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[2009] ZALCJHB 111
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City of Johannesburg v South African Municipal Workers Union (SAMWU) and Another (J1935/09) [2009] ZALCJHB 111 (29 September 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no J1935/09
In
the mater between:
CITY
OF JOHANNESBURG
Applicant
And
SOUTH
AFRICAN MUNICIPAL
WORKERS
UNION (“SAMWU”)
First
Respondent
SAMUWU
MEMEBERS EMPLOYED
BY
THE APPLICANT
Second Respondent
Judgment
Molahlehi
J
Introduction
[1]
The applicant, the City of Johannesburg sought an order on an urgent
basis to interdict and restrain the first respondent (SAMWU)
and its
members from embarking on the planned strike which was to commence on
14 September 2009.
[2]
The applicant has also applied for condonation for failure to comply
with the requirements of
section 68(3)
of the
Labour Relations Act 66
of 1995
.
[3]
SAMWU on the other hand has also applied for an order declaring that
the bargaining council has jurisdiction to entertain its
dispute
concerning salary bands, pay progression and accrued sick leave.
[4]
On the 14 September 2009, this Court made an order on the following
terms:
“
1.
The provisions of the Rules relating to times and manner of service
to therein are dispensed with and the matter
is dealt with as one of
urgency in terms of Rules for Conduct of Proceedings in the Labour
Court.
2.
Failure by the Applicant to comply with the provisions of
section 68(3)
of the
Labour Relations Act 66 of 1995
is condoned.
3.
The Respondents are interdicted and restrained from
embarking or organising or promoting a strike action scheduled to
commence on
15
th
September 2009.
4.
Should the Respondents embark on a strike action on 15
September 2009, such strike action shall be unlawful and unprotected.
5.
Paragraph 3 of this order shall operate as an interim
order pending the outcome of the interpretation dispute referred to
the Bargaining
Council for South African Local Government by the
Applicants.
6.
The counter application by the respondent to declare that the
South African Local Government has jurisdiction to conciliate the
dispute which had been referred to it by the respondent on 10
th
June 2009, is stayed pending the outcome of the interpretation
dispute referred to the Bargaining Council for South African Local
Government by the Applicant.
7.
There is no order as to costs.
Background
facts
[5]
The applicant employs a total of 12300 (twelve thousand) employees
the majority of whom are represented by SAMWU, a union registered
in
terms of the
Labour Relations Act and
recognized by the applicant as
representative of its members. Both parties are members of the South
African Bargaining Council,
a bargaining council registered in terms
of the
Labour Relations Act whose
powers and function are amongst
other things to conclude collective bargaining, to enforce collective
bargaining to prevent and
resolve disputes etc.
[6]
The relationship between SAMWU and the applicant is governed by the
Main Collective Bargaining Agreement (the collective agreement)
concluded during June 20007. The applicant’s case with regard
to the provisions of the collective agreement is mainly based
on
Part
C.
clause 1.1 which reads as follows:
“
1.1 Collective
bargaining may be conducted at either the national level or
divisional level and the appropriate forum shall be determined
by
having regard to the matter that is subject of collective
bargaining.”
[7]
Sub-clause 1.2 of the collective agreement provides for matters that
shall be subject of collective bargaining at national level
only. For
the purposes of the dispute between the parties the relevant items
are those provided for in sub-clause 1.2.1 and 1.2.8.
These
sub-clauses provide that wages, salaries and sick leave are matters
to be negotiated at national level only. The matters
to be handled at
divisional level are listed in sub-clause 1.3 of the collective
agreement.
[8]
The issue that gave rise to the present matter arose on the 10
th
June 2009, when SAMWU referred a dispute to the bargaining council.
The nature and background facts of the dispute are described
in
annexure “A” attached to the referral form and are
summarized as follows:.
