Breathalyser testing of employees continued …

Nature of strikers’ demand and protectedness of the strike.

In her report to the Executive Director: Corporate Services dated 12 April 2013, Ms Joja repeated the EXCO’s recommendations and stated:

“Negotiations with labour were initiated but there was never an agreement between Labour and Employee Wellness on the issue of testing. Presentations at LLF never brought any changes in Labour’s stance on the testing programme.”

Ms Joja did not state what the irreconcilable differences were between the union and her department. The minutes of the meeting of the Pikitup Local Labour Forum held on 8 December 2010 shed more light on the issue.

The minutes read as follows:

“5.8 Organised Labour

· Submitted that the issue of subjecting employees to the breathalyser has to be treated within the Employee Assistance Programme that the company has.

· Is very unhappy about this exercise as it does not even know how safe are the tools used and how accurate they are.

· Stated that this practice must be withdrawn and must be included in the Employee Assistance Programme and the company’s Code of Conduct.

· Stated that the exercise of testing people is degrading to the people being tested – “

Assurances given by the employer

The objections raised by the first respondent were, despite a memorandum, dated 3 November 2010, sent to all employees at the head office by Ms Joja, wherein she explained how the breathalyser worked and assured the employees that it was hygienic.

She also explained why everybody that entered their building should be tested. In its replying affidavit, the appellant reiterated that the fears relating to hygiene were unfounded, because:

· the person being tested did not even touch the device with his/her lips; and

· because the person only blew towards it for the tester to take a reading.

Verification process introduced

It also stated that an employee, who incorrectly tested positive for alcohol, would be given an opportunity to have a second test and, if the result remained positive, such employee could demand that a blood test be administered.

Breathalysers valuable first line of testing

The appellant was also of the view that, even if breathalysers were less accurate than blood tests, they were still a valuable first line of testing which could profitably be used to enhance the safety of its employees and members of the public.

Calibration of devices and testers trained

It also presented proof that the breathalysers were calibrated and that the testers were trained to operate them.

The appellant stated that the first respondent’s contention that the tests were degrading was absurd when members of the public and other employees were injured and killed as a result of its drivers driving under the influence of alcohol.

Labour Court: rule nisi application

The issues, with regard to the breathalyser testing, were, inter alia, whether the demand for the abandonment of breathalyser testing was unlawful and whether it was an issue of mutual interest. Snyman AJ concluded that the demand for the cessation of breathalyser testing was not an unlawful demand.

He was, however, of the view that the implementation of the breathalyser testing policy fell squarely within the operational management of the business of the employer that could not form part and parcel of issues in dispute that would qualify for or form the subject matter of legitimate collective bargaining.

He explained his conclusion as follows:

“In fact, the very issue of the Breathalyser testing process can be used to illustrate what I am saying. If the issue of the Breathalyser test was for example coupled with a new automatic penalty such as an unpaid suspension for the day, then it would clearly have the necessary nexus to an employment issue and could form the subject matter of legitimate collective bargaining to change it. However, and in this case, the applicant has in its founding affidavit stated that other than conducting Breathalyser test on the driver before handing over the keys, nothing else changes. The applicant has in fact stated that the normal and existing processes in the applicant (sic) with regard to employees being under the influence of alcohol would apply which processes is (sic) not an issue in dispute between the parties.”

Labour Court: on return date

On the anticipated return date, Hulley AJ heard substantially the same arguments as Snyman AJ did, save that the first respondent had filed its answering affidavit and the appellant its replying affidavit when the matter was heard by the former. He discharged the interim order.

Matter of mutual interest

His reasons for doing so were, crisply, that the method used to provide a safe working environment must necessarily be a matter in respect of which employees have an interest.

Demand lawful

Secondly, that the fact, that the employer proposed administering a blood test (irrespective of whether it was upon demand by the employee) as part of the new system, raised serious concerns and was a matter of interest to both employer and employee. With regard to the unlawfulness of the demand, he found that the demand was lawful.

