Combined Cleaners (Pty) Ltd t/a Spot On Cleaners v National Union of Metalworkers of South Africa and Others (J1260/2021) [2021] ZALCJHB 348 (12 October 2021)

THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

Not reportable

Case No: J 1260/2021

In the matter between:

COMBINED CLEANERS (PTY) LTD

t/a SPOT ON CLEANERS Applicant

and

NATIONAL UNION OF METALWORKERS

OF SOUTH AFRICA 1st Respondent

INDIVIDUALS NAMED IN ANNEXURE ‘A’

TO THE NOTICE OF MOTION 2nd Respondent

Date of hearing: 11 October 2021

Date of judgment: 12 October 2021. Judgment delivered by email.

JUDGMENT

VAN NIEKERK J

[1] This is an urgent application in which the applicant seeks to interdict a strike called by the first respondent (the union). The strike has been called in support of demand relating to the acquisition of organisational rights by the union at the applicant’s premises.

[2] The material facts are not in dispute. The applicant carries on business as a laundry. It has some 168 employees who are members of various trade unions. During the course of last year, the union sought to exercise organisational rights in terms of the LRA. The applicant refused to extend the organisational rights sought by the union and that this refusal has resulted in a number of referrals to the CCMA. On 8 October 2020, the CCMA issued a certificate to the effect that the dispute between the parties remained unresolved. On the same day, the union requested that the dispute be resolved through arbitration. The arbitration hearing was scheduled for 11 February 2021. At the hearing, the matter was settled on the basis that the applicant would deduct trade union subscriptions in respect of its employees who are members of the union. It was further agreed that no further organisational rights would be granted to the union ‘provided NUMSA’s constitution is amended to include laundry sector’. What was clearly meant by this was that unless and until the union amended its constitution to include laundry sector, the applicant’s

obligations extended only to the deduction of union subscriptions and levies. On 2 May 2021, the union again referred a dispute about organisational rights, demanding the same rights that were the subject of the prior referral. On 7 June 2021, at the CCMA, the parties agreed to meet by no later than 18 June 2021 and to engage on the issues of the union scope, subscriptions and the verification of membership. The applicant and always taken the position that the union’s constitution did not extend to the industry in which it was engaged. This much was reiterated in early July 2021. On 7 July 2021, the union referred yet another dispute to the CCMA, seeking the same organisational rights that had been the subject of the previous two referrals. At the conciliation meeting held on 2 August 2021, the applicant repeated its refusal to extend organisational rights to the union on the basis that the applicant was engaged in an industry that fell outside of the union scope as defined by the constitution. On 2 August 2021, the CCMA issued a certificate to the effect that the dispute remained unresolved.

[3] On 8 October 2021, the union issued a notice of its intention to commence a strike on 11 October 2021.

[4] The applicant contends, for a number of reasons, that the strike is unprotected. First, the applicant submits that the real as opposed to the apparent dispute between the parties is the applicant’s refusal to recognise the union and that in the absence of an advisory award in terms of section 135 (3) of the LRA, the union issued the strike notice prematurely. Further, the applicant submits that the strike notice is defective because it does not stipulate the time at which the intended strike would commence. There is no merit in either of these submissions. The dispute between the parties has nothing to do with recognition for collective bargaining purposes; the engagement between the parties over the last 12 months has been limited to the issue of organisational rights. The strike notice substantially complies with the provisions of section 64 (1), despite it being no reference to the precise time at which the strike is to commence. At the hearing of the application, it emerged that the

primary basis on which the applicant relies in support of its claim that the strike is unprotected is the assertion that in terms of the union’s constitution, the applicant’s employees are not eligible for membership and that the union is not entitled to organisational rights in respect of members admitted outside of the terms of the constitution.

