IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO. J2236/99
In the matter between:
CONSTRUCTION AND ALLIED WORKERS UNION
AND OTHERS Applicants
and
MODERN CONCRETE WORKS Respondent
JUDGMENT
MARCUS AJ:
[1] This is an urgent application for an order restraining the respondent from
locking out some 19 workers represented by their union, the first applicant in this
matter. The basis of the application is that the respondent has not complied with
various requirements set out in section 64 of the Labour Relations Act 66 of 1995
("the Act").
[2] In the founding affidavit the following complaints are made:
(a) That the respondent has failed to make an application to the CCMA of its
intention to lockout the workers in question.
(b) Subsequent to the above no certificate stating that the dispute remains
unresolved was furnished.
(c) It is a requirement that the respondent give the applicant seven days notice
of its intention to lockout the workers concerned.
[3] In argument before me Ms Ikaneng, who appears on behalf of the
applicants, sought only to place reliance on the first of these grounds namely that
the respondent has failed to refer the issue in dispute to the CCMA.
[4] The respondent's answer to this contention, and indeed its defence to the
application as a whole, is encapsulated in paragraphs 79 of the answering
affidavit in the following terms:
"7. On 26 May 1999 I received formal notification from first respondent of
their intention to embark on industrial action ...
8. Notwithstanding the above, the employees informed me that they were
embarking on a 'go slow' with statements being made to the effect that they would
be embarking on a 'go slow' on Friday, 21 May 1999. It should be noted that
prior to any notification being received by the company, the employees had
already embarked on a 'go slow'. At an earlier wage negotiation meeting a
statement was made by the shop steward, James Bopapi, that unless employees
were given an 18% wage increase they were going to close the company down.
9. As a result of the above I was left no alternative but to issue formal
notification of my intention to lockout (hereto annexed
L3). This notification was faxed to the first applicant and placed on the company
notice board in the presence of Mr Moses Venceslau . The second to further
respondents tore down the notice from the notice board .."
[5] It is also appropriate that I refer to the notice of lockout which is dated 27
May 1999. It reads as follows:
"Notice of a Lockout
As a result of our meeting at the CCMA which failed to resolve the current
dispute, we hereby give formal notification of our intention to lockout your
members. You are further informed that we will make ourselves available for
round table discussions in respect of the current dispute".
[6] The parties have been in dispute over what is described by the applicant as
"wages and other substantive matters". These disputes have been referred to the
CCMA. It appears from the reference by the Union to the CCMA that the Union
is demanding an 18% wage increase, a bonus of four weeks and retrospective
implementation of these demands to 1 March 1999. That dispute remains
unresolved.
[7] At issue for present purposes is the reason for the lockout. Mr Ledden
Ross who appears on behalf of the respondent, contends that the lockout is in
consequence of the very issues which have been referred to the CCMA. I have
difficulty with this contention. It appears from the relevant paragraphs of the
respondent's affidavit that the lockout is in response to the go slow which has been
embarked upon by the workers. I will revert to this matter in due course.
[8] An issue analogous to the present arose in Kgasago and Others v Meat
Plus CC (1999) 20 ILJ 572 (LAC), the headnote of which accurately reflects the
facts as follows:
"The trade union representing the appellants referred a dispute with the
respondent employer to the CCMA for conciliation. The dispute concerned a
demand for an increase in wages. The parties failed to settle the dispute and the
union served a notice of its intention to call a strike in four days time. Before the
notice expired, the employees engaged in an overtime ban. The employer
instituted a lockout. It then withdrew the lockout and suspended its employees
instead pending an investigation into the overtime ban. The employer then
informed the union that the employees had been found guilty of refusing to work
but that no disciplinary action would be taken if they returned to work. But that
was on the day the workers commenced their strike, a complete cessation of work
in terms of the notice. The employer responded by instituting another lockout in
which it demanded that the employees accept its final wage offer and that
overtime be accepted as a condition of employment. The strike was subsequently
called off and the employees tendered their services. The employer refused to
accept their tender until they accepted the employer's demands. The trade union
approached the Labour Court for a declarator that the lockout was unprotected
and that they were entitled to be paid for the period that the employees tendered
their services. The Labour Court found for the employer. On appeal the Labour
Appeal Court found that the second lockout was in response to the complete
cessation of work ÄÄ a protected strike. The employer's lockout had not been
preceded by the requisite notice and had included a demand concerning overtime
which had not been referred to the CCMA and conciliation in terms of section
64(1). The lockout was unprotected."
