IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO: C283/99
In the matter between:
First Applicant
COLIN ABRAHAMS & OTHERS Second and Further Applicants
and
Respondent
Date of hearing: Thursday, 30 March 2000
Date of judgment: Friday 31 March 2000
Representation: For the Applicants, Mr A Steenkamp of Cheadle Thompson & Haysom
For the Respondent, Ms J Myburgh of Jan S De Villiers & Son
___________________________________________________________________
JUDGMENT
___________________________________________________________________
ARENDSE AJ:
1.This dispute was referred to this Court in terms of section 9(4) of the
Labour Relations Act, 66 of 1995, as amended (“the Act”), the CCMA
having attempted unsuccessfully to resolve the dispute through
1
conciliation as required by section 9(3) of the Act.
2.The dispute concerns the payment by the respondent of a R200,00 Pick‘nPay
voucher to those of its employees in its operations division who did not
participate in the strike which took place from 3 December to
15 December 1998. The applicants contend that such a payment
contravenes section 5(1) and/or 5(3) of the Act.
Section 5(1) and (3) provide as follows:
“(1) No person may discriminate against an employee for exercising any
right conferred by this Act ...
(3) No person may advantage, or promise to advantage, an employee or a
person seeking employment for that person not exercising any right
conferred by this Act for not participating in any proceedings in terms
of this Act. However, nothing in this section precludes the parties to
a dispute from concluding an agreement to settle that dispute” .
3.Section 9(1) of the Act provides that if there is a dispute about the
interpretation or application of any provision of Chapter II (which
deals with freedom of association and general protections), any party to
the dispute may refer the dispute in writing to (in this case) the CCMA.
4.Section 10 of the Act provides that in any proceedings in this Court (a)
any party who alleges that a right or protection conferred by Chapter II
has been infringed must prove the facts of the conduct; and (b) the
party who engaged in that conduct must then prove that the conduct did
not infringe any provision of Chapter II.
5.The parties did not lead any oral evidence but handed up a statement of
agreed facts. The salient facts are the following:
5.1 The respondent employs approximately 200 employees, 142 of whom are
employed in the respondent’s operations (production) department.
5.2 From 3 December to 15 December 1998 (nine working days in all),
approximately 60 employees in the operations division of the respondent,
all members of the first applicant, participated in a protected strike.
5.3 The strike ended when the first applicant and respondent agreed, in
proceedings held under the auspices of the CCMA on 15 December 1998,
that all of first applicant’s members in job grades 1A 2B would be
granted a wage increase of 7.5% with effect from 1 October 1998. The
increase was applied by respondent also to nonmembers in the bargaining
unit.
5.4 The 82 nonstriking employees in the operations division maintained
production at a level sufficient to enable the respondent to commence
its annual shut down on 16 December 1998 with the customary level of
product in stock.
5.5 Towards the middle of February 1999, those employees in the operations
division who had not participated in the strike, received a
R200,00 Pick‘nPay voucher.
5.6 The respondent’s reason for giving the vouchers to the nonstriking
employees was to reward them for their hard work ( “going the extra
mile”) during the strike in December 1998.
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5.7 The first applicant challenged the respondent’s allocation of the
vouchers stating that such allocation infringed the Labour Relations Act
66 of 1995, as the vouchers served as a reward for not participating in
the strike and/or as an incentive not to strike in future.
5.8 The respondent denied that the allocation of the vouchers was intended
or had the effect of discriminating unfairly against strikers or
disregarding the right of first applicant’s members to strike.
5.9 At meetings held between the first applicant and respondent on 17 and
18 February 1999, the parties could not reach agreement and the dispute
was referred to the CCMA.
5.10 Conciliation was unsuccessful and a certificate reflecting the failure
to resolve the dispute was issued on 7 May 1999.
