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[2007] ZALCCT 9
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National Union of Mineworkers v Namakwa Sands - A Division of Anglo Operations Ltd (C836/2006) [2007] ZALCCT 9 (28 November 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE
TOWN
CASE
NO: C836/2006
In
the matter between:
NATIONAL
UNION OF MINEWORKERS
Applicant
and
NAMAKWA
SANDS - A DIVISION OF
ANGLO
OPERATIONS LIMITED
Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
The applicant, the National Union of Mineworkers (NUM) members who
are employed at Namakwa Sands (the respondent) embarked in
a
protected strike from 19 June to 31 July 2006 in support of higher
wages and an increase in their housing subsidy. While
they were
on strike, some non striking employees were paid a daily allowance of
R300.00, received food and worked excessive overtime.
The
applicant on behalf of 334 of its members whose names appear in
annexure “A”, declared a dispute and referred it
to the
Commission for Conciliation, Mediation and Arbitration (the CCMA) for
conciliation and after conciliation had failed, referred
it to this
Court for adjudication in terms of section 9(4) of the Labour
Relations Act 66 of 1995 (the LRA). The dispute
is described as
relating to the general protections in the LRA and the applicant is
seeking an order that the respondent
pay its members the same amount
it paid to non striking employees. The applicant contends that
the provision of meals, the
payment of the R300.00 and excessive
overtime worked by non-striking employees by the respondent
contravened the provisions of
sections 4(2), 5(1) and 5(3) of the
LRA.
2.
The respondent denied that it contravened any of the aforesaid
sections. It has a practice to pay a daily allowance of
R300.00
to employees who are redeployed to do work that fall outside their
normal scope of duties. It denied that the employees
worked
excessive overtime and contended that the Department of Labour’s
permission was sought and granted to work overtime.
Where
employees are redeployed and work more than 12 hours a day, food is
provided to the said employees.
The application
to amend
3. The applicant on 14
June 2007 gave notice to the respondent that it would seek an order
to amend its statement of claim.
In a notice of intention to
oppose the applicant’s notice to amend, the respondent
indicated that it would oppose only certain
portions of the proposed
amendment. These are:
“
1.
That portion of the amendment that proposes the deletion of the
following sentence from paragraph
8 of the statement of claim:
“
In
the alternative the Applicant sought that the Respondent be made to
pay a fine to the Union. As is apparent from below,
the
Applicant abandons the relief sought in the referral form and instead
seeks relief as set out below.”
2.
That portion of the amendment that proposes the deletion of paragraph
14.2 of
the statement of claim which, provides as follows:
“
An
order directing the Respondent to desist in the future from making
any such payment or providing any other advantages to those
of its
employees not involved in protected strike action”
and
the substitution of
paragraph 14.2 of the statement of claim with paragraph 14.4 in the
Applicant’s notice of intention to
amend which provides as
follows:
“
An
order that the Respondent pay to each of the second and further
Applicants an amount equal to or substantially similar to the
average
financial advantage received by each non-striking worker
through the payment to them of a daily allowance, the provision
of
free food and the receipt of abnormal overtime payment””.
4.
The objection was limited only to the relief that the applicant was
seeking and in particular the fact that the applicant sought
to amend
its prayers to request this Court to order the respondent to pay its
members an amount equal to or substantially similar
to the average
financial advantage received by non striking employees through
payments made in contravention of the LRA.
The basis for the
objection to amend was that the applicant having abandoned any claim
for relief sounding in money and/or informed
this Court and/or the
respondent that it would not seek any relief sounding in money, could
not seek such relief from this Court.
5.
Mr Gwaunza, the respondent’s attorney, contended that because
the applicant had stated in the pleadings that it was abandoning
the
monetary relief, it was barred from amending the pleadings by
resuscitating that relief. He relied on several cases and
in
particular the
National Union of
Mineworkers Union of SA & others v Driveline Technologies (Pty)
Ltd & another
(2000) 21 ILJ
142 (LAC). I do not understand this case to mean that where a
party had made certain admissions, withdrawn
those and wishes to make
them again that such a party will be barred from doing so. It
is trite that where a party makes
certain admissions and wishes to
withdraw those admissions by way of an amendment, that party is
required to depose to an affidavit
setting out why the admissions
were made and why they are being withdrawn. A factor that a
court will also take into account
is the question of prejudice to the
other party.
6.
The applicant was essentially seeking to withdraw certain admissions
that it had made in the statement of claim and the pre-trial
minute. An affidavit was deposed to by the applicant’s
attorney of record setting out the circumstances relating
to the
admissions and withdrawal of those admissions. I do not deem it
necessary to repeat the explanation. Mr Gwaunza
could not point
out what prejudice the respondent would suffer save for the monetary
consequences if the claim succeeded.
7.
I was satisfied with the explanation that the applicant had tendered
and since the respondent could not show what prejudice it
would
suffer granted the application and made no order as to costs.
The evidence led
8.
The applicant called four witnesses. They were Brandville
Talmakkies, Debra Appollus, Francios Afrika and Danie Carolus.
It is not necessary to repeat their testimony in any great detail.
Talmakkies is employed by the respondent for eleven years
and is
currently employed as a supervisor on the tap floor. A
supervisor earns more than a tap floor operator. He is
a member
of NUM and did not take part in the protected strike of 2006.
When a tap floor operator is absent from work, the
tap floor
supervisor works on the tap floor and is not paid any allowance.
During the strike, Talmakkies was asked
to work as a tap floor
operator instead of a tap floor supervisor for the duration of the
strike. He was paid a daily allowance
of R300.00.
His basic salary before the strike was R7 350.00 per month and he
received an allowance of R2 000.00.
On 28 June 2006 his monthly
income was R13 677.71 and his normal overtime was R787.50.
His pay slip for 28 July 2006
reflects that he was paid a project
relocation allowance of R7 200.00. His gross monthly income for
July 2006 was R33 567.93.
He worked 108 hours overtime
and was paid R6 542.30 for 108 hours overtime worked. His gross
income in August 2006 was R16
796.37 and was paid R1 150.96 as
overtime. In an average month where there is no strike he would
be paid his normal salary
and get paid his normal Sunday pay.
During the strike he was paid an R300.00 daily allowance since he was
not doing his normal
duties.
9.
Debra Appollus commenced employment with the respondent on 2 February
1998 as an earth moving machine operator. She drives
one of the
trucks and sometimes does different work like data capturing. When
the data capturer is not at work or is on annual
leave, she is asked
to do her work. She does not get an allowance for the different
work that she is asked to do. She
had complained about this and
was charged with insubordination and received a six months first
written warning. She had complained
that when an operator who
relieves a production operator the said person gets paid an acting
allowance yet she was not paid this.
This happened every time
and not because of the strike. She had taken part in the
strike. She confirmed that there
is an acting allowance policy
and that she was demanding to be paid R300.00 per day paid to non
striking employees.
10. Francios Afrika is
employed as a tap floor supervisor. He did not take part in the
protected strike of 2006. During
the strike, he worked as a
tapper and drove and operated cranes that were different to his
normal work. His gross earning
according to his pay slip of 28
June 2006 shows that he earned R13 057.69 per month. His normal
overtime was 19.50 hours
that came to R1059.27. His gross
earnings for 28 July 2006 was R31 726.07 and he received an extra
R300.00 per day during
the strike. He worked 94 days of normal
overtime and earned R5 106.23. On 28 July 2006 he was paid R3
476.58 for working
on his rests days. His August
pay slip reflects that his gross salary was R18 211.93 and he worked
46 hours of
normal overtime. When there is no strike, he gets
paid for working on a Sunday. It was fine that the respondent
thanked
him for having done alternative work during the strike and
for having paid him for that. He was aware that the law did not
allow him to work more than 10 hours of overtime per week.
