Member Article

In the recent matter ofVodacom & others v the National Association of South African Workers and 1 other, which was handed down on 4 March 2019, the South African Labour Court grappled with the issue of its jurisdiction to grant interdictory relief against a trade union where the entity seeking the relief is not the employer of the trade union’s members. The Labour Court also dealt with the rights of unregistered trade unions. Factual background Vodacom has contracted its cleaning and facilities management services to Bidvest. Bidvest’s employees therefore render these services on Vodacom’s premises. The National Association of South African Workers (“NASA”) is an unregistered trade union, which has been attempting to organise the employees of Bidvest. Vodacom had initially been amenable to NASA meeting with its members (being Bidvest’s employees) on Vodacom’s premises, subject to NASA convening these meetings at a specific time and place. However, NASA persistently failed to comply with Vodacom’s directions regarding when and where the meetings could take place. NASA convened meetings unannounced and its General Secretary behaved in a disruptive and inciting manner during these meetings by standing on tables in the canteen and addressing the members loudly. Ultimately, Vodacom refused to grant NASA further access to its premises. Despite this, NASA’s General Secretary continued to meet on Vodacom’s premises, and wrote many threatening letters to Vodacom and Bidvest. As such, Vodacom launched an application in the Labour Court for an interdict. Jurisdiction At the initial hearing of the matter, the Labour Court questioned its jurisdiction to determine the matter given that it primarily appeared to relate to Vodacom’s property rights and Vodacom was not the employer of NASA’s members. Although Bidvest, as the employer, then intervened and was joined as an applicant to the proceedings, the Labour Court still considered its jurisdiction vis-à-vis Vodacom as the non-employing entity seeking to assert its constitutional property rights. Vodacom argued that the Labour Court had the jurisdiction to consider the matter on the basis of the concurrent jurisdiction provided for in section 157(2) of the Labour Relations Act, 1995, because the matter concerned:

1. an alleged or threatened violation of a fundamental right arising from the Bill of Rights, being its property rights established by section 25 of the Constitution; and
2. arising from labour relations, given that NASA sought to assert its rights of freedom of association and fair labour practices.

NASA argued that because section 157(2) refers to an alleged or threatened violation of a constitutional right arising from “employmentandlabour relations” it must be interpreted to mean that the fact that the matter related to labour relations did not suffice and an employment relationship between Vodacom and NASA’s members was necessary for the Labour Court to have jurisdiction. Judge Le Grange agreed with Vodacom’s argument that section 157(2) must be interpreted broadly. The Labour Court held that: “the section does not specify that the parties to the litigation must be in an employment relationship. If the legislature wanted to restrict the interpretation solely to disputes concerning infringement of fundamental rights arising between employers and their employees, it would surely have stated this explicitly, rather than using a phrase which essentially describes a context from which the alleged infringement arises”. The Labour Court was therefore satisfied than an assertion of property rights by an owner of premises in relation to a union attempting to have access to a workplace on those premises involves an infringement of constitutional rights arising from employment and labour relations. The rights of the unregistered trade union NASA argued that if it was not granted access to Vodacom’s premises, their rights to freedom of association and fair labour practices would be infringed, as it would be dissociated from its members. Referring to the 2011 judgment of the Labour Court in the matter ofUnica Plastic Moulders Workers CC v National Union of SA, Judge Le Grange confirmed that unregistered trade unions may not, as a matter of right, claim any of the organisational rights provided for in terms of the Labour Relations Act. Moreover, he pointed out that even registered trade unions had to meet the threshold of being sufficiently representative in order to obtain organisational rights, including the rights of access to the workplace. The Labour Court went further to find that if NASA sought to assert its constitutional rights of freedom of association and fair labour practices, it ought to do so within the ambit of the Labour Relations Act. If it was of the view that the Labour Relations Act did not adequately protect its constitutional rights, it ought to have challenged the constitutionality of the offending provisions. In the circumstances, the Labour Court granted Vodacom’s application for an interdict with costs. Conclusion This reportable judgment establishes new precedent by confirming that a non-employer owner of property may approach the Labour Court for interdictory relief against a trade union which is violating its constitutional rights. It furthermore confirmed the position that an unregistered trade union is not entitled to insist on organisational rights, including the right to access the workplace. *ENSafrica represented Vodacom in this matter. For more information, please contact: Brian Patterson employment director [email protected] cell: +27 82 338 9835

Audrey Johnson employment director [email protected] cell: +27 82 708 0385

Shivani Moodley employment associate [email protected] cell: +27 82 560 4064