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[2015] ZALAC 24
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Transport And Allied Workers Union of South Africa (TAWUSA) and Others v Unitrans Fuel And Chemical (Pty) Ltd (JA44/2013) [2015] ZALAC 24; [2015] 11 BLLR 1151 (LAC); (2015) 36 ILJ 2822 (LAC) (24 June 2015)
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 44/2013
In the matter between:
TRANSPORT AND ALLIED WORKERS UNION
OF SOUTH AFRICA
(TAWUSA)
First Appellant
W NGENDLE AND 302
OTHERS
Second and further Appellant
and
UNITRANS FUEL AND CHEMICAL (PTY)
LTD
Respondent
Heard:
12 May 2015
Delivered:
24 June 2015
Summary: – employees
embarking on strike in support of certain demands which were subject
of an appeal judgment –
judgment holding that wage
discrepancies among employees falling outside bargaining council’s
jurisdiction and that employee
entitled to strike – employer
contending that employees’ interpretation of the judgment to
extend wage discrepancies
to all employees not consonant with the
judgment. Employees’ demands affecting wages and costs of
employer and are subject
to collective bargaining - employees demand
falling within issues negotiated at the bargaining council and
excluded from strike
– Labour Court’s judgment upheld -
appeal dismissed.
Coram: Davis, Ndlovu
et
Landman JJA
JUDGMENT
DAVIS JA
Introduction
[1]
This
is an appeal against the judgment of the court
a
quo
(Bhoola J) which was delivered on 13 December 2012.
[2]
First
appellant had sued on behalf of some 93 employees who were dismissed
by respondent for participating in a six day strike from
28 October
2010 to 2 November 2010. Appellants contended that the dismissal of
the employees was automatically unfair; alternatively
procedurally
and substantively unfair. The Labour Court dismissed the appellants’
claims with costs. It is against this decision
that the appellants
have approached this Court on appeal. Before dealing with the merits
of the appeal, I am required to determine
an application for
condonation.
Condonation
[3]
Leave
to appeal was granted on 20 March 2013. Appellant filed a notice of
appeal on 22 April 2013. In terms of Rule 5(8) of the
Rules of the
Labour Appeal Court, appellant had 60 days in which to deliver the
record of appeal from the date of the order granting
leave to appeal;
that is 20 March 2013. The record of appeal should have been filed by
19 June 2013.
[4]
The
appellants served an incomplete record of appeal on 4 July 2014, more
than a year later. It appears that the appellants then
withdrew this
record on 4 July 2014 and served another record on 8 August 2014
which was also withdrawn. On 12 August 2014, appellants
served yet
another record of appeal.
[5]
On 17
July 2014, an application for condonation and reinstatement of the
appeal was filed. To the extent that it is relevant the
contents of
this application read thus:
‘
1.
The appellants requests that condonation be granted for the late
filing of the appeal
record.
2.
The late filing of the record was due to the delay in the obtaining
of the transcript
of the proceedings in the Labour Court under Case
No. JS 359/11 from I-Africa Transcriptions (Pty) Ltd as same was made
ready for
collection on or about 08 April 2014, as more fully appears
from the copy of the tax invoice attached hereto as Annexure “A”.
3.
In the circumstances, the appellants request that condonation be
granted for
the late filing of the record as there are great
prospects of success of the appeal on merits thereof, as shall be
indicated in
the paragraphs below.
RE-INSTATEMENT
OF THE APPEAL
1.
The appellants are desirous in the prosecution of the appeal as there
is a great
prospects of success of the appeal as no evidence has been
produced by the respondents that the appellants had embarked on an
unprotected
strike based on different demands than the demands that
had been allowed by the Labour Appeal Court under Case No. JA 55/10.’
[6]
Respondent
strenuously objects to this application for condonation. Mr Gordge,
the General Manager of respondent, avers in his opposing
affidavit
that the appellants had been remiss in prosecuting their appeal. If
the court reinstated the appeal, it would “have
the effect of
condoning their lax attitude in the prosecution of this matter and
denying the respondent their right to the expeditious
and final
resolution of this matter. Particularly in these circumstances where
the Appellants had very poor prospects of success.”
