[1] In this matter the Court is called upon to decide two issues. They both

Transcription

1 IN THE LABOUR COURT OF COURT AFRICA Held in Johannesburg Case no. J2456/98 In the matter between TIGER WHEELS BABELEGI (PTY) LTD t/a TSW INTERNATIONAL Applicant and NATIONAL UNION OF METAL WORKERS OF SOUTH AFRICA First Respondent and 20 OTHERS Second and Further Respondents JUDGEMENT ZONDO J [1] In this matter the Court is called upon to decide two issues. They both

2 relate to a rule that was granted by my colleague, Revelas J, on the 11th September 1998 which was returnable on the 25th September 1998 on which day the matter came before me. The one is whether the fact that no strike notice was given to the applicant before the applicant s employees went on strike renders the strike an unprotected strike despite the fact that a strike notice was given to the council. The second is whether, assuming that the strike notice which was given to the council, holds good for the second and further respondents strike, the second and further respondents can be said to have waived their right to strike when they failed to commence their strike on the day indicated in the strike notice given to the council as the day on which the strike would commence, especially as they ultimately commenced their strike only three or so days later. In order to properly consider these issues, it is necessary to briefly set out the facts. They are largely common cause. The facts [2] The applicant is a company which conducts its business as a manufacturer and distributor of motor vehicle wheels and related products under the name TSW International at City West, Johannesburg. Most, if not all, of its employees are members of the National Union of Metal Workers of South Africa ( the Union or NUMSA ), a registered trade union which has members employed by many other employers within the motor industry. [3] There is a bargaining council in the motor industry. It is called the Motor Industry Bargaining Council. NUMSA is a party to the council. Another important stakeholder in the motor industry is an employers organisation called

3 the South African Motor Industry Employers Association ( SAMIEA ). It, too, is a party to the council. The applicant is not a member of SAMIEA. As a single employer cannot be a party to a bargaining council, the applicant is not a party to the council. It was common cause that the applicant s business fell within the definition of the phrase motor industry in clause 2 of Division A in GNR 962, GG19082 dated 14 August 1998 and that, therefore, the applicant fell within the jurisdiction of the council. Of about employers which fell within the registered scope of the council, about 6014 of those employers belonged to SAMIEA. [4] For many years NUMSA has been party to wage negotiations that take place annually in the council between employers organisations and trade unions in respect of minimum rates of pay and other minimum terms and conditions of employment. In April 1998 NUMSA presented to the council its demands in respect of a wage increase as well as other terms and conditions of employment. Unlike in previous years when NUMSA s demands related to minimum rates of pay and other minimum terms and conditions of employment, this time NUMSA s demands related to actual wages and other terms and conditions of employment. A dispute subsequently arose because NUMSA s demands were not accepted. [5] On 21 August 1998 NUMSA addressed a letter to the secretary of the council as well as to SAMIEA notifying the two organisations that all its members employed in the industry would embark on a strike which would commence on the 1st September 1998 in regard to the wage dispute arising from

4 its demands which had been tabled in the council in May In the letter the union also stated that it had complied with all the requirements of the constitution of the council. [6] No notice of strike action in writing was given to the applicant. The applicant would not be bound by an agreement that could be concluded in the council except if the Minister of Labour extended the collective agreement concluded in the bargaining council to non parties which in terms of sec 32 of the Act he may do if the requirements set out therein have been complied with. On the 1st September 1998 an industry wide strike by NUMSA members commenced. In this strike employees employed by various employers took part. The strike continued and was still in progress at the time I heard argument in this matter. The second and further respondents did not commence the strike on the 1st September but only joined it on the 4th September At the time of the strike the applicant was bound by a collective agreement previously concluded in the council which had been extended to non parties by the Minister of Labour in terms of sec 32 of the Act. Such agreement would expire in due course. At any rate such collective agreement related to minimum terms and conditions of employment. The parties contentions [7] The applicant contended that the strike was an unprotected strike because (a) no notice in terms of sec 64(1)(b) of the Act had been sent or given to it and (b) as the second and further respondents had failed to commence their strike on the appointed day of the strike and had delayed and only joined in the strike on

