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[2016] ZALAC 22
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G4S Cash Solutions SA (Pty) Ltd v Motor Transport Workers Union of South Africa (MTWU) and Others (JA51/15) [2016] ZALAC 22; (2016) 37 (ILJ) 1832 (LAC) (26 May 2016)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA51/15
In the matter between:-
G4S
CASH SOLUTIONS SA (PTY) LTD
Appellant
and
MOTOR
TRANSPORT WORKERS UNION
OF
SOUTH AFRICA (MTWU)
First Respondent
NATIONAL
BARGAINING COUNCIL FOR
THE
ROAD FREIGHT AND LOGISTICS INDUSTRY
Second Respondent
Employees
(Listed in Annexure
“
X”
to the Notice of
Motion)
Third to Further Respondents
Heard:
03 May 2016
Delivered:
26 May 2016
Summary:
Coram:
Davis, CJ Musi
et
Sutherland JJJA
JUDGMENT
DAVIS JA
Introduction
[1]
This
case concerns an appeal against the judgment of the Labour Court of
22 June 2015, in which Whitcher J ordered,
inter
alia
,
that the third to further respondents (respondents) were not obliged
to work in excess of the six-day week provided for in their
contracts
of employment. The court
a
quo
also ordered that warnings and dismissals which had been issued to
the first respondent’s members by the appellant should
be set
aside.
[2]
The
respondents conceded that the court
a
quo
did not enjoy the requisite jurisdiction to make the second order and
accordingly this issue is no longer one which requires determination
by this Court. The crisp issue for determination concerns the
question of the alleged obligation to work on Sundays and the
consequences
of the refusal by the respondents to do so.
Factual matrix
[3]
It is
common cause that the relevant employees were security guards, road
workers and counting house employees, all of whom had
been employed
by the appellant. The founding affidavit contains the contract of
employment entered into between appellant and the
relevant employees.
Clause 6 of this contract provides thus:
‘
WORKING
HOURS
6.1
The employee shall work a six-day week and his ordinary hours of work
will be 45 hours a
week.
6.2
The starting and finishing times of work are determined by
operational requirements and
may vary from day to day.
6.3
If the employee has to work more than 45 hours a week, this
additional time will be counted
as overtime.’
[4]
Clause
7 deals with the question of overtime as follows:
‘
OVERTIME
7.1
The company undertakes to give the employee reasonable prior notice
if overtime is to be
worked, except in emergency situations when
overtime shall be worked without any prior notice. The employee may
not unreasonably
refuse to work any overtime requested by the
company.
7.2
All overtime worked shall be paid at the prescribed legislated rate.’
[5]
The
founding affidavit also refers to the relevant collective agreement
and, in particular to Part 2, Clause 3 thereof, which provides:
‘
PART
2: HOURS OF WORK
3.
Ordinary hours of work:
(1)
The ordinary hours of work of an employee may not exceed 45 in any
week.
(2)
Subject to sub-clause (1),
ordinary hours of work per day may not exceed-
(a)
nine hours for employees who work a five-day week;
(b)
eight hours for employees who work a six-day week, provided that an
employee’s
ordinary hours of work may not exceed five hours on
a Saturday.
(3)
Ordinary hours of work do not include meal intervals provided for in
terms of clause
5.’
[6]
Respondents
alleged that during 2004, appellant required its employees to work on
Sundays and public holidays in order to meet the
demands of its
clients. The request was made on the basis that the work
would be voluntarily and would be remunerated
at a fixed fee to be
increased annually at G4S’s discretion on 1 May. According to
the founding affidavit, this payment was
increased through
negotiations between the parties at plant level, a point disputed by
appellant. Respondents conceded that the
increase was within the sole
discretion of appellant. It is common cause however that appellant
decided in May 2015 not to increase
the amount of R 831 for Sunday
work. It is further common cause that the employees refused to
volunteer their services on
Sundays and public holidays thereafter
and were accordingly disciplined by appellant. One person was
dismissed and numerous other
employees received final written
warnings. First respondent advised its members to continue rendering
services on Sundays when
requested to do so by appellant, pending a
resolution of the dispute.
[7]
By
the time the case was argued on appeal before this Court, the
question for resolution of the dispute had been distilled to the
issue of whether work on Sundays constituted a mutual interest
dispute and/or a dispute concerning the interpretation and
application
of a collective agreement.