“
Summary of the
Facts in Dispute
Summary Back ground
The city of
Johannesburg Municipality is having a salary scale that has three
bends in each an every job ob category. This salary
scale has been in
existence since 1990. Employees used to progress within the salary
scale on the discretion of a Manager. Somewhere
in 1995 the applicant
through collective bargaining processes agreed with the Respondent to
froze or suspend the progression within
the bends with an aim of
addressing salary disparities that were caused by the amalgamation of
black and former white local authorities.
Around 2006 we have
started raising this issue at the Bargaining Committee with an aim of
reintroducing the progression that was
earlier stopped by both
parties. The progression that we want is based on the salary scale
that is applicable within the city of
Johannesburg Municipality. Our
demand is as follows;
1. Newly employed
without the necessary experience - must be given an entry salary
(this is consistent with the city Remuneration
Policy).
2. Employees who can
perform the job independently with minimal supervision (2 years
service) must be paid a median bend of the
applicable salary scale.
3. Employees who have
more experience performing the same function for the number of years
(3 years) must be paid the top notch
bend of the applicable salary.
In the Bargaining
Committee that was held on the 09 and 10 September 2008, the employer
requested to be given an opportunity to
get a mandate from their
principals. They committed themselves that it might take three months
for them to solicit the mandate
from their mandating committee.
On the 27 May 2009
another Bargaining Committee was convened and on that date still the
Respondent did not have a mandate to address
the demand of salary
progression. We promised when the meeting adjourned that we will give
them our proposal that we have tabled
with them on the 09 and 10
September 2008.
We later gave a
written submission of our demand as tabled on the 09 and 10 September
2008. A follow up meeting was to take place
on the 05 June 2009. In
that meeting, the Respondent did not present any counter proposal In
our demand for salary progression,
we decided to refer this matter to
Conciliation.
it is our view that
this is mutual interest dispute and in the event that parties do not
reach an agreement on or before conciliation
we will have a legal
right to participate on a protected strike action.
It is evident that we
do not have a collective agreement that seek to regulate matters
which may not be issues in dispute for the
purpose of strike or
lock-outs. Our Bargaining Council have not determined by collective
agreement matters which may not be issues
in dispute for the purpose
of strikes or lock-outs.
Our view is that this
demand can be addressed by the city of Johannesburg Municipality and
it is a local is5ue where parties can
collectively bargain at
departmental level as we have done.
Accrued Sick Leave
There has been ongoing
negotiations with regard to the accumulated sick leave of employees
employed by the City of Johannesburg
Municipality. Our demand was
that all employees who have accumulated sick leave must be paid those
days instead of them forfeiting
those days. The Respondent has
pronounced in the Bargaining Committee meeting that was held on the
05 June 2009 that it is not
prepared to accede to our demand.”
[9]
The applicant contends in its founding affidavit that the issue
raised by SAMWU in its referral is an old issue concerning salary
bands and salary progressions which have been dealt with in the past.
The applicant relies in this respect on the ruling which
had been
issued by the panelist of the bargaining council in the matter
between
Independent Municipal and Allied Workers Union and another
v City of Johannesburg issued under case number JMD060902.
In
that matter the panelist disagreed with the contention of the unions
including SAMWU, that they were entitled to go on strike
after the
lapse of 30 (thirty) days from the date of the referral of the
dispute. The panelist observed that the 30 (thirty) days
period
applies in a case where the dispute has been referred to the correct
forum. The panelist found in that matter that the dispute
was
referred to an incorrect forum being the divisional instead of the
national level. It was for that reason that the panelist
found that
the divisional level lacked jurisdiction and accordingly upheld the
point raised by the City of Johannesburg that the
divisional level
lacked jurisdiction to entertain the dispute. The second point in
limine raised in that matter which is similar
to the point raised by
the applicant in the present matter concerned the question of whether
or not the divisional level of the
bargaining council can entertain
such issues. The panelist upheld the point raised by the City of
Johannesburg and ruled that the
unions needed to refer their dispute
to the national level.
