Government Printing Works v PSA obo Members (J319/22) [2022] ZALCJHB 62 (29 March 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: J319/22

29 March 2022

In the matter between:

GOVERNMENT PRINTING WORKS

Applicant

And

PSA obo MEMBERS

Respondent

Date Heard: 24 March 2022

Date Delivered: This judgment was down electronically by circulation to the parties legal representatives by email and publication on the Labour Courts website and release to SAFLII. The date and time for hand-down is deemed to be 29 March at 12h00.

Summary: Urgent application in terms of rule 8 of the Court Rules – picketing interdict – demand forming the subject of the picket not a lawful demand – breach of section 69(1) (a) of LRA – employees not entitled to strike and therefore, not entitled to picket over the unlawful demand.

JUDGMENT

MKWIBISO J

INTRODUCTION

(1) In this matter, the applicant ("the employer") seeks to interdict intended picketing by the respondents, being the Public Servants Association of South Africa ("the trade union") on behalf of its members ("the employees").

(2) The employer claims that the intended picket is unlawful mainly because: is in breach of section 69(1) of the LRA[1] in that it is not in support of a in the absence of a notice of intention to strike; and the demand that form the subject of the

picket is unlawful in that the employer does not have the power to implement a remuneration framework that is separate and distinct from that applicable to the public service, as such conduct would be in breach of section 3(5) of the Public Service Act[2] and the Public Service Act 2016[3] . The employer further argues that there was no new notice issued by the respondents after the five days' notice expired as a result of the picket being suspended, which is in breach of the notice requirement of clause 7(1) of the Picketing Rules, which form part of a collective agreement concluded between the employer and the trade union.

(3) The issues for determination are whether the application is urgent, and if so, whether the employer has made out a case for the relief it seeks on an urgent basis.

RELEVANT FACTS

(4) The employer is a government component within a Cabinet portfolio as envisaged in section 7A of the Public Service Act. Its main function is to provide publishing services to all spheres of government. This

function printing government gazettes, legal notices, identity documents, passports, drivers' licenses, birth certificates and

visas. The function further includes the publishing of government gazettes and legal notices.

(5) The remuneration of the employees, who are employed by the employer, is determined in terms of the Public Service Act.

(6) In 2016, and as a result of the trade union tabling a dispute at the Departmental Bargaining Chamber, the employer and the trade union commenced engagements on a process of remuneration benchmarking with the intention of developing a business case to motivate for a remuneration framework that was separate and distinct from that of the Department of Public Service and Administration ('the DPSA"). It seems the employer developed the business case on its own, without involving the trade union. The employer then presented the business case to the Minister of the Department of Home Affairs.

(7) The employer alleges that in terms of "the process" the business a presented to the Minister of the Department of Home Affairs, and then sent to the Minister of the DPSA for endorsement, before implementation by the employer.

(8) The Minister of the Department of Home Affairs did approve the idea of benchmarking, on the ground that a salary structure for the employer different from that of the public service was to be discouraged. The trade union and the employees were informed of the rejection of the benchmarking idea and the business case by the Minister of the Department of Home Affairs. The pleadings do not state when the presentation was made to the Minister and when the Minister rejected the business case and the idea of benchmarking. It is also not clear when the trade union and the employees were informed of the rejection.

(9) On or about 14 April 2021, the trade union referred a dispute of mutual interest to the General Public Service Sector Bargaining Council ("the GPSSBC"). The referral form summarised the dispute in the following terms:

“The matter of remuneration benchmark was placed on the agenda of the DBC. Parties engaged extensively on the matter and agreed on the process that needs to be followed for department to be repositioned. The employer has not shown the necessary commitment to finalising the process.

During the facilitation process, the employer made commitments which have not been honoured. The PSA has also not been updated of any progress since the facilitation.

The employer has demonstrated the lack of will and commitment to finalise this process".

(10) The outcome sought by the trade union in its referral form was the following: "the implementation of the remuneration benchmark as compiled in the business case".

(11) The dispute was conciliated on 12 May 2021 and remained that date. The Arbitrator who was appointed to conciliated the dispute only issued certificate of non-resolution two months later on 13 July 2021.'for reasons that were not explained in the pleadings.

(12) About 10 months after the conciliation of 12 May 2021, the trade union issued to the employer a notice to embark on industrial action ("the notice”) dated 10 March 2022. The notice, in relevant part, read as follows:

"NOTICE TO EMBARK ON INDUSTRIAL ACTION

The Public Servants Association of South Africa (PSA) representing over eighty percent of employees in Government Printing Works (GPI" has been mandated by Its embers to authorise industrial action against GPW.

As you should aware that a dispute was declared by the PSA after reaching a deadlock on the issue of remuneration benchmarking. The matter as not resolved in conciliation and a certificate of non-resolution was subsequently, issued. The PSA and GPW have recently concluded Picketing ules which have been signed by both parties.