5 the 4th September 1998, they had waived their right to strike and could no longer strike. The respondents disputed the correctness of each one of these submissions. As to the argument relating to the strike notice, the respondents argued that the notice that had been given to the council was sufficient and they were not obliged to give a separate notice to the applicant in these circumstances. On the waiver argument, it was contended on the respondents behalf that no waiver was proved by the applicant. Was there an obligation to give the applicant a strike notice? Were the respondents entitled to rely on the strike notice given to the council? [8] One of the requirements for a strike to be a protected strike is that under sec 64(1)(b), (b)... at least 48 hours notice of the commencement of the strike in writing has been given to the employer, unless (i) 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; or (ii) the employer is a member of an employers organisation that is a party to the dispute, in which case, notice must have been given to that employers organisation; [9] In this case it is not in dispute that, if it was correct to direct the strike notice to the council as was done, that notice complied with the provisions of sec 64(1)(b). Mr Joubert, who appeared for the applicant, sought to counter the respondent s reliance on that notice given to the council by arguing that, as the applicant was neither a member of SAMIEA (or any other employers

6 organisation which is a party to the council) nor a party to the council, if sec 64(1)(b) were interpreted so as to permit reliance on such a notice and not to require a separate notice to be given to the applicant, such interpretation would defeat the purpose of such notice as articulated by the Labour Appeal Court in Ceramic Industries Ltd t/a Betta Sanitaryware v National Construction Building and Allied Workers Union and Others (1997) 18 ILJ 671 (LAC) at 677A D. It was emphasized on the applicant s behalf that the applicant had not been party to the dispute in the council nor had it taken part in the negotiations that had preceded the strike. I now turn to consider these arguments. [10] The starting point in regard to an interpretation of sec 64(1)(b) is an acknowledgement that those provisions are a procedural limitation to the right to strike which in turn is a constitutional right. In this regard article 23(2)(c) of the final constitution gives every worker the right to strike. [11] In so far as internationally the right to strike is seen as part of the right to freedom of association, the latter right is provided for in article 18 of the constitution. Article 36 makes provisions for the circumstances under which rights entrenched in the Bill of Rights may be limited. Article 39 of the Constitution says in interpreting any legislation, a court must promote, inter alia, the spirit, purpose and objects of the constitution and when interpreting the constitution, must promote the values that underlie an open and democratic society based on human dignity, equality and freedom, must consider international law and may consider foreign case law. [12] Then section 3 of the Act provides as follows: "3. Interpretation of this Act.

7 Any person applying this Act must interpret its provisions (a) (b) (c) to give effect to its primary objects; in conformity with the constitution; and in conformity with the public international law obligations of the Republic." [13] Those primary objects of the Act, as set out in sec 1 thereof, which can arguably be said to be relevant to this matter are, in my view, the following: (a) to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution; (b) to give effect to obligations incurred by the Republic as a member state of the International Labour Organisation; (c) to provide a framework within which employees and their trade unions, employers and employers organisations can (i) collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest; (ii)... (d) to promote

8 (i) (ii) orderly collective bargaining; collective bargaining at a sectoral level; (iii)...; and (iv) the effective resolution of labour disputes. [14] It has been stated that, in construing a statue on any basis, the language used in the statute cannot be ignored. (Kentridge AJ in S v Zuma & Others, 1995(23) SA 642(CC) at 653A B) followed by the Labour Appeal Court in Ceramic Industries case at (1997)18 ILJ 671 (LAC) at 676 B). With the above in mind, it is now appropriate to consider the parties arguments with regard to the provisions of section 64(1)(b) of the Act. [15] The requirement for the giving of a strike notice before a strike can be embarked upon is not exclusive to South Africa. In fact it is a procedural restriction on the right to strike which conforms with international standards (See Ruth Ben Israel on: International Labour Standards : The Case of Freedom To Strike p 118, 1983 Kluwer Law and Taxation Publishers, USA.). There can be no doubt that in this case the issue in dispute which is the subject matter of the industry wide strike relates to a collective agreement to be concluded

