UIS Analytical Services (Pty) Ltd v Independent Democratic Union of South Africa and Others (2024/133083) [2024] ZALCJHB 450; [2025] 2 BLLR 207 (LC); (2025) 46 ILJ 642 (LC) (20 November 2024)

FLYNOTES:LABOUR – Strike – Collective agreement – Wages – Demands relating to 13th cheque – Employees having no right to 13th cheque – Interpretation of agreement – Issue in dispute not regulated by agreement – Allegation of tacit term not shown – No basis to depart from clear terms of agreement – Dispute concerning 13th cheque remains unresolved – Industrial action to resolve dispute competent – Strike protected – Prima facie right not shown – Interdict refused – Application dismissed – Labour Relations Act 66 of 1995, s 65.

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

case no: 2024 – 133083

In the matter between:

UIS ANALYTICAL SERVICES (PTY) LTD Applicant and THE INDEPENDENT DEMOCRATIC UNION OF SOUTH AFRICA AND ITS MEMBERS EMPLOYED BY THE APPLICANT Respondent

Heard: 19 November 2024

Delivered: 20 November 2024

This judgment / reasons were handed down electronically by circulation to the parties' legal representatives by email. The date and time for hand-down is deemed to be 20 November 2024

Summary: Strike – real issues in dispute considered – demands relating to a 13th cheque – is a demand relating to matter of mutual interest – employees having no right to 13th cheque – does not constitute a right to a benefit arbitrable under s 186(2)(a) of the LRA – strike action competent / permitted – Section 65(1)(c) not applicable – strike protected

Strike – interpretation of wage agreement – agreement does not resolve issue concerning 13th cheque – parties agreed that such issue be later negotiated – issue in dispute not determined / regulated by collective (wage) agreement – Section 65(3)(a) not applicable – strike protected

Collective (wage) agreement – allegation of tacit term – principles considered – tacit term not shown – no basis to depart from clear terms of the agreement – dispute concerning 13th cheque remains unresolved – industrial action to resolve dispute competent – strike protected

Interdict – principles stated – prima facie right not shown – interdict refused – application dismissed

JUDGMENT: REASONS

SNYMAN, AJ

Introduction

[1] This matter came before me on 19 November 2024 as an opposed application, brought by the applicant to interdict strike action by the respondent, due to commence on 18 November 2024. The application was brought in terms of Section 68(1) of the LRA.[1] The matter was brought and then argued on the basis of interim relief being sought by the applicant. That being the case, the applicant

must show, as was said in National Council of SPCA v Openshaw[2], the following:

‘… (a) A prima facie right. What is required is proof of facts that establish the existence of a right in terms of substantive law; (b) A well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted;

(c) The balance of convenience favours the granting of an interim interdict; (d) The applicant has no other satisfactory remedy. …'

[2] According to the respondent, the applicant has failed to satisfy the requirements of urgency as contemplated by Rule 38. I do not agree. The requirements of urgency are set out in Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another[3], and I believe these requirements have been satisfied by the applicant. In particular in this case, the parties finally failed to settle the dispute at the CCMA on 12 November 2024. It would have been

inappropriate for the applicant to approach the Court for relief before then. I also consider that the applicant on 14 November 2024 did give the respondent notice, seeking an undertaking not to embark upon strike action, failing which the applicant would seek interdictory relief from this Court, which is an appropriate course of action before simply launching into litigation. One also cannot ignore that section 68(2) of the LRA requires 48 hours’ prior notice to the respondent, before an application in terms of section 68(1) can be brought, and the respondent’s strike notice was only given on 15 November 2024. I am convinced that the applicant acted with the necessary expedition and brought this application immediately at the first appropriate opportunity. When the matter was argued, the respondent in any event did not pursue the issue of urgency. A final consideration is that substantive relief in the ordinary course would be unattainable.[4] I am therefore satisfied that the application can be heard as one of urgency in terms of Rule 38.

[3] Having familiarised myself with the pleadings in this case, as well as the heads of argument filed by both parties, and after considering argument presented in Court on 19 November 2024 by the parties, I made the following order:

1. The application is heard as one of urgency in terms of Rule 38.

2. The applicant’s application is dismissed.

3. There is no order as to costs.

4. Written reasons for this order will be provided to the parties on 20 November 2024.

[4] This judgment now constitutes the written reasons as contemplated by paragraph 4 of my order, above, starting with a summary of the background facts.

Background facts

[5] Fortunately, and save for one particular issue where there is a factual dispute, the bulk of the facts necessary to consider in order to decide this case are either undisputed, or common cause. But as a general proposition, where it comes to any factual disputes, these must be resolved and determined on the basis of the principles as set out in the regularly referred to judgment of Plascon Evans Paints v Van Riebeeck Paints.[5] These principles are aptly summarized in Thebe Ya Bophelo Healthcare Administrators (Pty) Ltd and Others v National Bargaining Council for the Road Freight Industry and Another[6], as follows:

‘… it is the facts as stated by the respondent together with the admitted or undenied facts in the applicants' founding affidavit which provide the factual basis for the determination, unless the dispute is not real or genuine or the denials in the respondent's version are bald or uncreditworthy, or the respondent's version raises such obviously fictitious disputes of fact, or is palpably implausible, or far-fetched or so clearly untenable that the court is justified in rejecting that version on the basis that it obviously stands to be rejected.’

