Eskom v National Union of Metalworkers of South Africa and Others (JA6/02) [2002] ZALAC 20 (4 October 2002)

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[2002] ZALAC 20
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Eskom v National Union of Metalworkers of South Africa and Others (JA6/02) [2002] ZALAC 20; [2002] 12 BLLR 1153 (LAC); (2002) 23 ILJ 2208 (LAC) (4 October 2002)

IN THE
LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD AT
JOHANNESBURG)
Case
Number: JA 6/02
In the
matter between:
ESKOM Appellant
and
NATIONAL
UNION OF
METALWORKERS
OF SOUTH AFRICA First Respondent
G
DAVIS AND OTHERS Second to further Respondents
JUDGMENT
Du
Plessis AJA
:
The first
respondent, a trade union, represents the further respondents who
are employees of the appellant. The recognition agreement
between
the appellant and the first respondent provides for annual wage
negotiations between the parties.
At the
negotiations in 2001 the parties could not agree on the percentage
wage increase. Agreement on other conditions of employment
could
also not be reached. On 29 June 2001 the first respondent declared
a dispute in respect of the issues on which agreement
could not be
reached. I shall refer to this dispute as “the main dispute”.
The main dispute was referred to conciliation.
A conciliation
meeting took place on 12 July 2001. The dispute was not resolved
and on 18 July the mediator issued a certificate
to that effect.
In the
meantime, on 13 July, the appellant notified its employees that it
was to implement its suggested wage increases with effect
from 1
July 2001 and payable at the end of July. According to the first
respondent, the applicant’s decision to implement its
suggested
wage increase gave rise to a new dispute (“the second dispute”).
The first respondent contends that the second
dispute is one “about
a unilateral change to terms and conditions of employment” and
therefore is a dispute as provided for
in section 64(4) of the
Labour Relations Act, 66 of 1995 (“the Act”).
On 18
July the first respondent wrote to the appellant that it (the first
respondent) had, on the same date, referred the second
dispute
(about the applicant’s intended implementation of the wage
increase) to the Commission for Conciliation, Mediation and
Arbitration (“the CCMA”). Based on its contention that the
second dispute wa one as provided for in section 64(4), the first
respondent also required the appellant to undertake not to implement
the wage increase. (See section 64(4)(a) and 64(5) quoted
in
paragraph [7] hereunder.)
On the
following day, 19 July, the first respondent (together with other
interested trade unions) gave the requisite notice in terms
of
section 64(1) of the Act that it intended to embark upon strike
action in respect of the main dispute. As regards the second
dispute, the appellant and the first respondent could not agree and
on 20 July 2001 the CCMA certified accordingly.
On 23
July the first respondent sought an undertaking from the appellant
that, for a period of thirty days from 18 July, it would
not
implement the wage increase. The undertaking was not given. Still
on 23 July, the respondents applied to the Labour Court
for an
interdict restraining the appellant from implementing the wage
increase for a period of 30 days from the date whereon the
second
dispute was referred to the CCMA (18 July). On 25 July the Labour
Court granted an order to that effect. The chronology
of events set
out above shows that the application in the Labour Court was
launched and the order in that court granted after the
CCMA had
certified that the second dispute remained unresolved. The
appellant now appeals against the Labour Court’s judgment
and
order.
Section
64(4) and (5) of the Act provide as follows:
Any
employee who or any trade union that refers a dispute about a
unilateral change to terms and conditions of employment to a
council or the Commission in terms of subsection (1)
ྭ
(a)
may, in the referral, and for the period referred to in subsection
(1)
ྭ
(a)—
a require
the employer not to implement unilaterally the change to terms and
conditions of employment; or
b if
the employer has already implemented the change unilaterally, require
the
employer
to restore the terms and conditions of employment that applied before
the
change
.
The
employer must comply with a requirement in terms of subsection (4)
within 48 hours of service of the referral on the employer
.”
For the
appellants Mr Sutherland argued that the appellant’s
implementation of its suggested wage increase constituted the use
of
economic power in relation to the main dispute. As such, he argued,
it did not constitute a unilateral change to terms and
conditions of
employment. Mr Sutherland further argued that, for the same reason,
the intended implementation of the wage increase
did not constitute
a dispute separate from the main dispute: It was an integral part of
the main dispute. The argument raises
several questions as to the
correct interpretation of the phrase “
refers
a dispute about a unilateral change to terms and conditions of
employment
”.
A further question that was debated in argument was whether an
improvement in terms and conditions of employment can be the
subject
of a dispute in terms of section 64(4). It is unnecessary to
express any view on these and other questions raised in
respect of
the correct interpretation of section 64(4) and I refrain from doing
so. I shall assume for the purpose of this judgment
that the
appellant’s action constituted a unilateral change in terms and
conditions of employment. I shall further assume that
it gave rise
to a second dispute, separate from the main dispute. I shall also
assume that the first respondent properly referred
the second
dispute to the CCMA in terms of section 64(4). I shall finally
assume that the first respondent was entitled to the
rights set out
in sections 64(4)(a) and that the appellant incurred the obligation
provided for in section 64(5).
