South African Federation of Civil Engineering Contractors (SAFCEC) obo Members and Others v National Union of Mineworkers and Another (J1312/09) [2009] ZALC 153; (2010) 31 ILJ 426 (LC) (6 July 2009)

Page 29 of 29 CASE NR: J1312/09

Page 29 of 29

CASE NR: J1312/09

IN THE LABOUR COURT OF SOUTH AFRICA

(HELD IN BRAAMFONTEIN)

CASE NR: J1312/09

In the matter between:

SOUTH AFRICAN FEDERATION OF CIVIL ENGINEERING

CONTRACTORS (SAFCEC)obo its MEMBERS

LISTED IN ANNEXURE “A” …........................................................................Applicant

and

NATIONAL UNION OF MINEWORKERS (“NUM”) ….......................First Respondent

BUILDING CONSTRUCTION AND ALLIED

WORKERS UNION (“BCAWU”) …...............................................Second Respondent

JUDGEMENT

AC BASSON, J

This was an application to declare a strike which is due to take place on Wednesday 8 July 2009 to constitute an unprotected strike as contemplated in section 68 of the Labour Relations Act 66 of 1995 (hereinafter referred to as “the LRA”) and to interdict and restrain members of the First and Second Respondents who are employees of members of the Applicant from participating in such unprotected strike. The Applicant also seeks an order interdicting and restraining the Respondents or their officials or office bearers from encouraging or inciting their members from engaging in such unprotected strike action. The parties were ad idem that should this Court grant the interdict it will only have a limited duration and will only operate until 31 August 2009. Why this is so will be discussed hereinbelow in more detail.

Although the Applicant approached this Court for an interim order, the parties have agreed that the matter be argued as a final interdict. The Respondents also agreed not to challenge the urgency of the matter. The parties were therefore in agreement that this Court is merely required to decide the merits of the dispute which is essentially a legal issue. The parties were also ad idem that costs should follow the result.

Parties to this application

The Applicant is the South African Federation of Civil Engineering Contractors (hereinafter referred to as “SAFCEC”), an employer’s organisation registered in terms of the LRA. The Applicant acts in these proceedings on its own behalf and on behalf of its members listed in Annexure “A”. A cursory assessment of Annexure “A” reveals that the Applicant represents roughly 422 employers. The First Respondent (the National Union of Mineworkers - hereinafter referred to as “NUM”) and the Second Respondent (the Building Construction and Allied Workers Union - hereinafter referred to as “BCAWU”) are both registered unions. Approximately 20 000 of the 80 000 employees currently in the employ of the Applicant’s members are in turn members of either NUM or BCAWU.

Factual background

Collective agreement of 4 May 2004 (“the procedural agreement”)

It is common cause that on 4 May 2004 a collective agreement (the Civil Engineering Industry Interim Procedural Agreement) was concluded between the Applicants on the one hand and NUM and BCAWU on the other hand. Of particular relevance to this application is Clause 11 of the procedural agreement which imposes a peace obligation on the parties. This clause reads as follows:

“11.1 Neither the employers’ organization, the trade unions, its members nor officials of the trade union shall sanction, promote or participate in any industrial action against other parties to this agreement –

11.1.1 during the currency of a substantive agreement, which deals with the matter giving occasion for the strike or lockout;

11.1.2 during the currency of the Sectoral Determination on any issue tabled for negotiation or which formed the subject of negotiations at the national forum.1

11.1.3 until such time as the procedures contained in this agreement and the Labour Relations Act have been exhausted, save that industrial action shall be prohibited if the employees or employers who are or would be concerned in the

strike or lock-out are employers or employees engaged in emergency work.

11.2 Insofar as the trade union and/or their members participate in picketing, the trade unions and the officials of the trade unions shall endeavour to ensure that such picketing is lawful and in accordance with the picketing procedures as had agreed to by the parties.”

The Substantive Agreement2 dated 31 August 2006 (hereinafter referred to also as the “current agreement”)

On 31 August 2006 the Applicant on behalf of its members concluded a Substantive Agreement with NUM and BCAWU. The agreement regulates a range of issues including but not limited to wages.