Permission would have to be obtained from the Department of Labour
to
allow him to exceed the overtime. He did not work more than 20
hours per week during the strike period.
11.
Danie Carolus commenced employment with the respondent at the Smelter
site on 1 April 1995 and is a NUM shop steward.
He is a plant
operator at the Smelter site near Vredenburg. The Mine site is
at Brand-se-Baai and deposits are mined and
taken to the Mineral
Separation plant at Koekenaap and than transported to the Smelter
Site by rail. 975 employees were employed
by the respondent.
There are 472 employees in the bargaining unit. 42 members of
the bargaining unit did not join the
strike. The applicant sent
a letter dated 24 February 2006 with 14 demands. They had
demanded a 11,5% basic salary
increase with other demands.
After negotiations had failed, the applicant declared a deadlock.
On 14 June 2006 the
applicant sent the respondent a letter with a
5-day strike notice commencing on 19 June 2007 at 7h00. The
strike started
on 19 June 2006. The mine operates on a 24-hour
basis. It needs to operate continuously and there is a
contingency
plan. The respondent has a policy for allowances
and special payments. Clause 1 thereof provides that allowances
and
payments are recognised by the respondent as due remuneration to
employees who do work and/or duties under specified circumstances.
There is an allowance in terms of the substantive agreement.
The parties agreed that the shift allowance would remain at
9% of the
basic salary per month. All employees who works shifts, get a
shift allowance. The day shift employees do
not get a shift
allowance. There are also other allowances like standby, transport
and education. Carolus has performed beyond
his scope of duties
and did not receive the R300 redeployment allowance. There is
no normal practice to pay R300.00 a day
beyond their duties.
There is no redeployment allowance in the 2000 substantive
agreement. It is not captured in any
document. Allowances
negotiated are captured in the substantive agreement. There is
nothing in the substantive agreement
about the provisions of free
meals. Overtime is paid as provided for in the Basic Conditions
of Employment Act 75 of 1997
(the BCEA). His understanding of
the redeployment pay is that everybody gets a flat rate of R300.00 a
day. Employees
who worked during the protected strike, received
double or triple salaries. The R300.00 was paid as a reward.
He did
not agree with the respondent’s view that the R300.00 a
day was paid because people went beyond their agreed work. If
there was such an allowance, he should also have received it since
about two years ago he worked as a control operator at the furnace.
There are tap floor operators. When there is a shortage of tap
floor operators, they as control room operators, go there
and receive
a
pro rata
tapping allowance that was R500.00 a month and if he worked three
shifts it would be a
pro rata
pay for three shifts. There is an acting allowance. His
understanding of acting allowance is when a person does someone
else
job and for that period of acting that person will get an acting
allowance. Clause 6.1.2(a) deals with level 1 employees.
It provides that level 1 employees on the development group who do
not meet the requirement but are required to act in a substantive
capacity, will be paid an acting allowance of 15% of their actual
monthly salary
pro rata
for the period. The allowance and special payment policy states
in clause 7.1 in relation to overtime payment that only level
1 and 2
employees will qualify for overtime payment, except in circumstances
where the payment of overtime has been excluded in
the employee’s
contract of employment. The Department of Labour had approved
that the overtime per week should not
exceed 20 hours. This was
based on an application for exemption made. It gave permission
for 80 hours of overtime per
month for a specific period. This
would be lawful. The Minister of Labour (the Minister) may
issue a determination.
The existing agreement would not be
valid for the period of the determination. The determination
was valid for 30 June to
25 July 2006 and the respondent was acting
lawfully for that period. Employees based at the Brand-se-Baai
and the Mineral
Separation plant, who worked unplanned overtime
exceeding four hours per day, received ration packs consisting of a
pack of small
beans and bully beef like an army ration. It is
not a hot meal and is issued by the material department. When
the employees
used to take stock, they would receive food and a braai
was given. He has received biltong for his wife that was in
packets.
The Kentucky Fried Chicken outlet is about 1 to 1,5 hours
drive from Brand-se-Baai from the Mine site. At Brand-se-Baai
they
do not receive Kentucky but a ration pack. The
strike was settled when the employees accepted 7.25%. The non
strikers also received it.
12.
The application for exemption to the Department of Labour indicated
that the exemption was from 30 June to 25 July 2007.
The
variation was for the Smelter production. There are 100
employees at Smelter and the application was made for four
employees.
It is stated that the four employees are not members
of the union. There were employees in the Smelter who were NUM
members
who did not go on strike. The Minister granted
permission to the “employees concerned” to work 20 hours
per week
overtime. The employees concerned are the four
employees referred to in the application. There was no
redeployment
allowance outside the strike. It was totally
unfair in a strike for the respondent to pay R300.00 to non strikers
because
they were called to do the work of strikers. From
NUM’s point of view, they saw this as a bribe to keep the
employees
at work because of the R300.00. From the feedback
that they received there were union members who half way in the
strike
returned to work and received the R300.00 allowance. It
was also for the same reason unfair for the respondent to give the
employees’ free meals who had agreed to do the work of
strikers. It was also unfair for non strikers to get an
opportunity
to earn huge sums of money because they were asked to do
the strikers work. 222 employees were redeployed during the
strike.
Ten of the employees were doing office work and did not
work on the plant. They do not do labour intensive work.
They
were doing something different. Carolus said that if he is
on level 1 and is doing a higher job he gets an acting allowance.
It was unfair for a manager to get a redeployment allowance for a 2
lower job level and than get more than what the person was
earning.
There were eight bargaining unit employees who were redeployed but
did not receive a redeployment allowance. They
were redeployed
from East to West. Most of the employees in the bargaining unit
are production operatives. The critical
positions during the
strike were that of operatives. After the strike, the employees
went back and did what they did before
the strike. They were
not aware of the redeployment allowance that was not discussed with
them and only became aware of it
during the strike. P
Blankenberg, a NUM member was on 11 July 2005 paid R300.00 for
alternative work done during stay away
action on 27 June 2005.
JPG Meissenheimer, a member of NUM, was also on the same day paid
R300.00 for having worked during
the same stay away action. AJJ
Cloete who is a shop steward of NUM was also paid in 1998, 1999,
April 2000 and May 2000,
2001 and July 2003 for having worked during
strikes or stays away. The respondent had paid allowances for
almost 10 years
since 1998 based on the documentation shown to him.
13.
The respondent called four witnesses. They were Waheed Achmat,
Johan Rossouw, Louis Martinus Booysens and Stanley Theron.
It
is also not necessary to repeat their testimony in any great detail.
Achmat is the respondent’s group human resources
manager.
He commenced employment with the respondent in 1998. In 2001,
he was the human resources manager’s corporate
office and the
admin. payroll. He has only started to attend the management
committee meetings from March 2007. In
2006 he was an ordinary
human resources manager. The respondent has a recognition
agreement with NUM. There are different
levels of employees at
the respondent. Level 1 operatives all earn below the BCEA
level. Level 1(S) is skilled personnel.
Level 1(T) is for
artisan level. Level 1(A) is for the admin. staff. Level 2 is
for first line supervisors. It also
includes managers,
production controllers and group leaders. Level 3 is for mine
management level like the production managers
etc. Level 4 is
for the management committee team and level 5 is for the general
manager. There are a number of allowance
policies that are not
in the substantive agreement. There is an education and medical
aid policy that is in the substantive
agreement. There is a
specialised travel allowance, medical aid, project and subsistence
allowance that is not in the agreement.
There is also something
used by managers called an
ad hoc
allowance. The respondent engages in major projects and
employees were withdrawn from their normal duties and seconded to
it
and management used their discretion to give them an allowance.
It is a project allowance but is called an
ad
hoc
allowance. As for overtime
payment, only level 1 and 2 employees like operatives, technicians,
production controllers and
group leaders are entitled to it.