In addition, and before commencing to hear argument, there was agreement
in regard to the following aspects:
i)There is a recognition agreement formalising the collective bargaining
relationship between the first applicant and the respondent.
ii)The first applicant is the sole collective bargaining agent for its
members in the category 1A 2B in the operations department.
iii)There were trade union members (at least one) who were not on strike in
December 1998 and who received the Pick‘nPay voucher.
iv)Production resumed on the 4 th January 1999.
v)82 of the respondent’s employees worked overtime and at weekends during the
strike and they were paid. The overtime work was in excess of overtime
work for the corresponding period in the previous year.
vi)The voucher payment to the 82 workers amounted to R16 400,00 whereas the
wages lost due to the strike amounted to R69 000,00. The overtime
payments to the 82 workers amounted to R46 000,00.
vii)The collective bargaining relationship between the first applicant and
the respondent can be described as “sound”.
viii)The strike was the first strike at the respondent’s plant.
ix)The payment of the vouchers created tension between management and the
first applicant. Trade union membership has grown from 60 to 80. (I
was however specifically requested not to read anything into this
increase in membership as the parties were unable to agree what caused
the increase in membership).
x)The “exercising of any right” referred to in section 5(1) of the Act is a
reference to the exercise of the right to strike.
6.Mr Steenkamp, who appeared for the applicants, contended that the
respondent contravened section 5(1) and/or (3) of the Act by virtue of
the fact that the respondent had paid to the nonstrikers the R200,00
Pick‘nPay voucher and that in this way the respondent “discriminated”
against the strikers (all of whom were members of the first applicant)
5
for exercising their right to strike conferred by the Act. In the same
way, he argued, the respondent had advantaged the nonstrikers in
exchange for them not exercising their right to strike conferred by the
Act. The mere fact that the respondent differentiated between strikers
and nonstrikers in this way, constitutes discrimination as contemplated
by section 5(1) of the Act and is sufficient for this Court to find that
the respondent contravened section 5(1) and (3) of the Act. The effect
of the payment of the R200,00 voucher, Mr Steenkamp submitted, was that
those who did not strike were rewarded for doing so, and those who did
strike, were penalised for doing so. This, he contended, had the effect
that the strikers were deterred from striking in future; conversely
those who did not strike, were encouraged not to go on strike in future.
Indeed, he argued, the respondent’s conduct was the more reprehensible
in that the strike was a successful one and the benefits of the salary
increase demanded by the first applicant, was conferred also upon the
nonstrikers. The strike was therefore selfevidently functional to
collective bargaining and the fact that the respondent was now seeking
to influence the outcome of that collective bargaining process by
rewarding nonstrikers, is an act of discrimination prohibited by
section 5(1) and (3) of the Act.
7.Ms Myburgh, who appeared for the respondent, argued that the payment of the
R200,00 voucher was simply a payment to those who did not strike; who
had worked during the strike; and who had “gone the extra mile” . This
payment was for the “extra hard work” done by the nonstrikers. They
had ensured the continued viability of the operations department by
keeping production going and had ensured that the respondent could
keeping production going and had ensured that the respondent could
commence its annual shut down on 16 December 1998 with the customary
level of product in stock. The respondent had no ulterior motive in
making the R200,00 payment over to the nonstrikers. There was no
intention on the respondent’s part to secure an unfair advantage over
the union or for that matter for it to undermine the first applicant or
its role as the collective bargaining agent on behalf of its members
employed in the operations department. She submitted that the
respondent proved that its conduct did not infringe either section 5(1)
or (3) of the Act in that the respondent’s reason for giving the
vouchers to the nonstriking employees was to reward them for their hard
work during the strike in December 1998 nothing more, nothing less.
The respondent, she submitted, was justified in rewarding the non
strikers for their hard work based purely on business and commercial
considerations. She submitted that there was nothing unfair or
discriminatory about the respondent’s conduct.
8.Both Ms Myburgh and Mr Steenkamp accepted that the act of discrimination
contemplated by section 5(1) must involve some degree of “unfairness”.