[6] The respondent trade union, the Independent Democratic Union of South Africa (IDUSA) is a registered trade union recognised by the applicant as a collective bargaining agent on behalf of the employees of the applicant, in terms of a recognition agreement concluded between the applicant and IDUSA on 9 November 2021. The individual respondents to this application are all members of IDUSA employed by the applicant, and are referred to in this judgment as ‘the employees’. The employees are employed by the applicant in terms of individual contracts of employment, regulating all terms and conditions of employment, which include, of relevance to this matter, remuneration and bonuses.

[7] Of relevance in casu is clauses 10.7 and 10.8 of the employment contracts of the employees, which determine that all salary and wage increments shall be entirely at the discretion of the applicant and will be reviewed annually in accordance with the provisions of relevant policy documents. It is further determined that there is no legal obligation on the applicant to pay any bonuses and if bonuses are paid, it will be paid based on the exclusive discretion of the applicant. There is also a remuneration policy in place at the applicant, which provides for increments of remuneration. In terms of the remuneration policy, all salary increments are done annually, and

all bonuses are considered to be in addition to the total salary package of the employee and remains at the discretion of the applicant.

[8] In terms of clause 4.1 of the recognition agreement between the applicant and IDUSA, the parties have agreed to negotiate wages and ‘substantive issues’. Clause 4.4 requires that any agreement concluded between the parties in this regard had to be reduced to writing and signed. Following

conclusion of the recognition agreement, the applicant and IDUSA then indeed negotiated wages and bonuses. On 7 December 2021, the parties entered into a wage agreement, for the period 1 January 2022 to 30 June 2023, in terms of which the employees were afforded a wage increase. Where it came to the issue of bonuses, this however remained unresolved, and the parties agreed, in clause 2.3 of this wage agreement, to negotiate this in 2022.[7] The next wage agreement was concluded on 5 October 2023, for the period 1 July 2023 to 30 June 2024. In this instance, it was inter alia agreed that a bonus of 75% of salary would be payable to the employees in December 2023.

[9] The current dispute then arose from the 2024 wage and substantive issues negotiations for the 2024 / 2025 years. In this respect, IDUSA again tabled demands for a wage increase and bonuses for the employees. Pursuant to such negotiations, the parties concluded a wage agreement on 24 July 2024, for the period 1 July 2024 to 30 June 2025 (the 2024 wage agreement). A wage increment was agreed to. However, and where it came to the issue of bonuses, the following was recorded in clause 2.2:

‘It is agreed that the bonus discussion will not form part of this agreement. The parties will meet again during September 2024, or such time as when draft Financial Statements are finalised, to agree on the bonus for the end of the year.’ (sic)

[10] According to the applicant, because the main if not sole consideration pertaining to the payment of bonuses was premised on affordability, the reason why the parties agreed that the discussion pertaining to the payment of bonuses would stand over until the draft financial statements were available, is because these considerations of affordability dictated that should the applicant not be in a financial position to pay out bonuses, then no bonuses will be paid. The applicant contended that the ‘unspoken agreement or meeting of the minds’ contemplated by clause 2.2. was that should the applicant not be in a position to afford paying bonuses, that no bonuses will be paid, and the dispute pertaining to the payment of bonuses was in fact settled on that basis.

[11] IDUSA disputed that there was any such unspoken agreement. In the answering affidavit, it specifically states that there was no such unspoken agreement or meeting of the minds between the parties insofar as the issue of affordability to pay the bonus is concerned, and everything which was negotiated and then agreed to, was incorporated in the 2024 wage agreement. IDUSA states that the negotiation on the bonuses was to be finalised in September 2024, but the applicant refused to negotiate and stated that it would not pay bonuses based on affordability.

[12] What the evidence shows is that upon the draft financial statements becoming available, the applicant's board of directors perused and considered the same, and discussed the affordability of paying bonuses with its auditors. Having done so, the applicant's board of directors concluded that the applicant could not afford to pay bonuses, and a special staff meeting was conducted on 8 October 2024, in which IDUSA and the employees were informed that the employees will not be paid bonuses because it was not affordable. According to the applicant, it in fact presented information to substantiate this state of affairs.

[13] The employees and IDUSA having been so informed on 8 October 2024, IDUSA referred a dispute of mutual interest to the Commission for Conciliation Mediation and Arbitration (CCMA) pertaining to the issue of the bonuses. This dispute was unsuccessfully conciliated on 22 October 2024. The issue before the CCMA then turned to the determination of picketing rules, and a further conciliation was held at the CCMA on 12 November 2024. In the end, the parties were unable to resolve the dispute, and a certificate of failure to settle was issued on 12 November 2024.

[14] On 15 November 2024, IDUSA issued the applicant was a notice of intention to embark upon strike action, commencing 18 November 2024, as contemplated by section 64(1) of the LRA. The notice recorded that the issue in dispute remained the payment of the bonuses (13th cheques) in December 2024 to the employees. It may be added that on 14 November 2024, the applicant gave IDUSA notice that should it pursue strike action, it would be regarded as unprotected, and that the Labour Court would be approached on the basis of urgency, as contemplated by section 68(1) of the LRA.

