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[2009] ZALCJHB 87
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Freight Dynamics v South African Transport & Allied Workers Union and Others (J2540/08) [2009] ZALCJHB 87 (4 November 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: J2540/08
In
the matter between:
FREIGHT
DYNAMICS
Applicant
and
SOUTH
AFRICAN TRANSPORT & ALLIED WORKERS UNION
1st Respondent
UNITED
TRANSPORT & ALLIED WORKERS UNION
2nd Respondent
UNITED
WORKERS ASSOCIATION OF
SA
3rd Respondent
THE
PERSONS LISTED IN ANNEXURE
“A” 4th
Respondent
THE
PERSONS LISTED IN ANNEXURE
“B”
5th Respondent
JUDGMENT
FRANCIS
J
1. The applicant seeks
the confirmation of the rule granted by this Court on 27 November
2008. The Court had
inter alia
made the following order:
“
3.
A rule nisi is hereby and is herewith issued calling upon the
Respondents to show cause on
8 December 2008 at 10:00 or as soon as
the matter may be heard, why a final order should not be granted in
the following terms:
3.1
Declaring that the strike by the Individual Respondents that
commenced on 24 November 2008
is an unprotected strike as provided
by, inter alia,
Section 65(1)
and
65
(3) of the
Labour Relations Act,
66 of 1995
, as amended;
3.2
The Individual Respondents are interdicted and restrained from
further participation in
the strike;
3.3
The Individual Respondents are ordered to tender their services to
the Applicant and to
comply with all their contractual obligations as
from the date of this order;
3.4
The Individual Respondents listed in Annexure “A” and “B”
are interdicted
and restrained from blockading entrances and exists
to and from Applicant’s premises;
3.5
The Individual Respondents listed in Annexure “A” are
interdicted and restrained
from approaching within a 100 metres of
all Applicant’s premises unless it is for purposes of tendering
their services;
3.6
The Individual Respondents listed in Annexure “A” and “B”
are interdicted
from in any way interfering with the business
operations, employees of and supplies of the Applicant at its
premises”.
2.
When the rule was granted on 27 November 2008 the matter was
unopposed. The rule was made returnable on 8 December 2008.
On 5 December 2008 the fourth and fifth respondents (the respondents)
filed opposing affidavits in the matter. There were
several
extensions of the rule and the matter was eventually heard on 29
October 2009.
3. The applicant is
Makhubu Logistics (Pty) Ltd t/a Freightdynamics and Container
Services with its head offices at City Deep, Johannesburg.
4.
The first respondent is the South African Transport and Allied
Workers Union (SATAWU), a registered trade union.
The
second respondent is the United Transport and Allied Workers Union, a
registered trade union. The third respondent is
the United
Workers Association of South Africa, a registered trade union.
5.
The individual respondents are those persons listed in Annexure “A”
to the application, employed by the applicant
and who are party to
the referral of a dispute to the bargaining council made on their
behalf by Rakhudu attorneys on 30 June 2008
and who took part in the
strike that commenced on 24 November 2008. The employees in
Annexure “B” are all other
employees employed by the
applicant as drivers and who have either joined the strike or the
applicant reasonably believes may soon
join the strike.
6.
The applicant has depots at City Deep in Johannesburg, Durban, East
London, Port Elizabeth, Cape Town, Mossel Bay and Kroonstad.
The applicant in total employs approximately 800 employees, of whom
about 650 are drivers. The applicant provides transport
and
logistics services, using trucks and trailers in the fuel, general
freight and container sectors. The applicant sought
an order to
interdict the individual respondents from continuing with their
participation in an unprotected strike which had been
going on since
24 November 2009. The strike was until 26 November 2008,
limited to City Deep and Durban and had spread to
East London.
7.
The applicant purchased Freightdynamics as a going concern from
Transnet Limited in October 2007. Its employees’
employment contracts were transferred to the applicant in terms of
the provisions of section 197 of the Labour Relations Act 66
of 1995
(the Act). One of the issues covered in the sale agreement was
the transfer of the employees from the Transnet Pension
Fund to new
retirement funds after the transfer. Transnet Limited and the
applicant complied with the terms of the sale agreement
in so far as
it relates to the transfer of retirement fund benefits and membership
for the employees.
8.
The first to third respondent all have members employed by the
applicant. These trade unions were intimately involved in
the
discussions around the sale of,
inter
alia
, Freightdynamics to the applicant
and were consulted as contemplated by section 197(2) and (6) of the
Act. They were satisfied
that the terms and conditions of
employment which were applied by the applicant to employees of
Freightdynamics were on the whole
no less favourable than those which
prevailed before the transfer.