They differed in regard to what this “unfairness” entailed. Mr
Steenkamp submitted that section 5(1) should be strictly construed, i.e.
the mere fact that the respondent’s conduct differentiated between
strikers and nonstrikers is sufficient for the prohibition to come into
play. Ms Myburgh submitted that something more or additional was
required to be shown by the applicants. In other words, evidence must
be adduced by the applicants to show that the employer’s conduct did not
only discriminate (as in differentiate) between strikers and non
strikers, but that it also was unfair, unjustified and was done for an
ulterior purpose.
9.In regard to section 5(3), Mr Steenkamp argued that the respondent, by
giving the nonstrikers a voucher of R200,00, gave them an “advantage”
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(meaning a “benefit, bonus or an added extra” ) and that this “advantage”
was given to each of the nonstrikers in exchange for them not
exercising their right to strike contained in section 64 of the Act.
This, he contends, is supported by the fact that the respondent
allocated vouchers to nonstrikers and not to employees who participated
in the strike, including the individual applicants.
Ms Myburgh, by contrast, argued that it is not the advantaging of other
employees per se which is proscribed, but the advantaging “in exchange
for” those employees not striking. What is required therefore, is legal
causation. She submitted that whilst the applicants may be able to show
factual causation, legal causation is absent where (as in this case),
the agreed proximate cause was the beneficiaries’ hard work. Put
another way, the quid pro quo (or “advantage”) was the payment by the
respondent of a voucher of R200,00 in return for hard work performed by
the nonstrikers. She submitted further that the words “advantage or
promise to advantage” clearly imply that there should be a lasting
advantage or favour. In this instance, the only “advantage” was of an
ephemeral nature.
10.In applying the Act, this Court is enjoined to interpret its provisions
(a) to give effect to its primary objects; (b) in compliance with the
Constitution; and (c) in compliance with the public international law
obligations of the Republic (section 3(a)(b) and (c) of the Act).
Section 1 provides that the purpose of the Act is, inter alia , to
advance economic development, social justice, labour peace and the
democratisation of the workplace by fulfilling the primary objects of
democratisation of the workplace by fulfilling the primary objects of
the Act which are, inter alia , to provide a framework within which
employees and their trade unions, employers and employers’ organisations
can collectively bargain to determine wages, terms and conditions of
employment and other matters of mutual interest, and also to promote
orderly collective bargaining and the effective resolution of labour
disputes (section 1 of the Act).
11.It is wellestablished in our labour law (confirmed in many cases) that
collective bargaining is the preferred method of dispute resolution
involving employees and employers. Indeed, the right to engage in
collective bargaining is now entrenched in our Constitution (section
23(5) of the Constitution). The Act regulates collective bargaining.
Our Constitution also entrenches the right to strike (section 23(2)(c)
of the Constitution). In this regard too, it is wellestablished in our
law (and it is also internationallyaccepted and recognised by ILO
conventions and recommendations) that the right to strike is a necessary
(and important) corollary of collective bargaining. In fact, that
proposition or principle is no better illustrated than by the facts of
this case.
The first applicant and the respondent were locked in a wage dispute.
They deadlocked and the first applicant called upon their members
employed in the operations department to go out on strike (which was in
compliance with the Act). The first applicant’s members heeded the call
to strike (except for at least one of its members employed in the
operations department) and the strike lasted for nine days resulting in
the respondent agreeing to grant a wage increase to all those employed
in job grades 1A 2B who work in the operations division of the
respondent. Albeit that the wage agreement was apparently brokered by
the CCMA, it seems that the strike served its purpose, i.e. as a
the CCMA, it seems that the strike served its purpose, i.e. as a
corollary to collective bargaining which had failed to produce an
9
agreement in the first place. Indeed, the wage increase was extended
also to those employees who are not members of the first applicant, the
socalled “ freeriders”.
12.In interpreting and applying section 5(1) and (3) of the Act, it is trite
that one must have regard to the context in which it is alleged the
violations occurred. It is not in dispute that the act of
discrimination took place in the context of a protected strike.
