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[2019] ZALAC 41
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Imperial Cargo (Pty) Ltd v DETAWU and Another (JA164/2017) [2019] ZALAC 41; (2019) 40 ILJ 2499 (LAC) (13 June 2019)
IN
THE LABOUR APPEAL COURT HELD OF SOUTH AFRICA JOHANNESBURG
Reportable
Case
no: JA164/2017
In
the matter between:
IMPERIAL
CARGO (PTY) LTD
Appellant
and
DETAWU
First
Respondent
INDIVIDUAL
RESPONDENTS
LISTED
IN ANNEXURE “A” TO THE
NOTICE
OF MOTION Second
and further Respondents
Heard:
30 May 2019
Delivered:
13 June 2019
Summary:
Collective agreement prohibiting strike at plant level in furtherance
of demands involving cost and affecting the wage
packets of
employees. Union notifying employer of its intention to strike –
Labour Court finding three of union’s demands
fall within the
impermissible demands but found that demand for re-scheduling drivers
trips over weekends not prohibited and not
falling within the
substantive issues as contemplated in the collective agreement.
Held
that: A plant level, collective agreement establishing a rule that
weekend long distance trips should commence only on Saturdays
or
Sundays will involve substantial additional costs and increased wage
packets for the employees – either in overtime payments
or in
substitute labour costs. Matters of this kind are reserved in terms
of clause 57 of the Main Agreement for bargaining at
national level.
While the demand may seem cost neutral on the face of it, as the
Labour Court opined, it in effect is not. If acceded
to, each driver
could earn up to an additional one and a half days’ wages for
weekend trips. A demand that weekend long distance
trips commence
after lunchtime on Saturdays is therefore in substance a demand for
increased remuneration or time off. While that
demand may be
legitimate and understandable, it comprises a substantive issue as
defined by the Main Agreement, and is thus a bargaining
topic to be
negotiated at the bargaining council. Labour Court’s judgment
set aside and appeal dismissed.
Coram:
Waglay JP, Murphy and Savage AJJA
JUDGMENT
MURPHY
AJA
[1]
The appellant appeals against the judgment and order of the Labour
Court (Whitcher
J) dismissing its application for orders declaring
strike action by the respondents unprotected and unlawful, and
interdicting
them from embarking on and participating in the strike
intended to commence on 18 October 2017. The appeal is with the leave
of
the Labour Court.
[2]
The appellant provides road freight transport services to clients
from its base in
Paarl, Western Cape. The relationship between the
parties is governed by the Main Collective Agreement of the National
Bargaining
Council for the Road Freight and Logistics Industry
[1]
(“the Main Agreement”). Clause 2 of the Main Agreement
provides that it was binding on the parties until 28 February
2019.
[3]
In the period preceding the intended strike, the respondents made
four demands. These
were for: i) the employment of general workers to
assist in the loading or unloading of goods; ii) the re-scheduling of
weekend
trips of long-distance drivers; iii) the provision of food or
food allowances to drivers when they work more than three hours
overtime;
and iv) off days of drivers to take place in the course of
their five or six day shift and to be spent at home. The first
respondent,
DETAWU, issued a strike notice on Friday 13 October 2017
giving notice of intended strike action in furtherance of the demands
commencing on 18 October 2017. The appellant responded with an urgent
application to interdict the strike on the grounds that it
was
unprotected and in contravention of section 65(1)(a) of the Labour
Relations Act
[2]
because the
respondents were bound by a collective agreement that prohibited a
strike in respect to the issues in dispute.
[4]
Clause 57 of the Main Agreement deals with bargaining levels. The
relevant provisions
read:
‘
(1)
The Council is the exclusive forum for the negotiation and conclusion
of agreements on substantive issues between employers
and employers’
organisations, on the one hand, and trade unions on the other hand.
