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[2009] ZALCJHB 82
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Metro Bus (Pty) Ltd v South African Municipal Workers Union obo Members (J738/09) [2009] ZALCJHB 82 (28 April 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: J738/09
In
the matter between:
METRO
BUS (PTY) LTD
APPLICANT
and
SOUTH
AFRICAN MUNICIPAL
WORKERS
UNION OBO
MEMBERS
RESPONDENT
JUDGMENT
MOLAHLEHI
J
INTRODUCTION
[1]
The Metro Bus, a company wholly owned by
the City of Johannesburg seeks an order against the South African
Municipal Workers Union
(SAMWU) in following terms:
“
1.
That the rules of service and process provided for in the rules of
this Court be dispensed with in order that
this matter be heard as
one of urgency in terms of Rule 8.
2.
Interdicting and restraining respondent and/or members of the
respondent from calling on
a strike and/or participating in a strike
action scheduled to commence on 28 April 2009 in terms of a notice
(“strike notice”)
issued by respondent dated 09 April
2009.
3.
Declaring to be unprotected and unlawful the strike action called by
respondent scheduled
for commencement on 28 April 2009.”
Background
to the application
[2]
The issue giving rise to this application
concerns two disputes which SAMWU had referred to the bargaining
council for conciliation
during February 2009. The two disputes were
formulated in the referral form as follows:
“
Our
members want to be moved within the salary band based on years of
service.”
“
Our
members want Ngcobo to be suspended pending a disciplinary hearing.”
[3]
At the conciliation hearing which was held
on 09 April 2009 Metro Bus raised two points
in
limine.
The first point relates to the
demand that members of SAMWU be moved within the salary based on
years of service. Regarding this
dispute Metro Bus contended that the
bargaining council did not have jurisdiction to conciliate it because
it is a matter falling
within the competency of the national
negotiation process and is intertwined to the salary increase or
salaries in general. In
other words SAMWU was not entitled to demand
that the issue be negotiated at local level between it and Metro Bus.
[4]
Although Metro Bus is not a member of the
bargaining council, it by necessary extension, falls within the
jurisdiction of the bargaining
council. Therefore, according to Metro
Bus the bargaining council does not have the national competence to
negotiate issues which
can only be negotiated and dealt with at
national level.
[5]
In its replying affidavit the Metro Bus
amplified its contention that the demand for the movement in the
salary band could not be
negotiated at the local level because that
issue is vested in the central council at the national level in terms
of clause 3.1.2
of the constitution of the bargaining council. Clause
3.1.2 reads as follows:
“
to
endeavour to prevent disputes arising, by the negotiation and
conclusion of agreements on wages, conditions of employment and
all
matters of mutual interest to employers and employers and employees
in local government industry.”
[6]
Metro Bus further argued that an issue that
is of a national nature can only be negotiated at local level if the
local level has
been delegated powers to do so in terms clause 3.1.15
read with clause 3.2 of the constitution of the bargaining council.
[7]
In its answering affidavit SAMWU denies
that Metro Bus does not have jurisdiction and authority to negotiate
an issue relating to
salaries and binds itself to an agreement that
emanate from such negotiations. However, it accepts that minimum pay
for general
workers and annual increments are negotiated at the
national level. It further contends in the answering affidavit that
the issue
relating to whether or not the salary progression can be
negotiated at the entity level, such as Metro Bus is an issue that
can
only be resolved through the provisions of section 24 of the LRA
which means the Court has no jurisdiction to entertain such an
issue.
Section 24 provides that a dispute
about
the interpretation or application of a collective agreement may be
referred for conciliation failing which to arbitration.
Thus
the Court would not have jurisdiction to entertain a dispute
concerning the interpretation or application of a collective
agreement.
[8]
As concerning the demand that Mr Ngcobo be
suspended, it was contended that the bargaining council could not
conciliate over the
matter because the demand is unlawful and that
any compliance with it would amount to contravention of the Labour
Relations Act
pertaining to the unfair labour practice. It was
submitted in this respect that the suspension of Mr Ngcobo would have
constituted
an unfair labour practice in that after investigating the
matter management found that the allegations concerning corruption by
Mr Ngcobo had no merit and it was for that reason that a decision was
taken not to suspend him. That decision was apparently communicated
to SAMWU.
[9]
The demand to have Mr Ngcobo suspended
because of the alleged corruption has a long history dating back to
2007. The complaint of
Metro Bus is that after the outcome of the
investigation and the decision not to suspend was communicated no
issue was raised by
SAMWU and neither did it take any available legal
step to challenge the decision. Because of this Metro Bus could not
understand
why the demand was raised again in 2009.