9 in a council as envisaged in sec 64(1)(b)(i) of the Act. That being the case, sec 64(1)(b)(i) says quite clearly that the sec 64(1)(b) notice must be given to the council in which the collective agreement is to be concluded. [16] The applicant s argument is based on the purpose of sec 64(1)(b). In terms of the Ceramic Industries judgement of the Labour Appeal Court, the purpose of sec 64(1)(b) is two fold. Firstly it is to enable the employer if it wishes to avoid the proposed strike by giving in to the employees demands to avoid the strike by doing so. Secondly it is to afford the employer who does not intend to avoid the proposed strike the opportunity to make appropriate arrangements (e.g the employment of replacement labour) to protect his business during the strike. (Ceramic Industries (1997) 18 ILJ 671 (LAC) at 677A D). [17] The language used by the legislature in sec 64(1)(b) is plain. There can be no ambiguity about it in so far as the issue involved in this matter is concerned. Three situations are contemplated in sec 64(1)(b) for the giving of the strike notice. The notice must be given either to the employer or to a council or to an employers organisation depending on the circumstances. As a general rule the strike notice is required to be given to the employer except where the case at hand falls into one of the two exceptions stipulated in sub par (i) and (ii). The

10 exception stipulated in sub par (ii) does not apply in this case because the applicant is not a member of an employers organisation which is a party to the dispute. However, the exception in sub par (i) is applicable. [18] In the light of the fact that the exception in sub par(i) applies in this case, to hold that, that notwithstanding, a strike notice should have been given to the applicant is to completely disregard the clear language used in sec 64(1)(b)(i). There would be no justification to do so. Merely because from the point of view of the purpose of the section it would be a good thing to interpret the section in a particular manner is no justification for departing from the clear language of the statute. In this case sub par(i) of par (b) of sec 64(1) is clear : it says if the issue in dispute which is the subject matter of the strike is a matter which relates to a collective agreement to be concluded in a council, the notice is not required to be given to the employer but to the council. [19] There must be a reason why the legislature decided to provide for exceptions to the general rule that the strike notice must be given to the employer. In so far as the exception in sec 64(1)(b)(i) is concerned, it must be because the bargaining council must be taken to be a forum which is

11 representative of the industry over which it has jurisdiction and if notice is given to the council, it must be deemed to have been given to all employers who fall within the scope of the council. The other reason may well be that in the absence of the exception in sec 64(1)(b)(i), notice would have had to be given, in a case such as this one, to thousands of employers individually. In that event, administratively and logistically not only would an industry wide strike be a nightmare but also it would almost be impossible to embark upon. [20] One of the primary objects of the Act is the promotion of effective dispute resolution. Another primary object of the Act is the promotion of collective bargaining at sectoral level. Sec 3 of the Act enjoins that provisions of the Act must be interpreted in a manner that promotes the primary objects of the Act. [21] A strike is part of the dispute resolution mechanisms of the Act. To interpret sec 64(1)(b) in the manner contended for by the applicant would not, in my view, promote effective dispute resolution. Also the applicant s interpretation would make it almost impossible to have an industry wide strike. In those circumstances the applicant s interpretation would in effect mean that sec 64(1)(b) is contrary to the international principle, as stated by the ILO

12 supervisory bodies, that the conditions which must be fulfilled under the law in order to render a strike lawful should be reasonable and, in any event, not such as to place a substantial limitation on the means of action open to trade union organisations (as quoted by the ILO Fact Finding and Conciliation Commission in its report on South Africa at (1992) 13 ILJ 731 at 756). Furthermore as that interpretation would make it almost impossible to have an industry wide strike, that interpretation would, it seems to me, almost defeat the primary object of the Act of seeking to promote collective bargaining at sectoral level. In my view an interpretation which will have that effect should not lightly be accepted where there is another interpretation which is compatible with the ILO standards. [22] Under the provisions of par(c) of sec 64(1) which deal with the lock out notice, where there is no trade union which is a party to a dispute and the employer wishes to lock the workers out and the issue in dispute does not relate to a collective agreement to be concluded in a council, the lock out notice must be given to the employees. But the lock out notice is not required under par(c) of sec 64(1) to be given to employees where the issue in dispute is a matter that relates to a collective agreement to be concluded in a council. As in the case of a