It is clear from paragraph 1 of the Substantive Agreement that it would: -

“… commence on the date of it being promulgated as an amendment to the Sectoral Determination 2 for the Civil Engineering Industry, and will remain in operation for a minimum period of 3 years or until amended by future agreement.”

On 3 July 2007 the Applicant entered into separate agreements by way of addenda to the Substantive Agreement signed on 31 August 2006. Paragraph 2 of these addenda state the following under the heading “Amendments”:

“Therefore the parties agree to incorporate the following amendments into the Substantive Agreement:

Clause 1 is herewith amended to read as follows: “This Agreement will commence on the first Monday of September 2006 and will remain in operation for period of three years ending on 31 August 2009”

LDC Gratuity, Medical Aid for permanent employees and LDC funeral benefit, as was proposed by the Task Teams and agreed to by the National Negotiating Forum will be implemented with effect form 1 August 2007.”

It is thus clear from the aforegoing that the current Substantive Agreement came into effect on 31 August 2007 and will remain in operation until 31 August 2009 whereafter a new Substantive Agreement will regulate terms and conditions and other matters of mutual interest between the parties.

Sectoral Determination 2 for the Civil Engineering Sector was amended in terms of section 56(1) of the Basic Conditions of Employment Act no 75 of 1997 by the Minster of Labour. This amendment was gazetted on 16 February 2007 and became binding on 1 March 2007 and will remain operative for a minimum period of three years until amended. The issue of minimum wages to be paid in the bargaining unit stated in the Substantive Agreement being grades 1 to 9 inclusive is regulated by this Sectoral Determination and is paid by the members of the Applicant.

Demands in respect of the period commencing September 2009

In terms of clause 5.8 of the procedural agreement, trade unions shall submit to the employer’s organisation a written draft agenda and proposals concerning negotiations in respect of, inter alia, conditions of employment, at least 12 months before the date on which the Sectoral Determination needs to be amended. In terms of clause 5.12 the first meeting between the parties shall be held at least 5 months before the date upon which the current agreement will expire. At this meeting the parties shall commence negotiations and endeavour to reach agreement within two months. In terms of clause 5.15 in the event the parties are unable to conclude an agreement, the negotiations shall be adjourned and the parties shall follow the dispute resolution procedures as per clause 10 of the agreement. These dispute procedures contemplate that should the matter not be resolved at the national forum, the dispute may be referred to the Commission for Conciliation, Mediation and Arbitration (hereinafter referred to as “the CCMA”). Possible strike action after the parties have deadlocked and after a certificate of non-resolution has been issued, is not expressly excluded by clause 10 of the procedural agreement which regulates the dispute resolution procedures.

What is thus clearly contemplated by the aforementioned clauses of the procedural agreement is that negotiations in respect of a subsequent Substantive Agreement may commence during the currency (or put differently, before the expiry) of the current substantive agreement. In the event of a deadlock, the parties may resort to the dispute resolution procedures including referring the dispute to the CCMA. What the Applicant argue the unions may not do is to call out their members on strike until the expiry of the Substantive Agreement as they are barred from doing so by the peace clause contained in clause 11 of the procedural agreement. I will return to this point hereinbelow.

In accordance with the aforementioned procedures, NUM duly tabled their demands in writing for the period commencing on the first Monday in September 2009 (which is the date of expiry of the current Substantive Agreement) on 3 December 2008. BCAWU tabled its demands in writing for the period commencing on the first Monday in September 2009 on 13 February 2009.

Negotiations between the parties commenced and deadlocked on 3 June 2009. NUM and BCAWU referred a dispute concerning matters of mutual interest to the CCMA for conciliation. In terms of the LRA Form 7.11, the dispute is summarised as follows: “…. the parties failed to reach an agreement on wage negotiations...” Conciliation failed and a certificate of outcome was issued by the Commissioner in terms of which it is certified that the issue in dispute remained unresolved. The dispute is described as concerning “mutual interest” and relating to issues of “wages and conditions of employment”. It is trite that, in terms of section 64(1) of the LRA, the unions are entitled to call out their members on strike as the procedural requirements of acquiring the right to embark on protected strike action have been complied with. (As already pointed out, the Applicant in this matter is of the view

that the employees may not strike in the present matter.)

