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[2010] ZALCJHB 80
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Protea Coin Group [Security Services] (Pty) Ltd v SAPSWU and Others (J385/10) [2010] ZALCJHB 80 (23 March 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO: J 385/10
In
the matter between:
PROTEA
COIN GROUP
[SECURITY
SERVICES] (PTY) LTD
Applicant
and
SAPSWU
1
st
Respondent
MEMBERS
OF 1
ST
RESPONDENT LISTED
IN
ANNEXURE “A” TO THE NOTICE
OF
MOTION
2
nd
and Further Respondents
JUDGMENT
LAGRANGE,AJ
1.
This is an application for a final order to interdict strike action
which the respondents intend embarking on following their
referral of
a dispute to the CCMA. On 11 March 2010, the applicant obtained an
interim interdict declaring the strike action planned
to start on 22
February 2010 unprotected. The order also restrained the respondents
from commencing, carrying on, or encouraging
such strike action.
2.
In December 2006, a settlement agreement was concluded between the
applicant (‘the employer’) and the first respondent
(‘SAPSWU’) in full and final settlement of a dispute that
was referred to the CCMA. That dispute was described in the
LRA 7.11.
referral form as “1. Living out allowance. 2 Performance bonus.
3 Unfair position. 4. Polygraph testing. 5. Salary
advise and 6.
Travelling allowance.”
3.
The living out allowance agreed upon by the parties in terms of the
agreement provided that certain employees, who would no longer
be
accommodated in barracks provided by the employer’s client,
would receive a living out allowance of R 500-00 per month
from
January 2007. The parties also acknowledged that the optional
accommodation provided at the barracks was part and parcel of
the
employees’ terms and conditions of employment. Other provisions
in the agreement described the details agreed upon for
each of the
other issues listed in the dispute referral form.
4.
The agreement did not limit payment of the allowance to a particular
period but merely stated when it would begin. The
duration of
the settlement agreement was similarly indefinite.
5.
SAPSWU approached the employer in 2009 to consult on a number of
items which were part of the terms and conditions of its members,
including performance bonuses, living out allowances, travel and
allowances and danger pay. The employer advised that these issues
were already regulated by the settlement agreement which it
considered a collective agreement. Nevertheless, the union declared
a
dispute which eventually resulted in the conclusion of a further
settlement agreement on 29 June 2009. On this occasion the agreement
was not an agreement on the items in question, but entailed a
commitment by the parties to engage with each other using a joint
task team to review the settlement agreement of December 2006. Once
proposals were finalized, the parties aimed to conclude the
review
process by early August 2009.
6.
The parties could not reach agreement on a number of items and in
October 2009, the union referred a further dispute to the CCMA,
which
it described as follows in the LRA 7.11 form “The employer
refuses to review the living out allowance/sleep out since
December
2006. Peformance bonus and danger allowance not part of the initial
agreement” (sic). The desired outcome sought
was stated as
“Protea Coin to pay the workers a living out allowance &
danger allowance.” In describing the
nature of the
dispute the union classified it under “Other” and
expanded on this by stating: “the parties signed
an agreement
in December 2006 as a right.” The union did not tick the box on
the form indicating it was a dispute concerning
the interpretation
and application of a collective agreement, but in the paragraph
dealing with the date the dispute arose, wrote
the words “Section
24 dispute”.
7.
By the time the dispute was referred to the CCMA in October, the
position of the union and the employer respectively on the revision
of the living out allowance, was that the former was demanding a 60 %
improvement whereas the latter was offering to increase it
by 10 %.
On the evidence, this position appears not to have changed by late
December 2009.
8.
Various attempts were made to set up meetings to conciliate the
matter at the CCMA, and the parties did eventually meet on 21
December 2009. On or about 9 December the parties also agreed to
extend the conciliation period for a period of 30 days.
9.
There is some dispute about what was to happen if no settlement of
the dispute was reached by the end of the extended period,
which
would have expired on 8 January 2010. However, on 18 January 2010 a
certificate of outcome was issued which describes the
dispute as one
concerning “matters of mutual interest”. The certificate
further indicates that the dispute can be resolved
by means of a
strike or lockout.
