Labour Court considers the CCMA role in establishing picketing rules.
The labour court, in SA Airways v SA Transport and Allied Workers Union and Others (2013) 24 SALLR 296 (LC), had the opportunity of considering the following important issues:
(a) Is it competent for the CCMA to establish picketing rules where there indeed is an agreement, collective or otherwise, so regulating the picketing in casu?
(b) To what extent is it a prerequisite jurisdictional fact for the establishment of picketing rules by the CCMA in terms of s69(4) of the LRA that the union has to authorise such picket and inform the employer accordingly?
(c) Is it permitted that picketing is to be undertaken in support of a strike that is not protected?
(d) Is it a prerequisite jurisdictional fact that the strike must actually be in progress before the CCMA can establish picketing rules in terms of section 69(4) of the LRA?
(e) What is the content of the review test to be utilised when considering the prerequisite jurisdictional facts necessary to enable the CCMA to establish picketing rules in terms of section 69(4) of the LRA?
(f) In the scenario where a trade union has referred a dispute to the CCMA, conciliation has taken place at such level and a certificate of non-resolution issued but such trade union has not given notice to the employer of its intention to strike, is it competent for the CCMA to establish picketing rules in terms of s69(4) of the LRA?
(g) In the above scenario where the trade union furthermore refuses to give an undertaking to the employer that it will not embark on strike action, is it competent for the CCMA to issue picketing rules in terms of s69(4) of the LRA?
(h) In the circumstances where the CCMA either secured a picketing agreement or, alternatively, determined such picketing rules, when does the picketing agreement or such rules come to an end?
This matter concerns an application by the applicant to review and set aside an arbitration award of the third respondent in her capacity as a commissioner of the CCMA (the second respondent). This application has been brought in terms of s145 of the Labour Relations Act 66 of 1995 (“the LRA”).
In an award dated 17 July 2011, the third respondent determined that the CCMA lacked jurisdiction to conciliate and establish picketing rules in the absence of a strike or lock-out, or the threat thereof.
Pertinent facts of the case
Common cause facts
The applicant and first respondent have an existing and organised relationship, which includes a recognition agreement.
The first respondent enjoys organisational rights in the applicant in terms of the recognition agreement, and this recognition agreement further stipulates that the applicant and first respondent would bargain annually on wages and conditions of employment.
In the period between January and June 2011, a number of disputes arose between the applicant and the first respondent concerning matters of mutual interest.
Content of disputes
These issues, inter alia, concerned the following, as appears from the documentary evidence:
Â· the annual negotiation on wages and conditions of employment;
Â· the introduction of a new security structure by the applicant without consultation with the first respondent; and
Â· the use by the applicant of “foreign language” as a requirement for recruitment.
CCMA referrals in respect of all the above disputes
Why it is important to refer to these issues specifically is that, in all of these instances, the first respondent recorded, in its CCMA referrals, that the desired outcome was a certificate of failure to settle for the purposes of strike action.
Intention of the union to strike in respect of all the issues
There were five cases actually pending before the CCMA as at June 2011, under case numbers HO2 – 11; HO1058 – 11; HO483 – 11; GAEK1366 – 11 and GAJB11379 – 11.
Because of these five pending disputes, the applicant contemplated strike action being embarked upon by the first respondent in order to resolve same.
Failure of the parties to conclude picketing agreement
The applicant tried to conclude a collective agreement with the first respondent to establish picketing rules for the contemplated strike action but, unfortunately, this did not come to fruition.
Referral of dispute to the CCMA to establish picketing rules: s69(4) of the LRA
On 3 June 2011, the applicant then referred a dispute to the CCMA in terms of s69(4) of the LRA to establish picketing rules in respect of the strike action it contemplated could take place. This dispute was referred to all five centres of the CCMA.
The CCMA then, at some point after this referral by the applicant, requested the applicant to confirm which disputes this s69(4) dispute referral of the applicant related to.
In a letter, dated 8 June 2011, the applicant, through its attorneys, confirmed that the s69(4) referral of the applicant related to all five of the pending disputes referred to above.
All five referrals consolidated
The CCMA then advised that the picketing rules issue would be dealt with by the CCMA at its head office, and all five disputes were consolidated into one.
Wage dispute settled
The dispute with regard to the issue of wages and conditions of employment (the annual wage negotiation) was set down for conciliation on 17 June 2011 and was subsequently resolved.
Remaining four disputes still unresolved
It was, however, common cause that all the other four disputes remained live and unresolved.
No actual pending strike when matter was heard
What is common cause is that, on 5 July 2011, when the matter came before the third respondent, there was no actual pending strike action by the first respondent in respect of any one of the four outstanding disputes.
