One of the purposes of the Labour Relations Act (“LRA”) is to lay the foundation for orderly collective bargaining between employees and their trade unions and employers and their employers’ organisations about wages, terms and conditions of employment and other matters of mutual interest.  Orderly collective bargaining, therefore, necessitates the employees’ and trade unions’ right to strike and further the employers’ and employers organisations’ recourse to lockout.

 

For the purpose of this article, we will focus on the meaning of the term “matters of mutual interest”.  The LRA does not provide a definition of what exactly constitutes a matter of mutual interest. By omitting a clear definition of the term, the legislature has created some challenges in determining whether a matter is, in fact, a matter of mutual interest, and we are left to look at the courts for answers. The Labour Court in De Beers Consolidated Mines Ltd v CCMA  ([2000]  5  BLLR  578 (LC) 581C) stated  that the term “mutual interest” is not defined in the LRA and “must  therefore  be  interpreted  literally  to  mean  any  issue  concerning employment”.

 

Labour disputes usually fall within one of two types of disputes, namely disputes of interest or disputes of right.  However, “matters of mutual interest” are wide enough to include both these types of disputes. In Gauteng Provinsiale Administrasie v Scheepers (2000 ILJ 1305 (LAC), the Court held that disputes of mutual interest entails “proposals for the creation of new rights or the diminution of existing rights”.  Mischke and Manamela are of the view that a matter will be one of interest in the event that it can be dealt with through collective bargaining and if it does not entail political issues or demands.

 

The Court in Pikitup (SOC) Ltd v SA Municipal  Workers Union on behalf of Members (2014) 35  ILJ 983  (LAC) concluded that “the  best one can say, therefore, is that any matter which affects employees in the workplace, however indirectly, falls within the scope of the phrase “matters of mutual interest” and may accordingly form the subject matter of strike action” (par 55–56).

 

Vanachem Vanadium Products (Pty) Ltd v National Union of Metalworkers of South Africa ([2014] 9 BLLR 923 (LC)) at par 17 stated that it is not necessary to define the term “matters of mutual interest”, but in order for a matter to fall under the auspices of this term, the following broad requirements should be met:

  1. The issue is the subject of any term of collective agreement;
  2. A referral for conciliation, or
  3. The subject of a strike or lockout is work-related, or
  4. The issue concerns the employment relationship.

 

The Court went further to say: “the LRA acknowledges that the interests of parties to an employment relationship more often than not stand in conflict, and that the preferred mechanism to reconcile competing interests is the process of collective bargaining.” In par. 19 of the judgement, the Court stated that it is only concerned whether the matter of mutual interest constitutes a lawful demand, and it cannot make a judgement as to the merits or consequences of the lawful demand.  Therefore, if such disputes cannot be settled by means of negotiation, the employees may exercise their right to strike once the applicable procedure has been followed.

 

This definition and interpretation of the term “matters of mutual interests” might leave the employer feeling vulnerable and unprotected from employees’ demands.  However, there are certain limitations to matters of mutual interest and the right to strike regarding them.  It is therefore advisable that once an employer receives a list of demands falling within the scope of matters of mutual interest, the employer contacts their preferred labour consultants to assist with the in-house negotiation process that will ensue in addressing said demands.

 

Article by: Carine Van Blerk

Dispute Resolution Official – Cape Town