10.
On 1 February 2010, the employer launched an application to review
and set aside the certificate of outcome on the basis,
that
inter
alia
the dispute was incorrectly identified by the commissioner
as one that could be resolved by strike action, when it is in fact a
dispute that ought to have been arbitrated and when no conciliation
of the dispute had in fact taken place.
11.
On 17 February 2010, the union issued the applicant with a strike
notice warning of a strike to commence on 22 February
2010 and
stating that the strike action would continue until the employer
“responds positively to all the demands submitted
by the
workers.”
12.
In its replying affidavit in this application the applicant admits
that “the only unresolved issue between the Applicant
and the
Respondents pertains to a increase in the living out allowance paid
by the Respondent.”
The
legal status of the planned industrial action
13.
The applicant contends any planned strike action by the union
pursuant to the failure to resolve the above dispute will
be
unprotected on one or more of the following grounds:
13.1.
The living out allowance is regulated by the 2006 settlement
agreement, which
constitutes a binding collective agreement on the
parties and their members.
13.2.
The dispute concerns the interpretation and application of a
collective agreement
which ought to be referred to arbitration.
13.3.
The certificate of outcome, which is the subject matter of a review
application,
ought not to have been issued.
13.4.
Even if it were a dispute over a matter of mutual interest and strike
action
was a legitimate means of trying to resolve the dispute, the
strike notice is defective as it fails to set out all the demands the
strike refers to. As such it is not a valid notice under
section 64
of the
Labour Relations Act 66 of 1995
, as amended.
14.
These grounds are addressed below.
The
status of the settlement agreement as a collective agreement.
15.
In
principle there is nothing which precludes a settlement agreement
being a collective agreement.
[1]
In this instance the settlement agreement of December 2006 was
one which settled a dispute about various terms and conditions
of
employment, and the content of the agreement was typical of what
might be found in a collective agreement concluded between
parties to
collective bargaining. Mr Manchu, representing the respondents
conceded that there was indeed no real basis for disputing
the dual
status of the agreement as a settlement agreement and a collective
agreement.
The
nature of the dispute
16.
The applicant contends that the dispute concerns the interpretation
or application of the 2006 settlement agreement.
However, it is
clear from the conduct of the parties in 2009 that they were engaged
in negotiating a revision of the agreement.
Although the engagement
was referred to as consultation, in practice it involved the trading
of offers and was indistinguishable
in substance from collective
bargaining. There is nothing in the correspondence between them that
suggests that an issue had arisen
concerning the application or
interpretation of the settlement agreement itself.
17.
The applicant made much of the mention of
section 24
of the LRA in
the dispute referral form, but the substance of the dispute as it
emerges from the conduct of the parties, is clearly
one about the
variation of living out allowances and not the enforcement of the
existing allowance. Insofar as the contents of
the LRA 7.11 referral
form is concerned it is also noteworthy that despite the reference to
section 24
of the LRA, the dispute is not classified as a dispute
over the interpretation and application of a collective agreement in
paragraph
3 of the form.
18.
Moreover, when I asked the applicant’s representative, Ms
Lancaster, what the interpretation or application issue
in dispute
between the parties might be, she was unable to illuminate matters
further.
19.
I am satisfied that the dispute over the living out allowance
concerns the extent to which the existing allowance should
be
revised: the union was seeking a 60 % improvement and the employer
was willing only to improve it by 10 %.
20.
Such a dispute is not about whether the existing right to a living
allowance of R 500 is being properly implemented, but
about the
amount by which it should be varied in future, which concerns the
creation of a new right.
The
certificate of outcome
21.
The parties agreed to extend the conciliation period to 8 or 9
January 2010. It appears they did meet each other on 21
December 2009
in a further attempt to resolve the dispute during the extended
period, but this did not occur in the context of
conciliation
proceedings.
22.
