Onderspoort Biological Products SOC Limited v National Health and Allied Workers Union and Another (J 1195/20) [2020] ZALCJHB 228 (31 October 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 1195/20

In the matter between:

ONDERSPOORT BIOLOGICAL PRODUCTS SOC LIMITED Applicant

and

NATIONAL HEALTH AND ALLIED WORKERS UNION First Respondent

NATIONAL UNION OF PUBLIC SERVICE AND

ALLIED WORKERS

Second

Respondent

Heard:

27 and 30 October 2020

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, and publication on the Labour Court website. The date and time for the hand-down is deemed to be on 31 October 2020 at 19:00

JUDGMENT

TLHOTLHALEMAJE, J

[1] The applicant seeks an order on an urgent basis, to interdict and restrain unlawful conduct allegedly perpetrated by members of the first and second respondents (NEHAWU and NUPSAW) (The Unions) in the course of a strike, and to further have the strike declared unprotected for want of compliance with the parties’ Bargaining Forum Constitution and applicable Picketing Rules.

[2] Only NUPSAW opposed the application. On the first day of the hearing, various issues were raised by the Court and Counsel for NUPSAW in regards to the applicant’s application, which was defective. This was so in that condonation for non-compliance with the time frames was not sought, and also that the structure of the Notice of Motion did not indicate the date when the matter was to enrolled. Worst still, an incorrect date upon which the respondents were required to file answering papers was set. Those proceedings were then postponed to allow the applicant to amend its papers, to further allow NUPSAW to file its answering papers, and for the applicant to file a reply, with wasted costs being reserved.

[3] The amended Notice of Motion was filed together with the other sets of affidavits. Counsel for NUPSAW persisted with the preliminary points in regards to the failure to seek condonation for approaching the Court on an urgent basis. This issue will be dealt with in due course.

[4] The factual background to this application other than disputes pertaining to the alleged unlawful conduct and the protected nature of the strike is largely undisputed, and may be summarised as follows;

4.1 The applicant produces veterinary vaccines for livestock protection against bacterial and viral diseases using cell culture and fermentation technologies. It also produces a range of diagnostic reagents for use by veterinary laboratories to assist in the diagnosis of a range of livestock diseases. It further houses a variety of animals in its premises, and is accountable to the National Council of Societies for the prevention of Cruelty to Animals (NSPCA), with some of its employees registered with the South African Veterinary Council (SAVC).

4.2 The wage negotiations between the applicant and the Unions have reached deadlock, and following a referral of the dispute to the Commission for Conciliation Mediation and Arbitration (CCMA), a certificate of non-resolution was issued on 13 October 2020. A notice of intention to strike was issued on 14 October 2020.

4.3 Any industrial action at the applicant is other than the provisions of the Labour Relations Act (LRA),[1] also regulated by the prevailing Picketing Rules, and what is referred to as Bargaining Forum Constitution (Constitution). Clause

15.1.2 (e)(ii) of the Constitution provides that any industrial action must be preceded by the conducting of a secret ballot by the majority of employees (members) in good standing in favour of the action. On 15 October 2020, the Unions had sent notice of intention to conduct a ballot the following day in respect of the intended strike.

4.4 The applicant contends that as a result of a case of positive testing of COVID-19 at the premises, necessitating a quarantine between 7 and 12 October 2020, none of its officials were able to attend and observe the ballot, and an alternative date of 20 October 2020 for balloting was suggested. The Unions allegedly ignored the request.

4.5 According to the applicant, the balloting had proceeded in its absence on 16 October 2020, and it had sent correspondence to the Unions requiring proof that a secret ballot was conducted. NUPSAW contends that the formalities required for balloting were complied with, hence the strike is protected.

