There are very few cases relating specifically to the collective bargaining stipulations in the Code.  Most of the cases relative to the Code involve misconduct during a picket and the breach of picketing rules. In Association of Mineworkers and Construction Union v Anglo American Platinum Ltd and others [2018] 11 BLLR 1110 (LC), for example, the court found that it lacked the power to adjudicate the bargaining process.

As John Grogan points out (in the 13th edition of Workplace Law (Juta 2020)):

…. the Labour Court and arbitrators are empowered to intervene in the bargaining process only to the extent that one of the parties violates the other's statutorily entrenched rights, or those arising from collective agreements….. Other dilatory tactics, inflexibility and forms of bad-faith bargaining are largely beyond the reach of the CCMA and the Labour Court. However, the manner in which the parties conducted collective bargaining may still be relevant to assessing the dismissal of unprotected strikers. The court has repeatedly reminded unions that a strike is an extension of collective bargaining and that the right to do so does not extend to trashing an employer's premises and public spaces

Breach of the code

Johannesburg Road Agency v SAMWU (2020) 41 ILJ 222 (LC)

Here, the union complained that an interim order (interdicting the employees from participating in an unprotected strike) had “subdued” the workers’ right to bargain.  The court said that the complaint “rested on the misconception that a right to bargain collectively includes a right to engage in unlawful behaviour. The respondents were referred to the Code of Good Practice: Collective Bargaining, which emphasises the need for orderly conduct. Said the court: “A strike is meant to be an extension of collective bargaining, not a licence for trashing the employers’ premises.”

Pailpac (Pty) Ltd v De Beer NO and others [2021] 6 BLLR 570 (LAC)

The primary issue on appeal, in this case, was whether the employees, who had been dismissed for carrying dangerous objects during a protected strike, knew or could reasonably have been expected to know of the rule in the Code against carrying potentially dangerous objects. Evidence that a notice stating inter alia that “no weapons of ANY kind may be carried or wielded by the picketers” had been affixed to the notice board close to the clocking station was accepted by both the Commissioner and the Labour Court but the Commissioner found that merely putting it on a notice board was insufficient. The Labour Court accepted this finding. The LAC in rejecting this found that the employees had claimed that all that had been posted was a copy of an SMS message calling on them to resume work. Had they been able to read that message, they would have seen the notice concerning the carrying of weapons. It was not in dispute that the employees had carried sticks, PVC rods, golf clubs and sjamboks. This was a clear breach of the rule and was clearly aimed at creating a hostile and intimidating atmosphere. An employee who had attempted to work was in fact beaten with sticks. Furthermore, the picketing policy stated that breaches could lead to dismissal. Apart from the rule, any reasonable employee should know that carrying dangerous weapons to work is not tolerated. The sanction of dismissal was appropriate in the circumstances.

Other decisions relative to collective bargaining

National Union of Metalworkers of South Africa obo Nganezi v Dunlop Mixing and Technical Services (Pty) Ltd and others (Casual Workers Advice Office as amicus curiae) [2019] 9 BLLR 865 (CC)

This case involved the dismissal of strikers for failing to disclose the names of their co-employees who have committed misconduct during a strike.  The Concourt stressed that employees engaged in collective bargaining are entitled to put their own interests above those of the employer. Imposing a duty to disclose information about misconduct committed by co-employees during a violent strike was an unwarranted intrusion into collective bargaining. The relationship of trust and good faith is not equivalent to the fiduciary relationship between employees and employers. Employees are not generally required to protect the employer’s interest and sacrifice their own.  Compelling employees to disclose information about misconduct committed during a protected strike on pain of dismissal unwarranted limitation of constitutional right to strike and possible contravention of prohibition of automatically unfair dismissal.

Actom (Pty) Ltd v National Union of Metalworkers of South Africa obo Members and others [2022] 3 BLLR 245 (LAC)

In circumstances where the employer declined to pay annual bonuses to employees who had engaged in a month-long unprotected strike but where the relevant collective agreement provided that bonuses would accrue during the months preceding a strike, the court ordered payment of bonuses for the months preceding the strike.

Association of Mineworkers and Construction Union and others v Chamber of Mines of South Africa and others [2017] 7 BLLR 641 (CC)

The court decided that the extension of collective agreements to non-parties based on the principle of majoritarianism does not unreasonably limit the right to strike. The legislature chose the principle of majoritarianism as essential for orderly collective bargaining. Section 23(1)(d) of the LRA constituted a justifiable limitation of the right to bargain collectively and to strike.

