Transport and Allied Workers Union of South Africa v PUTCO Limited (CCT94/15) [2016] ZACC 7; (2016) 37 ILJ 1091 (CC); [2016] 6 BLLR 537 (CC); 2016 (4) SA 39 (CC); 2016 (7) BCLR 858 (CC) (8 March 2016)

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[2016] ZACC 7
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Transport and Allied Workers Union of South Africa v PUTCO Limited (CCT94/15) [2016] ZACC 7; (2016) 37 ILJ 1091 (CC); [2016] 6 BLLR 537 (CC); 2016 (4) SA 39 (CC); 2016 (7) BCLR 858 (CC) (8 March 2016)

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Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 94/15
In the matter
between:
TRANSPORT AND ALLIED
WORKERS UNION
OF SOUTH
AFRICA
Applicant
and
PUTCO
LIMITED
Respondent
Neutral
citation:
Transport
and Allied Workers Union of South Africa v PUTCO Limited
[2016]
ZACC 7
Coram:
Moseneke DCJ, Cameron J, Jafta J, Khampepe J,
Madlanga J, Nkabinde J, Van der Westhuizen J, Nugent AJ and Zondo J
Judgment:
Khampepe J (unanimous)
Heard
on:
10 November 2015
Decided
on:
8 March 2016
Summary:
Definition of lock-out — trade
union not party to bargaining council — demand — referral
of dispute for conciliation
Section 64 of the Labour Relations Act —
majoritarianism— collective bargaining — section 23 of
the Constitution
ORDER
On appeal from the Labour
Appeal Court of South Africa (hearing an appeal from the Labour
Court, Johannesburg):
1.
Condonation is granted.
2.
Leave to file supplementary written submissions is refused.
3.
Leave to file a supplementary affidavit is refused.
4.
Leave to appeal is granted.
5.
The appeal succeeds.
6.
The order of the Labour Appeal Court of South Africa is set aside and
replaced
with the following:
“
The
appeal is dismissed with costs.”
7.
The respondent is ordered to pay the applicant’s costs in this
Court including
the costs of two counsel, where applicable.
JUDGMENT
KHAMPEPE J (Moseneke
DCJ, Cameron J, Madlanga J, Van der Westhuizen J, Nugent AJ, Jafta J,
Nkabinde J and Zondo J concurring)
Introduction
[1]
The central question in this case is
whether the Labour Relations Act
[1]
(LRA) permits an employer to exclude from its workplaces, by way of a
purported lock-out, members of a trade union that were not
a party to
a bargaining council where a dispute arose and was subsequently
referred for conciliation.
[2]
This is an application for leave to
appeal against a decision of the Labour Appeal Court of
South Africa (Labour Appeal
Court) which found that the purported
lock-out of the applicant’s members was lawful despite the fact
that the trade union
was not a member of the bargaining council where
the dispute arose.
Parties
[3]
The applicant is the Transport and
Allied Workers Union of South Africa (TAWUSA), a trade union duly
registered in terms of the
LRA.  Its members comprise 26 per
cent of the employees of the respondent, PUTCO Limited (PUTCO); a
passenger bus operator
duly incorporated in terms of the company laws
of the Republic of South Africa.
Background
[4]
On 30 July 2002, PUTCO and TAWUSA
entered into a recognition agreement in terms of the LRA (recognition
agreement).  This agreement
remained in force at all material
times.  Clause 9 of the recognition agreement stipulates that
“[t]he parties recognise
that the minimum terms and
remuneration and conditions of employment in the industry are
negotiated and regulated by the South
African Road Passenger
Bargaining Council.”
[5]
The South African Road Passenger
Bargaining Council (Bargaining Council) has jurisdiction over
collective bargaining on conditions
of employment in the bus
passenger industry.  PUTCO was party to the Bargaining Council
as a member of the Commuter Bus Employers’
Organisation.
The other employers’ organisation at the Council is the South
African Bus Employers’ Organisation.
TAWUSA, the South
African Transport and Allied Workers Union (SATAWU) and the Transport
Omnibus Workers’ Union (TOWU) were
employee representatives at
the Bargaining Council.
[6]
In April 2012, a collective
agreement on wages and other conditions of employment was concluded
between the parties present at the
Bargaining Council
(2012 collective agreement).  TAWUSA, a member of the
Bargaining Council at the time, did not sign
the 2012 collective
agreement.  It is common cause that on 19 June 2012
the Minister of Labour extended the 2012
collective agreement to all
other employees and employers in the industry pursuant to section
32(2) of the LRA (the 2012 extension).
The 2012 collective
agreement was initially extended from 9 July 2012 to 31
March 2013, and then further extended to
31 July 2013.
Accordingly, the 2012 collective agreement continued to apply to
TAWUSA and its members until 31
July 2013 through the extension of
the collective agreement by the Minister in terms of section 32 of
the LRA.
[2]
[7]
In August 2012, TAWUSA terminated
its membership with the Bargaining Council.  Then, in February
2013, TAWUSA attempted to
have its membership reinstated.  It
addressed a letter to the Bargaining Council to this effect.  On
14 February 2013,
the Bargaining Council notified TAWUSA
that its Central Committee would consider TAWUSA’s
application for the reinstatement
of its membership at a meeting to
be held on 17 April 2013.
[8]
On 17 April 2013, industry wage
negotiations for 2013 having gridlocked at the Bargaining Council,
SATAWU and TOWU notified employers
that their members would be
embarking on a strike.  On 18 April 2013, before the
strike commenced, TAWUSA advised
PUTCO that its members would not
take part in the strike.  The strike subsequently commenced on
19 April 2013.
[9]
On 19 April 2013, PUTCO addressed a
notice to the Bargaining Council, TAWUSA and non-unionised employees,
notifying them that it
intended to lock out all of its employees on
Sunday, 21 April 2013 at 09h00 (lock-out notice).  The lock­out
notice read:
“
In
response to the strike notice issued, the Company hereby gives 48
hours’ notice of its intention to lock-out all employees
in the
bargaining unit
from all of PUTCO Limited’s workplaces in support of the
employer wage proposals
in the wage negotiations in the [Bargaining Council].”
[10]
On that day, TAWUSA’s general
secretary, Mr Mankge, telephoned Mr Malherbe, PUTCO’s
senior executive for corporate
services, to inquire about the
applicability of the lock-out to TAWUSA members.  In a follow up
email to Mr Mankge, Mr Malherbe
confirmed that the lock-out
notice was a response to the strike notices issued by SATAWU and
TOWU, the trade unions representing
their members at the Bargaining
Council.  In response to Mr Malherbe, Mr Mankge stated
that TAWUSA was not a member
of the Bargaining Council and was not,
therefore, a party to the dispute that resulted in the lock-out.  He
further noted
that “in the circumstances [TAWUSA] members are
not on strike”.  In a separate letter, Mr Mankge
posited
that TAWUSA members would “report for duty as normal
and expect [PUTCO] to ensure their safety” and that TAWUSA
“intends
to engage with the Employers Organisation represented
at the Bargaining Council to better the conditions of . . . [its]
members
in the bus passenger industry”.  He asserted that
TAWUSA’s members would “not sign any new conditions which

