Arcelormittal South Africa v National Union of Metal Workers of South Africa and Others (2024/130792) [2024] ZALCJHB 449; [2025] 2 BLLR 195 (LC); (2025) 46 ILJ 595 (LC) (15 November 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG Reportable Case No: 2024-130792 In the matter between: ARCELORMITTAL SOUTH AFRICA (PTY) LTD Applicant and NATIONAL UNION OF METALWORKERS OF SOUTH AFRICA (NUMSA) First Respondent GENERAL INDUSTRIES WORKERS UNION OF SOUTH AFRICA (GIWUSA) Second Respondent MEMBERS OF NUMSA AND GIWUSA Further Respondents Heard: 15 November 2024 Delivered: 15 November 2024 JUDGMENT MAKHURA, J [1] On 13 November 2024, the applicant launched an urgent application to declare that the intended strike action by the National Union of Metalworkers of South Africa (NUMSA) and the General Industries Workers Union of South Africa (GIWUSA) and their respects members

(employees) scheduled to commence at 5h00 on Thursday, 14 November 2024 unprotected, and to interdict and restrain them from participating in the intended strike action. The interdict against the employees was sought against two categories of employees – those who work in the maintenance service and all other employees. This application was set down for hearing at 18h00 on 13 November 2024. [2] Although brought on an extremely short notice, the Court determined the application and granted a rule nisi and interim order interdicting and restraining the maintenance services employees from participating in the intended strike action. In determining this part of the application, the Court was informed primarily by two primary reasons – first, section 68(4) read with section 68(2) of the Labour Relations Act[1] (LRA) exempts the employer from complying with a period of 48 hours’ notice of the application where it seeks to interdict a strike by employees engaged in essential service or a maintenance service; second, the Court was of the view that the applicant has made out a prima facie case for an interim relief on the strength of the Essential Services Committee ruling dated 2 September 2024, which declared that the Blast Furnaces, Coke Battery and Steel Plants departments of the applicant as maintenance services. Therefore, the maintenance service employees are those employed in these three departments. This order remains operative. [3] The Court was however not inclined to entertain the application against the category of all other employees on the basis of the applicant’s non-compliance with section 68(2) of the LRA. This part of the application was postponed to Friday, 15 November 2024. This judgment deals only with the application against these employees. [4] The notice of motion against these employees first seeks condonation for failure to comply with the 48 hours’ notice. The applicant then seeks a declaratory relief that the intended strike by the respondents is unprotected and an interdict against the employees from engaging in the strike action, picketing and any conduct in contemplation or furtherance of such a strike, including but not limited to picketing, instigating, promoting or encouraging any strike action, gathering and protest action, or any other conduct in pursuit of their demands pending the determination and outcome of the interpretation and application dispute referred by the applicant to the Commission for Conciliation, Mediation and Arbitration (CCMA). [5] The genesis of this application is the notices of termination of the employees’ contract of employment issued on 5 November 2024 following a facilitated large scale retrenchment process. In response to these terminations, NUMSA addressed a letter to the applicant on 11 November 2024 titled “strike notice in terms of section 64 and section 189A(9) of the LRA” (strike notice). The strike notice informed the applicant that NUMSA intends to embark on a strike action and that this would commence at 5h00 on Thursday, 14 November 2024 and will take place in Newcastle, Vanderbijlpark and Vereeniging workplace. The letter articulated NUMSA’s demand as follows: ‘The industrial action is in response to the employer’s decision to retrench NUMSA members on the 05 November 2024, the demand being for the reinstatement of these members in terms of Section 189A(7)(b)(i). Should your offices wish to accede to the demand and reinstate NUMSA’s members as stated herein, NUMSA will cease its strike action and require its members to report for duty.’ [6] The applicant rejected NUMSA’s demand. In its response contained in a letter dated 11 November 2024 from its attorneys of record, the applicant argued that NUMSA’s strike is unprotected because NUMSA failed to follow the provisions of the collective agreement prior to issuing the strike notice nor has it referred the dispute to the CCMA. The second argument raised in the letter related to the maintenance service employees, which issue I have already determined. The applicant then demanded a written undertaking from NUMSA that it would not embark on the strike action and reserved the right to interdict the strike. This application is before this Court because NUMSA did not accede to the applicant’s demand. [7] I deal first with the referral of the interpretation and application dispute to the CCMA. The applicant contends that it had referred an interpretation and application dispute to the CCMA on 12 November 2024 and therefore the strike should be interdicted pending the determination and outcome on this issue by the CCMA. This Court has been asked in these proceedings to determine whether the strike is protected or not. The referral to the CCMA of this dispute, which in essence is to ask the CCMA to pronounce on whether the collective agreement applies to the issue in dispute and ultimately whether the strike is protected, is in my view, of no moment and irrelevant. The CCMA cannot determine the issue regarding the protected nature of the strike. That issue is reserved for this Court. [8] The second primary contention by the applicant is that the strike is unprotected because NUMSA did not follow the provisions of the collective agreement. It contends that it concluded a collective agreement with NUMSA which prescribes a dispute resolution