Some earn above the BCEA threshold level like the level 1S, level 1T
and production controllers,
tap floor supervisors and group leaders.
The conditions of employment currently state that the respondent will
pay them overtime
even if they are above the BCEA threshold.
The respondent has wage negotiations with NUM once a year. At
the beginning
of each wage negotiations, the parties hand each other
a list of their demands. NUM had a list of demands that ended
in a
strike. Of the 14 demands, the basic demand and increase
in the housing subsidy from R1 600.00 to R2 500.00 ignited the strike
action. The parties reached a deadlock. Not all the
employees took part in the strike. After each negotiation phase
a
substantive agreement is drawn up to capture the agreement reached
between NUM and the respondent on the outcome for the wage
negotiations. The wages were increased to 7.25% from 1 June
2006 as opposed to 1 April and the housing subsidy remained at
R1
600.00. The standby allowance remained the same. Most of
the employees in the bargaining unit took part in the strike.
Most NUM members are in production. All three production sites
were most vulnerable and were affected. Achmat was the
human
resources manager at corporate during the strike. The
respondent had asked people to volunteer for redeployment and
he was
one of them who put his name down. The respondent had to meet
the production targets and customers needs. He
was redeployed
not from day one. He made himself available for the receiving
and despatch area. The work there was
much easier. During
the days when he was redeployed, his working hours were from 7h00 to
19h00 or from 7h30 to 16h30 and
he was not paid any overtime.
He did not know why some employees were not redeployed. Some
were not licensed to drive
major vehicles due to safety and they
needed training. Some felt that they would be taken away from
their comfort zones where
there would be winds and rains. There
were instances where redeployment was rejected as it was done on a
need basis and there
was no guarantee that if a person volunteered
that the person would be redeployed. When he joined the
respondent, he discovered
that people were redeployed to keep the
operations running. There were instances in 1989/1999 and 2005
of wildcat strikes.
During May 2006, 36 employees volunteered
to be redeployed and one was a bargaining unit member and 35 were non
bargaining unit
members and they were paid a R300.00 daily allowances
for doing so.
14.
When there was a stay away called by COSATU, NUM would tell the
respondent that they would take part in the stay away and the
respondent would then look at what needed to be done. This also
happened in June 2005 when 22 employees were redeployed,
six of whom
were bargaining unit members and 16 non bargaining unit members and
they received a redeployment allowance. In
October 2005, 31
employees were redeployed four of whom were bargaining unit members
and 27 non bargaining unit members who did
work outside their scope
and were paid a redeployment allowance. Page 99 reflects the
bargaining unit employees who were
redeployed during the strike at
the Mineral, Smelter and Mine sites. It shows who the
individuals are, their designation,
union status and the area in
which they did work. Blake was a stores operator who
contributed to the Department of Labour
and during the strike was
used to ensure that the trucks were off loaded and did the work done
by them. A tap floor supervisor
is an individual who supervises
activities of the tap floor, schedules, organises and plan and ensure
safety and housekeeping on
the tap floor. The tap floor
supervisor has tap floor operators including launder cleaning, mud
gun refilling, tapping and
laundering of tappers. Some
bargaining unit members underwent some training to be redeployed in
other areas. The respondent
could carry on with the production
and meet the customers’ requirements. There are
various documents dating back
from, 1998 where employees who worked
during strike actions were paid a redeployment allowance.
During the strike action
of 2006 payments were made to 222 employees
who were redeployed. They were paid a redeployment allowance
for doing duties
out of their normal jobs that they were employed to
do. They were paid for the actual days when they were
redeployed and
for the duration of the strike. They were paid
allowances since they were working long and hard hours and were
working overtime.
If they worked the same shift and longer
hours, they would receive overtime. There is an arrangement
that the employees would
not exceed 10 hours overtime per week or 40
hours per month. They were in terms of the determination
allowed to work 20 hours
per week overtime from 30 June to 25 July
2006. The relevant person at human resources for industrial
relations applied to
the Department of Labour to extend the 10 hours
to 20 hours a week. Paragraph 5 of the application states that
the number
of employees is four. There is no correlation
between the application and the determination granted by the
Department of
Labour. Paragraph 3 of the determination
encompasses all employees of the respondent. This is a
conclusion that the
respondent reached after they had a discussion.
Human resource’s view was that it applied to all employees.
Another
determination extended the 10 hours to 20 hours. Their
interpretation was that 24 employees could work 20 hours per week
overtime. There were meal requests for employees who worked
overtime. Their requests were completed when there was a
break
down, an emergency shutdown and the work taking normally longer than
what was required. There were requests for meals
when there
were shutdowns. These were for unplanned shutdowns and overruns
and meals were requested for individuals working
in a shutdown.
Meals were provided when people were not planning to work long
hours. During the strike, the employees
were not accustomed to
working long hours and were given meals. There were people who
covered 12 hours shifts on 21 June
2006, 3 days into the strike and
31 employees on the plants. Meals were ordered for them.
Two employees who worked
in the receiving and despatch area and who
were not redeployed, received meals with the other six to eight
employees who were redeployed. Achmat received meals for the
days
that he was redeployed. He went back to his office to do
catch up work. He was redeployed as the need arose for a period
between 9 to 10 days. It was put to him that it was an
incentive if volunteers received R300 a day with their normal
salaries.
Achmat said that the respondent’s strategy
initially was that there would be no indication that there
would be an amount
paid and how much. The strategy was raised 1
to 2 weeks later when it was asked if there would not be a
redeployment allowance
paid. He did not know in what context
this was raised. The rationale was that the respondent would
lose money on production.
More than enough people had
volunteered. The employees had initially volunteered to work
without being offered any money
and during the strike a decision was
taken to offer payment. The offer was made to those who did
more work. They were
paid because they did work outside their
scope. There was a practice to pay a redeployment pay.
They were not paid
for the first two weeks because the respondent did
not know how long the strike was going to be. Usually in the
past it would
be a one day strike. The decision was taken by
the management committee. Achmat was referred to the management
committee
meeting of 27 June 2006 where Botha said that they should
“consider incentives to the employees and their families who
are
at work during the strike. Not a monetary contribution but
a moral booster” and that this was a plan not to pay.
He
said that if he looked at how the minutes were captured, it was not
taken verbatim and not everything was actioned. There
were many
to and frow communications. It was discussed and reason
prevailed. A decision was taken eight days into the
strike to
pay monetary compensation for those who were redeployed. He was
asked about the “incentives to the employees
and their
families”. He said that this was meant to keep them
happy. It was not discussed in his presence.
Casper
Lotter was in the legal department at Anglo American. He was
asked about the entry made that Botha had to consult
with C Lotter
about “the payment for conducting extraordinary work and that
it was agreed that a broad approach would be
followed for the
definition of extraordinary work”. He said that he did
not know exactly what it meant. The decision
came from the
management committee that they would pay a redeployment allowance
during the strike. Botha could answer whether
they wanted legal
advice to understand if it were lawful. The practice was to pay
the R300.00 daily allowance during strikes
or stays away. It
was put to him that the point of offering the money was to encourage
the employees not to strike because
it dangled a big carrot to
someone who went on strike and did not get the R300.00 daily
allowance. He said that he did not
fully agree with what was
put to him. The amount was paid to keep the operations going on
and to meet customer needs, generate
income and have job security.
There are certain laws about what a union and an employer can do
during the strike. Employees
who were not on strike would be
redeployed and paid the R300.00 daily allowances. The second
reason was that they agreed
to do work outside the scope of their
employment contract. A person who was on strike could not be
paid R300.00 a day since
he or she did not receive a salary. He
was asked if the respondent was contractually obliged to pay
R300.00 to those
who volunteered to do it outside their contract.
