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

• Jurisdiction: South Africa
• Citation: 1992 (3) SA 809 (A)

National Union of Metalworkers of South Africa and Others v Macsteel (Pty) Ltd
1992 (3) SA 809 (A)

1992 (3) SA p809

Citation	1992 (3) SA 809 (A)
Court	Appellate Division
Judge	van Heerden JA, Smalberger JA, F H Grosskopf JA, Goldstone JA and Nicholas AJA
Heard	May 8, 1992
Judgment	May 21, 1992

Flynote : Sleutelwoorde B

Labour law — Labour Relations Act 28 of 1956 — Unfair labour practice — C What is — Concerted action by employees to withdraw voluntary overtime usually worked — Overtime ban instituted, inter alia, in order to bring pressure to bear upon employer in context of then current wage negotiations — Ulterior motive for concerted withdrawal of voluntary overtime in such circumstances justifying categorisation of employees' action as unfair labour practice. D

Headnote : Kopnota

During the course of wage negotiations between the first appellant trade union and the respondent employer, certain of the respondent's employees, members of the trade union, participated in an overtime ban. An industrial court ruled that the institution of a collective overtime ban by the employees had been neither unlawful nor an unfair labour practice in the circumstances and within the meaning of para (o)(ii), (iii) and (iv) of E the definition of 'unfair labour practice' in s 1 of the Labour Relations Act 28 of 1956. The Labour Appeal Court reversed the industrial court's ruling. In an appeal to the Appellate Division, it was argued for the trade union that, since s 8(1) of the Basic Conditions of Employment Act 3 of 1983 prohibited an employer from requiring an employee to work overtime other than in terms of an agreement between them, the effect of the order of the Labour Appeal Court had been to compel employees to work overtime in future in contravention of s 8(1) because there had been no agreement F by those employees so to work. It was argued, further, that it could never be unfair for employees to refuse to work overtime, regardless of the motive for such refusal, when they were under no contractual obligation to do so, and that the freedom to refuse to work overtime could not be lost merely because some other individuals simultaneously and concurrently exercised it.

G Held, as to the appellants' first argument, that the right of each individual employee to refuse to work overtime had been no different after the Labour Appeal Court's order than prior thereto.

Held, further, that what the employee could not fairly do after the order was to become a party to a concerted action with other employees to withdraw voluntary overtime usually worked in the circumstances in which the overtime ban had occurred, that is, inter alia, without notice to the H employer and in order to bring pressure to bear upon it in the context of the then current wage negotiations: it had been the ulterior motive for the withdrawal of overtime which had justified the categorisation of the employees' action or conduct as an unfair labour practice.

Held, accordingly, that the order made by the Labour Appeal Court was not inconsistent with the provisions of s 8(1) of the Basic Conditions of Employment Act.

Held, further, as to the appellants' second argument, that whether the concerted exercise of the freedom to refuse to work overtime was unfair or I not did not depend only upon the legal rights of the employees; it also depended upon the motive for so exercising such freedom.

Held, further, that the concerted action by employees to withdraw voluntary overtime usually worked amounted to an 'unfair labour practice' as defined in s 1 of the Labour Relations Act 28 of 1956 where (1) the action had been instituted during the course of wage negotiations; (2) there had been no suggestion that the employer had not been negotiating in J good faith; (3) an overtime regime had been in place for

1992 (3) SA p810

A some years for the mutual advantage of both the employer and those of its employees who had agreed to work overtime; (4) to the knowledge of the trade union of which the employees were members, an overtime ban would seriously have disrupted the business of the employer, would have prevented it from complying with its contractual obligations with some of its customers and would have caused it substantial pecuniary loss; (5) it had been instituted without a declaration of a deadlock in the B negotiations; (6) it had been instituted without any notice to the employer and so had disabled the employer from making timeous arrangements for alternative labour or for alternative delivery arrangements with its customers; and (7) the trade union had disingenuously denied any knowledge of the overtime ban. Appeal dismissed.

The decision in the Labour Appeal Court in Macsteel (Pty) Ltd v National Union of Metalworkers of South Africa and Others confirmed. C

Case Information

Appeal from a decision in the Labour Appeal Court (Hartzenberg J and assessors). The facts appear from the judgment of Goldstone JA.

