Actom (Pty) Ltd v National Union of Metal Workers of Southern Africa (NUMSA) and Others (J1089/21) [2021] ZALCJHB 305 (20 September 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case no: J1089/21

In the matter between:

ACTOM (PTY) LTD Applicant

and

NATIONAL UNION OF METAL WORKERS OF

SOUTHERN AFRICA (NUMSA) First

Respondent

THE INDIVIDUALS LISTED IN

ANNEXURE “A Second to Further Respondents

Heard: 9 September 2021 (Virtually)

Delivered: 20 September 2021 (Via email to the parties)

Summary: Strike interdict – strike notice defective – where a strike is suspended a fresh strike notice is not required. The wiring dispute is not one that is regulated by the collective agreement. The regulation and binding effect must be at the time of the strike action and not when the issue in dispute was still being conciliated. Where a dispute has become settled the employees cannot strike over such a settled dispute. The requirements of section 68 (2) only applies in an instance where an order is granted, particularly interdicting a strike action. However, where the Labour Court does not grant an order the requirements of the section finds no application. This is not a requirement entitling the Labour Court to hear an interdict application. Held: (1).The application is dismissed. Held: (2). There is no order as to costs.

JUDGMENT

MOSHOANA, J

Introduction

[1] This is an urgent application in terms of which Actom (Pty) Ltd (Actom) seeks an order interdicting and restraining the members of National Metal Workers Union of Southern Africa (NUMSA) from embarking on or continuing with any form of unprotected industrial action and or engaging in any form of conduct that involves them abandoning their work in any manner or form. The applicant also seeks an order restraining and interdicting NUMSA from inciting or encouraging its members to participate in an unprotected strike action. In addition the applicant sought to interdict violence, damage to property and intimidation or acts related to that. The above orders were in a form of a final interdict. In the self-same notice of motion, the applicant sought a rule nisi as an alternative relief.

[2] The application was fully opposed by NUMSA and its members and all the relevant papers were delivered as well as heads of argument. On the hearing day, full argument was heard. After hearing argument, this Court reserved its judgment.

Background facts

[3] This matter specifically raises four issues; namely (a) the defectiveness of a strike notice; (b) The wiring dispute regulated by a binding collective agreement; (c) The settled demand of Mafeka; and (d) the issue of the 48 hours’ notice contemplated in section 68 (2) of the Labour Relations Act[1] (LRA). In view of that it is not necessary for this Court to fully set out the facts appertaining to this application. Succinctly, the essential facts are that on 25 September 2020, NUMSA referred a dispute to the Commission for Conciliation, Mediation and Arbitration

(CCMA) and demanded that Actom must do the following with regard to its Production Manager, Ms Babalwa Mafeke (Mafeke):

1. The company undertakes to immediately conduct an independent investigation in respect of alleged misconduct by its production manager. The Chairperson of the Johannesburg Bar Council will appoint the investigator, to be paid in full by the company. The investigator

must be an advocate with no less than 10 years of experience in labour law;

2. Immediately after the appointment of the investigator, the production manager must be suspended on full pay. The investigator may within 14 days of his or her appointment uplift the suspension following written representations by the manager, and the union;

3. The investigator must be permitted to meet with the union’s shop stewards who will brief him or her on all grievances against the production manager;

4. The investigations must be completed within 21 days of the appointment of the investigator;

5. The written report of the investigator must be sent to the company and the union;

6. If the investigator finds that there is prima facie proof of misconduct, the company must charge the production manager accordingly,

7. The disciplinary hearing must be chaired by an independent advocate, appointed by the Chairperson of the Johannesburg Bar Council…

8. The chairperson of the hearing must be granted full authority to impose a final sanction on the manager concerned.

[4] It is unclear on the papers as to what actually happened to this dispute since its referral on 20 September 2020. On 16 February 2021, NUMSA referred yet another dispute of mutual interest to the Metal Engineering Industries Bargaining Council (MEIBC). A singular demand was made seeking a conclusion of a collective agreement to regulate five issues listed below.