procedure. Clause 7 of the collective agreement provides that: ‘Any dispute between the Parties shall be dealt with in accordance with the provisions contained in Annexure C hereto. For the purpose of this agreement, disputes common to the Company shall be referred to the Corporate Forum. Disputes concerning specific Operating Sites shall be dealt with at the specific Operating Site unless the procedure provides otherwise.’ [9] Clause 5 of annexure C sets out that: ‘Disputes capable of a protected Strike and Lock-out in terms of the Act (Annexure C2): The Parties agree that such disputes can either be referred to private mediation or the MEIBC for conciliation as set out in Annexure C2. The process to be followed may either be agreed if deadlock is reached at the negotiations or at a dispute meeting. The dispute meeting will depending on the nature of the dispute be held at the Operating Site or at the Company head office. At the dispute meeting the Parties will endeavour to resolve the dispute. The Parties may be represented by an agreed number of employer and trade union representatives. If the Parties are unable to resolve the dispute at said meeting they will attempt to agree in writing on the process to be followed.’ [10] Annexure C2 is a flowchart setting out the process to be followed. First, it is envisaged that a formal declaration of the dispute is required, followed by the applicant, through its human resources and/or employee relations department, instituting a dispute

meeting, then followed by the meeting between the parties where they would endeavour to resolve the dispute, failing which they would be required to agree on a process to follow in terms of the LRA or agree on the dispute referral process to be followed. This latter agreement would lead to a referral either to the Metal Engineering Industries Bargaining Council (MEIBC) or private

mediation and/or later conciliation before NUMSA could issue a 48 hours’ strike notice. [11] In support of its arguments, the applicant relies on various judgments of this Court and the Labour Appeal Court (LAC). Primarily, reliance is placed on the judgment of this Court in Arcelormittal South Africa Limited v National Union of Metal Workers of South Africa and Others[2] (Arcelormittal), where the Court, per Tlhotlhalemaje J, found that: ‘ln the light of the agreed dispute-resolution provisions not having been followed in the manner prescribed (i.e., absence of a dispute meeting held or an agreement in writing on what process was to be followed prior to the referral), it cannot be correct as submitted on behalf of NUMSA, that these provisions were substantially complied with. Any comparisons made with the decision in Phopho in regard to whether there was substantial compliance with the dispute resolution provisions ought to be looked at within the context of the facts of that case. Unlike in this case, the issue in Phopho was whether there was compliance with the provisions of Section 36(2)(c) of the South African Police Service Act. Thus, even if collective agreements are a form of subordinate legislation, given their self-regulatory nature and purpose, it is doubted that

substantial compliance with such agreements can be placed on par with such compliance when it comes to statutory provisions. As was stated in Cusa v Tao Ying, the concomitant of the right to engage in collective bargaining is the right to insist on compliance with the provisions of the collective agreement which is the product of the collective bargaining process, whilst the enforcement of collective agreements is vital to industrial peace. In the light of the objectives and reasoning behind these internal dispute resolution processes agreed to, it is my view that to insist that NUMSA ought to have strictly complied with those provisions, cannot be said to result in an intrusion on its members' right to strike, nor can it be viewed as additional limitations to those contained in Section 65 of the LRA. The procedures agreed upon are the parties' self-imposed limitations which they deemed necessary for the effective regulation of their relationship, inclusive of the right to strike. To this end, it is not even necessary to determine whether the applicant had waived its rights to a dispute meeting before a referral to the MEIBC when it attended the conciliation meeting at the MEIBC on 7 September 2020. In the light of the above conclusions, it follows that the applicant's application for interdictory relief should be successful.’[3] [Own emphasis] [12] Mr Boda, appearing for the applicant, mutedly submitted that the matter is res judicata as this Court pronounced on the issue of strike and compliance with collective agreement. I disagree with this contention. Equally, I disagree that this judgment gives rise to the issue of estoppel. At best, the doctrine of stare decisis would apply insofar as the above judgment is applicable to the current dispute. [13] Second, the applicant placed its reliance on BMW South Africa (Pty) Ltd v NUMSA obo Members[4] (BMW), where Waglay DJP (as he then was), writing for the majority, held as follows: ‘The respondent on the other hand argues that it is not obliged to comply with the procedure set out in clause A.8.3 because its demand is one of mutual interest and it is entitled to embark on a strike in support of its demand as long as it does so in compliance with the provisions of the Labour Relations Act no 66 of 1995 (as amended) (the Act). I disagree. Where parties have concluded an agreement which does not deny any of the parties to the agreement the rights and obligations provided in the Act, I see no reason why that agreement cannot be enforced. In fact the Act seeks to promote collective bargaining, particularly at the sectoral level and gives primacy to collective agreements.’[5] [Own emphasis] [14] Third, the applicant referred to the judgment of this Court in Transnet SOC Ltd v SA Transport and Allied Workers Union[6] where the Court simply made an observation that BMW overruled County Fair Foods (Pty) Ltd v Food and Allied Workers Union and others[7], in which the LAC had previously held in relation to a primary strike that a trade union party to a collective agreement could elect to comply either with the procedural requirements contained in a collective agreement, or those prescribed by the LRA. [15] I take no issue with the above judgments, particularly in Arcelormittal and BMW. As a matter of principle, I agree with the legal principle enunciated therein. However, the judgments are clearly distinguishable from the current matter. In both judgments, the Court was dealing with mutual interest issues which were regulated in terms of the collective agreement. In Arcelormittal, the demands included increased severance packages, ex gratia payment, medical aid contributions and housing allowance. [16] The parties in BMW had agreed that for the duration of the collective agreement, they would not make any further demands in respect of substantive wage and/or benefit covered by the agreement. The union later demanded payment of transport allowance to hourly-paid employees, which was rejected by the employer, leading to the union referring the dispute to the CCMA for conciliation. A certificate of outcome