4.6 The applicant was served by the Unions on 19 October 2020 with a memorandum of demands to be met at 12h00. A response promised at 17h30 was not forthcoming. A further meeting was arranged for 21 October 2020 between the parties to resolve the impasse. However on that day, the applicant contends that there were incidents of unlawful conduct including vandalism, assaults and intimidation of non-striking employees, with access to certain areas of its premises being inhibited. The acts had proceeded into the following day, with further acts of vandalism, and neglect and unlawful release of animals kept at the premises. This had resulted in some of these animals sustaining injuries.

[5] In view of the primary issues to be considered in this case, I am prepared to accept that the matter deserves the urgent attention of this Court, and that condonation for non-compliance with the Rules ought to be granted, albeit with reservations. My reservations will be addressed more fully in the course of determining a costs order as shall be dealt with

shortly.

[6] In regards to the other relief sought, the starting point is obviously section 23(2)(c) of the Constitution of the Republic,[2] which grants every employee the right to strike. That right is given content and regulated by the LRA, which in turn provides substantive limitations and procedural pre-conditions for the exercise of the right to strike, and the employer’s corresponding recourse to lock-out[3]. To the extent that it was alleged that the ongoing strike was unprotected, the provisions of section 64 of the LRA[4] are applicable.

[7] In this case, the only issue for determination is whether as contended by the applicant, the strike is unprotected on account of a ballot not having been conducted in accordance with the Constitution. Clause 15 of the Constitution provides for mechanism for resolution of disputes between the parties. It is not necessary to set out the entire procedures other than to point out that under clause 15.1.2, the parties agreed to follow various procedural steps in relation to disputes surrounding collective agreements or work stoppages. Of relevance is clause 15.1.2 (e)(ii) following a referral of a dispute to the CCMA. It simply provides that no industrial action shall take place unless;

‘The majority of the Unions’ members in good standing have voted by secret ballot in favour of the action’

[8] This clause does not indicate how and when and under what conditions must a ballot be conducted, other than that it must be secret. Clearly the vagueness of this clause creates a conundrum where the applicant contends that such a secret ballot ought to have been under its observation. There is therefore no requirement for the applicant to observe the balloting, and it cannot therefore claim non-compliance where its rights are not outlined in that regard. In its correspondence on 16 October 2020, the applicant had merely requested that it be advised in writing of the official outcome of the strike ballot.

[9] The annexures attached to NUPSAW’s supplementary affidavit[5], indicates that 15 members of the Union opposed the strike whilst 60 were in favour of it. A list of attendees at the ballot was also furnished to the applicant. In my view, and in the light of NUPSAW’s contentions that there was further no requirement for an observer or a requirement to share the outcomes of the ballot in the Constitution, I agree with its contentions that the absence of the applicant during balloting cannot render the strike unprotected.

[10] The applicant’s reliance on the decision of this Court in Mahle BEHR SA (Pty) Ltd v NUMSA and others; Foskor (Pty) Ltd v NUMSA and Others[6] for the proposition that the strike may be interdicted for failure to conduct and record a secret ballot is misplaced in the context of the conclusions reached in this case in regards to the Union’s obligations and requirements under clause 15.1.2 (e)(ii) of the prevailing Constitution, and the lacuna in those provisions in regards to the applicant’s rights. In any event, that judgment has since been overturned on its facts[7]. To conclude on this issue therefore, I am satisfied that the procedural requirements contemplated under section 64(1) of the LRA, and those under clause 15.1.2 (e)(ii) of the parties’ prevailing Constitution have been complied with, making the strike protected.

[11] In regard to the allegations of unlawful conduct, NUPSAW merely sought to wash its hands of such conduct, contending that there were two unions involved, and that its members have conducted themselves in a disciplined manner throughout. NUPSAW’s denials of its members’ involvement in unlawful acts is in my view bare and unsustainable. Evidence has been placed before the Court that there are indeed incidents of violence, intimidation, harassment and general neglect of animals caught in the crossfire. The economic consequences of the strike are unfortunately the reality of strikes. I however do not believe that any other consequence should be visited upon animals under the care of the applicant, especially in the light of its endeavours to mitigate those consequence by the employment of replacement labour, which however has been unable to properly care and look after these animals due to the conduct of the employees. Inasmuch as it is appreciated that the purpose of a protected strike is to exert pressure on the employer to yield to demands, unlawful conduct and general lawlessness in pursuit of those demands is inimical to the concept of orderly collective bargaining.