9.
On 13 March 2008 after the transfer of Freightdynamics and its
employees to the applicant, the applicant received a letter from
Rakhudu attorneys claiming to represent James Ndlela and 64 others,
employees of the applicant. The letter stated that the
applicant had failed to conduct road shows to explain the sale of
Freightdynamics to the applicant. The letter demanded that
the
applicant should pay the employees on whose behalf the letter was
written, their pension or provident fund moneys. The
applicant
had conducted road shows and there was no truth in the allegations
made. This much was admitted in a letter from
Rakhudu attorneys
dated 18 March 2008. The applicant could not comply with the
demand for the payment of pension or provident
fund benefits, as
employees had to authorise such payment themselves to the Transnet
Retirement Fund. The applicant had encouraged
employees to make
their election in this regard. On 3 April 2008, the applicant
responded to the letter from Rakhudu attorneys
and requested the
names of the employees who they were representing and also pointed
out that the process followed in transferring
employees had been
explained to Mr Mkhize, a candidate attorney in the employ of Rakhudu
attorneys.
10. On 26 May 2008, the
applicant received a referral of a dispute to the National Bargaining
Council for the Road Freight Industry
(the bargaining council).
The referral states that the dispute being referred is about an
alleged unfair labour practice.
It also describes the dispute
as follows:
“
THE
COMPANY WAS TRANSFERRED FROM FREIGHTDYNAMICS TO MAKHUBU LOGISTICS IN
TERMS OF SECTION 197 OF THE LRA TERMS AND CONDITIONS WERE
CHANGED
CONTRADICTING THE PROVISIONS OF SECTION 197, SEE ATTACHED LETTER.”
11.
There was no letter attached to the referral that was served on the
applicant. In the section dealing with the required
outcome, it
is stated that the applicant must comply with section 197 of the Act
and reverse all changes. The employees who
were represented by
Rakhudu attorneys had not tabled for discussion any issue related to
any alleged non-compliance with section
197 of the Act or any alleged
changes to the terms and conditions of employment.
12.
On 29 May 2008 the applicant sent a letter to Rakhudu attorneys
requesting that it be provided with the details of the conditions
of
employment which applied before the transfer and the changes that
were alleged to have been affected after the transfer.
The
applicant did not receive a response to the letter.
13.
A conciliation meeting was scheduled for 14 August 2008 at the
bargaining council. The conciliator directed the parties
to
discuss the issues which the employees wished to raise as they had
previously not been tabled for discussion. It was agreed
that
these discussions would take place outside the scope of the
bargaining council. The issues raised and explained by the
applicant to the employees related to a housing allowance that the
employees alleged was no longer being paid to them; travel
concessions that they claimed they had forfeited following the
transfer of Freightdynamics to the applicant; funeral benefits and
medical aid subsidy. All of these four issues raised by the
employees, were according to the applicant were covered by the
sale
agreement and the agreement concluded with the first to third
respondents at the Transnet Restructuring Benefits sub-committee.
This sub-committee had been established to specifically deal with
employee benefits and how they were to be addressed during the
disposal of the non-core business units, including Freightdynamics.
14.
The first discussion took place on 14 August 2008 after the
conciliation meeting was adjourned. The applicant explained
to
the respondents representatives how it had complied with the terms of
the sale agreement and the provisions of section 197 of
the Act.
The discussions were not concluded and two further meetings were
scheduled for 25 and 26 August 2008. The
parties met on the
said days. At the end of those meetings, the employees
understood the transfer and how it had been implemented,
but insisted
that they would still pursue the matter by way of a referral to
arbitration with the bargaining council. The
employees would
report to the bargaining council that the matter was not resolved and
apply for arbitration
15.
The applicant subsequently received notification that the
conciliation which had been adjourned on 14 August 2008 would
reconvene
on 28 October 2008. The applicant attended the
conciliation meeting and found that there was a different
conciliator.
It was explained to the conciliator that a
certificate was to be issued. He said that he would issue a
certificate indicating
that the dispute was to be resolved by way of
strike action. A certificate was then issued.
16.
On 21 November 2008 the applicant received a letter from Rakhudu
attorneys, which purported to constitute notice of a strike
in terms
of section 64(1)(b) of the Act. The letter stated that the
strike would commence on 26 November 2008 at 16h30.
17.
