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[2010] ZALCJHB 334
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Road Accident Fund v South African Transport And Allied Workers Union (SATAWU) obo Members and Others (J750/10) [2010] ZALCJHB 334 (13 April 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
REPORTABLE
CASE
NO: J750/10
In
the matter between:
ROAD
ACCIDENT
FUND
Applicant
and
SOUTH
AFRICAN TRANSPORT AND ALLIED
WORKERS
UNION (SATAWU)
obo
MEMBERS
1
st
Respondent
L
M S MELLO N.O
2
nd
Respondent
HOFMEYR
N.O
3
rd
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
4
th
Respondent
JUDGMENT
Molahlehi
J
Introduction
[1]
The applicant seeks an interim order
declaring as unprotected and unprocedural the strike which the first
respondent and its members
intent embarking on. The requirements for
an interim interdict are: a clear right or a right
prima
facie
though open to some doubt, a well
grounded apprehension of irreparable harm if the interim relieve is
not granted and ultimately
relieve is granted, the balance of
convenience in favour of granting the interim relieve, and the access
of any other alternative
remedy.
Background
facts
[2]
The applicant is the Road Accident Fund
(“RAF”) a juristic person established in terms of the
Road Accident Fund Act 56 of 1996
. The first respondent South African
Transport & Allied Workers Union (SATAWU), is a trade union
registered in terms of the
Labour Relations Act No 66 of 1995 (the
LRA). The second and the third respondents are commissioners
appointed in terms of section
117 of the LRA to perform the dispute
resolution function under the auspices of the CCMA.
[3]
The issue that gave rise to the dispute
between the parties arose from the planned introduction of a New
Operating Model (“NOM”)
by the applicant. The NOM is a
system used for processing payment of claims of victims of road
accidents. The need to introduce
the NOM system according to the
applicant arose because of the changes which had been introduced by
the Act. In contemplating the
impact of the introduction of the NOM
the applicant issued a notice in terms of s 189 of the LRA to the
first respondent. The notice
was however withdrawn because it was not
contemplated that the introduction of the NOM would lead to job loses
and to the changes
to the terms and conditions of employment. The
notice was in fact withdrawn on the advice of the CCMA. The parties
agreed to continue
with the consultation process despite the
withdrawal of the s 189 notice. The consultation in the present
instant concerned issues
related to transformation. In this respect
the parties agreed to approach the CCMA for assistance with the
intervention in terms
of s 150 of the LRA. Section 150 intervention
may be utilised even when there is no referral of the dispute to the
CCMA.
[4]
It would appear that the respondent was not
satisfied with the progress made in the s 150 facilitation and thus
referred a dispute
to the CCMA on the 29 December 2009.
[5]
The facts giving rise to the dispute are
recorded in the referral form in the following terms:
“
The
parties are involved in negotiations in an attempt to secure
conditions of employment and other substantive issues for the new
RAF.”
[6]
The demand of the respondent is set out in
item 6 of the referral form in the following terms:
“
The
employer to make a commitment in a form of a signed agreement that
there would be no change in the conditions of employment.”
[7]
Subsequent to the referral of the dispute
the CCMA issued a notice of set down on the 19
th
January 2010, which indicated that the dispute would be conciliated
by commissioner Fadal and the dispute was therein described
as “
a
section 64 (1) Matters of Mutual Interest dispute, under case number
GAJB 424-10.”
[8]
The parties held a meeting the following
day after the issuance of the notice of the set down of the
conciliation hearing and that
was on the 20
th
January 2010. The meeting was facilitated by commissioner Mello. The
parties agreed in that meeting that the consultation process
from
which the respondent withdrew during December 2009 would resume and a
task team would be constituted to look at the issues
raised in the
letter of the respondent dated 23
rd
December 2009. The conciliation proceedings which had been scheduled
for the 4
th
February 2010 was then cancelled and the task team held its first
meeting on that day.
[9]
The second meeting of the task team was
held on 12
th
February 2010. According to the applicant the task team deliberated
on the issues it was tasked with and an agreement was concluded
on a
number of issues.
[10]
In its founding affidavit the applicant
criticises the CCMA for unilaterally setting the conciliation hearing
down for the 17
th
March 2010 despite the agreement reached between the parties on the
20
th
January 2010.
[11]
The applicant attacks the legality of the
planned strike action by the respondent and its members on the
grounds that the conciliation
proceedings which took place on the
17
th
March 2010, was irregular in that commissioner Mello who facilitated
the s 150 of the LRA intervention conducted the conciliation
instead
of commissioner Hofmeyer, who was in any case present during the
proceedings. The essence of this complaint is that the
commissioner
mentioned in the notice of set down is commissioner Hofmeyer and not
commissioner Mello and therefore Mello was in
law not the appointed
commissioner to conciliate the dispute.