[PUTCO] seek[s] to impose by way of unlawful lock-out”, but
that TAWUSA was “readily available to meet with [PUTCO]
at
short notice to discuss [the] improvement of [TAWUSA] members’
conditions of employment”.
[11]
Mr Malherbe responded to Mr Mankge’s
email, contending that the lock­out notice complied with the LRA
and that “per
the [Bargaining Council] Constitution and the
[Bargaining Council] Main Agreement which is extended to non-members
no employer
shall be compelled to negotiate at any other level”.
[12]
On the same day, the Bargaining
Council sent a letter to TAWUSA notifying it that the Council’s
Central Committee had considered
its request of February 2013.  The
Central Committee invited TAWUSA to apply for membership in terms of
the requirements set
out in the Bargaining Council’s
constitution.
[13]
On 21 April 2013, PUTCO purported to
institute a lock-out which it claimed applied to all PUTCO employees,
including TAWUSA members.
[14]
Other than the events already
described, which are common cause, there are factual disputes between
the parties pertaining to whether
some TAWUSA members, despite its
general secretary’s assurances, were, in fact, on strike.
[3]
Litigation history
Labour Court
[15]
Aggrieved by the purported lock-out
instituted by PUTCO, TAWUSA launched an urgent application in the
Labour Court.
[4]
It sought an interdict to prevent PUTCO from maintaining the
lock-out.
[16]
The Labour Court held in favour of
TAWUSA.  It found that “a lock-out must be directed to
employees with a demand [from
the employer]”
[5]
– since no demand was made to it by PUTCO, it could not be
locked out.  It further reasoned that section 64(1)(c)
of
the LRA required trade unions to be given notice only if they were a
party to a dispute.
[6]
As it was common cause that TAWUSA was not a member of the Bargaining
Council, and thus not a party to the dispute, it could
not be locked
out.  The Labour Court granted an interim order halting the
lock-out insofar as it related to TAWUSA’s
members and awarded
costs.
Labour Appeal Court
[17]
PUTCO successfully took the matter
on appeal to the Labour Appeal Court.
[7]
That Court held that there was a demand made to TAWUSA that it had
expressly rejected.
[8]
The Court found that TAWUSA was a party to the dispute by virtue of
the interest that it had in the outcome of the negotiations
at the
Bargaining Council and the benefits it stood to reap from the
collective agreement reached there.
[9]
The Court noted that it was a minority union and the will of the
majority union would prevail during the negotiations; this
was “in
sync with the general scheme of the [LRA]”.
[10]
[18]
The Labour Appeal Court traversed
the rationale behind strikes and lock-outs.  It noted that
TAWUSA members could have joined
the strike without notice at any
time.  By parity of reasoning, lock-outs could equally be
instituted against minority trade
unions that were not party to the
Bargaining Council.  To hold otherwise “would blunt the
employer’s weapon”.
[11]
[19]
The
Labour Appeal Court concluded that the lock-out was lawful and
upheld
the appeal with costs.
[12]
In this Court
TAWUSA’s
submissions
[20]
TAWUSA maintains that section
64(1)(c) envisages locking out a party who has an interest in a
dispute, or who is directly affected
by it.  It contends that
section 64(1) does not authorise a lock-out against a trade
union and its members who are not
party to the dispute that has given
rise to the lock-out.  It further submits that the section 213
definition of lock-out
does not assist PUTCO: the definition of
lock out stipulates what a lock-out is, whereas section 64
contemplates when an employer
may have
recourse
to a lock-out.
[21]
TAWUSA emphasises that a lock-out is
defined as the exclusion from the workplace by an employer of its
employees for the purpose
of compelling these employees to accept a
demand.  There can be no dispute if there is no demand.
Furthermore, the demand
that the employer requires employees to
accede to must have been made to the employees who are being locked
out.  On the facts
of the case, there could not have been a
demand made to TAWUSA as it was not a member of the bargaining
council where the dispute
arose.
[22]
It further argues that lock-outs
against minority unions are “secondary lock­outs”,
which are not permitted by the
LRA.  Even if secondary lock-outs
were permitted, a lock-out must be related to a collective bargaining
purpose.  If
the minority union is not a part of a bargaining
council, then this purpose is not served.  TAWUSA contends that
the constitutional
right of employees to strike cannot be equated to
an employer’s statutory entitlement to lock out employees.
PUTCO’s
submissions
[23]
PUTCO argues that TAWUSA confounds
the interpretation of the procedural requirement for a lock-out with
the definition of a lock-out
in section 213.  Given that section
64(1) provides that notice to a bargaining council is deemed as
notice to all unions operating
within its jurisdiction, TAWUSA was
effectively a party to the dispute.
[24]
PUTCO further argues that there was
a dispute between itself and TAWUSA.  It relies on the manner in
which Mr Mankge responded
to the lock-out notice.
[13]
Following the lock-out notice, TAWUSA advised PUTCO that its members
refused to agree to the wage offer.  It also sought
to negotiate
separately at plant level with PUTCO and other employer organisations
that were part of the Bargaining Council.
PUTCO argued that it
had made a demand to TAWUSA inasmuch as it expected TAWUSA’s
members to accept the proposal made to
the other unions at the
Bargaining Council.  Moreover, TAWUSA’s members had a
direct and material interest in the dispute,
and could accordingly be
compelled to accept PUTCO’s demands.
Condonation
[25]
PUTCO was late in filing its written
submissions.  The delay was minimal; the submissions were filed
only one day late.
PUTCO explains that the submissions had been
faxed to TAWUSA and its attorneys on the due date, but had not been
delivered by hand.
Subsequently, the Registrar of this Court
declined to accept the filing of the written submissions because they
had not been served
on TAWUSA by hand.  The error was rectified
and the documents were filed on the following court day.  TAWUSA
suffered
no prejudice because its attorneys received the written
submissions on the due date.  It does not oppose the application
for
condonation.  Given the minimal delay and the plausibility
of the explanation proffered, I am satisfied that condonation should

