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[2006] ZALCJHB 32
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NUM v Afgem Ltd and Others (J581/06) [2006] ZALCJHB 32 (21 April 2006)
LOM
Business Solutions/lad
IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: J581/06
DATE
:
2006/04/21
In
the matter between
NUM
Applicant
and
AFGEM
LTD
First
Respondent
SIMOLOTSE
MINE (PTY)
LTD
Second Respondent
AFGEM
DIAMONDS (PTY) LTD
Third Respondent
J
U D G M E N T
PILLAY
D, J
: T
his
is an application, brought as a matter of urgency for an order,
amongst other things, directing the second respondent to reinstate
the employees with effect from 1 April 2006.
The third respondent
invited the applicant, the National Union of Mineworkers (NUM) by
letter dated 27 March 2006, to a consultation
on the change of
conditions of employment. NUM was not available to meet the following
day, i.e. 28 March 2006, and proposed that
the parties meet on 30
March 2006. A meeting did take place with NUM on 30 March 2006.
At that meeting the members of NUM
employed by the second respondent,
as it now transpires, were urged to take unpaid leave for three
months from 1 April. The
reason advanced by the respondent, as
recorded in its letter dated 30 March 2006 to NUM, was to enable the
company to restructure
and refinance its operations, and to ensure a
sound and sustainable future for all the stakeholders. That
letter (LP3) is
written on the letterhead of the third respondent.
On
the same day, 30 March 2006, the first respondent referred the
dispute to the CCMA. The nature of the dispute is described
as
“change of conditions of employment and a lockout.”
It further summarises the facts of the dispute as the
following:
“
The
company, due to financial constraints, decided to place the mine on
care and maintenance, with an essential services crew, the
remainder
will go on short time. The union disagreed and intends sending
the employees to work. The proposed short
time is for
approximately three months
.”
The
result of the conciliation sought by the first respondent is the
following: “That the employees on short time be
locked
out from the company’s premises.”
It
is clear from the aforegoing facts that what all the respondents
failed to achieve through a façade of consultation initiated
as late as 28 March 2006 is to avoid paying the workers for a period
of three months. If it could not achieve this through
a layoff
by agreement, then it intended to do so forcibly through a lockout.
The lockout is clearly ill-conceived for, amongst
other things, the
first respondent intended to maintain services with a maintenance and
essential services crew.
The
Act clearly prohibits the reliance on a maintenance crew if the
lockout is offensive, and this was clearly the case in this
instance. The respondents were open with the applicant. They
ought to have sensed long before 28 March that they would not
be in a
position to pay the workers for three months from 1 April 2006, and
should, as good managers, have notified NUM in good
time before then.
They
further misled NUM as to who the real employer was. As the
court has pointed out, the referral for conciliation was by
the first
respondent, whom the second respondent alleged was not the employer.
Consequently the validity of that referral
was also questionable.
The
correspondence was dispatched on the letterhead of the third
respondent, who sought to avoid paying the costs of the first
application. From all of the aforegoing the respondents have
not been frank with the court, or frank or fair to NUM and the
employees. In the circumstances the appropriate, and the only order
that this court can make must be as sought by NUM as amended.
I grant
an order in terms of paragraph 1.
Paragraph 2 is amended by
the deletion of the words “first and”, and an order as
amended in paragraph 2 is granted.
An
order in terms of paragraph 3 is granted.
Paragraph 4 is amended by
deletion of the words “first and”, and the deletion of
‘s’ in the word “respondents”,
and an order
in terms of paragraph 4 as amended is ordered.
A
order is granted in terms of paragraph 5. In other words the
third respondent is ordered to pay the wasted costs of the
applicant,
up to 12 April under case number J514/2006.
Pillay
D, J
26
February 2007
CERTIFICATE
OF VERACITY
We,
the undersigned, hereby certify that as far as it is audible to us,
the aforegoing is a true and correct transcript of the electronically
recorded proceedings in the matter of:
NUM
Applicants
and
AFGEM
Respondents
CASE
NUMBER:
J581/06
COURT
OF ORIGIN:
BRAAMFONTEIN
TRANSCRIBER:
MRS L A DAPHNE
DATE
COMPLETED:
2006/04/21
NUMBER
OF CD’S:
1
NUMBER
OF PAGES:
4
SIGNATURE
OF TRANSCRIBER: ______________________________
BUSINESS
SOLUTIONS
LOM