National Union of Metalworkers of South Africa and Others v Macsteel (Pty) Ltd

• Jurisdiction: South Africa
• Judge: van Heerden JA, Smalberger JA, F H Grosskopf JA, Goldstone JA and Nicholas AJA
• Judgment Date: 21 May 1992
• Citation: 1992 (3) SA 809 (A)
• Hearing Date: 08 May 1992
• Court: Appellate Division

Goldstone JA:

The question in this appeal is whether in the circumstances of this case a concerted refusal by employees to work voluntary overtime constituted an unfair labour practice in terms of the Labour Relations Act 28 of 1956 ('the Act').

H The respondent is the employer. It is Macsteel (Pty) Ltd, a substantial steel merchant and distributor. I shall refer to it as 'Macsteel'. The first appellant is a trade union duly registered in terms of the provisions of the Act. It is the National Union of Metal Workers of South Africa, to which I shall refer as 'NUMSA'. There are 17 other appellants. I They were all employees of Macsteel at various of its four plants which are situate at Germiston and Wadeville.

Macsteel purchases large quantities of steel from steel producers. In turn, it sells that steel in various sizes to customers in the engineering and construction industries. For some years the majority of the approximately 1 000 employees of Macsteel have regularly worked overtime. J That is

Goldstone JA

A necessary from the point of view of Macsteel because of the fluctuating demand for steel from its customers. For their part, the employees welcomed the opportunity of supplementing their wages. The working of overtime became the normal practice.

B The 1988 wage negotiations between Macsteel and NUMSA began on 5 August. A number of meetings were held. No agreement was reached. On 18 August 1988 a further meeting was held. NUMSA rejected the proposal which was tabled by Macsteel. On the same afternoon the shop steward addressed the employees at a report-back meeting. It was attended by an organiser in the employ of NUMSA. From that evening the majority of the employees of C Macsteel stopped working overtime. In consequence thereof Macsteel could not adhere to its production and delivery schedules and it sustained substantial pecuniary damage.

On 24 August 1988, Macsteel sent a telex to NUMSA. It referred to

'a unilateral, illegal and unfair overtime ban . . . introduced without prior warning or consultation'.

D Reference was made to prejudice caused thereby to Macsteel. NUMSA was requested to advise Macsteel whether it supported this 'illegal strike' and, in the event that it did not, it was called upon to disassociate itself from the strike.

On the same day NUMSA replied, also by telex, as follows:

E 'We are not aware of any such action taking place at any of your plants but will endeavour to investigate the allegations.

The Union also disassociates itself from any form of illegal industrial action, but we must point out that a joint or collective refusal decided individually not to work overtime does not necessarily constitute illegal industrial action.'

F A further detailed complaint from Macsteel to NUMSA met with no response satisfactory to Macsteel. NUMSA maintained the attitude set out in its telex of 24 August 1988.

On 16 September 1988 Macsteel obtained an urgent interim order from the industrial court in which the individual employees of Macsteel were called upon to show cause why an order should not be granted, inter alia,

G 'declaring the overtime ban imposed by (them) . . . to constitute unfair industrial action'.

After service of the order on them most of the employees resumed working overtime. However, on 29 September 1988, the return day of the interim H order, the industrial court suspended its order. The judgments delivered by the President and Deputy President of the Court are reported in Macsteel (Pty) Ltd v National Union of Metalworkers of SA and Others (1989) 10 ILJ 285 (IC). On the following day the majority of the employees again refused to work overtime.

On 14 October 1988 agreement was reached on wages. From 17 October 1988, the following Monday, the employees again worked overtime as requested by I Macsteel. The dispute as to whether the refusal to work overtime constituted an unfair labour practice was at the instance of Macsteel referred by the industrial council to the industrial court for determination in terms of s 46(9) of the Act. Originally Macsteel applied for relief against NUMSA and 257 individual employees. Later it gave J notice that it would seek relief only against 20 of its employees. The

Goldstone JA

A industrial court ruled against Macsteel. The determination was in the following terms:

'1.

The dispute under consideration is not an academic dispute and falls for determination by the court.

2.

The imposition of a collective ban by employees and/or their Union on the performance of voluntary, non-contractual work during wage B negotiations is a legitimate industrial relations pressure tactic which employees may exercise without any notice to the employer in order to enhance their collective bargaining power.

3.

The imposition of such a collective overtime ban by the applicant's employees during August/September 1988 (with the knowledge and/or concurrence of their Union) was neither unlawful nor was it an unfair C labour practice in the circumstances and within the meaning of para (o) subparas (ii), (iii) and (iv) of the definition of an "unfair labour practice" in the Act.

4.

The applicant was aware at the time that the overtime ban was related to the wage dispute.'

No order for costs was made.

D Macsteel appealed to the Labour Appeal Court. The appeal was upheld and the following order was made:

'Paragraphs 2, 3 and 4 of the determination of the industrial court are set aside and substituted with the following:

"(2) It is declared that the Union's conduct to introduce, instigate and persist in an overtime ban in the circumstances of this case was an unfair labour practice.

E (3) It is declared that the failure by the second to the seventh respondents, the ninth to the sixteenth respondents and the eighteenth to the twentieth respondents, to work normal overtime, in furtherance of a collective intention to persuade the applicant to accede to their wage demands, constituted a collective overtime ban, which was an unfair labour practice in the circumstances of the case." '

F NUMSA was ordered to pay the costs of the appeal, including the costs of two counsel. With the leave of the Court a quo NUMSA now appeals to this Court in terms of s 17C of the Act. In terms of s 17C(1)(a) such an appeal does not lie against 'a decision on a question of fact'. In the present G case, however, the relevant facts were agreed or are not in...