Safcor Freight (Pty) Ltd t/a Safcor Panalpina v South African Freight and Dock Workers [2012] 12 BLLR 1267 (LAC)

Where an employer offered non-union employees pay increases on the condition that they did not join the union and withheld increases for union members until the next negotiated increase, the court held that, while the LRA permits plural bargaining, this conduct amounted to unfair discrimination because the employer failed to justify differential treatment.

Independent Municipal and Allied Trade Union v SA Local Government Bargaining Council [2009] LC 133 (26 November 2009)

Here the court held that an elementary tenet of collective bargaining is that the constituency is bound by the bargain, good or bad, that its representatives make on its behalf.  The obvious remedy available to the constituency is to not elect or re-elect its representatives, perhaps to dismiss them or even to sue or charge them for negligence, fraud or other cause.

Adcock Ingram Critical Care v CCMA and others [2001] 9 BLLR 979 (LAC)

The court held that, during negotiation meetings, the parties are obliged to show each other mutual respect.  It found that the dismissal of shop stewards for uttering threatening remarks during remarks was justified the dismissal of the shop stewards.

SAUJ V SABC [1999] 11 BLLR 1137 (LAC)

Here, after an impasse had been reached the employer unilaterally implemented its offer to the union. The court held that the issue in dispute concerned wages and conditions of service and was thus susceptible to the collective bargaining process and the power play that went with it. If that kind of dispute was not settled, the economic power of the protagonists determined the outcome. The loser could not then plead that the winner could afford to be more lenient. If in a wage dispute an employer is capable of affording an increase greater than that which it finally offered, a court cannot interfere. Courts could also not interfere with the decision by the respondent to withdraw recognition of the appellant.

The principles contained in the following old Industrial Court decisions are still valid.

Ngwenya v Supreme Foods (Pty) Ltd [1994] 11 BLLR 77 (IC)

The court held that it was precluded from inquiring into the inherent fairness of provisions of agreements which are the product of collective bargaining.

SACCAWU v Southern Sun Corporation (1991) 12 ILJ 835 (IC)

Here, the court ordered the employer to negotiate arrangements to facilitate communications between striking employees and their union but refused to grant the union's request for an order granting it access to the employer's property.

FAWU v SAB (1990) 11 ILJ 413 (ARB)

In this case the court said: “Of course the obligation to negotiate continues for so long as a dispute remains unresolved. The fact that the parties may have reached the stage where economic sanctions may legitimately be invoked in no way diminishes the obligation. But where a primary round of negotiations has failed, negotiations combined with economic pressure can produce a settlement. A strike, in other words, is merely ancillary to collective bargaining, not a substitute for it.”

Interdicting the picketers

Commercial Stevedoring Agricultural and Allied Workers (CDAAWU) v Oak Valley Estates [2022] 6 BLLR 487 CC

In this case, the Constitutional Court had to decide whether a court can grant an interdict against a group of strikers where the employer is unable to link each of the various employees to the alleged actual or threatened unlawful conduct during a strike, including a breach of picketing rules. The Labour Appeal Court had held that “[t]o insist in the fraught context of an industrial relations dispute that an employer can only gain relief against those employees it can specifically name from a group which participated in unlawful activity is surely a bridge too far”

In their unopposed appeal to the Constitutional Court, the union and employees argued that an employee cannot be competently placed under interdict if they are not linked to the actual or threatened unlawful conduct and that, in this case, no such link had been established. They contended further that the Labour Appeal Court’s contrary decision was inimical to the settled law of interdicts, the rule of law, and the constitutional rights to strike and picket. For these reasons, the applicants contended that the appeal should be upheld.

The Concourt held that the High Court and Labour Court had, with few exceptions, consistently adhered to the requirement that interdictory relief can only be competently granted if a respondent (in this case the union and employees) can be rationally linked to the unlawful conduct. The court explained that this requirement flows from the fact that an applicant for a final interdict must show a reasonable apprehension of injury. Absent any link between the unlawful conduct and the respondent, the applicant cannot reasonably apprehend that the respondent will cause them injury. The Court held further that:

• mere participation in a strike or protest in which there is unlawful conduct is insufficient to adequately link the employees to that conduct;
• the required link could be shown only if there was evidence that the strikers or protesters had committed the unlawful conduct as a cohesive group;
• where unlawful conduct during protest action is ongoing, widespread, and manifest, individual protesters or strikers will usually have to disassociate themselves from the conduct, to escape the inference that they acted in concert with those who engaged in acts of unlawfulness;
• by contrast, where a protest or strike is substantially peaceful, but there are isolated and sporadic instances of unlawful conduct, only those protesters who associate with the acts of unlawfulness can permissibly be placed under interdict.