1. Numsa demands the conclusion of a collective agreement which provides that:

1.1 On switchgear panels, Actom will only use the schematic wiring/drawing (schematic) and will no longer use point to point wiring/drawing

(point to point);

1.2 Those workers who perform the above functions will be graded at Grade A;

1.3 No salaries or benefits of workers may be reduced, because of the move from point to point to schematic;

1.4 The company must immediately begin training on schematic, for all those affected by the collective agreement. During the training, all workers will continue to be paid their full salaries; and

1.5 The move to schematic will come into effect no later than 60 days after the training of all affected workers has been completed.

[5] This dispute was enrolled for conciliation on 5 March 2021. At the commencement of the conciliation process, Actom raised a jurisdictional challenge on the basis that the issues raised by NUMSA were substantive issues regulated by the MEIBC Consolidated Collective Wage Agreement (CCWA) for the 2020/21 year. Commissioner Amold Dibben (Dibben) was appointed as the conciliator. Owing to the jurisdictional attack, the conciliation process was extended and the conciliation meeting was postponed to 26 March 2021. On 26 March 2021, Dibben listened to argument over the jurisdictional attack. On or about 1 April 2021, Dibben issued a detailed ruling and concluded that the dispute relates to substantial issues and falls to be dealt with under centralized collective bargaining not by way of plant

level bargaining; and the case was closed.

[6] This ruling was not challenged by NUMSA on review. It is apparent that on 13 May 2021, NUMSA issued a strike notice, a copy of which was not annexed to the papers that served before Court. It is apparent that the said strike notice required the so-called wiring dispute and the proposed investigation/disciplinary action against its production manager demands to be met. It is also unclear on the papers whether the strike action contemplated in the notice of 13 May 2021, commenced or not. However, on 17 May 2021, NUMSA and Actom reached an agreement which agreed that Mr Ahmed Cachalia (Cachalia) will be appointed to investigate the issue of the production manager as demanded by NUMSA. In relation to the wiring dispute NUMSA agreed that its members will not engage in any strike action pending the conclusion of discussions to reach agreement on the wiring dispute and that its members will not engage in strike action in relation to the wiring dispute before it has given 48 hours’ notice of the strike to the employer. The meeting to discuss the wiring dispute was confirmed for 13h30 on 19 May 2021.

[7] In the meanwhile, Cachalia conducted the investigations on 25 May 2021 and issued a report on 15 June 2021. Cachalia found no misconduct

issues on the part of Mafeke. There was then a lull for over a month or so. On 31 August 2021, at or around 17h23, NUMSA notified Actom that within 48 hours NUMSA shall be calling its members to participate in a resuscitated strike action demanding still the

investigation into the conduct of Mafeke and the wiring dispute. On 1 September 2021, Actom demanded the withdrawal of the strike

notification failing which it shall approach this Court for relief and its written communication constituted a notice in terms of section 68 (2) of the LRA.

[8] On 6 September 2021, the strike action commenced. On or about 7 September 2021, the present application was issued out of the Labour

Court. As indicated earlier, the application is duly opposed.

Applicant’s contentions.

[9] Actom contends that the strike action is unprotected because (a) the strike notice is defective as it bore no date and time of the commencement of the strike action; (b) NUMSA is bound by the outcome of Dibben and cannot strike over the issue decided by Dibben; and (c) the Mafeke demand has been resolved and is incapable of forming a demand for a strike action. In addition, Actom alleged that violence may at any time erupt during which employees, invitees, suppliers and/or customers of Actom and other tenants on the site may be hurt or killed.

NUMSA’s contentions.

[10] NUMSA contends that Actom failed to comply with the provisions of section 68 (2) of the LRA and the urgency claimed was self-created. On the merits, NUMSA contends that the ruling of Dibben is of no consequence and has no binding effect. It further contends that the issue in dispute is not regulated by the collective agreement. In relation to the Mafeke dispute, NUMSA contends that the dispute was never settled and a strike action over it was not called off or withdrawn but merely suspended. Given the fact that its members were not satisfied with the Cachalia resolution they are entitled to revert to the demand.