He said that it was not documented that they would receive it and he
did
not receive it. A gratuity is a thank you gift as an
appreciation. The employees were not obliged to do the work
done
by strikers. The respondent should have raised the
redeployment allowance with the union like they did for example with
the
specialist, educational, subsistence and medical aid allowances.
He was asked what would have happened if the union was approached
about the redeployment allowance. He replied that it would have
taken about five minutes. He did not agree that the
redeployment allowance was hidden but agreed that it was not
documented and did not know why it was not documented. It was
put to him that it was not documented because it was wrong.
They performed and were paid and a decision was taken eight days
into
the strike. He was not at the management committee meeting of 4
July 2006 where it is recorded that “people who
are
disadvantaged as a result of the negotiations must be identified and
the company must commit to recognize their efforts in
the future and
individuals and their families are to be rewarded over and above the
R300.00 day allowance”. He said
that the practice was
that those who were redeployed got an allowance and no families were
rewarded. Redeployment means doing
something different from
what he is supposed to do. If a person is asked to do something
else for three days, it is a redeployment.
Deploy means to take
someone from one area to another. Acting appointment is when a
person is promoted to a job at a higher
level than the position that
they are in. If a person moves from the position of a
supervisor and works in the production
site, it is a lower job.
He was asked that where a person earns R5 000.00 per month and earns
R233 a day and now is paid
R527 whether it was a genuine redeployment
allowance. He said that it was in terms of their policy and the
goal was to keep
the production going. He was asked why this
was a flat fee. He said that there were other allowances that
were flat
fees like travelling, education and medical aid.
15.
The respondent according to Achmat, paid redeployment allowances of
R1 040 004.00 which was not specifically budgeted.
This
was received from the respondent’s day to day expenses.
Labour was overspent and he was not sure if they received
authority
but the instruction was to keep the operations running. They
capitalised this under project allowance and others
were not
captured. There was no line item in the pay slip as a
redeployment allowance or project allowance. It was
put to him
that this is money paid to people to do work during the strike and
was awarded to them. He said that it was called
a project
allowance. The amount spent on food was R296 800.09. They
were given meals for having worked longer hours
and for sustenance.
Employees usually bring their own meals. It was unplanned
overtime and they could not make arrangements
for food. It was
put to him that the reason they were given this was different in that
it was a special reward, a moral booster
for non strikers and to
thank them for doing long work. He said that it was not
entirely correct. Food was given only
to redeployed people and
in certain instances to others who were not redeployed. The
difference is the token of appreciation.
It was to thank them
for doing the work, the commitment shown and going the long mile.
With the planned shut downs they were
thanked by the senior manager
and a braai was given. This was not on a daily basis and was
only when the need arose.
He did not know in what context the
words “moral booster” was used. They used an out
sourced company to fetch
the meals. He was not part of the
decision to provide meals and to extend it to others. He did not get
biltong. He
knew of employees who received Kentucky, Wimpy, and
curry and rice. He agreed that during the strike the overtime
worked
was doubled. They did this by letting the non striking
employees do the work of striking employees. They had to work
longer hours. They used to work 8 hours but were now working 12
hours. In terms of the policy if a person was removed
from his
current occupation and worked for a period of time, he received
overtime. The respondent was contractually
obliged to pay the
overtime. Besides the overtime, they received an extra
R300.00. There were instances in engineering
where they worked
daily 8 hours and than worked 12 hours overtime and they got paid
overtime and the R300.00. Somebody like
Talmakkies worked 108
hours overtime and 45 hours of rest day that is higher than his
ordinary month. Except in a strike,
they did not work so much
overtime unless they were asked to do so. In a furnace shutdown
or break down, they worked long
hours overtime. It was put to
him that a further advantage not being on strike was the opportunity
to work many hours of
overtime. He said that there was an
opportunity but not a blanket opportunity. They received this
when they were redeployed.
They could only work longer hours of
overtime in terms of the BCEA if they received a determination.
The people in the North
have 12 hour shifts. They worked four
days and there is an agreement with the union to vary it. His
understanding is
that the determination applied to all employees.
If he looks at the current variation, it applied to specific
employees.
He did not know why the application form for the
determination was not placed before the Court. The
determination was discussed
as a team about what it meant. He
agreed that an application to the Minister must be served on the
union for their comment.
It was not served on NUM. The
application only referred to four employees. The four employees
were NUM members falling
under the shop agency agreement. If
they were not given permission, they could not work longer than 40
hours overtime a month. If
the threshold applied and they worked more
than 40 hours overtime a month, they would be acting unlawfully in
normal circumstances.
The respondent would be acting unlawfully
if it paid more than the threshold in breach of it and only if it
applied to four employees
only. NUM was not approached when the
application was made for the determination since they were in an
abnormal situation.
The respondent did not have to pay the
striking employees R1 557 706.73. At the Smelter in an
unplanned shutdown, the employees
received meals from Wimpy, KFC and
Excellsia. This was the same place where the meals were
provided for during the strike.
The total figures for overtime
in March 2006 before the strike was R368 956.93 and in April R353
115.93. The wage increase
was implemented for non bargaining
unit employees on 1 April 2006 and for the striking employees on 1
June 2006 and back pay from
August. The increase affected the
overtime pay since it was linked to their salaries. No person
could be forced to
be redeployed. They could not instruct
anyone to be redeployed.
16.
Johan Rossouw is employed by the respondent as an engineer
operator. He fixes electrical breakdowns and is a member
of NUM. He used to be a production operator. He was asked
by the group leader to work in the plant during the strike.
He
did operations that are normally done by a plant operator. It
is different to what he was employed to do. An engineer
operator does not work shifts. A production operator works a
12-hour shift. He was not told that he would be
paid if
he were redeployed nor did he know of the payment. He worked 2
to 3 days and heard through the grapevine that they
would get
allowances for being redeployed. This would be where he is
moved from one department to another like for example
from
engineering to production. He received payment for the days
that he had worked as a production operator and when he
went back to
work as an engineer operator he did not get the allowance. He
worked overtime usually on weekends when there
were no production
operators and sometimes he was called at 16h00 and told that he would
have to work until 19h30 when the others
did not want to work.
They were given meals when he worked in the plant. As an
engineer operator, he did not receive
meals every day. They
would on some occasions when the engineer thanked them for their hard
work, receive a meal. This
happened two or three times.
He did not think that everyone should be receiving a redeployment
allowance. A person
should only get it when the person is
redeployed. If a person is on standby that person gets a
standby allowance and if he
is not on standby he does not get it.
17.
Louis Martinus Booysens is employed by the respondent as the
operations manager at the Smelter site for five and half years.
There is an operations manager at the Mine site and the operations
furnace. Booysens’s responsibility as an operations
manager is to maintain production level for all the plants and
operate it with due regard to safety and environmental issues.
Most employees are employed on an operation level and the majority
are in the production operative positions. If the
bargaining unit employees do not work for one day, the plant should
be shut down. There will be opportunity losses and
consequential
damages to equipment. As a result of the strike,
it was foreseen that there would be a possibility that the respondent
might
not have the services of the production employees and other
operations and there would be operations disruptions. The
respondent
had prepared an emergency preparedness plan that appears
at page 201. They analysed what critical work had to be
performed
and took stock of the inventory in terms of other people
that had to help out. They listed out the requirements and the
number
of people required if they had to be successful to maintain
the operations. The plan was prepared when there was going to
be a strike or a situation. This plan was created last year by
the operations manager. If there is a withholding of labour,
they
looked at the critical position and ensure that they keep the
operations running. They had to see if it were possible
to redeploy people to keep the plant running. Everybody who was
willing to perform such duties was redeployed. Nobody
was
excluded. They did it on the assumption that most of the
bargaining unit employees would not be available. They
looked
at the skills’ levels. Some positions require licences or
permits and they see who had it. They looked
at the lower
skills’ levels and had to see who was available and
volunteered. Nobody was forced. A person could
volunteer
but it was filled on a need basis. A person could be omitted
where there was no position or requirement available.
