BMW South Africa (Pty) Ltd v NUMSA obo Members (JA 71/2011) [2011] ZALAC 24; [2012] 3 BLLR 274 (LAC); (2012) 33 ILJ 140 (LAC) (2 November 2011)

Key Facts

Issues

• BMW argued NUMSA failed to exhaust the NBF agreement’s dispute resolution mechanisms (facilitation and arbitration) prior to the strike. The court found BMW’s lack of meaningful engagement with the demand, rather than NUMSA’s actions, rendered the facilitation process ineffective, validating NUMSA’s subsequent strike.
• The court determined that the clarified demand for a transport allowance, mirroring that of salaried employees, was not regulated by the NBF agreement’s no-further-claims clause (A.8.3). This allowed the demand to qualify as a protected strike under the LRA, as the agreement did not prohibit it.
• The court ruled that the coercion clause in the NBF agreement only applied during the facilitation process, not after its failure. Since BMW’s refusal to engage caused the deadlock, NUMSA’s strike did not breach the agreement’s terms.

Holdings

• The court a quo upheld that NUMSA's demand for a transport allowance was permissible under the NBF agreement and not in conflict with its provisions. It concluded that the CCMA's certificate of non-resolution was valid, and BMW failed to establish a prima facie case for an interdict, leading to the dismissal of the application.
• The Labour Appeal Court affirmed the court a quo's decision, dismissing BMW's appeal with costs. It held that NUMSA followed the correct procedure under the LRA after BMW failed to engage in good faith, and the NBF agreement's dispute resolution mechanisms did not preclude the strike once statutory requirements were met.

Remedies

Legal Principles

• The court upheld the enforceability of the collective agreement (NBF Agreement) between BMW and NUMSA, stating it is binding unless it conflicts with legislation or is contra bonos mores. This principle underpinned the requirement for both parties to comply with the agreed procedures.
• The NBF Agreement required parties to engage in 'bona fide discussion, consultation and/or negotiation' and to act in a 'collaborative manner without coercion.' The court found BMW failed to meet this obligation, allowing NUMSA to proceed with the strike.
• BMW was required to demonstrate a prima facie case to justify an interim interdict. The court found BMW failed to meet this burden, as it could not prove the demands were impermissible or that NUMSA breached the agreement.
• The court emphasized that the true nature of the dispute must be assessed based on its substance rather than the form in which it was presented. This principle was applied to determine that NUMSA's clarified demand for a transport allowance was permissible despite BMW's objections.

Precedent Name

• Bombadier Transportation (Pty) Ltd v Miya NO
• Ceramic Industries Ltd t/a Betta Sanitaryware v National Construction Building Workers' Union
• Coin Security Group (Pty) Ltd v Adams and others
• Gillet Exhaust Technology (Pty) Ltd t/a Tennaco v NUMSA
• County Fair Foods (Pty) Ltd v FAWU
• Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers' Union

Cited Statute

Judge Name

• Waglay
• Landman
• Jappie

Passage Text

• The arbitration process provided for in clause A8.3 deals with and relates to the issue of consultation/negotiations in good faith, no more and no less. Where the procedure as set out in clause A8.3 is exhausted... the parties are free... to embark on a strike.
• I am satisfied that the clarified demand, which is the foundation for the proposed strike, is a demand which is unregulated by the by the opening paragraph of clause A.8.3.
• The only reservation raised by the appellant was that, in its view, the respondent was not entitled to embark upon a strike in respect of the demand by reason of clause A8.3 of the Collective Agreement.