[5] The applicable legal principles were affirmed by the Constitutional Court in National Union of Metalworkers of SA v Lufil Packaging (Isithebe) (A Division of Bidvest Paper Plus (Pty) Ltd & others (2020) 41 ILJ 1846 (CC). The court held that a trade union acts ultra vires its own constitution when it allows membership of individuals who are not permitted to be members of the union in terms of its own constitution. It was incumbent on a trade union seeking organisational rights to show that it was sufficiently represented and in doing so, it is not open to the union to include members who do not fall within the scope of the union as defined by its constitution. In other words, employees may be admitted as union members if and only if they meet the eligibility requirements established by the union’s constitution.

[6] In the present instance, the union relies on annexure B to the constitution, which defines the scope of the union. Clause 14 of the annexure makes reference to ‘cleaning’ defined to mean ‘any employee involved in any cleaning activity in any premises a workplace organised by NUMSA whether directly employed or employed by a third party’. The union’s representative submitted that this definition was sufficiently broad to include the activities undertaken by the applicant, which he accepted was limited to cleaning in the form of dry cleaning and laundry. The applicant disputes that it falls within the cleaning industry. It points to correspondence as far back as 15 September 2020 when the union was advised that the applicant considers itself to be in the laundry, dry cleaning and dyeing trade. That is and has remained the primary reason for the position it has taken at the various meetings at the CCMA and specifically, the term of the settlement agreement reached

in February 2021 which obliged the union to amend its constitution so as to include what was referred to as the ‘laundry sector’ before any consideration would be given to the granting of organisational rights beyond the right to the deduction of union subscriptions.

[7] For present purposes, the applicable threshold requires the applicant to establish a prima facie right, even if it is subject to some doubt. In my view, the applicant to satisfy this threshold. It is of some significance that the issue of the eligibility of the applicant’s employees for membership of the union has been raised on each occasion that the union has referred a dispute to the CCMA and that the terms of the settlement agreements have consistently made reference to the applicant’s contention that it was necessary for the union to amend its constitution in order to resolve the issue of eligibility. The union has not been able to produce any amendment to its constitution that extends its scope of eligibility to employees engaged in laundry and dry cleaning. The court is also entitled to take judicial notice of the fact that existing bargaining councils established for the laundry, cleaning and dyeing industry defined in the agreements those activities which relate to the carrying on in establishments of laundromats and launderettes, in-house laundry is away articles of laundered, cleaned or died to the order of customers, including depots or vehicles where such articles are received in order to be laundered, cleaned or dyed.

It would seem to me in the circumstances that the reference to ‘cleaning’ in the union’s constitution is a reference to the cleaning envisaged by the contract cleaning services industry (for which a bargaining council is also in existence), a definition that extends to the cleaning or washing of buildings and other premises, carpets, floors, walls and the like, but which does not include laundry and dry cleaning activities. The union appears to have accepted this position by agreeing to a settlement that required

it to amend its constitution post settlement to extend to the activities undertaken by the applicant and ensure that the amendment

was registered and submitted to the applicant. The union had not back tracked on that position until now, when its submission, as I understand it, is that the terms of the constitution as they currently exist are sufficient. In short, even if I accept that the union’s constitution has been amended to permit it to organise workers in the cleaning sector, the union has not

established that the amendment extends to the activities of laundry and dry cleaning, activities in which the applicant’s employees are actively involved. In the circumstances, on the face of it, the applicant’s employees are not eligible for membership of the union. That being so, the union is not entitled to organisational rights. The applicant is thus entitled to the interim order that it seeks.

I make the following order:

1. The first and second to further respondents are called upon to show cause at 10h00 on 10 February 2022 why a final order should not be granted in the following terms:

1.1 Declaring that the strike called by the first respondent to commence on 11 October 2021 is unprotected;

1.2 Interdicting the first respondent and the second to further respondents from participating in the strike or in any conduct in contemplation or furtherance of the strike.

2. The provisions of paragraph 1.1 and 1.2 shall operate as an interim order with immediate effect.

3. The issue of costs is reserved for decision on the return date.

André van Niekerk

Judge of the Labour Court of South Africa

REPRESENTATION

For the applicant: Adv MD Maluleke, instructed by Sebola Nchupetsang Sebola

For the respondents: Union official

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