When the
strike started a large contingent of the workforce did not arrive for
work. They worked two 12 hour shifts.
The volunteers were
not asked to come at night. They normally worked day shifts.
They had volunteered to do night shifts.
On the first morning,
they were told to come during the night shift. The respondent
had to wait and see which of the employees
reported for work and if
there were vacancies they than used the volunteers to fill it.
When the strikers returned, there
was no further need to redeploy and
the redeployed employees went to their normal positions.
18. Booysens sit in the
management committee meetings. An R300 daily allowance was paid
to certain employees. The decision
to pay them was taken at the
meeting of 27 June 2006 that was some eight days after the
commencement of the strike. The management
committee minute is
not a verbatim recordal of what was discussed. It is a general
description and the action parts were
listed. It is recorded in
the minute that it was agreed to make more regular payments to
employees working during the strike
and that payments would be paid
in their bank accounts. Previous strikes lasted for a day to 3
to 4 days. The respondent
paid allowances whenever they
occurred after the strikes took place and during the normal pay
roll. It became evident that
the 2006 strike was going to be a
protracted one and there was a discussion about whether the payments
should be made at the end
or interim payments should be made.
There was a further management committee meeting on 18 July 2006.
It was recorded
that it was agreed to pay employees who were doing
work outside their normal duties their allowances at the end of the
month with
their salaries. The supervisors and operations
managers had to sign the name lists of those who qualified.
This was
a regular payment. It is also recorded in the minute
of 27 June 2006 that they should consider incentives to the employees
and their families who were at work during the strike not a monetary
contribution but a moral booster. This was debated.
Sense
then prevailed and only the redeployment allowance was paid. In
terms of the industrial action, people have the right
to strike.
This right cannot be infringed. Giving a redeployment allowance
was sufficient and it was decided not to
give any other
incentives. The redeployment was not given as an incentive but
for working outside their normal duties.
The minute also
records that the respondent should continue with small tokens of
appreciation to everybody at work like lunches
etc. The
thinking was that management from its side should show appreciation
for the employees doing more than what was expected
of them. It
was an expression of gratitude, an appreciation and token in terms of
lunches to people working 12 hour shifts.
Meals were given to
them. It is recorded that Hans Botha who was the human
resources manager had to consult with C Lotter,
a legal advisor of
Anglo American, about the payment for conducting extraordinary work.
It was agreed that a broad approach
would be followed for the
definition of extraordinary work. They had to seek legal
opinion on the payment of redeployment
allowance. The issue was
debated and it was raised whether it should be extended to everybody
working and the feedback after
consideration was that it was a
defensible position to pay to those doing outside normal duties.
Booysens did not attend
the management committee meeting of 4 July
2006. He has a subordinate, Errol Matthews who attended on his
behalf. It
was recorded that once they had returned to normal,
the overtime must be normal. They would revert to the normal
shifts and
two shifts would not be required. It is recorded in
the minute that people who are disadvantaged as a result of the
negotiations
must be identified and the respondent must commit to
recognise their efforts in the future. Individuals and their
families
are to be rewarded besides the R300.00 daily allowance.
He was not aware of the awards besides the allowance paid.
Meals were provided during the strike and it was not normal to
provide meals. The current policy is that when they exceed
12
hours or it was an unplanned basis the respondent would provide
meals. People were given meals as a token of appreciation
and
it was not normal circumstances. He saw the application for
exemption of over time at the preparedness and emergency plan.
He did not
discuss the number of persons with Nel. Four
employees sounds on the low side.
19.
Stanley Theron commenced employment with the respondent on 8 October
1997 as an operator in the receiving and despatch area.
He was
promoted on 1 December 2006 as a production controller in the
receiving and despatch area. During the strike he was
a member
of NUM in the bargaining unit. He did not take part in the
strike because he thought that NUM’s demand was
not reasonable
especially in relation to the demand for an R900.00 increase housing
subsidy allowance. He was not redeployed
because he was needed
in his area. There used to be 18 employees but 16 took part
during the strike. Two did not take
part in the strike.
He received his normal salary plus overtime. Those who received
redeployed allowance received it
because they were working in
different areas. He was happy that he was not redeployed and
was not paid like the others were.
The fact that people
received redeployment allowances will not stop him from striking and
it depends on the demands. He received
meals with the other
employees who were redeployed.
The parties
submissions
20.
Mr Kahanovitz who appeared for the applicant contended that chapter 2
of the LRA contains general protections intended to reinforce
and
further protect the right of employees to participate in the lawful
activities of trade unions. One such activity is
the right of
trade unions and their members to engage in protected strike action.
Chapter 2 of the LRA recognises that difficulties
may be encountered
by employees in proving that different treatment of union members and
strikers was in breach of the rights or
protections conferred by
chapter 2. Section 10 provides that in any proceedings where a party
alleges that a right or protection
conferred by this Chapter has been
infringed, must prove the facts of the conduct; and the party who
engaged in that conduct must
then prove that the conduct did not
infringe any provision of this Chapter. The applicant must
prove the facts that tendered
to show that its rights protected by
chapter 2 had been breached. Once this has occurred, the onus
then shifts to the respondent
to prove that its conduct of tending to
promote particular category of persons was not in breach of the
chapter 2 protections.
21.
Mr Kahanovitz further contended that by being specially rewarded for
helping the employer to continue production; by agreeing
to do the
work usually performed by the strikers in return for an extra
allowance of R300.00 a day; coupled with the further incentive
or
advantage of receiving daily hot meals as “an energy and moral
boost” the non strikers were being rewarded for being
prepared
to do work that was necessary to break the power of the strike.
They were being rewarded for being prepared to “relocate”
into areas of production most affected by the strike. They were
also asked to work “lengthy shifts” for which
they
received abnormal high amounts of overtime pay (much of which was for
working unlawful overtime hours on dangerous equipment).
Much
was made of whether the conduct of the respondent was commercially
rational. That is besides the point. Breaking
the strike
through illegitimate means may be perfectly commercially rational,
albeit illegal.
22.
Mr Kahanovitz further contended that the non strikers were obviously
advantaged because they benefited from the financial and
other
rewards they received for not striking, namely the R300.00 daily
allowance, the abnormal overtime work made available and
the meals,
food, drinks and snacks not received in circumstances where there is
no strike. The amounts paid by the respondent
indicate that
little expense was spared in endeavouring to break the power of a
strike through those methods. Thus, R1 040
000.00 was spent on
the daily allowances of R300.00. R268 094 was spent on food and
beverages and R899 328,00 on overtime
in July 2006 compared with the
monthly average of R420 231 for the period February to May 2006 or
for example R353 115,00 in April
2006. Those amounts could be
paid without the respondent having to suffer any serious pain because
the amount saved on not
having to pay wages to striking workers was
R1 500 000,00 in July 2006 alone. Similarly the strikers were
prejudiced for
purposes of section 5(2)(c) of the LRA in two senses.
First they were prejudiced in their ability to exercise their right
to strike because illegitimate methods not sanctioned by law were
used to negate the impact on the strike on the respondent.
Secondly they were prejudiced because by exercising their right to
strike, they were not placed in a position such as witnesses
like
Talmakkies and Afrika who could double or triple their usual earnings
by doing the work usually done by those who were on
strike.
Different classes of non strikers were also treated differently with
those prepared to perform blackleg labour earning
a bonus of R300.00
per day for their loyalty.
23.
Mr Gwaunza for the respondent contended that the applicant must prove
the objective facts that establish that the respondent
discriminated
against the strikers for exercising their right to strike.