In terms
of section 64(4) and (5) an employer may in the relevant
circumstances not implement a unilateral change for “the period
referred to in subsection (1)(a)” of section 64. Section 64(1)(a)
provides:
“
(1)
Every
employee has the right to strike and every employer has recourse to
lock-ou
t
if—
the
issue in dispute has been referred to a council or to the
Commission as required by this Act, and—
(i) a
certificate stating that the dispute remains unresolved has been
issued; or
(ii) a
period of 30 days, or any extension of that period agreed to between
the parties to the dispute, has elapsed since the referral
was
received by the council or the Commission
... “
The Labour
Court held that there “is only one period referred to in section
64(1)(a) and that is the period of 30 days or any extension
thereof
which is referred to in section 64(1)(a)(ii)”. The Labour Court
further held that the “reference in section 64(1)(a)(i)
to a
certificate stating that the dispute remains unresolved and the issue
of such a certificate is not a reference to a period of
time but to
the happening of an event ...”.
I agree
that the period of 30 days in section 64(1)(a)(ii) is the only one
referred to by reference to a number of days, but I cannot
agree
that it is the only period referred to in section 64(1)(a). The
primary meaning of the word “period” is “a length
or portion
of time” (
The
Concise Oxford Dictionary
sv
“period
”).
Such a length of time can be expressed in a number of time units
such as seconds, minutes, hours or days. It can also be
expressed
by reference to the events marking the beginning and the end of the
period. The latter is no less a reference to a period
than the
former.
There are
two periods referred to in section 64(1)(a). Each one commences
when the dispute is referred to a council or to the CCMA.
The one
ends when a certificate is issued in terms of section 64(1)(a)(i).
The other one ends 30 days after the referral of the
dispute
(section 64(1)(a)(ii)). The question is whether it is the purpose
of section 64(4) to refer to only the one described
in terms of a
number of days. Section 64(4) refers to “the period of time”
which literally means that section 64(4) pre-supposes
that section
64(1)(a) in turn refers to only one period. It is unclear on such a
reading to which of the two periods section 64(4)
refers. The two
periods in section 64(1)(a) are mutually exclusive in the sense that
if the one applies, the other cannot. Therefore,
a reference in
section 64(4) to “the periods” would have been nonsensical. The
singular “period” is used in section 64(4)
because the purpose
is to refer to the period which is applicable in the circumstances
of each case.
The above
interpretation of section 64(4) accords with the clear purpose of
section 64(4) and (5) which is to retain or restore
the
status
quo
until the conciliation stage regarding a dispute about a unlateral
change to terms and conditions of employment is over and both
parties are in a position to resort to the use of economic power.
I
conclude that the words “
for
the period referred to in subsection (1)(a)
”
where they appear in section 64(4) refer to either the period
mentioned in section 64(1)(a)(i) or to the one referred to in
section 64(a)((ii), as the case may be. (See
Monyela
& Others v Bruce Jacobs t/a LV Construction
(1998) 19 ILJ 75 (LC) at 81B to G;
Nkutha
and Others v Fuel Gas Installations (Pty) Ltd
92000) 21 ILJ 218 (LC) at 230 paragraphs 75 and 76)
When the
application was brought in this case and also when the court
a
quo
issued the order, the period referred to in section 64(1)(a)(i) had
expired. The second dispute had been referred to the CCMA
and the
latter had issued a certificate stating that the second dispute
remained unresolved. It follows that, when the court
a
quo
issued its order, even on the assumptions I have made, the appellant
no longer had an obligation not to implement the wage increase.
The
court
a
quo
should accordingly not have issued the order it did. The appeal
must succeed.
Regarding
costs, counsel were agreed that costs should follow the event. Only
the first respondent opposed the appeal and it must
therefore pay
the costs of the appeal.
The
following order is made:
1 The
appeal succeeds.
2 The
order of the Labour Court is set aside and substituted with the
following order: “
The
application is dismissed with costs
”.
3 The
first respondent is ordered to pay the costs of the appeal.
BR du
Plessis
Acting
judge of the Labour Appeal Court.
I
agree.
RMM
Zondo
Judge
President of the Labour Appeal Court.
I
agree.
DM
Davis
Acting
judge of the Labour Appeal Court.
Date
of hearing: 22 August 2002
Date
of judgment: 4 October 2002
For
appellant: Mr Patel
Instructed by: Dison
Ndlovu Attorneys
For
respondent: Adv R. Sutherland SC
Instructed by: Ruth
Edmonds Attorneys