South African Union of Journalists v South African Broadcasting Corporation (JA45/98) [1999] ZALAC 14 (12 August 1999)

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[1999] ZALAC 14
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South African Union of Journalists v South African Broadcasting Corporation (JA45/98) [1999] ZALAC 14; [1999] 11 BLLR 1137 (LAC); (1999) 20 ILJ 2840 (LAC) (12 August 1999)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG Case no : JA 45/98
In
the matter between :
SOUTH AFRICAN UNION OF
JOURNALISTS
Appellant
and
SOUTH AFRICAN BROADCASTING
CORPORATION
Respondent
JUDGMENT
FRONEMAN
DJP
:
[1] The respondent (“the
SABC”) recognised three trade unions as collective bargaining
agents. One of them was the appellant
(“the SAUJ”), the other
two were the Media Workers’ Association of South Africa (“MWASA”)
and the Broadcasting, Electronic
Media and Allied Workers’ Union
(“BEMAWU”). Non-unionised workers, about 1 371 out of a total of
4 560 employees, had their
annual wage increases decided unilaterally
by management, but wage negotiations were concluded separately with
each of the three
unions. The effects of separate collective
bargaining led to the present dispute arising in 1996.
[2] All three unions competed
for members amongst all employees of the SABC. The members of the
respective trade unions were not
drawn only from a particular type
or group of employees. The bargaining unit in respect of which wage
negotiations took place
was a flexible one and would only be fixed
at the conclusion of an agreement, not at the commencement of
negotiations. This meant
that employees could, during negotiations,
join a particular union , or move from one union to another, or
resign from a union
and be regarded as non-union members up to the
date of the conclusion of a collective agreement with the union of
which they had
been members. If management had, prior to the
conclusion of such an agreement, implemented a salary increase in
respect of non-union
members this meant that a former union member
would receive a similar increase on resignation.
[3] A feature of the multiple
negotiations was that separate agreements with the respective trade
unions were concluded, often on
differing terms. The agreement did
not necessarily afford equal benefits to employees - the unions
would often attempt to negotiate
exclusive benefits for their own
members.
[4] Unilateral changes in
respect of wages were usually extended to non-unionised workers only
after the annual wage negotiations
with two major unions were
completed. Where, however, negotiations with any of the unions
became protracted, these unilateral
changes would be introduced by
the SABC before final agreement with the union/s concerned. This
meant that union members still
involved in negotiations would know
what non-unionised employees would receive and they could then, if
they so wished, resign from
the union and thereby become entitled to
those benefits enjoyed by non-unionised workers.
[5] The recognition agreement
between the SABC and the SAUJ provided that the latter would be
recognised as a collective bargaining
agent as long as it had at
least 20% of employees as members in the particular defined
bargaining unit. Should membership, however,
drop below 20% the
‘scope of the recognition unit’ had to be renegotiated.
[6] None of the agreements
with the unions prescribed a specific date by which annual wage
increases had to be implemented. It
was, however, customary to
implement increases for non-members from the start of the new
financial year, which, in 1996, was 1
March.
[7] The annual wage
negotiations between the SABC and BEMAWU and MWASA were settled,
respectively, on 27 March 1996 and 19 April
1996. On 22 April 1996
the agreement reached with MWASA was extended to non-union members.
This meant that all employees, except
those who were members of the
SAUJ, received 12% wage increases with effect from 1 May 1996 and
those with housing subsidies received
an increase in those subsidies
effective from 1 March 1996.
[8] Negotiations between the
SABC and SAUJ were less successful. On 16 April 1996 the SAUJ
declared a dispute which led to unsuccessful
mediation on 24 July
1996. During the mediation the SABC tabled its ‘final offer’,
in essence the same as that which it had
given to its other
employees. The offer was open for acceptance until 16:00 on 31 July
1999. Failing acceptance by that time
and date, any subsequent
agreement would only have the date of the agreement as the
implementation date.
[9] A meeting was held with
SAUJ members on 26 July 1996 where those present confirmed that they
were not prepared to accept the
offer. A decision was taken to
arrange for a strike ballot, which was held on 31 July 1996. Before
the ballot was held a list
of eligible members were agreed upon.
There were 276 names on the list : only 171 cast their vote, 133
voting for strike action.
The SABC insisted that there was no
majority in favour of strike action, despite a number of members
having resigned from the
union prior to the ballot.
[10] On 1 August 1996 the SAUJ
suggested renewed negotiations, but this was rebuffed. The SAUJ
attempted a further strike ballot
but the SABC resisted this. It
was not held. During this period members of the SAUJ apparently
became aware that if they resigned
they would be treated on the same
footing as non-unionised employees and would receive the same
benefits as those employees had
received. This resulted in
large-scale resignations.
[11] By 21 August 1996 SAUJ
membership had dropped below the 20% mark and the SABC informed the
union that if it did not restore
membership to more than 20% within
30 days, their recognition would be terminated. On 29 August the
SAUJ proposed that the dispute
be settled on the basis of the SABC’s
final offer, but with an implementation date of 1 May 1996 and not
the date of the agreement.
[12] The SABC refused, but
made a counter-offer that the increases be backdated to 1 August
1996. The SAUJ was not prepared to
capitulate to this extent.