The PSA has decided to exercise its rights in terms of section 64(1) of the Labour Relations Act. As a result, you are hereby given a five (5) days' notice in terms of clause 7.1 of the Picketing Rules that the PSA will lead its members on a picket during lunch time at the Bosman and Masada Buildings as well as the Eastern Cape, North West and Limpopo regional offices".

(13) The picketing rules referred to in the notice had been concluded on 22 February 2022. Clause 7.1 of the rules provides the following:

"The PSA shall notify the employer of its intention to picket and the premises of the employer where the union intends to picket within five (5) working days before the commencement of the picket'

(14) . The five-day notice period set out in the notice was due to expire on 17 March 2022. However, the employer and the trade union promptly entered into discussions meant to resolve issues. The discussions included "the possibility of suspending the intended strike to give us an opportunity to engage and address the concerns” as set out in an email dated 11 March 2022 from Ms Michelle Modise who is the employer's General Manager: Human Resources On 14 March 2022, the trade union sent an email to the employer stating that the intended picket would be suspended until 22 March 2022 on condition that the dispute was resolved during the week of 14 to 18 March 2022.

(15) The employer and the trade union held a meeting on 17 March 2022 in an attempt to resolve the issues. When they deadlocked, the trade union informed the employer that the suspended picket would commence on 22 March 2022. This was consistent with the above-mentioned email of 14 March 2022 from the trade union.

(16) . On 18 March 2022 the employers’ attorneys sent a letter to the trade union seeking an undertaking that the picketing would not occur, failing which this Court would be approached on an urgent basis. As the undertaking was not forthcoming, employer launched its application in this matter and arranged for it to be heard on the morning of 22 March 2022. The employer only sought to interdict the intended picketing and did not seek to interdict any intended strike by the trade union and the employees.

(17) As e trade union intended to oppose the application but had not been afforded

sufficient time to file its opposing papers, the proceedings were postponed to 24 March 2022 to allow the filing of further affidavits. An interim interdict was granted against the intended picket pending the outcome of this matter. When the matter came before me on 24 March 2022, all the pleadings had been filed together with heads of argument and the matter was ripe for hearing.

EVALUATION

(18) . Rule 8 of the Court rules provides the following:

"8 Urgent relief

(1) A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2),7(3).and, if applicable, 7(7).

(2) The affidavit in support of the application must also contain

(a) The reasons for urgency and why urgent relief is necessary.

(b) The reasons why the requirements of the les were not complied with, if that is the case, and

(c) If a party brings an application in a shorter period than that provided for in terms of section 68(2) the Act, the party must provide reasons why a shorter period of notice should be permitted'.

(19) . The employer launched its application in less than a week after the parties had deadlocked and it was. that the suspended picketing would resume at lunchtime on 22 March 2022. Having the matter heard in due course would not serve the required purpose interdicting the intended picketing and would render the matter moot. Under these circumstances, the matter was clearly urgent.

(20) The seeks final relief and the requirements of such relief are the following: (a) a clear right; (b) an injury actually committed or reasonably apprehended; and (c) the absence of an adequate alternative remedy. [4]

(21) . In my view, the employer has established a clear right on the grounds that it was conceded in the answering affidavit admitted that the remuneration of the employees was determined in terms of the Public Service Act. In this regard, section 37(1) of the Public Service Act provides that "[e]employees shall be paid the salaries and allowances in accordance with the salary scale and salary level determined by the Minister in terms of section 3(5)". And section 3(5) of the Public Service Act provides that:

"(5)(a) Subject to the Labour Relations Act and any collective agreement, the Minister may make determinations regarding any conditions of service of employees generally or categories of employees, including determinations regarding a salary scale for all employees or salary scales for particular categories of employees and allowances for categories of employees.

(b) A determination involving expenditure from revenue consultation with the Minister of Finance".

(22) . Regulation 78 of the Public Service Regulations, 2016 provides the following:

"78. Mandating and management of negotiations

(1) Collective bargaining shall be regulated by the Labour Relations Act.

(2) An executive authority may enter into a collective agreement on a matter of mutual interest only if that authority –

(a) is responsible for managing collective bargaining on behalf of the State as employer in that forum:

(b) Has authority to deal with the matter concerned; and

(c) Meets the fiscal requirements contained in regulation 79.

(3) In the Public Service Co-ordinating Bargaining Council, which deals with matters transverse to the public service, the Minister is responsible for negotiating on behalf of the State as employer.

(4) In a sectoral bargaining council, which deals with matters transverse to a sector in the public service —

(a) if the sector consists of only one department, the executive authority of that department is responsible for collective bargaining on behalf of the State as employer: or

(b) if the sector consists of more than one department, the Cabinet shall nominate one of the departments' executive authorities to be responsible for collective bargaining on behalf of the State as employer.

