About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2009
>>
[2009] ZALCJHB 103
|
|
South African Broadcasting Corporation Ltd v Communication Workers Union and Others (J1245/09) [2009] ZALCJHB 103; (2010) 31 ILJ 161 (LC) (29 June 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NO: J1245/09
In
the matter between:
SOUTH
AFRICAN BROADCASTING
CORPORATION
LIMITED
APPLICANT
and
COMMUNICATION
WORKERS UNION
1
ST
RESPONDENT
MEDIA
WORKERS ASSOCIATION OF
SOUTH
AFRICA
2
ND
RESPONDENT
THE
PERSONS LISTED IN ANNEXURE
“A”
3
RD
RESPONDENT
THE
PERSONS LISTED IN ANNEXURE
“B”
4
TH
RESPONDENT
JUDGMENT
Nyathela
AJ
Introduction
[1]
This is an urgent application brought in
terms of Rule 8 of the Rules of the Labour Court in terms of which
applicant seeks a final
interdict against the respondents from
issuing a strike notice in terms of section 64(1)(b) and or
participating in an industrial
action.
[2]
The application is opposed by the first and
second respondents.
The
parties
[3]
The applicant is the South African
Broadcasting Corporation Limited, a statutory corporation established
in terms of the
Broadcasting Act of 1999
.
[4]
The first respondent is the Communication
Workers Union, a trade union registered in terms of the
Labour
Relations Act, 66 of 1995
, as amended.
[5]
The second respondent is the Media Workers
Association of South Africa, a trade union registered in terms of the
Labour Relations Act 66 of 1995
, as amended.
[6]
The third to further respondents listed in
‘Annexure A’ are employees of the applicant and members
of the first respondent.
[7]
The fourth to further respondents listed in
‘Annexure B’ are employees of the applicant and members
of the second respondent.
The
facts
[8]
During 2008, the applicant, first and
second respondent as well as BEMAWU (jointly hereinafter referred to
as organised labour)
which is not a party to this dispute, negotiated
and concluded an Agreement on Improvement in Salaries which would be
effective
for a period of three years.
The
clauses of the said agreement relevant to the current proceedings are
as follows:
“
3.
Multi-Term Salary Adjustment
Clause
3.2
“
The annual salary
adjustment on 01 April 2009 shall be based on the 12 month average
CPI-X as at 31 March 2009 plus 1% for the period
1 April 2009 to 31
March 2010 for the financial 2009/10”.
Clause
3.5
“
Should the average CPI-X
drop below 4% or rises to 9% or more, any party to this agreement has
the right to re-open salary negotiations”.
[9]
On 25 February 2009, applicant convened a
meeting with organised labour which was termed a Strategic Planning
Meeting. At the said
meeting applicant discussed various operational
issues such as cost cutting and its budget.
[10]
A similar meeting was held on 23 March
2009. At the said meeting, applicant advised organised labour that:
10.1 “
discussions
on wage negotiations needed to be entered into...
10.2 looking at the
SABC’s financial status it was very difficult not for the SABC
to request a renegotiation on salary increases...”.
In response to an enquiry
by organised labour on what the percentage increase, the applicant
was proposing, applicant stated that:
“...
the SABC had
nothing as yet as they were still following the necessary protocols”.
At the end of the said meeting, the parties resolved that:
10.3 Applicant will
present the 2009 budget to organised labour.
10.4 Applicant will get
mandate from the Board on percentage to be renegotiated for salary
increases.
10.5 Applicant will
convene a feedback session on mandate on salary negotiations after 30
March 2009.
[11]
On 20 April 2009, applicant again convened
a meeting with organised labour to deal with the SABC’s
business situation. Applicant
made a presentation and shared
information with organised labour on its financial standing.
Applicant did not disclose the percentage
increase it was proposing
for the wage negotiations as they were still awaiting a mandate from
the Board to reopen negotiations.
When organised labour insisted that
applicant should make its position clear on whether it was reopening
the wage negotiations
or not, applicant undertook to forward a
communication to organised labour before close of business on 24
April 2009 on its stance
regarding the reopening of wage
negotiations.
[12]
On 21 April 2009, applicant forwarded a
letter to organised labour pursuant to the above undertaking in which
it stated amongst
others as follows:
“
Based
on the CPI-X averaging at approximately 11.27% as at February 2009,
management of the SABC wishes to advise the union of its
intention to
re-open salary negotiations for the period 2009/10, owing to the fact
that the average CPI-X percentage rose above
9%.
Applicant
proceeded to provide time lines for the intended negotiations which
it envisaged it will be concluded by 29 May 2009.
