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[2008] ZALCJHB 49
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Lesedi Local Municipality v South African Municipal Workers Union obo Members (JR435/08) [2008] ZALCJHB 49 (11 March 2008)
IN
THE LABOUR COURT OF SOUTHN AFRICA
HELD
AT JOHANNESBURG
In
the matter between:
Case
no JR 435/08
LESEDI
LOCAL MUNICIPALITY
APPLICANT
And
SOUTH
AFRICAN MUNICIPAL
RESPONDENT
WORKERS
UNION OBO MEMBERS
JUDGEMENT
Molahlehi J
Introduction
[1]
The applicant Lesedi Local Municipality seeks an interim order
interdicting the proposed strike by the respondents which was
intended to commence on 11 March 2008. The application was
opposed by the respondent on the basis of the papers filed by
the
applicant.
[2]
The applicant in challenging the planned strike relied on two
grounds. The first ground concerns the variation of the
certification of outcome of the conciliation by the conciliating
Commissioner. The second ground concerns the provisions
of the
collective bargaining agreement which according to the applicant’s
founding affidavit provides that disputes relating
to salary
adjustment and salary increases are matters that cannot be dealt with
at the divisional level.
[3]
The applicant abandoned the second point during argument.
Background
facts
[4]
It is common cause that the respondent referred a salary adjustment
and salary dispute to the South African Local Government
Bargaining
Council (SALGBC) during June 2007. This dispute was a mutual
interest dispute and concerned as stated earlier,
the adjustment of
the salaries of certain employees and an increase for the rest.
[5]
The dispute was conciliated on 29 November 2007, and the certificate
of outcome was issued promptly. The commissioner
indicated in
the certificate that the dispute ought to be referred to arbitration.
[6]
During February 2008, the respondent addressed a letter to SALGBC
wherein it stated the following:
“
1.
SAMWU obo its members employed by Lesedi Municipality
referred a dispute of mutual interest to the Bargaining Council
on 18
June 207 and a certificate issued that the dispute remains
unresolved.
2.
The commissioner however made a
mistake when indicating where the dispute should be referred to
instead of ticking a strike/lockout,
she ticked the Arbitration
column. It is common cause that a dispute of this nature must
refer for Strike/ Lockout as the
union has requested in both the
referral and conciliation.
3.
We were not able to notice the error
as the certificate to was issued to after conciliation meeting when
the parties where already
on their way out. Our members intend
to serve the employer with the 48 hours notice of commencement of the
strike action.
4.
We therefore request a Bargaining
Council to issue a corrected certificate and allow members to proceed
with their protected strike
action as a matter of urgency.
Although the error is negligible given the precise nature of the
dispute, we prefer the error
to be corrected”
[7]
The Commissioner who conciliated the dispute issued another
certificate (the second certificate) and indicated that the dispute
can be referred to strike or lockout.
[8]
The applicant contended that the second certificate was a nullity
because the Commissioner varied the first certificate without
following due process. The applicant equated the second
certificate to a variation or a ruling or an award and in this regard
argued that the application for the variation of the certificate was
defective as it was not accompanied by a supporting affidavit.
The applicant further contended that the commissioner varied the
certificate without considering its objection to the variation.
[9]
The applicant in its affidavit supporting the objection to the
variation contended that the letter of the respondents requesting
for
the variation did not comply with the provisions of section 144 of
the Labour Relations Act 66 of 1995 (LRA) and also rule
31 of the
CCMA rules which requires that an application be brought on notice.
[10]
The applicant argued that because of failure to comply with the
provisions of rule 31, the second certificate was null and
void.
The other point raised by the applicant is that, it was not afforded
a hearing despite having filed its objection with
the CCMA.
[11]
Having received the second certificate the respondent issued a notice
of intention to commence its strike action on the 11
March 2008.
The notice reads as follows:
“
Attached
hereto please find a certificate of outcome clearly indicating that
the dispute remains unresolved. We have on 22
nd
February, 2008 requested the Bargaining Council to correct one,
common mistake on it’s although it is not a determining factor
in terms of
Labour Relations Act.
In
terms of
section
64(b)
of the
Labour Relations Act 66 of 1995
please be informed that
our members in your employ we’ll be embarking on a protected
strike action on 11
th
March 2008. We are prepared to
engage in discussions with you regarding maintenance of skeleton
staff during the duration
of the strike in certain service. If
you accept our proposal kindly indicate your availability as a matter
of urgency.