[12] As at the time that the matter was postponed to allow the parties to file further pleadings, the unlawful and violent conduct had abated. However, as at the hearing of this matter, unlawful conduct had flared once more, and I agree that such conduct should be censured especially in circumstances where the welfare of animals is compromised. Thus, inasmuch as the employees are entitled to strike, they cannot in the same token be permitted to cause undue damage by interfering with replacement labour that was sourced especially to look after the animals, let alone be permitted to pursue their demands through lawlessness and violence.

[13] In the circumstances, I am convinced that the strike is not peaceful, and that unlawful conduct persists currently, which cannot solely be attributed to members of NEHAWU. In any event, Counsel for NUPSAW had conceded that at most, the applicant was entitled to an order enforcing compliance with the Picketing Rules, which sets out the rules of engagement during the strike. Accordingly, I am satisfied that the applicant has made out a case for interdictory and restraining orders related to unlawful conduct on the part of the members of the Unions.

[14] The last issue is that of costs. To the extent that the applicant is partially successful on the merits, no order ought to be made in regard to costs in respect of the merits of the application.

[15] As previously indicated however, wasted costs for the first day of the hearing were served. That postponement was necessitated by the defects in the applicant’s papers which I had already highlighted. The Notice of Motion was clearly not in compliance with paragraph 12.7 of the Practice Manual of this Court[8], and worst still, it was not indicated when the matter was to be enrolled. As to how the matter was enrolled is not clear. Be that as it may, as a result of these defects, a postponement occurred, and I agree with Counsel for NUPSAW that the applicant ought to be burdened with wasted costs in that regard.

[16] Accordingly, the following order is made;

Order:

1. The requirements of Rule 7 of the Rules of this Court are dispensed with and the matter is heard as one of urgency in terms of Rule 8 of the Rules of this Court.

2. The current industrial action embarked upon by members of the First and Second Respondent is deemed to be protected.

3. The members of the First and Second Respondent are interdicted and restrained from assaulting, threatening to assault, intimidating, by way of violent conduct or otherwise instigating others to commit similar acts against other employees of the Applicant.

4. The members of the First and Second Respondent are interdicted and restrained from damaging property or instigating others to commit similar conduct to any property of the Applicant, and further interdicted and restrained from endangering animals and/or neglecting animals or engaging in any conduct that is in contravention of the Animals Protection Act 71 of 1962.

5. Members of the First and Second Respondent are ordered to comply with the provisions of the prevailing Picketing Rules when engaged in the protected industrial action.

6. The Leadership the First and Second Respondents is ordered to within immediate receipt of a copy of this Court Order, publicly call on their members to abide by this Court Order by reading out its provisions to them by loud-hailer in the language commonly used for communication on the Applicant’s premises, and by distributing leaflets at the Applicant’s premises bearing the Unions’ names and logo, and signed by the Unions’ senior officials, informing their members of the terms of this Order.

7. The applicant is ordered to pay to the Second Respondent, only the wasted costs occasioned by the postponement of the hearing of this application on 27 October 2020.

___________________

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv. M Nene, instructed by Menezes and Makobane Attorneys

For the Second Respondent: Adv. MB Mkhize, instructed by Ndumiso Voyi Attorneys

[1] Act 66 of 1995, as amended

[2] The Constitution of the Republic of South Africa, 1996 (Act 108 of 1996)

[3] South African Airways (Pty) Ltd v South African Transport and Allied Workers Union (J2166/09) [2009] ZALC 113; (2010) 31 ILJ 1219 (LC) ; [2010] 3 BLLR 321 (LC)

