The common good of the enterprise is not a relevant factor in determining whether a demand constitutes a matter of mutual interest

In an urgent application, Vanachem Vanadium Products (Pty) Ltd (Applicant) sought to interdict the National Union of Metalworkers SA (Union) from embarking on strike action.

The Applicant alleged that the demands submitted by the Union were 'unfair and unreasonable' as the dispute was regulated by the Metal & Engineering Industries Bargaining Council's (MEIBC) main agreement and a strike settlement agreement concluded between the Applicant and the Union in December 2012 (agreements). The applicant contended that the Unions demands were governed by the agreements and consequently could not form the subject matter of a strike.

In the alternative, the Applicant submitted that the subject of the Unions demands did not constitute 'matters of mutual interest' for the purposes of the definition of a 'strike', as set out in s213 of the Labour Relations Act, No 66 of 1995 (LRA).

The Union's demands were set out as follows:

• the insourcing of jobs previously outsourced by the Applicant;
• the provision of transport to employees to and from work free of charge;
• the appointment of one full-time shop steward and one full-time health and safety steward as well as 30 days’ time off per shop steward per annum with unlimited time off for trade union office bearers;
• payment of risk allowances, namely heat, chemical and dust allowances; and
• an obligation on the Applicant to train a minimum of five artisans per term.

In finding that all of the Union's demands, apart from the provision of transport to employees were lawful and thus 'matters of mutual interest', Judge Van Niekerk assessed the history of the phrase 'matters of mutual interest', pronouncing that in its current form, the phrase is employed to "ultimately define the scope of collective bargaining under the LRA, the statutory dispute resolution system, and the scope of legitimate industrial action."

An interesting part of the matter concerned the Applicants' submission that for a matter to be a matter of mutual interest, it must amongst other things, "be a matter in the interest of both the employer and employee, and must concern the common good of the enterprise."

Judge Van Niekerk found the Applicants’ proposition on this point to be fundamentally flawed for the following reasons:

'matters of mutual interest' serve to distinguish those disputes that concern the socio-economic interests of workers and those that might be termed purely political disputes from disputes that concern the employment relationship;

as preference must always be given to an interpretation which gives effect to the Bill of Rights and the purposes of the LRA, the correct interpretation of 'matters of mutual interest' would exclude those matters that are purely political in nature, or which concern the socio-economic interests of workers; and

by extrapolating the term 'common good' into the term 'matters of mutual interest', every demand made by a trade union in the collective bargaining process would be subject to utilitarian analyses (what would constitute the greatest good for the greatest number). This would be in conflict with South Africa’s voluntarist system, as it would empower courts to evaluate the merits of a demand and make any value judgment as to whether a demand promotes or secures the common good of an enterprise. This would unjustifiably widen the scope of a courts power, as its function is to determine the lawfulness of demands in the strict sense, and make no judgment as to their merits or consequences.

This judgment clarifies a commonly mistaken belief amongst employers and Trade Unions alike. Although the position may vary as leave to appeal has been granted, the scope of the phrase 'matters of mutual interest' is currently such that the interests of the enterprise are irrelevant.