Section 64 of the Labour Relations Act (the “LRA”) regulates the right to strike and recourse to lock-out. In terms of Section 64(1), every employee has the right to strike, and every employer has recourse to lock-out if the issue in dispute has been referred to a council or the Commission as required by the LRA, and a certificate stating that the dispute remains unresolved has been issued; or a period of 30 days or any extension of that period agreed to between the parties to the dispute, has elapsed since the council or the Commission received the referral.

Disputes, as referred to above, are usually referred to as disputes relating to “matters of mutual interest.” The concept of “matters of mutual interest” is used in several sections and definitions in the LRA, thereby indicating the significance thereof. However, despite its importance, the LRA does not define the concept. This has led to multiple instances where the interpretation of the concept was in question; an example of such can be seen in Vanachem Vanadium Products (Pty) Ltd v National Union of Metalworkers of South Africa ([2014] 9 BLLR 923 (LC)). In this matter, the Court was required to determine whether certain matters were matters of mutual interest for purposes of strike action. The Court held that the term serves to define the legitimate scope of matters that may form the subject of collective agreements, matters which may be referred to the statutory dispute-resolution mechanisms, and matters which may legitimately form the subject of a strike or lock-out.

The notion of mutual interest as relating to the well-being of the enterprise found its strongest expression in Itumele Bus Lines (Pty) Ltd t/a Interstate Bus Lines v Transport & Allied Workers Union of SA & others (2009) 30 ILJ 1099 (LC). In that case, Nel AJ held that a demand by a trade union for an equity shareholding in the applicant concerned a matter of mutual interest as contemplated by the LRA. In paragraph 45 of the judgment, the Court stated, ‘I believe a more appropriate approach to this particular question would be to consider whether a demand may create new employment conditions or conditions of employment. I believe that in determining whether the matter is one of mutual interest between employer and employee, one will consider whether a demand may possibly create new rights and obligations between employer and employee. Will these new rights be in the interests of both parties and for the common good of the enterprise?

Case law seems to have widened the scope of what constitutes “matters of mutual interest” and has thus opened the floodgates for dispute referrals to the CCMA and Bargaining Councils. What has been evident is that Unions are referring disputes to the CCMA and the Bargaining Councils, ticking off the disputes as matters of mutual interest under the nature of the dispute. We also find that unions refer to almost any unresolved negotiation with the employer as such, and the CCMA and Bargaining Councils seem to be entertaining most of these matters, especially the CCMA. The unions usually take this route in an attempt to threaten with a strike if the employer does not meet the Union’s demands.

It is thus advisable that as soon as an Employer receives such a dispute referral that they make contact with CEO to determine whether or not the matter is of mutual interest. It is of utmost importance that it be determined whether the matter is indeed a matter of mutual interest because if it is, and the dispute remains unresolved at conciliation, then the Union may embark on a strike, subject to certain requirements being met.

Article by: Ntombi Moloro
Dispute Resolution Official – Pretoria