be granted.
Leave to file
supplementary written submissions and supplementary affidavit
[26]
A week before the hearing, TAWUSA,
without leave from this Court, filed supplementary written
submissions.  TAWUSA asserted
that PUTCO indicated that it
intended to refer to particular government gazettes in oral
argument.  The gazettes in question
recorded certain
wage-related collective agreements concluded at the Bargaining
Council.  This, according to TAWUSA, necessitated
a response.
It accordingly filed supplementary submissions in anticipation of the
submissions to be made by PUTCO.
Prompted by these submissions,
PUTCO, a day before the hearing, filed a supplementary affidavit.
It attached the relevant
gazettes.
[27]
These submissions and the
supplementary affidavit cannot be admitted.  The parties’
actions disregard this Court’s
Rules.
[14]
Filing documents only a few days before the hearing without
attempting to seek leave of the Court is not a practice we
countenance
in any form.  There were no exceptional
circumstances that warranted the late filing of these documents.
These documents
are, in any event, unhelpful in the determination of
the matter at hand.  Accordingly, the supplementary submissions
filed
by TAWUSA and the affidavit filed by PUTCO are not admitted.
Leave to appeal
[28]
This matter triggers this Court’s
jurisdiction.  It raises a constitutional issue,
[15]
specifically in respect of the rights in section 23(1) and (5) of the
Constitution, to which the LRA was enacted to give effect.
[16]
This matter also raises an arguable point of law of general public
importance which ought to be considered by this Court.
Our
interpretation of sections 64(1) and 213 of the LRA will have an
impact beyond the parties before us.
[29]
TAWUSA has prospects of success,
especially given the existence of divergent Labour Court
opinions regarding the interpretation
of sections 64(1) and 213.
[17]
Moreover, this matter raises novel questions of law that this Court
has yet to definitively pronounce on.  It is in
the interests of
justice to grant leave to appeal.
Issue
[30]
The central issue is whether section
64(1) read with section 213 of the LRA permits an employer to lock
out members of a trade union
that is not a party to a bargaining
council where a particular dispute has arisen and has been referred
for conciliation.
Lock-outs in terms of
the LRA
[31]
A lock-out is one of the tools that
the LRA provides to an employer in order to resolve disputes between
an employer and employees.
Section 213 of the LRA defines a
lock-out as—
“
the
exclusion by an employer of
employees
from the employer’s workplace, for the purpose of compelling
the
employees
to accept a demand in respect of any matter of mutual interest
between employer and
employee
,
whether or not the employer breaches those
employees’
contracts of employment in the course of or for the purpose of that
exclusion”.
[32]
The purpose of a lock-out in terms
of section 213 is to compel employees whose trade union is party to
certain negotiations to accede
to an employer’s demand.
Its object is to end a stalemate reached as a result of an impasse in
negotiations between
employer and employee in respect of matters of
“mutual interest”.  A resolution of a dispute can be
reached only
between adversaries.  As a matter of logic, then,
there must be a dispute between an employer and employees or their
trade
union before a lock-out is instituted.  Accordingly, any
exclusion of employees from an employer’s workplace that is
not
preceded by a demand in respect of a disputed matter of mutual
interest does not qualify as a lock­out in terms of section
213
of the LRA.
[33]
In the present matter, PUTCO’s
lock-out notice was made “in support of the employer wage
proposals in the wage negotiations
in the [Bargaining Council]”.
[18]
In oral argument, it was contended on PUTCO’s behalf that the
lock-out notice given to TAWUSA constituted a demand
in respect of a
matter of mutual interest.  It was further contended that Mr
Mankge’s assertion that TAWUSA members
would “not sign
any new conditions which [PUTCO] seek[s] to impose by way of unlawful
lock­out”
[19]
constituted a rejection of PUTCO’s demand and that PUTCO was
accordingly entitled to lock out TAWUSA members.  These

submissions raise two questions:
(a)
Was there a matter of mutual interest between the parties?
(b)
Did PUTCO’s lock-out notice constitute a demand for the
purposes of section 213 of
the LRA?
Was there a matter of
mutual interest between the parties?
[34]
In accordance with section 213, an
employer cannot lock out employees in respect of any issue, but
only in connection with
those issues that are of interest to both
employer and employees.  In the present case, there are matters
of mutual interest
relating to wages and other conditions of
employment.  In particular, the outcome of ongoing negotiations
at the Bargaining
Council was of interest to both PUTCO and TAWUSA,
as the conclusion of a collective agreement would have implications
for both
parties.  However, that both parties had an interest in
the Bargaining Council’s activities does not end the inquiry.

A lock-out can be lawful only if it is pursuant to a demand.
Did PUTCO’s
lock-out notice constitute a demand for the purposes of section 213
of the LRA?
[35]
The LRA requires an employer to make
a perspicuous demand to employees before resorting to locking them
out.
[20]
After all, the purpose of a lock-out is to compel employees to accept
the employer’s demands.  For this reason,
and because of
the circumstances outlined below, PUTCO’s assertion that its
lock-out notice constituted a demand is flawed.
The recognition
agreement required that negotiations in respect of wages and other
conditions of employment be undertaken at the
Bargaining
Council.
[21]
A corollary to this is that demands in respect of wages and other
conditions of employment could only be made at the Bargaining

Council.  PUTCO’s lock-out notice acknowledged this
requirement: it was made “in support of the employer wage

proposals in the wage negotiations [at the Bargaining Council]”.
[22]
The notice could not, therefore, have constituted a demand.
[36]
Moreover, to accept PUTCO’s
construction would be to put the carriage before the horse.  A
lock-out notice cannot constitute
both a notice and a demand at the
same time.  The LRA clearly distinguishes between a notice and a
demand and does not use
the two interchangeably.  The purpose of
a lock-out notice is to
inform
a union and its members of an impending lock-out.  In other
words, recourse to a lawful lock-out must already be available.

