---

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J398/21

In the matter between:

THE AIRLINE PILOTS’ ASSOCIATION OF SOUTH AFRICA (ALPA-SA), as represented by the SOUTH AFRICAN AIRWAYS PILOTS’ ASSOCIATION (SAAPA), a branch of ALPA-SA obo MEMBERS                               Applicant

and

SOUTH AFRICAN AIRWAYS (SOC) LIMITED                       First Respondent

LES MATUSON N.O.                                                              Second Respondent

SIVIWE DONGWANA N.O.                                                     Third Respondent

THE MINISTER OF PUBLIC ENTERPRISES N.O.                 Fourth Respondent

Heard:      21 May 2021 (via Zoom)

Delivered:   This judgment was handed down electronically by circulation to the parties' legal representatives and publication on the Labour Court’s website. The date and time for the hand-down is deemed to be on 23 May 2021 at 23:00

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1]           The applicant (SAAPA), which is a duly constituted branch of the applicant (The Airline Pilots’ Association of South Africa (ALPHA-SA), approached this Court on an urgent basis, to obtain interim relief pending the hearing of the Main Application by this Court on 15 June 2021 under the present case number.

[2]           Other than ancillary declaratory relief sought by SAAPA, principal is essentially an order interdicting and restraining the First Respondent (SAA) from;

‘2.2.1        Taking into employment any person, inclusive of pilots previously employed by it, and from engaging the services of a temporary employment service or independent contractor, to perform any duties of those of the Applicant’s members who are currently participating in the Applicant’s Strike action; and

2.2.2        Utilising the services of any person, inclusive of pilots previously employed by it, who have already been employed/re-employed to perform the duties of those of the Applicant’s members who are engaged in the current industrial action between the parties; and

2.2.3        Utilising the services of any person who had received training from any of the persons referred to in paragraphs 2.2.1 and 2.2.2 above’

Background:

[3]           The background to the dispute is succinctly set out in the judgment of Van Niekerk J delivered on 29 December 2020 under case number J1507/2020[1]. I therefore do not propose to regurgitate that background other than to point out the following salient common cause facts;

3.1         The applicant represents about 89% of the pilots employed by SAA. Central to the dispute between the parties is the desire of SAA since December 2001, to renegotiate and/or cancel a long standing Collective Agreement concluded between the parties (The ‘Regulating Agreement’) in February 1997, which governs the pilots’ terms and conditions of employment. SAA contends that the terms of the agreement are unduly onerous and unsustainable given its parlous financial position.

3.2         The applicant has consistently resisted any attempts by SAA to cancel the Agreement. Private arbitration proceedings held in that regard ended with a finding that the Regulation Agreement could not be terminated on notice, unless explicitly rescinded by a subsequent agreement. Recent attempts by SAA in November 2019 to terminate the agreement were equally resisted by the applicant. Equally, two applications launched in this Court and the High Court in November and December 2019 for declaring the agreement unconstitutional and unlawful and therefore not binding, are nowhere near being determined.

3.3         Since 5 December 2019, SAA has been under voluntary business rescue, with the second and third respondents appointed as joint Business Rescue Practitioners. A rescue plan was adopted on 14 July 2020, and business rescue proceedings terminated on 30 April 2021.

3.4         The business rescue plan envisages amongst other things, the retrenchment of the majority of SAA’s employees by about two thirds, including pilots, and changes to terms and conditions of employment of those employees to be retained. SAA further seeks to commence commercial operations with effect from 1 July 2021.

3.5         Pursuant to the adoption of the rescue plan, SAA on 18 July 2020, issued a Notice in terms of section 189(3) of the Labour Relations Act (LRA)[2] to all its employees. Facilitation meetings in terms of section 189A of the LRA under the auspices of the Commission for Conciliation Mediation and Arbitration (CCMA) which commenced on 11 August 2020 and bilateral meetings have not yielded an agreement.