Evaluation

Strike notice issue

[11] For a strike action to be protected, such action must comply with the substantive and procedural requirements as outlined in the LRA. As a departure point in terms section 23 (2) (c) of the Constitution of the Republic of South Africa, 1996 (the Constitution) every worker has the right to strike. The LRA is legislation passed to give effect to the rights in section 23 of the Constitution. In terms of section 64 (1) (b) of the LRA every employee has the right to strike if in the case of a proposed strike, at least 48 hours’ notice of the commencement of the strike, in writing has been given to the employer. On strict reading of the section, what is required is for the employee to notify the employer at least 48 hours before the commencement of the strike action. However, this section was subjected to interpretation in a number of judgments. The culmination was the matter of SATAWU and others v Moloto and another[2] where the Constitutional Court decreed that the notice must be equivocal and clear.

[12] In casu, the complaint of Actom over the notice given on 31 August 2021 is that same does not specify the date and time of the commencement of the strike. This complaint is unclear to me. The notice in parts reads as follows: “We hereby give you 48 hours’ notice of the commencement of a protected strike by all our members at all your divisions.” This is compliant with the provisions of section 64 (1) (b). On its own version, Actom received this notice at 17h23 on 31 August 2021. It must follow axiomatically that at the end of 48 hours from that time the strike may commence. Therefore, this Court disagrees with any argument that suggests that the strike notice is defective to a point that the strike action does not comply with the procedural requirements outlined in section 64 of the LRA. Accordingly, this basis to impugn the strike action is dismissed.

The Dibben ruling and the wiring dispute

[13] Actom takes a view that the strike over the issue is prohibited because Dibben has ruled that the issue is regulated by a collective

agreement and as such section 65 (1) (a) prohibits the strike action. In support of this view, Mr Gibson, who appeared on behalf of Actom cited a De Beer[3] judgment by Francis J in support of the contention that the strike action does not meet the procedural requirements of the LRA. Mr Niehaus who appeared on behalf of Numsa submitted that the De Beer judgment is wrong and ought not to be followed. The nub of the De Beer judgment is that where a commissioner refused to exercise jurisdiction over a referred dispute of mutual interest, it is as good as there was no referral within the contemplation of section 64 (1) (a) of the LRA and resultantly the procedural requirements of the strike action would not have been met. With considerable regret I disagree with this view. After hearing argument, I directed the parties to the judgment of this Court in Bravo Group Manufacturing (Pty) Ltd t/a Gommagomma v SACTWU and others[4] to enable them to make further submissions. Mr Niehaus urged this Court to follow Bravo. Mr Gibson submitted that the Bravo judgment is distinguishable from the De Beers judgment.

[14] In Bravo this Court stated the following:

“[12] …As indicated in the comment in passing, section 135 (1) obliges the CCMA to appoint a commissioner, whose solitary statutory duty is to attempt to resolve the dispute through conciliation. Rule 14 of the CCMA rules provides that a referring party may be required to prove that the Commission has jurisdiction to conciliate.

[13] The true jurisdictional issue that could be entertained at that stage was whether the CCMA has jurisdictional powers to conciliate a dispute of mutual interest. Section 134 of the LRA provides the answer. Issues relating to the legality of the strike action are issues reserved for the exclusive jurisdiction of the Labour Court. To the extent that Dhlomo enquired into the legality or otherwise of the intended strike action, he was impermissibly encroaching into the exclusive territory of the Labour Court. It is settled law that a decision issued without the necessary power offends the rule of law and is a brutum fulmen…

[14] The above legal position obtains even if a party does not apply for review of a brutum fulmen…

[17] Therefore the conclusion this Court reaches is that the referral is not defective and the provisions of section 64 (1) of the LRA have not been offended in this regard. I am in plentiful agreement with Van Niekerk J…Accordingly, this basis must fail.”

[15] The task of Dibben was a simple one. It was to attempt a solution to the wiring dispute. If he fails to resolve it he must certify so. The exercise of whether the dispute amounts to a substantive dispute and regulated by the collective agreement was an exercise in futility. He simply does not have powers to do so. For him, it was not even a jurisdictional issue, hence his ruling has nothing to do with jurisdiction. All he did was to close the case. Such an action is tantamount to him having failed to resolve the dispute within the 30 days or extended period.