An employer is not entitled to resort to a lock-out if it has not yet
made a demand to those employees who are to be excluded from
the
employer’s workplaces.
[37]
On this point, the Labour Appeal
Court held:
“
The
employer may, as part of its strategy to put pressure on its
employees to accept its demand, decide to lock out all employees
in
order to achieve a systematic consecutive group or individual
capitulation.  As the one group capitulates and accepts the

employer’s demand; pressure would be put on the other group/s
or individuals to do the same.  The more employees as

individuals or a group accept the demand the less effective the
strike might become thereby forcing the remaining employees to
accept
the employer’s demand.  Striking workers will not receive
a salary during the strike. Union funds would be drained
whilst those
employees who have decided to accept the demand would be able to work
and receive their salaries.  The lock-out
would exert economic
pressure on the union to accept the employer’s demand.”
[23]
[38]
TAWUSA is not party to the
Bargaining Council.  Its ability to put pressure on the other
trade unions at the Bargaining Council
to accept the demand made by
an employer organisation is accordingly nought.  There can be no
lock-out unless there is an
underlying disagreement.  Therefore,
as TAWUSA was not party to the dispute, they cannot be locked out in
terms of the LRA.
In light of this interpretation, the Labour
Appeal Court’s finding that TAWUSA’s lock-out would
achieve “systematic,
consecutive group or individual
capitulation”
[24]
is misconceived.
[39]
I accept that a demand was made in
the form of employer wage proposals at the Bargaining Council. This
demand was made by the employers’
organisation, which includes
PUTCO, to trade unions who were members of the Bargaining Council.
It is common cause that TAWUSA
was not a member.  It
follows that no demand was made to TAWUSA, nor was it in a position
to accede to the demands PUTCO had
made to the trade unions that were
present at the Bargaining Council.
[40]
Section 213 makes it apparent that
the LRA does not permit a lock-out without a demand being directed at
employees.  But, as
has been shown above, no demand was made to
the members of TAWUSA as they were not party the Bargaining Council.
The purported
lock-out of TAWUSA members accordingly fell
outside the scope of the definition of a lock-out in section 213.
It amounted
to an unlawful exclusion of TAWUSA members from
PUTCO’s workplaces not contemplated by the LRA.  In light
of this finding,
TAWUSA’s application must succeed.
However, even if this Court were to accept that section 213 of the
LRA had been
complied with, PUTCO’s purported lock-out must
still fail for want of compliance with section 64(1) of the LRA.
Section 64(1) of the LRA
[41]
Beyond the dictates of section 213,
the circumstances under which an employer may resort to a lock-out
are further refined in section
64(1) of the LRA.  Section 64(1)
envisions a multi-staged process.  It states under which
circumstances industrial action
may take place; that is, when
employees may exercise their right to strike as well as when an
employer may have recourse to a lock­out.
[42]
Section 64(1)(a) of the LRA
provides:
“
(1)
Every
employee
has the right to strike and every employer has recourse to
lock-out
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.”
[43]
The LRA defines “issue in
dispute” in relation to a strike or lock-out as “the
demand, the grievance, or the
dispute
that forms the subject matter of the
strike
or
lock-out
”.
[25]
[44]
Section 64(1)(c), the section on
which the parties most heavily rely, describes the notice
requirements that must be met before
a lock-out can take place.
It provides:
“
(1)
Every
employee
has the right to
strike
and every employer has recourse to
lock-out
if—
. . .
(c)
in the case of a proposed
lock-out
,
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
.”
[45]
The dictates of section 64(1)(a) are
clear.  No industrial action can be undertaken until there has
been an attempt at conciliation.
[26]
This provision also makes pertinent that an “issue in dispute”
arises prior to a matter being referred for conciliation.
Only
once a dispute has arisen can it be referred to a bargaining council
for conciliation.  Moreover, industrial action
can only be taken
in the event that an attempt at conciliation fails, either because a
certificate by the bargaining council states
that the issue in
dispute remains unresolved, or because 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
bargaining council.  Referral to conciliation
is not merely a
perfunctory procedural step that has to be complied with in order to
obtain a licence to lock out or to embark
on a strike.  The
object of section 64(1)(a) is to bring together the parties at
the negotiations, and encourage them
to seek solutions to issues of
mutual concern, thereby reinforcing a collective bargaining culture.
[46]
This Court has previously recognised
that the right to “collective bargaining between the employer
and . . . [employees] is
key to a fair industrial relations
environment”.
[27]
The LRA is concerned with the power imbalance between the employer
and employees.  It sanctions the use of power by
employers and
employees, but only as a last resort, and only after the issue in
dispute between the parties has been referred for
conciliation.
Collective bargaining therefore implies that each employer-party and
employee-party has the right to exercise
economic power against the
other once the issue in dispute has been referred for conciliation,
and only if that process fails in
one of the manners described
above.
[28]
[47]
The referral process mandated by the
LRA did take place.  The issue in dispute arose at the
Bargaining Council and it was there
that the conciliation efforts
occurred and were unsuccessful.
[29]
However, this process did not involve TAWUSA because it was not a
party to the Bargaining Council.
[48]
The Labour Appeal Court found that
TAWUSA was a party to the dispute because it stood to benefit from
the dispute’s resolution
at the Bargaining Council.
[30]
It also found that TAWUSA
was a party to the dispute because it would be bound by the
collective agreement and would
thus “reap the benefits of the
wage negotiations should the majority union’s demand[s] be
accepted”.
[31]
That Court found that TAWUSA had an interest in the Bargaining
Council negotiations and was accordingly “represented
by the
majority unions, based on the majoritarian principle and the
Constitution of the [Bargaining Council]”.
[32]
PUTCO submits that this
finding is correct and that TAWUSA was “effectively” a
party to the dispute.
[49]
I do not agree.  TAWUSA was not
a party to the dispute for the simple reason that it was not a party
to the Bargaining Council
when this particular dispute arose.
Antecedent to any industrial action is the referral process
envisioned by section 64(1)(a)
of the LRA.  What bears
emphasis is that the parties involved in the dispute remain the same
throughout the referral process,
including during the impasse in
negotiations and the resultant industrial action.  The parties
to the issue in dispute do
not change midway through the resolution
process.  As Conradie J observed in
Metal
and Electrical Workers Union of SA
,
once parties resort to industrial action they put on boxing gloves to
deliver blows against each other.
[33]
From the commencement of the match until the final bell has rung,
there are only two boxers in the ring.  There are,
of course,
spectators to a boxing match, but only those parties that have
declared an intention to fight enter the fray.
A blow cannot be
dealt to a spectator simply because he or she has an interest in the
outcome of the match.
[50]
It is difficult to conceive of a
situation where a trade union is a party to the dispute by virtue of
its interest before a matter
has been referred for conciliation, and
then becomes a non­party during the conciliation, only to become
a party again when
the dispute remains unresolved and industrial
action is contemplated and/or undertaken.  Thus, on a proper
interpretation
of section 64(1), the “employees” referred
to in section 64(1)(c) are employees who were party to the dispute
that
was referred for conciliation in terms of section 64(1)(a).
Notice under section 64(1)(c) can be given only to employees who
were
party to a bargaining council where the dispute arose and was
referred for conciliation.
[51]
Contrary to the Labour Appeal
Court’s finding, TAWUSA’s interest in the dispute at the
Bargaining Council amounts to
a mere hope or expectation (
spes
);
its interest in the negotiations was confined to a hope that a
favourable collective agreement would eventually be forthcoming.