[10]
The demand for the suspension of Mr Ngcobo
arose from the allegation that he had approved expenditure in respect
of the expense
that was incurred by one Calvin Mvubu, an employee of
Metro Bus. This expense was incurred in buying lunch for certain
members
of the South African Police Service (“SAPS”) who
were allegedly involved in the investigating certain shop stewards
of
SAMWU. SAMWU alleges that the purpose of buying the lunch the SAPS
members by Mvubu, was intended to entice the SAPS members
to arrest
and assault the shop stewards. It was on this basis that SAMWU
contended, Ngcobo, committed misconduct which warranted
the
suspension and the disciplinary enquiry against him.
[11]
The Metro Bus does not seem to deny the
allegation that Mvubu had bought lunch for the SAPS but submits in
its founding affidavit
that Mvubu had an allowance for entertainment
expenditure or for taking out clients or people on lunch. It also
conceded although
he did not know the circumstances surrounding the
expenditure, Mr Ngcobo authorized its payment.
[12]
SAMWU contends that Metro Bus has not
conducted a proper investigation in relation to its demand that Mr
Ngcobo be suspended for
corruption. It further contends in its
answering affidavit that its demand is not based on the suspension
“
come what may”
but that the suspension be implemented in a manner that does not
constitute an unfair labour practice. In this regard SAMWU relied
on
the decision of Van Niekerk J in the recent unpublished judgment of
City of Johannesburg Metropolitan
Municipality v South African Local Bargaining Council (SALGB) &
Others case number J60/09.
That case,
which is dealt with in more details later in this judgment, deals
with whether or not a demand that an employee be suspended
fairly is
an unlawful demand.
Evaluation
of the application
[13]
In relation to the first demand Mr
Sutherland for the Metro Bus argued that collective bargaining has to
be conducted at the central
level unless delegated to the local level
in terms of the constitution of the bargaining council. He further
argued that that it
would be inappropriate and unlawful to make a
demand on a single municipality to engage on a matter related to
salaries. He did
not in this argument draw a distinction between
municipalities and entities established by municipalities which are
run as independent
entities and have their personality different from
that of the municipality.
[14]
Mr Sutherland did not take issue with the
fact that in terms of section 24 of the LRA the Court did not have
jurisdiction in relation
to disputes concerning interpretation and
application of collective bargaining agreements. However, if I
understood him correctly
the essence of his argument is that the
Court should in the exercise of its inherent powers interpret the
collective agreement
of the bargaining council in the present
instance, to determine whether Metro Bus has the power and authority
to negotiate with
SAMWU on the issue which is the subject matter of
these proceedings. Part of this argument is that the Court should
interpret the
bargaining council agreement to determine whether it
imposes a restriction on Metro Bus from negotiating with SAMWU on an
item
which is of a national nature.
[15]
In dealing with the issue of whether or not
the Court had jurisdiction to consider interpretation and application
of collective
bargaining. Basson J in
Denel
Informatics Staff Association and another v Denel Informatics (PTY)
Ltd (1999) 20 ILJ 137 (LC)
at para 14,
held that:
“
14
Once again, it is clear that the Labour Court does not acquire
jurisdiction in terms of the Act to adjudicate a dispute
concerning
the interpretation or the application of a collective agreement as
such dispute must be resolved by way of arbitration.
It is thus not a
matter to be determined by the Labour Court.”
The
Learned Judge further emphasized the point made above and said:
“
.
. .
the
Labour Court has no jurisdiction to entertain the alleged dispute
about the application or the interpretation of the recognition
agreement and such dispute must be dealt with in terms of the
provisions contained in s 24 of the Act. . .”
[16]
The same approach was adopted in
IMATU
v Northern Pretoria Metropolitan Substructure & Others (1999) 20
ILJ 1018 (T),
where the Court held that
a High Court had no jurisdiction to adjudicate a dispute arising from
the interpretation or application
of a collective agreement. That
decision was followed in
Fredericks and
Others v MEC for Education and Training, Eastern Cape and Others
(2001) 22 ILJ 2603(E).
However, the
decision was overruled by the Constitutional Court in
Fredericks
and Others v MEC for Education and Training, Eastern Cape and Others
(2002) 23 ILJ 81 (CC),
not on the basis
that the principle enunciated in
IMATU’s
case was incorrect but on the basis
that
section 24 of
the LRA does not ousts the jurisdiction of the High Court to
determine disputes that raise constitutional matters
that are
connected with collective agreements.
[17]
Fredericks
concerned
an infringement of the rights of the applicants under ss 9 and 33 of
the Constitution. Their claim was based on the administrative
justice
and equal treatment. The Applicants’ contended that the
Respondent did not act procedurally fairly in the administration
of
Resolution 3 of the Education Labour Relations Council, which the
Court found to be a collective agreement, requiring an interpretation
in terms of its dispute procedure.