[7]
Mr
Wilke, on behalf of the appellants, understandably could offer no
explanation as to why so skeletal an affidavit in support of
the
appellants’ condonation application had been filed. The
affidavit contains no explanation for the delay of more than
a year
in ensuring that the appeal could be heard by this Court.
[8]
In an
application of this kind, a court must take into account the degree
of the delay in complying with the Rules, the reasons
for the delay,
the merits of the appeal and whether it is in the interests of
justice to reinstate this appeal. See in particular,
Brummer
v Gorfil Brothers Investments (Pty) Ltd and others
[2000] 5 BLLR 465
(CC) at para 33. See also
Fidelity
Security Services v Sibobi and Another
(Case No: PA 3/2012: judgment of the LAC of 12 December 2014).
[9]
Strictly,
this Court should dismiss the applications for condonation and the
reinstatement of the appeal. However, it was decided
at the hearing
to determine whether there were any merits in the appeal which might
weigh in favour of the appellants. In addition,
Mr Redding, who
appeared on behalf of the respondent, submitted that, in the
circumstances, his client would prefer if the case
was disposed of to
finality.
The merits
[10]
It is
common cause that the first appellant and certain employees embarked
upon a strike in pursuit of two demands. Those two demands
were
central to the determination of whether the strike was protected or
whether it contravened the provisions of s65 of the Labour
Relations
Act 1995 (LRA).
[11]
When
the employees initially gave notice of the strike, they relied on
four grounds being:
1.
a wage cut;
2.
wage discrepancies;
3.
a coupling allowance of R 500 per week; and
4.
a demand in relation to the transfer of the Provident fund.
[12]
Respondent
attempted to interdict the strike on the basis that all four demands
were unlawful. Respondent was unsuccessful in the
Labour Court but,
on appeal, it maintained that the first three demands fell foul of
the provisions of clauses 50(1) and (3) of
the Main Agreement of the
National Bargaining Council for the Road Freight Industry which had
jurisdiction over the parties. Clause
50(1) of the Main Agreement
provided that the forum for negotiation and conclusion of substantive
agreements and wages benefits
and other conditions of employment was
the Bargaining Council. Clause 50 (3) provided that no trade union or
employers’ organisation
could compel its negotiating partner by
way of a strike or lock-out to negotiate issues at any level other
than the council.
[13]
In
its judgment, the Labour Appeal Court
[1]
accepted that the demand for the coupling allowance of R 500 per week
was a demand for an increase in wages, an increase in the
cost to the
company and thus fell foul of clauses 50(1) and 50(3) of the Main
Agreement. However, the demand in relation to the
wage cut was not a
demand for wages but a demand that respondent restores the terms and
conditions of employment in respect of
seven employees to that which
existed prior to the termination of a particular contract to which I
shall presently make reference.
[14]
The
wage cut demand thus concerned a dispute about the unilateral change
to terms and conditions of employment. Further, the Court
held that
the dispute relating to the wage discrepancies did not fall foul of
clause 50(1) of the Main Agreement. The Court reasoned
that the claim
for wage parity was not a demand for an amount of money and therefore
did not constitute the conclusion of substantive
agreement in wages,
benefits and other conditions of employment.
[15]
Subsequent
to that judgment, the parties met on 21 and 25 August 2010. On both
occasions, respondent sought answers from first appellant
as to
precisely the demands which it had made. In respect of the wage cut,
the first appellant indicated that it sought that all
employees,
whose wages had changed since February 2009, should have their wages
restored, regardless of whether there had been
a unilateral change to
their conditions of employment. In respect of the wage discrepancy,
the first appellant stated that it demanded
that the wages of those
on the lower salary level be increased to the wages of those on the
highest level.
[16]
A
further dispute now ensued in that the respondent considered that
these demands were now different from those made previously
and hence
were demands that went beyond the scope of the judgment of the Labour
Appeal Court. A second urgent application was brought
by respondent.
The Labour Court issued an order interdicting the strike based on the
demands as articulated on 25 October.