[16] It bears emphasizing that section 64 (1) only requires a referral and not the actual conciliation[5]. In any event, in De Beer, jurisdiction was declined whilst in this matter jurisdiction was accepted but Dibben acted ultra vires. Such action makes his findings brutum fulmen and of no legal consequences. In raising the issue in this Court, being the correct forum, Actom must demonstrate that NUMSA members

are bound by a collective agreement that prohibits strike action in respect of the wiring dispute – section 65 (1) (a) of the LRA. In addition, Actom must demonstrate that NUMSA members are bound by a collective agreement that regulates the wiring dispute – section 65 (3) (a) (i) of the LRA.

[17] The so-called wiring dispute is the one that was referred on 16 February 2021. Properly construed the demand of NUMSA is that of concluding a collective agreement that regulates the issues outlined in the demand. It is one thing to contend that a demand is unlawful it is another to contend that a demand is prohibited by a collective agreement. I fail to understand how a collective agreement can prohibit a conclusion of another collective agreement. For as long as a demand is lawful, employees may strike over such issues. Section 23 (5) of the Constitution guarantees every trade union, NUMSA being one, a right to engage in collective bargaining. Therefore, an employer and an employee are entitled to bargain over anything related to employment. Therefore, NUMSA was entitled to demand the conclusion of a collective agreement over the issues outlined. All are matters of mutual interest. Accordingly, the conclusion this Court reaches is that the provisions of section 65 (1) (a) has not been offended.

[18] Actom pegged its case on the Dibben ruling and failed to make a case in its founding papers that the wiring dispute as explained above was prohibited by the collective agreement and or regulated by the collective agreement. In motion proceedings, a party makes his or her case in the founding papers. Making a case in the replying papers is prohibited.

[19] During argument, Mr Gibson submitted that although the collective agreement in question expired, the veritable question is that when the dispute was referred the collective agreement was extant. I do not agree with the submission. The reach of section 65 is to prohibit a strike action and not dispute resolution steps. Before the expiry of the collective agreement, there was no strike action but a dispute of mutual interest. The purpose of the LRA is to ensure effective resolution of labour disputes. Disputes are not referred to conciliation simply to legitimize a strike action but are referred for resolution. A strike action can only be resorted to if the dispute is not resolved. Therefore, during the referral stage, the primary consideration is the resolution of the dispute through the available statutory mechanisms. The might of any collective agreement is suspended during that period. Once a strike action looms, the might of the collective agreement egresses. A strike action became a reality in this matter on 31 August 2021, when NUMSA notified Actom of the commencement of the strike action. By that time, the collective agreement that allegedly prohibits a strike action had expired on 30 June 2021. A collective agreement acquires its binding effect from section 23 of the LRA. An expired collective agreement ceases to have binding effect. Therefore, after 30 June 2021, there was no collective agreement in place to prohibit strike action over the wiring dispute let alone regulating the wiring dispute.

The Mafeke dispute.

[20] The nature of this dispute was one where, in order to avert a strike action, Actom needed to conduct an investigation into allegations of misconduct and to take disciplinary action against the production manager. A strike action within the meaning of section 213 of the LRA must be one that has as its purpose to resolve a dispute. Once the dispute is resolved by other means other than a strike action, an employee is not allowed to raise a resolved dispute again for resolution by a different means.

[21] In terms of the settlement agreement reached on 17 May 2021, the settlement discussions makes it clear that there were two disputes – clause 1 of the settlement agreement. Of importance, at that time a strike action was looming following the 13 May 2021 strike notice. The purpose of that strike would have been to resolve the demand in relation to Mafeke. The strike action was however suspended. However, it is crystal clear that NUMSA and Actom reached an agreement on the Mfeka dispute. Clause 2 of the settlement agreement recorded the terms of the agreement. Clause 5.1 makes it absolutely clear that the only dispute that parties were still striving to reach an agreement on was the wiring dispute. Absent a demand and or a dispute a strike and or lock-out is unlawful. The Constitutional Court in TAWUSA v Putco Ltd[6] had the following to say:

“[32] The purpose of a lock-out…is to compel employees…to accede to an employer’s demand. Its object is to end a stalemate reached as a result of an impasse in negotiations…in respect of matters of “mutual interest”. A resolution of a dispute can only be reached between adversaries. As a matter of logic, then there must be a dispute between an employer and employee…before a lock-out is instituted. Accordingly, any exclusion of employees that is not preceded by a demand in respect of a disputed matter of mutual interest does not qualify as a lock-out in terms of section 213 of the LRA.