[12]
The applicant contended further that the
attendance of commissioner Mello at the conciliation was irregular
and unprocedural. It
was for this reason that the applicant objected
and demanded that commissioner Mello should recuse himself during the
conciliation
proceedings.
[13]
The other point upon which the applicant
relied on in attacking the legality of the planned strike is that the
dispute which had
been referred to the CCMA on the 29
th
December 2009 was suspended by agreement between the parties and
therefore there was no dispute to be conciliated.
[14]
After raising the above points which as
indicated are the bases for challenging the legality of the strike,
the commissioner issued
a verbal ruling to the effect that the
conciliation would preceed.
[15]
On the 31
st
March 2010, commissioner Mello issued
a certificate of outcome which indicated that the dispute remained
unresolved as at the 29
th
March 2010. The applicant contended that the certificate was null and
void because it was in respect of a dispute that had been
suspended.
[16]
On the same day that the certificate of out
come was issued, the 31
st
March 2010, the respondent issued a 48 hours notice to the applicant
indicating its intention to go on strike. The relevant part
of the
strike notice for the purposes of this judgment read as follows:
“
We
demand that the employer must not proceed in going live as from the
1
st
April 2010 without the above demands been addressed and an agreement
that would bind parties in chatting a way forward been signed.
The
South African Transport and Allied Workers Union (“SATAWU”)
believes that the strike can be resolved if Road Accident
Fund
(“RAF”) can come out clearly on how the process of
absorptions in the new operating models will as a guarantee
that the
conditions of employment which includes salary, provident fund,
medical aid etc will remain the same. SATAWU also demands
that the
employer must spell out in place that ensures that the jobs of our
members are protected. We are attaching the certificate
of non
resolution for the Commission for Conciliation, Mediation and
Arbitration that demonstrates and states that the matter remains
unresolved.”
[17]
The applicant contends that the above
notice contains new demands which were not included in the referral
of the dispute to the
CCMA. The example given in this respect is that
the respondent demands that the applicant should spell out plans to
ensure that
the jobs of its members are protected.
[18]
Mr Soni for the applicant argued that the
30 days period provided for in section 64 (a) (ii) of the LRA would
only give the right
to strike to the union only when there was an
attempt at conciliation. It was further contended on behalf of the
applicant that
the court should adopt the purposive interpretation
approach to the provisions of s 135 of LRA. The emphasis in this
respect was
on the object of securing labour peace by the LRA.
[19]
The other argument raised by Mr Soni was
that s 64 and s 135 should be read as requiring the party that has
referred the dispute
to the CCMA to be compelled to participate in a
properly scheduled conciliation process. In relation to the
conditionality in s
64 (a) (ii) of the LRA, it was submitted that the
right to strike would only arise if there has been an attempt at
conciliation.
[20]
The other ground upon which the intended
strike action is attacked is that the parties had established a task
team to deal with
matters related to the issues in dispute.
Evaluation
Was
there compliance with the requirements of section 64 (1) (a) (i) of
the LRA?
[21]
It is important in answering this question
to look at the purpose of s 64 (1) of the LRA. The court in
SA
Transport & Allied Workers Union &Others v Equity Aviation
Services (Pty) Ltd (2006) 27
ILJ
2411 (LC)
at paragraph [35] held that:
“
The
provisions of s64 (1) (b) need to be interpreted and applied in a
manner which gives best effect to the primary objects of the
Act and
its own specific purpose. That needs to be done within the constrains
of the language used in the section. One of the primary
objects of
the Act is to promote orderly collective bargaining.
Section 64 (1) (b) gives
expression to this object by requiring written notice of the
commencement of the proposed strike. The section’s
specific
purpose is to give an employer advance warning of the proposed strike
so that an employer may prepare for the power-play
that will follow.
That specific purpose is defeated if the employer is not informed in
the written notice in exact terms when the
proposed strike will
commence.”
[22]
In
Early Bird
Farm (Pty) Ltd v Food & Allied Workers Union & Others
(2004)25 ILJ 2135 (LAC),
the
court dealt with right to strike and observed in this respect as
follows:
“
[29]
Section 23 (1) (c) of the Constitution provides that ‘[e]very
worker has a right to strike.’ Like all fundamental
rights
contained in the Bill of Rights in our Constitution, the right to
strike can be limited by a law of general application
provided that
the requirements of s36 of the Constitution are met. The Act is an
Act of general application.