(2)
Despite sub-clause (1), employee representatives or representative
trade unions may negotiate with an employer at company level
on
non-substantive conditions of employment, operational procedures,
bonuses or incentive schemes that are directly related to
profit or
productivity. A matter contemplated in this sub-clause may not be
negotiated in the Council……
(4)
No trade union or employers’ organisation may call a strike or
lock-out or in any other way seek to induce or compel negotiations
on
the issues referred to in sub-clause (1) at any level other than the
Council…’
[5]
The term “substantive issues” is defined in the Main
Agreement as “all
issues involving cost and affecting the wage
packet of employees”. Thus, industrial action may not be
embarked upon at plant
level in furtherance of demands involving cost
and affecting the wage packets of employees. Collective bargaining
and industrial
action on substantive issues is reserved by clause
57(1) of the Main Agreement for centralised collective bargaining.
[6]
The appellant contended before the Labour Court that the demands over
which the respondents
intended to strike concerned substantive issues
by virtue of the costs associated with them and did not fall into the
category
of exceptions contemplated in clause 57(2) of the Main
Agreement. The Labour Court agreed with that contention in relation
to the
demands for the employment of general workers, the provision
of food or food allowances and the off days of drivers. These, the
court concluded, were substantive issues which had to be negotiated
at bargaining council level.
[7]
The Labour Court took a different view in relation to the demand
regarding the scheduling
of weekend trips by long-distance drivers –
(“the second demand”).
[8]
The second
demand sought to compel the appellant to
rearran
ge
its delivery timetables
t
o
allow drivers to depart later over a weekend, either on Saturday
afternoon or Sunday morning,
when
driving long distances to make deliveries.
The
prevailing arrangement is that drivers will
leave the depot on
Thursdays or Fridays, with the aim of either arriving in time to
offload at customers’ premises before
lunch time on Saturdays,
or to arrive at some point during the weekend, so as to be able to
offload at the customer’s premises
on Monday mornings. Drivers
are paid
their
wages until they arrive at the customer, but only
a
subsistence allowance during the time (usually on a Sunday) that they
are waiting to offload.
The
practical effect of the
second
demand, were it acceded to, would be that drivers
would
be entitled in terms of the Main Agreement to
overtime rates for
driving on Saturday afternoons and evenings, and double pay on
Sundays; whereas currently the drivers normally
will arrive at the
destination depot by Saturday lunchtime, and then earn the
subsistence allowances (but not wages at overtime
rates) over the
course of the weekend, while waiting to deliver the load to the
client early on a Monday morning.
[9]
The appellant argued that the demanded re-scheduling would involve a
significant increase
in its wage bill, in the form of overtime
payments. Strike action was therefore prohibited in terms of clause
57(4) of the Main
Agreement which prohibits strikes and plant level
bargaining in respect of substantive issues, which are defined as
matters involving
costs or affecting wage packets. It argued in the
alternative that the issue of scheduling vehicles and loads is one
that falls
within management prerogative in terms of clause 4 of the
Main Agreement which provides that regular daily working day times
will
be set and regulated by individual employers and that the
employer may unilaterally change such times on notice to employees.
[10]
The Labour Court found as follows:
‘
In
my view this demand does not concern a substantive issue. It concerns
a work practice with regard to the specific operations
of the
applicant – not the sector.
There
is nothing on the papers to indicate that the scheduling of trips is
capable of being contractually regulated at a sectoral
level or can
be turned into a term capable of being applied across the sectoral
board.
On
the applicant’s own version it is a work practice that falls
within management’s prerogative.
The
fact that capitulation to the demand may result in the drivers’
earning overtime on Saturday afternoons and evenings,
and double pay
on Sundays does not render it a substantive issue involving costs.
The demand is not about overtime. There is no
integral or internal
cost element in the demand itself. It does not amount to a demand for
an amount of money.
Employees
may strike in support of a demand to change a work practice where the
strike has been processed in terms of section 64(1),
which was done
in this case.’
[11]
The learned judge, despite accepting that the impermissible demands
were severable from the permissible
demand, held that the strike in
relation to the second demand would be protected, refused to
interdict the impermissible demands
and accordingly dismissed the
appellant’s application in its entirety.
[12]
The appellant has raised two grounds of appeal. Firstly, it submits
that the Labour Court erred
in dismissing the entire application and
at the very least should have interdicted strike action in relation
to the three impermissible
demands. Secondly, it persists with its
contention that the second demand is a substantive issue that is
rightly a bargaining topic
for negotiation at bargaining council
level. The respondents have not filed a cross-appeal against the
Labour Court’s finding
regarding the impermissible demands.