The Labour Appeal Court’s conclusion that TAWUSA was a party to
the dispute because of its interest in the negotiations is

accordingly untenable.
[34]
Findings
of the Labour Appeal Court and PUTCO’s further submissions
[52]
I have concluded that TAWUSA was not
a party to the dispute.  It remains necessary, however, to
consider further arguments
in favour of PUTCO’s position,
including that:
(a)
Section 32 of the LRA and the Bargaining Council constitution renders
TAWUSA a party to
the dispute for the purposes of a lock-out.
(b)
The Labour Appeal Court correctly relied on the principle of
majoritarianism to hold that
the lock­out applied to TAWUSA
members.
(c)
It is already settled that non-striking employees that are not party
to the dispute are
entitled to strike.
[35]
The Labour Appeal Court was correct when, by comparable reasoning, it
came to a similar conclusion concerning lock-outs.
(d)
The Labour Appeal Court judgment promotes collective bargaining in a
manner befitting of
the objects of the LRA.
Extensions by the
Minister in terms of section 32 of the LRA
[53]
PUTCO argues that because collective
agreements are ordinarily extended by the Minister in terms of
section 32, and TAWUSA stands
to benefit from any collective
agreement so extended, it is consequently a party to the
dispute.
[36]
This submission is not correct for at least two reasons.
[54]
First, section 32 applies only once
a collective agreement is concluded.  As stated earlier, section
64(1) envisages a referral
process before lock-outs and strikes can
be resorted to.  Put differently, industrial action must be
preceded by an attempt
at conciliation of the issue in dispute.
It is important to stress that during this process, while there is a
prior collective
agreement that may be extended, as was the case
here, no new collective agreement has been concluded.  Indeed,
the very purpose
of a lock out is to force the parties to
conclude a collective agreement.  It is only after a collective
agreement has
been reached that section 32, which empowers the
Minister to extend this agreement to the entire bargaining unit, is
triggered.
The Minister thus cannot simply extend a collective
agreement:  consensus must first be reached at the bargaining
council.
She may only extend the collective agreement if the
majority of the members of trade unions at the bargaining council
consider
it propitious to do so.  Before a collective agreement
is concluded, and an extension permitted, TAWUSA could not have been

party to the dispute on the mere possibility that, in the foreseeable
future, the collective agreement concluded may be extended
to it.
[55]
Second, one must be mindful that a
section 32 extension is not a foregone conclusion once a collective
agreement has been concluded.
In order to extend the collective
agreement, the Minister must be satisfied that certain conditions set
out in that provision have
been met.  Section 32, titled
“[e]xtension of collective agreements concluded in bargaining
council”, provides
that the Minister may extend a collective
agreement to non-parties of the bargaining council only at its
request.  This can
happen only if, at a meeting of a bargaining
council, “one or more registered trade unions whose members
constitute [a] majority”
and “one or more registered
employer organisations, whose members employ the majority of the
employees”, vote for the
extension.
[37]
The LRA also recognises that there may be instances where extending
the collective agreement to non-parties is unfair and
provides for
certain exemptions.
[38]
[56]
The very notion of an “extension”
is telling.  Collective agreements can only be extended to
non-parties of a bargaining
council.  These parties may have an
interest in the negotiations that occur within the bargaining
council, and even a hope
or an expectation that a collective
agreement may be extended to them.  It does not, however, make
them party to a dispute
to which, by definition, they cannot be a
party.  Thus, that a collective agreement concluded at the
Bargaining Council
could
be extended to TAWUSA does not make TAWUSA a party to the dispute at
the Bargaining Council.
Bargaining Council
constitution
[57]
PUTCO relied on the provisions of
the Bargaining Council constitution to suggest that TAWUSA would be
bound by the collective agreement
concluded at the Bargaining
Council, and that it was therefore permitted to lock out TAWUSA
members.  This proposition was
accepted by the Labour Appeal
Court.  In my view, that finding is incorrect.
[58]
Clause 2.2 of the Bargaining Council
constitution reads:
“
2.2
This Constitution and all agreements concluded under the auspices of
[the Bargaining Council] shall
apply and be binding on:
2.2.1
Employers’ Organisations and Trade Unions that are party to
[the Bargaining Council], as well
as members of these Parties.
2.2.2
All eligible Employees in the employ of
members of the above Employers’ Organisations regardless of any
Union affiliation.
”
(Emphasis added.)
[59]
The lawfulness of this provision is
questionable.  The LRA, in general, and section 30 of the LRA
dealing with the constitution
of bargaining councils in particular,
does not empower a bargaining council to conclude collective
agreements that bind non-parties.
Otherwise, section 32 of the
LRA, which empowers the Minister to extend the application of
collective agreements to the entire
industry including to
non-parties, would be rendered ineffective.
[60]
Moreover, a fundamental tenet of
labour law is that employees may be represented through their trade
union.  Employers and
employees, more often than not, have
divergent interests when negotiating, and conflict is predictable.
The LRA foresees
this conflict of interests and facilitates the
participation of both employer parties and trade unions in the forums
it creates
to negotiate issues of mutual interest.
[39]
To bind an employee by virtue of their employer’s
representation at a bargaining council seems untenable in this
context.
Majoritarianism
[61]
In essence, the principle of
majoritarianism states that the will of the majority prevails over
that of the minority.
[40]
This is reflected throughout the LRA.
[41]
In
Kem Lin Fashions
,
Zondo JP underscored that majoritarianism was the consequence of a
conscious policy choice made by the Legislature when formulating
the
LRA.
[42]
[62]
Majoritarianism is not, however,
applicable in the present case. It finds no relevance in the
interpretation of sections 213 and
64(1).  As important as this
principle may be, it cannot bring a dispute into existence.  It
cannot be said that, because
a dispute arises between majority
representatives of a sector at a bargaining council, all employers
and employees have a dispute
with one another.  The principle
governs the interaction between constituent employees. To hold
otherwise would be to endorse
a perversion of the principle.
[63]
It is worth emphasising that the
principle finds application
after
a collective agreement has been concluded: this much is evident from
the provisions of section 32.  A collective agreement
is
extended only at the behest of the majority after the collective
agreement process has run its course.  If it were a foregone

