IN THE LABOUR COURT OF SOUTH AFRICA
CASE NO J1060/00
In the matter between:
SAMANCOR LIMITED Applicant
and
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA (NUMSA) First Respondent
THE INDIVIDUALS STIPULATED
IN ANNEXURES "A" TO "C" Second to Further Respondents
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
JUDGMENT
ÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄÄ
JAMMY AJ
1. On 18 March 2000, a rule nisi was issued by this Court pursuant to an urgent
application brought by the Applicant on that date. In terms of that order the
First Respondent and the Second to Further Respondents were interdicted from
participating in, promoting or inciting an unprotected strike, with certain
ancillary relief to the Applicant relating to the protection of the Applicant's
premises, its employees and its business operations.
2. The First Respondent anticipated the return date and it was eventually
extended to 5 May 2000.
3. On that date the Applicant sought an order confirming the rule nisi with costs.
Submissions were addressed to this Court by Counsel for the Applicant and the
Respondents respectively on the basis of comprehensive Heads of Argument
filed by each of them. The application was supported by what Adv P Pauw, for
the Applicant, accurately referred to as a voluminous volume of papers.
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4. Counsel appear however to be ad idem regarding the crisp issues for
determination by this Court, although they are differently articulated. The
central issue, Mr Pauw submits, is whether there is a legally binding collective
agreement regulating the issue upon which the proposed strike action was to
take place. If this is so, as the Applicant submits is the case, that strike would
be unlawful and unprotected on the basis of the relevant provisions of s65(1)
(a), (b) and (c) and of s65(3)(a)(i) of the Labour Relations Act 1995 ("the Act").
The further question for determination submitted by Adv J G Van de Riet for the
Respondents, is whether, if the proposed strike is found to be protected in
terms of the Act, there is a valid basis for the Applicant's alleged apprehension
of unlawful conduct by the individual Respondents in the course of their
participation in it.
5. The sequence of what the Applicant contends were collective agreements, was
reviewed by Mr Pauw. During May 1996 the Applicant and a number of
representative trade unions, including the First Respondent, concluded a
"Framework Agreement for Collective Bargaining on Divisional Level" ,
which was stated to be in respect of three divisions of the Applicant's business,
one of which was its chrome division. Envisaged in that agreement was the
future negotiation and conclusion of collective agreements applicable to the
respective divisions and the agreements reviewed by Mr Pauw and relevant to
this dispute are those negotiated by the Divisional Bargaining Forum for the
chrome division.
6. The 1996 agreement included definitions of a dispute of right and a dispute of
interest. A dispute of right was defined -
As to the interpretation or application of any term of this
agreement or any agreement concluded in terms of this agreement, or
any dispute about the dismissal of any member of the union or any
unilateral change and condition of service.
unilateral change and condition of service.
Any dispute as to whether information demanded for the
purposes of wages and conditions of service is relevant and whether
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or not such information shall be disclosed."
A dispute of interest is defined as -
A dispute pertaining to wages and conditions of employment and
the failure of collective bargaining."
The agreement further provided in a schedule titled: Collective Bargaining
Agreement on Divisional Level, a Peace Obligation prohibiting outright
industrial action in respect of a dispute of right and precluding industrial action
in respect of a dispute of interest concerning any matter in issue which is
the subject matter of this agreement, or any agreement concluded in
terms of this agreement," until the dispute resolution process defined in the
agreement or, where applicable, the relevant procedures of the Act, had been
exhausted,
7. I do not propose, for the purposes of this determination, to review other than
by way of broad reference, the substance and sequence of the series of
agreements which followed in the course of ongoing negotiations between the
parties. An agreement regulating terms and conditions of employment at the
Applicant's Middelburg and Krugersdorp plants, within its chrome division, was
concluded between the Applicant and a number of trade unions including the
First Respondent and envisaged a grading model which would eventually be
implemented and in terms of which a new grading structure incorporating a
proposed job reconstruction programme, would be established. Recorded
therein was the agreement of the parties to the framework and principles of
that programme and to "general implementation principles," the "final
implementation details of which will be further discussed at working
group meetings." A short-term implementation strategy was however
defined and agreed upon.
8. In March 1997, following the resolution of a dispute which had in the interim
been declared between the parties in that regard, an agreement was reached
regarding a process to resolve further outstanding issues relating to the
regarding a process to resolve further outstanding issues relating to the
framework for the implementation of the new grading system. The merging of
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certain grades into six new grades would be implemented on a different basis
at the Applicant's Witbank plant from that obtaining at Krugersdorp and
Middelburg. A note to the agreement, in that regard, reads as follows:
"The MFC/PFC broadbanding structure remains as is currently agreed
unless agreed otherwise during future negotiations."
