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[2017] ZALAC 47
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Imperial Cargo Solutions v SATAWU and Others (JA63/2016) [2017] ZALAC 47; (2017) 38 ILJ 2479 (LAC); [2017] 12 BLLR 1189 (LAC) (1 August 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA63/2016
IMPERIAL
CARGO SOLUTIONS
Appellant
and
SATAWU
First Respondent
INDIVIDUAL
RESPONDENTS LISTED IN ANNEXURE
“
A”
TO THE NOTICE OF
MOTION
Second Respondent
Road
Freight
Association
Amicus Curiae
Heard:
03 May 2017
Delivered:
01 August 2017
Summary:
Cancellation of a collective agreement in terms of which employees
were required to perform certain
ancillary duties in addition to
their main functions – whether those ancillary duties survived
the cancellation so as to
be incorporated into the employees’
contract of employment.
Held
that in the absence of any other agreement creating an obligation on
the employees to perform the ancillary duties, the obligation
fell
away upon cancellation of the collective agreement. Similarly, the
obligation of the employer to pay the employees in lieu
of ancillary
functions in terms of the collective agreement fell away. Labour
Court’s judgment upheld – appeal dismissed
with costs.
Coram:
Tlaletsi AJP,
Davis JA and
Kathree-Setiloane AJA
JUDGMENT
TLALETSI
AJP
[1]
This is an appeal
against the judgment of the Labour Court (Prinsloo J) which
discharged the interim interdictory relief granted
in favour of the
appellant, interdicting the first and second respondents against a
threat to withdraw from performing certain
ancillary duties as truck
drivers. The issue that had to be considered is whether the second
and further respondents listed in
Annexure A to the Notice of Motion
(the employees) were obliged to perform the aforesaid ancillary
duties and if that be the case
whether their refusal to perform such
ancillary duties would constitute unprotected strike action. The
appeal is with leave of
the Labour Court.
Background
facts
[2]
The appellant, Imperial
Cargo, is a logistic company with a large fleet of trucks. It
transports freight cargo, consumable goods
and other goods on behalf
of various clients throughout the country. Appellant’s business
in so far as it relates to the
respondents, falls within the
jurisdiction of the National Bargaining Council for the Road Freight
and Logistics Industry (the
bargaining council). Drivers’ wages
are regulated by way of a collective agreement concluded in the
bargaining council and
extended across the road freight industry (the
main collective agreement). The main collective agreement
comprehensively regulates
all aspects of driver’s remuneration.
[3]
The
appellant employs the employees as drivers. These employees are all
members of the first respondent, South African Transport
and Allied
Workers Union (SATAWU), a trade union registered in terms of the
Labour Relations Act (the LRA).
[1]
The transport of freight cargo by truck necessitates safety measures
to prevent goods falling off the truck. Tarpaulins, straps
and ropes
depending on the goods transported are used to secure the safety of
the cargo. In the past, the appellant employed drivers’
assistants whose duties were to assist the driver to load and offload
the cargo, and also to perform the “tarping”
duties.
These duties shall be collectively referred to as “ancillary”
duties or functions. It is common cause that
in 2007, the appellant
abolished the position of drivers’ assistants.
[4]
The consequence of
doing away with the drivers’ assistants’ posts was that a
decision had to be taken as to who would
thereon perform the duties
previously done by the drivers’ assistants. To this effect, the
appellant and the first respondent
concluded a collective agreement
in 2007 known as the “Guard Fee Agreement” (the
collective agreement). In terms of
this collective agreement, it was
left to the drivers to either perform the ancillary duties themselves
or appoint assistants to
undertake those ancillary duties. An agreed
amount of money was in addition to their normal salaries paid in lieu
of the ancillary
duties. The drivers could keep the money for
themselves if they personally performed the ancillary duties or pay
assistants they
employed specifically for such duties. The agreed
amount was subject to an annual increase.
[5]
In 2015, SATAWU wanted
to negotiate an increased guard fee above the agreed annual increase
rate. When the appellant refused to
meet the demand, SATAWU informed
it that it was cancelling the collective agreement on a one month’s
notice. SATAWU also
informed the appellant that as from 01 February
2015, the drivers would no longer perform the ancillary duties as
provided in the
collective agreement. The appellant was then advised
to make the necessary arrangements to ensure that the ancillary
duties be
carried out by persons other than the drivers.
[6]
The appellant viewed
the cancellation of the collective agreement and refusal to perform
ancillary duties as unprotected strike
action. To this effect, the
appellant filed and obtained an urgent interim relief directing the
drivers to perform all ancillary
duties on the basis that their
refusal to do the work amounted to unprotected strike action.