Similarly, the advantage allegedly given by the respondent was done in
the context of a protected strike. In other words, for not striking
(legally), the respondent paid to the nonstrikers a sum of money. The
sine qua non for the payment of the R200,00 voucher was not so much the
hard work performed by the nonstrikers, but the fact that the non
strikers did not go on strike and therefore maintained production at a
level sufficient to enable the respondent to commence its annual shut
down on 16 December 1998 with the customary level of product in stock.
This must be the case since the nonstrikers were otherwise remunerated
for overtime work and working weekends in the sum of R46 000,00. Put
another way, the nonstrikers did nothing extraordinary to warrant
additional or extra payment other than that provided for in their
service contracts. Indeed, there was otherwise no other rational or
objective basis on which the additional R200,00 was paid to the non
strikers other than what was described by the respondent as thanking the
nonstrikers for their “hard work, above the call of duty, during our
industrial unrest in December last year” . Moreover, in answer to a
question by the Court, Ms Myburgh confirmed that there is no practice
question by the Court, Ms Myburgh confirmed that there is no practice
whereby the respondent rewards its employees for hard work done other
than by payment of the ordinary remuneration, including overtime
payments from time to time.
13.The words “discriminate against” is described in the Concise Oxford
Dictionary (10 th Ed) to mean “make an unjust distinction in the treatment
of different categories of people, especially on the grounds of race,
sex or age” . Within the constitutional context “discrimination” denotes
a decision that “has the potential to impair the fundamental human
dignity of persons as human beings or to affect them adversely in a
comparably serious manner” : Harksen v Lane NO & Others 1998 (1) SA 300
(CC) 322 (para 47) . In that case discrimination under section 8 of the
interim Constitution (the equality clause) was held to be actionable
only if it is unfair. Brassey in his book Employment and Labour Law Vol
3: Commentary on the Labour Relations Act (Juta) at page A2:8 writes
that it is enough that the discrimination should be based on the
exercise of rights conferred by the Act but it is must nevertheless be
unfair.
Indeed, in argument before me, both Mr Steenkamp and Ms Myburgh agreed
that the act of discrimination must be “unfair” to constitute a
contravention of section 5(1) of the Act. They were also ad idem that
the exercise of the right referred to in section 5(1) refers to the
right to strike conferred by section 64 of the Act.
14.Brassey writes in his book at page A2:9 that a contravention of section
5(1) of the Act comprises two elements: discriminatory conduct that is
actuated by an elicit reason. For example, he says, an employer commits
no breach of the section by dismissing a union member; the breach exists
only if the dismissal was actuated by his membership of the union.
Indeed, he writes, cases of mixed motive present considerable problems.
11
He refers for example to the victimisation provisions of the previous
Acts where the courts sought the effective cause of the act and thus
gave effect to the dominant motive of the employer as was the case in
Wilson v R 1948 (1) PH K.9 . (This was a dismissal case where the Court
held that the proper test is whether the belief or suspicion that the
employee has made a complaint about wages or conditions of employment,
in the mind of the employer was the effective cause of the dismissal.
Brassey then suggests that “it seems likely that the approach to this
provision [section 5(1)] will be the same” .
Regrettably, I disagree with the learned author. Firstly, the Wilson v
R case ( supra) was a dismissal case which concerned the test to be
applied in deciding whether an employer has contravened section 66(1)(a)
of the Industrial Conciliation Act No.36/1947 and whether the belief or
suspicion in the mind of the employer was the effective cause of the
dismissal of the employee. Section 66 under that Act and subsequently
(and more recently) under the Labour Relations Act of 1956 was a penal
provision which required a restrictive interpretation. By contrast, the
express purpose of the (current) Act is to decriminalise conduct in
contravention of the Act. Secondly, the omnibus unfair labour practice
remedy of the previous Act is no more. That universal regulator of
collective relations, from recognition to the nuances of good faith
bargaining, has been replaced under the (new) Act by a set of provisions
both more explicit and economical. They begin with organisational
rights, move through collective agreements, bargaining councils and
workplace forums, and end with new rules on the exercise of economic
workplace forums, and end with new rules on the exercise of economic
power, including provision for protection for legal strikes.
