South African Security Employers' Association v Transport and General Workers Union and Others (381/98) [1998] ZALC 133 (27 February 1998)

C1/946

VIC & DUP/JOHANNESBURG/LKS

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO. 381/98

In the matter between:

SOUTH AFRICAN SECURITY EMPLOYERS'

ASSOCIATION Applicant

and

TRANSPORT AND GENERAL WORKERS

UNION AND OTHERS. Respondents

________________________________________________________________

JUDGMENT

ZONDO, J:

INTRODUCTION:

After hearing argument yesterday in this matter which was brought as an urgent application for final relief, I undertook to give judgment this morning. I would have liked to have had more time to consider the matter before I could give judgment. However, as the matter is urgent, judgment has to be given without delay. This, therefore,

is my judgment.

The South African National Security Employers Association, the applicant in this matter, is an organisation which is made up of 350 employers who are involved in the security industry in this country employing, according to the deponent to the founding affidavit, more than 60 000 employees. The Transport and General Workers Union, the first respondent in this matter, and seven other unions which have been cited as the second up to the eighth respondents represent collectively more than 40 000 of the more than 60 000 employees employed by employers affiliated to the applicant.

As a result of a dispute which remains unresolved between the applicant and the respondent unions, thousands of members of the respondent unions employed by employers who are members of the applicant have resorted to a strike which is currently going on in a number of places in the country. The applicant has approached this Court to obtain an order declaring that that strike is unlawful and unprotected in terms of the Labour Relations Act, 1995 (Act 66 of 1995) ("the Act") and interdicting the respondent trade unions from instigating, inciting and participating in such unlawful strike action. The first respondent opposes the application and to this end has filed opposing affidavits setting out the basis of its opposition. Some of the rest of the respondents do not oppose the application while others have indicated effectively that they oppose it on the same basis on which the first respondent is opposing it. None of the respondents (except the first respondent) has filed any answering affidavit.

FACTUAL BACKGROUND:

In order to facilitate a proper understanding of the issues it is necessary to give a little bit of the factual background to this dispute. The applicant has held every year annual wage negotiations with the respondent trade unions and other trade unions since 1993. According to the applicant, the parties usually commence with their wage negotiations during October (or as soon as possible thereafter) of each year and continue until they conclude their wage negotiations about the end of February the following year. There is some dispute between the parties whether the date of implementation of such agreements as are concluded between the parties following upon such negotiations has been April for all employers and whether such agreements have lasted for 12 months thereafter. However, that dispute need not be resolved in this judgment as both Mr Loxton SC, who, with Mr Franklin, appeared for the applicant and Prof Cheadle, who appeared for the first respondent, addressed me on the basis that that dispute is of no consequence in this matter in the light of the contentions they were pursuing. The parties would then request the Minister of Labour to have the agreement gazetted in terms of section 51A of the Labour Relations Act 1956, (Act 28 of 1956) ("the Old Act").

On 6 April 1996 the Minister of Labour determined in terms of section 51A(3) of the old Act that the provisions of the order made by him in terms of section 51A(2) of that Act in respect of the Security Services Trade appearing in the schedule thereto would be binding with effect from 15 April 1996 in specified areas and upon all employers and employees in the said Trade who were affected thereby.

The negotiations between the applicant and the respondent unions for the 1997/1998 period were concluded on 28 February 1997. That collective agreement was extended to non-parties by way of an order made by the Minister in terms of section 51A of the Old Act on 27 March 1997 but it only took effect on 7 April 1997. It was to endure for 12 months which is due to expire on 6 April 1998. The wage negotiations for the 1998/1999 wage agreement began in October 1997 after the first respondent had made its first proposals in September 1997. The demands presented by the first respondent represented the consolidated demands of all the respondent unions and other unions who negotiate with the applicant on such matters.

Numerous meetings were held between the applicant and the respondent unions the purpose of which was to try and reach agreement. No agreement was reached. It seems to be common cause between the parties on the papers that what they are not able to agree upon is the wage increase and other terms and conditions of employment which will apply to the parties' members for the period immediately following upon the expiry of the 1997/1998 collective agreement or order made by the Minister in terms of section 51A of the Old Act. The dispute was then referred to the CCMA when the parties could not reach agreement. This was done in December 1997. Despite a meeting of the parties at the CCMA to again try and resolve the matter, the dispute remained unresolved and on 3 February 1998 the CCMA issued a certificate to the effect that the dispute remained

unresolved. In due course a strike notice was given and the strike commenced and, as I have said above, it is currently going on.

