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Bader Bop (Pty) Ltd v National Union of Metal and Allied Workers of SA and Others (JA50/00 ) [2001] ZALAC 27 (29 November 2001)

.RTF of original document

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held in Johannesburg                                                                                                                                                     CASE NO: JA50/00
In the appeal between

Bader Bop (Pty) Ltd                                                   Appellant

And

National Union of Metal and
Allied Workers of SA and Others                   Respondents


JUDGEMENT
________________________________________________________________

ZONDO JP

Introduction

[1]      I have had the benefit of reading the separate judgements prepared by my Colleagues Du Plessis AJA and Davis AJA. Like Du Plessis AJA, I have come to the conclusion that the appeal should be upheld with costs and that the order of the Court a quo should be set aside and replaced with one granting the application with costs. Accordingly I agree with the order proposed by Du Plessis AJA. I set out below my reasons for coming to this conclusion. It is not necessary to set out all the facts of this matter as that has been adequately done in Du Plessis AJA’s judgement. For that reason I shall only refer to those facts that I consider necessary to ensure a proper understanding of this judgement.

Brief facts

[2]      The appellant employs about 1108 employees in the workplace that is affected by the dispute in this matter. 982 of them are semi-skilled or unskilled, and, 126 are administrative and technical staff. A registered trade union known, for short, as GIWUSA has as its members the majority of the employees of the appellant in the workplace. The first respondent, a registered trade union, is a minority union in the workplace in the sense that it has as its members less than half the total number of employees employed by the appellant; in fact its membership is said to be about 26% of the total workforce.

[3]      The appellant has granted GIWUSA, as the majority union, the organisational rights provided for in sec 14 of the Labour Relations Act (“the Act”). The first respondent has been granted the organisational rights provided for in s12 and s13 but not those provided for in s14. The organisational rights provided for in s12 relate to access by a registered trade union that is “sufficiently representative” to the premisses of an employer. The organisational rights provided for in s13 relate to the deduction of union subscriptions or levies from employees who are members of a registered trade union that is “sufficiently representative” and the remittance of such deductions to such trade union. The organisational rights provided for in s 14 relate to the election of trade union representatives of a majority trade union in a workplace.

[4]      The first respondent is demanding that the appellant grant it the organisational rights provided for in sec 14 of the Act. The appellant refuses to grant the first respondent such rights. The reason advanced by the appellant for its refusal is that such rights can only be granted to a majority trade union and not a minority trade union. The first respondent takes the attitude that, despite it being a minority trade union, it is entitled to, and can be granted, organisational rights referred to in sec 14. The first respondent has described the issue in dispute between the parties in par 7.2 of its answering affidavit as the appellant’s refusal to grant the first respondent “the organisational rights referred to in section 14" of the Act.

The referral and the urgent application

[5]      The first respondent referred the dispute between the parties on the appellant’s refusal to grant it the organisational rights referred to in sec 14 to conciliation. After conciliation had failed, the first respondent did not refer the dispute to arbitration as provided for in sec 21(7) of the Act but issued to the appellant a strike notice in terms of sec 64(1)(c) of the Act. The appellant then brought an urgent application to the Labour Court for an order interdicting the intended strike. The Court a quo dismissed the application and later gave leave to appeal to this Court.

The appeal

[6]      In presenting his argument on appeal, Mr Van der Riet, who appeared for the respondents, did so on the basis that the rights which the first respondent sought in this matter were not any rights conferred by Part A of chapter III to the Act. He said that the rights that the first respondent sought fell outside Part A. It seems to me that this line of argument was adopted in an attempt to meet, among others, the argument that sec 14(1) only contemplates the organisational rights provided for therein being granted to a registered trade union that has the majority of the employees in the workplace as its members or two or more registered trade unions that, acting jointly, have the majority of the employees in the workplace as their members. The latter argument would imply that sec 14 does not confer, or make provision for the conferment of, organisational rights on a trade union other than the majority trade union in the workplace.

[7]      I am unable to accept Mr Van der Riet’s submission that the rights which the first respondent sought in this matter were not the rights conferred by Part A in chapter III and that it sought rights which fell outside Part A. A reading of to the correspondence exchanged between the parties and the minutes of meetings held between the parties does not only disprove Mr Van der Riet’s submission but, on the contrary, it shows that what the first respondent sought was definitely rights conferred by Part A including the rights provided for in sec 14. In this regard it needs to be pointed out that:-
(a)      on the 16th August 1999 the first respondent issued a sec 21(1) notice; sec 21(1) prescribes that any registered trade union that seeks to exercise any of the organisational rights conferred by Part A must issue a notice setting out, among others, which organisational rights such union is seeking to exercise; in this regard it is significant that sec 21 specifically provides that it applies to any registered trade union that seeks to exercise any organisational rights conferred by Part A;

(b)      in par 1 of its sec 21 notice the first respondent specified the workplace where it was seeking to exercise these rights; the specification of the workplace in which the organisational rights are sought to be exercised is required by sec 14(1);
(c)      in par 3 of the notice referred to in (a) above, the first respondent specifically said that it wished to discuss with the appellant “our intention to exercise rights in terms of section 14(1) - (5) of the Act, i.e. shop stewards elections”;