On Monday 24 November 2008, the respondents, mostly drivers,
commenced with strike action, despite what is stated in the strike
notice that the strike would only commence on 26 November 2008 at
16h30. The strike was at that stage limited to City Deep
and
Durban. The striking employees also blockaded the entrances and
exits from applicant’s premises, thus preventing
non-striking
employees from entering or leaving the premises. The applicant
met with representatives of the striking employees
at its City Deep
depot on the same day and signed an agreement in terms of which the
striking employees acknowledged that the strike
was only due to
commence on 26 November 2008, that they would resume their normal
duties and that the applicant would not discipline
them for striking
on 24 November 2008. The striking employees then returned to
work. Contrary to their undertaking
and in breach of the
agreement signed on 24 November 2008, the individual employees
resumed their unprotected strike during the
afternoon on 25 November
2008. The employees in Durban had also been on strike the previous
day. At about 16h30, the applicant
issued a verbal ultimatum to
the Durban striking employees to return to work by 09h00 on 26
November 2008, failing which they would
be dismissed.
18.
On 26 November 2008 at about 08h30, the applicant issued and
distributed a written ultimatum to employees in Durban and City
Deep,
informing them that if they did not report for duty by 09h00, they
would be dismissed. After the strike commenced on
24 November
2008, the applicant was informed by the striking employees at City
Deep that amongst others, the reason for the strike
was that the
drivers did not want to transport goods to the Democratic Republic of
Congo and wanted bonuses. These issues
were not included in the
referral to the bargaining council. The striking employees also
became unruly. They had blocked
the entrances and exist to and
from the applicant’s premises. Non striking drivers also
reported that they had been
threatened by the strikers. They
were told to stop working and join the strike. The applicant
feared that the threats
of this nature could lead to violence and
possible loss of life. On 26 November 2008 at approximately
16h00, the applicant
dismissed 33 striking employees at City Deep who
continued with the strike, notwithstanding the ultimatum that the
applicant had
distributed.
19. The applicant brought
an urgent application in terms of section 68 of the Act, to interdict
the individual respondents from
continuing with their participation
in an unprotected strike which had been going on since 24 November
2008. The applicant
contended that the strike was unprotected
for the following reasons:
19.1
the referral to the bargaining council did not disclose the
conditions of employment which the applicant
is alleged to have
changed. The certificate of outcome also did not state
what unilateral changes to employment conditions
the applicant is
alleged to have made. The referring employees or their
representative did not invoke the provisions of section
64(4) of the
Act in their referral as confirmation that the dispute involves an
alleged unilateral change to terms and conditions
of employment.
There could not be a strike in respect of an issue which had not been
crystallized and which the applicant
could respond to. The
first to third respondents have not alleged that the applicant has
changed any conditions of employment,
something which they would have
raised as the recognized trade unions representing the majority of
applicant’s employees.
It followed that there was no
dispute that could be resolved by way of a strike and the strike was
therefore unlawful and unprotected;
19.2
in so far as the employees could rely on the issues raised at the
meetings held with them on 14, 25
and 26 August 2008, these issues
were not referred to the bargaining council for conciliation;
19.3
in so far as the dispute could be said to relate to non-compliance
with the provisions of section 197
of the Act, such a dispute is one
that the Labour Court could adjudicate over in terms of section
158(1)(b) of the Act.
A strike is unprotected if it is in
respect of a dispute that a party has a right to refer to the Labour
Court for adjudication;
19.4
in so far as the striking employees are demanding that the applicant
should change the current conditions
of employment which became
effective after the sale and transfer, the strike was prohibited
because the new conditions of employment
are regulated by a written
agreement concluded by Transnet Limited and the first to third
respondent;
19.5
in so far as the dispute is alleged to relate to the demand that the
applicant should pay out the retirement
benefits of the striking
employees, such a demand was unlawful as the applicant has no
authority to make such a payment, it being
a matter between
individual employees and the Transnet Retirement Funds to which they
belonged to make such an arrangement.
The applicant, for its
part, had advised and encouraged its employees to make their election
and complete appropriate forms to
access their pension benefits and
transfer them to a new fund;
19.6
the purported notice in terms of section 64(1)(b) of the Act given by
Rakhudu attorneys is invalid
as these attorneys are not party to the
dispute referred to the bargaining council. The notice
contemplated by section 64(1)(b)
of the Act must be given by a party
or parties to the dispute, being the striking employees themselves.
20.
The applicant submitted that it would suffer irreparable harm if the
relief sought was not granted. It contended further
that it did
not have an alternative remedy and that this Court has the exclusive
jurisdiction to order the individual respondents
to cease their
unprotected and prohibited strike action. It set out reasons
why the application was urgent.
21.
This Court granted the order referred to in paragraph 1 above on 27
November 2008.
22.