Section 64(1)(a)
of the LRA states:
“
Every employee has
the right to strike and every employer has recourse to lock-out if-
(a)
the issue in dispute has been referred to a council or to the
Commission as required
by this Act, and-
(i)
a certificate stating that the dispute remains unresolved has been
issued;
or
(ii)
a period of 30 days, or any extension of that period agreed to
between the parties to the dispute, has elapsed since the referral
was received by the council or the Commission; and ….”
(emphasis added).
23.
The
provisions quoted clearly indicate that if either one of the events
in subsections 64(a)(i) or (ii) occur, one of the pre-conditions
for
protected industrial action is met. In this instance both conditions
appear to have been satisfied. Accordingly, even if the
certificate
of outcome were set aside, this would not alter the fact that the
time provided for conciliation has elapsed and that
the provisions of
subsection 64(a)(ii) have been met. In any event, the value of
the certificate of outcome beyond confirming
that the dispute remains
unresolved is questionable. It certainly does not have the status of
some kind of binding determination
about the nature of the
dispute.
[2]
24.
Accordingly, I am satisfied that whatever flaws the certificate of
outcome may entail, the requirements of
section 64(a)(ii)
have been
met in any event, and it is irrelevant for the purposes of my
decision what the ultimate status of the certificate of
outcome is.
The
validity of the strike notice
25.
The applicant argues that the strike notice ought to have stated what
the demands of the respondents were, and the failure
to do so renders
the strike notice invalid. In advancing this proposition the
applicant relies on the Labour Court judgment in
the unreported case
of
South African Airways (Pty) Ltd v SATAWU
(Case no
J 2166/09)
dated 19 October 2009.
26.
In that case Van Niekerk J held, relying partly on the LAC judgment
in
Ceramic Industries Ltd t/a Betta Sanitary Ware v
National Construction Building and Allied Workers Union (2)
(1997) 18
ILJ
671 (LAC)
, that:
“
[26]
It is clear from the judgment in
Ceramic Industries
that the
two purposes of a notice of intention to strike (i.e. to enable the
employer to decide whether its interests are best served
by resisting
the union’s demands or acceding to them; and in the former
case, to take steps to protect the business) are
linked to the
minimum content of the notice. A strike notice ought thus necessarily
to specify the date and time at which the strike
action was intended
to commence, since this would enable the employer to take whatever
steps it wished to protect the business
at the time that the strike
commenced.
[27]
The same purposive approach adopted by the Labour Appeal Court
requires that a strike notice
should sufficiently clearly articulate
a union’s demands so as to place the employer in a position
where it can take an informed
decision to resist or accede to those
demands. In other words, the employer must be in a position to know
with some degree of precision
which demands a union and its members
intend pursuing through strike action, and what is required of it to
meet those demands.
Some of the issues giving rise to the intended
strike, as they are articulated in the strike notice, are clear. The
issue of the
disciplinary action demanded in respect of Venter, as
well as the demand in relation to retention bonuses, are relatively
clearly
expressed, and to require more would be to adopt an
unnecessarily and unjustifiably technical approach. The same cannot
be said
however in respect of the reference to “demands for
which Certificate of non-resolution was issued on 21st September
2009.” This is particularly so in a case such as the present,
where the referral to conciliation was made, it would seem,
in
respect of unspecified and various grievances and petitions lodged
over a period of months preceding the notice. Any employer
faced with
a strike notice issued in such imprecise terms would be hard pressed
to know which element of what grievance and petition
it was being
asked to resist or concede. It is not an answer for a union to say,
as the union does in the present matter, that
it is for the employer
to ask. A union elects to call a strike on those of its demands
that it wishes to pursue to the point
of economic pressure. It is
incumbent on a union to articulate those demands in sufficiently
clear terms when it issues a strike
notice.”
[3]
27.
In the
Ceramic
case, in which a strike notice was challenged
on the basis that it stated only that a strike would commence “at
any time
after 48 hours from the date of this notice”, the LAC
held that
:
“
Whatever kind of
approach is adopted in interpreting a statute or other legal
instrument it must be kept in mind that its actual
language cannot be
neglected (see S v Zuma & others
[1995] ZACC 1
;
1995 (2) SA 642
(CC) at
652H-653A).
