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[2009] ZALCJHB 80
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South African Commercial Catering And Allied Workers Union v Ellerine Holdings (Pty) Ltd t/a Ellerine Furnitures (Pty) Ltd And Ellerine Trading (Pty) Ltd (J684/09) [2009] ZALCJHB 80 (14 April 2009)
THE
LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO. J684/09
In
the matter between:
SOUTH
AFRICAN COMMERCIAL CATERING
AND
ALLIED WORKERS UNION
Applicant
and
ELLERINE
HOLDINGS (PTY) LTD t/a ELLERINE
FURNITURES
(PTY) LTD AND ELLERINE
TRADING
(PTY) LTD
Respondent
JUDGMENT
VAN
NIEKERK J
[1]
This is an urgent application in which the applicant seeks
wide-ranging relief,
inter alia
to interdict the respondents from implementing unilateral changes to
conditions of employment and restructuring its workforce pending
the
final determination of a dispute referred to the CCMA on 6 October
2008. The applicant also seeks the restoration of the status
quo
(including the reversal of any retrenchments put into effect) that
applied to affected employees before the change to their
conditions
of employment, pending final determination of the same dispute. In
this regard, the applicant appears to rely on section
64(4) of the
Labour Relations Act. The applicant further seeks an order placing a
moratorium on any intended store closures and
workplace restructuring
pending the final determination of the dispute referred to the CCMA
on 6 October 2008.
[2] The requirements for interim
relief are well-established. They are:
(a)
a prima facie right, even if open to some doubt;
(b)
a well-grounded apprehension of irreparable harm if the interim
relief is not granted;
(c)
the balance of convenience must favour the granting of an interim
interdict; and
(d)
the absence of any other satisfactory remedy.
(See
Webster v Mitchell
1948 (1) SA 1186
(W)).
When
an application is brought on an urgent basis (as applications for
interim relief inevitably are), the applicant must also satisfy
the
requirements of this court in relation to urgency, and justify a
departure from the provisions of Rule 7 of the Rules of this
court.
[3]
The applicant avers that during 2008, following the acquisition of
the respondent by African Bank, the respondent initiated
store
closures on a large scale. The details of these closures are
chronicled in the applicant’s founding affidavit, and
I do not
intend to repeat them here. In September 2008, the applicant declared
a dispute after the respondent was not prepared
to agree to a
moratorium on what the applicant viewed as the unilateral
restructuring of the workplace, store closures, retrenchments,
the
downward variation of working conditions and the change in status of
permanent employees to what the applicant terms “freelancers”.
The dispute was referred to the CCMA on 6 October 2008.
[4]
In the form 7.11 referred to the CCMA, the applicant invoked the
provisions of s 64(4) of the Act. That section provides that
when a
party refers a dispute about a unilateral change to terms and
conditions of employment to the CCMA for conciliation, it
may require
the employer party not to implement the change or if it has already
done so, to restore the terms and conditions that
applied before the
change. This “status quo” provision endures “for
the period referred to in subsection (1)(a)”,
being the issuing
of a certificate that the dispute remains unresolved, or the lapse of
a period of 30 days, or any agreed extension
of that period,
following receipt of the referral by the CCMA.
[5]
A conciliation meeting was convened on 3 November 2008. For reasons
not germane to this application, the conciliation process
was
postponed for various reasons. On 10 November 2008, the parties
agreed to extend the 30-day period referred to in s 64 (1)
(a) by a
further 30 days. On 10 March 2009, a certificate of outcome was
issued by the CCMA. The certificate records that the dispute
referred
to conciliation remains unresolved (the parties are
ad
idem
that the date of the certificate,
which records the dispute as having been referred on 19 February
2009, is incorrect and should
read 6 October 2008). The certificate
reflects the dispute as one concerning mutual interests and relating
to restructuring. After
the referral of the dispute to the CCMA on 6
October 2008, the applicant avers that the restructuring effected by
the respondent
has continued unabated. The founding affidavit records
various instances of notices of changes to job descriptions,
commission
structures and store closures given during February, March
and April 2009. The respondent denies that it has acted unlawfully in
effecting any closures if its stores or any changes to the conditions
of employment of its employees and avers that at all times,
it has
complied with the requirements of the Act.
[6]
After the certificate was issued, the applicant took steps to
exercise the right to strike. The respondent applied to this court
to
interdict the strike, and on 27 March 2009, this Court (per Basson J)
issued a rule nisi, with a return date of 19 June 2009,
interdicting
any industrial action in support of the demands referred to the CCMA.
The basis for the order, it would appear, was
a concession made by
the applicant’s representative that the matter giving rise to
the strike concerned the procedure adopted
by the respondent in
effecting retrenchments, a matter that is justiciable by this court
and in respect of which there is accordingly
no right to strike. But
that is a matter to be determined by this court on the return day of
the rule nisi, and it is of no consequence
in these proceedings.