(d)      in its letter dated the 14th September 1999 addressed to the appellant, the first respondent stated that it and the appellant had “agreed the elections of trade union representatives shall be conducted taking into account the provisions of section 14(1) - (2) of the act”; in its reply to such letter dated 28th September, the appellant insisted that the granting of sec 14 rights would be dependent on the level of representativeness of the first respondent; it is difficult to understand why the provisions of sec 14 (1) - (2) would have to be taken into account if the rights sought fell outside sec 14;
(e)      in the minutes of a meeting that was held between the appellant and the first respondent on the 17th February 2000(annexure EN 9), the first respondent is reflected as

having said that it had become representative and, because of that, was “entitled to a certain number of shopstewards as prescribed in the Labour Relations Act 66 of 1995.”;
(f)      in the 4th paragraph in the minutes referred to in (d) above the first respondent is reflected as having asked the appellant whether it would withdraw the organisational rights enjoyed by GIWUSA and confer them on it if it became the majority union; in the second paragraph on the second page of those minutes it is recorded that, after the appellant had proved that GIWUSA had majority membership in the workplace, the first respondent “expressed their satisfaction and indicated that they will work hard to ensure that their union becomes (sic) majority.”;it is difficult to see why the first respondent thought it was important for it to attain majority membership in the workplace if it was not because that would qualify it for sec 14 rights;

(g)      in a letter dated the 24th February 2000 (par 1.1) that the


first respondent addressed to the appellant, it said: “NUMSA herein reiterates its position as stated at the above mentioned meeting and confirms its acceptance of the company’s principle stand point that the union that commands majority threshold will be recognised and accorded organisational rights it seeks to exercise.”

(h)      in par 3 of the form used to refer the dispute to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) for conciliation - which is where the nature of the dispute is required to be specified - the first respondent stated that the dispute “relates to section 21 of the Labour Relations Act, 1995"; sec 21 provides a dispute procedure that must be followed by a registered trade union that seeks to exercise any of the organisational rights conferred by Part A to chapter 111 of the Act;
(I)      in par 7 of the referral form referred to in (g) above, the first respondent was required to specify the outcome it desired out of the conciliation process; there it said it sought that:-
“1.       The Company should allow and/or grant NUMSA organisational rights it seeks to exercise.
2.      
The company to conclude a collective agreement as to the manner in which the union will exercise the rights in respect of that workplace.”;
in this regard it is emphasised that 1 and 2 mean that the first respondent sought the conferment of the organisational rights and the conclusion of a collective agreement as to the manner of exercise of such rights which is precisely what is provided for in sec 21(3) of the Act;
(j)      the commissioner who dealt with the conciliation process in this matter certified in the certificate of outcome that the matter “relates to organisational rights in terms of section 21”;
(k)      in par 6.3 of its answering affidavit, the first respondent stated that the appellant could avoid the harm that the intended strike would cause “by granting [the first respondent] the organisational rights referred to in section 14 of the Act.”;
(l)      in par 7.1 of the answering affidavit, the first respondent stated: “I admit that the organisational rights referred to in sections 12, 13 and 15 of Act are not in issue; and that the only issue in dispute is the [appellant’s] refusal to grant [the first respondent] the organisational rights referred to in section 14 of the Act.”;

(m)      in par 7.2 of its answering affidavit, the first respondent went on to say:-
“The [first respondent’s] demand that the [appellant]
grant it the organisational rights referred to in section                          14 is the subject matter of the proposed strike. The                       [first respondent] wants the [appellant] to sign a                                  collective agreement regulating the exercise of these                      organisational rights.”

(n)      in par 7.4 of its answering affidavit, the first respondent stated that the issue in dispute “is one that a party has the right to refer to arbitration in terms of the Act.”

[8]      In my view the question which this appeal raises is whether it is permissible in terms of the Act for a minority trade union to resort to a strike to compel an employer to grant it “organisational rights referred to in sec 14” of the Act particularly where there is a trade union in the workplace that is the representative trade union as defined in sec 14(1). If the answer is in the affirmative, the appeal must fail. If it is in the negative, the appeal must succeed. In this regard it needs to be stated right at the outset that in par 7.4 of its answering affidavit, the first respondent based its members’ alleged right to strike in respect of the issue in dispute in this matter on the provision of s65(2)(a) which I deal with later in this judgement.

[9]      In considering this question one must start at the beginning. The beginning is the Constitution. Sec 23 (1) of the Constitution provides that “ (e)veryone has the right to fair labour practices”. Sec 23 (2) (c) provides that “every worker has the right to strike”. Sec 23 (4) (b) provides that every trade union and every employers’ organisation has the right “to organise”. Sec 23 (5) then says: “Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.” It continues: “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).”

[10]     Sec 36(1) of the Constitution provides as follows:
“36. Limitation of rights. - (1) The rights in the Bill of Rights         may be limited only in terms of law of general application to    the extent that the limitation is reasonable and justifiable in an       open and democratic society based on human dignity, equality     and freedom, taking into account all relevant factors, including-
(a)      the nature of right;
(b)      the importance of the purpose of the limitation;
(c)      the nature and extent of the limitation;
(d)      the relation between the limitation and its purpose;
                           (e)      less restrictive means to achieve the purpose.”

[11]     Subsection (2) of sec 36 of the Constitution provides: “Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”In this regard it is appropriate to state that the right to strike is regarded as an integral part of the process of collective bargaining. It is often said that, without the right to strike, collective bargaining would become collective begging.

[12]     The purpose of the Act is given in sec 1 as being “to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act.” The primary objects of the Act are given as:
“(a)      to give effect to and regulate the fundamental rights conferred by section [23] 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, and
(ii)    
formulate industrial policy; and
(d)     to promote-
(ii)    
orderly collective bargaining;