[10]
The applicant has also referred a dispute to the bargaining council
concerning the interpretation of whether or not the bargaining
council can entertain a dispute concerning whether the divisional
level has jurisdiction to entertain disputes relating to issues
that
are bargained for at national level.
[11]
It is important to note that SAMWU referred the dispute on the 10
th
June 2009 and gave the applicant notice of its intention to embark on
a strike on the basis that 30 (thirty) days have expired
on the 1
st
September 2009. It is evidently clear that by the time the notice to
go on strike was issued the 30 (thirty) days from the date
of the
referral had expired.
Application
for condonation
[12]
The issue that has arisen on the facts of this matter relates to
failure by the applicant to comply with the provisions of
section
68(3)
of the
Labour Relations Act. Sections
68(2) and (3) read
as follows:
“
(2)
The Labour Court may not grant any order in terms of subsection
(1)(a) unless 48 hours’ notice of the application
has been
given to the respondent: However, the Court may permit a shorter
period of notice if -
(a)
the applicant has given written notice to the respondent of the
applicant’s intention to apply
for the granting of an order;
(b)
the respondent has been given a reasonable opportunity to be heard
before a decision concerning that
application is taken; and
(c)
the applicant has shown good cause why a period shorter than 48 hours
should be permitted.
(3)
Despite subsection (2), if written notice of the commencement of the
proposed strike or lock-out was
given to the applicant at least 10
days before the commencement of the proposed strike or lock-out, the
applicant must give at
least five days’ notice to the
respondent of an application for an order in terms of subsection
(l)(a).”
[13]
It is common cause that the applicant gave the respondent notice of
the intention to institute the present proceedings which
does not
comply with the provisions of
section 68(3)
of the
Labour Relations
Act. An
application for condonation for non compliance was brought
from the bar by Mr Kennedy for the applicant. In the circumstances of
the case this Court accepted and considered the application as such.
[14]
Whilst subsection (2) of
Section 68
allows for condonation of
a
period shorter than 48 hours on good cause shown by the applicant,
subsection (3) is silent on this aspect.
[15]
In
Auto Manufacturers Employers’ Organization v NUMSA
(1998)
11 BLLR 1116
(LC)
, a case which SAMWU relied on in its
contention, the court held that the notice of application to be given
in terms
section 68(2)
or (3) of the
Labour Relations Act, is
a
notice of motion which has to be accompanied by the supporting
affidavit. The Court further held that non compliance with the
5-day
notice period in
section 68(3)
of the
Labour Relations Act cannot
be
condoned.
[16]
I was also referred to cases of
South African Airways (Pty) Ltd v
SATAWU & others case number J2525/08 and Merafong Municipality v
SAMWU & others case number
J501/09.
In the case of the
South
African Airways
, where the court dismissed the application to
interdict the strike, no reasons were given. In the
Merafong
Manucipality
the Court dismissed the urgent application which had
been brought by the applicant and delivered an ex tempore judgement
which
was never transcribed.
[17]
In
Automobile Manufacturers,
Landmann J in arriving at the
conclusion that condonation cannot be granted for failure to comply
with the time frame provided
for in
section 68(3)
relied on what is
stated by Du Toit et al, The
Labour Relations Act of 1995
2ed at 220,
where the Learned authors in commenting about
section 68(3)
, had the
following to say:
“
Where an
applicant has received at least ten days written notice of a proposed
strike or lock-out, it must give the respondent at
least five days
written notice of its intention to apply for an interdict
(section
68(3)).
There is no provision for an abridgement if the five-day
period, even on the grounds of urgency.”
[18]
I hold a different view to that expressed by Landmann J and will, for
obvious reasons, not express any view in relation to
the
Merafong
Municipality
and the
South African Airways
cases. My
view with regard to the
Automobile Manufacturers
case is that
that judgment was clearly wrong. That case is clearly wrong because
it is not in line with the approach adopted in
the Labour Appeal
Court in dealing with instances where legislation or the rules
provide for time frames but remain silent on the
need to show good
cause in the event of non compliance. I accordingly with due respect,
do not regard myself bound by that decision.