[15] The current application then followed on 17 November 2024, which, as said, was opposed by IDUSA. In the founding affidavit, the applicant has based its case on two contentions. First, it contends that the issue in dispute concerning the bonuses was a benefit as contemplated by the unfair labour practice jurisdiction under the LRA, needed to be arbitrated, and thus strike action was prohibited by virtue of section 65(1)(c) of the LRA. Secondly, the applicant contends that properly construed, the 2024 wage agreement regulated / determined the issue of the bonuses, and as such, strike action was not competent by virtue of section 65(3)(a) of the LRA.

[16] In this instance, it was undisputed that IDUSA had complied with all the pre-requisite procedural requirements in Section 64(1) of the LRA, so as to enable the right to strike to accrue to it and the employees. Similarly, and considering what is contained in the founding affidavit, the answering affidavit, and the written submissions of the parties, the issues of irreparable harm,

balance of convenience, and the absence of an alternative remedy was not really in dispute. What was hotly contested was the issue of a prima facie right, which I will now turn to.

Prima facie right

[17] The appropriate point of departure in this case is a consideration of the right to strike, and its implications. In this context, it cannot be ignored that the right to strike to strike is a Constitutionally enshrined right, given effect to in the LRA.[8] In terms of section 64(1) every employee has the right to strike for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest.[9] As such, and as a matter of principle, this right should not be unduly or inappropriately limited, and limitation must be strictly

determined on the basis of what is specifically provided for in the LRA. In National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another[10] the Court said:

‘… Prohibiting the right to strike in relation to a demand that itself relates to a fundamental right otherwise not protected as a matter of right in the legislation would constitute a limitation of the right to strike in s 23 …

… Where employers and unions have the right to engage in collective bargaining on a matter, the ordinary presumption would be that both parties would be entitled to exercise industrial action in respect of that matter. There is nothing in s 64 or 65

suggesting that there is a limitation on the right to strike in this regard. …’

[18] What is often misunderstood is that a matter of mutual interest is not necessarily limited to an issue of interest. A matter of mutual interest can encompass both what is commonly known as a rights dispute and an interest dispute, as both can legitimately form the subject matter of a demand by a trade union. Therefore, and at a conceptual level, even a dispute of right would qualify to be susceptible to protected strike action pursuant to a demand by a trade union.[11] In Department of Home Affairs and Another v Public Servants Association and Others[12] the Court pertinently held:

‘What constitutes a matter of mutual interest is not defined in the LRA. The term ‘serves to define the legitimate scope of matters that may form the subject of collective agreements, matters which may be referred to the statutory dispute-resolution mechanisms, and matters which may legitimately form the subject of a strike or lock-out’. ‘Interest’ and ‘rights’ disputes are both matters of mutual interest. …’

[19] Therefore, the enquiry into whether a contemplated strike is protected or unprotected should be a simple enquiry. The default position is that the strike is allowed, provided the procedural requirements in section 64(1) have been complied with, and provided the issue in dispute forming the subject matter of the proposed strike action is not one that is prohibited by any of the provisions of section 65 of the LRA, which are the specific provisions in the LRA seeking to limit the right to strike in the case of all mutual interest

disputes. In Vodacom (Pty) Ltd v Communication Workers Union[13] the Court held as follows:

‘Section 65 sets out limitations on the right to strike or recourse to lock-out which have to be read together with s 64. In short no matter that there has been compliance with s 64, the LRA limits a right to strike, such that if the strike reaches one of the limitations in terms of s 65, it is an unlawful strike, notwithstanding compliance with procedures under s 64. …’

[20] As stated above, the substantive limitations on the right to strike can be found in section 65 of the LRA. These limitations are defined by way of specific reference to what is called the ‘issue in dispute’ forming the subject matter of the strike, which includes a demand.[14] In sum, the most often occurring occurrences are that strike action is not permitted where the person is bound by a collective agreement that prohibits a strike in respect of the issue in dispute or requires the issue in dispute to be referred to arbitration,[15] the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of the LRA or any employment law,[16] or if the person is bound by any arbitration award or collective agreement that regulates the issue in dispute.[17] Finally, and although not specifically said in section 65, the issue in dispute must not concern a demand that is unlawful.[18]

[21] In order to determine whether an issue in dispute falls within the parameters of these limitations, it is essential to determine what the true or real nature of this issue in dispute would be, no matter how the parties may have sought to describe or label the dispute. In Coin Security Group (Pty) Ltd v Adams and Others[19] the Court said:

'It is the court's duty to ascertain the true or real issue in dispute (Ceramic Industries Ltd t/a Betta Sanitaryware v National Construction Building Workers Union & others (2) (1997) 18 ILJ 671 (LAC) and Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers' Union & others (1) (1998) 19 ILJ 260 (LAC)). In conducting that enquiry a court looks at the substance of the dispute and not the form in which it is presented (Fidelity at 269G-H; Ceramic at 678C). The characterization of a dispute by a party is not necessarily conclusive (Ceramic at 677H-I; 678A-C). ….’

And in Pikitup (SOC) Ltd v SA Municipal Workers Union on behalf of Members and Others[20] it was held that:

‘… It is our duty to look at the true nature of the dispute and not the manner in which it has been packaged by the employees …’.

[22] As to what must be considered by the Court when establishing the true or real issue in dispute, the Court in TSI Holdings (Pty) Ltd and Others v National Union of Metalworkers of SA and Others[21] said:

‘The purpose of the concerted refusal to work must be determined in the light of all the conduct of the respondents. This includes what the respondents wrote in the referral of the dispute to conciliation and in the strike notice where these can shed light on such purpose. In the form used for the referral of the dispute to conciliation there is a space where the form required the respondents to state what they desired as an outcome of the conciliation process.