Importantly, the Act does not impose a duty to bargain upon employers
but does put in place (very firmly) the support structures for union
recognition by providing a set of organisational rights for qualifying
organisations. Moreover, the Act in section 64, provides for the right
to strike. In essence, the Act now codifies the fundamental philosophy
of the old Act that collective bargaining is the means preferred by the
legislature for the maintenance of good labour relations and for the
resolution of labour disputes and moreover that the strike weapon is an
essential and integral element of collective bargaining. (See NUM v
Ergo (1991) 12 ILJ 1221 (A) at 1236J1237F ).
Thirdly, and very importantly, it is now self evident that the
provisions of the Act should be read in a constitutional context. Its
provisions in this regard are clear ( cf sections 1(a) and 3(b) ; See
Johnson & Johnson (Pty) Ltd v Chemical Workers Industrial Union (1999)
20 ILJ 89 (LAC) at para 22 ). Thus, in applying the Act, this Court must
interpret its provisions not only to give effect to its primary objects,
in compliance with the Constitution, but also it must comply with the
public international law obligations of the Republic (section 3(a), (b)
and (c) of the Act). One of the primary objects of the Act is to give
effect to the obligations incurred by the Republic as a member state of
the international labour organisation (section 1(b)) of the Act). In
this regard also, one must point out that whereas under the unfair
labour practice regime, the courts had to interpret and give effect to
the intention of the lawgiver by (often) convoluted and complex routes,
by, for example, reference to ILO conventions and recommendations, the
situation currently is that the Act expressly incorporates such
instruments by reference. It can now be taken for granted that the
instruments by reference. It can now be taken for granted that the
conduct of employers and their organisations and employees and their
13
trade unions, will be judged according to the Constitution and according
to ILO standards.
15.I revert to an analysis of section 5(1) of the Act. In determining
whether differentiation amounts to unfair discrimination under section
8(2) of the interim Constitution, the Constitutional Court held that
this requires a two stage analysis. Section 8(2) of the interim
Constitution provided as follows:
“No person shall be unfairly discriminated against, directly or
indirectly, and, without derogating from the generality of this
provision, on one or more of the following grounds in particular: race,
gender, sex, ethnic or social origin, colour, sexual orientation, age,
disability, religion, conscience, belief, culture or language ...” .
(The equality clause in the current Constitution is now found in section
9 thereof). In Harksen v Lane NO & Others 1998 (1) SA 300 (CC) at para
46, the Constitutional Court stated that the first enquiry was whether
the differentiation amounts to “discrimination” and, if it does,
whether, secondly, it amounts to “unfair discrimination” . At para 48 of
that case, the Constitutional Court said that the question whether there
has been differentiation on a specified ground (such as race or gender)
or an unspecified ground, must be answered objectively. If the answer
is in the affirmative, then it is necessary to proceed to the second
stage of the analysis to determine whether the discrimination is
“unfair”. In the case of discrimination on a specified ground, the
unfairness of the discrimination is presumed, but the contrary may still
be established. In the case of discrimination on an unspecified ground,
the unfairness must still be established before it can be found that a
breach of the equality clause has occurred. At para 50 of the Harksen
case ( supra), the Constitutional Court said that what the specified
grounds (such as race or gender) have in common is that they have been
used (or misused) in the past (both in South Africa and elsewhere) to
categorise, marginalise and often oppress persons who have had, or who
have been associated with, these attributes or characteristics. These
grounds have the potential, when manipulated, to demean persons in their
inherent humanity and dignity. There is often a complex relationship
between these grounds. In some cases they relate to immutable
biological attributes or characteristics, in some to the associational
life of humans, in some to the intellectual, expressive and religious
dimensions of humanity and in some cases to a combination of one or more
of these features. The temptation to force them into neatly self
contained categories should be resisted. The Court went on to
say that section 8(2) of the interim Constitution (now section 9(3) and
(4) of the Constitution) seeks to prevent the unequal treatment of
people based on such criteria which may, amongst other things, result in
the construction of patterns of disadvantage such as has occurred only
too visibly in our history. I mention this because it is important when
having regard to the history of the development of labour law in this
country. Our labour law is relatively young. For many decades the
labour laws blatantly discriminated on the grounds of race. Recognition
of (black) trade unions was a battle only recently won. In the process,
this battle or struggle took its toll; the lives of many workers and
this battle or struggle took its toll; the lives of many workers and
trade union officials were lost. The courts resisted progress for many
decades. Even after the 1956 Act was amended, the courts found reason
to deny black workers and their unions rights we now take for granted.