The appellants submitted that the strike was ultimately aimed at preventing the appellant from complying with its legal obligations in terms of the Occupational Health and Safety Act 85 of 1993 (“the OHSA”). Any work stoppage for the aforementioned purpose would therefore be unlawful.

The first respondent argued that the right to strike should only be limited if the limitation was clear from the legislation or instrument seeking to limit the right. It was submitted that the mere fact that a statute, the OHSA in this case, was designed to give effect to a safety and security measure, did not necessarily render the right to strike subordinate to such legislation.

It was further submitted that a demand, by employees, that an employer must bargain collectively and agree on a measure contemplated in the OHSA was not unlawful.

Findings of the Court

Right to bargaining collectively and the right to strike

Before examining these issues, it is apposite to discuss the right to engage in collective bargaining and the concomitant right to strike.

The right to strike and the right to engage in collective bargaining are entrenched in the Constitution.

S23(2)(c) of the Constitution: right to strike

Section 23(2)(c) provides that every worker has the right to strike.

S23(5) of the Constitution: right to bargain collectively

Section 23(5) provides that:

“Every trade union, employers’ organisation and employer has the right to engage in collective bargaining. National legislation may be enacted to regulate collective bargaining. To the extent that the legislation may limit a right in this Chapter, the limitation must comply with section 36(1).”

Collective bargaining, it is said, implies a right on the part of those who engage in collective bargaining to exercise economic power against their adversaries (in re Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744 (CC) at paragraph [64])).

The constitutional court emphasised the importance of the right to strike as follows:

“Collective bargaining is based on the recognition of the fact that employers enjoy greater social and economic power than individual workers. Workers therefore need to act in concert to provide them collectively with sufficient power to bargain effectively with employers. Workers exercise collective power primarily through the mechanism of strike action. In theory, employers, on the other hand, may exercise power against workers through a range of weapons, such as dismissal, the employment of alternative or replacement labour, the unilateral implementation of new terms and conditions of employment, and the exclusion of workers from the workplace (the last of these being generally called a lockout). The importance of the right to strike for workers has led to it being far more frequently entrenched in constitutions as a fundamental right than is the right to lockout.”

Interrelated relationship

The right to strike and the right to engage in collective bargaining are interrelated. One cannot exist without the other. Collective bargaining without the concomitant right to strike will be rendered nugatory.

The right to strike is constitutionally protected in order to redress the inequality in social and economic power in employer/employee relations (see SATAWU and Others v Moloto 2012 (6) SA 249 (CC) at paragraph [61]). It is also important for the dignity of workers who may not be treated as coerced employees (see National Union of Metal Workers of SA and Others v Bader Bop (Pty) Ltd and Another 2003 (3) SA 513 (CC) at paragraph [13]).

Right to strike should not be limited by reading limitations into it

Given the historical and contemporaneous importance of the right to strike, it should not be limited or restricted by reading implicit limitations into it.

In SATAWU v Moloto supra it was said that:

“The right to strike is protected as a fundamental right in the Constitution without any express limitation. Constitutional rights conferred without express limitation should not be cut down by reading implicit limitations into them, and when legislative provisions limit or intrude upon those rights they should be interpreted in a manner least restrictive of the right if the text is reasonably capable of bearing that meaning.”

An interpretation which limits the right to strike should, therefore, be avoided if the text that seeks to limit it is susceptible to an interpretation that upholds and protects the right to strike. In essence, any legislative provision that seeks to restrict the right to strike should do so expressly, in clear and unequivocal terms.

The Labour Relations Act 66 of 1995 (“the LRA”), which is the vehicle that parliament used to give effect to and regulate the labour rights entrenched in s23 of the Constitution, contains limitations on the right to strike. It is uncontroversial that the LRA contains both substantive and procedural restrictions to the right to strike.