It is the Applicant's contention that the gravamen of that provision is that the
job grading structure which had been agreed upon at the Krugersdorp and
Middelburg plants would continue to apply at all its plants unless and until
otherwise agreed, a contention rejected by the Respondents in the pleadings.
9. On 24 April 1997 a further agreement between the Applicant and the
recognised trade unions, including the First Respondent, was concluded,
entitled "Workplace Change Agreement" , in terms of which inter alia, the
Paterson Job Grading System, consisting of nine job grades, would be collapsed
or merged into six job grades although the manner in which this had occurred
at the Witbank plant differed from the manner in which it would be
implemented at the Krugersdorp and Middelburg plants. Employees
furthermore "would have access to training, designed to improve their skills."
This would appear to have been a logical progression from the agreement of
March 1997 which preceded it.
10. It was a programme designed to implement the agreements which had been
arrived at. The Applicant's contention that substantial progress in that context
has been made at its Krugersdorp and Middelburg plants although slower at
the Witbank plant, is not contested. A three-year timeframe agreed upon in
terms of the April 1997 agreement has not yet expired.
11. The next significant agreement was signed on 29 September 1998, entitled
"The Skills Based Pay Agreement." That agreement, contended by the
Applicant to be a further collective agreement between the parties, was signed
Applicant to be a further collective agreement between the parties, was signed
by a shop steward, certain Mabogoane, expressed therein as doing so "for and
on behalf of the National Union of Metalworkers of South Africa duly
authorised." At all relevant times, the Applicant contends, this shop steward
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had held himself out as being mandated and authorised to conclude
agreements on the First Respondent's behalf and the agreement was
concluded by the Applicant, it contends, on the strength of that representation.
The shop steward had signed in the presence of a Regional Official of the First
Respondent and "this was the way agreements of this nature were normally
concluded."
12. That contention is rejected by the Respondents who contend that Mabogoane
was neither authorised as required by the First Respondent's Constitution nor
mandated by the First Respondent's members at the workplace to do so. If
Mabogoane made the representations which the Respondents allege, he had
no authority to do so. The Regional Official who was present moreover, certain
Peege, was neither "responsible for these companies nor was he familiar with
the negotiations leading to the purported agreement."
13. One year wage negotiations between the parties commenced in April 1999 and
arising therefrom, after protracted negotiation in which, the Applicant
contends, the Skills Based Bay Agreement was utilised by it as a "reference
point", the Applicant prepared a written document purporting to record the
terms of the agreement alleged to have been reached, but which the First
Respondent, in the person of its Regional Secretary, refused to sign. That
agreement, the First Respondent contended, did not reflect the full agreement
between the parties to the extent that it omitted to incorporate an agreement
to implement the Workplace Change Agreement at all plants by 1 September
1999. The Applicant's response was a denial of any such agreement and in the
result a dispute was declared by the First Respondent and eventually referred
to independent mediation in the course of which, inter alia, and in response to
a contention by the Applicant that certain of the issues in dispute were
regulated by the Skills Based Pay Agreement, the First Respondent denied the
regulated by the Skills Based Pay Agreement, the First Respondent denied the
validity of that agreement on the basis, as has been indicated. that the shop
steward who signed it had not been authorised to do so. It is common cause
that the mediation process failed to resolve the dispute referred to it.
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14. On 13 March 2000 the First Respondent issued a strike notice to the Applicant.
The strike was to commence at 07h00 on 15 March 2000 and the notice
identified the dispute upon which it would be based as a failure by the
Applicant to implement a five-grade remuneration system at all its chrome
centres by 1 September 1999 according to a broadbanding formula which was
set out. It is common cause that that strike notice was withdrawn on 14 March
by letter in which the First Respondent undertook "to comply with all internal
dispute procedures and collective agreements should our members decide to
embark on strike action."
15. Further attempts to resolve the disputed issues then ensued but these
notwithstanding, the First Respondent served a further notification of strike
action upon the Applicant on 16 March 2000. The demands upon which the
strike action, which was to commence on Monday 28 March 2000 at 06h00
would be based, were defined as the incorporation and/or conversion of certain
grades into others with stipulated minimum rates of pay. The notice continued
-
"We record that there is no collective agreement which regulates the
issue in dispute and nor is there any dispute about the interpretation
or application of any collective agreement in that -
1. the Skills Based Pay Agreement of 1998, which was signed by our
shop steward without a proper mandate or authorisation in terms of
the union's Constitution, was repudiated by the union;
2. the Skills Based Pay Agreement does not constitute a collective
agreement between the union and yourselves and we do not consider
such agreement to be binding on ourselves or our members; and
3. the Substantive Wage Agreement for the period 1999/2001
specifically records that no agreement was reached on the issue of
minimum rates of pay applicable to the five-grade structure."