[13]
On 21 May 2009, Malan Incorporated
Attorneys sent a letter to applicant in which it stated that it was
acting on behalf of organised
labour. In the letter, the attorneys
accused applicant of being in breach of the multi year wage agreement
and demanded that applicant
should adhere to the terms of the
agreement and implement the salary increases for the 2009/10 period
as stipulated in the agreement.
[14]
On 22 May 2009, first respondent referred a
dispute to the CCMA against applicant for conciliation. In the
referral form, first
respondent described the dispute as follows:
“
CWU & SABC entered into
Multi-Term Substantive Agreement which is valid for 2008-2011. SABC
failed to implement the percentage
increase of 01 April 2009 without
a valid reason(s)”.
First
respondent stated the outcome it required from conciliation to be
that “
Commissioner should order
the SABC to implement salary increase of 12.85% as provided by the
agreement”.
[15]
On 28 May 2009, applicant held a meeting
with organised labour. At the meeting, applicant presented an offer
for wage increase for
2009/10 of a guaranteed 7% to be implemented
during June 2009, and a further 1.5 % wage increase at the end of
July 2009. Applicant
also undertook to find additional funds to
implement a further wage increase of 1.5% after September 2009. The
total offer made
by applicant was 10%. An agreement was however not
concluded as organised labour still needed to obtain a mandate from
its members.
[16]
The parties held another meeting on 2 June
2009. Organised labour rejected the applicant’s proposed salary
increase. First
respondent demanded a 12.85% increase for its members
while second respondent demanded 12.2% increase. The parties did not
reach
any agreement on the increase.
[17]
Although there are no minutes for the
meetings of 28 May and 2 June 2009, the applicant did not dispute the
fact that the meetings
were held and the contents of respondents’
answering affidavit regarding the discussions in the meetings.
[18]
On 3 June 2009, second respondent referred
a dispute to the CCMA for conciliation. In the referral form, second
respondent classified
the dispute as a mutual interest dispute. It
further summarised the dispute as follows: “
Parties
have deadlocked over wage dispute”. S
econd
respondent stated that it required the implementation of 12.5%
increase with immediate effect as the outcome of the conciliation.
[19]
On 08 June 2009, BEMAWU also referred a
dispute to the CCMA for conciliation against applicant. However
BEMAWU classified the dispute
as one concerning the interpretation
and application of a collective agreement.
[20]
The CCMA consolidated the referral by first
and second respondents including the one lodged by BEMAWU and set
down a conciliation
hearing for the 15
th
June 2009.
[21]
At the hearing of the consolidated dispute,
applicant raised a point in limine that the CCMA lacked jurisdiction
to conciliate the
dispute as the dispute according to applicant is
about the interpretation and application of a collective agreement.
The commissioner
however advised the parties that he will make a
ruling on the jurisdictional point raised at a later stage.
[22]
On 18 June 2009, the CCMA Commissioner
issued a ruling on the jurisdictional point raised at conciliation
and found that the CCMA
had jurisdiction to conciliate the dispute as
the dispute is one of mutual interest. The commissioner proceeded and
issued two
conciliation outcome certificates.
[23]
The certificate issued to BEMAWU classified
the dispute as a dispute about the interpretation and application of
a collective agreement
which can be arbitrated while the certificate
issued to both first and second respondents classified the dispute as
a dispute of
mutual interest which can be resolved by way of a strike
or lock out.
[24]
On 18 June 2009, second respondent served
applicant with a notice to embark on industrial action. On the same
date applicant filed
an urgent application in which it amongst others
sought an order declaring that any strike by the respondents pursuant
to the conciliation
outcome certificate issued on 18 June 2009 under
case number GAJB 16109-09 to be unprotected. Further applicant sought
to interdict
respondents from issuing notices in terms of
section
64(1)(b)
of the
Labour Relations Act on
the basis of the certificate
referred to above.
[25]
Applicant sought the above order as an
interim order pending its application to review the conciliation
outcome certificate.
[26]
On the 19
th
June 2009, the parties reached an agreement which was made an order
of court. In terms of the said agreement, second respondent
withdrew
the notice to strike dated 18 June 2009. The respondents further
agreed not to issue further strike notices until after
the
application has been heard and order or judgement handed down
following the hearing scheduled for 25 June 2009.
[27]
On 25 June 2009, both parties appeared and
advised the court that they will not persue the issue of the validity
of the CCMA conciliation
outcome certificate. Applicant further
informed the court that it now sought a final order.
Issues
[28]
The parties agreed during the proceedings
that despite the papers initially filed, the issues which the court
should determine are
the following:
(a)
Whether there is a dispute between the
parties?
(b)
If so, the court should determine the
nature of the said dispute.