was issued to the effect that the parties would engage in a facilitated process in accordance with the collective agreement. After a failed facilitation process, the union obtained a certificate of outcome and issued a strike notice. The LAC, in its majority judgment, in addition to what I referred to in paragraph 13 above, held that: ‘A collective agreement concluded between the parties is binding between them. It is a contract that sets the agreed terms between them and as long as what is agreed upon is not in conflict with the applicable legislation or contra bones mores it is binding and enforceable between them.’ [17] The above judgments advanced sound and important principles of our labour laws – that enforcement of collective agreement is important to industrial peace – parties who voluntarily reach an agreement on how some of

their rights should or would be limited must be held to that agreement – however, the limitation must not deny any of the parties to the agreement the rights and obligations provided in the LRA or any law. Therefore, the parties are not permitted to contract out of the LRA and unjustifiably limit the rights of one of the parties. [18] Section 189A(7) of the LRA provides: ‘If a facilitator is appointed in terms of subsection (3) or (4), and 60 days have elapsed from the date on which notice was given in terms of section 189 (3) - (a) the employer may give notice to terminate the contracts of employment in accordance with section 37 (1) of the Basic Conditions of Employment Act; and (b) a registered trade union or the employees who have received notice of termination may either - (i) give notice of a strike in terms of section 64 (1) (b) or (d); or (ii) refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court in terms of section 191 (11).’ [Own emphasis] [19] Section 64 regulates the right to strike. Section 64(1)(b) provides: ‘Every employee has the right to strike and every employer has recourse to lock out if – (b) 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 ’ [20] In casu, it is common cause that the retrenchment was facilitated, that 60 days elapsed since the applicant issued a section 189(3) notice, that the applicant issued notices of termination of employment and that NUMSA issued a 48 hours’ notice of the commencement of the strike. The notices of termination triggered the right to strike and NUMSA followed the procedure as set out in section 189A(7)(b)(i)

read with section 64(1)(b) of the LRA. [21] Mr Boda submitted that the phrase “any dispute” referred to in the collective agreement which “shall” be dealt with in accordance with the provisions contained in Annexure C includes a dispute in this case. [22] The LRA has expressly distinguished large scale retrenchment and other disputes and created its own dispute resolution procedure. The collective agreement makes no such distinction. [23] Any earlier suggestion by the applicant, which was wisely abandoned by Mr Boda during the hearing, that the employees in facilitated large scale retrenchment process in terms of section 189A(7) who elect to strike after the termination notices must first refer a dispute to conciliation was crushed by the LAC in Edcon v Steenkamp and Others[8] as follows: ‘The notice given by the employer in terms of section 189A(7)(a) of the LRA, after the 60 day period allowed for facilitation has elapsed, triggers the right of the employees or their representatives to resort to either strike action in terms of section 189A(7)(b)(i) of the LRA or litigation in terms of section 189A(7)(b)(ii) of the LRA. There are two notable features of the right to strike conferred by section 189A(7)(b)(i) of the LRA. The first is that the dispute does not have to be referred to a bargaining council or the CCMA for conciliation over a 30 day cooling-off period, as is normally required in terms of section 64 of the LRA.’[9] [Own emphasis] [24] Equally, as parties cannot contract out of the LRA, even if the collective agreement regulated this issue and NUMSA was required first to follow the internal dispute resolution process, I have serious doubt that such an agreement would pass the constitutional

scrutiny and be allowed to undermine and delay the employees’ fundamental right to strike in the context where time means everything to the employees whose notice period continues to run. Once the procedural pre-conditions relating to the issue or demand regulated by the LRA have been met, the strike is protected. My view is fortified by the Constitutional Court in the judgment of Transport and Allied Workers Union of South Africa obo Ngedle and others v Unitrans Fuel and Chemical (Pty) Ltd[10], referred by Mr Cook who appeared for NUMSA in his heads of argument, where the Court, per Jafta J, held that: ‘Recently, in Moloto this Court expanded on the principle laid down in Zuma. It pronounced: “The right to strike is protected as a fundamental right in the Constitution without any express limitation. Constitutional rights conferred without express limitation should not be cut down by reading implicit limitations into them and when legislative provisions limit or intrude upon those rights they should be interpreted in a manner least restrictive of the right if the text is reasonably capable of bearing that meaning. The procedural pre-conditions and substantive limitations of the right to strike in the Act contain no express requirement that every employee who intends to participate in a protected strike must personally or through a representative give notice of the commencement of the intended strike, nor that the notice must indicate who will take part in the strike.”’[11] [25] The collective agreement, in my view, finds no application in this matter. There is no provision expressly regulating mass retrenchment strike which then means the Court must read into the agreement to find that the agreement implicitly requires the employees to follow the internal procedures before referring the dispute to conciliation. Mr Boda however submitted that no referral to conciliation is necessary, despite the collective agreement making such a provision. In my view, interpreting the word “any” to include a dispute of this nature and find that the employees, in this case, must first resort to an internal process (that is, from a facilitation

process before a commissioner to an internal meeting between the parties) will be inconsistent with the LRA, a mockery of section 189A(7)(b)(i) read with section 64(1)(b) of the LRA, and an unjustifiable limitation of the employees’ right to strike. I do not read and understand the Arcelormittal judgment by Tlhotlhalemaje J to establish a general legal principle that all disputes emanating from the large scale retrenchment must first be processed and resolved internally (where there is a collective agreement) before the employees acquire the right to strike. That matter dealt with its own facts where NUMSA raised mutual interest disputes. [26] The applicant referred to the judgment of the LAC in the National Union of Metalworkers of SA obo Members v SAA Technical SOC Ltd[12] (SAA Technical). Mr Boda, however, submitted he does not intend to rely on this judgment insofar as it requires an unfair dismissal dispute emanating