No strike notice issued at such stage
Whilst it is so that the 30-day time period in terms of s64(1) of the LRA had lapsed in respect of each of these disputes and such disputes remained unresolved, the first respondent had not given notice of contemplated strike action in terms of s64(1)(b) to the applicant in respect of any of these disputes.
Respondent also refused to give undertaking not to strike
In the proceedings on 5 July 2011 at the CCMA, the applicant requested the first respondent to undertake that it would not proceed with strike action in respect of all four disputes, and recorded that, if the first respondent did so, it would not pursue its picketing rules dispute. The first respondent refused to so agree, and the proceedings then continued.
Findings of the Court
Interpretation of the Sidumo test
The labour appeal court in Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) specifically interpreted the review test as determined in Sidumo and another v Rustenburg Platinum Mines Ltd 2008 (2) SA 24 (CC), (2007) 28 ILJ 2405 (CC) and others where the issue before the commissioner concerned the very issue of the jurisdiction of the CCMA, and held as follows:
“ Nothing said in Sidumo, means that the grounds of review in s145 of the Act are obliterated. The constitutional court said that they are suffused by reasonableness. Nothing said in Sidumo means that the CCMA’s arbitration award can no longer be reviewed on the grounds, for example, that the CCMA had no jurisdiction in a matter on any of the other grounds specified in s145 of the Act. If the CCMA had no jurisdiction in a matter, the question of the reasonableness of its decision would not arise. Also, if the CCMA made a decision that exceeds its powers in the sense that it is ultra vires its powers, the reasonableness or otherwise of its decision cannot arise.”
The labour court, thus, in what can be labelled a “jurisdictional” review of CCMA proceedings, is, in fact, entitled, if not obliged, to determine the issue of jurisdiction of its own accord.
In doing so, the labour court is not limited only to the accepted test of review, but can, in fact, determine the issue de novo in order to decide whether the determination by the commissioner is right or wrong.
The establishment of prerequisite jurisdictional facts objectively determined
In SA Commercial Catering and Allied Workers Union v Speciality Stores Ltd (1998) 19 ILJ 557 (LAC), it was held that:
“Generally speaking a superior court always has the power to determine whether the preconditions for the exercise of a statutory power to act have been met “even in the absence of any statutorily provided remedy by way of an appeal or review” (per Marais JA in Minister of Public Works v Haffejee NO 1996 (3) SA 745 (A) at 751G). Where the precondition is an objective fact or a question of law, its existence is objectively justiciable in a court of law and if the public authority made a wrong decision in this regard the decision may be set aside on review (Minister of Public Works v Haffejee NO at 751F-G; Hira and Another v Booysen and Another 1992 (4) SA 69 (A) at 93A-B).”
The court concluded that:
“Generally speaking, a public authority is obliged to determine the scope of its own powers before it can act (cf Baxter Administrative Law at 452). In doing so it cannot finally determine its competence, because if it wrongly decided that it had jurisdiction, its decision may be reviewed on objectively justiciable grounds. This kind of jurisdictional review does not depend on any statutorily provided remedy by way of appeal or review (Minister of Public Works v Haffejee NO at 751G-H). But, as noted above (para 23), the determination of the existence of a jurisdictional precondition may be left to the public authority itself to determine and the nature and extent of judicial review of its decision will then depend on whether the determination was left to its subjective discretion in terms of the empowering statute, or whether the determination had to be made on objective grounds.”
In Zeuna-Starker BOP (Pty) Ltd v National Union of Metalworkers of SA (1996) 20 ILJ 108 (LAC) it was said:
“The commissioner could not finally decide whether he had jurisdiction because if he made a wrong decision, his decision could be reviewed by the labour court on objectively justiciable grounds – “
In the labour court’s view, the same principle certainly applies to the current review application in this matter.
Application of the above principles in casu
Based upon the above principles, the labour court, therefore, does not intend to determine this matter on the basis of whether the determinations made by the third respondent were determinations a reasonable decision-maker could arrive at.
The labour court would determine de novo whether the CCMA, in fact, had jurisdiction in this matter, and, therefore, whether the third respondent was right or wrong in her determination.
The labour court concluded that, in a jurisdictional review, it is, in fact, entitled (if not actually obliged) to determine the issue of jurisdiction of its own accord.
In doing so, the labour court is not limited only to the accepted test of review, but can, in fact, interfere with the award simply on the basis of a wrong decision by the arbitrator.
This matter should, accordingly, be determined hereunder, on this basis, and, if the third respondent was right, her award stands to be upheld and, if wrong, her award falls to be reviewed and set aside.