3.6         When SAA failed to secure a commitment from the applicant to re-negotiate new terms and conditions of employment for its members, it then tabled certain demands, including the termination of the Regulating Agreement, all its annexures, and all other collective agreements concluded between the parties. It further tabled revised salaries for captains and first officers, and revised terms and conditions of employment for pilots within a new organisational structure. Needless to say, the applicant refused to yield.

3.7         SAA then on 30 October 2020 referred a matter of mutual interest to the CCMA against the applicant, again demanding the cancellation of the Regulating Agreement. Conciliation meetings in December 2020 also yielded no results. When the CCMA could not break the deadlock in respect of the Regulating Agreement, SAA had then on 16 December 2020, issued a notice of lock-out in terms of section 64(1)(c) of the LRA.

3.8         In terms of the notice, all the members of the applicant with an exception of certain individuals, were then excluded from the workplace with effect from 12h00 on Friday, 18 December 2020 until such time that the demands set out in the lock-out letter were met. The letter further advised that employees locked out would also not receive any remuneration or benefits during the lock-out.

3.9         The applicant then approached this Court on an urgent basis seeking inter alia, a final order declaring the lock-out to be unlawful and unprotected. In the judgment handed down by Van Niekerk J as indicated above, that application was dismissed, with the Court further concluding that the lock-out imposed by SAA was both lawful and protected. A subsequent leave to appeal met the same fate.

3.10      On 30 March 2021, the applicant gave notice of its intention to embark upon strike action with effect from 1 April 2021, in response to the lock-out. Central to the applicant’s demands were are;

3.10.1     SAA must agree that the Regulating Agreement, its annexures and all other related collective agreements should only be terminated on the following date on which the last of its members leave the employ of SAA pursuant to the provisions of section 189(34) Notice issued on 18 July 2020.

3.10.2     SAA’s proposed terms and conditions of employment for future pilots relating to dismissal for operational reasons, and the three months’ notice period be applied to the dismissal of existing pilots who are its members;

3.10.3     SAA must pay all its members who are to be retrenched, three months’ remuneration in lieu of notice.

3.11      SAA has not met the above demands, and in its response on 6 April 2021, it acknowledged the strike and reiterated that the lock-out would continue in response to the strike.. On 12 April 2021, the applicant approached this Court on an extremely urgent basis, seeking inter alia, an order declaring that;

3.11.1     The lock-out effective from 18 December 2020 has not been in response to any industrial action on its part;

3.11.2     SAA is not permitted to take into employment any person to perform the duties of those of its members who are currently not rendering services due to the industrial action the parties are engaged in;

3.11.3     SAA’s re-employment of pilots whose services were previously terminated constituted a transgression of section 76 of the LRA, or to the extent that such pilots have not yet been so re-employed, that SAA will act in contravention of section 76 of the LRA should it give effect to its intention do so.

3.12      Further orders sought included those set out in the Notice of Motion in this application as set out above; declaring the lock-out unprotected and or unlawful; interdicting and restraining SAA from participating in the lock-out of its members; prohibiting and restraining any of its members from tendering their services; and payment of remuneration since the lock-out; and declaring non-payment of remuneration from 01 – 18  December 2020 to be unlawful.

3.13      That Main application was similarly opposed and came before Nkutha-Nkontwana J on 15 April 2021. The matter was then postponed to 15 June 2021. The applicant contends that the Main application was brought on an extremely urgent basis as it had reason to believe at the time that SAA was on the verge of engaging Replacement Labour in contravention of the provisions of section 76(1)(b) of the LRA.

The present application and the submissions:

[4]           In bringing this application for interim relief pending the hearing of the Main application on 15 June 2021, the applicant contends that SAA since the postponement, taken steps which are unlawful, and which upset the agreed equilibrium (i.e., the lock-out, the strike and an agreement not to employ replacement labour). In this regard, it was submitted that SAA seeks to engage Replacement Labour to render vital training functions in order for it to recommence its operations, and also seeks to source external trainers

[5]           It was submitted that the interim order would prevent SAAPA and its members from suffering irreparable harm, since SAA has now engaged Replacement Labour and external trainers in order to fulfil the vital training functions ordinarily rendered by its members who are not rendering such services as a consequence of the industrial action. To the extent that SAA seeks to commence operations on 1 July 2021, it was submitted that it seeks to do so by unlawfully utilising Replacement Labour, thus completely and permanently destroying the efficacy of SAAPA’s defensive strike action, which conduct would be in contravention of the provisions of section 76(1)(b) of the LRA.