[17]
On 29
October 2010, the same issues were then again discussed. In the
course of this meeting, first appellant’s general secretary,
Mr
Zach Mankge arrived and was briefed by the shop stewards. According
to the minutes of this meeting, appellants representatives
then made
the following statements:
‘
1.
It is illegal that the company reduce employees’ rates without
any reasons;
2.
In essence, there should not be any reduction on rates;
3.
In wage discrepancies, e.g 20-40 [everyone should be paid equally].
’
[18]
It
appears that respondent’s attorneys wrote to first appellant,
warning that, on the basis of these demands, a strike would
be
illegal. Nonetheless, the strike began on the afternoon on 28 October
2010.
[19]
The
crisp question for determination was whether, in terms of the Labour
Appeal Court’s judgment to which I have made reference,
appellants had been prohibited from striking in respect of those
demands relating to wage discrepancies. This issue thus requires
a
careful engagement with the judgment of the Labour Appeal Court.
The Labour Appeal Court
[20]
In
his judgment, on behalf of a unanimous court, Waglay DJP (as he then
was) referred to clauses 50(1) and 50(3) of the Main Agreement,
to
which I have already made reference. The learned judge then said the
following, and its importance necessitates that it be reproduced
in
full:
‘
It
is clear that in terms of this clause all and any negotiations in
relation to wages and substantive issues must be negotiated
at the
Bargaining Council and that neither party may resort to industrial
action (strike or a lock-out) concerning these issues.
The Main
Collective Agreement also goes on to define “
substantive
issues
”
as “
all
issues involving costs and affecting the wage packets of employees.
’
According
to the appellant the first three demands of the first respondent,
described as “
wage discrepancies
”; “
wage
reduction
” and “
Coupling R 500 pw
” are
all related to and connected with wages and are substantive issues
and as such the first respondent is prohibited in
terms of clause 50
(1) and (3) read with s 65 (1) (a) and (3) (a) (i) from calling upon
its members to strike in order to secure
these demands. I
accept that where a demand is made for an increase in remuneration or
for remuneration to be paid in relation
to a particular aspect of
employment such demands related to wages and are substantive issues.
If the demands as we have
them here are about wages and substantive
issues then, as appellant has properly argued, the first respondent
is prohibited from
calling on its members to embark on a strike in
respect of those issues.
I
am however not persuaded that the first two demands made by the first
respondent are demands which relate to an increase in wages.
Seen in the context of what has transpired at the appellant’s
work place it is clear that the aforementioned demands relate
to the
fact that the appellant unilaterally decided to reduce the wages of
those if its employees who previously serviced the Shell
contract for
the appellant. When appellants contract with Shell came to an
end it did not seek to reach an agreement (at
least not with the 7
employees referred to earlier) with those employees who decided to
remain in the appellant’s employ
but reduced their wages.
The 7 employees were simply paid a lesser salary. This
reinforces the first respondent’s
averment that the appellant
unilaterally reduced the wages of its employees. Appellant’s
response is that the Shell
contract was of a greater value than the
present contracts on which these ex-Shell drivers were now placed.
This may be so,
but this does not mean that the appellant is entitled
to unilaterally enforce a reduction in salary without concluding an
agreement
with the employees. The employees are entitled to
demand that the appellant not apply wage discrepancies and wage
reduction
unilaterally and such demand is not a demand that seeks to
increase their wages but to undo the appellant’s unilateral
implementation
of a change in wage rates and reduction in wages.
As
counsel for the first respondent argued the demand for wage parity is
not a demand for an amount of money but requires of the
appellant to
adjust wages so as to arrive at a uniform level of remuneration for
employees performing the same work albeit on different
contracts.
The
demands of “
wage
discrepancy
”
and “
wage
cut
”
are thus not demands that fall within the purview of clause 50 (1)
and/or (3) of the Main Collective Agreement and are therefore
not
issues in respect of which the first respondent is prohibited from
calling upon its members to strike
.’