conclusion that a collective agreement, which might be prospectively
concluded, would be applicable to an entire sector, then it
would
defeat the purpose of an extension.
[64]
If this Court were to confirm the
judgment of the Labour Appeal Court, the following would be
applicable to trade unions that are
not parties to a bargaining
council:
(a)
They would, after the fact, be deemed a party to negotiations in
which they have had no
say, but only for the purpose of lock-outs;
and
(b)
In the event that a collective agreement were to be concluded, they
would revert to being
non-parties again and therefore unable to sign
that collective agreement.
[43]
[65]
On this basis, it is evident to me
that reliance on majoritarianism in the present instance would lead
to a situation where the
parties to the original dispute do not
remain the same throughout the dispute resolution process.  This
is undesirable and
out of step with the objects of the LRA.
[66]
While majoritarianism is an
important underlying principle of the LRA, it finds no application to
strikes and lock-outs under sections 213
and 64(1).
Majoritarianism cannot be relied upon to extend a dispute
within a bargaining council to a party that is not a
member of that
council.  To the extent that the Labour Appeal Court concluded
otherwise, it erred.
Parity of reasoning
contention
[67]
Our decision in
Moloto
to permit employees who did not issue a strike notice to embark upon
a strike follows the deliberate scheme and design of the Constitution

and the LRA.
[44]
The same cannot, however, be said to apply to the recourse to
lock­out.  As Professor John Grogan points out, employers

have recourse to a number of “weapons” to end a dispute:
“
Under
the common law, employers could exercise power against employees
through a range of ‘weapons’ such as dismissal,

employment of alternative or replacement labour, unilateral
implementation of new terms and conditions of employment, and the
exclusion of employees from the workplace.”
[45]
Striking is one of
the few powerful tools in the hands of employees.  Not
permitting employers to lock-out all employees, but
only those whom
the employer has attempted to conciliate with under section 64(1),
does not blunt the weapon of the employer.
Instead, it promotes
the fair and orderly resolution of labour disputes.  Given that
the Constitution and the LRA do not accord
the right to strike and
recourse to lock-out similar status, one cannot equate the two.
Hence my view that the Labour Appeal
Court’s conclusion was
flawed.
[46]
[68]
Moreover, the facts before us are
distinct from those in
Moloto
.
In that case, the employer was disadvantaged to the extent that it
could not determine which employees would join the strike.
The
majority held that this encumbrance could effectively be remedied by
the issuing of a single strike notice.
[47]
To this end, it concluded:
“
Provided
that the strike notice sets out the issue over which the employees
will go on strike with reasonable clarity, these cases
show that
orderly collective bargaining and the right to strike, in its proper
sense as a counter-balance to the greater social
and economic power
of employers, has been considered to be well served by the acceptance
of a single strike notice.”
[48]
(Footnotes omitted.)
By contrast, in the
present matter, Mr Mankge informed PUTCO that TAWUSA members did not
intend to go on strike.
[49]
A finding that employers may not lock out members of a trade
union that is not a party to a bargaining council where a dispute

arose and was referred for conciliation is, in addition, in line with
the need to counter balance the greater social and economic

powers of employers, as pointed out in
Moloto
.
On the one hand, the ability to strike is the principal manner by
which employees can put pressure on an employer to capitulate
to
demands.  A lock-out, on the other hand, is only one of the
options at an employer’s disposal.  It is for this
reason
that the LRA distinguishes between the
right
to strike and the
recourse
to lock out.
[69]
For similar reasons, PUTCO’s
reliance on
Tiger Wheels
[50]
– a case on which PUTCO staked its claim – is flawed.
Apart from the primary importance of the right to strike
discussed
above,
Tiger Wheels
dealt with different issues.  These related to whether the fact
that an employer against whom a strike was effected did not
receive
notice, rendered the strike unlawful; and whether employees waived
their right to strike when the strike did not commence
on the day
stated on the strike notice.  Unlike
Tiger
Wheels
, the case before us only deals
with the question of who can lawfully be locked out.
[51]
These differences are significant.
Orderly collective
bargaining and the LRA
[70]
Our Constitution enshrines the right
to collective bargaining between employers and employees, recognising
that it is central to
achieving fair industrial relations.
[52]
The LRA gives effect to this right.  One of the LRA’s
primary objects is “to provide a framework within
which
employees
and their
trade unions
,
employers and
employer organisations
can . . . collectively bargain to determine wages, . . . promote
orderly collective bargaining . . . [and come to] effective
resolution
of labour disputes”.
[53]
The recourse to lock-out is an important element of this collective
bargaining system.
[71]
The LRA does not permit the lock-out
of employees who are not party to a dispute.  That said, I am
cognisant of the fact that
some employers may be put in an invidious
position by the finding that they cannot lock out members of a trade
union who are not
a party to a bargaining council where a dispute has
arisen and been referred for conciliation.  TAWUSA members may
stand to
benefit from collective agreements concluded at the
Bargaining Council through an extension of a collective agreement by
the Minister
under section 32 of the LRA, yet PUTCO cannot lock them
out of its workplaces.  Moreover, an employer in PUTCO’s
position
may be compelled to run their operations for the benefit of
a small group of non-striking employees who are not members of the
Bargaining Council.  This may even entail keeping only a certain
number of PUTCO’s services running, or opting for a
complete
shutdown.  Either way, it will have to pay its employees who
tender services. Employers will also be faced with the
unenviable
challenge of distinguishing those employees whom they are entitled to
lock out from those who must be allowed to continue
to work.
[72]
While I am wary of these
difficulties, the wording of sections 213 and 64(1) cannot be
ignored.  It may be in the interest
of the employer to encourage
employees or their trade union to be part of the bargaining council.
In the event that this
is not achieved, employers will bear these
consequences.
Oral evidence
[73]
Should this matter be remitted to
the Labour Court?  The Labour Appeal Court concluded that the
factual disputes were incapable
of resolution on the papers.  Both
parties asserted that, in the event that this Court finds favourably
for TAWUSA, the matter
should be remitted to the Labour Court for the
hearing of oral evidence in order to determine whether certain
members of TAWUSA
were, in fact, on strike.  The dispute between
the parties was whether the lock-out was unlawful.  That dispute
has been
resolved in this judgment.  There is no further issue
that needs to be remitted.
Costs
[74]
TAWUSA has been successful in this
Court. There was no suggestion by PUTCO that costs should not follow
the result.
Order
[75]
The following order is made:
1.
Condonation is granted.
2.
Leave to file supplementary written submissions is refused.
3.
Leave to file a supplementary affidavit is refused.
4.
Leave to appeal is granted.
5.
The appeal succeeds.
6.
The order of the Labour Appeal Court of South Africa is set aside and
replaced
with the following:
“
The
appeal is dismissed with costs.”
7.
The respondent is ordered to pay the applicant’s costs in this
Court, including
the costs of two counsel, where applicable.
For the
Applicant:       F R Memani and H
Mokhine instructed by Lennon Moleele and Partners
For the Respondent:
A Myburgh SC, T Ngcukaitobi and
J Raizon instructed by Bowman Gilfillan Incorporated
[1]
66 of 1995.
[2]
On section 32 extensions, see [53] to [56] below.
[3]
PUTCO contends that after the strike notice had
been issued, on the day before the start of the strike, two of
TAWUSA’s
shop stewards informed Mr Guimuraes, PUTCO’s
General Manager at the Comuta Business Unit in Soweto, that TAWUSA’s
head office had notified them that they must support the strike for
monetary reasons.  Moreover, TAWUSA shop stewards informed
Mr
Bernin, the Operations Manager of PUTCO’s Lekoa bus
operations, that they would participate in the strike for safety

