International Ferro Metals (SA) (Pty) Ltd v National Union of Metal Workers of South Africa and Another (J 2264/13) [2013] ZALCJHB 316 (17 October 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no J 2264/13

DATE: 17 OCTOBER 2013

In the matter between:

INTERNATIONAL FERRO METALS (SA) (PTY) LTD.....................................................APPLICANT

And

NATIONAL UNION OF METAL WORKERS

OF SOUTH AFRICA.................................................................................................1ST RESPONDENT

THE PERSONS WHOSE NAMES ARE LISTED

IN ANNEXURE ‘A’ TO THE NOTICE OF MOTION.............2ND TO FURTHER RESPONDENTS

Application heard: 16 October 2013

Judgment delivered: 17 October 2013

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) at the applicant’s premises. Although the notice of motion indicates that the applicant seeks an interim order, the parties agreed that given the exchange of affidavits and the full argument presented, the application should be determined on the basis that a final order is sought.

[2] The material facts are not in dispute. The applicant and the union concluded a collective agreement on 12 June 2013, in terms of which the applicant recognised the union for certain purposes, including the right of the union to bargain collectively on behalf of its members. The latter right was qualified by a majoritarian requirement – the union is entitled to bargain provided that it acquires and retains a level of representativity of 50% plus one of eligible employees in the defined bargaining unit.

[3] The agreement also establishes a bargaining process. In terms of clause 7.2 of the agreement, the union must submit written proposals for annual salary increases and other proposed changes to terms and conditions of employment two months prior to the agreed inception date of 1 July of each year, to ‘allow such agreements to become effective in July of every year’. Between the tabling of demands and the implementation date, a series of engagements has been agreed, with provisions relating to the disclosure of information and the like.

[4] The material facts are not in dispute. Prior to the agreed implementation date, the union did not meet the threshold that would

have entitled it to bargain. The applicant consulted with the union over increases, and then unilaterally implemented an increase of 6%. On 18 July, the union submitted its wage demands. The applicant responded by placing on record that as at 30 June, the union did not meet the required threshold, that while there had been consultations over a proposed increase, there had been no negotiations on the issue since the union had not met the threshold, a fact that the union itself had acknowledged at a number of meetings prior to the implementation of the increase. It is common cause that since 1 July, the union has achieved the status of a majority union.

[5] The strike was called to commence on 13 October 2013. In terms of the referral form signed by the union on 20 August 2013, the dispute is defined as one relating to a ‘salary increase and condition of work’. The issue giving rise to the strike is the union’s for improved wages and other conditions of employment.

[6] Clause 7 of the agreement, as I have indicated, regulates the bargaining process. It envisages a wage cycle that commences on 1 July each year, terminating on 30 June the next year. It prescribes the procedure to be followed for the tabling of wage demands, and the meetings that must be held between the parties.

[7] The applicant contends that the strike is called in breach of s 65 of the LRA, since there is a binding collective agreement that prohibits a strike in respect of the issue in dispute (s 65(1) (a)) and because the union’s members are bound by a collective agreement that regulates the issue in dispute (s 65(3) (a)). The question to be decided, applying these limitations in reverse order, is whether the issue of wages and conditions of employment is regulated by the collective agreement, and whether the terms of the agreement prohibit a strike on that issue.

[8] The union relies in its call for a strike on a wage demand made after the commencement of the annual wage cycle. Although the collective agreement does not regulate directly the wages and conditions of employment of the union’s members (in other words, it does not prescribe a wage or other conditions), it regulates closely the process by which those issues are to be bargained. The union agreed to that process and is bound by it. An integral part of the bargaining process is the establishment of a wage cycle, and the timing for the tabling of demands and negotiation meetings. The union’s demands, made as they were after the agreed commencement of the 2013/14 wage cycle, were made in breach of the process. At best for the union, provided it maintains or improves its current level of representativity, it is entitled to table demands on or before 1 May 2014 in respect of the 2014/15 wage cycle. The union is bound by the bargaining process to which it agreed. The union’s members are therefore precluded by s 65

(3) (a) (i) from taking part in the strike. .

[9] Secondly, clause 9.1 of the collective agreement provides that the union may not instigate, participate in or condone any industrial

action that is unprotected, or which does not comply with the LRA or the terms of the collective agreement. For the above reasons, the strike called by the union is manifestly in breach of the collective agreement. In terms of s 65 (1) (a) of the LRA therefore, the union’s members may not take part in the strike.

[10] Mr. Cartwright, who appeared for the respondents, submitted that the agreement does not expressly prohibit a strike in circumstances such as the present. I disagree. The express purpose of the collective agreement, amongst other things, is to regulate the exercise of the right to strike. The agreement recognises, as does the LRA, that the right to strike is functional to collective bargaining, and that it is not an end in itself. The agreement acknowledges and affirms the right to strike, subject to the limitations that it establishes. A strike called outside the ambit of the agreed limitations on the exercise of that right is not sanctioned by the agreement. It constitutes a breach of the agreement, giving rise to grounds for cancellation (see clause 11).

[11] To the extent that Mr. Cartwright submitted that the collective agreement ought, on the basis of a constitutional right to strike (s 23 of the Constitution), to be interpreted so as to discern a right to strike notwithstanding the terms the agreement, the constitution equally acknowledges a right to engage in collective bargaining, and promotes respect for the outcome of the bargaining process. In the present instance, to read a right to strike into the agreement outside of the agreed limitations is not only inconsistent with the language used and the manifest intent and purpose of the collective agreement, it would (erroneously) acknowledge the right to strike not as a means to an end, but as an end in itself.

[12] For the above reasons, in my view, the applicant is entitled to a final order declaring the strike unprotected, and to the ancillary relief that it seeks.

[13] Finally, in relation to costs, this court has traditionally been reluctant to make costs orders in disputes concerning parties engaged in a collective bargaining relationship, especially where an order for costs might serve to fuel an already fraught state of affairs. I do not intend to make any order as to costs.

I make the following order:

1. The strike called by the respondents in support of the demand tabled by the first respondent during July 2013 is unprotected.

2. The second to further respondents are interdicted and restrained from participating in the strike.

3. The first respondent is interdicted and restrained form encouraging or inciting any of the second to further respondents from

participating in the strike.

ANDRE VAN NIEKERK

JUDGE OF THE LABOUR COURT

REPRESENTATION

For the applicant: Adv. N Cassim SC, with him Adv. M van As instructed by John Tribelhorn Attorneys

For the respondents: Mr D Cartwright, Cartwright Attorneys.