Analysis
[29]
In order to determine whether a dispute
exists between the parties or not, the court should consider the
provisions of the
Labour Relations Act, case
law and the
circumstances pertaining to this case.
Is
there a dispute between the parties?
[30]
Section 213
of the
Labour Relations Act 66
of 1995
defines a dispute as follows: “
A
dispute includes an alleged dispute”.
The
section further states that “
Issue
in dispute”, in relation to a strike or lock-out, means the
demand, the grievance, or the dispute that forms the subject
matter
of the strike or lock out”
.
[31]
In SACCAWU v Edgars Stores Ltd &
Another
(1997) 10 BLLR 1342
(LC) at para G, Zondo AJ (as he then was)
quoted with approval the following definition of a dispute: “
I
think it is unnecessary – and it certainly would be unwise
- to attempt a comprehensive definition of the word dispute
as used
in section 35(1) of the Industrial Conciliation Act. But whatever
other notions the word may comprehend, it seems to me
that it must,
as a minimum, so to speak, postulate the notion of the expression by
the parties, opposing each other in controversy,
of conflicting
views, claims or contentions”.
[32]
In Leoni Wiring Systems (East London) (Pty)
Ltd v National Union of Metal Workers of SA & Others (2007) 28
ILJ 642 (LC) at para
C - D. “
The
fact that a party is unhappy cannot be allowed to form the basis of
that party later on alleging that it was, as a matter of
fact, in
dispute with the other side. I am of the view that a dispute only
arises when the parties in fact express their differing
views and
assume different positions in relation to a specific factual complex.
The mere fact that one party maybe unhappy about
a particular state
of affairs does not give rise to a dispute”.
[33]
In City of Johannesburg Metropolitan
Municipality v SA Municipal Workers Union & Others (2008) 29 ILJ
650 (LC) at para 18. “
I am of the
view that, although it is not a prerequisite that one of the
disputing parties must formally or even expressly declare
a dispute
(as was the case under the previous
Labour Relations Act), at
the
very least the issue referred to conciliation must be an issue over
which the parties have reached a ‘stalemate’
in the sense
that the employer has had the opportunity to reject or accept a
demand put forward by the employees or their representatives.
To hold
otherwise may, in my view, give rise to a situation where employees
may refer any issue to conciliation without first having
afforded the
employer an opportunity to formulate a negative response or to reject
a demand or grievance put forward by the employees
or their
representatives. At the very list the employer should know what the
dispute is about and what is required to resolve the
demand or
dispute.
I
am of the view that this is in accordance with the purpose of the LRA
which is to promote orderly collective bargaining and is
in
accordance with the spirit of the LRA which is to promote the
effective resolution of disputes. Once the employer has rejected
or
indicated through its conduct that it is not willing, for whatever
reasons, to accede to the demand, then the parties will have
reached
a stalemate to the extent that it may be concluded that there is now
‘an issue in dispute’ between the parties
which is
capable of being conciliated and, if unsuccessful, be the subject
matter of strike action”.
[34]
The above case law confirm that for a
dispute to be said to be existing, the parties must be holding
different positions on an issue
and have reached a stage where none
of the parties would like to change its stance.
[35]
In this matter, applicant held meetings
with organized labour on 25 February, 23 March, 20 April, 28 May and
02 June 2009. In all
the meetings, applicant made it clear that its
financial position was such that it could not implement the salary
increase as stipulated
in Clause 3.2 of the Multi Term Salary
Adjustment. Although in the meetings of 25 February, 23 March and 20
April 2009, applicant
did not table its proposed increase, applicant
does not dispute that in the meetings held on 28 May 2009 it proposed
a 10% salary
increase instead of implementing the increase as per
clause 3.2 of the agreement. Applicant further does not dispute that
in the
meeting held on the 2
nd
June 2009, organised labour, after having sought a mandate from its
members, rejected applicant’s offer and instead demanded
the
salary increase of 12.85% (CWU) and 12,2% (MWASA) respectively.
[36]
There is nothing in the papers filed by
both parties and the submissions made that any of the parties
requested that the meeting
be adjourned so that it could reconsider
its position regarding the salary increase. I am therefore satisfied
that the parties
had reached a deadlock on the salary negotiations on
02 June 2009 and thus a dispute existed between the parties as at
that date.
[37]
In view of the above finding, I agree with
the applicant that the referral of a dispute by CWU to the CCMA on 22
May 2009 was premature
as there was no dispute at that stage.
What
is the nature of the dispute?
[38]
In this case, applicant contends that the
dispute at issue is about the interpretation and application of a
collective agreement.
According to applicant, the respondents dispute
that applicant has a right to re-open wage negotiations after 01
April 2009 and
thus this dispute involves an interpretation and/ or
application of Clause 3.2 of the Multi Term Salary Adjustment.