As I have indicated above before me the fight between the applicant and the respondent unions was on whether or not the strike which the members of the respondent unions are engaged in is legal/protected or illegal/unprotected. Although in its founding affidavit the applicant had set out more than two grounds in support of its contention that the strike is unprotected, in argument before the Court Mr Loxton pursued only two of those grounds. Those therefore are the only grounds on which I heard argument and those are the only two grounds which the Court has to consider in order to decide whether or not the strike is or is not a protected one and, therefore, whether or not the Court should grant the applicant the relief it seeks.

The first ground was that this strike is hit by the provisions of section 65(1)(a) of the Act whereas the second was that it is hit by the provisions of section 65(3)(a)(i) of the Act. I intend considering these two grounds simultaneously because the thrust of Mr Loxton's argument in the one ground also applies to the other ground.

Is this strike hit by sec 65(1)(a) and/or sec 65(3)(a)(i) of the Act?

In order to understand the applicant's contention it is appropriate to quote the provisions of section 65(1)(a) and section 65(3)(a)(i) of the Act. Whereas section 64 of the Act is the section that gives every employee the right to strike and every employer the recourse to lock out if certain conditions therein set out are met, section 65 is the section which makes provision for the limitation of that right to strike and the limitation of the recourse to lock out. Section 65(1)(a) reads as follows:

"65. Limitations on a right to strike or recourse to lock out.

1. No person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance, of a strike or a lock-out, if -

(a) that person is bound by a collective agreement that prohibits a strike or lock-out in respect of the issue in dispute".

Section 65(3)(a)(i) reads as follows:

"Subject to a collective agreement, no person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or lock-out

(a) if that person is bound by -

(I) any arbitration award or collective agreement that regulates the issue in dispute,” (my underlining)

It is common cause that the agreement for the period 1997/98 which was concluded between the parties is a collective agreement as defined in section 213 of the Act and it is binding on all the parties in this matter. The first issue that must be determined in this case is what the issue in dispute is which has given rise to this strike. The significance of beginning with a determination of the issue in dispute arises out of the fact that both section 65(1)(a) and section 65(3)(a)(i) on which Mr Loxton relies to challenge the legality of the strike will only apply if the issue in dispute in this matter is a matter which the collective agreement between the parties prohibits the respondents to resort to a strike about (i.e. Sec 65(1)(a)) or which the collective agreement between the parties regulates (i.e. sec 65(3)(a)(i)). If the issue in dispute in this matter is a matter which the collective agreement does not prohibit the respondents to strike about and it is a matter which the collective agreement does not regulate, then the strike is not hit by either section 65(1)(a) or section 65(3)(a)(i).

What is the issue in dispute between the parties in this case?

An enquiry as to what the issue in dispute is between parties in a matter such as this one must begin with the definition of the phrase "issue in dispute" which is contained in section 213 of the Act. Section 213 of the Act defines "issue in dispute" in relation to a strike or lock-out as meaning "the demand, the grievance or the dispute that forms the subject matter of the strike or lock-out”. The particular wording of the definition of the phrase "issue in dispute" is an attempt in so far as it includes a demand, grievance and dispute to ensure that such problems as were encountered under the old Act in determining the phrase "matter giving occasion for the strike" in section 65 of that Act, read with the definition of strike which, when paraphrased, was a collective refusal by employees to work in order to compel their employer to agree to their demands or proposals, do not arise under the new Act. An example of such problems is where employees collectively refused to work but did not make any demand or proposal to their employer. The result was that such workers were said not to be on strike because they had not made any demand on their employer, yet for all intents and purposes, such workers were on strike even though they might not have told their employer what they were demanding. There can be no doubt that the workers in such a situation would have had a grievance of some sorts which caused them to collectively refuse to work and that conduct would normally be understood by most people to constitute a strike.

Mr Loxton conceded that there is no material difference between what the phrase "matter giving occasion for the strike" in section 65(1) of the old Act meant and what the phrase "issue in dispute" under the Act means. That being the case, it seems to me that it might not be unhelpful to have regard to how under that Act the Courts determined a matter giving occasion for a strike. In Dunlop South Africa v Metal & Allied Workers Union 1985 (1) SA 177 (D) at 181E-G (1985) 6ILJ 167 (D) the Court had this to say about the phrase "matter giving occasion for the strike" under section 65(1) of the old Act:

"It seems to me, having regard to the definition of 'strike' that the words in section 65(1), 'the matter giving occasion for the strike', refer to the refusal or failure of an employer to agree to or to comply with demands or proposals of the employees or those representing them. In order to determine what the matter is in respect of which application had been made for the establishment of a conciliation board, one has to determine what demands or proposals which had been refused or not agreed to, and which refusal or failure formed the subject matter of the application". (My underlining)

It is therefore clear from that passage that under the Old Act the Court, in the Dunlop case, concluded that the phrase "matter giving occasion for the strike" in section 65(1)(a) of that Act would refer to the refusal or failure of an employer to agree to or to comply with demands or proposals of the employees or those representing them. It would seem that there, to some extent, the Court was influenced to say this by the definition of strike as it stood under the old Act. In this connection I think the Court was having regard to the fact that one of the requirements of any strike in terms of the definition of strike as it stood under the old Act was that there must have been a demand or demands or proposals made by the employees or those representing them for the employer to agree to or to comply with in order for the conduct of the workers to constitute a strike.