13 strike notice under sec 64(1)(b)(i), the lock out notice in a case where the issue in dispute relates to a collective agreement to be concluded in a council is only required to be given to the council. [23] An analysis of the provisions of the chapter of the Act on strikes and lockouts reveals that a right to strike is contemplated in circumstances such as those which prevailed in this case despite the fact that the applicant is not a party to the dispute and despite the fact that the applicant is not a member of SAMIEA or, for that matter, of any employers organisation which is a party to the council and despite the fact that the applicant cannot alone settle the dispute which is the subject matter of the strike. This is revealed when one has regard to the definition of a secondary strike in sec 66(1). That definition takes out of the definition of a secondary strike a strike which is in pursuit of a demand that has been referred to a council if the striking employees, employed within the registered scope of that council, have a material interest in that demand. The case in this matter is such a case. [24] The employer is not a party to the dispute which is the subject matter of the strike. The employer cannot alone settle the dispute to resolve the strike

14 because a settlement of the dispute must be agreed to by the parties to the council. But the employees of the applicant do have a material interest in the demand that was referred to the council by NUMSA. As the definition of issue in dispute in sec 213 of the Act reveals, a demand can constitute an issue in dispute or the subject matter of a strike. The demand in which the second and further respondents in this matter have a material interest in is the issue in dispute envisaged in sec 64(1)(b)(i) which relates to a collective agreement to be concluded in the council. [25] The definition of strike in sec 213 is also wide enough to encompass a strike such as the strike in this matter. Also under the old Act the definition of a strike was held to be so wide as to cover a strike such as the one in this case. See in this regard Barlows Manufacturing Co v Metal and Allied Workers Union & Others (1988) 9 ILJ 995 (IC) esp at 1002F 1009B Although this judgement of the industrial court was set aside on appeal in Barlows Manufacturing Co Ltd v Metal and Allied Workers Union & Others (1990) 11 ILJ 35 (T), this was not because the reasoning of the court on this legal issue was wrong but it was on a factual point. In fact Goldstone J, with Smith and de Klerk JJ concurring, expressed a similar view at 41D of the report; see also Metal Box of

15 SA t/a Blow Molders v NUMSA & Others (1993) 14 ILJ 152 (IC) as well as a discussion of sympathy strikes and industry strikes by Carole Cooper at ((1995) 16 ILJ 759 at ). The parties in this matter must have recognised this because whether the second and further respondents had the right to strike was never an issue between them. As indicated earlier in this judgement this matter initially came before my Colleague, Revelas J, on the 10th September She heard argument from both parties though at that time it would appear that NUMSA was not represented by an attorney or Counsel. During argument before me Mr Joubert informed me that Revelas J had, in granting the rule, given reasons in Court for her ruling. I have been able to obtain an as yet uncorrected transcript of Revelas J s judgement. [27] From the uncorrected judgement it appears that Revelas J finished hearing argument on the matter at about 23h20 on the night of the 10th September 1998 and gave judgement on the morning of the 11th September She gave brief reasons for her judgement and indicated that, if a need arose, she would amplify her reasons later. The transcript of her judgement that I have referred to is yet to

16 be proof read and signed by her. The conclusion which Revelas J reached is that the applicant was entitled to be given a strike notice directed at itself and that the strike notice given to the council was not applicable to this situation. The basis of the conclusion appears from the transcript of Revelas J s judgement to be that giving a strike notice to the council would not serve the purpose of sec 64(1)(b) as articulated by the Labour Appeal Court in the Ceramic judgement. [28] As already indicated, I, with respect, do not share Revelas J s view. Unfortunately I am not in a position to delay this judgement any further pending the proof reading and signing of that judgement by Revelas J as I have already reached a firm conclusion in the matter and have already reserved this judgement for over three weeks. My conclusion is that the strike notice which was given to the council is the only strike notice that was required under sec 64(1)(b) in this matter and that the applicant was not entitled to a strike notice directed at itself. [29] The interpretation that Revelas J placed on sec 64(1)(b) is one which, in my view, and with respect, completely disregards the language used in sec 64(1) (b)(i) and this is contrary to the warning given by Kentridge AJ in Zuma s case above as well as what the Labour Appeal Court said in Ceramic Industries as

