Plastic Converters Association of South Africa (Pcasa) v Numsa (JA112/14) [2016] ZALAC 39 ; [2016] JOL 36301 ; (2016) ILJ 2815 (6 July 2016) per Tlaletsi DJP (Davis and Musi JJA concurring).

The LAC allowed the appeal and overturned the judgment of Lagrange J in the LC. It was declared that the Plastics Negotiating Forum (PNF) is a duly established and exclusive negotiating chamber for the plastic sector within the MEIBC.

LAC summary:

Membership of an employer’s organisation to a bargaining council – union contending that employer’s organisation not admitted as a member of the bargaining council and consequently does not have locus standi to bring an application to declare strike unprotected and associated relief – employer’s organisation contending that a negotiation forum for the plastic sector (PNF) falling within the bargaining council (MEIBC) has been established–—contending that the PNF is an exclusive forum for collective bargaining for the plastic sector within MEIBC.

On the issue of membership Court finding that the overwhelming evidence showed that employer’s organisation was admitted as a member and Secretary General of bargaining council confirming approval and congratulating it – employer’s organisation invited as observer at various meetings of the bargaining council pending determination and allocation of seats.   Labour Court’s finding that employer’s organisation not properly admitted as a member of the bargaining council unsustainable.

Regarding the PNF as the exclusive forum for collective bargaining for the plastic industry within the MEIBC, Court finding that the MANCO of MEIBC had duly adopted the terms of reference to the effect that the PNF was the sole forum to engage in respect of any matter related to the plastic sector – that the adoption shall stand until rescinded or set aside in court – Labour Court erring in finding otherwise.  Appeal upheld with costs.


[20]     What triggered the current dispute is the strike by the three respondent unions in support of their demand for the conclusion of a new main collective agreement within the MEIBC on 17 July 2014. The strike was also pursued within the plastic sector.  The appellant considered the strike within the plastic sector to be unprotected and unlawful because in its view, the plastic sector had its own bargaining chamber, being the PNF wherein a collective agreement had been concluded.  It was of the view that the plastic sector as was the case with the lift industry had to be excluded from the said strike action.

. . . . .

[22]     The Labour Court recorded the primary question to be determined in the application before it as whether the respondent unions were entitled to invoke the strike action against the members of the appellant on the basis that the main agreement, if agreed to, would apply to them because collective bargaining for the plastic industry still took place under the ambit of the negotiations for the main agreement, or whether collective bargaining for the plastic industry had been relocated by agreement and in terms of the bargaining council’s constitution to the PNF, which now constituted the agreed forum within which conditions in that sector would be negotiated. The court a quo recorded further that if the appellant is correct, it followed that until such time as the respondent unions engage with the employers in that forum and follow the dispute resolution processes in s64 of the Act, they may not embark on protected strike action.

. . . . .

[29]     It is opportune to dispose of the moot issue at this stage. Mr Freund SC who appeared on behalf of the appellant conceded that the prayers relating to the lawfulness of and the interdict against the strike are moot and that the appellant does not persists in orders being made in that regard.  However, there is a live dispute between the parties regarding what he termed the “establishment” issue and the “exclusivity” issue.  Under the establishment issue, the question is whether the appellant was entitled to an order in terms of prayer 2 of the Notice of Motion which required a declaration that the PNF had been duly established and as a separate negotiation chamber within the MEIBC.  Under the “exclusivity” issue, the question is whether the PNF was established with exclusive powers.

. . . . .

[36]     The finding by the Court a quo that the appellant was not properly admitted as a member of the MEIBC or that its membership was dependant on the council conducting a verification exercise and or was admitted only as an observer is not supported by the facts. In this regard, the court a quo seems to have conflated the issue of the appellant’s membership of the council with the question of the appellant’s entitlement to representative seats on the council’s various structures by virtue of its membership.  The appellant, being an employer’s organisation was duly admitted as a full member of the MEIBC in compliance with clause 4 of its Constitution once a party has met a threshold of membership; the allocation of seats to a newly admitted member is a matter to be undertaken by the administrative structure of the MEIBC.  What the Secretary General conveyed to the appellant was that seats allocation could not be determined at that stage due to a pending arbitration dispute involving the current employer parties to the council regarding employer’s allocation of seats to the parties on the various meetings.

. . . . .

[43]     In my view, reference in clause 5 of the recommendation to the MEIBC of 10 September 2013 that “Any amendments to terms and conditions of employment including matters relating to future bargaining arrangements will be a product of collective bargaining” can only refer to the PNF as the bargaining forum. It would not make sense to establish the PNF and not cloth it with the function of collective bargaining.  The sole purpose of the negotiations exercise was to establish the PNF as demanded by the appellant.  That would constitute a sensible interpretation of clause 5.  Holding otherwise would lead to a situation where collective bargaining for the plastic industry is taken outside the body established for that purpose, which would be absurd. [See: Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at para 18]