In my view, although the definition of "strike" under the new Act is different from the definition of strike under the old Act, such difference does not matter where one is dealing with a case where demands or proposals have been made to the employer and he has refused or failed to comply with them because, in that event, not only would such conduct have qualified as a strike under the old Act, but also it would qualify as a strike under the new Act. In addition to that it must be mentioned that the definition of the phrase "issue in dispute" which I have referred to above does contain a reference to a demand. Once there is a demand by one party to another and the latter has refused or failed to comply with such demand, a dispute such as is referred to in the definition of strike arises. (See in this regard a discussion of the word "dispute" in SACCAWU v Edgars Stores Ltd and Another (1997) ILJ 1064 (LC) at 1070E-1073A and the authorities referred to therein).

The passage I have referred to above in the Dunlop case was referred to with approval and applied in NTE v Ngubane and Others (1992) 13 ILJ 910 (LAC) at 919D - 920A. Following the Dunlop approach, in NTE the Court, in order to determine the matter giving occasion to the strike, said:

"One must have regard to the demands which have been refused and which the strike or lock-out is intended to enforce."

In NTE the Court continued and said at 920A:

"These propositions lead inevitably to the conclusion that the matter giving occasion for the lockout in the present case was the refusal by the respondents to accede to the demand by the appellant that they accept its final offer".

In the light of all the above, I am of the opinion that Mr Loxton's concession that there is no material difference between the phrase "matter giving occasion for a strike" in section 65(1)(a) of the old Act and the phrase "issue in dispute" in the new Act was a proper and justified one. I have considered Prof Brassey's criticism of the judgment in Dunlop in the New Labour Law at 106-7 but I think there he criticised not the correctness of the test but its application to the facts of that case. In those circumstances it seems to me that where one is dealing with a case such as this one where the strike has been preceded by demands or proposals to the employer made by employees or those representing them, the test for determining the issue in dispute as propounded in the Dunlop matter is an appropriate one to be applied. It may well be that such test would not be applicable or would be difficult to apply in a case where the strike has not been preceded by the making of demands or proposals by employees or by those representing them.

However, I need not consider that issue as it does not arise in this matter.

What then is the issue in dispute in this case?

Applying the Dunlop test to the facts of this case, the issue in dispute here is quite obviously the failure or refusal of the applicant to agree to the demands or proposals made by the respondent unions to it for the period after the expiry of the current agreement. Mr Loxton submitted that upon a proper construction of section 65, the issue in dispute or the words "issue in dispute" as they appear in section 65(1)(a) as well as in section 65(3)(a)(i) must be broadly interpreted and wages must be considered as a generic term. The contention of the unions was that the issue in dispute in this matter is a wage agreement for the period after the expiry of the current agreement.

In my view, whether one says the issue in dispute is a failure or refusal of the applicant to agree to the demands or proposals made by the union or whether one says, in this case, the issue in dispute is the dispute between the parties which forms the subject matter of the strike, it would not make any difference in the light of the facts of this case.

Mr Loxton submitted that, if the applicant's interpretation is accepted, then industrial peace would be guaranteed for the duration of the agreement because then no strike may take place for improved wages until the agreement has expired. He said if the purpose of section 65(1)(a) and section 65(3)(a)(i) is to secure industrial peace, then the two sections must be given the interpretation he contended for which is that since the 1997/98 wage agreement regulates wages, no strike is permissible during that period on any dispute about wages. In this regard, he said, it does not matter whether the wage dispute over which workers seek to strike relates to the period after the expiry of the current collective agreement. His submission is that a strike over wages will only be permissible after the expiry of the current agreement.

Prof Cheadle's argument, as I understood it, was that the purpose of section 65(1)(a) is that there should be no strike during the life of the collective agreement on an issue which the collective agreement says there should be no strike on. He said the purpose of section 65(3)(a)(I) is simply that no party shall resort to industrial action on an issue which the parties have decided to regulate in a collective agreement.