17 stated above. The use of the word unless in sec 64(1)(b) before sub par(i) and sub par(ii) demonstrates quite clearly that the provisions preceding that word do not apply in the situations which are spelt out after that word. The provisions preceding the word unless are the provisions which require that a strike notice be given to the employer and the provisions which come after the word unless in the form of sub paragraphs (i) and (ii) are provisions which do not require that a strike notice be given to the employer but which say the notice must be given, in the case of sub par (i), to the council and, in the case of sub par (ii), to an employers organisation. [30] This is clearly a case which falls under sub par (i) and in that situation the notice is not required to be given to the employer. If it was given to an employers organisation, the notice would not comply with sec 64(1)(b)(i) and would be defective. By the same token if the notice had been given to individual employers instead of the council, that would have been no compliance with sec 64(1)(b)(i). [31] I have considered the question whether I am bound by the judgement of Revelas J. To consider this is very important because once a member of the

18 Court has made a ruling on an issue, simply because another member does not agree with such a ruling is not a good enough reason for the latter member to give a differing ruling on the same point. Other members of the same court are bound by such a ruling except if they form the view that such a ruling is clearly wrong. However, in this case, Revelas J was dealing with the matter at an interim stage. [32] Generally speaking, a ruling made at an interim stage is not binding on the court hearing the matter on the return day. However, the complicating factor in this matter is that this was a ruling on a question of law arising from an interpretation of a statute and the issue was debated before Revelas J and she gave reasons for her ruling. Where a judge makes a ruling on a question of law, albeit at an interim stage, it may well be that such a ruling is final and therefore binding on the judge dealing with the same matter on the return day because it is not affected by any further affidavits that may be filed later. [33] I have dealt with the matter on the basis that Revelas J s judgement may well be binding on me. I have considered the issue thoroughly. I have even had the privilege of discussing my views with Revelas J and we have also discussed

19 her views on the issue. I am satisfied, having considered all this, that the test which must be satisfied in order for it to be permissible for me not to follow Revelas J s judgement is satisfied in this case. Accordingly I, with respect, propose not to follow her judgement. Once again my decision is therefore that the strike notice given to the council was sufficient and there was no obligation for the giving of a strike notice to the applicant. The waiver argument [34] The applicant also challenged the legality of the second and further respondents strike on the basis that, assuming that the union s giving of the notice of commencement of the strike to the council and not also to the applicant, constituted compliance with the provisions of sec 64(1)(b) of the Act, the second and further respondents were not entitled to commence the strike on the 4th September The basis of this argument was that, as the strike notice issued by NUMSA to the council said the strike would commence on the 1st September 1998 and as the second and further respondents did not commence the strike on the appointed day, they waived their right to strike and no longer had a right to commence the strike on the 4th September.

20 [35] The question I am called upon to decide on this part of this matter is one of the questions I raised in relation to sec 64(1)(b) and the Ceramic judgement in The New Labour Courts and Labour Law: The First Seven Months of the New LRA (1998) 19 ILJ 686 at 702. When I raised these questions about the provisions of sec 64(1)(b), I hardly knew that almost all the cases which would raise these questions about sec 64(1)(b) would end up coming before me. In the as yet unreported judgement I recently handed down in Transportation Motor Spares v NUMSA and Others case No. J2498/98 the question which I had to decide about sec 64(1)(b) was whether, if workers, who had given a sec 64(1)(b) notice, commenced their strike on the day stipulated in the strike notice, but they subsequently suspended their strike and resumed their work, they were obliged to give a second strike notice before they could resume their strike once the suspension thereof had been lifted. I answered that question in the negative. [36] Also in an unreported judgement which I handed down on the 17th June 1998 in Mediterranean Textile Mills (Pty) Ltd v SACWU & Others Case no D249/98, the workers did not commence their strike for about a month after giving their strike notice. The legality of the strike was challenged on two grounds one of which was that the workers had lost their right to strike because

