The appellant and NUMSA (first respondent) fall within the registered scope of the Motor Industry Bargaining Council (MIBCO). NUMSA was a signatory to the MIBCO constitution. The MIBCO constitution (section 11) requires that proposals concerning the amendment of any existing agreement, introduction of a new agreement or any matter of mutual interest be negotiated at centralised MIBCO level. Clause 12 prohibits strikes or lock-outs until the matter has been dealt with in accordance with section 11 and sections 64 and 65 of the LRA. The 2013 collective agreement (promulgated by the Minister and expiring 31 August 2016) entrenched centralised bargaining with a prohibition on two-tier bargaining on matters of mutual interest. During 2016, NUMSA demanded R40.00 per working day for its members at the appellant's Uitenhage plant as a "transport allowance" - this was effectively a wage increase demand made at plant level, not related to actual transport costs. The 2013 agreement expired on 31 August 2016. NUMSA issued a strike notice on 28 October 2016 for strike action commencing 31 October 2016. The appellant obtained a rule nisi interdicting the strike in a first application. On 18 November 2016, parties to MIBCO signed a settlement agreement providing for a new collective agreement (the 2017 agreement) to operate from promulgation until 31 August 2019, which included an immunisation clause protecting component manufacturers who implemented early from industrial action, but not other employers like the appellant. The rule nisi in the first application was discharged. NUMSA gave notice again on 23 January 2017 of strike action commencing 24 January 2017. The appellant obtained another interim order on 25 January 2017 (the second application), but the rule nisi was discharged by Prinsloo J on 3 April 2017.
The appeal was upheld. The order of the Labour Court was set aside and substituted with an order confirming the rule nisi (interdicting the strike action). The first respondent (NUMSA) was ordered to pay the costs of the appeal.
A bargaining council constitution is a collective agreement as defined in section 213 of the LRA and remains extant despite the expiry of periodic main collective agreements concluded within the bargaining council framework. Where a bargaining council constitution contains provisions requiring that matters of mutual interest (including wage demands) be negotiated at centralised level and prohibiting strikes unless such matters have been dealt with at central level, these constitute substantive prohibitions on the level of bargaining, not merely procedural requirements. Such provisions regulate the level of collective bargaining which impacts substantively on sectoral wage rates, and are directed at uniformity and orderly substantive outcomes. A strike in pursuit of a demand for wage increases made at plant level in breach of bargaining council constitutional requirements for centralised bargaining on matters of mutual interest is prohibited and unprotected in terms of section 65(1)(a) of the LRA, as the union is bound by a collective agreement (the bargaining council constitution) that prohibits such strike action.
The court observed that the immunisation clause in the settlement agreement, by its very existence and restricted nature, indicated that NUMSA had not waived its right to strike in relation to other demands against employers other than component manufacturers. The evident purpose of the immunisation clause was to retain, until promulgation of the 2017 agreement, the right to strike in relation to disputes against employers other than component manufacturers and component manufacturers who did not immediately implement retrospective wage increases. The court also noted that while the immunisation clause permitted NUMSA to demand the additional R40.00 per day and the centralised bargaining clause in the 2013 agreement was not operative between 1 September 2016 and 14 April 2017, the obligation to negotiate such demands at central level remained by virtue of the MIBCO constitution. The court further observed that the demand had not been withdrawn or settled and NUMSA might be minded to strike in relation to it on expiry of the 2017 agreement in August 2019, thus demonstrating that the appeal was not moot and would have practical effect.
This case is significant in South African labour law for establishing the binding nature of bargaining council constitutional provisions that mandate centralised bargaining. It clarifies that prohibitions on plant level bargaining in a bargaining council constitution are substantive, not merely procedural, and continue to apply even during periods when main collective agreements have expired. The judgment emphasises that such constitutional provisions are themselves collective agreements under section 213 of the LRA and remain extant independently of periodic main agreements. The case reinforces the importance of centralised bargaining in maintaining sectoral uniformity in wage rates and conditions of employment. It establishes that unions cannot circumvent bargaining council constitutional requirements by making plant-level wage demands during gaps between main agreements. The decision has important implications for the protection of strikes under the LRA, confirming that strikes in breach of bargaining council constitutional requirements on levels of bargaining are unprotected under section 65(1)(a) of the LRA.