[30]
Section 64 (1) of the Act is an Act confers on very employee ‘the
right to strike …. if certain conditions prescribed
therein
have been met. It is sufficient to say that the first condition is
that the issue in dispute – that is the demand
or grievance
over which the strike is called – must have been referred
either to a council with jurisdiction or the
CCMA, as the case
may be, for conciliation and either a certificate must have been
issued to the effect that the dispute remains
unresolved or a period
of 30 days must have elapsed from the date of the referral of the
dispute for conciliation.”
[23]
In terms of section 64 (1) (a) of the
LRA:
“
(1)
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 Commissioner 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 Commissioner; and after that”
[24]
The Labour Appeal Court in dealing with a
comparable issue that arose in terms s 64 (4) of the LRA in
Eskom
v NUMSA & Others (2002)12 BLLR 1153 (LAC)
the
court at paragraph [11] held as follows
:
“
There
are two periods referred to in section 64 (1) (a). Each one commences
when the dispute is referred to a council or to the
CCMA. The one
ends when a certificate is issued in terms of section 64 (1) (a) (i).
The other ends 30 days after the referral of
the dispute (section 64
(1) (a) (ii). The question is whether it is the purpose of section 64
(4) to refer to only the one described
in terms of a number of days.
Section 64 (4) pre-supposes that section 64 (1) (a) in turn refers to
only one period. It is unclear
on such a reading to which of the two
periods section 64 (4) refers. The two periods in section 64 (1) (a)
are mutually exclusive
in the sense that if the one applies, the
other cannot. Therefore, a reference in section 64 (4) to “the
periods” would
have been nonsensical. The singular “period”
is used in section 64 (4) because the purpose is to refer to the
period
which is applied in the circumstances of each case.”
[25]
It is common cause that the first
respondent had in-compliance with the provisions of s 64 (1) (a) of
the LRA referred the dispute
to the CCMA. The issue raised by the
applicant is that the first respondent has not acquired the right to
strike because there
was no proper compliance with the provisions s
64 (1) (a) (i) of the LRA, in that there was an irregularity in
relation to the
appointment of the commissioner who purported to
conciliate the dispute. The complaint is based on the ground that the
commissioner
who conciliated the dispute is not the one mentioned in
the notice of set down by the CCMA.
[26]
In terms of s 135 (5) of the LRA the CCMA
must appoint a commissioner to resolve the dispute through
conciliation. The appointed
commissioner must attempt to resolve the
dispute through conciliation within 30 days of the date it received
the referral, unless
the parties agree to extend the 30 day period.
[27]
In my view s 135 (5) of the LRA must be
read with s 117 of the LRA which provides that the governing body of
the CCMA must appoint,
“
as
commissioners as many competent persons as it considers necessary to
perform the functions of commissioners by or in terms of
this Act or
any other law.”
[28]
There is nothing in s 135 (5) of the LRA
that the conciliating commissioner must be the one whose name appears
in the notice of
set down. If this was the case or such
interpretation was to be given to the provisions of s 135 (5) of the
LRA it would make the
function of the CCMA impracticable if not
impossible. Thus in my view the commissioner referred to in s 135 (5)
is any commissioner
properly appointed by the governing body of the
CCMA, which for that matter, may occur long before even a particular
dispute that
that commissioner is called upon to conciliate is
referred to the CCMA. In other words commissioners in the CCMA are
appointed
to generally perform the dispute resolution function of the
CCMA not necessarily to perform that function in relation to a
specific
dispute. The status of the commissioner who issued the
certificate of outcome in the present instance, it seem fair and
reasonable
to assume that he is a commissioner appointed by the
government and probably before this dispute arose. The commissioner
was thus
competent to perform conciliation functions as envisaged in
terms of s 135 of the LRA.
[29]
There is some suggestion in the founding
affidavit of the applicant that the commissioner who issued the
certificate of outcome
was conflicted because he was intimately
involved in the facilitation conducted in terms of s 150 of the LRA.
There is no merit
in this submission particularly if regard is had to
the fact that the same commissioner who performs conciliation
function in a
given matter can also perform the arbitration function
which is largely adjudicative in nature.
[30]
I now turn to deal with the applicants’
contention that “
unilateral set
down”
of the dispute was
irregular because the dispute had been “placed on ice”.