The notice finally recorded that the Respondents had "complied with all the
The notice finally recorded that the Respondents had "complied with all the
applicable internal dispute procedures in accordance with s64(3)(b) of the
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Labour Relations Act 1995" and that in the circumstances, "our members'
strike action will be protected."
It was that notice and the threat of impending strike action which it contained,
which led to the proceedings now before this Court and it is the primary
question of whether there is a legally binding collective agreement regulating
the issue upon which the proposed strike action was to take place, which is the
core matter for determination. If no such collective agreement exists or is
applicable, the strike will be protected. If the existence of such an agreement
is established, the strike will be prohibited in terms of s65(1)(a) of the Act. As
has been indicated earlier moreover, there will be no right to strike if the
dispute in question is one of right and not interest.
16. It is the Respondents' contention that not only is the issue in dispute in fact
one of mutual interest but that there is no collective agreement which has the
application provided for in the limitation provisions of s65.
17. To the extent to which the Applicant relies on the agreement of 7 March 1997
and on the Skills Based Pay Agreement of 29 September 1998 as constituting
collective agreements as contemplated by the Act, this contention is rejected
by the Respondents for a number of reasons. In the first instance, they
contend, those agreements have not been, and cannot, in the absence of
further negotiations and consensus on issues falling within their ambit, be
implemented. Secondly, the issues which are the subject matter of the strike-
related demands by the Respondents are not regulated by those agreements.
Finally, the authority of the union shop steward to have signed the Skills Based
Pay Agreement is, as stated, rejected and the union and its members are
accordingly not bound thereby. I will deal with each of these grounds of
objection in turn.
18. A "collective agreement" is defined in s213 of the Act as -
objection in turn.
18. A "collective agreement" is defined in s213 of the Act as -
"A written agreement concerning terms and conditions of employment
or any other matter of mutual interest concluded by one or more
registered trade unions on the one hand and, on the other hand, -
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(a) one or more employers;
(b)..........
(c).........."
19. The verb "implement" is defined in the Longman Modern English
Dictionary as "to carry into effect." In my view, the inability, for one or
another reason, to implement the terms and conditions of a contract in that
context, does not in any way impugn the existence of the contract itself. On
the contrary, there can be no implementation unless there is something in
existence to implement.
20. That each of the agreements in the sequence thereof reviewed by Counsel was
in all material respects intended to be a collective agreement within the
statutory definition to which I have referred, is not, in my view, open to
question.
21. The strike demand of 15 March 2000 was, as I have indicated, for the
incorporation of certain grades and the conversion of others into different
grades with minimum rates of pay. The Respondents' contention that no
collective agreement exists which regulates those issues, is narrowly sourced.
That is the case, it is stated, "in that:" (emphasis added) the Skills Based Pay
Agreement of 1998 is not binding, it is in any event not a collective agreement
as contemplated by s65(3)(a) of the Act and finally, the Substantive Wage
Agreement for the period 1999-2001 specifically records, it is stated, that no
agreement was reached on the issue of minimum rates of pay applicable to the
five grade structure.
22. The full and only inference to be drawn from the structure and substance of the
strike notice therefore, is, in my view, that, irrespective of the substance of the
other agreements in the chronology thereof reviewed by the parties, if the
Skills Based Pay Agreement of 1998 is held to be a collective agreement
binding on the parties and the unresolved linking issue referred to in the
1999/2000 Wage Agreement is not the issue in dispute, the proposed strike
1999/2000 Wage Agreement is not the issue in dispute, the proposed strike
action will be unlawful and unprotected. The demands in question moreover,
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will constitute a dispute of right as opposed to a dispute of interest and would
therefore, on that basis, negate strike action in terms of the Framework
Agreement concluded in March 1996, if the basic substance thereof relates to
the interpretation or application of its terms. Those will be issues for
determination by arbitration and not industrial powerplay.
23. The Skills Based Pay Agreement, to which the First Respondent was one of five
union parties, is a brief and uncomplicated one. It provides for a common scale
of remuneration which will be applicable to the Applicant's four Chrome Alloy
Centres and which will "form the basis of the calculation of the skills based
pay." A further provision is for the payment of a skills allowance and a
separate clause, sub-headed "Implementation" reads as follows:
"3.1 The implementation of the skills based pay will commence in line
with the implementation of whole jobs as developed through the
productivity improvement programme in accordance with the
principles outlined in the Workplace Change Agreement.
