The Labour Appeal Court (LAC) recently upheld the dismissal of eight  employees for engaging in an unprotected strike.   The dismissals were not unfair because the employees embarked on a strike contrary to the advice of SACTWU and after ignoring repeated warning that the strike was unprotected and would result in their dismissal.   In upholding the order of the Labour Court [Bhoola J] the LAC also considered the system of centralised bargaining in the textile industry.   Of particular interest is the finding that the constitution of the bargaining council also contained a binding collective agreement which did not allow negotiations at plant level.   This also meant that there could not be any ‘power-plays’ at that level either.

Links to judgments

SACTWU v Yarntex (Pty) Ltd t/a Bertrand Group case PA07/10 dated 28.02.2013 (LAC)

SACTWU v Yarntex (Pty) Ltd t/a Bertrand Group (2010) 31 ILJ 2986; [2010] JOL 25663 (LC)

Extracts from LAC judgment

[51]      The constitution of the NTBC (National Textile Bargaining Council) deals inter alia with the its

  • legal status (clause 1),
  • registered scope (clause 2),
  • objectives (clause 3),
  • powers (clause 4),
  • parties to the Bargaining council (clause 5),
  • structures (clause 6),
  • sub-sector chambers (clause 13) and
  • collective agreements (clause 18).

[52]      It is clear from the constitution as a whole that it is the product of bargaining between NAWTM (National Association of Worsted Textile Manufacturers) and SACTWU (South African Clothing and Textile Workers Union).   A perusal of the constitution also reveals that it was the intention of the founding parties to the NTBC to produce an all-embracing document which not only caters for the constitution but also

  • “to advance the interests of the industry”;
  • “to regulate collective bargaining and industrial action in the industry, in the sub-sectors and in any sections;
  • to promote cohesion of representation from among employees; and
  • avoid fragmentation of centralised bargaining.”

[53]      The constitution sets out comprehensively, in the manner prescribed by s 30 of the LRA, all the terms required for the establishment of a bargaining council in the Mohair and Wool industry.   The constitution goes further than that and it prescribes the procedure to be followed in achieving these ends and deals specifically with collective agreements in the terms set out in ss 23 and 24 of the LRA.   Of note, the provisions of the constitution are similar to those of ss 64 and 65 of the LRA.

. . . .

[56]      The constitution of the NTBC prescribes that the rights, powers and functions of sub-sector chambers are to conclude collective agreements within each sub-sector and section(s) on wages and conditions of employment.   The constitution states further that wages and conditions of employment will only be negotiated   (my emphasis)

(a)       at the sub-sector and section level; and

(b)       within any sub-sector or section to which they apply.

. . . .

[58]      The constitution is premised on centralised bargaining between NAWTM and SACTWU, the main purpose of which is to create and maintain uniformity in the determination of wage levels so as to ensure that all employers in any given sub-sector or section level are treated in an equitable fashion.   Employers and employees in these sub-sectors should enjoy the same treatment to ensure that employers compete with their counterparts in a fair manner in order to sustain the industry and to prevent job losses.

[59]      Any contrary interpretation of the relevant provisions of the Act and the constitution would result in catastrophic circumstances which are inimical to the operation of the industry in question.   Clearly the overarching purpose of the constitution was to avoid fragmentation of the bargaining process.   This interpretation of the constitution is in accord with the intentions of the drafters thereof to outlaw plant level bargaining.

[60]      My interpretation of the constitution therefore is that the strike in question is not protected by the provisions of constitution.   Neither is it protected by the LRA.

[61]      In the circumstances, I find that the strike in question was not a protected strike.

[62]      In the alternative, Mr Freund submitted that the constitution of the NTBC is not a collective agreement.

[63]      Section 213 of the LRA defines a collective agreement as

“a written agreement concerning terms and conditions of employment, or any other matter of mutual interest concluded by one or more registered trade unions, on the one hand and, on the other hand:-

(a)       one or more employees;

(b)       one or more registered employers’ organisations; or

(c)        one or more employers and one or more registered employers’ organisations.”

[64]      In my view, the constitution is a collective agreement as defined by s 213 of the LRA.   There is merit in allowing employers and employees to form bargaining councils.   Often after protracted deliberations they reach agreement as to how their affairs are to be resolved.   They do this by fashioning constitutions which establish bargaining councils which are to govern them.

[65]      In this case the parties to the NTBC agreed, among other things, to set out in one document, the constitution, the level at which they would bargain with each other and the manner of resolving disputes that arise between them.   I refer, in particular, to that part of the document which deals with collective agreements.

[66]      While establishing their constitution, they also consciously and deliberately decided to incorporate into that document the laws that govern the day to day running of the NTBC, the creation of collective agreements and the resolution of disputes arising between the parties to the NTBV.   In so doing, they were alive to the provisions of the LRA.   They prescribed the level of the council which would have jurisdiction to resolve certain issues.   For instance, they agreed that wage negotiations would occur at sub-sector or sub-section levels and not at plant level.   Plant level negotiations would entail among other things that in the event of disagreement SACTWU would take industrial action against one employer only to the exclusion of the others.   Such action would undermine the very existence of a NTBC.

[67]      Section 31 of the Labour Relations Act provides as follows:

‘Binding nature of collective agreement concluded in bargaining council

Subject to the provisions of section 32 and the Constitution of the bargaining council, a collective agreement concluded in a bargaining council binds–

(a)       the parties to the bargaining council who are also parties to the collective agreement;

(b)       each party to the collective agreement and the members of every other party to the collective agreement in so far as the provisions thereof apply to the relationship between such a party and the members of such other party; and

(c)        the members of a registered trade union that is a party to the collective agreement and the employers who are members of a registered employers’ organisation that is such a party, if the collective agreement regulates-

(i)         terms and conditions of employment; or

(ii)        the conduct of the employers in relation to their employees or the conduct of the employees in relation to their employers.’

See also section 23 of the LRA which deals with the legal effect of a collective agreement.

[68]      In my view, the constitution of the NTBC is a collective agreement as set out in s 213 of the LRA.

[69]      From what is stated above it follows that the employees embarked upon an unprotected strike action contrary to the provisions of the LRA and the constitution.   In the circumstances, I hold that the finding of the Labour Court that the dismissal of the employees was substantively fair is correct.