By Yashin Bridgemohan

Transport and Allied Workers Union of South Africa v Public Utility Transport Corporation Ltd [2016] 6 BLLR 537 (CC)

Section 64(1)(a) of the Labour Relations Act 66 of 1995 (LRA) provides:

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

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

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

(ii) a period of 30 days, or any extension of that period agreed to between the parties to the dispute, has elapsed since the referral was received by the council or the Commission; …’.

Section 213 of the LRA defines ‘issue in dispute’ in relation to a strike or lockout as ‘the demand, the grievance, or the dispute that forms the subject matter of the strike or lockout’ (my italics).

Section 64(1)(c) provides:

‘[I]n the case of a proposed lockout, at least 48 hours’ notice of the commencement of the lockout, in writing, has been given to any trade union that is a party to the dispute, or, if there is no such trade union, to the employees, unless the issue in dispute relates to a collective agreement to be concluded in a council, in which case, notice must have been given to that council; …’.

Facts

In 2002 the applicant, a registered trade union and the respondent entered into a recognition agreement in accordance with the LRA. This agreement continued to be in force at all material times between the applicant and the respondent.

In April 2012 a collective agreement on wages and other conditions of employment was concluded between the parties present at the bargaining council. The applicant a member of the bargaining council at the time, omitted to sign the collective agreement.

The collective agreement continued to apply to the applicant until July 2013 due to the extension by the Minister of Labour in accordance with s 32 of the LRA.

In August 2012 the applicant terminated its membership with the bargaining council. However, in February 2013, the applicant attempted to have its membership reinstated by forwarding a letter to the bargaining council.

On 14 February 2013, the bargaining council notified the applicant that its central committee would consider the application for the reinstatement of its membership at a meeting to be held on 17 April 2013.

On 17 April, industry wage negotiations gridlocked at the bargaining council and two trade unions gave notice to employers that their members would be embarking on a strike. On 18 April, before the strike began the applicant advised the respondent that its members would not take part in the strike. The strike subsequently commenced on 19 April.

On even date the respondent forwarded a notice to the bargaining council, the applicant and non-unionised employees, notifying them that it intended to lockout all of its employees on Sunday, 21 April at 9:00 am.

On the same day of receiving the notice the applicant’s secretary general contacted a senior executive of the respondent’s corporate services to enquire whether the lockout applied to its members.

The executive had e-mailed the applicant’s secretary general and provided the notice was a response to the strike notices issued by the two other trade unions. It was also confirmed that as the applicant was not a member of the bargaining council and not a party to the dispute, which caused the lockout and in the given circumstances the applicant’s member would not be striking.

The bargaining council had also on said day sent a letter to the applicant advising that its request made in February 2012 was considered and the applicant was now invited to apply for membership in accordance with bargaining council’s constitution.

On 23 April 2012 the respondent instituted a lock, which, it provided, applied to all employees including those whom where members of the applicant.

The applicant had then attempted to interdict the respondent from continuing to lockout its members at the Labour Court and was successful. The respondent had then appealed to the Labour Appeal Court (LAC) and its appeal was upheld. The applicant had then proceeded to appeal to the Constitutional Court (CC).

Issue before the CC

The court noted the main issue was whether s 64(1) read with s 213 of the LRA permits an employer to lockout members of a trade union – that is not a party to a bargaining council – where a particular dispute has arisen and has been referred for conciliation.

CC’s judgment

The court noted the demands in respect of wages could only be made at the bargaining council and, therefore, the notice sent out by the respondent did not constitute a demand.

The court noted further that a lockout notice cannot constitute a demand and a notice at once as the LRA differentiates between a notice and demand and does not use said terms interchangeably.

The court held that the applicant was not a party to the dispute ‘as it was not a member of the bargaining council where the dispute arose.’ This was because ‘on a proper interpretation of section 64(1), the employees referred to in section 64(1)(c) are employees who were party to the dispute that was referred for conciliation in terms of section 64(1)(a). Notice under section 64(1)(c) can be given only to employees who were party to a bargaining council where the dispute arose and was referred for conciliation.’

The court held further that the LAC’s conclusion that the applicant was a party to the dispute was due to the fact that it had an interest in the dispute was ‘untenable’. This was due to the fact that the applicant’s interest in the dispute amounted only to ‘a mere hope or expectation … ; its interest in the negotiations was confined to a hope that a favourable collective agreement would eventually be forthcoming’.

The applicant’s appeal accordingly succeeded and the court set aside the order made by the labour appeal court.

Conclusion

This judgment is important as in light of it, members of trade unions not party to a bargaining council cannot be locked out by their employer.

Yashin Bridgemohan LLB (UKZN) is an attorney at Yashin Bridgemohan Attorney in Pietermartizburg.

This article was first published in De Rebus in 2016 (Sept) DR 41.