LRA procedural requirements fulfilled in casu

Procedurally, the right to strike will not accrue if the dispute, firstly, was not referred to the CCMA or a bargaining council and a certificate of non-resolution issued and, secondly, if the union had not issued a strike notice. Both procedural requirements were fulfilled in this matter.

LRA substantive requirements

The substantive requirements set out in s65 of the LRA are, strictly speaking, also not relevant for the resolution of this dispute.

Definition of “strike”: s213 of the LRA

The definition of “strike” in the LRA (s213) also restricts the right to strike and is defined as follows:

“‘Strike’ means the partial or complete concerted refusal to work, or the retardation or obstruction of work, by persons who are or have been employed by the same employer or by different employers, for the purpose of remedying a grievance or resolving a dispute in respect of any matter of mutual interest between employer and employee, and every reference to ‘work’ in this definition includes overtime work, whether it was voluntary or compulsory.”

Relevance of definition of strike in casu

The disputes in this matter hinge on two parts of the definition of a strike.

It is clear that the cessation, retardation or obstruction of work must be for the purposes of remedying a grievance or resolving a dispute. It is also beyond cavil that the dispute or grievance must be about a matter of mutual interest.

The appellant contended that the intended strike in this matter was not about a matter of mutual interest and that it was not aimed at remedying or resolving a lawful dispute or grievance.

Element 1: resolving a dispute or remedying a grievance

The labour appeal court dealt with the last mentioned issue first and said that industrial action for the purpose of requiring or compelling an employer to perform an unlawful act could not be protected (see TSI Holdings (Pty) Ltd and Others v National Union of Metalworkers of South Africa and Others (2006) 27 ILJ 1483 (LAC) at paragraph [48]).

Lawfulness a requirement

Therefore, the cessation, retardation or obstruction of work must be aimed at remedying a lawful grievance or resolving a lawful dispute. Both parties accepted this to be the legal position.

The appellant submitted that the first respondent’s proposed industrial action was essentially geared at forcing the appellant to commit a crime in terms of the OHSA. It was contended that the OHSA places onerous duties and responsibilities on the appellant, which it has to comply with on pain of criminal sanction. Both Snyman AJ and Hulley AJ rejected this argument.

Was the rejection justified?

The OHSA provisions

Section 8 of the OHSA reads as follows:

“8 General duties of employers to their employees

1. Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.

2. Without derogating from the generality of an employer’s duties under subsection (1), the matters to which those duties refer include in particular –

(a) the provisions and maintenance of systems of work, plant and machinery that, as far as is reasonably practicable, are safe and without risks to health;

(b) taking such steps as may be reasonably practicable to eliminate or mitigate any hazard or potential hazard to the safety or health of employees, before resorting to personal protective equipment;

(c) making arrangements for ensuring, as far as is reasonably practicable, the safety and absence of risks to health in connection with the production, processing, use, handling, storage or transport of articles or substances;

(d) establishing, as far as is reasonably practicable, what hazards to the health or safety of persons are attached to any work which is performed, any article or substance which is produced, processed, used, handled, stored or transported and any plant or machinery which is used in his business, and he shall, as far as is reasonably practicable, further establish what precautionary measures should be taken with respect to such work, article, substance, plant or machinery in order to protect the health and safety of persons, and he shall provide the necessary means to apply such precautionary measures;

(e) providing such information, instructions, training and supervision as may be necessary to ensure, as far as is reasonably practicable, the health and safety at work of his employees;

(f) as far as is reasonably practicable, not permitting any employee to do any work or to produce, process, use, handle, store or transport any article or substance or to operate any plant or machinery, unless the precautionary measures contemplated in paragraphs (b) and (d), or any other precautionary measures which may be prescribed, have been taken;

(g) taking all necessary measures to ensure that the requirements of this Act are complied with by every person in his employment or on premises under his control where plant or machinery is used;

(h) enforcing such measures as may be necessary in the interest of health and safety; – “

Section 9 of the OHSA reads as follows:

“9. General duties of employers and self-employed persons to persons other than their employees

(1) Every employer shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.