reasons.  This is disputed by TAWUSA.  PUTCO also contends
that when the strike commenced, 60 TAWUSA members employed
by PUTCO
and working out of PUTCO’s Ipelegeng operations did not show
up for work.  TAWUSA disputes this and states
that its members
turned up and were turned away by PUTCO.
[4]
Transport & Allied Workers Union of South
Africa on behalf of Members v Algoa Bus Company (Pty) Ltd &
Another
[2013] ZALCJHB 187; (2013) 34
ILJ 2949 (LC) (Labour Court judgment).  TAWUSA initially
brought two separate applications
against Algoa Bus Company (Pty)
Limited and PUTCO.  Given the similarity in the applications,
they were heard together by
the Labour Court.  The Labour Court
found in TAWUSA’s favour.  However, only PUTCO appealed
its decision.
Algoa played no further part in the ensuing
litigation.
[5]
Labour Court judgment id at para 13.
[6]
Id at paras 15-6.
[7]
Putco (Pty) Limited v Transport & Allied
Workers Union of South Africa & Another
[2015] ZALAC 14
; (2015) 36 ILJ 2048 (LAC) (Labour Appeal Court
judgment).
[8]
Id at para 67.  The wording of the notice
here differs slightly from the wording quoted by the Labour Court.
See
id at para 8 and compare with Labour Court judgment above
n 4 at para 27.  The Labour Appeal Court quoted the notice as

follows:
“
Subject:
Notice of Intention to lock-out all members in the bargaining unit
In response to the strike notice issued, the Company
hereby gives 48
hours’ notice of its intention to lock­out all employees
in the bargaining unit from all of PUTCO’s
workplaces in
support of the employer wage proposals in the wage negotiations in
the [Bargaining Council].”
[9]
Labour Appeal Court judgment above n 7 at paras
62 and 71.
[10]
Id at para 50.
[11]
Id at para 66.
[12]
The Labour Appeal Court’s order reads as
follows:
“
1)
The appeal succeeds.
2)
The order of the court a
quo
,
in respect of PUTCO Limited, is set aside and replaced with the
following:
‘
The
application is dismissed with costs.’
3)
The first respondent is ordered to pay the costs of the appeal, such

costs to include those consequent upon the employment of two
counsel.”
[13]
See [10] above.
[14]
These actions are not contemplated by Rule 19 or
Rule 20.
[15]
It is by now trite law that the interpretation of
the LRA always raises a constitutional issue.  See
National
Union of Metal Workers of SA v Intervalve (Pty) Ltd and Others
[2014] ZACC 35
; (2015) 36 ILJ 363 (CC);
2015 (2) BCLR 182
(CC) at
para 25 and
National Education Health &
Allied Workers Union v University of Cape Town and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at para
14.
[16]
Section 23 of the Constitution provides:
“
(1)
Everyone has the right to fair labour practices.
.
. .
(5)
Every trade union, employers’ organisation and employer has