They state though that they have no intention to strike over these
demands. They, however,
persist with their contention that the second
demand does not concern a substantive issue but is merely a call for
a change in
a work practice and intend to strike over it.
[13]
The respondents are correct in their contention that the right to
strike in pursuit of a permissible
demand did not evaporate upon the
addition of the three impermissible demands.
[3]
If the second demand is a permissible demand, the respondents may
embark on a protected strike over it. But it does not follow
that the
appellant was not entitled to orders prohibiting a strike over the
impermissible demands. The Labour Court erred in not
making such
orders.
[14]
The finding that the second demand was one aimed at changing a work
practice (or perhaps an operations
procedure as contemplated in
clause 57(2) of the Main Agreement), and thus a permissible
bargaining topic at plant level, fails
to appreciate the substance of
the demand.
[15]
Clause 4(1) of the Main Agreement provides that regular working day
times will be set and regulated
by individual employers, basically as
a matter of managerial prerogative. It does not reserve the issue of
working day times for
plant level bargaining. Only non-substantive
conditions of employment and operational procedures, being issues
without cost or
wage packet implications, are reserved by clause
57(2) for plant level negotiations.
[16]
The current practice is for weekend trips to commence on Thursdays or
Fridays, resulting in minimal
liability for overtime pay in respect
of them. Clause 3 of the Main Agreement provides that ordinary hours
of work may not exceed
nine hours a day for employees who work five
days per week and eight hours per day for employees who work six days
per week provided
that an employee’s ordinary hours of work may
not exceed five hours on a Saturday. Clause 14 of the Main Agreement
requires
the employer to pay double the hourly rate to employees who
work on Sundays or to grant time off in lieu of payment. The
appellant
has thus organised its work schedule to minimise the hours
of work on Saturdays and Sundays. The employees have no right to work
overtime, but if required by the appellant to do so, they normally
will earn overtime rates.
[17]
The second demand seeks to establish a right to be paid overtime or
time off in lieu for weekend
trips, as a matter of course, by
re-scheduling the commencement times of the trips. A plant level,
collective agreement establishing
a rule that weekend long distance
trips should commence only on Saturdays or Sundays will involve
substantial additional costs
and increased wage packets for the
employees – either in overtime payments or in substitute labour
costs. Matters of this
kind are reserved in terms of clause 57 of the
Main Agreement for bargaining at national level. While the demand may
seem cost
neutral on the face of it, as the Labour Court opined, it
in effect is not. If acceded to, each driver could earn up to an
additional
one and a half days wages for weekend trips. A demand that
weekend long distance trips commence after lunchtime on Saturdays is
therefore in substance a demand for increased remuneration or time
off. While that demand may be legitimate and understandable,
it
comprises a substantive issue as defined by the Main Agreement, and
is thus a bargaining topic to be negotiated at the bargaining
council.
[18]
In the premises, the second demand was impermissible and the Labour
Court erred in not interdicting
a strike in relation to it.
[19]
The appellant does not seek costs.
[20]
The appeal is upheld and the order of the Labour Court is set aside
and substituted with the
following order:
‘
1.
It is declared that the intended strike action by the respondents
constitutes an unprotected strike.
2.
The respondents are interdicted and restrained from embarking on and
participating in a strike in relation to the demands forming
the
basis of the strike notice dated 13 October 2017.’
_______________
JR
Murphy
Acting
Judge of Appeal
I
agree
________________
B
Waglay
Judge
President
I
agree
________________
K
Savage
Acting
Judge of Appeal
APPEARANCES:
FOR
THE APPELLANT:
Adv A Redding SC
Instructed
by Cliffe Dekker Hofmeyer Inc
FOR
THE RESPONDENTS: Adv
JH Groenewald
Instructed
by TS Mnisi Attorneys
[1]
Promulgated by the Minister of Labour in GN 725 GG 40385 of 28
October 2016.
[2]
Act 66 of 1996.
[3]
Transport
& Allied Workers Union of South Africa obo MW Ngedle and Others
v Unitrans Fuel and Chemical (Pty) Ltd
[2016]
11 BCLR 1440
(CC) para 34