[18]
In
Ford Motors
v NUMSA, unreported case number
P32/07
this Court held that:
“
49
In the interim order, I stated that whilst, I agree with the
respondent that matters of interpretation and application
should be
referred to the CCMA or the Bargaining Council, there are instances
where it may be necessary and incidental that the
court has to
interpret an agreement in order to determine whether the provisions
of s65 of the LRA would apply.”
[19]
In my view the interpretation and
application of the collective bargaining agreement is not incidental
in the present instance.
The dispute in the present matter is whether
or not the collective agreement applies to the Metro Bus. Whilst the
collective bargaining
agreement refers to bargaining at national and
divisional levels there is no reference to enterprise bargaining.
There is also
no express prohibition of bargaining at the enterprise
level. Thus the fundamental issue that needs to be determined is
whether
or not the provisions of the bargaining council constitution
governs collective bargaining at the Metro Bus including whether or
not there are certain items for negotiations that are excluded from
being subjects of negotiations at that level.
[20]
I now turn to deal with the demand that Mr
Ngcobo should be suspended. The same issue received attention in the
recent
City of
Johannesburg
the case which SAMWU relied on in support of its case. In that case
Van Niekerk J, held that a demand by a union that an employer
should
comply with the requirements relevant to a fair preventative
suspension was not unlawful.
[21]
In dealing with the issue of whether or not
the demand for suspension of the employee in that case was lawful Van
Niekerk had this
to say:
“
But
is this a lawful demand? I have previously expressed the view that an
employer whishing to effect a fair preventative suspension
must
satisfy three requirements. (See Mosweu v Premier North West Province
and others unreported J2622/08 06 January 2009). The
first is that
the employer must be satisfied that the employee is alleged to have
committed a serious offence.
The
second requirement is that the employer must establish that the
continued presence of the employee at the workplace might jeopardise
any investigation into the alleged misconduct, or endanger the
well-being or safety of any person or property. The third is that
the
employee must be given a hearing in the form of an opportunity to
make representations before the decision to suspend is take.”
[22]
The Learned Judge expressly avoided
answering the question of what might happen if the employer complies
with the fair requirements
relating to suspension but persist with
the decision not to suspend the employee whose suspension has been
demanded. The criticism
of the judgment by Mr Sutherland seems to
centre on this unanswered question.
[23]
Mr Sutherland argued that the judgment in
the
City of Johannesburg
was
clearly wrong and should not be followed by this Court. His criticism
is based on the uncertainty that a
bona
fide
employer faces if he or she
complies with the requirements of a fair suspension after receiving
the demand but at the end thereof
does not suspend the employee
against whom the demand to suspend has been made. The difficulty with
the approach adopted in that
judgment, according to him, is because
it is, decision and not result oriented. The problem with the
decision oriented approach
is the uncertainty that arises as to when
it can be said that strike has ended.
[24]
This problem arises when the employer
complies with the requirements of a fair suspension but at the end as
indicated earlier decides
not to suspend. If the union rejects that
decision it would, according to Mr Sutherland, entail the employer
having to approach
the Court to determine whether or not there has
been compliance. This was contrasted with a case involving a wage
demand. It was
argued that in a wage demand dispute there is
certainty as to when it can be said that there has been compliance
with the demand.
The demand would according to this argument be met
when the employer indicates to the union that it would meet the
percentage increase
as demanded made by the union.
[25]
I do not agree with the above argument
because the same uncertainty about when can it be said that there has
been compliance with
the demand by the employer does in certain
instances arise even with other disputes of interest including wage
disputes. The problem
that may arise was illustrated by the example
given by Mr Van der Riet for SAMWU. According to him the problem in
wage disputes
may arise in an instance where the union for example
demands a 7% wage increase. The employer accedes to the demand but
adopts
a formula different to that which the union may have expected.
The union may for instance contended that subjecting the 7% wage
increase to taxation reduces the amount their members expect to take
home after the increase and therefore insist in pursuing their
industrial action even after the employer conceded to the demand. It
may also arise in relation to how the 7% in this example may
be
applied to benefits and other deductions. The employer may in the
same way be faced with having to approach the Court for a
determination as to whether or not there has been compliance with the
demand.
[26]
In the light of the above discussion I find
no basis to conclude that the judgment of Van Niekerk J in the
City
of Johannesburg
is wrong. I accordingly
align myself with the decision in that case and consider it to be
binding on this Court.
[27]
The question that needs to be answered is
whether Metro Bus has complied with the requirements as set out
above. As indicated earlier
Metro Bus states that the matter was
investigated and came to the conclusion that suspension was
unwarranted. This decision was
communicated to SAMWU in 2007. It was
only in 2009, that the issue was resuscitated. In the answering
affidavit SAMWU does not
deny that the decision was communicated to
it and that it never questioned or challenged the decision since
2007, until recently.