15
The rights found in our Constitution and in the Act are hardearned and
welldeserved. The right to organise, the right to engage in collective
bargaining, and the right to strike are priceless.
My observations are welldocumented elsewhere and I need cite no
authority for it.
16.This Court has no hesitation in embracing, and concurring with, the
remarks made by Justice Goldstone in the Harksen case ( supra). Equally,
his remarks at para 51 where he states that dignity is referred to as an
underlying consideration in the determination of unfairness:
“The prohibition of unfair discrimination in the Constitution provides a
bulwark against invasions which impair human dignity or which affect
people adversely in a comparably serious manner ...
...In the final analysis, it is the impact of the discrimination on the
complainant that is the determining factor regarding the unfairness of
the discrimination...” .
17.In order to determine whether the discriminatory factor has impacted on
complainants unfairly, various factors must be considered said Justice
Goldstone. These would include firstly, the position of the
complainants in society and whether they have suffered in the past from
patterns of disadvantage, and whether the discrimination in the case
under consideration is on a specified ground (such as race or gender) or
not; secondly, the nature of the provision or power and the purpose
sought to be achieved by it; and thirdly , with due regard to (a) and (b)
above, any other relevant factors, the extent to which the
discrimination has affected the rights or interests of complainants and
whether it has led to an impairment of their fundamental human dignity
or constitutes an impairment of a comparably serious nature ( Harksen,
supra at para 52 ). If the discrimination is held to be unfair then the
equality provision would be violated and then one will proceed upon the
final leg of the enquiry as to whether the provision can be justified
under the limitations clause (section 36).
18.In my view, there is much to be said in attempting to analyse section 5(1)
and (3) of the Act along the same lines as that followed in the Harksen
case, supra, and in Prinsloo v Van der Linde & Another 1997 (3) SA 1012
(CC) at para 20 .
19.One is however assisted somewhat by the provisions of section 10 of the
Act which provides in subsection (a) that in proceedings before this
Court a party who alleges that a right or protection conferred by
Chapter II has been infringed must prove the facts of the conduct; and
(b), the party engaged in that conduct must then prove that the conduct
did not infringe any provision of this Chapter. In this matter, the
facts have been agreed and it is indeed common cause that following a
lawful strike in December 1998, the respondent employer paid to the non
strikers (including at least one union member) the sum of R200,00. The
applicants allege that the employees’ right to strike conferred by
section 64 of the Act has been infringed thereby. Section 10(b) of the
Act then provides that the party engaged in that conduct, i.e. the
respondent in this case, must then prove that the conduct did not
infringe any provision of Chapter II.
20.In my view, where a person (such as the respondent employer in this case)
17
discriminates against employees (such as the individual applicants) for
exercising their right to strike which is conferred by this Act, then
the unfairness of that discrimination is presumed although the contrary
may still be established. In this regard it is analogous to
discrimination on one of the grounds specified in the Constitution, the
unfairness of which is presumed until the contrary is established
(Harksen supra at para 48 ). In my view therefore it is not necessary at
the section 10(a) stage of the proceedings in this Court, for the party
alleging the infringement to prove, for example, that the discriminatory
conduct was or is actuated by an illicit reason or by an ulterior motive
on the part of the respondent employer. This approach, with due respect
to Brassey, avoids the cases of socalled mixed motive which he refers
to in his book at page A2:9 . This approach also, with due respect to Mr
Steenkamp’s argument, avoids me having to get into a debate about
whether section 5(1) (and (3) for that matter) should be restrictively
applied or interpreted. In other words, in my view, once it is
established that there was discrimination against an employee for
exercising any right conferred by this Act, then it must be presumed
that such discrimination was unfair, until the contrary is established.