An opposing affidavit was filed on behalf of the individual
respondents. They stated that they are drivers of the
applicant’s
vehicles and drive more than eight hours every
day. The applicant did not pay them overtime even if they were
away from home
for a period exceeding five days. The applicant
had a tendency to ignore labour laws in that it always threatened
them if
they demanded overtime payment and ignored the fact that
weekend and holidays were not normal working days so employees never
received
payment for weekends and holidays. The applicant was
misleading the Court that the strike started on 24 November 2008.
The applicant was confused of the date since the notice stated
clearly that the strike was to start on 26 November 2008.
The
applicant locked out the respondents because of this confusion.
On 24 November 2008 the respondents’ attorney attended
a
meeting with the applicant to clear the confusion about the date of
the strike. A memorandum of understanding was signed
by the
attorney and the applicant’s representative. On 25 and 26
November 2008 all employees were committed to their
work. On 26
November 2008 at 16h30 the action started according to the 48 hours
notice. On 27 November 2008 the meeting
started between the
parties and they agreed to convene a meeting on 3 to 5 December 2008
to try to resolve the dispute amicably.
The parties signed a
memorandum of understanding. On 3 and 4 December 2008 the
parties agreed on certain issues and the agreement
was not signed.
The applicant agreed to discuss those issues with the top management
of the applicant. The applicant
agreed to arrange another
meeting before the end of January 2009 to report about issues to be
discussed with top management.
The strike did not continue
after the court order was presented to the workers.
23.
The respondents contended that the strike was legal and according to
the law. The final order should not be granted since
the action
was unlikely to proceed and the respondents are no longer
participating in an industrial action or strike.
24.
As stated previously this is a return day of a rule granted by this
Court on 27 November 2008. The applicant has raised
several
reasons why the strike action that commenced on 24 November 2006
should be declared as unprotected. It is not necessary
to deal
with all of those grounds. The crisp issue for determination is
whether the strike action that commenced on 24 November
2008 was
protected or not.
25. It is common cause
that the individual respondents attorney had issued a strike notice
on 21 November 2008 advising that the
strike would commence on 26
November 2008 at 16h30. The applicant’s case is that the
employees commenced on strike
action on 24 November 2008 contrary to
the strike notice. The respondents denied in the opposing
papers that they had embarked
on strike action and said that the
applicant was confused about the date. This cannot be true
since the applicant met with
the respondent’s attorney on 24
November 2008 where a memorandum of understanding was concluded. If
the employees did not
embark on strike action, there would not have
been a need to have met with their attorney on 24 November 2008.
The memorandum
of understanding states
inter alia
as follows:
“
The
meeting resolved for return to work with the understanding that there
was a misunderstanding about the actual date for which
the
notification was serve to the company on 21 November 2008.
The actual notice is
that the employer is served with a notice for a strike + to resume on
26 November 2009 at 16h30. (If
an agreement is not reached).
All employees that
have participated on the strike on 24 November 2008 are urgently
informed to go back to work as soon as they
get the information
informing them to go to work.
Parties
both made an undertaking that base on the above clarification no
employee will be subjected to a disciplinary hearing, but
any
employee who knowingly continued with this strike excluding 24
November 2008 will subject himself to a disciplinary action”.
26.
The respondents’ attorney had further stated in the opposing
affidavit that the strike did not continue after the Court
order of
27 November 2008 was served on the individual respondents. This
clearly supports the applicant’s version that
the employees had
embarked on an unprotected strike action and that this stopped after
the Court order was obtained. The
respondents’ denial
that there was no strike and that the strike was protected is
illogical.
27.
The strike action that commenced was premature and did not comply
with the strike notice that was issued. It is also clear
from
the applicant’s version which is uncontested that the demands
that the respondents made during the strike were not conciliated.
The nature of the dispute that was referred to conciliation was
characterized as an unfair labour practice dispute relating to
section 197 of the Act. That dispute should have been
arbitrated or adjudicated upon by this Court. The strike action
embarked upon by the respondents on 24 November 2008 which continued
to 26 November 2008 was therefore unprotected.
28.
This Court is satisfied that a proper case was made out for the rule
to be confirmed. There is no reason why in law and
equity costs
should not follow the result.
29.
In the circumstances I make the following order:
29.1
The interim order granted on 27 November 2008 is confirmed with
costs.
_________________________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANT
:
ATTORNEYS E NKWANA OF MASERUMULE INC
FOR
4TH AND 5TH RESPONDENTS :
R P KABU INSTRUCTED BY RAKHUDU ATTORNEYS
DATE
OF HEARING
: 29
OCTOBER 2009
DATE OF
JUDG
: 4
NOVEMBER 2009