(2) Every self-employed person shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that he and other persons who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.”

Section 14 places duties on employees at work and reads as follows:

“Every employee shall at work –

(a) take reasonable care for the health and safety of himself and of other persons who may be affected by his acts omissions;

(b) as regards any duty or requirement imposed on his employer or any other person by this Act, co-operate with such employer or person to enable that duty or requirement to be performed or complied with;

(c) carry out any lawful order given to him, and obey the health and safety rules and procedures laid down by his employer or by anyone authorized thereto by his employer, in the interest of health or safety;

(d) if any situation which is unsafe or unhealthy comes to his attention, as soon as practicable report such situation to his employer or to the health and safety representative of his workplace or section thereof, as the case may be, who shall report it to the employer; and

(e) if he is involved in any incident which may affect his health or which has caused an injury to himself, report such incident to his employer or to anyone authorized thereto by the employer, or to his health and safety representative, as soon as practicable but not later than the end of the particular shift during which the incident occurred, unless the circumstances were such that the reporting of the incident was not possible, in which case he shall report the incident as soon as practicable thereafter.”

Regulation 2A of the regulations promulgated under the Machinery and Occupational Safety Act 6 of 1983 provides that an employer shall not permit any person, who is or who appears to be under the influence of intoxicating liquor or drugs, to enter or remain at a workplace.

In terms of section 38 of the OHSA, any person who contravenes or fails to comply with the provisions of s8, s9 and s14 is guilty of an offence and shall, on conviction, be liable to be sentenced to a fine not exceeding R50 000.00 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

Interpretation and applicability of the OHSA in casu

Section 8 of the OHSA places a duty on the appellant to maintain, as far as is reasonably practicable, a working environment that is safe and without health risks for its employees.

Section 9 places a duty on the appellant to conduct its business in such a manner as to ensure, as far as reasonably practicable, that persons, who are not its employees and who may be directly affected by its activities, are not thereby exposed to health or safety hazards.

definition of “reasonably practicable”

“Reasonably practicable” means practicable having regard to:

· the severity and scope of the hazard or risk concerned;

· the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;

· the availability and suitability of means to remove or mitigate that hazard or risk; and

· the cost of removing or mitigating that hazard or risk in relation to the benefits deriving therefrom.

Sections 8 and 9, therefore, place a duty on the employer to act proactively to avoid any harm or injury to its employees and others.

There is no standard as to what is reasonably practicable. Each case will have to be determined on its own facts and circumstances.

As can be seen from the definition of “reasonably practicable”, it involves weighing different considerations from risk evaluation, means of removing or avoiding the risk, resource availability and a cost-benefit analysis.

In Edwards v National Coal Board [1949] 1 ALL ER 743 CA, Lord Justice Asquith stated:

“Reasonably practicable as traditionally interpreted, is a narrower term than ‘physically possible’ and implies that a computation must be made in which the quantum of risk is placed in one scale and the sacrifice, whether in money, time or trouble involved in the measure necessary to avert the risk is placed in the other; and that, if it is shown that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice, the person upon who the duty is laid discharges the burden of proving that compliance was not reasonably practicable. This computation falls to be made at a point of time anterior to the happening of the incident complained of.”

Submission of the appellant (employer)

It was argued that the appellant had made an assessment and concluded that the reasonably practicable way to fulfil its obligations and comply with its duty was by subjecting its drivers to mandatory breathalyser testing. The appellant considered the breathalyser as an effective precautionary measure as compared to mere physical observation.

It was further contended that the breathalyser testing policy assisted the employees because they were obliged to take reasonable care of their own health and safety and that of other persons who might be affected by their conduct.

It was correctly submitted that all employees were obliged to:

· cooperate with their employer in order to enable it to acquit itself of its duties under the OHSA;

· carry out lawful health and safety orders; and

· comply with health and safety rules and procedures.