Further that the respondent prejudiced or threatened
to prejudice
strikers for present membership of the applicant and the respondent
advantaged, or promised to advantage persons in
exchange for not
exercising the right to strike. If the objective and external
facts are established by the applicant, it
is for the respondent to
show that it had no mental intent as to drive itself into the ambit
of section 5 of the LRA.
Inter
alia
the respondent must prove that the
motivation underlying its conduct was not such that it discriminated
against the strikers for
exercising the right to strike, prejudiced
or threatened to prejudice strikers for present membership of the
applicant and advantaged
or promised to advantage persons in exchange
for not exercising the right to strike.
24.
The respondent did not deny that it paid the R300.00 redeployment
allowance to non-striking employees or that it provided meals
to
non-striking employees or that it required non-striking employees to
work overtime and made payments in relation thereto.
However,
in so doing, the respondent denies that it contravened sections 5(1),
5(2)(c)(i) of the LRA. The redeployment allowance
was a payment
made to selected employees who had agreed to perform duties and/or
work that fell outside the scope of their employment
contracts and/or
outside the scope of their duties and responsibilities. The
respondent did not make an arbitrary decision
on the redeployment and
redeployment allowance. It was a decision that had its roots in
past practices dating to 1998 when
employees were paid an allowance
for working alternative duties during industrial action that affected
the respondent. The
respondent did not deviate from its normal
practice by paying the redeployment allowance. The decision was
well calculated
and informed. The redeployment allowance was
not a payment made to lure people from not going on strike or to
return from
the strike. The respondent had shown that it had no
mental intent such that it drove itself into the ambit of section
5(1)
of the LRA by paying the redeployment allowance. The
respondent’s conduct did not prejudice the strikers because of
their present membership of NUM or similar reasons to those above.
The redeployment allowance was not an advantage
given to employees in
exchange of them not striking.
25.
It was further contended by the respondent that the rationale for the
light meals is an energy and morale boost for employees
who are
required to work long shifts at critical times and to sustain them
during the lengthy shifts that the employees are otherwise
not
ordinarily accustomed to working. The respondent provided meals
to redeployed employees who had to work long shifts.
The
respondent has a long practice of providing meals to employees who
are required to work long shifts because of the happening
of certain
events such as extended shut downs, break downs etc. This
practice was applied to redeployed employees who were
required to
work long shifts and later to other employees who worked in the same
area as the redeployed employees. Not all
employees received
meals. The respondent’s motive in providing the meals was
not to discriminate against strikers because
they were striking or to
prejudice the strikers because of their membership of the union nor
was it to advantage or promise to
advantage an employee in exchange
for them not taking part in the strike.
26.
It was further contended that the respondent applied for a variation
of section 10(1)(b) of the BCEA in respect of four employees.
On receipt of the determination, the respondent interpreted the
determination to mean that it applied to all employees at the
respondent who would have needed to be covered by the determination
to work the extended overtime hours. The respondent in
good
faith relied on the determination when permitting those employees who
would have needed the determination to work extended
overtime hours
to work the hours referred to in the determination. The
respondent required the employees who worked overtime
during
June/July 2006 to work such overtime to meet its operational needs.
Accordingly the employees worked overtime on a
need’s basis and
whenever required to do so. To the extent that the respondent
misinterpreted the determination, then
those employees who had
thought that they were covered by the determination and worked more
overtime than the statutory maximum
would have done so unlawfully.
The respondent made a
bona fide
error of interpretation. However its conduct was not motivated
by a mental intent to discriminate against the strikers for
exercising their right to strike or to prejudice strikers because of
their membership of NUM or to advantage or promise to advantage
non
strikers in exchange for them not exercising their right to strike.
27.
The respondent did not engage in any conduct with the mental intent
as might have brought itself within the ambit of section
5 of the
LRA.
Analysis of the
evidence and arguments raised
28. The respondent’s
business involves the recovery of heavy minerals from sand deposits
on the West Coast of South Africa.
Its operations are spread
over three geographical sites in the Western Cape, being the Smelter
site in Vredenburg; the Mineral
separation plant in Koekenaap near
Vredendal and the Mine site in Brand-se-Baai that is also near
Vredendal. The business
conducted by the respondent at its
premises operates 24 hours a day and some of its employees work day
and night shifts.
29.
NUM is recognised by the respondent as the collective representative
of various employees of the respondent who are its members
in the
bargaining unit. There is a recognition agreement between NUM
and the respondent. NUM is the sole collective
bargaining agent
for employees who are its members in the production line. There
are approximately 472 bargaining unit employees.
The
respondent’s total employees compliment is 957. Wage
negotiations commenced between NUM and the respondent in February
2006. After several meetings between NUM and the respondent,
the parties were unable to agree. On 5 May 2006, NUM referred
a
dispute to the CCMA. A conciliation meeting on 14 June 2006
failed to resolve the dispute and the CCMA issued a certificate
of
non resolution on the same day. On 15 June 2006 NUM notified
the respondent of its intention to commence strike action
with effect
from 19 June 2006 in support of an increase in the housing allowance
and wage increment. The protected strike
action commenced on 19
June 2006 and ended on 31 July 2006. Most of the bargaining
unit employees who participated in the
strike works in the
respondent’s production unit affected most by the strike
action. Not all the bargaining unit employees
participated in
the strike action. The strike ended after the wage
negotiations between the applicant and the respondent
were settled.
The parties agreed
inter alia
to a 7.25% increase to the basic monthly salaries of bargaining unit
employees with effect from 1 June 2006.
30. During the protected
strike action, the respondent provided meals to most of the non
striking employees on a daily basis.
It also paid a
redeployment daily allowance of R300.00 to some non striking
employees and employees worked overtime more than the
statutory
limit.
31.
The applicant referred a dispute to this Court for adjudication in
terms of section 9(4) of the LRA after conciliation had failed.
The applicant contended that the respondent breached the provisions
of section 5(1) and (3) of the LRA. Section 4(2) of the
LRA
provides that every member of a trade union has the right, subject to
the constitution of that trade union to participate in
its lawful
activities.
32.
Section 10 of the LRA deals with the burden of proof in disputes that
this Court is required to adjudicate. In terms of
section 10(a)
of the LRA a party, in this case the applicant, who alleges that a
right or protection conferred by Chapter 2 has
been infringed must
prove the facts of the conduct. In terms of section 10(b) the
party, in this case the respondent, who
engaged in that conduct must
then prove that the conduct did not infringe any provision of Chapter
2. I share the views expressed
by Arendse AJ in
Food
& Allied Workers union & others v Pets Products (Pty) Ltd
(2000) 21 ILJ 1100 (LC) at pages 1110 and 1111 where he has dealt
with the issue of onus.
33.
The right to strike is a right enshrined in our Constitution.
The right to strike is an important right that employees
have
acquired after years of struggle in the workplace. The LRA has
placed certain limitations on the right to strike.
Section 4(2)
of the LRA grants every member of a trade union the right subject to
the constitution of that trade union to participate
in lawful
activities of that trade union. The right to strike is one such
right. Section 5 of the LRA grants employees
certain
protections. Section 5(1) outlaws discrimination and states
that no person may discriminate against an employee for
exercising
any right conferred by the LRA. In terms of section 5(3) no
person may advantage, or promise to advantage, an
employee or a
person seeking employment in exchange for that person not exercising
any right conferred by the LRA or not participating
in any
proceedings in terms of the LRA. However, nothing in this
section precludes the parties to a dispute from concluding
an
agreement to settle that dispute.
34.
It was not seriously contested that the protected strike that the
members of the applicant took part in is a lawful activity
referred
to in section 4(2) of the LRA. The issue that needs to be
decided is whether the daily allowances that were paid
to non
striking employees who were redeployed, the excessive overtime worked
and the provision of meals fell foul of the provisions
of section 5
and in particular section 5(3) of the LRA.
