agreement could be made binding by
the Minister of Manpower even in the face of objection from interested
parties
if he deemed it expedient to do so: s 48 of the Act.
At that time, therefore, the position was that
closed shop agreements were lawful at common law: R v
Daleski
(
supra
) and forms of closed shop had statutory
recognition.
Then section 1(h) of Act 83 of 1988 added para (j) of the definition of
"unfair labour practice" in s 1 of the Act. It read as follows:
" 'Unfair labour practice' means any act or omission which in an unfair
manner infringes or impairs the labour relations between an
employer and
employee, and shall include the following:
23
(j) subject to the provisions of this Act, the direct or indirect interference
with the right of employees to associate or not to
associate, by any other
employee, any trade union, employer, employers' organisation, federation or
members, office-bearers or officials
of that trade union, employer, employers'
organisation or federation, including, but hot limited to, the prevention of an
employer
by a trade union, a trade union federation, office-bearers or members
of those bodies to liaise or negotiate with employees employed
by that employer
who are not represented by such trade union or
federation."
As already mentioned, that
provision was deleted from the Act by s 1(a) of Act 9 of 1991.
It was
submitted on behalf of the employer that the closed shop provision in the
arbitrator's award fell within the terms of para
(j). The arbitrator held
that
24
it did not. It may well be that the parties are bound by that
decision: see
the Allied Mineral Development Corporation
case,
supra
, at 16E-17A. Again, it is not necessary to decide this question in
this appeal and I shall assume in favour of the employer that
it is not bound by
that finding of the arbitrator.
In the ordinary course, the only tribunal
which has jurisdiction to consider whether any agreement or conduct constitutes
an unfair
labour practice is the industrial court. And then it can only do so at
the instance of an interested party after there has been an
unsuccessful attempt
to resolve the matter by conciliation proceedings under s 46(9) of the Act. The
question which then has to be
determined by the industrial court is not a
"question of law" or a "question of fact".
25
"It is the passing of a moral judgment on a combination of findings of fact and
opinions."
Per- E.M. Grosskopf JA in
Media
Workers Association of South Africa and Others v Press Corporation of South
Africa Ltd ('Perskor')
1992(4) SA 791(A) at 798I.
The industrial court does not sit as a court of law, even when it discharges
functions of a judicial nature: see
South African Technical Officials'
Association v President of the Industrial Court and Others
1985(1) SA 597(A)
at 612I;
Paper Printing Wood and Allied Workers' Union v D.J. Pienaar NO and
Others
, an as yet unreported judgment of this Court delivered on 23 August
1993 at 5-7 of the typed judgment. It was also held in the last-mentioned
judgment that the Labour Appeal Court and the Supreme Court have concurrent
jurisdiction to review decisions of an industrial court.
26
The presiding officers in the industrial court are appointed
"by reason of their knowledge of the law" and because they are considered
by the
Minister of Manpower to be "competent to perform the functions assigned in terms
of this Act": s 17(1) of the Act. The industrial
court is thus a non-judicial
tribunal presided over by persons who have been appointed
inter alia
because of their knowledge of labour law and practice. It is intended by the
Act to have exclusive jurisdiction to determine what
constitutes an unfair
labour practice and to make a determination in the light thereof. In the
ordinary course of events that issue
could not come before any court of law save
on review, whether under the Act before the Labour Appeal Court or at common law
to a
provincial or local division of the Supreme Court. In these circumstances I
am of the view that a court of law should refrain from
deciding whether any
agreement or conduct constitutes an unfair labour practice unless
27
strictly necessary for the decision of the dispute before it.
Fortunately, on the view I take of this aspect of the case it is unnecessary
to
decide the question. I shall assume in favour of the employer that the effect of
the award of the arbitrator does constitute an
unfair labour practice.