from large scale retrenchment to be referred to conciliation. There, the Court was dealing with the issue of whether the employees who were dismissed subsequent to a facilitated large scale retrenchment process, can refer their unfair dismissal dispute directly to this Court without first referring it for conciliation. Following on Intervalve[13] and Driveline[14] judgments, the Court held that a referral of the unfair dismissal dispute for conciliation is a precondition for this Court to adjudicate the dispute. [27] The respondents in this matter have, at least for now, elected to use the right conferred to them in terms of section 189A(7)(b). They have not, for now, referred an unfair dismissal dispute. This distinction is material. The right to strike in section 189A(7)

diminishes with every passing day for dismissed employees who are currently serving out their notice periods and those remaining employees who act in solidarity with their fellow dismissed employees because once the dismissal takes effect after the notice period, these dismissed employees will lose the right to strike against the applicant. [28] The facilitated process had taken place over a period of 60 days. The notice of termination had been issued after this period. There is nothing in the LRA and no logic in law to take the parties out of the CCMA or independent facilitated process to an internal

process of negotiation, and later back to the CCMA for conciliation or as suggested by the applicant, to only acquire the right to strike after internal negotiations deadlocked and a 48 hours’ strike notice is issued. [29] Unlike in a referral of an unfair dismissal dispute where section 189A(7)(b)(ii) refers to section 191(11) which expressly requires

an unfair dismissal dispute following a large scale retrenchment to be referred to this Court adjudication “within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved”, there is no such provision in the LRA that requires employees who elect to strike in response to the termination notices to refer a dispute to conciliation. The legislature decided deliberately that employees may resort to the strike after the notice of termination, as long as they comply with section 64. Section 64 only requires them to give the employer 48 hours’ notice of strike. To expect the employees to follow an allegedly implied internal process will be to paralyse the right of the employees to strike and render any strike action in the future useless. [30] Section 189A(7) is no different to section 64(4), where in a case of the employer unilaterally changing the terms and conditions of employment, the employees may refer a dispute to the CCMA or bargaining council and require the employer not to implement the changes or where the changes have been implemented, to require the employer to restore the original terms and conditions. In that situation, the referral to the Council is equivalent to the 48 hours’ notice in section 189A(7) in that the employees acquire the right to strike upon or after the expiry of 48 hours’ notice. [31] I am mindful of the submission made by Mr Boda that the applicant is only seeking an interim relief. The legal principles on the granting of interim relief have been articulated more often than they are now trite. Mr Boda emphasised that the applicant only needed to show a prima facie case. The respondents have filed their answering affidavit in this matter and having considered the papers, I am in no doubt that the collective agreement does not apply and that the strike is protected. [32] In conclusion, I find that the strike embarked upon by NUMSA and its members who are non-maintenance service employees from 12 November 2024 is protected. The application therefore stands to be dismissed. [33] In the premises, the following order is made: Order 1. The application to declare the strike action which commenced on 14 November 2024 unprotected is dismissed. M. Makhura Judge of the Labour Court of South Africa Appearances: For the Applicant: Mr F. Boda SC Instructed by: Cliffe Dekker Hofmeyr Inc. For NUMSA: Mr A.L. Cook Instructed by: Purdon & Munsamy Attorneys For GIWUSA: Mr. K. Poriazis (GIWUSA Legal Officer)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case No: 2024-130792

In the matter between:

ARCELORMITTAL SOUTH AFRICA (PTY) LTD Applicant

and

NATIONAL UNION OF METALWORKERS

OF SOUTH AFRICA (NUMSA) First Respondent

GENERAL INDUSTRIES WORKERS UNION

OF SOUTH AFRICA (GIWUSA) Second Respondent

MEMBERS OF NUMSA AND GIWUSA Further Respondents

Heard: 15 November 2024

Delivered: 15 November 2024

JUDGMENT

MAKHURA, J

[1] On 13 November 2024, the applicant launched an urgent application to declare that the intended strike action by the National Union of Metalworkers of South Africa (NUMSA) and the General Industries Workers Union of South Africa (GIWUSA) and their respects members

(employees) scheduled to commence at 5h00 on Thursday, 14 November 2024 unprotected, and to interdict and restrain them from participating in the intended strike action. The interdict against the employees was sought against two categories of employees – those who work in the maintenance service and all other employees. This application was set down for hearing at 18h00 on 13 November 2024.

[2] Although brought on an extremely short notice, the Court determined the application and granted a rule nisi and interim order interdicting and restraining the maintenance services employees from participating in the intended strike action. In determining this part of the application, the Court was informed primarily by two primary reasons – first, section 68(4) read with section 68(2) of the Labour Relations Act[1] (LRA) exempts the employer from complying with a period of 48 hours’ notice of the application where it seeks to interdict a strike by employees engaged in essential service or a maintenance service; second, the Court was of the view that the applicant has made out a prima facie case for an interim relief on the strength of the Essential Services Committee ruling dated 2 September 2024, which declared that the Blast Furnaces, Coke Battery and Steel Plants departments of the applicant as maintenance services. Therefore, the maintenance service employees are those employed in these three departments. This order remains operative.

[3] The Court was however not inclined to entertain the application against the category of all other employees on the basis of the applicant’s non-compliance with section 68(2) of the LRA. This part of the application was postponed to Friday, 15 November 2024. This judgment deals only with the application against these employees.

