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[2015] ZALAC 82
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TAWUSA v Unitrans Fuel & Chemical (Pty) Ltd (JA 44/2013) [2015] ZALAC 82 (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.