Hoping
you will find the above in order.”
The
law
[12]
The procedure to follow before acquiring the right to embark on a
protected and lawful strike is provided for in
section 64
of the
LRA. The relevant part of
section 64
reads as follows:
“
Right
to strike and recourse to lock out
(1)
Every
employee
has the right to s
trike
and every employer has recourse to lock out if-
(a)
the issue
in
dispute
has been referred to a
council
or to the commission as require by this
Act and-
(i)
A certificate stating that the
dispute
remains unresolved has been issued; or
(ii) A
period of 30 days, or any extension of that period agreed to between
the parties to the
dispute
,
has elapsed since the referral was received by the
council
or the commission;…”
[13]
There is no dispute in the present matter that the respondent
referred its dispute of mutual interest to the bargaining council
which after failing to resolve issued a certificate stating that the
dispute remains unresolved. The issue of the nature
of the
dispute is no longer an issue, the applicant having abandoned the
issue of the appropriate bargaining level. The categorization
of the dispute as being that of mutual interest was not contested by
the applicant. The issue that requires consideration
is whether
the commissioner had the power of varying the first certificate or
issues the second certificate.
[14]
In
Metal Steel 1 South Africa Limited v
Solidarity & Others (reported j1655/05),
the court held per Francis J, that:
“
24.2
The certificate
stating that the dispute remains unresolved had been issued
in terms
of section 64 (1) (a) (i) …the certificate is valid until a
competent court has set aside the certificate.”
[15]
The first certificate in the present matter has not been reviewed or
set aside by the court. Therefore the certificate
remains valid
and operative until set aside by the court. The question that
then remains is whether the commissioner has
power to determine the
true nature of the dispute which ordinarily would fall outside the
jurisdiction of the CCMA once conciliation
has failed.
[16]
In
Cape
Gate (PTY) v National Union of Metal Workers of
South Africa & Other
(unpublished J21223/05) Kennedy J held
that:
“…
Neither
the CCMA nor the Bargaining Council and the commissioners have the
necessary jurisdiction to determine whether the strike
is prohibited
or protected particularly at this stage of an attempt to conciliate
the dispute.”
[17]
Thus whether or not a strike is protected cannot be determined by the
mere entry in the certificate of non resolution that
the dispute
should be referred to a particular process. Section 64 (1) (a) (i) of
the LRA simply requires the conciliating commissioner,
to issue a
certificate indicating that the dispute remains unresolved.
There is nothing in the LRA that gives the commissioner
the power to
determine the true nature of the dispute including whether or not the
strike is protected.
[18]
The entry in the certificate by commissioner indicating where the
dispute should be referred serves as a mere guidance to the
parties
as to the next step they may wish to follow in taking forward the
resolution of their dispute. This is however not
determinative
of the true nature of the disputes.
[19]
This court is therefore not precluded from determining whether or not
the strike is protected because of the entry made by
the commissioner
that the dispute be referred to arbitration. The court has the
power to determine what the true nature of
the dispute is, despite
the classification or categorization of the dispute by the
commissioner in the certificate.
[20]
I have indicated earlier that the applicant had abandoned its
contention that the strike was unprotected because the issue
in
dispute relates to matters that cannot be dealt with at the
divisional level. It is evidently clear that the issue in
dispute relates to matters of mutual interest. This the
applicant has not contested in its papers or in argument.
[21]
In summary my view is that the planned strike is protected because in
the first instance there has been compliance with the
provisions of
section 64 (1) (a) (i) of LRA. And secondly by its definition
the dispute which the respondent referal to the
bargaining council is
one which entitles it and its members to embark on a protected to
strike.
[22]
In the circumstances it is my view that the applicant had failed to
discharge its burden of showing that it had a prima facie
right,
(which may though be in doubt) not to be subjected to an unprotected
and unlawful strike.
[23]
Consequently, I make the following order:
1.
The strike called by the respondent constitutes a protected and
lawful strike action.
2.
The applicant’s application is
dismissed.
3.
The applicant is to pay the costs of
the respondent.
_________________
Molahlehi
J
Date
of Hearing:
Date
of Judgment: 11 March 2008
APPEARANCES:
For
the Applicant: W Mkhare
Instructed
by: Werksman Attorneys
For
the Respondent: Cheadle Thompson & Haysom Attorneys