[2]
[21]
Waglay
DJP then concluded as follows:
‘
In
the circumstances I am of the view that the first respondent’s
demands that the appellant implement a system of wage parity
for the
drivers irrespective of which contract they service and that there be
no reduction in salary without there being an agreement
to that
effect are demands which fall outside the ambit of clauses 50 (1) and
(3) of the main Collective Agreement and as such
the first respondent
is not prohibited in terms of s 65 (1) (a) and (3) (a) (i) of the LRA
from calling upon its members to strike
in respect of these
demands.’
[3]
[22]
This
judgment was founded on a central proposition, namely that all
negotiations in relation to wages and substantive issues are
required
to be conducted at the Bargaining Council. Neither party may resort
to industrial action concerning these defined issues.
Substantive
issues are regarded as “all issues involving costs and
affecting the wage packets of employees”.
[23]
It
was for this reason that Waglay DJP came to the conclusion that the
first demand fell outside the scope of the bargaining agreement
and
accordingly was one which could be the subject of industrial action.
[24]
This
demand must be viewed within the following factual context:
Respondent runs a haulage business and conveys goods such as
petroleum
products and oxygen in bulk. It had a contract with Shell
Petroleum Company to convey its products for a period of five years.
This contract terminated in February 2009. 110 drivers in
respondent’s employ were affected by the termination of this
contract.
All but 31 obtained employment elsewhere. Respondent
incorporated 31 drivers in its business; that is to perform other
haulage
contracts. However, the salaries of these drivers were
reduced. Respondent sought to ensure that these drivers signed
contracts
to the employment which indicated their acceptance of the
reduced salary. Seven of the 31 drivers (the Shell-7) refused to sign
these contracts but continued to work for respondent. Notwithstanding
this refusal, respondent implemented the reduction and continued
to
pay them accordingly.
[25]
This
description of the initial dispute reveals clearly why Waglay DJP
concluded that this wage demand constituted unilateral action
on the
part of the respondent and fell outside the bargaining agreement and
thus could be the subject of industrial action. It
is for this reason
that Waglay DJP noted “the employees are entitled to demand
that the appellant not apply wage discrepancies
and wage reduction
unilaterally and that such demand is not a demand that seeks to
increase their wages but to undo the appellant’s
unilateral
implementation of a change in wage rates and reduction in wages.”
[4]
[26]
The
first appellant issued a strike notice on 27 October 2010. To the
extent that it is relevant, it read thus:
‘
2.
We confirm that our members will proceed with the strike on the basis
of the very same
demands, as were during Labour Appeal Court
judgment, and as contained in annexure “C” to the
founding affidavit of
your urgent application (today) being as
follows:
(I)
Wage discrepancies – there must been wage discrepancy between
employees who
perform work but on different contracts.
(II)
Wage cut – Former Shell contract employees must earn what they
used to earn under
Shell contract plus annual increases.’
Appellants’ case
[27]
Mr
Wilke contended that the “wage discrepancy” and “wage
cut” are not two facets of the same dispute. They
were separate
and distinct disputes. The primary purpose of the wage discrepancy
demand was, in his view, to achieve wage parity
for the same work
across different haulage contracts between the employer and its
customers. Mr Wilke conceded that the salary
adjustment to procure
wage parity would, of necessity, require an agreement at plant level,
the conclusion of which would have
involved further costs for the
respondent and affected the wage packages of employees.
However, in his view, the Labour Appeal
Court had not confined the
meaning of word “adjust” to a reduction in wages but left
it to be determined by way of
the forces of an industrial power play.
Accordingly, the appellants were entitled, on the basis of the
judgment of the Labour Appeal
Court, to have taken strike action to
remedy a wage disparity in respect of all of the respondent’s
employees, provided that
the primary purpose of the demand was to
procure wage parity across the haulage contracts.
[28]
In a
further note filed after the hearing, Mr Wilke referred to the papers
filed in the application brought by respondent before
the Labour
Court, which papers then formed the basis of the appeal before the
Labour Appeal Court.
[29]
In
his view, paragraph 21 of the founding affidavit in the urgent
application suggested that, from respondent’s perspective,
the
“wage discrepancies/cut” issue was confined to the
Shell-7. However, in the answering affidavit, appellants clearly
explained that the wage discrepancy demand pertained to all employees
across respondent’s various haulage contracts. Mr Wilke
submitted that respondent’s reply to the contents of these
paragraphs of the answering affidavit in its replying affidavit
indicated that respondent understood that the wage discrepancies
demand was not confined to the Shell-7.