[22] These views apply mutatis mutandis in relation to a strike action. In TAWUSA obo Ngedle and others v Unitrans Fuel and Chemical (Pty) Ltd[7], Zondo J as he then was had the following to say:

“[119] …Once the employer has remedied the grievance or complied with the demand or once the dispute has been resolved, the workers may not continue with their concerted refusal to work because the purpose for which they would have been entitled to withhold their labour would have been achieved. Any continued refusal to work would lack an authorised purpose. Therefore, the strike would be unprotected.”

[23] It must be stated that the Mafeke dispute actually morphed and or mutated into a different dispute. Such mutation is pronounced in the letter of 12 June 2021. In the letter, NUMSA expresses unhappiness with the outcome of the investigations. In pinning their colours to the mast, NUMSA and its members stated the following in that letter:

“We demand that a new investigator be appointed to conduct the investigation. The investigator must be one of the following 3 persons: Advocate Andrew Redding SC, Adv Greg Fourie SC or Advocate Chris Orr SC. These are all independent and respected advocates who have knowledge of the facts in this matter.

If you fail to accede to our demand, we will have no option but to issue a further strike notice.

[24] The original demand in respect of Mafeke required the chairperson of the Johannesburg Bar Council to appoint somebody with no less than ten years of experience in labour law. In the settlement agreement, it was specifically agreed that Cachalia be appointed as an investigator.

[25] Owing to the fact that this is a new demand or dispute as demonstrated above, section 64 (1) (a) requires that the issue in dispute be referred as required by the LRA. In terms of section 213 issues in dispute in relation to a strike means the demand. The demand as spelled out above has not been referred in terms of the LRA. Accordingly, by virtue of section 64 (1) (a), NUMSA members may not strike over that demand. A strike over that demand is unprotected. NUMSA argues that the strike has been suspended thus the procedural requirements cannot be rehashed. I agree if NUMSA was still pursuing the same demand that was referred to in terms of the LRA. In casu the demand that was referred became settled and as such there is no longer a demand that can support a strike action[8].

[26] A strike action is always a composite act. It does not take place in segmented forms. The question then becomes; does one rotten potato spoil the whole bag? Since a strike action is a composite act, it is difficult to police whether employees are supporting one demand or all the demands. In a case where employees have several demands, what happens if only one of them is unlawful? Does it mean the whole strike action is unprotected or not? This is a difficult ask. However Waglay DJP, as he then was, dealt with this issue in this way in Unitrans Fuel and Chemical (Pty) Ltd v TAWUSA[9]:

“[26] Finally, I need to add that although I find that only two of the demands are demands upon which the first respondent is entitled to call upon its members to strike, because the four demands are severable and each can stand alone, the appellant cannot succeed to have the strike interdicted on the grounds that because some of the demands are demands on which the first respondent is prohibited from striking the intended strike is prohibited. The first respondent cannot however continue to persist with all of the demands it has made if it decides to proceed with its intended strike, the demands relating to…must be severed from its list of demands as it is not entitled to call upon its members to strike in respect of those issues.

[27] This view was not questioned by the Constitutional Court in the Ngedle matter. This is the approach this Court must take in respect of the Mafeke dispute. Accordingly, NUMSA must remove the Mafeke dispute as a demand in support of the strike action. Should they persist with that, the strike action over that demand will be unprotected.

Non-compliance with section 68 (2) of the LRA.

[28] On 1 September 2021 at about 15:00, Actom notified NUMSA that should it persist with the strike action it shall approach this Court in order to obtain a relief. Actom served the application on NUMSA on 6 September 2021. Section 68 (2) of the LRA provides that the Labour Court may not grant any order in terms of subsection (1) (a) – which is to grant an interdict or restrain from participating in a strike or any conduct in furtherance of a strike – unless 48 hours’ notice of the application has been given to the respondent. 48 hours constitutes two days. Calculated from 1 September 2021, the 48 hours elapsed on 3 September 2021. By the time NUMSA was served with the application, the 48 hours had already elapsed. It does appear that NUMSA takes a view that the 48 hours is reckoned from the date of the notice of motion. I disagree. In the letter of 1 September 2021, Actom made it clear that it intends to bring an application to restrain the strike action and that its letter constitutes a section 68 (2) notice.