Whilst it is, of course, trite that s69 affords the CCMA the power to establish picketing rules in order to regulate the issue of demonstrations by employees during the course of protected strike action, the critical question at stake in this case is exactly when such power may be exercised by the CCMA.
Jurisdictional preconditions must be established
Therefore, and in a similar fashion to all other instances of dispute-resolution functions conducted by the CCMA where the CCMA issues a determination binding on employer and employee parties, it must be determined what are the prerequisite jurisdictional facts that must be shown to exist before the CCMA can exercise the power and functions conferred on it in terms of the LRA.
To put it simply, what jurisdictional facts need to exist before a commissioner can determine picketing rules in terms of s69?
Approach to be adopted
In order to answer this question, a complete consideration of not only the provisions of s69 is required, but also its actual place in the LRA and the objectives it seeks to achieve.
Reference to chapter IV of the LRA: first consideration
Section 69 is found in chapter IV of the LRA, being the chapter specifically dealing with strike action.
Same protection as strikes
In the case of the participation by employees in a picket in terms of the provisions of s69, the same protective provisions as can be found in s67 in respect of protected strike action would find equal application to the picket.
This would mean that employees cannot be dismissed for participating in such a picket nor can such employees be considered to be acting in breach of contract or committing a delict.
It is, therefore, the labour court’s view that, in general context, having regard to these provisions and the actual location of s69 in the LRA, the application of s69 on face value requires the existence of strike action by employees in compliance with the provisions of chapter IV of the LRA in order to find application.
Reference to s69 of the LRA: second consideration
The next issue to consider is the actual relevant provisions of s69.
Section 69(1) provides:
“A registered trade union may authorise a picket by its members and supporters for the purposes of peacefully demonstrating –
(a) in support of any protected strike; or
(b) in opposition to any lock-out.”
Section 69(4) provides:
“If requested to do so by the registered trade union or the employer, the Commission must attempt to secure an agreement between the parties to the dispute on rules that should apply to any picket in relation to that strike or lock-out.”
Section 69(5) provides:
“If there is no agreement, the Commission must establish picketing rules, and in doing so must take account of –
(a) the particular circumstances of the workplace or other premises where it is intended that the right to picket is to be exercised; and
(b) any relevant code of good practice.”
Section 69(7) provides:
“The provisions of section 67, read with the changes required by the context, apply to the call for, organisation of, or participation in a picket that complies with the provisions of this section.”
Reference to the Code of Good Practice on Picketing: third consideration
The Code of Good Practice on Picketing (hereinafter referred to as “the code”) must also be considered.
Item 1(1) and (2) provides:
“(1) This code of good practice is intended to provide practical guidance on picketing in support of any protected strike or in opposition to any lock-out. It is intended to be a guide to those who may be contemplating, organising or taking part in a picket, and for those who as employers or employees or members of the general public may be affected by it.
(2) Section 17 of the Constitution recognises the right to assemble, to demonstrate, to picket and to present petitions. This constitutional right can only be exercised peacefully and unarmed. Section 69 of the Labour Relations Act, 1995 (Act 66 of 1995) (‘the Act’), seeks to give effect to this right in respect of a picket in support of a protected strike or a lock-out.”
Item 2(1) provides:
“A picket contemplated in section 69 of the Act must be authorised by a registered trade union. The authorisation must be made in accordance with the trade union’s constitution. That means that there must either be a resolution authorising the picket or a resolution permitting a trade union official to authorise a picket in terms of section 69(1). The actual authorisation should be formal and in writing. A copy of the resolution and, if necessary, the formal authorisation ought to be served on the employer before the commencement of the picket.”
Item 3(1) provides:
“The purpose of the picket is to peacefully encourage non-striking employees and members of the public to oppose a lock-out or to support strikers involved in a protected strike. The nature of that support can vary. It may be to encourage employees not to work during the strike or lock-out. It may be to dissuade replacement labour from working. It may also be to persuade members of the public or other employers and their employees not to do business with the employer.”
Compliance with s69(4) of the LRA: request by party to establish picketing rules
On the facts of this matter, it is clear that the employer (the applicant) did request the CCMA, in terms of s69(4), to secure an agreement between the parties in respect of the issue of picketing rules, in circumstances where no such agreement existed.
Therefore, and on a procedural basis, the applicant indeed complied with s69(4), in that, principally, it asked the CCMA to assist the parties conclude an agreement on picketing rules as contemplated by such section.
De novo enquiry as to the existence of jurisdictional preconditions
Because the labour court determined the issue in this matter de novo, on the basis of the principles as set out above, it will not consider the reasoning of the third respondent in arriving at her ultimate determination.