Evaluation
[30]
During
cross-examination, Mr Badenhorst, who gave evidence on behalf of
respondent, said that at a meeting between the parties on
1 November
2010, a demand had been made for all drivers to be paid at R 38.00
per hour. Mr Badenhorst conceded that this proposal
“rings a
bell” but then noted that it was a proposal for an increase
that would have meant a significant increase in
costs for the
respondent because of the effect on wages. This demand could only
have been made at the Bargaining Council.
[31]
The
only witness for the appellants, Mr Wellington Ngedele, agreed that
the demand was for a minimum of R 38.00 per hour. He conceded
under
cross-examination that this would have involved an increase in costs
for the respondent but testified that, since respondent
had created
the inequality in the first place, it was required to bear the costs
of the remedy.
[32]
This
evidence, read within the factual context of the dispute with which
the Labour Appeal Court had been confronted and which gave
rise to
the judgment of Waglay DJP, confirms that the Court could not have
had in mind that the demand for wage discrepancy was
one which would
affect respondent’s entire workforce. The demand it considered
to be the legitimate subject matter of a strike
was a demand which
was linked to the earlier demand with regard to wage cuts, triggered
by the termination of the Shell contract.
Were any other finding to
be made, it would make nonsense of the central finding of Waglay DJP,
namely that neither party may resort
to industrial action concerning
wages and substantive issues; that is, issues
involving
costs
and affecting the wage brackets of employees. It was because the
Labour Appeal Court had been cognisant of this foundational
proposition,
that it was at pains to emphasise “the employees
were entitled to demand that the appellant not apply wage
discrepancies
and wage reductions unilaterally and such a demand is
not a demand that seeks to increase their wages but to undue the
appellants
unilateral implementation of the change in wage rate and
reduction of wages”.
[5]
[33]
The
interpretation given to the judgment by Mr Wilke notwithstanding, it
is evident as to what was intended by the judgment, which
intention
was correctly determined by Bhoola J in the court
a
quo,
who held:
‘
The
LAC clearly understood both the wage discrepancy and wage cut demand
to related to the restoration of the position of wages
of the Shell-7
prior to the unilateral alteration… The strike in
relation to these two demands, therefore
seen as demands
relating to implementing the system of wage parity and no further
unilateral reductions in salary, was therefore
permissible
.’
That there were disputes on the papers
filed before the Labour Court in the first application is hardly
surprising. As I have indicated,
there was a dispute relating to the
demands made by the appellants. However, the Labour Appeal Court
clearly held that substantive
issues affecting wages and thus costs
of the respondent were subject to collective bargaining. Manifestly,
the way Mr Wilke described
the appellants’ demand in respect of
a wage discrepancy fell within this categorisation; that is it stood
outside the confines
of the area of a protected strike as defined by
the Labour Appeal Court.
[34]
To
summarise: this case stands to be dismissed on two bases, namely
that, given the non-existent explanation for the delay of a
year
before the appeal could be prosecuted, the application for
condonation stands to be dismissed. This is particularly so because,
on the basis of the finding to which I have arrived, there are no
prospects of success on appeal. However, given that the matter
was
exhaustedly canvassed before this Court in oral argument, and given
the finding to which I have arrived, the appeal stands
to be
dismissed on its merits.
[35]
Accordingly,
the appeal is dismissed with costs.
_______________
Davis JA
Ndlovu and Landman
JJA concurred
APPEARANCES:
FOR THE APPELLANTS:
Adv F J Wilke
Instructed by
Masango Attorneys
FOR THE RESPONDENT:
A Redding SC
Instructed by
Cliffe Dekker Hofmeyr Inc
[1]
The
judgment is reported as
Unitrans
Fuel and Chemical (Pty) Ltd v Transport and Allied Workers Union of
South Africa
and
Another [2011] 2 BLLR 153 (LAC).
[2]
At paras 17-21.
[3]
At para 25.
[4]
At para 19.
[5]
At para 25.