[4] Section 64 reads; Right to strike and recourse to lock-out (1) Every employee has the right to strike and every employer has recourse to lock- out if - (a) the issue in dispute has been referred to a council or to the Commission as required by this Act, and (i) a certificate stating that the dispute remains unresolved has been issued; or (ii) a period of 30 days, or any extension of that period agreed to

between the parties to the dispute, has elapsed since the referral was received by the council or the Commission; and after that - (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, unless - (i) the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or (ii) the employer is a member of an employers’ organisation that is a party to the dispute, in which case, notice must have been given to that employers’ organisation; or (c) in the case of a proposed lock-out, at least 48 hours ‘notice

of the commencement of the lockout, in writing, has been given to any trade union that is a party to the dispute, or, if there is no such trade union, to the employees, unless the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or (d) in the case of a proposed strike or lock-out where the State is the

employer, at least seven days ‘notice of the commencement of the strike or lock-out has been given to the parties contemplated in paragraphs (b) and (c). (2) If the issue in dispute concerns a refusal to bargain, an advisory

award must have been made in terms of section 135(3)(c) before notice is given in terms of subsection (1)(b) or (c). A refusal to bargain includes – (a) a refusal - (i) to recognise a trade union as a collective bargaining agent; or (ii) to agree to establish a bargaining council; (b) a withdrawal of recognition of a collective bargaining agent; (c) a resignation of a party from a bargaining council. (d) a dispute about - (i) appropriate bargaining units; (ii) appropriate bargaining levels; or (iii) bargaining subjects

[4] Section 64 reads;

Right to strike and recourse to lock-out

(1) Every employee has the right to strike and every employer has recourse to lock- out if -

(a) the issue in dispute has been referred to a council or to the Commission as required by this Act, and

(i) a certificate stating that the dispute remains unresolved has been issued; or

(ii) a period of 30 days, or any extension of that period agreed to

between the parties to the dispute, has elapsed since the referral was received by the council or the Commission; and after that -

(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, unless -

(i) the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or

(ii) the employer is a member of an employers’ organisation that is a party to the dispute, in which case, notice must have been given to that employers’ organisation; or

(c) in the case of a proposed lock-out, at least 48 hours ‘notice

of the commencement of the lockout, in writing, has been given to any trade union that is a party to the dispute, or, if there is no such trade union, to the employees, unless the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; or

(d) in the case of a proposed strike or lock-out where the State is the

employer, at least seven days ‘notice of the commencement of the strike or lock-out has been given to the parties contemplated in paragraphs (b) and (c).

(2) If the issue in dispute concerns a refusal to bargain, an advisory

award must have been made in terms of section 135(3)(c) before notice is given in terms of subsection (1)(b) or (c). A refusal to bargain includes –

(a) a refusal -

(i) to recognise a trade union as a collective bargaining agent; or

(ii) to agree to establish a bargaining council;

(b) a withdrawal of recognition of a collective bargaining agent;

(c) a resignation of a party from a bargaining council.

(d) a dispute about -

(i) appropriate bargaining units;

(ii) appropriate bargaining levels; or

(iii) bargaining subjects

[5] Annexures ‘SM3’ and ‘SM4’

[6] (2019) 40 ILJ 1841 (LC)

[7] See National Union of Metalworkers of South Africa (NUMSA) and Others v Mahle Behr SA (Pty) Ltd and Another; National Union of Metalworkers of South Africa (NUMSA) and Others v Foskor (Pty) Ltd and Another (DA08/2019; DA09/2019) [2020] ZALAC 30; (2020) 41 ILJ 2093 (LAC)

[8] Which provides: ‘12.7 The first paragraph of relief sought in the applicant’s notice of motion must be for the enrolment of the application as an urgent application and for the dispensing of the forms and service provided for in the Rules of court, to the extent necessary.’

[8] Which provides:

‘12.7 The first paragraph of relief sought in the applicant’s notice of motion must be for the enrolment of the application as an urgent application and for the dispensing of the forms and service provided for in the Rules of court, to the extent necessary.’