As I understand the concept of “placing
the dispute on ice”,
it meant that the dispute had been suspended and not withdrawn. The
dispute was “placed on ice”,
in a letter addressed by the
first respondent to the applicant dated 25
th
January 2010. The relevant parts of the letter read as follows:
“
RE:
TERMS OF REFERRENCE AS SUBMITTED BY SOUTH AFRICAN TRANSPORT &
ALLIED WORKERS UNION (SATAWU)
In the light of fact that
South African Transport & Allied Workers Union (SATAWU) had
agreed with the recommendations from Commission
for Conciliation
Mediation and Arbitration (CCMA) facilitator to defer the six demands
that relates to New Road Accident Fund (RAF)
Operating Model and as
result the dispute that was declared concerning Dispute of Mutual
Interest is put on ice.”
[31]
In the mean time the CCMA schedule the
conciliation proceedings for the 4
th
February 2010. The conciliation proceedings scheduled for that day
was cancelled by agreement between the parties, at the first
meeting
of the task team. The pre-amble to the terms of reference for the
task team is important in relation to the view that the
concept
“
placing dispute on ice”
did not mean that dispute as referred to the CCMA on the 29
th
December 2009 was not withdrawn. The pre-amble to the terms of
reference reads as follows:
“
The
parties to this body of terms of reference having agreed the
formation of Task Team as recommended by the CCMA. SATAWU
on
its part further agrees to differ and suspend its dispute Matters of
Mutual Interest scheduled for the 4
th
February 2010, case number GHB 424 -010. The task team shall commence
with its work on the 4
th
February 2010 and shall have completed its task by the end of
February 2010.”
[32]
Accepting that the dispute was
suspended and not withdrawn it then means that the first respondent
as the referring party could
resuscitate the suspended dispute. The
dispute was resuscitated by the first respondent in an email date 8
th
March 2010 which reads as follows:
“
Dear
Sipho
Please
note that SATAWU at its own right had decided to resuscitate the
dispute that was put on ice. Please note that this email
is serving
as a notice to enable to attend the conciliation process as schedule
we hope that the Terms of Reference may be acceptable
at CCMA as they
can they be used as the basis of engagement and way of finding a
workable solution to the impulse
We
hope you find the above in order
Regards.”
[33]
The dispute having been resuscitated it was
for the CCMA to decide as to the date to which it was to be scheduled
for a hearing.
In my view when the dispute was resuscitated there was
no need for the CCMA to obtain the consent of any of the parties to
set
the matter down for a hearing.
Is
there compliance with the provisions of section 64 (1) (a) (ii) of
the LRA?
[34]
If for whatever reason the requirements of
s 64 (1) (a) (i) of the LRA is not satisfied within the period of 30
days, the right
to strike which the union may have acquired from
firstly declaring a mutual interest dispute and thereafter referring
it to the
CCMA, does not fall away. The fact that the CCMA may have
not handled the conciliation process properly or that the
commissioner
who conducted the conciliation process was for whatever
reason disqualified to do so, is immaterial and has no barring in as
far
as the lapse of 30 days in s 64 (1) (a) (ii) of the LRA is
concerned. The 30 days period arises as an event independent of any
other processes or procedural step that may have happened prior to
its occurrence. The occurrence of 30 days elapse is an event
that
removes the procedural limitation imposed in evoking the right to
strike by a union. In other words the union acquires permission
in
law to exercise that right to strike which it acquired from the time
a proper referral of the dispute was made, including all
other
procedural aspects related there.
[35]
The above view has its support in the case
of
INGO Strautmann v Silver Meadows
Trading 1999 (Pty) Ltd Trading as Mark and Ben Sun Cost and others
unreported case number D412/07,
Bombardier Transportation
(Proprietary) Limited v Lungile Mtiya N.O & Others unreported
case number JR 644/09 (LC) and Goldfields
Mining South Africa (Kloof
Mine) v National Union of Mine Workers & Others
(2009) 12 BLLR
1214
(LC) including authorities referred therein
.
Although these cases dealt with the issue of a certificate of outcome
in the context of arbitration awards the principle enunciated
therein
is apposite the present case.
[36]
In
Bombardier
Transport,
Van Niekerk J, confirmed
what he had said in dealing with the legal status of the certificate
of outcome in
Goldfields
in
the following terms at paragraph [13] of that judgment:
“
Two
broad approaches appear to have emerged. The first is to regard the
matter as one concerning jurisdiction, and to require a
conciliating
commissioner to determine the dispute about the reason for dismissal
at the conciliation stage. On this approach,
the certificate of out
come (at least in so far as it categorises a dispute and indicates
the forum to which it should be referred)
represents a jurisdictional
ruling. The second approach is to attach no jurisdictional
significance to the certificate of outcome,
and to regard the
certificate as no more that a record that on a particular date, a
dispute referred to the CCMA in particular
terms remained unresolved.