Appellant’s case
[8]
Mr
Boda, who appeared on behalf of the appellant, submitted that this
Court was dealing with a mutual interest dispute which meant
that,
when the individual respondents refused to work on Sundays, pending
an increase in the remuneration received for this work,
they had
engaged in a strike in order to promote a particular interest.
Accordingly, he contended that the dispute was not one
which fell
within the jurisdiction of the court
a
quo
.
In terms of s64(1) of the Labour Relations Act 66 of 1995 (‘the
Act’), an interest dispute of this kind should have
been
referred to the relevant bargaining council or the Commission for
Conciliation Mediation and Arbitration. It was not a dispute
of right
and the court
a
quo
had no jurisdictional basis on which to deal with the matter.
[9]
Mr
Boda submitted that, by refusing to work on Sundays, the individual
respondents have brought themselves within the scope of s213
of the
Act. Section 213 defines a strike to mean:
‘
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 or employee.’
In support of this submission Mr Boda
referred to the decision of this Court in
National Union of
Mineworker obo Employees v CCMA and Others
[2012] 1 BLLR 22
(LAC)
(
NUM
).
Evaluation
[10]
The
judgment of Mlambo JP in the
NUM
case,
supra,
makes clear that the definition of strike cannot be expanded
seamlessly to accommodate a refusal to work within the context of
the
present dispute. At paragraph 16 of his judgment, the learned Judge
President says:
‘
The
affected employees refused to engage in their normal employment duty,
which was to work on a particular shift. By refusing to
observe the
rules of the appellant and to carry out the instructions to continue
to work in terms of the contract, they had refused
to work. In
this case, the action was concerted, in that a number of employees
had participated in a decision to withhold
their labour. As to the
third requirement, there was a common purpose in so far as the
employees were concerned, being to obtain
redress for the third
respondent’s decision to withhold payment.
’
[11]
In
the present case, the question which must be asked is whether the
relevant employees refused to engage in employment pursuant
to a duty
imposed upon them which was sourced in their contracts of employment.
As noted, clause 6 of the contract of employment
provided that the
employees shall work a six-day week and that their ordinary hours of
work would be 45 hours per week. The fact
that the contract provided,
in addition, that overtime might be required could not be construed
to mean that, in effect, the relevant
employees were obliged to work
a seven-day week. To the extent that there is any doubt, clause 7
clarifies the position: ‘
The
employee may not unreasonably refuse to work any overtime
requested
by the company’
.
(My emphasis). The contract of employment made it clear that there
was no obligation upon employees to work every Sunday, pursuant
to
which there was a corresponding right enjoyed by the appellant to
demand that the relevant employees would work a seven-day
week.
[12]
This
conclusion means that when the employees refused to continue to work
on Sundays, the refusal was not based upon any right sourced
in the
contract which was thus legally enjoyed by the appellant. A
refusal to continue to work on Sundays did not fall within
the
definition of strike as set out in s 213 of the Act.
A tacit agreement?
[13]
Cognisant
of this difficulty, Mr Boda submitted that, given the practice by
which the individual employees had worked on Sundays,
there was a
tacit agreement to work on Sundays. It became the source of the right
enjoyed by the appellant. Hence, the refusal
to continue to work on
Sundays constituted a dispute of interest regarding the amount of
remuneration which the employees demanded
in order to continue to
fulfil their obligations sourced in the tacit agreement.
[14]
Courts
are generally slow to import a tacit term into a contract. See
Alfred
McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
1974 (3) SA 506
(A) at 532. More recently Brand JA in
City
of Cape Town (CMC Administration) v Bourbon – Leftley NNO
and
Another
2006 (3) SA 488
(SCA) (
City
of Cape Town
)
at para 19-20 said:
‘
As
stated in these cases, a tacit term is based on an inference of what
both parties must or would necessarily have agreed to, but
which, for
some reason or other, remained unexpressed. Like all other
inferences, acceptance of the proposed tacit term is entirely
dependent on the facts. But, as also appears from the cases
referred to, a tacit term is not easily inferred by the courts.
The reason for this reluctance is closely linked to the postulate
that the courts can neither make contracts for people nor supplement
their agreements merely because it appears reasonable or convenient
to do so (see e.g.