[4] The notice of motion against these employees first seeks condonation for failure to comply with the 48 hours’ notice. The applicant then seeks a declaratory relief that the intended strike by the respondents is unprotected and an interdict against the employees from engaging in the strike action, picketing and any conduct in contemplation or furtherance of such a strike, including but not limited to picketing, instigating, promoting or encouraging any strike action, gathering and protest action, or any other conduct in pursuit of their demands pending the determination and outcome of the interpretation and application dispute referred by the applicant to the Commission for Conciliation, Mediation and Arbitration (CCMA).

[5] The genesis of this application is the notices of termination of the employees’ contract of employment issued on 5 November 2024 following a facilitated large scale retrenchment process. In response to these terminations, NUMSA addressed a letter to the applicant on 11 November 2024 titled “strike notice in terms of section 64 and section 189A(9) of the LRA” (strike notice). The strike notice informed the applicant that NUMSA intends to embark on a strike action and that this would commence at 5h00 on Thursday, 14 November 2024 and will take place in Newcastle, Vanderbijlpark and Vereeniging workplace. The letter articulated NUMSA’s demand as follows:

‘The industrial action is in response to the employer’s decision to retrench NUMSA members on the 05 November 2024, the demand being for the reinstatement of these members in terms of Section 189A(7)(b)(i).

Should your offices wish to accede to the demand and reinstate NUMSA’s members as stated herein, NUMSA will cease its strike action and require its members to report for duty.’

[6] The applicant rejected NUMSA’s demand. In its response contained in a letter dated 11 November 2024 from its attorneys of record, the applicant argued that NUMSA’s strike is unprotected because NUMSA failed to follow the provisions of the collective agreement prior to issuing the strike notice nor has it referred the dispute to the CCMA. The second argument raised in the letter related to the maintenance service employees, which issue I have already determined. The applicant then demanded a written undertaking from NUMSA that it would not embark on the strike action and reserved the right to interdict the strike. This application is before this Court because NUMSA did not accede to the applicant’s demand.

[7] I deal first with the referral of the interpretation and application dispute to the CCMA. The applicant contends that it had referred an interpretation and application dispute to the CCMA on 12 November 2024 and therefore the strike should be interdicted pending the determination and outcome on this issue by the CCMA. This Court has been asked in these proceedings to determine whether the strike is protected or not. The referral to the CCMA of this dispute, which in essence is to ask the CCMA to pronounce on whether the collective agreement applies to the issue in dispute and ultimately whether the strike is protected, is in my view, of no moment and irrelevant. The CCMA cannot determine the issue regarding the protected nature of the strike. That issue is reserved for this Court.

[8] The second primary contention by the applicant is that the strike is unprotected because NUMSA did not follow the provisions of the collective agreement. It contends that it concluded a collective agreement with NUMSA which prescribes a dispute resolution

procedure. Clause 7 of the collective agreement provides that:

‘Any dispute between the Parties shall be dealt with in accordance with the provisions contained in Annexure C hereto.

For the purpose of this agreement, disputes common to the Company shall be referred to the Corporate Forum.

Disputes concerning specific Operating Sites shall be dealt with at the specific Operating Site unless the procedure provides otherwise.’

[9] Clause 5 of annexure C sets out that:

‘Disputes capable of a protected Strike and Lock-out in terms of the Act (Annexure C2):

The Parties agree that such disputes can either be referred to private mediation or the MEIBC for conciliation as set out in Annexure C2. The process to be followed may either be agreed if deadlock is reached at the negotiations or at a dispute meeting.

The dispute meeting will depending on the nature of the dispute be held at the Operating Site or at the Company head office. At the dispute meeting the Parties will endeavour to resolve the dispute. The Parties may be represented by an agreed number of employer and trade union representatives.

If the Parties are unable to resolve the dispute at said meeting they will attempt to agree in writing on the process to be followed.’

[10] Annexure C2 is a flowchart setting out the process to be followed. First, it is envisaged that a formal declaration of the dispute is required, followed by the applicant, through its human resources and/or employee relations department, instituting a dispute

meeting, then followed by the meeting between the parties where they would endeavour to resolve the dispute, failing which they would be required to agree on a process to follow in terms of the LRA or agree on the dispute referral process to be followed. This latter agreement would lead to a referral either to the Metal Engineering Industries Bargaining Council (MEIBC) or private

mediation and/or later conciliation before NUMSA could issue a 48 hours’ strike notice.

[11] In support of its arguments, the applicant relies on various judgments of this Court and the Labour Appeal Court (LAC). Primarily, reliance is placed on the judgment of this Court in Arcelormittal South Africa Limited v National Union of Metal Workers of South Africa and Others[2] (Arcelormittal), where the Court, per Tlhotlhalemaje J, found that:

‘ln the light of the agreed dispute-resolution provisions not having been followed in the manner prescribed (i.e., absence of a dispute meeting held or an agreement in writing on what process was to be followed prior to the referral), it cannot be correct as submitted on behalf of NUMSA, that these provisions were substantially complied with. Any comparisons made with the decision in Phopho in regard to whether there was substantial compliance with the dispute resolution provisions ought to be looked at within the context of the facts of that case. Unlike in this case, the issue in Phopho was whether there was compliance with the provisions of Section 36(2)(c) of the South African Police Service Act. Thus, even if collective agreements are a form of subordinate legislation, given their self-regulatory nature and purpose, it is doubted that

substantial compliance with such agreements can be placed on par with such compliance when it comes to statutory provisions.