The labour court, however, referred to some of the reasoning of the third respondent insofar as it specifically relates to the cases advanced by the parties in the interests of a complete and proper determination of this matter.
Whether or not establishment of rules by CCMA undermines collective bargaining
In paragraph  of her award, the third respondent concludes that a picketing agreement should “ideally” be concluded through a process of collective bargaining, rather than being established through the CCMA.
The third respondent goes further and concludes that for the CCMA to establish picketing rules (she does say in the absence of a strike or threat thereof which issue will be addressed hereunder) would undermine collective bargaining.
The labour court was of the view that this reasoning by the third respondent is not sustainable, on the basis of the reasons that will be set out hereunder.
Collective bargaining may be conducted at any time on any matter of mutual interest, which, of course, would include that the employer and the trade union could seek to conclude a collective agreement which would in general terms and in respect of all disputes into the future establish picketing rules that would apply in any future industrial action.
This is clearly a process distinct and separate from s69 and any agreement concluded in terms of that particular section. Because, in such a case, the issue of picketing rules is determined by collective agreement, the application and enforcement of such picketing rules cannot attract the application of s69.
In such a case, either party can hold the other to the terms of the collective agreement and enforce it in terms of the normal right enforcement provisions in the LRA. Therefore, and once there is a pre-existing collective agreement determining picketing rules, s69(4) cannot apply.
An example would be where picketing rules, in the case of industrial action, are regulated in a recognition agreement between the employer and the trade union.
Whilst it may be so that a picketing agreement concluded in terms of s69(4) would comfortably resort under the definition of a collective agreement in terms of s213 of the LRA, it is not an agreement brought about by collective bargaining. It is, in fact, an agreement which the CCMA must seek to secure in terms of a specific duty prescribed to it in s69(4), where no such agreement exists in the first place.
As a matter of principle, if either an employer or a trade union asks the CCMA to try to secure such agreement where none exists, the CCMA must do so, and it is irrelevant whether or not this would “undermine” collective bargaining. All that is required to be determined and considered is whether a collective agreement regulating picketing rules exists or not. If not, then s69(4) can, as a matter of principle, be invoked by either the employer or the trade union, subject, of course, to all the other requisite jurisdiction facts also being in existence, which are addressed hereunder.
There is, thus, no requirement that the parties must first try to collectively bargain on picketing rules, and that it must be shown that such collective bargaining failed, for s69 to apply. In the end, and once it is accepted that s69(4) has been legitimately invoked and pursued by either a trade union or an employer, then the CCMA must act to secure an agreement.
Of course, this agreement may only have, as its subject-matter, picketing rules, and this agreement would not be an agreement in perpetuity, in that it can only apply to the particular dispute at stake in that instance.
Once the particular and specific underlying dispute is resolved, one way or another, the picketing agreement comes to an end along with such resolution. It is an ad hoc, case by case, process, conducted by the CCMA when requested by either a trade union or employer, and only once there is deadlock between such parties on a matter of mutual interest susceptible to protected strike action.
In the circumstances, it is not a prerequisite jurisdictional fact for the application of s69(4) that the parties first had to try to collectively bargain the issue of picketing rules and have been unsuccessful. All that must be determined is whether there actually exists a collective agreement regulating picketing rules in respect of disputes between the parties. If not, then the application of s69(4) is competent.
In the current matter, the labour court accepts that the applicant was not seeking a collective agreement with the first respondent in perpetuity with regard to picketing rules which would regulate and determine all disputes into the future.
Relief sought in casu
The labour court accepted that all the applicant sought was, firstly, an agreement, alternatively, rules issued by the CCMA, only in respect of the four live mutual interest disputes which were susceptible to possible strike action. This was entirely competent in terms of s69(4) and if this was the only consideration with regard to whether s69(4) could have been invoked by the applicant then the applicant’s application would have succeeded.
The following issue to be considered is whether it is required, as a jurisdictional fact, that there must either exist a strike or there must be an actual threat of a strike by a trade union before s69(4) can be utilised. In this respect, the third respondent found that there needed to be an actual strike or actual threat of a strike, and this is also the case advanced by the first respondent.
The applicant, on the other hand, contends that all that is needed is a live and unresolved dispute in respect of a matter of mutual interest to exist between the parties, and no threat of strike action is required. Nothing is said in s69(4) itself that there must be a threat of a strike and all that is referred to is “that strike”. That being said, s69(4), however, cannot be read in isolation only by itself without having regard to the rest of the section and the code.