This agreement forms part of the Workplace Change Agreement
and will be appended as Annexure "B"."
24. The strike notice in question, apart from the contention that it is not binding for
want of authority of the First Respondent's ostensible signatory, rejects the
agreement as not constituting a collective agreement. That contention is not
developed in the notice and is presumably "pleaded" in the alternative. The
Skills Based Pay Agreement does not bind the Respondents they submit,
alternatively, if it is found that it is binding, it is not a collective agreement
which would preclude the industrial action in question. In support of its
contentions regarding the second of these alternatives, the Respondents rely
on submissions which, in my view, do not relate to the substance of the Skills
on submissions which, in my view, do not relate to the substance of the Skills
Based Pay Agreement and the Workplace Change Agreement of which it is
expressly stated to form part, but on the allegation that the process of
development of the uniform skills based grading structure therein defined is
still being negotiated. Those factors however, in my view, do not render the
agreement any less finite in its negotiated terms. The Applicant, in its three
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chrome alloy centres, is a contracting party thereto, as is the First Respondent.
A common scale of minimum rates of pay applicable to specified job levels and
the basis of their determination is defined. A skills allowance and the manner
of its application is determined. The timing and basis of implementation are
separate issues from its material substance as are the provisions for its
variation. It is not clear to me on what basis the Respondents contend that this
written agreement is not one "concerning terms and conditions of
employment or any other matter of mutual interest" concluded between
a registered trade union and an employer.
25. The question then arises whether, if it is binding - an issue to which I will revert
later - it is an agreement which regulates the subject matter of the
Respondents' strike-related demands. By definition, it "forms part of the
Workplace Change Agreement of 24 April 1997." That agreement in turn
defines a structure of job reconstruction and development which embodies the
grading structure to which the minimum rates of pay defined in the Skills
Based Pay Agreement will apply. Significantly moreover, the dispute resolution
process prescribed in the Collective Bargaining Agreement earlier referred to is
endorsed in relation to any issue of "interpretation or implementation of this
agreement."
26. There is no doubt in my mind that that agreement, as with its adjunct, is a
collective agreement as defined in the Act. It is unnecessary, in my opinion, for
me to review in any detail the minutes of the various meetings at which the
implementation of the restructured grading system was discussed. Whilst the
timing of that implementation and the finalisation of the agreed structures in
relation to determined minimums was certainly canvassed, those issues do not
detract from the basic intention of the parties and the substance of the
detract from the basic intention of the parties and the substance of the
agreements in which that intention was recorded. They are, as I have already
stated, issues of implementation and not of substance.
27. The strike demand must of course be sourced in the initial declaration of
dispute. In its letter of 17 November 1999 that dispute is described by the First
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Respondent as "bad faith bargaining." I agree with the Respondent's
submission that its factual substance should be determined without reference
to that characterisation and that substance is unambiguously stated. The
Applicant, it is alleged, failed to implement a new five-grade structure with
effect from 1 September 1999. The strike notice is of different import. It does
not purport to relate to a failure by the Applicant to implement the new grading
system. It defines the basis upon which the Respondents require the system to
be implemented and the minimum rates of pay which are to apply thereto.
That is a different issue and in the context, as the Applicant submits, that it
seeks an amendment of what the Applicant contends was a basic structure
defined in the Skills Based Pay Agreement as read with the Workplace Change
Agreement, that is not an objective legitimately to be attained by industrial
action. Mr Van der Riet expressly submits that the Respondents' demand "is
simply that the Applicant agrees to the minimum rates in the different
Paterson grades proposed by the Respondents." To the extent to which
that is regarded by the Respondents as their entitlement, the dispute is one of
right and not interest, and constitutes a new area of confrontation which is not
susceptible to industrial action but which, in terms of the dispute procedure
defined in the Collective Bargaining Agreement, must be referred to
arbitration.
28. I turn now to the validity and binding effect of the Skills Based Pay Agreement.
Mr P Mabogoane, the First Respondent's shop steward, is alleged to have been
"unaware of the extent of the disagreement on these issues" and "not
mandated and properly authorised to sign on behalf of the union and its
members." The Regional Organiser for Krugersdorp, certain Mr Peege, had
represented it in the negotiation meeting leading to the formulation and
represented it in the negotiation meeting leading to the formulation and
conclusion of that agreement and the signatory, the shop steward Mabogoane,
had been involved in those substantive negotiations. Mr Peege at no stage
placed into question Mr Mbogoane's authority to sign the agreement, nor did
he attempt to prevent him from doing so.