35.
It is common cause that most of the bargaining unit employees who
participated in the strike action work in the respondent’s
production unit that was most affected by the strike action.
The business conducted at the respondent’s premises operates
24
hours a day and some of its employees work day and night shifts.
There was a need according to the respondent to keep
the production
unit running. It had to put contingency plans in place.
The respondent requested non-striking employees
to perform duties
and/or work that fell outside the scope of their employment contracts
and/or outside the scope of their duties
and responsibilities in
areas such as the production unit where the respondent needed
labour. Most of the employees who were
redeployed were persons
who did not work in the production unit. A total of 222
employees was redeployed in terms of the
contingency arrangements and
of these 42 were bargaining unit employees who were not participating
in the strike action and 180
were non bargaining unit employees. They
were paid an R300.00 daily allowance for the days that they were
redeployed. The
total paid was R1 040 000.00. The
respondent continued operating its business running at reasonable,
though not normal, levels
during the strike action. The
employees who were redeployed received their normal remuneration
during the redeployment.
Those of them who qualified for
statutory remuneration for overtime received overtime payments.
R268 094.00 was spent on
food and beverages during the strike.
Most of the non striking employees worked overtime more than the
statutory limit.
In July the overtime paid was R899 328.00 that
was almost twice the normal amount before the strike.
36.
It is clear from the evidence led that the R300.00 daily allowance
was only paid to the employees who were redeployed.
Food was
also provided to employees who worked shifts and in one instance to
two employees who were not redeployed but who were
working with
employees who were redeployed. The respondent has provided
meals to employees who had worked excessive overtime.
The
parties are in dispute about the circumstances under which the meals
have been provided by the respondent to employees in the
past.
The respondent provided meals to non striking employees during the
strike action. It is in dispute whether the meals
were provided to
some or all non-striking employees. The meals differed from
time to time and included beverages, KFC street
wise two meals, curry
and rice, biltong, pizzas, chocolates etc. None of the striking
employees received the R300.00 payment
or meals from the respondent
during the strike action. It is common cause that the payment
of R300.00 per day and the provision
of certain meals to non-striking
employees during the strike action is not a written term and
condition of employment; is not regulated
by an individual contract
of employment and is not regulated by a collective agreement.
There is no written term or condition
of employment prevailing at the
respondent that employees are remunerated for work done besides the
normal contractual entitlements.
37.
The respondent’s rationale and defence for the payment of the
redeployment allowance is that it is a practice that exists
at the
respondent. It was its token of appreciation to the employees
who volunteered to be redeployed and, therefore, agreed
to perform
duties and/or work that fell outside the scope of their employment
contracts. The employees were paid for their
extra effort
beyond the call of duty and individual effort in assisting the
respondent to meet its operational needs. The
employees who
were redeployed and worked shifts of 12 hours or more were provided
with light meals on the days that they actually
worked during the
redeployment in terms of the respondent’s practice. A
decision was taken to provide light meals to
other employees who were
not redeployed but who worked similar shifts to the redeployed
employees and/or worked in the same areas’
as/with the
redeployed employees so that the respondent did not differentiate
between the employees and to prevent tension between
them. The
rationale for the light meals was that it was an energy morale
booster for employees who were required to work
long shifts at
critical times and to sustain them during lengthy shifts that the
employees are otherwise not ordinarily accustomed
to working.
38.
The applicant’s witnesses testified that they were not aware of
such a practice to pay a redeployment allowance.
More
importantly Carolus, a NUM shop steward testified that no such an
allowance was discussed with them but conceded that there
are some
allowances that do not appear in their substantive agreement with the
respondent but do exist. An example was the
subsistence
allowance. Achmat on the other hand testified that when he
joined the respondent in 1998 he found that there
was such an
allowance which he conceded was not documented any where. He
called this an
ad hoc
allowance that was solely in the discretion of management.
Reliance was also sought in referring to various letters given
to
employees over a ten-year period for work performed during the strike
action. Achmat conceded that the allowance was only
given when
there was protected and unprotected strikes, stay away or wild cat
strikes. So for example on 14 May 1998 a T
Celliers was given a
cheque for R250.00 for alternative duties performed during stay away
action on 11 May 1998. On 11 July
2005 the amount was increased
to R300.00 also for having performed alternative duties performed
during stay away action on 27 June
2005. The rationale for
giving this “is in recognition of alternative duties performed
and/or flexibility shown during
the stay away action on 27 June
2005”. On 28 April 1999 Celliers was given R250.00 for
working during the unprotected
strike over the period 20 April 1999
to 22 April 1999. On 12 April 2000 he was paid R250.00 for
having worked during the
stay away action over the period 13 March
2000 to 17 March 2000. On 11 July 2005 DA Adams was paid
R300.00 for alternative
duties performed during the stay away action
on 27 June 2005. On the same day HAP Cornett was paid the same
amount for the
same reason and like AP de Beer.
39.
The obvious question that arises is why this practice to pay the
redeployment allowance was not discussed with NUM, why it was
shrouded in secrecy and hidden from it. This question was
partly answered by Achmat who said that if it were discussed with
NUM, the matter would not have lasted for more than five minutes.
NUM would clearly have declared a dispute and would have
approached
this Court for appropriate relief including an order to declare that
practice as unlawful. This explains why the
practice was not
documented. This was a tool used by management in strike
situations. The amounts that were paid did
not appear as a
separate line item in the budget. The evidence before me
indicates that it was only paid out in strike situations.
The
letters given to employees who worked during previous strikes states
that it was for alternative duties performed during strike
action.
It was not called a relocation allowance. It is therefore
my finding that it has been shown that a practice
existed which was
shrouded in secrecy to pay employees who performed alternative duties
during strike action. The legality
of the practice was raised
at one of the respondent’s management committee meeting where
an instruction was given to seek
legal opinion on it. This
clearly suggests that the respondent had some doubts whether this
practice would be defensible
and whether it falls foul of the
provisions of section 5(3) of the LRA. The fact that the
respondent had such a practice
for a number of years does not render
it lawful. The practice to pay the redeployment allowance
applied only in stay away
and protected strikes. This was part
of the Preparedness plan that Booysens testified about.
40. The respondent was
aware of the provisions of section 187(1)(a) and (b) of the LRA that
prevents an employer from dismissing
employees who are embarked in a
protected strike and employees who refuse or indicate an intention to
refuse, to do any work normally
done by an employee who at the time
was taking part in a strike that complies with the provisions of
Chapter IV unless the work
was necessary to prevent an actual danger
to life, personal safety or health. This section in my view
places an indirect
prohibition on an employer to ask non striking
employees to do the work of striking employees during a protected
strike. The employees
who were not on strike were paid to do the work
of non striking employees and the reward for doing this were the
R300.00 daily
allowance and free meals. The respondent clearly
knew that it could not force the non striking employees to do the
work of
their striking colleagues. It therefore came up with
this policy that from the evidence led was clearly to incentivise non
striking employees to do the work of their striking colleagues.
Talmakkies who worked during the protected strike said that
when he
sometimes worked as a tap floor operator not during strikes he was
not paid the R300.00 allowance. This was also
confirmed by
Appollus. None of the employees who did alternative work
outside a strike situation were paid this daily allowance.
They
were either paid a shift or acting allowance.
41.
It is clear from the evidence led that the non striking employees had
a feast during the protected strike action. I find
it rather
strange that Achmat who was at the time a level 3 employee was
redeployed to work at receiving and distribution that
is at level 1,
was paid his normal salary and received the daily allowance. I
had asked him to explain what redeployment
meant and he struggled to
explain what it meant. I would have expected that if there was
a genuine redeployment policy that
this would not have been hidden
and would have been known to everybody. Some of the witnesses
were prepared to work without
been paid the allowance. They
only heard through the grapevine that there was such an allowance.