[19]
In
Shoprite Checkers (Pty) Ltd v Commission for
Conciliation, Mediation &Arbitration & Others (2007) 28 ILJ
2246 (LAC),
the Labour Appeal Court considered an appeal where
initially the CCMA commissioner refused an application brought in
terms of
section 144
of the
Labour Relations Act for
the rescission
of default arbitration award. The Labour Court upheld the refusal on
review, finding that good cause, the only ground
relied on by the
appellant, was not a ground for rescission of an award in terms of
section 144.
The appellant on appeal, contended that, although
section 144
made no mention of good cause as a ground for rescission,
the Labour Appeal Court had previously interpreted provisions of the
LRA to include words that were not expressly part of those
provisions. The appellant inter alia relied on its submission on the
decision in
Queenstown Fuel Distributors CC v Labuschagne NO
C & others (2000) 21 ILJ 166 (LAC)
, where it was held
that, although
section 145
of the Labour relations Act did not
expressly give the Labour Court the power to condone non-compliance
with the time-limit set
out therein, the section was directory and
had to be read so as not to exclude its power to condone
non-compliance with the time-limit.
The Court accepted that
section
144
did not make any provision for “good cause” to be
shown in considering condonation for rescission of an award. However,
following the decision in
Queenstown Fuel Distributors
the
Court found that, as there are circumstances which can be envisaged,
such as in that case, which fall outside the circumstances
referred
to in
section 144
, in such cases both logic and common sense dictate
that a defaulting party should, as a matter of justice and fairness,
be afforded
relief. The Court further held that, if one were to hold
that
section 144
does not allow for the rescission of an arbitration
award in circumstances where good cause is shown and that an
applicant who
seeks rescission of an arbitration award is compelled
to bring the application within the limited circumstances allowed by
the
wording of the section, this could lead to unfairness and
injustice. The Court also reasoned that if the approach adopted by
the
commissioner and the Labour Court was to be adopted that, would
be inconsistent with the spirit and the primary object of the
Labour
Relations Act. It
was on the basis of that reasoning that the Court
held that in interpreting
section 144
so as to include 'good cause'
as a ground for rescission gives the
Labour Relations Act an
interpretation that is in line with the right provided for in section
34 of the Constitution, because, if section 144 is not interpreted
in
this way, a party who can show good cause for its default will be
denied an opportunity to exercise its right provided for in
section
34 of the Constitution despite the fact that it may not have been at
fault for its default.
[20]
In my view the same principle as that enunciated in the
Shoprite
Checkers case
is applicable in the present instance. Thus even
though section 68(3) is silent about “good cause” in the
event of
failure to comply with the time frame set out therein such a
requirement should be read into the section.
[21]
Turning to the brief facts in as far as failure to comply with the
provisions of
section 68(3)
of the
Labour Relations Act is
concerned,
it is common cause that, on 02 September 2009, the applicant
addressed a notice of intention to launch this application
against
SAMWU should the notice of intention to embark on the strike not be
withdrawn. In terms of that notice the applicant pointed
out to SAMWU
that it was required to withdraw the strike notice by Wednesday, 03
September 2009. By close of business 03 September
2009, SAMWU had not
withdrawn the strike notice nor had it indicated such an intention. .
[22]
On 04 September 2009, the applicant instructed its attorneys
to prepare urgent papers. The applicant then prepared papers that
form
the basis of the present application over the weekend, with
apparently the intention to file and serve them on Monday, 07
September
2009.
[23]
In the case of
Sizabantu Electrical Construction v Gumbi and
Others
(1999) 20 ILJ 673 (LC) at 675
where the Court held
that the requirements of good cause entails the following:
“
The applicant
must give a reasonable explanation for his default. If it appears
that the default was willful or that it was due
to gross negligence,
the court should not come to his assistance; the application must be
bona fide and not made with the intention
of mainly delaying
plaintiff’s claim; the applicant must show that he has a bona
fide defense to the plaintiff’s claim.