29. To the extent to which the Applicant relies on a representation of authority by
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Mr Mabogoane, that representation itself was made without authority, the First
Respondent submits, and in ostensible substantiation of that contention, it
annexes to the Answering Affidavit of Mr A Mathibela, its Mpumalanga Regional
Secretary, an extract from its Constitution containing the "relevant provisions."
Reference to that annexure is however of no assistance. It provides for a
"Shop Stewards Committee" which will manage the affairs of the union "inside
their workplace." The powers and duties of that Committee include the
negotiation of agreements with employers about working conditions
"mandated to do so" by members in the place and for their conclusion and
signature after approval by the members concerned and the "Regional
Executive Committee."
30. Whatever the factual position may be as to Mr Mabogoane's authority or lack of
it, I have little doubt, on the submissions on the papers, that there was no
cause or reason at the time that the agreement was signed for the Applicant to
doubt it. The fact of the matter is that the substance of that agreement had
been determined and defined and certainly, in the ensuing meetings and
discussions between the parties, whilst issues of its implementation in
conjunction with the Workplace Change Agreement unquestionably arose,
there was nothing in the conduct of the First Respondent's representatives
which reflected upon its validity and binding effect. If Mr Mabogoane was not
in fact initially empowered to sign it, then, in my opinion, it was unquestionably
ratified by the subsequent conduct of properly authorised officials of the First
Respondent. In addition, I agree with Mr Pauw's submission that in the
circumstances which prevailed, if Mr Mabogoane was indeed theoretically
unauthorised, the First Respondent is estopped from relying on that lack of
authority as a basis of repudiation of the agreement. Mr Mabogoane's personal
authority as a basis of repudiation of the agreement. Mr Mabogoane's personal
representation of that authority was, on the face of it, not denied by either Mr
Mathibela or Mr Peege and the Applicant was entitled to rely on it.
Peri-Urban Areas Health Board v Breedt NO and another 1958(3) SA
783 T at 790.
Kerr: The Law of Agency (Third Edition).
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31. A number of disputes of fact appear to arise on the papers. They relate
inter alia to the issue of Mr Mabogoane's authority to have signed the Skills
Based Pay Agreement as well as to the necessity or otherwise, in the face of
alleged oral agreements between representatives of the parties, for the
prescribed dispute procedure to have been followed in all its defined respects.
It does not seem to me that those disputes relate to issues which, in the
context of my overall assessment of this matter, materially frustrate its
determination on the papers before me. The core issues to which I have
referred emerge clearly from the submissions pleaded and no aspect thereof,
in my opinion, requires further clarification or elucidation through oral
evidence.
32. For all of these reasons I have concluded that -
32.1 The strike-related demands contained in the strike notice of 15 March
2000 differ materially from the issues forming the substance of the declaration
of a dispute by the First Respondent on 17 November 1999.
32.2 Both the Skills Based Pay Agreement of 29 September 1998 and the
Workplace Change Agreement of which it is expressly stated to form part are
valid collective agreements which are binding upon all parties thereto.
32.3 The issues in dispute, variously described in both the dispute declaration
and the strike notice, are issues relating to the application and/or the
implementation of those agreements and not to the substance thereof and are
accordingly disputes of right, regarding which industrial action is expressly
precluded by the Collective Bargaining Agreement within the ambit of which
they were concluded.
33. The issue of the Applicant's entitlement to the protection sought by it in the
context of the interdict which it obtained was questioned by the Respondents
in the context that it purported to be justified by historical, and not prevailing
in the context that it purported to be justified by historical, and not prevailing
circumstances. The conduct of members of the First Respondent during a
period commencing in August 1998 and recurring as recently as October 1999
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appears to me to be the basis of a reasonable apprehension by the Applicant of
a perpetuation thereof in the event of further strike action by the individuals
concerned, an apprehension which appears to have been justified by events
subsequent to the launching of this application. The circumstances which
prevailed on 18 March 2000 clearly justified, as the Court then determined, the
granting to the Applicant of the interdict relief which it obtained. For all the
reasons which I have stated, the Respondents have failed to establish any
acceptable basis which would at this stage warrant the withdrawal of that
protection.
34. I accordingly make the following order:
34.1 The rule nisi issued by this Court on 18 March 2000 is confirmed.
34.2 The First and Further Respondents are ordered jointly and severally to
pay the Applicant's costs.
ÄÄÄÄÄÄÄÄÄÄÄ
B M JAMMY
ACTING JUDGE OF THE LABOUR COURT
22 May 2000
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