In a letter dated 26 June 2009, the Applicant, thought its attorneys telefaxed a letter to NUM and BCAWU advising them that they are of the view that any strike action will be prohibited and thus be unprotected in terms of the LRA. As this letter embodies the position of the Applicant, I quote the relevant parts of this letter:

“1. We act for SAFCEC.

We have been informed that a certificate of outcome was issued by the CCMA this afternoon after the parties deadlocked in the wage negotiation which was held in terms of the Civil Engineering Industry Interim Procedural Agreement.

That certificate, a copy of which is attached for ease of reference, states that the dispute concerns mutual interest and relates to wages and conditions of employment.

We are further instructed to notify you as follows: -

SAFCEC is of the view that any strike action by your members at any of SAFCEC’s members in furtherance of the wage demands and other demands tabled in the course of the negotiations and CCMA conciliation proceedings between the parties, during the currency of the present Substantive Agreement between the parties, will be in contravention of section 65(1)(a) and/or section 65(3)(a)(i) and (ii) of the Labour Relations Act and unlawful; and further, is in breach of the peace obligation contained in clause 11 of the Civil Engineering Industry Interim Procedural Agreement.3

Accordingly, in the event that the NUM and/or BCAWU give SAFCEC or its any of members (sic) notice of any such intended strike action or embarks on any strike action before the end of the currency of the present Substantive Agreement, i.e 31 August 2009, we are instructed to seek and obtain an order from the Labour Court declaring that strike to be unlawful and unprotected and interdicting you and your members from organizing, promoting or participating in any such strike action together with an appropriate cost order against the union.

In the circumstances we are further instructed to formally request, as we hereby do, that the NUM and BCAWU provide SAFCEC with a written undertaking that you will not do anything that may lead any of your members to proceed with strike action before 1 September 2009.

Kindly provide the requested undertaking by no later than 12H00 on Monday 29 June 2009.

In the event that such undertaking is not given and that any unlawful and unprotected strike ensues, we reserve the right of all SAFCEC members to approach the Labour Court for an order against the NUM and/or BCAWU for payment of just and equitable compensation for any loss attributed to such a strike in terms of section 68(1)(b) of the Labour Relations Act.”

1Own emphasis. The parties have agreed that all negotiations and agreements will be concluded by the national forum only and that no negotiations on wages and substantive issues may be conducted on a regional basis. See clause 3.6 of the procedural agreement. The National Forum is the national collective bargaining forum established in terms of the procedural agreement. The parties are not members of a bargaining council.

2The substantive agreement is defined in the procedural agreement as “an agreement concerning conditions of employment and any matters that may be of mutual interest to the parties concluded at the national forum”

3Own emphasis.

4Although decided under the previous LRA, the comments in respect of the purpose of strike action are still valid.

5At 970 – 971.

6Ibid 972.

7Section 65(1)(a) of the LRA.

8Section 213 of the LRA.

9The Labour Appeal Court in Bader Bop (Pty) Ltd v National Union Of Metal & Allied Workers of SA & Others (2002) 23 ILJ 104 (LAC) ad paragraph [3] recognised the limiting effect of a peace clause: “A second limitation [of the right to strike] concerns the prohibition of strikes in respect of disputes and issues that are the subject of a peace clause or that are regulated by collective agreement.”

10See also SACCAWU obo Members v The Spar Group Limited & Others (Case No: D435/07) at paragraph [22] et seq.

11South African Security Employers Association v TGWU & Others (2) [1998] 4 BLLR 436 (LC).

12Clause 11.1.1 prohibits strike action “during the currency of a substantive agreement, which deals with the matter giving occasion

for the strike or lockout;”