A refusal by the employees, so the argument went, to undergo breathalyser testing would be in breach of all three of the abovementioned statutory duties, because it would involve a failure to cooperate and disobedience with a health and safety order, rule or procedure.

Submissions of the respondent (union)

The union submitted that the appellant’s arguments were flawed, because it sought to subordinate the right to strike to the provisions of the OHSA in circumstances where the OHSA did not contain any express intention to limit the right to strike.

It was contended that the demand of the employees, properly construed, did not mean that they wanted no testing measures at all.

True nature of the dispute

The dispute, properly considered, was not a demand that the appellant should not have any policy or practice in place to detect whether employees, or drivers specifically, were under the influence of alcohol. The employees had specific problems with the breathalyser device.

The appellant had an alcohol/substance abuse policy in place before it decided to introduce breathalyser testing. Its original policy did not include any form of pre-incident mandatory testing.

Other methods available to detect alcohol consumption

It is not in dispute that breathalyser testing is but one of a range of measures that can be used to detect alcohol consumption – observation, urine test, blood test and the stroop test – are some of the other methods that can be used (see McCann et al Alcohol Drugs and Employment, second ed, Juta chapter 10).

The employees complained that there were instances where the breathalyser produced inaccurate and unreliable results.

The appellant stated, in its replying affidavit, that, to the extent that the breathalyser gave an incorrect result, the employee would be given an opportunity to have a second test and, if the result was still positive, such employee could demand that a blood test be administered.

It further stated that, even if the breathalyser was less accurate than blood tests, which appeared to be unknown to either of the parties, it was still a valuable first line of testing which could profitably be used to enhance the safety of the employees and members of the public. The employees raised a genuine concern relating to the reliability of the breathalyser.

Although the first respondent did not say what should replace breathalyser testing, it was clear that, in the absence of breathalyser testing, there were other lawful means of testing for alcohol consumption, be it observation, blood tests, urine tests or any other reasonably practicable means.

On the facts of this matter, it cannot be said that the breathalyser was the only reasonably practicable way to ensure the safety of the employees and others.

“Reasonably practicable” is a variable standard that must be determined objectively.

The appellant, as stated above, had an alcohol and substance abuse policy in place before deciding on breathalyser testing. Did that mean that it operated in contravention of s8 and s9 of the OHSA before it introduced breathalyser testing? The answer is no.

The absence of breathalyser testing surely did not mean that the appellant contravened the provisions of the OHSA. Mandatory breathalyser testing for all drivers or employees is also not a requirement of the OHSA.

Moreover the demand that “there be no breathalyser test” may mean that the union is of the view that the measure introduced by the appellant to avoid the risk is disproportionate to the risk, i e that the risk is so small that the preventative measure is not necessary.

The union can be convinced otherwise at the bargaining table.

The demand was justified and would not necessarily result in a crime being committed by the appellant.

The labour appeal court, therefore, agreed with Snyman and Hulley AJJ.

Element 2: whether the dispute is a matter of mutual interest

The labour court then turned to consider whether the dispute was a matter of mutual interest.

It agreed with Hulley AJ that the phrase “any matter of mutual interest” defies precise definition. The phrase is couched in very wide terms.

According to Grogan, the phrase is extremely wide, “potentially encompassing issues of employment in general, not merely matters pertaining to wages and conditions of service” (John Grogan Collective Labour Law Juta 2007 at 134).

In Rand Tyres and Accessories v Industrial Council for the Motor Industry (Transvaal) 1941 TPD 108 at 115, the following was said about the phrase:

“Whatever can reasonably and fairly be regarded as calculated to promote the well-being of the trade concerned, must be of mutual interest to them; and there can be no justification for restricting in any way powers which the Legislature has been at the greatest pains to frame in the widest possible language.”

Grogan concludes, correctly in the labour appeal court’s view, 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.”