Going back to the argument between the parties as to what the issue in dispute is in this case, it seems to me that the only difference between the issue in dispute, as contended for by Mr Loxton, and the issue in dispute as contended for by Prof Cheadle, is whether or not the period of application of the wage increase demands of the unions is an element (or an important element) of the disagreement between the parties on what the wage increase and other terms and conditions of employment should be. On Mr Loxton's argument it does not matter that the strike relates to a wage increase for a period commencing after the expiry of the current collective agreement.

On Professor Cheadle's argument the period which such an increase relates to is material because, if the wage increase relates to the period covered by the current collective agreement, then a strike is not permissible because a wage increase for that period is regulated by the current collective agreement. But if the wage increase demands relate to a period which is not covered by the current collective agreement, then the collective agreement does not regulate those wage increase demands. It seems to me that, if I uphold Prof Cheadle's argument on what the issue in dispute is in this case, then the strike is not hit by either sections 65(1)(a) or 65(3)(a)(i).

I think it would be artificial and fallacious to attempt to define the issue in dispute in relation to the wage increase demands without stating the period during which that increase would apply. I say this because, if workers were to approach their employer and ask him to promise that he will increase their wages by a certain percentage and the employer were to make such a promise, the two parties would not be satisfied until there was an agreement as to when the increase would be implemented. Indeed, without an agreement on the date of implementation of a wage increase, it cannot be said that there is a valid and an enforceable agreement between the parties. In my view the date of implementation or the period during which the wage increase demanded by the workers will apply, is as essential an element of the issue in dispute between the parties as is the amount of the increase. Where there has been no agreement between the parties on either the amount of increase or on the date of implementation, there is no valid and enforceable agreement.

In those circumstances it seems to me that one cannot, in a case such as this one, define the issue in dispute in a manner that overlooks the significant role of any one of the two elements of an agreement on a wage increase, namely the amount of the increase sought or agreed and the period during which the employer would be under an obligation to pay that wage increase. In this regard I think the practice and experience of how wage negotiations have been conducted for many years in this country, how they are conducted today and how, I have no doubt, they will continue to be conducted in the future, is consistent with the approach that one cannot, in defining the issue in dispute in the context of a dispute about a wage increase and other terms and conditions of employment, define it in such a way that one ignores the period of application of such a wage increase. To do so would be to totally ignore the reality of wage negotiations. The most superficial involvement in wage negotiations will reveal that until the date of implementation of a wage increase has been agreed upon in wage negotiations between an employer and a trade union or workers, there is no deal. Furthermore in so far as it is accepted that what has given rise to the strike is the failure/refusal of the employers to agree to the union's demands, one cannot in earnest describe what the demands of the unions are without linking them to the period which they relate to. A description of the union's demands without saying what period they relate to would be to tell half the story. The complete story is that such demands have been made for a specified period.

In the light of the above I have therefore come to the conclusion that the period of application to which the proposals or demands of the unions relate is an inextricable part of the issue in dispute in a case such as this one. I am of the opinion that the fact that the subject matter of the strike relates to a period which is not covered by the current collective agreement between the parties renders section 65(3)(a)(i) inapplicable in this case because the issue in dispute is not regulated by the current collective agreement nor is section 65(1)(a) applicable because the collective agreement does not prohibit striking over this issue in dispute. I think this approach is not inconsistent with the approach which over the years has been adopted to the effect that, where an industrial council agreement or wage determination deals with wages, a strike over actual wages is not prohibited or regulated thereby because such agreements or wage determinations only deal with minimum wages. (See Vereeniging Refractories Ltd v BCAWU 1989 (2) SA 506 (W); AECI Ltd and Another v SACWU and Another 1986 (3) SA 729 (W) at 733A and BAWU and Others v Asoka Hotel 1989 (10 ILJ 167 (IC))

Mr Loxton also argued that clause 2 of the current agreement prohibits a strike such as this one. Clause 2 of the agreement reads:

"That agreement remain (sic) in force for a period of 12 months from the date of implementation and that no further wage increase be granted before the expiry of the 12 month period".

The emphasis of Mr Loxton's argument was that the fact that that clause says no wage increase would be granted before the expiry of the 12 month period, means that there should be no negotiations about wages during that period nor should there be any strike about wages during that period. In this regard Mr Loxton made the point that the union would not be able to go on strike during that period to force the employers to grant an increase which clause 2 says shall not or will not be granted. There is, quite clearly, no merit in this submission and I have no hesitation in rejecting it. That clause quite clearly seeks to ensure that the employers will not during the period of 12 months be bothered about any further increase for the same period of 12 months which on concluding the 1997/1998 agreement they thought they had settled.

In the end I have, therefore, come to the conclusion that the applicant's application falls to be dismissed. Accordingly the order I make is that the application is dismissed with costs.

R M M ZONDO

JUDGE : LABOUR COURT

27 FEBRUARY 1998