Having
regard to the primary obligation of parties to an arbitration to comply with the
award, I. consider that counsel for the employer
correctly conceded that " even
if the award does fall within the definition of unfair labour practice, it would
not be struck down
by a court of law unless it was inevitable that the
industrial court would do so. In my judgment it is not inevitable. Even if the
employer, as a party to the arbitration, was entitled to take the matter to the
industrial court (which is doubtful) a dispute would
first have to be submitted
for conciliation to the industrial council, if there is one, or in the
absence
28
thereof, to a conciliation board. (It would obviously be open
to an employee who is not a union member to attack the award.) The conciliation
process might be successful. For example, it could result in specific employees
being exempted from the closed shop provision by
agreement between the employer
and the trade union. Other solutions are not difficult to conceive. If there is
no successful result
to the conciliation process, the industrial court might
make a determination compelling the parties to accept a compromise which
one or
both of them were not prepared to accept in the conciliation proceedings.
The point is that the industrial court would not be obliged to strike down
the closed shop provision. It has been obliged since the
1988 amendments to the
Act to determine disputes concerning unfair labour practices "on such terms as
it may deem reasonable": s
46(9) (c) of the Act. That it has the power to strike
down an unfair
29
practice is clear: see
Trident Steel (Pty) Ltd v John NO
and Others
(1987) 8 ILJ 27 at 29D-39D. That it would not inevitably do so is
no less clear.
Counsel for the employer submitted that if the industrial court modified the
closed shop arrangement contained in the award that would
be tantamount to
striking it down. I do not agree. It might well be a matter of degree to be
considered in the light of the terms
of the determination.
Public
Policy
Counsel for the employer submitted further that the form of closed shop
contained in the arbitrator's award, constituting an unfair
labour practice, was
contrary to public policy and on that ground fell to be set aside. Again I shall
assume in favour of the employer
that it was entitled to attack the award on
this ground; that the form of closed shop contained in the award constituted an
unfair
labour practice; and that an
30
award made contrary to public policy constituted misconduct on
the part of the arbitrator.
I have already referred to the fact that prior to
the introduction of para (j) in the definition of "unfair labour practice" even
the hard form of closed shop was not contrary to the common law and was
sanctioned by the legislature in s 24(1)(x) of the Act. It
was clearly then,
i.e. prior to the 1988 amendments to the Act, not contrary to public policy.
When para (j) was deleted by the 1991
amendments to the Act, the pre-1988
position was revived. It follows that for the employer's submission to be upheld
it would have
to be found that the mere introduction of para (j) in 1988 had the
effect of making any arrangement covered by its terms contrary
to public
policy.
I agree with counsel for the trade union that the submission on behalf of the
employer confuses public policy with legislative or
State policy. Public
policy
31
is far less fickle. In
Sasfin (Pty) Ltd v Beukes
1989(1) SA 1(A) at 9A-B, Smalberger JA said that:
"The power to declare contracts contrary to public policy should ... be
exercised sparingly and only in the clearest of cases, lest
uncertainty as to
the validity of contracts result from an arbitrary and indiscriminate use of the
power."
The same approach would apply no less to the
power to
declare an arbitration award contrary to public policy.
Having regard to the views of leading academic writers on labour law. South
African and foreign, the reports of South African commissions
of enquiry, and
the aforementioned report on closed shops by the National Manpower Commission,
it is clear that, from the point of
view of the public, closed shop arrangements
have both advantages and disadvantages. Whether the former are
32
outweighed by the latter is a matter of dispute and opinion,
and there is no clear or manifest case to be made one way or the other.
Even in
the United States of America, where so much reverence has historically been paid
to the freedoms of speech and association
guaranteed by the First Amendment to
the Constitution, the Supreme Court has recognised that forms of closed shop,
even though interfering
with an employee's freedom to associate, are not
unconstitutional:
Railway Employes' Department, American Federation of Labor
v Hanson
[1956] USSC 81
;
351 US 225
(1955);
International Association of Machinists v
Street
[1961] USSC 128
;
367 US 740
(1960). And, in
Abood v Detroit Board of Education
[1977] USSC 140
;
431 US 209
(1976) it was stated by Stewart J, who delivered the opinion of the
Court, (at 221-2), that
"A union-shop arrangement has been thought to distribute fairly the cost of
these activities among those who benefit, and it counteracts
33
the incentive that employees might otherwise have to become 'free riders' - to
refuse to contribute to the union while obtaining
benefits of union
representation that necessarily accrue to all
employees."