[7]
Reverting now to the relief sought by the applicant, the conduct
about which the applicant complains has been the subject of
discussion between the parties since late last year, and a referral
of a dispute to the CCMA in October 2008. On 5 January 2009,
the
respondent issued a formal notice in terms of s 189A notifying the
applicant that it was contemplating “changing the
structure and
process in terms of the service delivery process within the ‘old’
Relyant structure” and inviting
the applicant to consult on the
matter. The union replied on 7 January 2009, rejected the invitation,
advised the respondent that
it should wait for the CCMA set down to
discuss the matter further, and invited the respondent to withdraw
the notice within 48
hours failing which the applicant would approach
this court “for the immediate relief” (sic). That was
three months
ago. Since then, as I noted above, further notices of
closure have been issued by the respondent but, on the papers before
me,
there is no evidence of any one or more events or occurrences
that render this matter urgent and that justifies the setting down
of
this application on less than 24 hours notice, as it was, with a full
set of papers being made available only hours before the
hearing.
There is no harm or prejudice to the applicant that is immediately
pending and that cannot be dealt with in terms of those
provisions of
the Act which provide remedies more specifically directed against
unfair employer conduct in the context of restructuring
and
retrenchment.
[8]
The absence of urgency notwithstanding, I wish to make a few
observations in relation to the prima facie right on which the
applicants rely in bringing this application. Section 64(4) is a
temporary remedy. It may be invoked when a party refers a dispute
to
the CCMA in circumstances where an employer party has or intends
unilaterally to change terms and conditions of employment.
The
employer must restore the status quo or agree not to implement the
changed terms, as the case may be. The penalty for a failure
to
comply with the requirements of s 64(4) is that the time limits
otherwise applicable to the acquisition of the right to strike
fall
away – a union may immediately commence strike action. In these
circumstances, it is doubtful whether this court is
empowered to
grant interdicts enforcing the restoration or maintenance of the
status quo – the section contains its own remedy.
But the
remedy is limited – s 64(4) applies only for so long as the
conciliation process continues; once the period for conciliation
lapses, or once a certificate of outcome is issued, the protection
offered by the section falls away. The purpose of the section
is
clear – once it is invoked, equality in the bargaining position
of the parties is maintained for the duration of the conciliation
process. In the present instance, section 64(4) ceased to have any
effect once the agreed-to extension to the 30 day period lapsed
during December 2008. To the extent that the present application
relies on a right derived from s 64(4), it is misconceived. To
the
extent that the applicant’s complaints relate to events that
occurred after the date of the referral of the dispute to
the CCMA on
6 October 2008, these disputes have not been referred to the CCMA,
nor has the applicant elected to invoke the remedies
established by s
188A(13) to challenge the procedural fairness of any of the closures
announced by the respondent. These remedies
are far reaching, and
contemplate intervention by this court, on an urgent basis if
necessary. The existence of these alternative
remedies is another
reason why this application should fail.
[9]
A submission by Mr. Boboyi, the applicant’s national legal unit
coordinator, prompts me to make a final observation. With
the union’s
unsuccessful attempt to defend the respondent’s application for
an interim interdict in relation to the
applicant’s strike, no
doubt in his mind, Mr Boboyi inferred that the court should be
mindful of the possible response by
the applicant’s members
should the applicant be unsuccessful in these proceedings. The
implication of the submission, as
I understood it, is that an adverse
finding by this court may cause the applicant’s members to lose
faith in the law generally
(and in this court in particular) and to
seek to take matters into their own hands. If my understanding is
correct, this is a regrettable
line of argument. I have already noted
the array of remedies available to unions and employees when
employers seek to restructure
their business in a way that stands to
prejudice the work security of employees. These are an integral
element of a broader purpose
underlying the Act, which is to
encourage the settlement of labour disputes through conciliation and
other means. The applicant
has elected throughout this matter to
adopt a legalistic approach. Of course, this is its right. But should
misconceived litigation
result in strategic setbacks, that is not a
matter for which blame can be attributed to the LRA or this court.
[10]
In relation to costs, section 162 of the Act confers a broad
discretion on the court to make an order for costs according to
the
requirements of law and fairness. Ordinarily, costs should follow the
result, particularly in a case such as this where an
application is
ill-conceived. In
National Union of
Mineworkers v East Rand Gold and Uranium
[1991] ZASCA 168
;
1992 (1) SA 700
(A), the court listed as one of the factors to be
taken into account the collective bargaining relationship between the
parties,
and the prejudice to prospects of conciliation that an order
for costs might bring about. In the present matter, the respondent
states that it remains willing to engage with the applicant on the
issues that are the subject of this application. I would not
want to
compromise the prospects of any conciliation between the parties,
remote as they may seem having regard to the papers before
me, by
making an order for costs against the applicant.
I
accordingly make the following order:
1. The application is not urgent and
is struck from the roll.
2. There is no order as costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of hearing: 9 April 2009
Reasons
furnished on: 14 April 2009
Appearances:
For
the applicant: Mr Boboyi (union official)
For
the respondents: Ms K Savage, Bowman Gilfillan Inc