[6]           SAA correctly points out that central to this application is an enquiry into whether its conduct infringes the provisions of section 76(1)(b) of the LRA by taking into employment, any persons to perform training functions rendered by the management pilots or training pilots who are currently on strike, and secondly, whether it is appropriate in the circumstances to interdict it from doing so pending the hearing of the Main application on 15 June 2021.

[7]           SAA conceded that it is investigating engaging persons to perform training on aircraft that it intends to fly being Airbuses A340 and 320, and the intended training includes training persons to train pilots. It conceded that the intended training was ordinarily performed by four specific pilots in its employ. It contended that on 29 March 2021, it had partially uplifted the lock-out in relation to certain individuals including three of the four individuals. One of them had in any event not previously been locked out. SAAPA objected to the partial uplifting of the lock-out, and the individuals concerned refused to report for duty and instead joined the strike which had commenced on 1 April 2021.

[8]           To the extent that the pilots who would ordinarily have provided the intended training, SAA contends that they would have done so but for being locked-out. It therefore submitted that the engagement of persons to do the intended training, which work would have been done by the pilots locked-out was not an infringement of section 76(1)(b) of the LRA, on the grounds that their engagement is not to do work of any persons currently locked-out. The persons identified to do the training were thus not locked-out, and had they been not on strike, they would have been required to perform the training.

[9]           In support of its contentions, SAA relied on the judgment of Van Niekerk J delivered on 29 December 2020[3], wherein it was held that a lock-out did not have to include every employee affected by the dispute and may be partial; and that a lock-out may even be lifted temporarily and then re-imposed during the course of a collective bargaining dispute.

[10]        SAA further submitted that even if since 6 April 2021 the identified pilots were locked-out (even though they were not), it had made it clear that the lock-out was in response to SAAPA’s strike. Its intentions therefore fell outside the prohibition in section 76(1)(b) of the LRA, as that section permitted replacement labour even if employees were locked-out, provided the lock-out was in response to the strike. SAA further contended that there was no imminent harm or prejudice which required the temporary intervention of this Court

Evaluation:

[11]        To the extent that central to the applicant’s case is whether the provisions of section 76(1)(b) of the LRA are being contravened, it would not be necessary to address issues surrounding the lawfulness of the lock-out implemented with effect from 18 December 2020. That issue was in any event disposed of by Van Niekerk J in the judgment delivered on 29 December 2021, and whether it is permissible for the applicant seeks to pursue it, is for the Court on 15 June 2021 to determine, when the Main application is heard.

[12]        The requirements for granting interim relief are well known. Other than establishing urgency, the applicant is required to establish that it is entitled to interim relief on the grounds that; (a) the right which is the subject-matter of the main application and which the applicant seeks to protect by means of interim relief is clear or, if not clear, is prima facie established, though open to some doubt; (b) if such case is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim interdict is not granted and the applicant ultimately succeeds in establishing his or her right; (c) there is no other satisfactory remedy; and (d) the balance of convenience favours the granting of interim relief.[4]

[13]        In Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another^[5], it was held that the granting of interim relief pending an action is an extraordinary remedy within the discretion of the Court, and that the discretion would be exercised with due regard to the requirements to be met and the facts of the case.

[14]        The Constitutional Court in ‘OUTA’ further added that when a court considers whether to grant an interim interdict it must do so in a way that promotes the objects, spirit and purport of the Constitution[6]. Similarly, when this Court considers granting interim relief, it must do so in a manner that promotes the objects and purpose of the LRA as set out in its section 1[7].