It should be mentioned that the European
Court of Human Rights held in
Young, James and Webster v The United
Kingdom
1981 IRLR 408
that a pre-entry closed shop was hit by Article 11 of
the European Human Rights Convention which guarantees, inter alia, freedom
of
association "including the right to form and to join trade unions for the
protection of his interests". It would by no means follow
that other forms of
closed shop arrangements would also be held to be contrary to Article 11.
These cases illustrate the attitude to closed shop arrangements by courts
having the power of judicial review of legislation. Where,
as in this country,
there
34
is no constitutional impediment it would be even more
difficult to hold, as a matter of principle, that closed shop arrangements are
contrary to public policy. This ground of attack must also be rejected.
Criminal Contraventions
The provisions of ss 18 and 19 of the Employment Act, relied upon by counsel
for the employer,
are the following:
"18. No employer shall dismiss an employee ... by reason of the fact ... that
that employee -
(a)
(b) has refused or omitted to do any act which the employer required or
permitted him to do contrary to a provision of section 19
...
35
19. No employer shall -
(a)
(b) do any act or permit any act to be done as a direct or indirect result of
which an employee is deprived of the benefit or of any
portion of the benefit of
any remuneration ... payable or paid;
(c)
(d)
...
(e)
deduct from an
employee's
remuneration an amount except -
(i) in accordance with a written authority given to him by such employee;
36
(ii) ..."
On behalf of the employer, the submission was that if it were to implement
the closed shop arrangement it would commit an offence:
(a) Under s 19(1)(b) by doing an act as a
direct or indirect result of
which an
employee is deprived of portion of the
benefit of his
remuneration, i.e. by
deducting the amount of the union dues
from the
employee's weekly remuneration; and
(b) Under s 19(1)(e) by deducting the amount
without the written authority
of such
employee; and
(c) Under s 18(b) by dismissing an employee by
reason of the fact that he
refused to
authorise the deduction from his
remuneration in breach of s
19(1)(e).
37
It is arguable that on a proper interpretation of these
provisions the implementation by the employer of the closed shop arrangement
would not inevitably be in contravention of any of their terms. The complicated
and difficult process of interpreting these ambiguous
and unclear statutory
provisions is, however, unnecessary in this case. In the first place it is by no
means inevitable that the
non-union employees would have refused voluntarily to
authorise the deduction from their wages.- If they did so authorise the
deduction
then it is highly unlikely that the employer would be committing any
offence under the Employment Act. I do not agree with counsel's
submission that
the threat of dismissal implicit in the closed shop arrangement would
effectively preclude such written authority
being given voluntarily. Thus, even
if voluntariness must be implied in s 19(1)(e)(i), it is not inevitable that
that provision would
have been contravened.
38
But even if the implementation of the closed shop arrangement
would have necessitated the employer contravening one or more of the
provisions
of the Employment Act, the employer would have been entitled to approach the
Minister of Manpower under s 34(1) of the
Act for an exemption. It is there
provided that:
"The Minister may, for such period and on such conditions as may be determined
by him, exempt any employer or category of employers
generally or with respect
to any particular employee or
category of employees in respect of whom this Act applies, from any one or more
of or all the provisions of this Act."
An example of
an official exemption in respect of a contravention of s 8 of the Employment
Act, which places limits on overtime work,
is to be found in
National Union
of Metalworkers of South Africa and Others v Macsteel (Pty) Ltd
1992(3) SA
809(A) at 816 F-G. I
39
would again emphasize that the employer has a duty to do all
it reasonably could in order to implement the award.
It follows, in my opinion, that the implementation of the award would not
inevitably have required the employer to contravene any
of the provisions of the
Employment Act. Thus the final ground upon which the employer relied for
establishing misconduct by the
arbitrator must also be rejected.
The following order is made:
1. The appeal is upheld with costs, including the
costs of two
counsel.
2. The order of the full court of the Eastern Cape
Division is set aside
and is substituted by an
40
order dismissing the appeal with costs, including the costs of two
counsel.
R/J GOLDSTONE JUDGE OF
APPEAL
CORBETT C.J.) SMALBERGER J.A.) EKSTEEN J.A.) CONCUR KRIEGLER A.J.A.)