In its answering affidavit SAMWU states that it
denies that the investigation was properly done and that the
behaviour of Mr Ngcobo
can only be dealt with properly if a fair
disciplinary inquiry is conducted against him.
[28]
On the papers before me I conclude that
Metro Bus did comply with the relevant requirements relating to a
fair suspension and decided
that suspension was not appropriate. The
decision was not challenged at the time and therefore a reasonable
inference to draw taking
into account the time lapse is that SAMWU
did not have issue with the manner in which Metro Bus dealt with the
issue. For this
reason the strike action based on this demand would
be unprotected and therefore SAMWU is interdicted from embarking on a
strike
based on the demand that Mr Ngcobo be suspended would
constitute an unprotected strike.
[29]
The next issue to consider is whether or
not Metro Bus has a right not to be faced with a strike arising from
a demand concerning
movement in the salary band. In other words does
the proposed industrial action meet the requirements of section 64
and section
65 of the LRA. In its founding affidavit Metro Bus
contends that the planned strike action does not comply with the
requirements
of section 64 of the LRA because of the unlawfulness of
the demand to have Mr Ngcobo suspended. There is no issue raised
concerning
compliance with the requirements of section 65 of the LRA.
Section 65(a) of the LRA specifically prohibits a strike where there
is a binding collective agreement that prohibits a strike or lock-out
in respect of an issue in dispute.
[30]
The relief prayed for by Metro Bus in its
papers is for a final order. Thus to succeed it has to satisfy the
requirements of a final
interdict. The requirements for a final
interdict as set out in
NUMSA and Others
v Comark Holdings (Pty) Ltd
(1997) 18
ILJ 516 (LC) are - (a) clear right (b) an actual or threatened
invasion of that right and (c) absence of any other suitable
remedy.
[31]
I have earlier indicated that this Court
does not have jurisdiction to interpret collective bargaining
agreements. There is no evidence
that the Metro Bus has referred a
dispute concerning interpretation and application of the collective
agreement to any of the relevant
dispute resolution bodies. In my
view it is only once there has been a determination by an arbitrator
that the collective bargaining
agreement applies to Metro Bus that it
can be said that Metro Bus has a right not to be faced with a strike
arising from a demand
related to wages.
[32]
Mr Sutherland argued that in the
alternative the Court should grant an interim order interdicting the
strike. The requirements for
an interim order are of course less
burden some than those of a final order. All what is required in an
interim order is amongst
others to show the existence of a
prima
facie
right that may even be in doubt.
The first hurdle with the submission for the urgent application is
that this was not prayed for
in the notice of motion neither was an
application to amend the papers made. I am therefore enjoined to
determine this matter on
the papers before me. On the facts and the
circumstances of this case I was not persuaded that the dictates of
justice required
me to go beyond what was pleaded in the papers.
[33]
The evidence on the papers on the other
hand reveals that the planed strike action complies with the
definition of a strike as envisaged
in section 213 of the LRA and
also meets the procedural requirements of section 64 of the LRA. It
would seem to me that the prohibition
provided for under section 65
of the LRA would only arise once the arbitrator has made a
determination that accord with Metro Bus’s
interpretation.
However, as appears from the earlier discussion the same cannot be
said of the second demand. Metro Bus having
complied with the
requirement for a fair suspension complied with SAMWU’s demand
and therefore, I am satisfied that it has
been shown that Metro Bus
has a right not to be faced with a strike based on this demand.
[34]
It is therefore my view that Metro Bus has
failed to show that it has a right not to be confronted with a strike
because there is
a binding collective agreement prohibiting
bargaining on the issue in dispute at the enterprise level.
[35]
Therefore I find:
(i)
That a strike based on or including the
second demand would be unlawful and unprotected.
(ii)
SAMWU is entitled to embark on the planned
strike action based on the first demand which concerns the demand
that their members
be moved within the salary band based on years of
service. The strike action based on this demand would be lawful and
protected.
[36]
The above conclusion means that both
parties have been partially successful and therefore ordinarily costs
should be awarded on
a 50/50 basis. However, because of the on going
relationship between the parties I am of the view that costs should
not follow
the result.
[37]
The following order is made:
(i)
The application is dismissed in relation to
the first demand, which concerns the movement within the salary band.
(ii)
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
21
st
April 2009
Date
of Judgment :
28
th
April 2009
Appearances
For
the Applicant :
Adv R T Sutherland SC with Adv W R Mokhari
Instructed
by :
Werksmans Incorporated
For
the Respondent: Adv J G Van
Der Riet SC
Instructed
by :
Cheadle Thompson
& Haysom Inc