Management then took
a decision eight days into the strike to pay the
allowance. I am left with no other conclusion but to conclude
that this
was a strategy used by the respondent to negate the
constitutional strike action embarked by members of NUM. This
was an
incentive for other employees not to join the legitimate
strike action so much so that some of the striking employees went
back
to work and were also paid the allowance. The management
minute of the meeting of 4 July 2006 states that people who are
disadvantaged as a result of the negotiations must be identified and
the respondent must recognize their efforts in the future.
Stanley Theron who worked during the strike was promoted in December
2006. Some employees in the North who did not take part
in the
strike were redeployed but were not paid a redeployment allowance
because they did the same work.
42.
There was no rational explanation given by the respondent about why
this
ad hoc
allowance was only paid out to employees who worked during strikes or
stays away. This policy was known only to the management
committee and some employees who were paid this for having taken part
in some strike actions of the past. It was not tabled
at any of
the meetings that the respondent had with NUM. By paying the
non striking employees who were redeployed the allowance
they were
being advantaged in exchange of not taking part in the protected
strike. Some NUM’s members did not take
part in the
strike, were redeployed and received the daily allowances. The
respondent’s conduct by paying the non striking
employees a
redeployment allowance and the free meals contravenes the provisions
of section 5(3) of the LRA.
43. This brings me to the
question of the excessive overtime worked during the strike. It
is common cause that the normal
agreed hours for working overtime
were 10 hours per week. On 30 June 2006, the human resources
manager of the respondent,
a Mrs AA Nell of Smelter made on behalf of
the respondent an application to the Department of Labour for
Ministerial determination
and an exemption on overtime. A
determination was issued by the Director General: Labour in terms of
section 50 of
the BCEA. The provisions of section 10(1)(b) of
the BCEA were replaced. The Director General stated in
paragraph 2(a)
of the determination “That the employees
concerned may exceed the weekly overtime limitation of 10 hours by 20
hours weekly”.
The determination period granted was for
30 June 2006 to 25 July 2006. In paragraph 3 it is stated that
the employers or
employees in respect of whom the determination
applies is “Employees employed by Namakwa Sands Division of
Anglo Operations
Ltd”. Achmat testified that he had made
no inputs in the application made by Nel. He said that the
“employees
concerned” referred to in paragraph 2(a) of
the determination related to the “employees employed” by
the respondent
as referred to in paragraph 3 of it. However he
conceded that the application for Ministerial Determination was for
the Smelter-Production
and had stated in paragraph 5 thereof that the
number of employees affected were four. It is also stated in
paragraph 6 of
the application that “the 4 employees for whom
the variation is sought are familiar with the type of work they are
doing
and by using these employees there is less risk of employees
being injured. Employees are given a rest day at least every
7th day”. It is further stated that the matter was
discussed with the four employees and all have given their consent
for this variation. A copy of their consent was attached.
44.
There is no substance in the respondent’s contentions on the
question of the determination. For some reason best
known to
the respondent, a copy of the application was not initially placed
before this Court. After it was placed before
this Court it
became clear that an application was only made in respect of four
employees at the Smelter. The exemption was
granted only for
the four employees concerned. The overtime worked by the
employees during the strike was far in excess to
that which was
allowed for by the Minister. More than four employees worked
overtime in contravention of the Minister’s
determination.
The said employees were members of NUM. NUM’s consent was
not sought when the application was
made. The employees who
were redeployed received up to three times their monthly salaries
during the strike action.
If Achmat is correct that the
determination is correct and applies to all employees of the
respondent, it means that either the
Department of Labour was misled
and that the other employees worked overtime unlawfully. Mr
Gwaunza conceded that the permission
was only sought and was given in
respect of four employees. The overtime worked during the
strike was clearly unlawful.
45.
There was simply no evidence placed before this Court that showed
that employees who were redeployed when there were no strikes
were
paid this redeployment allowance. I am satisfied that the
applicant has placed sufficient facts before this Court about
the
respondent’s conduct. I am satisfied that the applicant
has proven that the respondent has discriminated against
the its
members. The respondent has failed to prove that its conduct
did not infringe the provisions of section 5 of the
LRA.
46.
To summarise, the respondent’s conduct in paying the non
striking employees the redeployment allowances, the provision
of free
meals and the excessive overtime worked falls foul of the provisions
of section 5 of the LRA. The respondent has
failed to prove
that its conduct did not infringe the provisions of section 4 and 5
of the LRA.
47.
All that remains to be determined is the issue of relief. The
applicant sought an order that I direct the respondent to
pay them
also the same allowance paid by the respondent to non striking
employees. I do not believe that in doing so is competent
for
this Court since the respondent’s conduct was unlawful. I
do not believe that the applicant’s members should
benefit out
of an unlawful conduct perpetrated by the respondent.
48.
The claim before me is not a delictual or damages claim but is one
brought in terms of section 9 of the LRA. The remedies
provided
for in terms of section 193 read with section 194 of the LRA are
therefore not applicable. The applicant’s
claim is also
not founded in terms of the
Employment Equity Act 55 of 1998
.
This seems to be a
sui generis
or a statutory claim. I accept that this Court may in terms of
section 158(1)
(a) make any appropriate order. There is not a
numerus clauses
orders
that this Court can make. There is no definition of what an
appropriate order is that this Court may grant.
Section
158(1)(b)
of the LRA allows this court to make an order in compliance
with the provision of the LRA.
49.
A similar issue arose in the matter of
Food
& Allied Workers Union & others (supra)
where
the Court also refused to grant damages or compensation. I
cannot simply see either in law or logic how I can order
the
respondent to pay to each of the members of the applicant
an amount equal to or substantially similar to the average
financial
advantage received by each non-striking worker through the
payment to them of a daily allowance, the provision
of free food and
the receipt of abnormal overtime payment. The applicant has
simply not made out a case for such relief.
50.
The order sought by the applicant is also fraught with difficulties.
Its members were exercising a right in terms
of the LRA.
No evidence was led by the applicant how the sum for damages or
compensation should be made up. Should
they be allowed to be
paid the excessive over time that the respondent’s employees
had worked which was clearly unlawful?
How many days would they
have been entitled to take off during the strike? How long
would the strike have lasted but for
the daily allowances that were
paid out? How long would the non striking employees have worked
without being paid the incentives?
51.
I do not believe that this is a proper case to order the respondent
to pay the applicant’s members compensation or damages.
52.
A copy of this judgment should be brought to the Director General of
the Department of Labour to deal with the excessive overtime
worked
by the respondent’s employees in clear breach of the Minister’s
determination.
53. There is no reason
why costs should not follow the result.
54.
In the circumstances I make the following order:
1.
The respondent’s conduct in paying a daily allowance of
R300.00, providing
free meals and offering and paying abnormal
overtime wages to non-striking employees was in contravention of
section 5(1)
,
5
(2)(c)(i) and
5
(3) of the LRA.
2.
The respondent is prohibited from engaging in such conduct with
effect from the
date of this order.
3.
The respondent is to pay the costs of the application.
4.
The registrar must bring to the attention a copy of this judgment to
the Director
General of the Department of Labour to deal with the
issue of excessive overtime worked during the protected strike of
June/July
2006 and to act accordingly.
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
APPLICANT
: C KAHANOVITZ INSTRUCTED
BY CHEADLE
THOMPSON & HAYSON INC
FOR
RESP
: KD GWAUNZA OF EDWARD NATHAN
SONNENBERG INC
DATE
OF HEARING :
26 - 29 JUNE 2007
DATE
OF JUDGMENT : 28
NOVEMBER 2007