In the recent case of NUMSA v Transnet SOC Limited, the Labour Appeal Court considered Transnet's Refusal to Engage the National Union of Metalworkers (“NUMSA”) on the granting of organisational rights.

Transnet employs 63 000 employees of which 6255 are employed in its Port Terminal Operations.  537 are employed at Ngqura Container Terminal.  NUMSA alleged that it had 220 members at Ngqura but Transnet contended that membership was only 100.  NUMSA endeavoured to secure recognition at Ngqura but Transnet indicated it would not engage NUMSA until it had achieved the threshold of representativeness as described in a current Recognition Agreement between Transnet and its recognised unions of the South African Transport and Allied Workers Union (“SATAWU”), the United Transport & Allied Trade Union (UTATU) and the South African Railway and Harbour Workers Union (SARHWU).  The Recognition Agreement established thresholds for recognition and collective bargaining at 30% of the bargaining unit employees across Transnet and 30% of employees in an operating unit in order to enjoy organisational rights and recognition.

Transnet believed that these thresholds were fair and should be applied consistently to all trade unions.  As NUMSA did not achieve these levels or representativeness, Transnet refused to engage with it.

Transnet introduced changed manning ratios assigned to machinery in Ngqura without engaging NUMSA, and NUMSA's attempt to have its members participate in a protected strike in opposition to this was successfully interdicted by Transnet.

NUMSA then sent demands to Transnet Port Terminals in which they demanded:

• That the number of hours worked before a break in any shift be amended;
• That all labour broking employees be permanently employed; and
• That the transport subsidies operating in other units be applied to their members.

These issues were not resolved and NUMSA thus referred a mutual interest dispute to the bargaining council.  When NUMSA issued its strike notice, Transnet responded by giving notice of its intention to lockout in support of the following demands: –

• That NUMSA would agree that there would be no engagement with it until it achieved the level of representation contained in the Recognition Agreement;
• NUMSA accepts that the manning levels at Ngqura are a managerial prerogative; and
• Any engagement on manning ratios and the employment of labour broker employees will be with recognised trade unions.

NUMSA alleged that the lockout was unprotected because the demands constituted a refusal to bargain and Transnet had not first obtained an Advisory Award (as required by section 64(2) of the Labour Relations Act 66 of 1995).  Transnet replied that the same point would apply to NUMSA's industrial action.  It also pointed out that all but 14 of NUMSA's members were also members of SATAWU who were bound by the Recognition Agreement that precluded them from lawfully participating in the strike called by NUMSA.

The Labour Court declared the strike unprotected as the dispute was over a refusal to bargain and that NUMSA members were bound by a collective agreement that prescribed a pre-strike procedure.  On appeal, NUMSA argued that there was no need for an Advisory Award as its strike was to persuade Transnet to accede to demands and resolve a dispute.  It was not a demand that Transnet should bargain with it.  It further contended that it had complied with Section 64(1) of the Labour Relations Act and therefore it was of no matter that the terms of a collective agreement in respect of a protected strike were not followed.

The Labour Appeal Court accepted that it had to ascertain the true issue in dispute.  To do this, it had to look at the substance and not at the form of the disputes.  The court was satisfied that Transnet's stance at all times was that it would not engage NUMSA until it was sufficiently represented at Transnet in accordance with its threshold set out in a collective agreement.  NUMSA's demands were, at all times, that Transnet must meet with it in order to reach agreement on its demands.  The court was of the view that these demands could not be addressed until the issues pertaining to recognition and on-going rights were resolved.  The court was therefore satisfied that the true dispute was a dispute concerning a refusal to bargain.  As a result there had to be an Advisory Award before NUMSA's strike was protected.  Given this finding there was no feed for the court to decide whether it was necessary for NUMSA's members to comply with the prescribed pre-strike procedure.

The Labour Appeal Court therefore refused NUMSA's appeal and upheld the Labour Court's finding that NUMSA's strike was unprotected.