As was stated in Cusa v Tao Ying, the concomitant of the right to engage in collective bargaining is the right to insist on compliance with the provisions of the collective agreement which is the product of the collective bargaining process, whilst the enforcement of collective agreements is vital to industrial peace.

In the light of the objectives and reasoning behind these internal dispute resolution processes agreed to, it is my view that to insist that NUMSA ought to have strictly complied with those provisions, cannot be said to result in an intrusion on its members' right to strike, nor can it be viewed as additional limitations to those contained in Section 65 of the LRA. The procedures agreed upon are the parties' self-imposed limitations which they deemed necessary for the effective regulation of their relationship, inclusive of the right to strike. To this end, it is not even necessary to determine whether the applicant had waived its rights to a dispute meeting before a referral to the MEIBC when it attended the conciliation meeting at the MEIBC on 7 September 2020.

In the light of the above conclusions, it follows that the applicant's application for interdictory relief should be successful.’[3] [Own emphasis]

[12] Mr Boda, appearing for the applicant, mutedly submitted that the matter is res judicata as this Court pronounced on the issue of strike and compliance with collective agreement. I disagree with this contention. Equally, I disagree that this judgment gives rise to the issue of estoppel. At best, the doctrine of stare decisis would apply insofar as the above judgment is applicable to the current dispute.

[13] Second, the applicant placed its reliance on BMW South Africa (Pty) Ltd v NUMSA obo Members[4] (BMW), where Waglay DJP (as he then was), writing for the majority, held as follows:

‘The respondent on the other hand argues that it is not obliged to comply with the procedure set out in clause A.8.3 because its demand is one of mutual interest and it is entitled to embark on a strike in support of its demand as long as it does so in compliance with the provisions of the Labour Relations Act no 66 of 1995 (as amended) (the Act). I disagree. Where parties have concluded an agreement which does not deny any of the parties to the agreement the rights and obligations provided in the Act, I see no reason why that agreement cannot be enforced. In fact the Act seeks to promote collective bargaining, particularly at the sectoral level and gives primacy to collective agreements.’[5] [Own emphasis]

[14] Third, the applicant referred to the judgment of this Court in Transnet SOC Ltd v SA Transport and Allied Workers Union[6] where the Court simply made an observation that BMW overruled County Fair Foods (Pty) Ltd v Food and Allied Workers Union and others[7], in which the LAC had previously held in relation to a primary strike that a trade union party to a collective agreement could elect to comply either with the procedural requirements contained in a collective agreement, or those prescribed by the LRA.

[15] I take no issue with the above judgments, particularly in Arcelormittal and BMW. As a matter of principle, I agree with the legal principle enunciated therein. However, the judgments are clearly distinguishable from the current matter. In both judgments, the Court was dealing with mutual interest issues which were regulated in terms of the collective agreement. In Arcelormittal, the demands included increased severance packages, ex gratia payment, medical aid contributions and housing allowance.

[16] The parties in BMW had agreed that for the duration of the collective agreement, they would not make any further demands in respect of substantive wage and/or benefit covered by the agreement. The union later demanded payment of transport allowance to hourly-paid employees, which was rejected by the employer, leading to the union referring the dispute to the CCMA for conciliation. A certificate of outcome

was issued to the effect that the parties would engage in a facilitated process in accordance with the collective agreement. After a failed facilitation process, the union obtained a certificate of outcome and issued a strike notice. The LAC, in its majority judgment, in addition to what I referred to in paragraph 13 above, held that:

‘A collective agreement concluded between the parties is binding between them. It is a contract that sets the agreed terms between them and as long as what is agreed upon is not in conflict with the applicable legislation or contra bones mores it is binding and enforceable between them.’

[17] The above judgments advanced sound and important principles of our labour laws – that enforcement of collective agreement is important to industrial peace – parties who voluntarily reach an agreement on how some of

their rights should or would be limited must be held to that agreement – however, the limitation must not deny any of the parties to the agreement the rights and obligations provided in the LRA or any law. Therefore, the parties are not permitted to contract out of the LRA and unjustifiably limit the rights of one of the parties.

[18] Section 189A(7) of the LRA provides:

‘If a facilitator is appointed in terms of subsection (3) or (4), and 60 days have elapsed from the date on which notice was given in terms of section 189 (3) -

(a) the employer may give notice to terminate the contracts of employment in accordance with section 37 (1) of the Basic Conditions of Employment Act; and

(b) a registered trade union or the employees who have received notice of termination may either -

(i) give notice of a strike in terms of section 64 (1) (b) or (d); or

(ii) refer a dispute concerning whether there is a fair reason for the dismissal to the Labour Court in terms of section 191 (11).’ [Own emphasis]

[19] Section 64 regulates the right to strike. Section 64(1)(b) provides:

‘Every employee has the right to strike and every employer has recourse to lock out if –

(b) 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 ’

[20] In casu, it is common cause that the retrenchment was facilitated, that 60 days elapsed since the applicant issued a section 189(3) notice, that the applicant issued notices of termination of employment and that NUMSA issued a 48 hours’ notice of the commencement of the strike. The notices of termination triggered the right to strike and NUMSA followed the procedure as set out in section 189A(7)(b)(i)

read with section 64(1)(b) of the LRA.

[21] Mr Boda submitted that the phrase “any dispute” referred to in the collective agreement which “shall” be dealt with in accordance with the provisions contained in Annexure C includes a dispute in this case.

[22] The LRA has expressly distinguished large scale retrenchment and other disputes and created its own dispute resolution procedure. The collective agreement makes no such distinction.