Alfred
McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
1974
(3) SA 506
(A) at 532H). It follows that a term cannot be inferred
because it would, on the application of the well-known”
officious
bystander” test, have been unreasonable of one of the
parties not to agree to it upon the bystander’s suggestion. Nor
can it be inferred because it would be convenient and might therefore
very well have been incorporated in the contract if the parties
had
thought about it at the time. A proposed tacit term can
only be imported into a contract if the court is satisfied
that the
parties would necessarily have agreed upon such a term if it had been
suggested to them at the time (see e.g.
Alfred
McAlpine
(
supra
)
at 532H - 533B and
Consol
Ltd t/a Consol Glass (supra)
at para [50]. If the inference is that the response by one of the
parties to the bystander’s question might have been that
he
would fist like to discuss and consider the suggested term, the
importation of the term would not be justified.
In
deciding whether the suggested term can be inferred, the court will
have regard primarily to the express terms of the contract
and to the
surrounding circumstances under which it was entered into. It
has also been recognised in some cases, however,
that the subsequent
conduct of the parties can be indicative of the presence or absence
or of the proposed tacit term.’
[15]
In
the present case, the version offered by the appellant was that, for
the past 11 years, employees had worked on Sundays, albeit
that the
practice was never recorded in writing nor was it incorporated in the
terms of the respondents’ contracts of employment.
The
practice, to the extent that it was sought to be transformed into a
tacit agreement, appears to be in direct contradiction
to the express
terms of clauses 6 and 7 of the individual contracts of
employment. Further to the extent that there was a
tacit term, it
would have to include the amount of the remuneration required to be
paid by the appellant for the work so done on
the relevant Sundays.
As Brand JA made clear in the
City
of Cape Town
case,
supra
that the tacit term must cover the full extent of the inferred
agreement. It appears that, until 2015, the rate of remuneration
had
been increased on an annual basis. The fact that the appellant had
refused to increase the rate in May 2015 indicates that,
even if a
tacit term could be inferred that the respondents were required to
work on Sundays at the requisite rate of remuneration,
the tacit term
had been breached by the unilateral act of the appellant. The better
approach, however, is that there was no tacit
agreement proved by
appellant which was sufficient to justify the case made by the
appellant.
The applicability of the collective
agreement
[16]
Although
not pursued in oral argument, appellant contended in its written
heads of argument that the court
a
quo
had erred in relying on the provisions of the collective agreement
for its conclusion that the respondents were not obliged to
work in
excess of six days. For this reason, appellant contended that, as the
dispute turned on the interpretation and application
of a collective
agreement, s24 of the Act was applicable; hence the court
a
quo
was not clothed with the necessary jurisdiction to hear the dispute.
[17]
The
relevance of s24 of the Act to disputes of this kind has been
luminously resolved by this Court in
Hospera
SA obo Tshambi v Department of Health, KwaZulu-Natal
[2016] ZALAC 10.
In his judgment, Sutherland JA held at para 16 that,
when dealing with a dispute, an arbitrator is required:
To
determine the true dispute between the parties. To that end, it is
necessary to establish the relevant facts and construe the
category
of dispute correctly. An arbitrator must make an objective finding
about what is the dispute to be determined.
’
[18]
What
is required of a court in this case is, on the basis of the objective
facts, to determine the true nature of the dispute between
the
parties. The dispute was set out in the founding affidavit of
respondents. In terms of their contracts of employment, they
contend
that third to further respondents were not obliged to work a
seven-day week. That the court
a
quo
sought to refer to the provisions of the collective agreement in
order to clarify the meaning of the relevant clauses in the
individual
contracts of employment did not convert the dispute
between the parties from one sourced in the individual contracts to
one based
upon the collective agreement. Thus s24 of the LRA is not
applicable to the present case.
Conclusion
[19]
In my
view, there is no justifiable basis to conclude that the dispute
between the parties was one of interest which would have
triggered
off a different dispute resolution mechanism from recourse to
the
Labour Court which is empowered to deal with disputes of
right .
Further, appellant did not prove, on the probabilities, that there
was a tacit agreement sufficient to justify its contention that
respondents were required to work on each and every Sunday and that
their refusal to do so constituted a strike within the meaning
of
s213 of the Act.
[20]
For
these reasons, the appeal is dismissed with costs.
_________________
Davis JA
C
J Musi and Sutherland JJA concur in the judgment of Davis JA
APPEARANCES:
FOR
THE APPELLANT:
Adv F D Boda
Intrusted by Norton Rose Fulbright SA
Inc
FOR
THE THIRD TO FURTHER RESPONDENTS: Adv E
Tolmay
Instructed Kruger
Attorneys