(23) Regulation 2 of the Public Service Regulations, 2016 provides that the words used in the Regulations bear the meaning assigned to them in the Public Service Act. The term "executive authority" is, in relevant part, defined in the Public Service Act in the following terms:

"'executive authority', in relation to —

…

(b) a national department or national government component within a Cabinet portfolio, means the Minister responsible for such portfolio”

(24) . Section 2 of the Public Service Act, in its definition of the term "this Act", defines the Act to include the regulations as a result, the Public Service Regulations, 2016 have the same binding force the Public Service Act itself.

(25) There is no evidence that executive authority or the head of the principal government under which the employer was established in terms of section 7A of the Public Service Act, have assigned or delegated to the head of the employer in term of section 7A(5) and (6), the powers to engage in out in Regulation 78.

(26) The Employer, thus, prohibited from engaging in collective bargaining with a salary framework that departs from the framework in place in the public service. It would be unlawful to do so.

(27) it trite that strike action or conduct in the contemplation or furtherance of such strike action, is unlawful if it is in pursuit of an issue in dispute that is unlawful. The term "issue in dispute" is defined in section 213 of the LRA in relevant part as "the demand, the grievance or the dispute that forms the subject matter of the strike or lock-out'. In TSI Holdings, [5] employees had demanded that their employer dismiss one Mr van Zyl who was accused of using racially abusive language towards two colleagues. There was no evidence that Mr van Zyl was guilty of the allegations against him. The Labour Appeal Court confirmed the unlawfulness of the strike action in the following terms:

“ [48] …the demand such as the one made by the respondents appellant in this case falls outside the category of demands that can be supported by a concerted refusal to work, retardation or obstruction of work envisaged in the definition of the word "strike" in section 213 of the Act (Compare with what was said in Bader Bop (Pty) Ltd v NUMSÅ & others (2002) 23 LJ 104 (LAC) at 121B-123 1 (paras 40-50 That question did not arise in NUMSA & Others v Bader Bop ( Pty) Ltd & Another (2003) 24 ILJ 305 (cc) at 321 footnote19.) Accordingly, it seems me that the purpose of the concerted refusal to work or retardation or obstruction of work contemplated in the definition of the word “strike" in sec 213 of the Act cannot be conduct that would constitute a violation of the right not to be dismissed unfairly violation of the right not to be dismissed unfairly provided for in sec 185 read with sec 188 of the Act' 6

(28) In the current matter a strike action in support of the demand of a salary framework that differs from the framework applicable in the public service would be unlawful because a demand is unlawful.

(29) Section 69 -the LRA regulates picketing. Section 69(1) of the LRA provides that:

(1) A registered trade union may authorise a picket by its members and supporters for the purposes of peacefully demonstrating

(a) in support of any protected strike; or

(b) in opposition to any lock-out'.

(30) As a strike in support of the respondent's demand would be unlawful, section 69(1)(a) of the LRA would prohibit a picket in support of such an unlawful strike.

For these reasons, the intended picketing is unlawful.

(31) Perhaps not by coincidence, the notice issued by the trade union on 10 March

2022 came less than two weeks after the Constitutional Court's judgment of 28 February 2022 in NEHAWU.[6] The Court in that matter confirmed the requirement to comply with Regulations 78 and 79 of the Public Service Regulations,2016, when engaging in collective bargaining on behalf of the Sta by stating the following:"[85] … Under regulation 78(2) the Minister may enter into a collective agreement "only if the fiscal requirements contained in regulation 79" are met. In terms of regulation 78(3), the Minister is authorised to negotiate a collective agreement on behalf of the State the employer, in the PSCBC. Regulation 79(c), in tum authorises the Minister to enter into a collective agreement with financial implications only if the Minister concerned can cover the costs of the collective agreement from his or her departmental budget, or on the basis a written commitment from Treasury to provide additional funds, or if the costs can be covered from funds from other departments or agencies with their written consent coupled with Treasury

[86] These are conditions precedent to the Minister's exercise of the power to negotiate and conclude collective agreements on behalf of the State These conditions are also referred to as jurisdictional facts simply because the exercise of power depends on their

existence. In the present case, the evidence has established that no such jurisdictional facts existed when the Minister purported to enter into the collective agreement on behalf of the State.

[87] Upon a proper construction. the provisions of regulations 78 and 79 clothe the Minister of Public Service and Administration with the necessary authority to negotiate and conclude a collective agreement on behalf of the State and set the parameters within which this must be done. If the Minister acts outside these regulations she or he lacks the necessary authority and acts ultra vires. Approval by the Cabinet or COM is not one of the jurisdictional facts, which must exist, when the Minister exercise his powers and performs his or her functions under regulations 78 and 79. The Cabinet has no power to grant the approval required under these regulations. Such power is invested in the Minister of Public Service and Administration subject to the prerequisites set by the regulations.