[15]        The full text of section 76 of the LRA provides as follows;

‘76. Replacement labour.

(1)          An employer may not take into employment any person-

(a)          to continue or maintain production during a protected strike if the whole or a part of the employer's service has been designated a maintenance service; or

(b)          for the purpose of performing the work of any employee who is locked out, unless the lock-out is in response to a strike.

(2)          For the purpose of this section, 'take into employment' includes engaging the services of a temporary employment service or an independent contractor.’

[16]        It is apparent that inasmuch as collective bargaining and utilisation of labour weapons is left to the parties, the above provisions seeks to ensure that the battle field is at all times levelled[8]. The question that arises is whether by engaging replacement labour, SAA has tilted the scales in its favour in its on-going dispute with the applicant, and thus acted contrary to the provisions of section 76(1)(b) of the LRA.

[17]        For the applicant to establish a prima facie right, even if open to doubt, it must demonstrate that SAA has taken a person into employment, for the purposes of performing the work of the applicant’s members who are locked-out, and that the lock-out imposed by SAA was not in response to a strike.

[18]        This question ought to be answered in the context of the established principle that the employment of temporary replacement labour in contravention of section 76(1)(b) of the LRA by an employer in the course of a protected lock-out does not affect the legality of such a lock-out[9], and this is so in that there is no such a provision in the LRA.

[19]        The proper approach in interpreting the provisions section 76(1)(b) of the LRA is that as enunciated by the Supreme Court of Appeal in Natal Joint Municipal Pension Fund v Endumeni Municipality[10]. Recently in National Union of Metal Workers of South Africa and Others v Aveng Trident Steel (a division of Aveng Africa (Pty) Ltd) and Another[11], it was held that the meaning of the provisions of the LRA must be garnered from the plain language of the text, its scope, location in the scheme of the LRA and its purpose, and that in doing so, the courts must also heed the interpretative injunction that promotes the spirit, purport and objects of the Bill of Rights[12]. Equally so, the provisions of section 3 of the LRA, requires any person applying the Act, to interpret its provisions (a) to give effect to its primary objects; (b) in compliance with the Constitution; and (c) in compliance with the public international law obligations of South Africa.

[20]        Earlier in SACTWU v Coats^[13], this Court had held that an employer does not contravene the provisions of section 76(1)(b) of the LRA by using its employees who are not locked out to perform their own work as well as the work of their co-workers who are locked out. The Court appreciated that non-striking employees and employees who have not been locked out, may refuse to do the work of their co-workers who are either on strike or locked out. Flowing from this decision, it is apparent that section 76(1)(b) does not prohibit an employer from implementing a lock-out in response to a strike and then sourcing replacement labour, to perform the work of the locked out employees.

[21]        In interpreting the same provisions, the Labour Appeal Court (LAC) in Technikon SA v National Union of Technikon Employees[14], held that purposive interpretation was no licence to ignore the language used in the statute which is the subject of interpretation, and that there was no justification for reading into section 76(1)(b) of the LRA, a word which was not there[15]. The LAC further added that;

“[40]     The rationale behind s 76(1)(b) is that if an employer decides to institute a lock-out as the aggressor in the fight between itself and employees or a union, it may not employ temporary replacement labour. That is to discourage the resort by employers to lock-outs. The rationale is to try and let employers resort to lock-outs only in those circumstances where they will be prepared to do without replacement labour (i.e. when they are the aggressors) or where they are forced to in self-defence in the sense that the lock-out is 'in response to' a strike by the union and the employees - in other words, where the union and the employees are the aggressors.

[42]      The policy is one that also says to unions and employees: Do not lightly resort to a strike when a dispute has arisen because, in the absence of a strike, the employer may not employ replacement labour even if it institutes a lock-out but, if you strike, the employer will be able to employ replacement labour - with or without a lock-out. The sum total of all this is that the policy is to encourage parties to disputes to try to reach agreement on their disputes and a strike or lock-out should be the last resort, when all reasonable attempts to reach agreement have failed.