On this approach, while a conciliating commissioner will normally
indicate the nature of the dispute
in the certificate of outcome, the
categorisation or description of the dispute has no bearing on the
further conduct of the proceedings.
In particular, the forum for any
subsequent proceedings initiated by the referring party is the
determined by what the employees
alleges the dispute to be, and
irrespective of the terms in which the certificate was completed.”
[37]
The Learned Judge went further in
Bombardier Transport
and
at paragraph [12] of his judgment to say:
“
In
my view, for the reasons recorded below, the LRA clearly adopts the
literal approach. In other words, a certificate of outcome
has no
legal significance beyond a statement that the dispute referred to
conciliation has been conciliated and was resolved or
remained
unresolved, as the case may be. In so far as the performance
certificate make provisions for a commissioner to categorise
the
dispute and to indicate the means by which or the forum in which it
is ultimately to be resolved, this are not functions contemplated
by
the Act, and they have no legal significance.
[38]
I am in agreement with the view expressed
in the above case that the wording of s 135 (5) of the LRA
contemplates that if the 30
days have elapsed from the date from
which the CCMA received the referral of the dispute the dispute may
be referred to arbitration
or adjudication by the court. In the
context of mutual interest dispute, the elapse of the 30 days period
from the date of the
referral to the CCMA, removes the procedural
constrain that had been placed on the right to strike or imposed a
lock out by any
of the parties as the case may be.
[39]
The status of the certificate of outcome in
law is correctly stated by Van Niekerk J in the above case at
paragraph [14] as follows:
“
[14]
In other words, a certificate of out come is no more than a document
issued by a commissioner stating that on a particular
day, a dispute
referred to the CCMA for conciliation remained unresolved. It does
not confer jurisdiction on the CCMA to do anything
that the CCMA is
not empowered to do, nor does it preclude the CCMA from exercising
any of its statutory powers. In short a certificate
of outcome has
nothing to do with jurisdiction. If a party wishes to challenge the
CCMA jurisdiction to deal with an unfair dismissal
dispute, it may do
so, whether or not the certificate of outcome has been issued.
Jurisdiction is not granted or afforded to it
by a CCMA commissioner
issuing a certificate of out come. Jurisdiction either exists as the
fact or it does not.”
[40]
The other issue upon which the applicant
relies on in challenging the legality of the intended strike is that
the respondent has
in its notice to embark to the strike changed its
demand which it had stated in the referral form. The demand in the
referral form
is stated as follows:
“
The
employer to make a commitment in a form of an agreement that there
will be no change in the conditions of employment.”
[41]
The relevant part in the notice of the
planned strike action relating to the demand read as follows:
“
We
demand that the employer must not proceed in going live as from
the 1
st
April 2010 without the above demands being addressed any agreement
that will bind the parties in chatting the way forward being
signed.
South African Transport and Allied Workers Union (“SATAWU”)
believes that the strike can be resolved if Road
Accident Fund
(“RAF”) can come out clearly on how the process of
absorbing the New Operating Model as well as the guarantee
that the
conditions of employment which includes salaries, provident fund,
medical aid ETC will remain the same. SATAWU also demands
that the
employer must spell out the plans in place that ensures that the jobs
of our members are protected. We are attaching the
certificate of
none resolution from the commission for conciliation, mediation and
arbitration that demonstrate and state that
the matter remains
unresolved.”
[42]
In my view, the demand in the notice of
intention to embark on the strike action by the first respondent is
not different to the
one in the referral form. The essence of the
demand in the notice of the intended strike is that the applicant
should not implement
the NOM without giving an undertaking that it
would not change the terms and conditions of employment of the first
respondent’s
members. The demand in the notice has to be
understood in the context of the summary of the dispute in the
referral form which
is recorded therein as follows:
“
The
parties are involved in an attempt to secure conditions of employment
and other substantive issues for the new RAF.”
[43]
In the light of the above I am of the view
that the applicant has failed to show that it has a
prima
facie
“though maybe in doubt”
right not to be faced with a strike action.
[44]
I am also of the view that in the light of
the existing relationship between the parties which they may need to
be managed in to
the future, there is no reason in law and fairness
to allow the cost to follow the result.
[45]
Accordingly the following order is made:
1.
The application is dismissed.
2.
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
7
th
April 2010
Date
of Judgment :
13
th
April 2010
Appearances
For
the Applicants : Adv
V Soni (SC)
Instructed
by :
Maserumule Inc
For
the Respondents: Adv P Kennedy (SC)
Instructed
by :
Cheadle Thompson &
Haysom