21 they had failed to commence their strike for about a month after the expiry of 48 hours of their strike notice. That submission raised the same question as the question which has arisen in this case. In that matter I did not have to decide that question because on the other ground of challenge I came to the conclusion that the strike was an unprotected one. In this case it is necessary that this issue be decided because even though I found against the applicant on the strike notice, the applicant would be entitled to relief if its contentions on waiver are correct. [37] In Chamber of Mines of SA v NUM & Another (1987) 8 ILJ 68 (A) at 76D E Hoexter JA expressed reservations about the correctness of a view expressed in the context of sec 65 of the Old Act that once a union had acquired the right to strike, the exercise of that right could be deferred indefinitely. In Freestate Consolidated Gold Mines (operations) Limited operating as President Brand Mine v NUM & Others (1987) 8 ILJ 606 (O) Bester J, whose attention was drawn to what Hoexter JA had said in the Chamber of Mines s case referred to above, said the following at 610F: While the remarks of Hoexter JA lend support to the contention that a right to strike acquired in terms of sec 65 must be exercised within a reasonable time, the

22 premise that a right must be asserted within a reasonable time after its acquisition does not warrant the conclusion that the failure to do so results ipso iure in its loss. [38] For his conclusion Bester J relied on what Hefer JA said in Mahabeer v Sharma NO & Another 1985 (3) SA 729 (A) at 736E I. In the context of a delay by a party to a contract to rescind such contract when the right to rescind it has accrued, Hefer JA said in that case that a failure to exercise such a right does not ipso iure result in the loss of that right. He said the delay may, depending on the circumstances, give rise to the inference that the party has waived the right or that he has elected not to exercise the right. He emphasised that the lapse of an unreasonable period of time without such a right being exercised may form part of the material to be considered in order to determine whether the party should be permitted to assert the right. [39] The Act itself does not anywhere contain provisions which expressly state what the effect is in law of a failure on the part of would be strikers to commence their strike on the day given in the strike notice under sec 64(1)(b) as the day on which the strike would commence. To my mind it is highly unlikely

23 that the legislature would have intended that such failure should by itself result in the loss of the right to strike. I say this because, quite apart from there being, in my view, no statutory justification for such a proposition, if regard is had to the various requirements which must be met in order to acquire the right to strike, sec 64(1)(b) is not one of the most important ones. It cannot, for example, be ranked on the same level as the requirement that the issue in dispute must have been referred either to the CCMA or to a council with jurisdiction for conciliation. [40] Even a failure on the part of the union or would be strikers to attend a conciliation meeting in respect of such an issue in dispute does not per se result in the forfeiture of the right to strike. So why should a failure to commence the strike on the appointed day result in such serious consequences? In fact if one has regard to the purpose of sec 64(1)(b) as stated in the Ceramic industries case, no such purpose is necessarily defeated by such non commencement of the strike. If the employer on the appointed day has his replacement labour ready and the normal work force does not go out on strike, the employer can lock the would be strikers out and his replacement labour can work in the interim.

24 [41] At any rate, even if it were to be assumed that a delay in the exercise of the right to strike can by itself result in the loss of such a right, then at least the delay would, in my view, have to be an unreasonable delay. It cannot be said that a delay of three or so days, as was the case in this matter, is an unreasonable delay. If the position is that the delay must be considered as one of a number of factors so as to arrive at the conclusion whether or not the employees have waived their right to strike, in this case there are no other facts which must be taken into account together with the delay. [42] I have come to the conclusion that the second and further respondents did not waive their right to strike and that they were entitled to commence their strike on the day that they did. Accordingly the application falls to be dismissed. With regard to the issue of costs, Mr Cheadle argued that if I dismissed the application, I should award costs in favour of the respondents. Mr Joubert submitted that this is a novel point and that, for that reason, this is not an appropriate case for the Court to award costs. Mindful of the provisions of sec 162 which govern the awarding of costs in this Court and the legal issues which the Court was called upon to decide in this matter, I am inclined to agree with Mr Joubert that this is not an appropriate case to award costs either way. In this

25 regard this Court has to bear in mind that the statutory provisions of sec 162 were intended to ensure that costs did not simply follow the result but that the Court would, in each case, consider whether the requirements of the law and fairness dictate that costs should or should not be awarded. [43] In the result the application for a declarator is dismissed. No order is made as to costs. R. M. M. ZONDO Judge of the Labour Court of South Africa Date of Hearing : 25 September 1998 Date of Judgement : 23 October 1998 For the Applicant : Mr Joubert Instructed by : Joubert Attorneys For the Respondents : Mr H. Cheadle Instructed by Cheadle, Thompson and Haysom