Prerequisite jurisdictional facts: authorisation of picket by union
In the case of s69(1) of the LRA, the trade union must, authorise the picket, which provision, if read with the code, means the trade union must resolve to hold a picket and notify the employer accordingly.
Once that is done, again as a matter of logical sequence, either the employer or the trade union, now knowing for sure a picket is coming, can approach the CCMA in terms of s69(4) for rules to regulate the authorised picket. In the CCMA, an agreement can then be concluded on this, or, failing an agreement, the CCMA issues picketing rules.
The point is that s69(4) can only follow on an event in terms of s69(1).
Section 69(4) cannot apply in isolation, simply because there is an unresolved dispute in respect of a matter of mutual interest before the CCMA.
Section 69(1) itself then also has a jurisdictional prerequisite.
Prerequisite jurisdictional fact: existence of strike or actual threat of strike (notice of strike)
The trade union can only call the picket in terms of this section in support of a protected strike. Therefore, there has to actually exist a strike, or at least a proper notice of a strike that complies with the provisions of chapter IV, for s69(1) to find application, because, simply put, if there is no such strike then what is there to support by way of a picket?
The specific reference to “protected” in s69(1) is of importance. A strike can only be protected if there is proper notice of the strike in terms of s64(1)(b) given to the employer by the trade union.
The labour appeal court in Ceramic Industries Ltd t/a Betta Sanitary Ware and another v NCBAWU and others (2) (1997) 18 ILJ 671 (LAC) said:
“One of the primary objects of the Act is to promote orderly collective bargaining. Section 64(1)(b) gives expression to this object by requiring written notice of the commencement of the proposed strike. The section’s specific purpose is to give an employer advance warning of the proposed strike so that the employer may prepare for the power-play that will follow.”
It cannot be ignored that picketing is an essential part of the “power-play to follow” and that one of the “manners” in which an employer may deal with that situation is by way of picketing rules.
The labour court, therefore, concludes that s69(1) can only be invoked by a trade union if proper notice of a strike has been given by the trade union to the employer as contemplated by s64(1)(b) of the LRA or there is an actual protected strike in progress. In turn, s69(4) can then only be invoked by either the employer or the trade union once the trade union has invoked s69(1). As a matter of necessary consequence, this has to mean that s69(4) can only be applied if there is an actual strike pending or notice of a strike has been given by the trade union in terms of s64(1)(b). This conclusion is also supported by the provisions of the code, referred to above, and, in particular, item 3(1) as to the very purpose of a picket.
Prerequisite jurisdictional fact: picket rules must relate to
The next issue to consider is what exactly does the phrase “that strike” in s69(4), to which the picketing rules must relate, then mean? It can only mean the strike as contemplated by s69(1) in respect of which the trade union has called the picket. The fact that specific reference is made to “that strike” and not, for example “a strike” or “any strike” is significant. The point is that the use of the word “that” in s69(4) can only be intended to create the link with the strike specifically contemplated by s69(1).
In Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (2006) 27 ILJ 2681 (LC) it was said, with specific reference to s69(4):
“ – The CCMA may be called upon by the same parties to establish picketing rules for them each time there is industrial action. Hence the reference to “that strike or lock-out” in s69(4).”
It seems pointless to try to establish picketing rules where there is no actual or threatened strike, using the provisions of s69(4), especially considering that a strike to strike scenario is actually contemplated for each application of the section. There has to be an inextricable nexus between picketing in terms of s69 and the existence of a protected strike, and the one is directly dependent on the other. In the absence of a strike, there can never be a picket and, thus, simply no cause or need to determine picketing rules.
Therefore, and based on all of the above reasons, the labour court concluded that the jurisdictional facts that must exist before the CCMA can determine a dispute in respect of picketing rules in terms of s69(4) and (5) are as follows:
Â· there must be the actual authorization of the picket by the trade union;
Â· there must be an actual protected strike in existence or notice must have been given to the employer of a protected strike as contemplated by s64(1)(b); and
Â· there must be no prior agreement (collective or otherwise) in existence between the trade union and the employer which determines picketing rules.
If the above jurisdictional facts are then applied to the facts of this matter, the only jurisdictional fact that indeed exists is that there exists no agreement on picketing rules in this matter.
As to the other two jurisdictional facts, the trade union (first respondent) in this instance has not called (authorised) a picket, and there is no actual strike pending or even notice given of a strike.
These two requisite jurisdictional facts are, therefore, absent for the CCMA to have had jurisdiction to determine picketing rules in terms of s69(4).
Dr Brian van Zyl is a Director of labour law firm Van Zyl Rudd and associates, www.vanzylrudd.co.za.
This article appeared in the November 2015 issue of HR Future magazine.