What is said in the strike notice is particularly important because it will probably reflect the views of the union or the strikers at the time that they were notifying the employer of the commencement of their strike …’

[23] Similarly, the Court in City of Johannesburg Metropolitan Municipality v SA Municipal Workers Union and Others[22] held:

‘The issue in dispute in relation to a strike (in these proceedings, the demands made by the union) is to be ascertained from the relevant facts. These include the referral form, any relevant correspondence, the negotiations between the parties and the affidavits filed in this court’.

[24] The issue in dispute in casu is straight forward, and is clear from all the preceding documentary evidence, which includes the 2024 wage agreement, the CCMA dispute referral to conciliation, and the strike notice itself. It is a demand by IDUSA for the payment of bonuses (13th cheques) to the employees in December 2024. In terms of the employees’ contracts of employment, they have no right or entitlement to such bonuses. In fact, the employment contracts make it clear that the applicant has ‘no legal obligation’ to pay such bonuses. On face value, therefore, this is an issue that would legitimately form the subject matter of collective bargaining as an issue of interest, and for which strike action would be competent if the issue is not ultimately resolved between the applicant and IDUSA by agreement. If there is any doubt about this, the facts show that the issue of bonuses had been tabled, since the inception of the relationship between the applicant and IDUSA, as an issue for negotiation in the preceding two wage negotiations between them. And lastly, in the recognition agreement, the parties committed themselves and agreed to the negotiation of all wages and substantive issues, which would obliviously include bonuses. In short, employees have no right to bonuses, and any issue in dispute pertaining to the payment of the same must be an issue to be resolved by collective bargaining, which includes industrial action as a part thereof.

[25] So why would the current case be any different? After all, it is undisputed that IDUSA tabled the issue of bonuses in the current round of negotiations in 2024 as a demand, and the parties negotiated on it. However, and as the 2024 wage agreement shows, the parties could not achieve agreement on the issue of the bonuses. Without an agreement, the issue in dispute, as articulated by this specific demand, remained unresolved, and as a matter of course, industrial action would follow to finally resolve it. Again,

and on face value, that is exactly what IDUSA did. When it and the employees were told in no uncertain terms on 8 October 2024 that there would be no bonuses and this was not negotiable, it referred such dispute to the CCMA, and following unsuccessful conciliation,

gave notice to strike as contemplated by section 64(1) on this very issue. What could possibly be wrong with this?

[26] But what the applicant has sought to do, in my view, is opportunistically misconstruing the provisions of the 2024 wage agreement. Relying on the obligation of this Court to determine the real issue in dispute, the applicant has contended that clause 2.2 of the wage agreement means two things. First, and because clause 2.2 provides that the issue of the bonuses stands over until the

draft financial statements come to hand, this means that the bonus dispute is resolved by the 2024 wage agreement on this basis. Second, the applicant contends that the clause implies that IDUSA accepted that it was up to the applicant to decide the affordability where it comes to the payment of the bonuses, and then be entitled to unilaterally determine if the bonuses were payable. Both these contentions are in my view simply unsustainable, based on the clear terms of the 2024 wage agreement itself, as well as the undeniable facts, which I will next address.

[27] It must be remembered that the 2024 wage agreement, as a collective agreement, is subject to the normal principles of contractual

interpretation. In Natal Joint Municipal Pension Fund v Endumeni Municipality[23] the Court said:

‘…. Interpretation is the process of attributing meaning to the words used in a document …. having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document. ….’

[28] Applying the above ratio in Endumeni supra, it is apparent that in terms of the clear language used in the 2024 wage agreement, what that agreement does not determine, is the issue of the bonuses payable to the employees. Far from it, it actually in so many words excludes the issue of the determination of the bonuses by way of such agreement. Clause 2.2 of the 2024 wage agreement does nothing more than deferring the negotiations on the bonuses until certain information comes to hand. Once that information has come to hand, the parties then still needed to discuss and agree on the issue of the bonuses. As stated, this is contemplated by the simple and clear language of the agreement.

[29] So what then if the information does come to hand and there are no further discussions and / or ultimately agreement on the issue of the bonuses? There is nothing in the 2024 wage agreement that stipulates a solution or determines an outcome in such eventuality. In particular, there is nothing in the agreement that contemplates that the dispute concerning the bonuses would somehow be regarded as having been resolved between the parties. The agreement pertinently records that it still needs to be agreed. Common sense and logic then dictate that the next step in the collective bargaining process, which is clearly what was contemplated, would be the exercise of IDUSA’s rights under section 64(1) of the LRA. That would be the only way in which IDUSA could secure agreement from the applicant to pay the bonuses. In my view, should the parties have contemplated that the 2024 wage agreement excluded the rights of IDUSA under section 64(1) of the LRA, the agreement needed to specifically stipulate to that effect. It did not. As such, the agreement speaks for itself. Further negotiation and agreement on the issue of bonuses was contemplated, leaving industrial action as the only competent deadlock breaking mechanism in this regard.