[23] Any earlier suggestion by the applicant, which was wisely abandoned by Mr Boda during the hearing, that the employees in facilitated large scale retrenchment process in terms of section 189A(7) who elect to strike after the termination notices must first refer a dispute to conciliation was crushed by the LAC in Edcon v Steenkamp and Others[8] as follows:

‘The notice given by the employer in terms of section 189A(7)(a) of the LRA, after the 60 day period allowed for facilitation has elapsed, triggers the right of the employees or their representatives to resort to either strike action in terms of section 189A(7)(b)(i) of the LRA or litigation in terms of section 189A(7)(b)(ii) of the LRA. There are two notable features of the right to strike conferred by section 189A(7)(b)(i) of the LRA. The first is that the dispute does not have to be referred to a bargaining council or the CCMA for conciliation over a 30 day cooling-off period, as is normally required in terms of section 64 of the LRA.’[9] [Own emphasis]

[24] Equally, as parties cannot contract out of the LRA, even if the collective agreement regulated this issue and NUMSA was required first to follow the internal dispute resolution process, I have serious doubt that such an agreement would pass the constitutional

scrutiny and be allowed to undermine and delay the employees’ fundamental right to strike in the context where time means everything to the employees whose notice period continues to run. Once the procedural pre-conditions relating to the issue or demand regulated by the LRA have been met, the strike is protected. My view is fortified by the Constitutional Court in the judgment of Transport and Allied Workers Union of South Africa obo Ngedle and others v Unitrans Fuel and Chemical (Pty) Ltd[10], referred by Mr Cook who appeared for NUMSA in his heads of argument, where the Court, per Jafta J, held that:

‘Recently, in Moloto this Court expanded on the principle laid down in Zuma. It pronounced:

“The right to strike is protected as a fundamental right in the Constitution without any express limitation. Constitutional rights conferred without express limitation should not be cut down by reading implicit limitations into them and when legislative provisions limit or intrude upon those rights they should be interpreted in a manner least restrictive of the right if the text is reasonably capable of bearing that meaning. The procedural pre-conditions and substantive limitations of the right to strike in the Act contain no express requirement that every employee who intends to participate in a protected strike must personally or through a representative give notice of the commencement of the intended strike, nor that the notice must indicate who will take part in the strike.”’[11]

[25] The collective agreement, in my view, finds no application in this matter. There is no provision expressly regulating mass retrenchment strike which then means the Court must read into the agreement to find that the agreement implicitly requires the employees to follow the internal procedures before referring the dispute to conciliation. Mr Boda however submitted that no referral to conciliation is necessary, despite the collective agreement making such a provision. In my view, interpreting the word “any” to include a dispute of this nature and find that the employees, in this case, must first resort to an internal process (that is, from a facilitation

process before a commissioner to an internal meeting between the parties) will be inconsistent with the LRA, a mockery of section 189A(7)(b)(i) read with section 64(1)(b) of the LRA, and an unjustifiable limitation of the employees’ right to strike. I do not read and understand the Arcelormittal judgment by Tlhotlhalemaje J to establish a general legal principle that all disputes emanating from the large scale retrenchment must first be processed and resolved internally (where there is a collective agreement) before the employees acquire the right to strike. That matter dealt with its own facts where NUMSA raised mutual interest disputes.

[26] The applicant referred to the judgment of the LAC in the National Union of Metalworkers of SA obo Members v SAA Technical SOC Ltd[12] (SAA Technical). Mr Boda, however, submitted he does not intend to rely on this judgment insofar as it requires an unfair dismissal dispute emanating

from large scale retrenchment to be referred to conciliation. There, the Court was dealing with the issue of whether the employees who were dismissed subsequent to a facilitated large scale retrenchment process, can refer their unfair dismissal dispute directly to this Court without first referring it for conciliation. Following on Intervalve[13] and Driveline[14] judgments, the Court held that a referral of the unfair dismissal dispute for conciliation is a precondition for this Court to adjudicate the dispute.

[27] The respondents in this matter have, at least for now, elected to use the right conferred to them in terms of section 189A(7)(b). They have not, for now, referred an unfair dismissal dispute. This distinction is material. The right to strike in section 189A(7)

diminishes with every passing day for dismissed employees who are currently serving out their notice periods and those remaining employees who act in solidarity with their fellow dismissed employees because once the dismissal takes effect after the notice period, these dismissed employees will lose the right to strike against the applicant.

[28] The facilitated process had taken place over a period of 60 days. The notice of termination had been issued after this period. There is nothing in the LRA and no logic in law to take the parties out of the CCMA or independent facilitated process to an internal

process of negotiation, and later back to the CCMA for conciliation or as suggested by the applicant, to only acquire the right to strike after internal negotiations deadlocked and a 48 hours’ strike notice is issued.

[29] Unlike in a referral of an unfair dismissal dispute where section 189A(7)(b)(ii) refers to section 191(11) which expressly requires

an unfair dismissal dispute following a large scale retrenchment to be referred to this Court adjudication “within 90 days after the council or (as the case may be) the commissioner has certified that the dispute remains unresolved”, there is no such provision in the LRA that requires employees who elect to strike in response to the termination notices to refer a dispute to conciliation. The legislature decided deliberately that employees may resort to the strike after the notice of termination, as long as they comply with section 64. Section 64 only requires them to give the employer 48 hours’ notice of strike. To expect the employees to follow an allegedly implied internal process will be to paralyse the right of the employees to strike and render any strike action in the future useless.