The
Labour Court Judgment
[7]
The dispute before the
court
a quo
was whether the drivers’ refusal to perform the ancillary
function amounted to a strike action. In order to determine this
issue, the court
a
quo
considered the
nature of the duties that the drivers refused to perform. In its
view, the duties the drivers refused to perform
derived from the
collective agreement. It reasoned that because the collective
agreement which constituted the source of the obligation
to perform
the duties was cancelled, the drivers could not be said to have
withheld their services. This is so because the collective
agreement
from where those duties originated ceased to exist. As a result, the
court
a quo
rejected the appellant’s contention that the performance of the
ancillary duties was part of the drivers’ contract
of
employment. In rejecting this argument, the court
a
quo
held that these
duties were not part of the contract of employment because they were
performed in terms of the collective agreement
which had been
cancelled and not the main agreement. Had the case been as contended,
the court
a quo
reasoned, there would not have been any need for the collective
agreement to be concluded because the employees would have been
contractually obliged to perform the ancillary duties.
[8]
The court
a
quo
concluded that
refusal to perform the ancillary duties would not constitute strike
action as the collective agreement in terms
of which it was performed
was cancelled and that the duty to perform those duties fell away.
Further, that there was no general
refusal to work but only a refusal
to work in accordance with the terms of the cancelled collective
agreement.
[9]
The Labour Court went
further to consider, in the event that it is wrong in the view it
took in respect of the duty to perform ancillary
duties, the
contention that the real issue was a wage dispute, and that the
respondents’ conduct was deliberate, concerted
and directed at
obtaining an increase in the guard fee. The Labour Court held that
although the respondents had in 2015 demanded
an increase of the
guard fee, they had since abandoned the said demand by cancelling the
collective agreement, thereby rendering
the wage demand dispute moot.
[10]
In the result the
Labour Court discharged the
rule
nisi
earlier
granted to the appellant and made no order as to costs. On
application by the appellant, the Labour Court issued an
interim
order preserving the rule nisi, thereby preserving the status quo
pending the appeal.
The
appeal
[11]
The
appellant’s main ground of appeal is mainly directed at the
court
a
quo
’s
finding that the ancillary duties terminated at the cancellation of
the collective agreement. Relying on the judgment of
the Labour Court
in
SA
Municipal Workers Union v City of Tshwane and Another
[2]
(SAMWU), Mr Redding SC, who appeared on behalf of the appellant
contended that the ancillary duties the drivers performed prior
to
the cancellation of the collection agreement remained in force. He
submitted that the ratio of
SAMWU
,
which according to him was not brought to the attention of the court
a
quo
,
is that the terms of the collective agreement are incorporated into
the contract of employment and unless the collective agreement
provided, either expressly or by implication, that its terms that had
been incorporated into the individual employment contract
lapsed on
termination of the collective agreement, remain applicable and
binding.
[12]
Mr Redding referred to
the main collective agreement’s definition of the word “Drive”
as including: all periods
of driving, all periods during which a
driver is obliged to remain at his or her post in readiness to drive,
and any time spent
by the driver in connection with the vehicle or
its load. He submitted that duties in connection with the load
necessarily include
ensuring that the load is secure and safe to
transport, before setting off on a trip, for example, tarping.
Counsel submitted further
that “Driver” is defined as an
employee who is engaged in driving a motor vehicle which should be
read in conjunction
with the broad definition of the verb “drive”.
He further submitted that the duties of “general worker”
are cast extremely widely, and often overlap with the duties of
other, more specialised workers.
[13]
Mr
Redding finally submitted that on a proper interpretation of the main
agreement, tarping functions are not reserved exclusively
for general
workers, and are not excluded from the scope of a driver’s
duties. He further referred to what he regarded as
an admission by
the respondents at paragraph 17 of the Answering Affidavit that
“
tarping
and untarping were never additional duties for drivers
.”
[3]
[14]
The Road Freight
Association (RFA) is an employer’s organisation duly registered
in accordance with the LRA. The RFA was not
a party to the litigation
in the court
a quo
.
It applied and was granted leave to intervene as
Amicus
Curiae
in the
proceedings in this Court. Its leave to intervene is limited to the
question relating to the interpretation of the main
collective
agreement. It challenges the court
a
quo
’s finding
that since the main collective agreement mentioned that tarping
duties were one of the functions conducted by general
workers, the
implication was that these duties fell outside of the scope of a
driver’s responsibilities. RFA is concerned
that this finding
of the court
a quo
does not reflect the realities of how the main collective agreement
is applied in the industry and has the potential of causing
widespread confusion in the industry, and may lead to strike action
during the currency of the wage agreement.