According to The Shorter Oxford
English Dictionary ‘commencement’ means ‘the
action, process or time of beginning’,
and ‘commence’
means ‘[b]egin (an action, doing, to do), enter upon …
make a start or a beginning; come
into operation’.
In
determining whether there has been compliance with
s 64(1)(b)of
the
Act an interpretation must be sought, as stated earlier, which best
gives effect to the broader purpose of the Act and the
specific
purpose of the section itself.
Section 64(1)(a)
sets out the first
requirement to be met before embarking on a protected strike, viz an
attempted conciliation of the issue in
dispute before collective
action is taken.
Section 64(1)(b)
sets out the next requirement:
notice of the proposed strike to the employer. Its purpose is to warn
the employer of collective
action, in the form of a strike, and when
it is going to happen, so that the employer may deal with that
situation. By their very
nature strikes are disruptive, primarily to
the employer, but also to employees and, sometimes, to the public at
large. One of
the primary objects of the Act is to promote orderly
collective bargaining.
Section 64(1)(b)
assists in that orderly
process. A failure to give proper warning of the impending strike may
undermine that orderliness. This
might, in turn, frustrate labour
peace and economic development, other important purposes of the Act
(s 1).
Compliance with the provisions of the section is thus called
for.
The
specific purpose of warning employers of a proposed strike may have
at least two consequences for the employer. The employer
may either
decide to prevent the intended power-play by giving in to the
employee demands, or may take other steps to protect the
business
when the strike starts. For the former the notice in the present case
might suffice, as a minimum period of 48 hours is
given to deliberate
on whether to accede to the demands or not For the latter, however,
the notice is deficient, because the employer
does not know when,
after 48 hours, the proposed strike will commence.”
[4]
28.
There are two points that must be made in relation to the authority
cited. Firstly, the LAC was not directly concerned
with determining
whether the strike notice should express the union’s demands.
It was concerned specifically with interpreting
the text of
section
64(1)(b)
to determine whether the requirement of giving at least 48
hours notice required the union to state the actual time the strike
would commence. While the judgment does indicate the purpose of the
strike notice, the LAC did not have to address itself to the
question
of an indeterminate dispute.
29.
Secondly, the decision in the SAA matter concerned strike notice in
respect of what can only be described as a compendium
of disputes.
The true extent and nature of some of the disputes referred to could
not be determined from the strike notice. I agree
that on the facts
of that case, the strike notice ought to have detailed the disputes
in question. However, in this instance I
do not believe the applicant
can genuinely claim to have been uncertain about the nature of the
dispute. It knew what the last
stated demands of the union on the
living out allowance were and that this was the only outstanding
issue in dispute. In such circumstances,
I don’t believe the
employer could have been unaware of what was required to avoid the
strike by way of conceding to the
employees’ demands.
Consequently, the failure to reiterate the demands in the strike
notice does not in this instance
invalidate the notice in my view,
though it might be required in situations such as the one confronting
this Court in the
SAA
matter.
Conclusion
30.
In the circumstances, the applicant has failed to make out a case for
confirming the rule.
31.
The parties were agreed that costs should follow the result.
Order
32.
Accordingly, it is ordered that:
32.1.
the rule issued on 22 February 2010 and extended on 11 March 2010, is
discharged,
and
32.2.
the applicant must pay the respondents’ costs of opposing the
application.
ROBERT
LAGRANGE
ACTING
JUDGE OF THE LABOUR COURT
Date
of hearing: 18 March 2010
Date
of judgment: 24 March 2010
Appearances:
For
the applicant: Ms S Lancaster of
G
Van Der Westhuizen MacRobert Inc.
For
the respondent: Mr T Manchu
Attorneys:
K D Maimane Inc.
[1]
See e.g,
Mhlongo
& Others v Food & Allied Workers Union & another
(2007) 28 ILJ 397 (LC)
[2]
In this regard see the unreported judgment of Van Niekerk J in
Ingo
Strautmann v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg and Bean
South Coast and others
(C
ase
no D412/07
)
dated 9 June 2009, at paragraph [9]
[3]
At paragraphs [26] and [27] of the judgment.
[4]
At 676A-H of the judgment.