The Court held that this requirement, which is the extant common law position, appropriately balances the competing rights and interests of employers and employees.

Suspension and variation of picketing rules

Clover SA (Pty) Ltd v General Industries Workers Union of South Africa and others [2021] 4 BLLR 419 (LC)

In this case, the Court noted that when mob rule and violence breaks out, section 69(2) of the LRA enjoins the court to intervene and grant urgent relief either by suspending the rules or by varying them. In making that decision, the Court must balance the strikers’ constitutional rights with the employer’s right to conduct its affairs without hindrance and in the interest of its clients.

An order suspending the right to picket should not be lightly granted and the onus rests on the employer to prove that this is necessary. Most of the incidents on which the employer, in this case, relied had taken place some distance from its premises and outside the demarcated picketing areas and had been perpetrated by unknown persons. Although the employer’s concern was warranted by the intervention of the EFF, a member of which had made inflammatory comments in a speech to strikers in the picketing area, this single incident was not enough to justify suspending the strikers’ right to picket peacefully

The Court held further that contempt of court proceedings would have been better suited to enforce compliance with the picketing rules, which would have formed an adequate alternative remedy to the present application. All that the employer needed to do was to call on the union to identify individuals it knew were breaching the rules. The employer had merely sent the union a letter complaining of the incidents. A suspension of the rules could heighten tension. Violence outside the workplace was not the concern of the Court but was a matter for the criminal justice system. There was nothing to indicate that the picketing rules themselves were inadequate. The applicant had, accordingly, failed to make out a case for a variation or suspension of the picketing rules.

Contempt of Court

Association of Mineworkers and Construction Union and another v KPMM Road and Earthworks (Pty) Ltd [2019] 4 BLLR 340 (LAC)

Here the Labour Appeal Court upheld an appeal from the Labour Court which had held the union and some employees in contempt and fined the union and the employees when despite:

• an undertaking from the union that it would take reasonable steps to ensure that, during the strike, its members would conduct themselves in a peaceful manner and refrain from any acts of violence and/or intimidation and misconduct; and
• an urgent interdict preventing the individual employees from intimidating and threatening non-unionised employees and the employees of various contractors, the employees continued to engage in unlawful activities.

The Labour Appeal Court stipulated that a finding of contempt requires the employer to show that the order or notice of the order was properly served on the union. Thereafter, the union must provide evidence to establish a reasonable doubt as to whether the non-compliance was wilful and mala fides. In addition, if an employer seeks an interdict against a union, it must draft a notice of motion that clearly stipulates what obligations it wishes to impose on the union. Because the interim order was too vague for the union to properly understand what was expected of it, the appeal was upheld.

Spar Eastern Cape Distribution Centre v Transport, Retail and General Workers Union and others [2021] 12 BLLR 1264 (LC)

Protected strikers who ignored an interim court order to desist from breaking picketing rules, burning tyres and throwing stones at police, together with the union, were fined and sentenced to suspended terms of imprisonment for contempt of court.

Claim for damages caused during the picket

National Union of Metalworkers of South Africa and others v Dunlop Mixing and Technical Services (Pty) Ltd and others [2021] 3 BLLR 221 (SCA)

The issue, in this case, was whether the employer could sue picketers in terms of the Regulation of Gatherings Act 205 of 1993 (the Gatherings Act) for damages to its property and for the cost of additional security. The Court decided that, if picketers commit unlawful acts, they lose protection under the Labour Relations Act 66 of 1995 (the LRA) and the remedies afforded by the LRA may be invoked by the employer. The employer’s argument, in this case, that section 68(1)(b) of the LRA provides a remedy which is additional to those available in delict or under the Gatherings Act was misplaced because it would “strain the language of both that statute and of the LRA”. The phrase “despite any law regulating the right of assembly” in section 69(2) of the LRA was inserted to signify what had already been made plain – that pickets are regulated by the LRA. The Gatherings Act, therefore, does not apply to claims for loss attributable to conduct during a picket authorised by the LRA.