The phrase “mutual interest” seeks to limit the issues that may form the subject matter of a strike. It can, therefore, not be without boundary.

The matter should not be too far removed from the employment relationship so that it can properly be said that it does not concern the employment relationship. Matters that are purely socio-economic or political would generally not be matters of mutual interest.

If employees were to be allowed to strike over any political or socio-economic issues, uncertainty will reign and the employer will, in most cases, be confronted with a situation over which he/she has no control or influence. Many disputes, however, have, at bottom, political and/or socio-economic issues.

The facts of each matter will determine whether such issue is one of mutual interest (a useful discussion of the cases and an article in which the phrase was defined is contained in SADTU v Minister of Education and Others (2001) 22 ILJ 2325 (LC) at paragraph [43].).

Although ensuring the health and safety of employees and others is predominantly the employer’s responsibility, it is clear from the OHSA that the employee also bears duties and responsibilities towards other employees and members of the public. The employer may not always have all the solutions to health and safety issues at the workplace. The employees, on the other hand, may have the necessary knowledge and experience of a risk, how it affects or may affect them and/or others and how to avoid it.

The term “reasonably practicable”, which is the touchstone in the OHSA, also demands that various interests be considered as well as a cost-benefit analysis to be done. The whole scheme of the OHSA points to a need for employers and employees to work together in order to ensure the health and safety of everyone.

Employers might consider the minimum that can be done in order to satisfy the reasonably practicable requirement whilst employees, who are at the coalface, might want more to be done.

It is counter-intuitive to say that an employee has no interest in his/her own health and safety.

The giving of a breath sample might be less invasive than giving a blood sample, but it is still invasive.

Right to privacy

It represents an inroad into the employee’s right to privacy. The worker is coerced to give a sample in circumstances where his/her consent was not sought before the decision to subject him/her to breathalyser testing was taken. There is no indication that proper consideration was given to the right to privacy of the employees.

In Communications, Energy and Paperworkers Union of Canada v Irving Pulp and Paper, Limited 2013 SCC 34, the supreme court of Canada said the following:

“49 On the other side of the balance was the employee right to privacy. The board accepted that breathalyser testing ‘effects a significant inroad’ on private ‘involving coercion and restriction on movement. Upon pain of significant punishment, the employee must go promptly to the breathalyser station and must co-operate in the provision of breath samples – Taking its results together, the scheme effects a loss of liberty and personal autonomy. These are at the heart of the right to privacy.

50 That conclusion is unassailable. Early in the life of the Canadian Charter of Rights and Freedoms, this court recognized that ‘the use of a person’s body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity – ” And in R v Shoker 2006 SCC 44, [2006] 2 SCR 399 it notably drew no distinction between drug and alcohol testing by urine, blood or breath sample concluding that the “seizure of bodily samples is highly intrusive – “

The labour appeal court could think of no reason why the position should be different here. The rights to human dignity, privacy, freedom of movement and bodily integrity are entrenched in our Constitution. In the labour appeal court’s view, an employee’s consent is required before such an invasive and intrusive act can be required from him/her.

It is telling that Ms Joja was mandated by EXCO to negotiate with the first respondent. Such negotiations could only have been aimed at reaching an agreement on the breathalyser testing.

It is strange that, when the negotiations failed, the appellant then changed tack and alleged that it had no duty to engage in collective bargaining with the first respondent.

Conclusion

The labour appeal court, therefore, agreed with Hulley AJ that the health and safety issues in this matter are matters of mutual interest.

In the labour appeal court’s judgment, health and safety issues are primarily the responsibility of the employer but they are matters of mutual interest over which the parties may engage in collective bargaining and, if they cannot agree, the employees may embark on strike action in order to resolve the dispute.

Dr Brian van Zyl is a Director of labour law firm Van Zyl Rudd and associates, www.vanzylrudd.co.za.

This article appeared in the September 2015 issue of HR Future magazine.

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