[30] Section 189A(7) is no different to section 64(4), where in a case of the employer unilaterally changing the terms and conditions of employment, the employees may refer a dispute to the CCMA or bargaining council and require the employer not to implement the changes or where the changes have been implemented, to require the employer to restore the original terms and conditions. In that situation, the referral to the Council is equivalent to the 48 hours’ notice in section 189A(7) in that the employees acquire the right to strike upon or after the expiry of 48 hours’ notice.

[31] I am mindful of the submission made by Mr Boda that the applicant is only seeking an interim relief. The legal principles on the granting of interim relief have been articulated more often than they are now trite. Mr Boda emphasised that the applicant only needed to show a prima facie case. The respondents have filed their answering affidavit in this matter and having considered the papers, I am in no doubt that the collective agreement does not apply and that the strike is protected.

[32] In conclusion, I find that the strike embarked upon by NUMSA and its members who are non-maintenance service employees from 12 November 2024 is protected. The application therefore stands to be dismissed.

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

Order

1. The application to declare the strike action which commenced on 14 November 2024 unprotected is dismissed.

M. Makhura

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr F. Boda SC

Instructed by: Cliffe Dekker Hofmeyr Inc.

For NUMSA: Mr A.L. Cook

Instructed by: Purdon & Munsamy Attorneys

For GIWUSA: Mr. K. Poriazis (GIWUSA Legal Officer)

[1] Act 66 of 1995, as amended; Section 68(2) provides that: “The Labour Court may not grant any order in terms of subsection (1) (a) unless 48 hours' notice of the application has been given to the respondent: However, the Court may permit a shorter period of notice if - (a) the applicant has given written notice to the respondent of the applicant's intention to apply for the granting of an order; (b) the respondent has been given a reasonable opportunity to be heard before a decision concerning that application is taken; and (c) the applicant has shown good cause why a period shorter than 48 hours should be permitted”. Section 68(4) provides: “Subsections (2) and (3) do not apply to an employer or an employee engaged in an essential service or a maintenance service”. [2] [2020] ZALCJHB 244; (2021) 42 ILJ 1099 (LC). [3] Ibid paras 38 – 41. [4] [2011] ZALAC 24; (2012) 33 ILJ 140 (LAC). [5] Ibid at para 9. [6] (2013) 34 ILJ 1281 (LC); [2012] ZALCJHB 107. [7] (2001) 22 ILJ 1103 (LAC); [2001] 5 BLLR 494 (LAC). [8] [2015] ZALAC 2; (2015) 36 ILJ 1469 (LAC). [9] Ibid at para 15. [10] 2016 (11) BCLR 1440 (CC); (2016) 37 ILJ 2485 (CC). [11] Ibid at para 222. [12] [2024] ZALAC 41; (2024) 45 ILJ 2524 (LAC). [13] National Union of Metalworkers of SA v Intervalve (Pty) Ltd and others (2015) 36 ILJ 363 (CC); [2015] 3 BLLR 205 (CC). [14] National Union of Metalworkers of SA and others v Driveline Technologies (Pty) Ltd and another (2000) 21 ILJ 142 (LAC); [1999] ZALC 157.

[1] Act 66 of 1995, as amended; Section 68(2) provides that: “The Labour Court may not grant any order in terms of subsection (1) (a) unless 48 hours' notice of the application has been given to the respondent: However, the Court may permit a shorter period of notice if - (a) the applicant has given written notice to the respondent of the applicant's intention to apply for the granting of an order; (b) the respondent has been given a reasonable opportunity to be heard before a decision concerning that application is taken; and (c) the applicant has shown good cause why a period shorter than 48 hours should be permitted”. Section 68(4) provides: “Subsections (2) and (3) do not apply to an employer or an employee engaged in an essential service or a maintenance service”.

[1] Act 66 of 1995, as amended; Section 68(2) provides that: “The Labour Court may not grant any order in terms of subsection (1) (a) unless 48 hours' notice of the application has been given to the respondent: However, the Court may permit a shorter period of notice if -

(a) the applicant has given written notice to the respondent of the applicant's intention to apply for the granting of an order;

(b) the respondent has been given a reasonable opportunity to be heard before a decision concerning that application is taken; and

(c) the applicant has shown good cause why a period shorter than 48 hours should be permitted”.

Section 68(4) provides: “Subsections (2) and (3) do not apply to an employer or an employee engaged in an essential service or a maintenance service”.

[2] [2020] ZALCJHB 244; (2021) 42 ILJ 1099 (LC).

[3] Ibid paras 38 – 41.

[4] [2011] ZALAC 24; (2012) 33 ILJ 140 (LAC).

[5] Ibid at para 9.

[6] (2013) 34 ILJ 1281 (LC); [2012] ZALCJHB 107.

[7] (2001) 22 ILJ 1103 (LAC); [2001] 5 BLLR 494 (LAC).

[8] [2015] ZALAC 2; (2015) 36 ILJ 1469 (LAC).

[9] Ibid at para 15.

[10] 2016 (11) BCLR 1440 (CC); (2016) 37 ILJ 2485 (CC).

[11] Ibid at para 222.

[12] [2024] ZALAC 41; (2024) 45 ILJ 2524 (LAC).

[13] National Union of Metalworkers of SA v Intervalve (Pty) Ltd and others (2015) 36 ILJ 363 (CC); [2015] 3 BLLR 205 (CC).

[14] National Union of Metalworkers of SA and others v Driveline Technologies (Pty) Ltd and another (2000) 21 ILJ 142 (LAC); [1999] ZALC 157.