[88] Section 92(2) of the Constitution, which the applicant unions referred

to, does not provide that the member of the Cabinet are collectively bound in law to the decisions of the Cabinet in the exercise of their own separate powers and performance of their functions under legislation applicable to them individually. Needless to say, in the exercise of their powers and performance of their duties, the Minsters are, in terms of section 92(2), held collectively accountable to Parliament. The _Cabinet or COM approval could not have had effect of authorising the Minister to legally conclude a collective agreement in contravention of the provisions of regulations 78 and 79. As a consequence, the applicants' reliance on section 92(2) in this context is misconceived.

[89] The end result is that the State's failure, in its capacity as the employer.

to comply with the requirements of regulations 78 and 79 renders the resultant collective agreement entered into between the parties under the LRA invalid and unlawful. To hold otherwise, would amount to validating the mischief the relevant constitutional provisions and regulations seek to prevent' (my emphasis). [7]

(32) If the Cabinet or the Committee of Ministers would not have the power to approve a deviation from Regulations 78 and 79 of the Public Service Regulations, 2016, clearly the officials of an employer such as the one in the current matter (being a government component established in terms of section 7A of the Public Service Act) would also not have such power.

(33) The rest of the requirements for final relief are met. The employer and the public at large could potentially suffer significant harm if the printing of government gazettes, legal notices, identity documents, passports, drivers' licenses, birth certificates and visas, and the publishing of government gazettes and gal notices, were halted as a result of the intended picketing.

COSTS

(34) It is true that the parties are engaged in an ongoing relationship However, the trade union should have known about the Constitutional Court's judgment in NEHAWU. The trade union was party to the dispute that resulted in that Constitutional Court judgment and was represented by the same law firm that represented it in the current matter. the Constitutional Court's judgment in NEHAWU referred the trade union to the clear provisions of Regulations 78 and 79 of the Public Service Regulations, 2016. Counsel for the employer referred the trade union to the above quoted passages of the Constitutional Court's judgment when presenting legal argument in this current matter, and the trade union's response was simply that the Constitutional Court's judgment dealt with a different set of facts Under these circumstances, the requirements of law and fairness justifies a costs order against the trade union. The matter was not so complex as to warrant the employment of two counsel and I have no intention of the of senior counsel.

(35) In the result, I make the order set out hereunder.

Order

1. The application is declared to be urgent.

2. It is declared that the intended picketing by the respondents, as per their notice to embark on industrial action of 10 March 2022, is unlawful.

3. The respondents are interdicted and restrained from embarking on and participating in picketing in relation to the demand forming the basis of their notice to embark on industrial action of 10 March 2022.

4 The Public Servants Association of South Africa (PSA) is to pay the costs of this application.

VG Mkwibiso AJ

Acting Judge of the Labour Court

APPEARANCES

For the Applicant: Advocate W Mokhare SC (with Advocate M Kgatla)

Instructed by: Mampeule Attorneys Inc

For the Respondent: Mr S Dube of Bowmans

[1] The Labour Relations Act 66 of 1995.

[2] The Public Service Act 103 of 1994.

[3] GN R877 of 29 July 2016 (Government Gazette No. 40167).

[4] Setlogelo v Setlogelo 1914 AD 221, 227; IMATU obo Shihambj and Others v City of Ekurhulenj Metropolitan Munfcipalitv and Others (J1832/18) 120181 ZALCJHB 239 (6 June 2018) (saflii.orq.za), paragraph [3].

[5] TSI Holdings (Pty) Ltd and Others v NUMSA and Others [2006] 7 BLLR 631 (LAC). 6 Ibid, paragraph [48].

[6] National Education Health and Allied Workers Union v Minister of Public Service and Administration and Others: South African Democratic

Teachers Union and Others v Department of Public Service and Administration and Others: Public Servants Association and Others v Minister of Public Service and Administration and Others: National Union of Public Service and Allied Workers Union v Minister of Public Service and Administration and Others (CCT 21/21 , 28/21. 29/21 , 44/21) 120221 ZACC 6 (28 February 2022) (saflii.org.za).

[6] National Education Health and Allied Workers Union v Minister of Public Service and Administration and Others: South African Democratic

Teachers Union and Others v Department of Public Service and Administration and Others: Public Servants Association and Others v Minister of Public Service and

Administration and Others: National Union of Public Service and Allied Workers Union v Minister of Public Service and Administration and Others (CCT 21/21 , 28/21. 29/21 , 44/21) 120221 ZACC 6 (28 February 2022) (saflii.org.za).

[7] Ibid, paragraphs [85] — [89] (footnote from the quoted text omitted).