[30] Undeterred, the applicant resorts to an allegation concerning an alleged tacit term to the 2024 wage agreement. As touched on above, this alleged term is that the parties intended and contemplated, by virtue of what is recorded in clause 2.2 of the 2024 wage agreement, that the payment of the bonuses would be decided by the applicant of its own accord based on the issue of affordability, after considering its draft financial statements. There can be no merit in this suggestion. It flies directly in the face of the clear

terms of the agreement, as discussed above. On the facts, in any event, IDUSA has made it clear in the answering affidavit that there is no such intention or understanding, and all that was agreed to is what was specifically stipulated in the 2024 wage agreement itself. Applying the principles in Plascon Evans, there is no reason why this version should not prevail.

[31] The above being the facts, I will next deal with the principles applicable to tacit terms in any kind of contract, which was succinctly described by the Court in Wilkins v Voges[24] as follows:

‘A tacit term, one so self-evident as to go without saying, can be actual or imputed. It is actual if both parties thought about a matter which is pertinent but did not bother to declare their assent. It is imputed if they would have assented about such a matter if only they had thought about it – which they did not do because they overlooked a present fact or failed to anticipate a future one. Being unspoken, a tacit term is invariably a matter of inference. It is an inference as to what both parties must or would have had in mind. The inference must be a necessary one: after all, if several conceivable terms are all equally plausible, none of them can be said to be axiomatic. The inference can be drawn from the express terms and from admissible evidence of surrounding circumstances. …. The practical test for determining what the parties would necessarily have agreed on the issue in dispute is the celebrated bystander test. Since one may assume that the parties to a commercial contract are intent on concluding a contract which functions efficiently, a term will readily be imported into a contract if it is necessary to ensure its business efficacy; conversely, it is unlikely that the parties would have been unanimous on both the need for and the content of a term, not expressed, when such a term is not necessary to render the contract fully functional.’

[32] Of course, the tacit term must be a necessary one.[25] Also, the tacit term must be susceptible to being clearly formulated, although the formulation need not be concise.[26] As was said in Commissioner for the South African Revenue Service v Bosch and Another[27]:

‘… If a party contends for a tacit term it is incumbent on them to formulate that term so as to give effect to what they say should be imputed to the contracting parties ….’

[33] Applying the aforesaid in casu, I have little hesitation in concluding that the applicant has simply not established the existence of a tacit term in the 2024 wage agreement as it has contended for. It must be said from the outset that reliance on a tacit term flies int h efface of clause 4.4 of the recognition agreement, in terms of which any agreement on bonuses needed to be reduced to writing and signed by the parties. In the absence of a written agreement on bonuses, and by law, it would not be permissible for the applicant to rely on a tacit term. In Brisley v Drotsky[28] the Court said:

‘…. parties may validly agree in writing to an enumeration of their rights, duties and powers in relation to the subject-matter of a contract, which they may alter only by again resorting to writing. This Court nearly four decades ago upheld the validity of such clauses SA Sentrale Ko-Op Graanmaatskappy Bpk v Shifren en Andere 1964 (4) SA 760 (A). …’

[34] These kinds of clauses are not just there to take up space in a contract. They fulfil a specific, and important purpose. This was articulated in Spring Forest Trading CC v Wilberry (Pty) Ltd t/a Ecowash and Another[29] as follows:

‘… it is necessary to remind ourselves that when parties impose restrictions on their own power to vary or cancel a contract –

as they did in this case – they do so to achieve certainty and avoid later disputes. The obligation to reduce the cancellation

agreement to writing and have it signed was aimed at preventing disputes regarding the terms of the cancellation and the identity of the parties authorised to effect it. Our courts have confirmed the efficacy of such clauses. …’

[35] Considering what is happening in casu, it is my view that clause 4.4 of the recognition agreement was designed for this very reason, so that the parties would not have to squabble later about what may have tacitly agreed or understood. The applicant must be held to this bargain. Thus, any alleged verbal agreement that may have been concluded between the parties simply cannot be valid, or in any manner relied upon, in the light of the clear terms of clause 4.4 of the recognition agreement.[30]

[36] Next, the term the applicant relies on is not actual, and thus it must be imputed. For this to be done, an inference has to be drawn that the parties had in mind that in order to resolve the bonuses dispute, the applicant would, based on its assessment of its financial statements, finally and unilaterally decide the issue the payment of a bonuses to employees. I simply cannot accept that this is a legitimate inference to be drawn from the facts. First, such an inference is entirely incompatible and inconsistent with the actual wording of clause 2.2 in the 2024 wage agreement, which requires and uses the work ‘agree’ where it comes to the bonuses. This notion cannot be married, in any way whatsoever, with unilateral decision making.

[37] The implied term is not a necessary one for the 2024 wage agreement to function. Effect can be given to clause 2.2 as it stands, by simply resorting to negotiation on the issue of a bonuses after the draft financial statements came to hand, and then a separate agreement be concluded on this. This course of action is far more consistent with the actual wording in the clause, and as said, is all that it needed to have it effectively operate. And I in any event find it hard to accept that IDUSA, as a trade union, would leave such an issue solely up to the applicant to decide, especially considering what is provided for in the recognition agreement, and what happened in the wage negotiation of the previous year. I am convinced that if it was the intention that it was up to the applicant to unilaterally decide the issue of the payment of bonuses to employees after considering its draft financial statements, considering what was at stake at this case and that it was part of the process of collective bargaining, the agreement would have specifically said so. Comparable is the following dictum in CSS Tactical (Pty) Ltd v Security Officers Civil Rights and Allied Workers Union and Others[31]:

‘It is true that on its wording, clause 12 may be read as restricting the issues that may be raised at company level and reserving all other issues for national level bargaining. But when it is conceded that clause 12 is not all embracing it must follow that clause 12 may not be intended to eliminate the two remaining demands from bargaining at that level. If this is the case, then it cannot be said that the collective agreement has competently limited the constitutional right to strike. …’

[38] Applying the proper terms of the 2024 wage agreement to the facts, it is my view that the applicant, after receiving the draft financial statements, unilaterally decided that it could not afford bonuses and that it would not pay the same. It then presented this to IDUSA and the employees as a fait accompli. This meant that the parties did not agree on this issue as contemplated by clause 2.2. Because the issue of the bonuses of employees was specifically excluded from the operation of the agreement by clause 2.2, and in the absence of a separate agreement on bonuses being concluded also as contemplated by clause 2.2, two issues flowed from this eventuality. First, this issue in dispute remained unresolved. Second, any regulation of the issue by virtue of clause 2.2 expired, because no agreement came about after the draft financial statements came to hand.

[39] In the end, the suggestion that the 2024 wage agreement somehow regulates the issue of the payment of the bonuses to employees is devoid of merit. Truth be told, that agreement specifically excludes such bonuses from determination, and simply provides that bonuses are to be separately negotiated and agreed once the applicant has familiarised itself with its true financial position based on its draft financial statements. The simple point is that when the applicant considered its financial position, it decided

it could not afford the bonuses, was thus unwilling to pay the employees the bonuses, and then informed them accordingly on 8 October 2024. As stated by IDUSA in the answering affidavit, the applicant informed it that there will not be any bonuses for the

employees and that the applicant was not willing to entertain any proposals on this. The applicant having made its final position

clear, that left IDUSA with no other alternative but to initiate the next step in the dispute resolution process, being the pursuit of industrial action. Section 65(3)(a) therefore simply cannot come to the assistance of the applicant in this instance.

[40] The applicant has another arrow in its quiver. According to the applicant, what was contained in the 2024 wage agreement meant that

the applicant had a discretion whether or not to grant the bonuses. Based on this view, and relying on the judgment in Apollo Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[32], the applicant contends that the bonuses was thus a benefit, and therefore arbitrable under section 186(2)(a)[33], as an unfair labour practice.[34] That would mean strike action is prohibited by virtue of section 65(1)(c) of the LRA. But the applicant does not appreciate that the Court in Apollo Tyres was never called upon to decide whether employees were entitled to strike in the case of a benefit. The actual ratio of the judgment in Apollo Tyres supra[35] can be extracted from the following dictum:

‘In my view, the better approach would be to interpret the term 'benefit' to include a right or entitlement to which the employee is entitled (ex contractu or ex lege including rights judicially created) as well as an advantage or privilege which has been offered or granted to an employee in terms of a policy or practice subject to the employer's discretion. In my judgment 'benefit' in s 186(2)(a) of the Act means existing advantages or privileges to which an employee is entitled as a right or granted in terms of a policy or practice subject to the employer's discretion.’

[41] Applying the above dicta in Apollo Tyres, the applicant would have to show that the issue of the bonuses emanates from existing advantages, privileges or benefits in the

applicant, to which the employees would be entitled to either as a right granted in terms of a statute, contract or policy, or in terms of a policy or practice subject to the applicant’s discretion. The applicant, I believe, has fallen far short on both counts, for the reasons to follow.

[42] First, the simple question to answer is whether IDUSA would have the right to refer the dispute concerning the bonuses to arbitration under the LRA. In Mawethu Civils (Pty) Ltd and Another v National Union of Mineworkers and Others[36] the Court held:

‘The issue the court had to decide was whether the respondents had the right to refer the issue in dispute to arbitration or to the Labour Court in terms of the LRA. The answer to that question appears to me to be in the affirmative … if and when conciliation failed, the respondents would at that point have acquired the right to request arbitration in terms of s 191(5)(a)(iv) of the LRA.’

[43] In my view, and at the point when the certificate of failure to settle was issued on 12 November 2024, IDUSA simply did not have the right to refer the bonuses dispute to arbitration. First and foremost, the employees have no contractual right to the bonuses.

They equally have no right to the bonuses under any of the applicant’s policies. The right to be paid bonuses by virtue of

the wage agreement concluded in 2023 expired when that wage agreement expired on 30 June 2024. The bonuses are a substantive issue forming part of the annual wage negotiations between the applicant and IDUSA, and the right to payment only accrues if agreement is reached on the same pursuant to such negotiation. Therefore, and should IDUSA refer an unfair labour practice dispute concerning the bonuses to arbitration, following the failure to settle to the CCMA, a CCMA arbitrator would have no jurisdiction to make any award, as the employees would simply have no right to such a benefit.

[44] The applicant’s counsel belaboured the point that the bonuses are a benefit, by definition. I have no quarrel with this submission, as a bonus certainly qualifies as a benefit.[37] But the fact that a bonus would qualify as a benefit by definition and as a matter of law, does not mean that the employees have a right or entitlement to such benefit. That right must still be founded in contract, policy or ex lege, or by way of a pre-existing policy dispensation subject to discretion. Where no such right to a benefit exists, the demand for

such a benefit is an interest issue and the entitlement to the same can only be pursued by collective bargaining followed by industrial

action if unresolved. What the applicant is effectively trying to do is to say that because a bonus is a benefit it must be a right. That is simply wrong. What is rather true is that for a bonus to be a benefit as a matter of right, that right must first be established ex contractu, ex lege or by way of existing policy regulation.[38] As an example, and in Johannesburg Water (SOC) Ltd v Commission for Conciliation, Mediation and Arbitration and Others[39], the Court held that the failure by an employment to pay a bonus was an unfair labour practice relating to a benefit, because the employer had acted contrary to the terms of its remuneration policy.