[9] The requirements for a protected lockout (and a protected strike) are set
out in section 64 of the Act. Section 64(1) reads as follows:
"(1) Every employee has the right to strike and every employer has recourse to
lockout if
(a) the issue in dispute has been referred to a council or to the commission as
required by this Act and
(i) a certificate stating that the dispute remains unresolved has been issued;
or
(ii) a period of 30 days or any extension of that period agreed to between the parties
to the dispute has elapsed since the referral was received by the council or the
commission; and
(b) in the case of a proposed strike at least 48 hours notice of the
commencement of the strike in writing has been given to the employer ...
(c) in the case of the proposed lockout at least 48 hours notice of the
commencement of the lockout in writing has been given to any trade union that is
a party to the dispute, or if there is no such trade union, to the employees unless
the issue in dispute relates to a collective agreement to be concluded in a council
in which case notice must have been given to that council ..."
[10] Section 213 of the Act defines "issue in dispute" as follows:
"'Issue in dispute' in relation to a strike or lockout means the demand, the
grievance or the dispute that forms the subject matter of the strike or lockout".
[11] The reason for the lockout is set out in the paragraphs quoted from the
respondent's affidavit. It seems clear to me that the lockout is in response to the
go slow. Mr Ledden Ross, however, seeks to place particular emphasis on the
last sentence of paragraph 8 and the first sentence of paragraph 9 of the answering
affidavit. In essence he argues that I should read the relevant extracts from the
affidavit as indicating that the lockout is in response to the statement made by the
shop steward that unless the employees were given an 18% wage increase, they
were going to close the company down. This is a narrow interpretation of the
affidavit taken as a whole. It must be borne in mind that these are motion
proceedings in which the affidavits comprise the pleadings and the evidence (See
Swissborough Diamond Mines (Pty) Ltd and others v Government of the Republic
of South Africa and others 1999 (2) SA 279 (T) at 323G325C). The
interpretation urged upon me by Mr Ledden Ross is forced and ignores the
structure of the relevant paragraphs read together.
[12] Ms Ikaneng also sought to argue that the notice of lockout itself was defective.
I have already set out the terms of that notice. It may be observed that the notice
of lockout simply refers in general terms to the "meeting at the CCMA which
failed to resolve the current dispute" without giving any precise indication of
which aspect of the dispute constitutes the reason for the lock out. This in itself
militates somewhat against the interpretation urged upon me by Mr Ledden
Ross. Ms Ikaneng, however, says that the notice is defective for failing to specify
when the lockout is intended to begin. In this regard there is again authority of
analogical assistance in the case of Ceramic Industries Ltd t/a Betta Sanitaryware
and Another v NCBAWU and Others (1997) 6 BLLR 697 (LAC). This case
concerned inter alia the requirements of notice for purposes of a protected strike in
terms of section 64(1)(b) of the Act. However, the provisions of the Act relating to
the notice
requirements for a lockout are materially the same. The court summarised its
conclusions at 702GH as follows:
"The provisions of section 64(1)(b) need to be interpreted and applied in a
manner which gives best effect to the primary objects of the Act and its own
specific purpose. That needs to be done within the constraints of the language
used in the section. One of the primary objects of the Act is to promote orderly
collective bargaining. Section 64(1)(b) gives expression to this object by
requiring written notice of the commencement of the proposed strike. The
section's specific purpose is to give an employer advance warning of the proposed
strike so that an employer may prepare for the power play that will follow. That
specific purpose is defeated if the employer is not informed in the written notice in
exact terms when the proposed strike will commence".
These observations apply with equal force to the notice in the present matter. I
should add that the Labour Appeal Court in this decision was influenced by the
fact that the Constitution itself contains a guaranteed and constitutionally
protected right to strike. There is no constitutionally protected right to lockout.
[13] In the circumstances I am of the view that the applicant has made out a
case for the interdictory relief claimed. The applicants go further, however. They
claim payment of wages for the period that they have been locked out. Ms
Ikaneng in essence abandoned this relief on the basis that the founding affidavit
contains no information whatsoever concerning the duration of the lockout or the
wages allegedly lost by the applicants.
[14] In the circumstances I grant an order in the following terms:
1. Interdicting and restraining the respondent from locking out the second and
further applicants.
2. Costs of this application.
________________
G J MARCUS
ACTING JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
DATE OF HEARING: 7 JUNE 1999
DATE OF JUDGMENT: 7 JUNE 1999