the right to engage in collective bargaining. National legislation
may be enacted to regulate collective bargaining.  To
the
extent that the legislation may limit a right in this Chapter, the
limitation must comply with section 36(1).”
[17]
Compare
UTATU
SARHWHU and Others v Autopax Passenger Services (Soc) Ltd and
Another
[2013] ZALCJHB 223; (2014) 35
ILJ 1425 (LC) (
UTATU
)
and the Labour Court judgment above n 4.
[18]
See [9] above where the lock-out notice is quoted
in full.
[19]
See [10] above.
[20]
See section 213 of the LRA.  See also Grogan
Collective
Labour Law
2ed (Juta and Company (Pty)
Limited, Cape Town 2014) at
410.
[21]
See [4] above.
[22]
See [9] above.
[23]
Labour Appeal Court judgment above n 7 at para
64.
[24]
Id.
[25]
See section 213 of the LRA.
[26]
See
Kgasago &
Others v Meat Plus CC
(1999) 20 ILJ
572 (LAC);
[1999] 5 BLLR 424
(LAC);
NASECGWU
v Donco Investments (Pty)
Ltd
[2009] ZALC 114
; (2010) 31 ILJ 977
(LC).
[27]
NUMSA v Bader Bop (Pty) Ltd
[2002] ZACC 30
;
2003 (3) SA 513
(CC);
2003 (2) BCLR 182
(CC)
(
Bader Bop
)
at para 13
.
See
also section 23(1) of the Constitution which guarantees the right to
fair labour practices and 23(5) which guarantees the
right to engage
in collective bargaining.
[28]
See [45] above.
[29]
A certificate was issued by the Bargaining
Council to the effect that the dispute remained unresolved as
envisioned by section
64(1)(a)(i) of the LRA.
[30]
Labour Appeal Court judgment above n 7 at para
71.
[31]
Id at para 62.
[32]
Id at para 71.
[33]
Metal and Electrical Workers Union of SA v
National Panasonic Co
1991 (2) SA 527
(C); (1991) 12 ILJ 533 (C) at 536.
[34]
See [17] above.
[35]
See, for example,
SATAWU
and Others v Moloto and Another NNO
[2012]
ZACC 19
;
2012 (6) SA 249
(CC);
2012 (11) BCLR 1177
(
Moloto
)
at para 61;
Chemical Workers Industrial
Union v Plascon Decorative (Inland) (Pty) Ltd
[1998]
ZALAC 27
; (1999) 20 ILJ 321 (LAC) at para 27;
Chamber
of Mines v AMCU
[2014] ZALCJHB 13;
(2014) 35 ILJ 1243 (LC) at para 70;
Plastic
Convertors Association of SA v Association of Electric Cable
Manufacturers of SA and Others
[2011]
ZALCJHB 59; (2011) 32 ILJ 3007 (LC) at para 23.
[36]
Section 32 of the LRA, in relevant part, states:
“
(1)
A
bargaining council
may ask the
Minister
in writing to extend a
collective
agreement
concluded in the
bargaining
council
to any non-parties to the
collective agreement
that are within its
registered scope
and are identified in the request, if at a meeting of the
bargaining
council—
(a)
one or more registered
trade unions
whose members constitute
the majority of the members of the
trade unions
that are
party to the
bargaining council
vote in favour of the
extension; and
(b)
one or more registered
employers’ organisations
, whose
members employ the majority of the
employees
employed by the
members of the
employers’ organisations
that are party
to the
bargaining council
, vote in favour of the extension.
(2)
Within 60 days of receiving the request, the
Minister
must
extend the
collective agreement
, as requested, by publishing
a notice in the
Government Gazette
declaring that, from a
specified date and for a specified period, the
collective
agreement
will be binding on the non-parties specified in the
notice.”
[37]
Id.
[38]
Section
32(3) of the LRA provides:
“
A
collective
agreement
may not be extended in terms
of subsection (2) unless the
Minister
is satisfied that—
. . .
(dA)
the
bargaining council
has in place an effective procedure to
deal with applications by non-parties for exemptions from the
provisions of the
collective agreement
and is able to decide
an application for an exemption within 30 days;
(e)
provision is made in the
collective agreement
for an
independent body to hear and decide, as soon as possible and not
later than 30 days after the appeal is lodged, any appeal
brought
against—
(i)
the
bargaining council’s
refusal of a non-party’s
application for exemption from the provisions of the
collective
agreement
; or
(ii)
the withdrawal of such an exemption by the
bargaining council
;
(f)
the
collective agreement
contains criteria that must be
applied by the independent body when it considers an appeal, and
that those criteria are fair
and promote the primary objects of
this
Act
.”
[39]
The LRA provides for conciliation to take place
either at a bargaining council, or at the Commission for
Conciliation, Mediation
and Arbitration (CCMA).  Section
30(1)(a) discusses the appointment of parties to a bargaining
council and requires a bargaining
council constitution to ensure—
“
the
appointment of representatives of the parties to the
bargaining
council
, of whom half must be
appointed by the
trade unions
that are party to the
bargaining
council
and the other half by the
employers’ organisations
that are party to the
bargaining
council
, and the appointment of
alternates to the representatives.”
See also sections 27, 28,
and 30 of the LRA discussing the formation of a bargaining council.
The LRA as a whole requires
trade union representation in a number
of situations; including when forming workplace forums, when
determining organisational
rights and in cases where there is a
dispute between employers and employees.
[40]
Kem-Lin Fashions CC v Brunton and Another
[2000] ZALAC 25
; (2001) 22 ILJ 109 (LAC) (
Kem-Lin
Fashions
) at para 19.
[41]
The LRA affords majority trade unions a number of
benefits.  See, for example, section 14(1) (the right to
appoint trade
union representatives); section 16 (the right to
information); section 18 (the right to establish thresholds of
representativeness);
section 26(2) (conclusion of agency shop and
closed shop agreements); and sections 80 and 81 (establishment of
workplace forums
and choice of members from its elected
representatives to serve on the trade union forum)  See further
section 23(1)(d),
which allows the extension of collective
agreements to employees that are not members of a majority trade
union.
[42]
Kem-Lin Fashions
above n 40.
[43]
Section 31 of the LRA provides:
“
Subject to
the provisions of section 32 and the constitution of the
bargaining
council
, a
collective
agreement
concluded in a
bargaining
council
binds—
(a)
the parties to the
bargaining council
who are also parties to
the
collective agreement
;
(b)
each party to the
collective agreement
and the members of
every other party to the
collective agreement
in so far as
the provisions thereof apply to the relationship between such a
party and the members of such other party;
and
(c)
the members of a registered
trade union
that is a party to
the
collective agreement
and the employers who are members of
a registered
employers’ organisation
that is such a
party, if the
collective agreement
regulates—
(i)
terms and conditions of employment; or
(ii)
the conduct of the employers in relation to their
employees
or the conduct of the
employees
in relation to their
employers.”
[44]
Moloto
, above n
35 at para 43.
[45]
Grogan above n 20 at 408.
[46]
See [51] above.
[47]
Moloto
above n
35 at para 88.
[48]
Id at para 90.
[49]
See [10] above.
[50]
Tiger Wheels Babelegi (Pty) Ltd t/a TSW
International v National Union of Metalworkers of South Africa and
Others
[1998] ZALC 86
; (1999) 20 ILJ
677 (LC) (
Tiger Wheels
).
[51]
The Labour Appeal Court also relied on
UTATU
above n 17 in coming to its conclusion.  That case, however, is
distinguishable from the facts before us because the relevant
union
in that case was part of a bargaining council.
[52]
See section 23(1) of the Constitution which
guarantees the right to “fair labour practices” and
section 23(5) which
guarantees “the right to engage in
collective bargaining”.  See also
Bader
Bop
above n 27 at para 13
.
[53]
Section 1 of the LRA.