[45] The applicant went further and contended that because of the provisions of clause 2.2 of the 2024 wage agreement, when the applicant then decided not to pay a bonus, it exercised a discretion, in the light of the fact that it had been agreed in the past to grant bonuses to employees. The argument then goes further to the effect that because such a discretion has been exercised, this decision must be arbitrable under the unfair labour practice jurisdiction. This contention however in my view ignores the pertinent facts. The previous bonuses that were paid, were paid in terms of a specific wage agreement for a specific period. It cannot serve as some of precedent which the applicant is bound to going forward, especially considering it was tabled and negotiated all over again for the 2024 / 2025 year to which the new 2024 wage agreement related.[40] But further than that, the decision taken by the applicant in this case not to give a bonus is nothing but an ad hoc decision based on its existing financial statements, which can hardly be described as establishing some kind of policy in turn establishing a right to a benefit as contemplated by Apollo Tyres. As said in Pelindaba Workers Union v SA Nuclear Energy Corporation and Others[41]:

‘… The elevation of an ad hoc decision to grant different percentage increases into a ‘policy’ is fatuous. The approach seems to have been influenced by the decision in Apollo which articulates the idea that a benefit as contemplated by s 186(2)(a) is something which can be conferred pursuant to a practice or policy. It does not follow that a ‘policy’ decision of the management to grant differential wages increases in a particular year is a ‘policy’ in the sense of a practice or a policy as described in Apollo. …’

[46] Taking the 2024 wage agreement, as it clearly reads, it specifically provides that the issue of bonuses is not part of it. This wage agreement therefore cannot be the source of any right. The wage agreement goes further, and defers discussion on the issue of the bonuses until the draft financial statements of the applicant comes to hand, whereafter the parties will have discussions

on the bonuses with the view to reach agreement on it. It is clear from the facts that there is no current agreement on the issue of the bonuses, and consequently no right to it. The applicant’s attempted reliance on the 2024 wage agreement to establish a right to the bonuses as a benefit is in my view not only misplaced, but actually contrived.

[47] In sum, I am thus satisfied that the applicant has failed to illustrate a prima facie right to the relief it seeks. The issues in dispute forming the subject matter of the intended strike action at the applicant, by IDUSA and its membership, would be protected, because the provisions of sections 65(1)(c) or 65(3)(a) of the LRA do not find application in order to render such strike unprotected.

Conclusion

[48] Even though the issues of prejudice, balance of convenience and no alternative remedy, and as stated above, were not in contention, the unfortunate reality for the applicant remains that it has failed to illustrate a prima facie right to the relief sought. It has failed to establish that the contemplated strike action by IDUSA and its members, initiated in terms of section 64(1) of the LRA, can be considered to be unprotected by virtue of the application of any of the provisions of section 65 of the LRA. The application thus falls to be dismissed.

[49] In the notice of motion, the applicant has asked for further interdictory relief relating to unlawful conduct by striking employees, such as interfering with non-striking employees, committing acts of violence and intimidation, and unlawfully interfering with the business of the applicant. But the applicant has not made out any case in the founding affidavit, on the facts, why such relief would be justified. The applicant cannot just come to Court and ask that unlawful behaviour be interdicted, where the applicant has not even established the existence of such unlawful behaviour or proven the real possibility that such unlawful behaviour may occur. The relief sought by the applicant in this regard must equally fail.

Costs

[50] This only leaves the issue of costs. The parties have an ongoing relationship with one another. Whilst the applicant’s approach

to this Court was ill-conceived, I do not think it was mala fide. I have appreciation for the applicant’s motives, being the protection of its business, even though it was misguided. There is also still an underlying dispute between the parties that needs to be finally resolved, and I consider that mulching a party with costs would only serve to place further strain on the relationship in this context. Finally, I am guided by the judgment in Zungu v Premier of the Province of Kwa-Zulu Natal and Others[42] where it comes to the issue of costs in employment disputes. Exercising the wide discretion I have in terms of section 162(1) of the LRA, I believe that this is a case where no costs order would be appropriate.

Order

[51] It is for all the reasons as set out above, that I made the order as set out in paragraph 3 of this judgment, supra.

S Snyman

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate C Dames Instructed by: Couzyn, Hertzog & Horak Attorneys For the Respondent: Ms B Mahlangu of CHSM Attorneys

[1] Labour Relations Act 66 of 1995.

[2] [2008] ZASCA 78; 2008 (5) SA 339 (SCA) at para 20. See also Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and Another 1973 (3) SA 685 (A) at 691B-E.

[3] (2016) 37 ILJ 2840 (LC) at paras 20 – 26.

[4] Compare See Maqubela v SA Graduates Development Association and Others (2014) 35 ILJ 2479 (LC) at para 32; Transport and Allied Workers Union of SA v Algoa Bus Co (Pty) Ltd and Others (2015) 36 ILJ 2148 (LC) at para 11.