21.The respondent avers that the R200,00 voucher was paid to the nonstrikers
purely for the hard work they performed during the strike and for “going
the extra mile” . I am not persuaded that by doing so, the respondent
did not infringe either section 5(1) or (3) of the Act. Brassey
suggests that section 10(a) and (b) mean that it is for the applicant to
prove the objective, or external facts on which the cause of action is
based, and if the applicant does so, then the respondent must
based, and if the applicant does so, then the respondent must
demonstrate that there was no such mental intent to bring the respondent
within the ambit of the section. This entails an enquiry into the
conduct constituting discrimination and the motivation behind it. On
the first aspect the aggrieved employee would bear the onus of proof, on
the second it would rest on the employer (see Brassey at page A2:17 ).
In this regard, I have already indicated that the objective or external
facts on which the cause of action is based is indeed common cause and
that it remains for the respondent to prove that it did not infringe
section 5(1) or (3).
22.The reasons why I say that the respondent did not prove that its conduct
did not infringe either section 5(1) or (3) of the Act are:
21.1 The strikers embarked on a legal and legitimate strike sanctioned by the
Act which had as its purpose to compel the respondent to accept its wage
demands.
21.2 The strike had the effect that the pressure applied by the union and its
striking members compelled the respondent to comply with its wage
demands.
21.3 There was a clear correlation between the strike and the failure by the
parties to agree on a wage increase during normal collective bargaining
negotiations.
21.4 The respondent attempted (apparently successfully) to counter the strike
by requesting the nonstrikers to work overtime and over weekends and
for doing so, the nonstrikers were paid overtime at time and a third,
time and a half or double time, whichever was applicable. This cost the
19
respondent R46 000,00. Compare this with the R69 000,00 which was lost
by the strikers in the form of wages.
21.5 There is neither a term or condition of employment prevailing at the
respondent company nor is there a practice that employees are
remunerated for work done (or well done for that matter) over and above
the normal contractual entitlements. In the context of this case, the
respondent deviated from its normal practice by paying the additional
R200,00 to the nonstrikers. The payment of the R200,00 voucher will
create some doubt (at the very least) in the minds of both strikers and
nonstrikers in regard to their future participation in a strike. So
much, Ms Myburgh was constrained to concede during her argument. Some
strikers may say that to strike is pointless because the benefit of it
is conferred also upon nonstrikers, and moreover the nonstrikers get
something “extra” in any event if they work during the strike. The non
strikers may say that their decision not to strike was vindicated
because firstly, they got what the strikers wanted in any event, i.e. a
higher wage, secondly, they received additional remuneration in the form
of overtime payment, and thirdly, they were rewarded for working during
the strike in the form of the R200,00 voucher. There can (at the very
least) be little doubt that the payment of the R200,00 would affect or
influence a union member’s decision whether or not to strike in future.
In my view, the infringement must be regarded in a very serious right
given the fundamental nature of the right infringed. If employers, in a
protected strike context, are allowed to pay incentives, rewards or
bonuses to nonstrikers albeit that they are dressed up as “innocent”
rewards for “hard work” then there is a very real danger that that Holy
rewards for “hard work” then there is a very real danger that that Holy
Cow called collective bargaining, may be undermined or compromised in
the process. Indeed, in my view, in the context of a legal strike,
payment of any reward, incentive, or bonus should be strictly
prohibited. Such payment is unnecessarily provocative and fuels an
adversarial approach to collective bargaining.