[39]
The respondents and in particular, second
respondent contends that applicant had re-opened wage negotiations
for 2009/10 and the
parties had reached a deadlock during the said
negotiations. Thus according to respondents’ the dispute is one
of mutual
interest.
[40]
In Lesedi Local Municipality v SAMWU &
others (2008) 29 ILJ 2780 (LC) at para 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 categorisation of the dispute by the commissioner
in the certificate
”.
[41]
In SATAWU v Coin Reaction (2005) 26 ILJ
1507 (LC) at page 1512 para D, the court held that the real or true
dispute should be determined
with reference to all the relevant facts
“...
including the referral form to
conciliation, the correspondence immediately before and after
conciliation, the negotiations and
discussions which took place at
the conciliation and the content of the advisory award and affidavits
filed with this court”.
[42]
In this matter, the key issue is whether
applicant had re-opened wage negotiations for the period 2009/10.
[43]
The sequence of events show that applicant
clearly did not want to implement the agreed wage increase for
2009/10 as stipulated
in the Multi year wage agreement due to its
financial position as well as the fact that the CPI-X was more than
9%.
[44]
In the meeting of 23 March 2009, applicant
emphasised the need to re-open negotiations and undertook to provide
organized labour
with its budget and financial information. It
further agreed to obtain a mandate from its Board so that it can
table its proposed
increase to organised labour.
[45]
In the meeting of 20 April 2009, applicant
provided organised labour with a budget and financial information but
once again did
not table its proposed increase. What is crucial is
that when organised labour insisted that applicant should make it
clear whether
it was reopening negotiations or not, applicant
undertook to give its position by not later than 24 April 2009. As a
follow up,
to its undertaking, applicant addressed a letter to
organised labour on 21 April 2009. The contents of this letter should
be interpreted
in the light of the undertaking which applicant had
made to organized labour to make its position clear on whether it was
reopening
negotiations or nor. .
[46]
What is crucial from the letter is
that applicant gave a justification that entitles it to reopen
negotiations, viz: the CPI-X was
more that 9%. It further proceeded
to give a time frame for the negotiations which will be concluded on
29 May 2009. Applicant
does not dispute that after it had given the
time frames referred to above, it proceeded to meet with organised
labour on 28 May
2009 at which meeting it tabled a proposed increase
of 10%. Although applicant argues that the meeting of 28 May and 2
June 2009
were not wage negotiation meetings, applicants does not
state what the purpose of the said meetings were. It also does not
dispute
that salary increase for 2009/10 was discussed in the said
meetings.
[47]
Applicant further does not dispute that
organized labour rejected applicant’s proposed increase of 10%
in the meeting held
on 2 June 2009 and instead tabled a
counter-proposal of 12.2 % and 12.85% for different employees
respectively. It is further not
in dispute that the parties did not
reach any agreement in the meeting of 2 June 2009 and neither party
had requested to be given
more time to reconsider its position.
[48]
In the circumstances, I am of the opinion
that the circumstances and sequence of events outline above show that
applicant had re-opened
the wage negotiations for 2009/10. The
parties did not reach agreement on the proposed and the dispute
declared by second respondent
on the 03
rd
June 2009 is a matter of mutual interest.
[49]
I must state further that the minutes of
the meetings referred to above, show that organised labour
participated in all the meetings
and has been insisting that
applicant should make up its mind on reopening negotiations and table
its proposed increase in the
meeting. Organised labour also
participated in the meetings of 28 May in which applicant tabled its
proposed increase. I agree
with respondents’ contention that
the fact that organised labour’s counter proposal is similar to
the increase contemplated
in the Multi Term Wage Agreement does not
make the dispute one of interpretation and application of a
collective agreement since
there is nothing which precludes a party
from tabling any proposal it deems appropriate during wage
negotiations.
[50]
Applicant’s argument that organised
labour disputes its right to re-open negotiation and thus the dispute
should be regarded
as one of interpretation of a collective agreement
cannot stand in view of the active participation of organised labour
in the
negotiations on wages in all the meetings referred to
above.
Order
[51]
In the premises I make the following order:
(i)
A dispute existed between applicant and
second respondent on 02 June 2009.
(ii)
The dispute between the parties involves a
salary increase for the period 2009/10 and is a matter of mutual
interest.
(iii)
Applicant’s application for a final
interdict is hereby dismissed with costs.
(iv)
The rule nisi is hereby discharged.
_______________
Nyathela
AJ
Date
of Hearing :
25 June 2009
Date
of Judgment :
29 June 2009
Appearances
For
the Applicant :
Mr. P. Maserumule
Maserumule
Incorporated
For
the Respondent: Cheadle, Thompson
& Haysom