[5] [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E 635C. See also Jooste v Staatspresident en Andere 1988 (4) SA 224 (A) at 259C – 263D; National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at paras 26 – 27; Molapo Technology (Pty) Ltd v Schreuder and Others (2002) 23 ILJ 2031 (LAC) at para 38.

[6] 2009 (3) SA 187 (W) at para 19.

[7] There was no evidence of this then happening in 2022.

[8] Section 23(2)(c) of the Constitution, 1996, reads: ‘Every worker has the right- … to strike.’

[9] See the definition of a ‘strike’ in section 213 of the LRA.

[10] (2003) 24 ILJ 305 (CC) at para 35.

[11] In Vanachem Vanadium Products (Pty) Ltd v National Union of Metalworkers of SA and Others (2014) 35 ILJ 3241 (LC) at para 16, the Court said: ‘… It is clear from the statutory framework that all interest disputes (broadly, disputes about the creation of new rights) and rights

disputes (broadly, disputes about the interpretation and application of existing rights) are subsets in the broader category of disputes about matters of mutual interest. In other words, all interest disputes constitute disputes about matters of mutual interest, but not all disputes about matters of mutual interest are interest disputes …’.

[12] (2017) 38 ILJ 1555 (CC) at para 17. See also Pikitup (SOC) Ltd v SA Municipal Workers Union on behalf of Members and Others (2014) 35 ILJ 983 (LAC) at paras 54 – 56.

[13] (2010) 31 ILJ 2060 (LAC) at para 10.

[14] The applicable definition is: ‘'issue in dispute', in relation to a strike or lock-out, means the demand, the grievance, or the dispute that forms the subject matter of the strike or lock-out’

[15] Section 65(1)(a) and (b).

[16] Section 65(1)(c).

[17] Section 65(3)(a).

[18] Pikitup (supra) at para 33; TSI Holdings (Pty) Ltd and Others v National Union of Metalworkers of SA and Others (2006) 27 ILJ 1483 (LAC) at para 48; Vector Logistics (Pty) Ltd v National Transport Movement & others (2018) 39 ILJ 1653 (LC) at para 17.

[19] (2000) 21 ILJ 924 (LAC) at para 15.

[20] (2014) 35 ILJ 983 (LAC) at para 47. See also Unitrans Supply Chain Solutions (Pty) Ltd v SA Transport and Allied Workers Union and Others (2014) 35 ILJ 265 (LC) at para 9.

[21] (2006) 27 ILJ 1483 (LAC) at paras 29 and 31.

[22] (2009) 30 ILJ 2064 (LC) 2069G-H. See also Unitrans Supply Chain Solution (Pty) Limited v South African Transport and Allied Workers Union and Another (2014) 35 ILJ 265 (LC) at paras 9 – 11; SATAWU v Coin Reaction (2005) 26 ILJ 1507 (LC) at 1512D.

[23] 2012 (4) SA 593 (SCA) at para 18. See also Bothma-Batho Transport (Edms) Bpk v S Bothma en Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA) at para 12.

[24] 1994 (3) SA 130 (A) at 136H–137C. See also De Lange v ABSA Makelaars (Edms) Bpk (2010) 31 ILJ 885 (SCA) at para 21.

[25] See Airports Company South Africa Limited v Airport Bookshops (Pty) Ltd t/a Exclusive Books [2015] 3 All SA 561 (GJ) at para 30.

[26] Plaaskem (Pty) Ltd v Nippon Africa Chemicals (Pty) Ltd [2014] 4 All SA 12 (SCA) at para 27.

[27] [2015] 1 All SA 1 (SCA) at para 26.

[28] 2002 (4) SA 1 (SCA) at paras 89 – 90. This doctrine was applied by the LAC in Blue IQ Investment Holdings (Pty) Ltd v Southgate (2014) 35 ILJ 3326 (LAC) at para 18.

[29] 2015 (2) SA 118 (SCA) at para 13.

[30] See Affirmative Portfolios CC v Transnet Ltd t/a Metrorail [2008] ZASCA 127; 2009 (1) SA 196 (SCA) at paras 17 – 18.

[31] (2015) 36 ILJ 2764 (LAC) at para 25.

[32] (2013) 34 ILJ 1120 (LAC).

[33] Section 186(2)(b) reads ‘… any unfair act or omission that arises between an employer and an employee involving- (a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee’.

[34] See Sections 191(1) and 191(5)(a) of the LRA.

[35] Id at para 50.

[36] (2016) 37 ILJ 1851 (LAC) at para 19.

[37] See Northern Cape Provincial Administration v Commissioner Hambidge NO and Others (1999) 20 ILJ 1910 (LC) at paras 13 – 14; Sithole v Nogwaza NO and Others (1999) 20 ILJ 2710 (LC) at para 47; Chimphondah v Housing Investment Partners (Pty) Ltd and Others (2021) 42 ILJ 1720 (LC) at paras 19 – 20.

[38] In Apollo Tyres (supra) at para 51, it was held: ‘… where an employee wants to use the same remedy in relation to the provision of benefits such an employee has to show that he or she has a right or entitlement sourced in contract or statute to such benefit …’.

[39] (2018) 39 ILJ 845 (LC) at paras 16 and 19.

[40] Compare NUM v Commissioner T Orleyn and Others 2003 JDR 0089 (LC) at para 14.

[41] (2020) 41 ILJ 2602 (LAC) at para 12.

[42] (2018) 39 ILJ 523 (CC) at para 25.