Instead its entire union leadership, bar one person, resigned on 10
and 11 September. Many other union
members also resigned then in
order to get their increases backdated to 1 May. On 11 September
the SABC decided to unilaterally
implement the increase as conveyed
in its final offer, but backdated to 1 August (as suggested in the
counter proposal of 30 August).
This meant that the remaining SAUJ
members received an inferior increase compared to other employees.
[13] On 27 September the SABC
withdrew recognition of the SAUJ as a collective bargaining agent.
The dispute was then referred
to statutory conciliation in terms of
the Labour Relations Act, no 28 of 1956. Adjudication in the
industrial court followed upon
failure at the conciliation board.
The SAUJ’s application was dismissed in the industrial court. The
present appeal was heard
under the transitional provisions set out
in the 1995 Labour Relations Act (no 66 of 1995).
[14] Counsel for the SAUJ, Mr
Van der Riet, submitted that the SABC unfairly penalised those
employees who remained SAUJ members
by unilaterally imposing its
offer on 11 September and by backdating its implementation to 1
August, and not to 1 May as it did
in respect of other employees.
This, he submitted, undermined the integrity of the collective
bargaining process (with reference
to cases such as
Mutual and
Federal Ins. Co. Ltd v Banking Insurance Finance and Assurance
Workers’ Union
(1996) 17 ILJ 241 (A) at 247;
National
Union of Mineworkers v Vetsak Co-operative Limited
[1996] ZASCA 69
;
1996 (4)
SA 577
(A) at 588E; and
National Union of Mineworkers v East
Rand Gold and Uranium Co. Ltd
(1991) 12 ILJ 1221 (A) at
1237C). What was required was a bargaining to impasse (compare
East
Rand Gold and Uranium
case at 1237I - 1239D), which had not
yet occurred, and the unilateral implementation of the offer on 11
September was thus indicative
of bad faith bargaining.
[15] The submission relied
heavily on the evidence of Mr Heunis of the SABC to the effect that
even after 30 August (when the SABC
had indicated that it would
backdate the offer to 1 August), he was of the view that
negotiations had not yet broken down and that
there was still a
possibility of resolving the dispute. The bad faith of the SABC was
apparent because, so it was submitted, it
was financially in the
position to backdate the offer to 1 May, but did not do so. The
only reasonable explanation for this was
that it wished to penalise
SAUJ’s members for their membership of SAUJ.
[16] It seems to me that it is
rather unrealistic for the SAUJ at this stage to argue that by 11
September an impasse had not yet
been reached. By that stage the
collective bargaining process had been, unsuccessfully, carrying on
for more than five months.
The SAUJ had threatened strike action at
least twice and had given no indication prior to 31 July that it
would accept the SABC’s
‘final offer’, nor, later, that it
would accept the SABC’s extension of the implementation date. It
never responded to the
latter offer of 30 August, except to
circulate a memorandum to its members rejecting the offer. Its
leadership, and a large number
of its members, resigned on 10 and 11
September. What was the SABC to make of this? I do not think good
faith bargaining compelled
them to wait until all the SAUJ’s
members had resigned before proceeding to the, in this instance,
inevitable outcome of the
power play between itself and the SAUJ.
By 11 September it was clear that there would be no acceptance by
the SAUJ,
as a genuinely representative partner in the collective
bargaining process
, of the last offer of 30 August.
[17] Was it an unfair labour
practice to implement the last offer unilaterally on 11 September?
In my view it would only be an
unfair labour practice under the 1956
Act if it could be said to have undermined the integrity of
collective bargaining at the
SABC. It must be remembered that the
issue in dispute was about wages - the classical instance of an
interest dispute, not a rights
dispute - and thus susceptible
primarily to the collective bargaining process and the power play
that goes with it. If that kind
of a dispute is not settled the
economic power of the protagonists determine the outcome. It is
then no answer to say that the
winner could have afforded to be more
lenient than it eventually was. If, in a wage dispute, an employer
is capable of paying
a bigger increase than it finally offers, and
wins the resultant power play, a court may not interfere with the
result solely because
the employer could have afforded a larger
increase. It is commercially rational (whatever one feels about its
morality) for an
employer to keep its wage bill as low as possible.
In the present case the SABC profited, commercially, from not
backdating the
wage increases of SAUJ members to 1 May, but only to
1 August. The SAUJ, and its leadership, knew it was operating in a
milieu
of multiple collective bargaining units in competition with
each other. If it decided to play hardball in order to secure
possible
extra benefits for its members, it had to accept the
converse if it failed. Its pain was largely self-inflicted.
[18] The same applies to the
SAUJ’s loss of membership. By 21 August its membership had fallen
below the 20% mark. It was once
again largely the result of its own
actions. There was, and is, nothing to prevent it from
renegotiating its standing as a proper
collective bargaining agent
with the SABC. It can and should do so without seeking the court’s
assistance.
[19] It follows that the
appeal should be dismissed, with costs. It is so dismissed.
J
C FRONEMAN DJP
I
agree,
S
S NGCOBO AJP
I
agree,
C
NICHOLSON JA
Date of hearing : 1 June
1999
Date
of judgment :
Appellant’s representative
: Mr J G Van der Riet
instructed by Cheadle Thompson
and Haysom
Respondent’s representative
: Mr S Reynecke
Instructed by Bowman Gilfillan
Hayman Godfrey Inc