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Mutual interest matters: exactly how broad is the net?

Peter McDermott
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‘Mutual interest’ is a loaded phrase and usually indicates that someone is about to change the game. Unfortunately, it is often used incorrectly so it is the interest of all to understand exactly what this phrase means.

'Mutual interest' is a loaded phrase and usually indicates that someone is about to change the game. Unfortunately, it is often used incorrectly so it is the interest of all to understand exactly what this phrase means.

'Mutual interest' goes hand in hand with industrial action (strikes, lock-outs, etc). A work stoppage can only qualify as a protected strike if it relates to a matter of mutual interest between the employer and the employee. Such a refusal to work must have been undertaken to remedy a grievance or resolve a dispute about any matter of mutual interest between the employer and the employee. Industrial action refers to the industrial or economic relationship between the parties.

The courts have interpreted 'mutual interest' it in its widest possible sense:

  • "Whatever can be fairly and reasonably regarded as calculated to promote the well-being of the trade concerned, must be of mutual interest to them." (Rand Tyres & Accessories v Industrial Council for the Motor Industry (Transvaal) 1941 TPD 108).

Section 24(1) of the previous Labour Relation Act (LRA) defined 'mutual interest' as:

  • Any matter affecting, or connected with, remuneration or other terms of conditions of employment, or
  • Any matter whatsoever that is of mutual interest to employees and employers.

This seems to cast the net very wide. However, the new LRA suggests that the true meaning might be even broader.

Where the issue underlying a dispute is not one of mutual interest, a trade union cannot create a strikable dispute simply by making the employer the target of its action. This applies equally to the distinction between disputes of right and disputes of interest.

In general, the courts will look at the substance of a dispute rather than the form in which it was presented to determine whether it concerns a matter of mutual interest over which strike action is permissible:

  • This was illustrated in Ceramic Industries Ltd t/a Betta Sanitaryware & another v NCBAWU & others [1997] 6 BLLR 697 where the Labour Appeal Court held that a strike over a demand calling for the dismissal of an employee was unprotected.
  • This point was further clarified in Fidelity Guards Holdings (Pty) Ltd v PTWU & others [1997] 9 BLLR 1124 where the Labour Appeal Court reiterated that strikes cannot follow disputes that are subject to arbitration or are otherwise capable of being adjudicated.
  • This was further confirmed in Coin Security Group (Pty) Ltd v Adams & others [2000] 4 BLLR 371 where the same court held that strikes are prohibited where issues can be referred to arbitration or adjudication.

Whether employees may lawfully strike – in support of a demand that the employer should perform an act or omission which itself is unlawful - is a moot point. A more recent case on the topic is TSI Holdings (Pty) Ltd v National Union of Metalworkers of SA [2004], where:

  • The employees demanded the dismissal of a supervisor who allegedly made racist and derogatory remarks. The Labour Court held that the workers did not demand that the supervisor be dismissed without a disciplinary hearing and without proof of wrongdoing.
  • Since the demand did not necessarily entail the unlawful dismissal of the supervisor, it was not necessary to decide the question whether the strike was unlawful on the basis that the demand was unlawful.
  • However the court clearly stated that a strike in support of a demand that the employer perform an illegal act would not be protected.
  • On appeal in 2006, the Labour Appeal Court agreed that a strike in support of a demand that the employer perform an illegal act cannot be afforded protection under the LRA. The appeal court disagreed with the Labour Court and found that the strikers had not demanded the supervisor be given a fair disciplinary hearing but rather (the true reason for the strike) that the supervisor be dismissed - come what may. This demand was unlawful and, had the supervisor been dismissed, his right to a fair trial would have been infringed.
  • This being said, the Labour Court has held in the above case and in Greater Johannesburg Metropolitan Council v IMATU & others (2000) 21 ILJ 2037 that it will not interdict a strike merely because the employer regards the demand as unreasonable. Even if, objectively speaking, the demand is unreasonable.
  • In short, it would seem that cases referred as matters of mutual interest may first be subject to an in limine hearing to determine whether or not the subject matter falls within the ambit of 'mutual interest'.

Peter Mcdermott

Peter did a Bachelor of Technology (B.Tech), Human Resources Management and Services at Technikon Witwatersrand (1994-1998) and an Advanced Diploma – Labour Law, Law at University of Johannesburg (2001-2002).

He joined Labour Net in 1997 and was a consultant there until 2000, and has been a director and shareholder in Invictus Outsourcing Solutions since November 2001.

Peter has gained extensive knowledge and experience over the past 17 years in dealing with various Human Resources (HR) and Industrial Relations (IR) matters, including but not limited to :

  • Bargaining Council
  • Black Economic Empowerment (BEE)
  • CCMA
  • Contracts of Employment
  • Corporate Law
  • Disciplinary Procedures
  • Dismissals
  • Dispute Resolutions
  • Employment Equity (EE)
  • HR Policies and Procedures
  • Labour Court
  • Labour Relations
  • Negotiations
  • Performance Management
  • Personnel Management
  • Policies and Procedures
  • Retrenchments
  • Skills Development (SD)
  • Strikes
  • Talent Management
  • Trade Unions

 


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