M S M Brassey for the appellants referred to the following authorities: Macsteel (Pty) Ltd v National Union of Metalworkers D of SA and Others (1989) 10 ILJ 285 (IC); SA Breweries Ltd v Food and Allied Workers Union 1990 (1) SA 92 (A) at 96H-97C, 97G-H, 99D-G, 100C, Basic Conditions of Employment Act 3 of 1983, s 8; R v Beerman 1948 (1) SA 954 (A), especially at 958; R v Shein 1925 AD 6 at 9; R v Kumalo and Another 1930 AD 193 at 195-6; Commissioner of Taxes v Levy 1952 (2) SA 413 (A) E at 421E-F; Durban North Traders Ltd v Commissioner for Inland Revenue 1956 (4) SA 594 (A) at 603A-D; Commissioner for Inland Revenue v Strathmore Consolidated Investments Ltd 1959 (1) SA 469 (A) at 475F-H; Secretary for Inland Revenue v Trust Bank of Africa Ltd 1975 (2) SA 652 (A) at 666B-D, 669H; Baxter Administrative Law at 388 n 25; R v Gwantshu F 1931 EDL 29 at 31; Silver Oak Industries t/a Silverton Tanneries v Garment & Allied Workers' Union (NH 12/3/86); Tshabalala v Minister of Health 1987 (1) SA 513 (A) at 523B-D; 'The Dismissal of Strikers' (1990) 11 ILJ 213 at 221 n 33; Trident Steel (Pty) Ltd v John NO and Others (1987) 8 ILJ 27 (W); Steel Engineering and Allied Union of SA v Trident Steel (1986) 7 ILJ G 418 (IC); NLRB v Insurance Agents International Ltd 361 US 477, 45 LRRM 2704; Goldman in Blainpain International Encyclopaedia for Labour Law and Industrial Relations vol XII at 223 s 499; Hanami in Blainpain (op cit vol VII at 131 s 239, at 133 s 246, and at 142 s 266); Weiss in Blainpain (op cit vol V at 137 ss 320, 321 and at 141 s 332); Gorman Labour Law - Basic Text at 359, discussing NLRB v Darling & Co 420 F2d 63 (7th Cir, 1970); H Birk in Blainpain Comparative Labour Law and Industrial Relations in Industrialised Market Economies 4th ed I at 285-6 s 73; R v Mbande 1933 AD 382 at 392-3.

J J Gauntlett SC (with him C D A Loxton) for the respondent referred to the following authorities: R v Kumalo and Another 1930 AD 193 at 196; R v Canqan and Others 1956 (3) SA 366 (E) at 367H-368B; Secretary for Inland I Revenue v Trust Bank of Africa Ltd 1975 (2) SA 652 (A); AA Onderlinge Assuransie Assosiasie Bpk v De Beer 1982 (2) SA 603 (A) at 614E-H; Power Packing Casemakers Ltd v Faust and Others [1983] 2 All ER 166 (CA); Bleazard v Argus Printing & Publishing Co Ltd (1983) 4 ILJ 60 (IC) at 76A-H; NUM v Marievale Consolidated Mines Ltd (1986) 7 ILJ 123 (IC) at J 149B-D; Marievale Consolidated Mines Ltd v President of the

1992 (3) SA p811

Industrial Court and Others (1986) 7 ILJ 152 (T) at 165C-D; MAWU and Others v Natal Die Casting Co (Pty) Ltd (1986) 7 ILJ 520 (IC) at 542B-F; Trident Steel (Pty) Ltd v John NO and Others (1987) 8 ILJ 27 (W) at 32B; Plascon-Evans Paint (Natal) Ltd v Chemical Workers Industrial Union and Others (1988) 9 ILJ 231 (D) at 241I; Amalgamated Beverage Industries Ltd v Food & Allied Workers Union and Others (1988) 9 ILJ 252 (IC) at B 260H-261A; Bebel Investments (Pty) Ltd v Paper, Printing, Wood & Allied Workers Union and Others (1988) 9 ILJ 572 (E); Macsteel (Pty) Ltd v National Union of Metalworkers of SA and Others (1989) 10 ILJ 285 (IC); NUMSA and Others v Elm Street Plastics t/a Adv Plastics (1989) 10 ILJ 328 (IC) at 334J-335C, 336B; Ray's Forge & Fabrication (Pty) Ltd v National C Union of Metalworkers of SA and Others (1989) 10 ILJ 762 (IC) at 773F-H; Langeberg Foods Ltd (Boksburg) v Food & Allied Workers Union and Others (1989) 10 ILJ 1093 (IC) at 1102A-1103A; Cape Gate (Pty) Ltd v Simon Namane and Others (1990) 11 ILJ 766 (IC); SA Breweries Ltd v Food and Allied Workers Union and Others 1990 (1) SA 92 (A) at 97F-H, 99D-G; International Combustion Africa Ltd v National Union of Mine Workers of South Africa (unreported IC determination, 26 March 1990); Cameron et al D The New Labour Relations Act at 72, 73; Hoffmann and Zeffertt South African Law of Evidence 4th ed at 590-1; Kahn-Freund Labour and the Law 3rd ed at 69; Morris The Development Labour Law 2nd ed vol 1 at 571; Alan Rycroft 'The Duty to Bargain in Good Faith' (1988) 9 ILJ 202; 'The Legal E Status of Overtime Bans' 1988 SALJ 655, especially at 662-3; Administrator, Cape, and Another v Ntshwaqela and Others 1990 (1) SA 705 (A) at 715D, 716B-C; Western Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd 1948 (3) SA 353 (A) at 355; Elgin Fireclays Ltd v Webb 1947 (4) SA 744 (A) at 749-50; Munster Estate (Pty) Ltd v Killarney Hills F (Pty) Ltd 1979 (1) SA 621 (A) at 624B-E; Metal and Electrical Workers' Union v National Panasonic Ltd 1991 (2) SA 527 (C) at 530E-F; National Union of Food Workers v Elliot Bros (EL) (Pty) Ltd (1990) 11 ILJ 575 (IC). A

Cur adv vult.

G Postea (May 21).

Judgment

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...