[15]
Mr Redding appeared on
behalf of the RFA as well. In addition to the submissions he made on
behalf of the appellant, he submitted
that unless otherwise agreed to
in individual employment contracts or by way of plant level
collective agreements, the practice
in the industry, as regulated by
the main collective agreement, is that all functions relating to the
safe operation of the vehicle
and the safe transport of its load,
fall within the scope of the driver’s normal functions,
including tarping duties.
[16]
Ms Makgamatha, an
official of the first respondent, appeared on behalf of all the
respondents. She submitted, in the main that the
court
a
quo
was correct in
its findings and that the appeal should be dismissed.
Analysis
.
[17]
In light of the view I
take of this matter, it shall not be necessary to deal with all the
contentions made on behalf of the appellant
and the
Amicus
.
To recap, the appellant claims that the individual employees had a
contractual obligation to perform ancillary duties from when
the
assistants were done away with. It contended that the guard fee
agreement only served to provide them with money to keep if
they did
the work themselves or to pay the assistants they hired. The
appellant further relies on the
SAMWU
judgment that the collective agreement which dealt with the ancillary
duties formed part of the employees’ contracts of employment
and remained applicable as it did not provide, expressly or by
implication, that upon cancellation the obligation will fall away.
The appellant further relies on paragraph 17 of the Answering
Affidavit that the respondents conceded that the ancillary duties
were not an addition to their normal duties.
[18]
The respondents deny
all the allegations by the appellant. The appellant bore the
onus
to prove its case on a balance of probabilities. The contention that
the respondents conceded that the ancillary duties were not
additional but part of their normal duties is without merit. The text
and context clearly show that the respondents deny that ancillary
functions were part of their normal duties as drivers. The statement
is intended to mean that the functions referred to were not
added to
be part of their normal or day to day duties as drivers, hence they
were remunerated separately for performing them.
[19]
It is clear from the
papers that there was no written or verbal contract of employment
that set out that the employees were obliged
to perform ancillary
duties as their normal duties. The only agreement providing for the
performance of the ancillary duties is
the collective agreement which
gave the employees the option to either perform the functions
themselves or employ assistants to
perform the said duties. In both
instances, the appellant was obliged to pay for whoever performed
these ancillary functions.
[20]
In the absence of any
other agreement creating an obligation on the employees to perform
the ancillary duties, and since they were
entitled to cancel the
collective agreement on notice, the obligation fell away upon
cancellation of the agreement. Similarly,
the obligation of the
employer to pay the employees in lieu of ancillary functions in terms
of the collective agreement also fell
away. It would make no sense to
contend that the appellant’s obligation to pay for the
ancillary functions fell away upon
cancellation of the agreement by
the respondents but that the obligation to perform the ancillary
functions survived the cancellation.
Without deciding on the
correctness or otherwise of the ratio in the
SAMWU
matter, its facts and circumstances are clearly distinguishable from
this case.
[21]
The obligation relating
to ancillary duties was based solely on the collective agreement and
not on the main collective agreement.
It is therefore not necessary
to determine whether the main collective agreement obliged the
respondents to perform the ancillary
duties. It has never been the
practice at the respondent’s workplace that the employees
performed the ancillary functions
in terms of the main collective
agreement. Such an inquiry is not relevant to the issue to be decided
in this appeal and my conclusion
is limited to the dispute between
the parties in this appeal.
[22]
For the above reasons,
I am satisfied that the Labour Court did not misdirect itself in
finding that the employees were not obliged
to perform the ancillary
functions and was correct in discharging the
rule
nisi
. The appeal
falls to be dismissed with costs.
[23]
In the result, the
following order is made:
The
appeal is dismissed with costs.
________________
Tlaletsi
AJP
Davis
JA and Kathree-Setiloane AJA concur in the judgment of Tlaletsi AJP.
APPEARANCES
:
FOR
THE APPELLANT AND AMICUS: Adv AIS Redding SC and Adv GA Fourie
Instructed
by: Cliffe Decker Inc
FOR
THE RESPONDENTS:
Ms Tlou Makgamatha
Union
official: SATAWU
[1]
Labour
Relations Act 66 of 1995
.
[2]
(2014) 35
ILJ 241 (LC).
[3]
The full
text reads: ‘AD PARAGRAPH 29.
The
contents of this paragraph are denied. The tarping and untarping was
never an additional duty for drivers, and the conclusion
of the
Agreement was never to include tarping and untarping as an
additional. Instead, the agreement provided for liberty by
the
driver to perform the duties himself, or to acquire the services of
an assistant. The agreement is not specific as far as
the tarping
and untarping as an additional duty to drivers. It is in this that
the drivers find the strength not to continue
with the tarping
duties’.