[22]        The facts of this case are largely not in dispute. SAA had commenced a lock-out on 18 December 2020, and excluded some of the applicant’s members. In objecting to the selective lock-out, and when those employees initially not locked out refused to render their services, the applicants then instituted their own strike action, which SAA in its response had acknowledged and indicated that its lock-out would continue in response to the strike.

[23]        Applying the legal principles alluded to elsewhere in this judgment to the facts of this case, it ought to be concluded that the replacement labour that SAA seeks to utilise will perform the duties of four individuals, who for all intents and purposes, were not locked-out, but had however since joined cause with the protected strike, as they had refused to tender their services.

[24]        In line with what was stated in Technikon SA v National Union of Technikon Employees,[16] SAA is thus permitted to employ replacement labour even if it had initially instituted a lock-out. This is so in that the individuals who would ordinarily have performed the work in question, were not initially locked-out, but had refused to perform those duties. When the applicant commenced its strike action and SAA confirmed the continuation of its lock-out in response to that strike, this significantly diminished the applicant’s protection under the proviso set out in section 76(1)(b) of the LRA, thus entitling SAA to engage replacement labour.

[25]        To the extent that the applicant had not established a prima facie right even if open to doubt, it follows that this should be the end of the matter. However, in line with what was stated in Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another[17] that the requirements of interim relief are not individually decisive but are interrelated, I will proceed to deal with whether other requirements for the relief have been met.

[26]        This therefore requires of the applicant to show a reasonable apprehension of irreparable harm if the interim relief was not granted. In this regard, it was contended that the training of new pilots by replacement labour and the effect thereof cannot be undone, as it was to take place in May 2021, and will be completed prior to the main application being heard.

[27]        It was correctly pointed out on behalf of SAA that the engagement of trainers in three weeks prior to the hearing on 15 June 2021 will not cause irreparable harm. It is not sufficient for the applicant to allege that the training by replacement labour will render nugatory, the relief it seeks in the main, or undermine its members’ right to strike, without demonstrating in what respect the individual members would suffer damages or prejudice. In any event, to the extent that the applicant had not established a prima facie right to the relief it seeks, it would be incongruous in my view in this instance, to speak of irreparable harm to the applicant in the same sentence.

[28]        The balance of convenience in this case cannot favour the granting of interim relief, in circumstances where the applicant has not established irreparable harm. SAA clearly has a right to prepare to commence its operations with effect from 1 July 2021, and the harm it will bear far outweighs that to be endured by the applicant (if any), should the relief be granted. SAA as acknowledged by the applicant, has not operated commercially since March 2020. Surely since the business rescue plan was adopted in 14 July 2020, SAA is entitled for its and other broader interests, to start operating commercially.

[29]        It is needless to even deal with whether the applicant has a an alternative remedy. That remedy is hardly 17 court days away as at the hearing of this matter, when the full merits of the Main application would be ventilated. It remains inexplicable as to the reason the applicant saw it fit to bring this application at this stage, in the light of the conclusions reached in regard to the failure to establish the first two basic requirement of the relief it seeks. To the extent that it was alleged that there was no alternative remedy to  stopping the use of replacement labour, once a conclusion was reached that SAA was permitted to do so, then clearly that argument falls away.

[30]        To conclude therefore, there was no need for this application to be before the Court some 17 court days before the Main application was to be heard, where the parties were to fully ventilate the issues raised in the same application. In the end, the applicant has not demonstrated why this Court should exercise its discretion and grant the extraordinary remedy it seeks. This is even moreso where the applicant has not satisfied the requirements of the relief it seeks, and it follows that the application should be dismissed.

Order:

1.            The application is dismissed.

2.            The costs of this application are to be determined in the main application.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant:  Adv. L Hollander, instructed by Minnaar Niehaus Attorneys

For the First Respondent:    Adv. A Redding SC with Adv V Mndebele, instructed by Edward Nathan Sonnenbergs INC

---