Macsteel Service Centres SA (Pty) Ltd v National Union of Metalworkers of South Africa (NUMSA)

Macsteel operates within the jurisdiction of the Metal and Engineering Industry's Bargaining Council (MEIBC). On 22 May 2021, NUMSA served Macsteel with a letter to initiate plant level negotiations on various demands relating to its members' conditions of employment. Macsteel rejected the request and advised NUMSA to table its demands at industry level. On 24 June 2021, NUMSA referred a refusal to bargain dispute to the MEIBC. During conciliation on 12 July 2021, SAEFA (on behalf of Macsteel) objected to jurisdiction, arguing that NUMSA failed to comply with the MEIBC Constitution and Dispute Resolution Agreement, which required the Secretary of Council to determine whether the dispute was a plant or industry level matter and that industry matters should be negotiated at Manco level before referral. The Commissioner upheld the jurisdictional point and found the MEIBC had no jurisdiction. NUMSA rejected the jurisdictional ruling and served notice to commence a strike on 06 September 2021. Macsteel then approached the Labour Court for an order interdicting the strike.

• Whether the Commissioner's jurisdictional ruling rendered the proposed strike unprotected
• Whether compliance with section 64(2) of the LRA, requiring an advisory award in refusal to bargain disputes, is a prerequisite for protected strike action
• Whether the jurisdictional ruling should be treated as an advisory award based on its substance rather than form
• Whether the Commissioner was functus officio after issuing the jurisdictional ruling
• Whether the Court could direct the Commissioner to perform his duties under section 64(2) of the LRA

1. The strike set to commence on 6 September 2021 was declared unprotected due to non-compliance with section 64(2) of the LRA. 2. The Commissioner was directed to perform his duties and functions in terms of section 64(2) within 3 days from the date of judgment. 3. The second and further respondents were interdicted from participating in the strike regarding the refusal to bargain dispute (case number MEGA57684) until compliance with section 64(2). 4. The interdict would automatically lapse upon compliance with section 64(2). 5. No order as to costs.

1. Section 64(2) of the LRA is a peremptory provision requiring that an advisory award be issued in terms of section 135(3)(c) before notice of strike action can be given in refusal to bargain disputes. This is a prerequisite for protected strike action. 2. A jurisdictional ruling that does not address the substantive refusal to bargain issue does not constitute compliance with section 64(2), regardless of any argument based on substance over form. 3. A commissioner is not functus officio where they have issued a jurisdictional ruling but have not performed their statutory duties under section 64(2) to issue an advisory award. The commissioner remains seized with the matter. 4. The Labour Court has the power under section 158(1)(a)(iii) of the LRA to direct a commissioner to perform their duties and functions under section 64(2), and such an order is consistent with promoting orderly collective bargaining and the right to strike.

The Court observed that while ordinarily in mutual interest disputes referred under section 64(1)(a), a conciliation hearing is not a precondition for a protected strike as long as 30 days have elapsed, the converse is true for section 64(2) disputes. The Court noted that directing the Commissioner to issue an advisory award rather than simply declaring the strike permanently unprotected was in accordance with the objects of the LRA to promote orderly collective bargaining and would obviate unnecessary interference with the right to strike, which is an integral part of the collective bargaining process. The Court also emphasized the Constitutional Court's recognition of the general importance of the right to strike and that there is no justification for importing additional limitations on the right to strike beyond those clearly expressed by the legislature. The Court distinguished between the right to strike and the right to lock out, noting they are not always necessarily equivalent, with the right to strike being more frequently entrenched as a fundamental right.

This case clarifies the mandatory procedural requirements for protected strike action in refusal to bargain disputes under South African labour law. It establishes that section 64(2) of the LRA is a peremptory provision requiring an advisory award before strike action can be protected, even where a jurisdictional ruling has been issued. The judgment demonstrates the Labour Court's approach to balancing procedural compliance with the constitutional right to strike by directing commissioners to complete their statutory functions rather than simply declaring strikes unprotected. It also clarifies the application of the functus officio doctrine in labour law, holding that commissioners are not functus officio where they have refused to perform statutory duties on procedural grounds. The case reinforces the importance of the purpose-based approach to statutory interpretation in labour law, linking compliance requirements to the statutory purpose of promoting thorough conciliation in refusal to bargain disputes.