[29] Of relevance is not the notice of motion but knowledge by the respondent that this Court will be approach for an order contemplated in section 68 (1) (a) of the LRA. On the facts of this case NUMSA knew as far back as 1 September 2021 that the application to interdict is in the offing. If the bringing of the application was contemplated as opposed to a notice of the application, section 68 (2) must have read “unless the applicant launches the application in 48 hours’ notice”. Where the LRA requires an application to be launched within a specified period it says so. For instance, section 145 (1) (a) requires a party to apply to the Labour Court within six weeks. The mischief behind section 68 (2) is to avoid a situation where a perfectly protected strike action is restrained by the Labour Court in the absence of the employees or their trade union. The intention is to afford the employees an audi alteram partem, in an instance where their right guaranteed by section 23 (1) (c) of the Constitution may be lost by a stroke of a pen. In terms of the audi principle, a party is to be notified of an impending action that may adversely affect his or her rights. NUMSA was notified of the impending action.

[30] That notwithstanding I take a view that where the Labour Court, as it is the case in this matter is not granting the restraint, the issue of the 48 hours’ notice becomes a red herring. The provision is not there to prevent the hearing of the application but is there to prevent the granting of the order of restraint or interdict. In my view there is a misalignment between the provisions of rule 8 (2) (c) of the Labour Court rules and the section. The rule deals with the bringing of an urgent application whereas, section 68 (2) deals with the granting of the order. As a matter of law Rules are there for the Court and not the Rules for the Court. In any event, section 210 provides that in the event of conflict the provisions of the LRA shall prevail. On application of rule 8 (2) (c) the Labour Court may refuse to hear the application if 48 hours’ notice is not given. On application of section 68 (2) the Labour Court is only gagged from granting an order. It may well be so that the Labour Court may refuse to hear an urgent application where a strike action is to be interdicted simply because the 48 hours’ notice was not complied with in bringing the application. As I said, the period in 68 (2) relates to the granting of the order as opposed to hearing the application. The interest of justice requires that where an interdict is not to be granted, an application may not be thrown out on the basis that the provisions of the rule has not been complied with.

[31] The phrase may not equates cannot. Therefore, what the Labour Court cannot do is to grant the order as opposed to hearing the application. The word ‘grant’ literally means agree to give or allow something requested. The word is diametrically different in meaning with the word ‘hear’. In law, the meaning of the word ‘hear’ is to listen to and judge thereafter. In terms of section 68 (1) (a) the Labour Court is empowered to grant an interdict or order to restrain. Quiet apart, it is not empowered to listen only.

[32] Accordingly, in my view, this Court is not prevented to hear this application. It did hear it and is not granting any order interdicting or restraining. I hold a view that refusing to hear these types of applications on the basis of what I consider to be a wrong interpretation of the section is at odds with section 34 of the Constitution.

[33] In the results, the following order is made:

Order

1. The application is heard as one of urgency.

2. The application is dismissed.

3. NUMSA and its members are nonetheless precluded to, in the present strike action, persist with the demand in respect of the Mafeke issue.

4. There is no order as to costs.

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr C Gibson.

Instructed by: Fluxmans

Incorporated, Rosebank.

For the Respondents: Mr N Niehaus of Minnaar Niehaus Attorneys, Gqeberha.

[1] No. 66 of 1995, as amended.

[2] 2012 (6) SA 249 (CC)

[3] Mr Gibson undertook to provide the Court with a copy of the De Beer judgment. Such a copy was not availed. In the supplementary submissions a wrong citation was provided. This Court was, with the limited duration it had unable to source this judgment. It is good practice for counsel to avail a copy of a judgment in an urgent Court, particularly where a full citation is not provided by counsel.

[4] (D407/21) dated 07 July 2021.

[5] See Macsteel Service Centres SA (Pty) Ltd v Numsa and others (J1063/21) dated 8 September 2021.

[6] 2016 (4) SA 39 (CC)

[7] 2016 (11) BCLR 1440 (CC)

[8] See TSI Holdings (Pty) Ltd and others v Numsa [2006] 7 BLLR 631 (LAC) at paras 26-27

[9] [2011] 2 BLLR 153 (LAC).