17.6 The first applicant and the respondent have a ‘stable” collective
bargaining relationship. It is common cause between the parties that
the payment of the R200,00 voucher caused “tensions” in the
relationship. The purpose of the Act is to advance, inter alia , labour
peace and the democratisation of the workplace by fulfilling one of the
primary objects of the Act which is to promote, inter alia , orderly
collective bargaining. The respondent’s conduct in paying the R200,00
voucher clearly (at the very least) threatened labour peace. In my view
the effect was to influence both strikers and nonstrikers’ in the
exercise of their right to decide for themselves (in future) whether to
strike or not to strike in support of the first applicant’s demands.
Indeed, the payment of the R200,00 was a highly adversarial move on the
part of the respondent. It is apparent from the minutes of the meetings
held in February 1999 (prior to the referral by the first applicant of
the dispute to the CCMA on 23 February 1999) that tensions ran high and
that there was a threat to the labour peace prevailing at the workplace.
Fortunately, the dispute resolution provisions in the Act triumphed when
the matter was defused by it being referred to the CCMA initially, and
now to this Court.
23.I conclude therefore that the respondent discriminated against the
strikers (members of the first applicant) for exercising their right to
strike conferred by this Act and that by doing so, the respondent
infringed section 5(1) of the Act.
infringed section 5(1) of the Act.
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24.Although I do not have to do so, I nevertheless find that for the same
reasons which I set out above, that section 5(3) of the Act was also
infringed by the respondent paying to the nonstrikers the sum of
R200,00 in February 1999. The right to strike is a right that cannot be
waived unless of course there is an agreement between a trade union
party and an employer party which regulates the issue. In the context
of this case however, there can be no justification for giving rewards
to nonstrikers because they refrained from exercising their statutory
right to strike. SACCAWU v OK Bazaars (1929) Ltd (1995) 16 ILJ 1031 (A)
which was decided under the 1956 Act, provides a classic example of such
a case, concerned as it was with the nonpayment of a customary, but
discretionary, annual bonus to employees who had taken part in a legal
strike during the year in question. In this regard, I agree with
Brassey (at page A2:1 ) that today, it seems, such a decision would
contravene the present section since section 64 confers on employees the
right to strike. In this matter, the facts speak for themselves, and
that is that the nonstrikers were paid a benefit or a reward of R200,00
“in exchange” for them not having exercised their right to strike
conferred by the Act.
25.As to the relief sought, the applicants request compensation for each
individual applicant, equivalent to the voucher given to the non
strikers, together with costs of suit. In regard to the costs of this
matter, it was agreed between Ms Myburgh and Mr Steenkamp that each
party should pay its own costs having regard to the nature of the
dispute, the relative novelty of the point argued before this Court, and
dispute, the relative novelty of the point argued before this Court, and
moreover, having regard to the sound collective bargaining relationship
which exists between the first applicant and the respondent. I agree
that this is a sound approach to the issue of costs and accordingly, I
make no order as to costs.
26.In regard to the substantive relief sought however, there are
difficulties. It seems to me that were I to grant the applicants’
request, then I would, in effect, compound or condone the illegitimate
conduct of the respondent. Quite simply, two wrongs do not make a
right. Having said that, however, the respondent also needs to be
censured for infringing section 5(1) and (3) of the Act. This Court’s
powers are set out in section 158(1) of the Act. In this regard, Ms
Myburgh proposes that should I find the respondent’s conduct to have
amounted to an infringement of section 5(1) and (3) of the Act, then
this is not a case where substantive relief would be appropriate and
that rather a declaratory order coupled with an order prohibiting
repetition, would be sufficient. I am inclined to agree with this
proposal and accordingly, I make the following order:
(i) It is declared that the respondent engaged in conduct that infringed
section 5(1) and (3) of Chapter II of the Act;
(ii) The respondent is prohibited from engaging in such conduct with
effect from the date of this order;
(iii) There is no order as to costs.
________________________
ARENDSE AJ
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31 MARCH 2000