In an unopposed urgent application to interdict a strike, the LC held, in an ex tempore judgment, that the registered trade union, in asserting its claim to organisational rights based on having majority membership at the workplace, is not entitled to strike over those demands. The ‘suggestion’ that such an election is available only to minority unions has, with respect, to be questioned. Reliance was placed on two passages from two important judgments, but it is not possible to find any justification for the statement in those two paragraphs, which are quoted below.
Bidvest Services (Pty) Ltd v Numsa (J309/17) [2017] ZALCJHB 44 (13 February 2017) per R Lagrange J.
Excerpts
Introduction
[1] Having considered the matter and having heard the applicant’s counsel, I am satisfied that on the papers before me:
1.1 The applicant is justified in launching proceedings less that 48 hours’ notice as required by section 68(2) of the labour relations act, 66 of 1995 (‘the LRA’) in view of the first respondent initially indicating it might be amenable to postponing the strike pending arbitration proceedings requested by the applicant, but then reverted late on 10 February 2017 to say the strike would proceed today.
1.2 On the face of it, the first respondent is asserting its claim to organisational rights based on having majority membership at the workplace. As such, it is not entitled to embark on protected strike action over organisational rights demands, which is an election available only to minority unions since the Constitutional Court’s decision in NUMSA v Bader Bop (Pty) Ltd & another [2003] 2 BLLR 103 [CC] at 122 para [43]. See also National Transport Movement & others, Transnet SOC Ltd v (2014) 35 ILJ 1418; [2014] 1 BLLR 98 (LC) at 1423 para [14].
[Note: see below for relevant paragraphs]
1.3 In the circumstances, I am satisfied the applicant has established a clear right that open to some doubt to the relief sought. Further, the respondents will not be unduly prejudiced if they are ultimately entitled to strike over their demands, as compared to the prejudice that the applicant will suffer if they are not entitled to strike, but are allowed to do so pending a final determination of the issue.
Order
In light of the above, an order is made in the following terms:
[2] The Labour Court Rules relating to the time and manner of service of applications are dispensed with and the matter is dealt with as one of urgency in terms of Rule 8 and the applicant’s failure to give 48 hours’ notice of this application is condoned.
[3] The respondents are called upon to show cause on 10 March 2017 why an order should not be made in the following terms:
3.1 Declaring the strike threatened by the first respondent to commence on 13 February 2016 (‘the strike’) to be unprotected.
3.2 Pending the outcome of the CCMA arbitration under case number LP 7000-16 the respondents are interdicted restrained from promoting, encouraging, supporting, participating in or otherwise furthering the strike.
3.3 Ordering the respondents, jointly and severally, to pay the costs of this application.
3.4 It is ordered that the orders in paragraphs 3.1 and 3.2 above shall operate with immediate effect pending the final determination of this matter on 10 March 2017.
3.5 Service must be effected on the first respondent by fax and, if possible, by email. Service on the second and further individual respondents must be effected, as far as possible, by the distribution of copies of the order and SMS notifications to them.
Additional material
NUMSA v Bader Bop (Pty) Ltd & another [2003] 2 BLLR 103 [CC] at 122 para [43].
“[41] Section 20 of the Act which forms part of Chapter III, Part A confirms this as follows:
“Nothing in this Part precludes the conclusion of a collective agreement that regulates organisational rights.”
Both Zondo JP and Du Plessis AJA were of the view that this provision did not mean that minority unions could conclude collective agreements affording organisational rights but is a “clarificatory provision” which provides that agreements between representative unions (within the definition of the section) and employers may “regulate” rights. Such a reading of section 20 is a narrow one and not one suggested by the ordinary language of the text which states that nothing in Part A of Chapter III prevents collective agreements being concluded. Any other provision of the chapter which suggests the contrary is to be read subject to this provision. In an Act committed to freedom of association and the promotion of orderly collective bargaining, which requires that employers and unions should have freedom to conclude agreements on all matters of mutual interest, a narrow reading of section 20 is an inappropriate one.
Moreover, the rights conferred by Part A of Chapter III may in any event be regulated by the collective agreements expressly contemplated by section 21.
In my view, a better reading is to see section 20 as an express confirmation of the internationally recognised rights of minority unions to seek to gain access to the workplace, the recognition of their shop stewards as well as other organisational facilities through the techniques of collective bargaining.
[42] On this approach the proper interpretation of section 21 would be different from that suggested by the judges in the LAC. There is some suggestion in all three LAC judgments that the section 21 procedure is available even to those trade unions that are admittedly not sufficiently representative to be entitled to exercise the particular organisational rights concerned.
On the interpretation of the Act adopted here, section 21 is available in two circumstances.
The first is where a sufficiently representative union wishes to use the procedure to determine the manner in which the rights are to be exercised.
The second is where there is a dispute as to whether the union is sufficiently representative or not. Section 21 on its own terms, however, is not available to a union that admits that it is not sufficiently representative as contemplated by the Act.
On the other hand, however, section 21 should not be read to deny such unions the right to pursue organisational rights through the ordinary mechanisms of collective bargaining.
[43] 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 sections 64 or 65 suggesting that there is a limitation on the right to strike in this regard.
Davis AJA in his dissent in the LAC also pointed to the fact that there was no express limitation on the right to strike in this respect. It was his view that in the absence of any express prohibition, the Act should be read so as to afford the right to strike to minority unions in these cases consistently with the right to strike in the Constitution.
On the interpretation adopted here, the provisions of section 65(1)(c) and 65(2) have no application to the dispute.
These provisions are relevant only to those disputes which parties may refer to arbitration. Where a union concedes that it is not entitled to the rights in sections 12–15 because it is not representative as contemplated in Chapter III, Part A, the arbitration procedure is not open to it and accordingly section 65(1)(c) poses no bar to industrial action.
The precise scope and purpose of section 65(2) is therefore of no application either”.
National Transport Movement & others, Transnet SOC Ltd v (2014) 35 ILJ 1418; [2014] 1 BLLR 98 (LC) at 1423 para [14].
“[14] The principle established by Bader Bop, it seems to me, is that despite the fact that section 14 of the LRA reserves the statutory right to trade union representatives for unions that singly or acting jointly represent the majority of employees in the workplace, a minority union may seek to acquire that right (and any other organisational rights reserved by the LRA for majority unions) through collective bargaining and ultimately, the exercise of the right to strike. Whether a collective agreement concluded between an employer and third party unions may limit the right to strike by a non-party union, in my view, is a question that must be answered by the terms of the agreement, read with section 64 and section 65 of the Act”.
Labour Relations Act 66 of 1995
65. Limitations on 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;
(b) that person is bound by an agreement that requires the issue in dispute to be referred to arbitration;
(c) the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of this Act or any other employment law;
(2)
(a) Despite section 65(1)(c), a person may take part in a strike or a lock-out or in any conduct in contemplation or in furtherance of a strike or lock-out if the issue in dispute is about any matter dealt with in sections 12 to 15.
(b) If the registered trade union has given notice of the proposed strike in terms of section 64(1) in respect of an issue in dispute referred to in paragraph (a), it may not exercise the right to refer the dispute to arbitration in terms of section 21 for a period of 12 months from the date of the notice”.