It is sufficient if it
makes a prima facie defense in the sense of setting out averments
which, if established at the trial, wood
and ten to him to the relief
as for.”
[24]
According to Mr Kennedy, who moved the application for condonation
from the bar the reason why the applicant issued SAMWU with
a notice
shorter than the one required in
section 68(3)
was because the
applicant operated under the incorrect understanding that the letter
sent to SAMWU complied with the 5(five) day
notice as required in
that section. He correctly conceded that the letter did not comply
with what was envisaged in
section 68(3)
, which requires a formal
application accompanied by supporting affidavits.
[25]
There is no evidence that the erroneous assumption made by the
applicant was deliberate, negligent and or intended to prejudice
SAMWU in any way. Whilst SAMWU, was not served a proper notice as
required by
section 68(3)
, it was however aware of the intention of
the applicant.
[26]
I am thus persuaded that the reason tendered by the applicant is
reasonable and should be accepted. I am also persuaded that
the
issues related to this matter are important not only to the parties
but probably to the sector in general. In fact even Mr
Van der Riet
in his submission conceded, although from a different perspective,
that this matter was important to the parties.
[27]
It was for the above reasons that I condoned the non compliance with
the provisions of
section 68(3)
of the
Labour Relations Act.
Application
to interdict the strike
[28]
The applicant contends that SAMWU does not have a right to strike for
three reasons. The first reason is that the conciliating
panelist
upheld its point in
limine
that the divisional level of the
bargaining council to which the dispute was referred had no
jurisdiction to entertain it. And
secondly that the issue of salaries
and leave pay do not belong to the divisional level of the bargaining
council. The third reason
is that SAMWU cannot strike on the issue of
an entitlement to leave pay because it is a right derived from the
Basic Conditions
of Employment Act ("BCEA").
[29]
The applicant contended that it had in its submission
demonstrated a clear right and for that reason sought a final relief.
In the alternative the applicant contended that it had demonstrated a
prima facie right for an interim relief. As would be apparent
from
the order I made I did not agree with the submission that the
applicant had on its papers established a clear right to warrant
granting a final relief. I however agreed with the alternative prayer
for the interim relief.
[30]
The requisites for a right to claim an interim interdict were
reaffirmed in
National Council of SPCA v Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at 354
as being the following:
“
(a)
A prima facie right. What is required is proof of facts that
establish the existence of a right in terms of substantive
law;
(b)
A well-grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate relief
is eventually granted;
I
(c)
The balance of convenience favours the granting of an interim
interdict;
(d)
The applicant has no other satisfactory remedy.'
[31]
The above requirements are discussed in details in a number of Courts
decisions. I do not deem it necessary for the purpose
of this
judgment to go into those details. For those details see
Southernwind
Ship Yard (Pty) Ltd v National Union of Metal Workers of SA and
Others (2009) 30 ILJ 1369 (LC), Setlogelo v Setlogelo
1914 AD 221
at
227 and Eriksen Motors (Welkom) Ltd v Protea Motors Warrenton
1973
(3) SA 685
(A) at 691C—E, Phutiyagae v Tswaing Local
Municipality (2006) 27 ILJ 1921 (LC) at 1930A- J
and
Spur Steak Ranches v Saddles Steak Ranches
1996 (3) SA 706
(C) at 714B-C.
[32]
In my view on the facts and circumstance of this case the applicant
has successfully demonstrated that it has a
prima facie
right
not to be faced with a strike pending the outcome of the
interpretation dispute referred to the bargaining council by the
applicant.
[33]
It was for the above reasons that I made the order quoted above.
____________________
Molahlehi
J
Date
of judgment: 29 September 2009
Appearances:
For
the applicant:Adv Kennedy SC
Instructed
by:Werksman Attorneys.
For
the respondent: Adv Van der Riet SC
Instructed
by: Cheadle Thompson & Haysom Attorneys