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[2010] ZALCJHB 352
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Digistics (Pty) Ltd v Couth African Transport And Allied Workers Union and Others (J1316/10) [2010] ZALCJHB 352 (4 July 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO J 1316/10
In
the matter between:
DIGISTICS
(PTY) LTD
Applicant
And
SOUTH
AFRICAN TRANSPORT
AND
ALLIED WORKERS UNION
First Respondent
ERENS MASHEGO &
OTHERS
Second to further Respondents
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Third respondent
HLATSHWAYO,
T
N.O.
Fourth Respondent
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an urgent application in which the applicant seeks an order
declaring that a strike commenced by members of the first
respondent
is unprotected, coupled with an interim interdict restraining the
first respondent’s members from participating
in the strike.
Factual background
[2] The applicant has
been engaged in protracted negotiations with the first respondent
(the union) since February 2009 with a view
to concluding a
recognition agreement, intended to regulate both organisational and
collective bargaining rights.
[3] In late October 2009,
the parties reached deadlock. They were unable to agree on four
issues – the definition of the bargaining
unit, the appointment
of a full time shop steward, paid time-off for shop stewards, and the
time period within which collective
bargaining would commence.
[4] In November 2009, the
union referred a dispute to the CCMA. The dispute was classified by
the union as one concerning a refusal
to bargain, and described as an
inability to reach agreement on certain issues relating to the
collective agreement. A conciliation
hearing was held on 18 January
2010. The fourth respondent (the commissioner) declined to issue a
certificate of outcome, and a
week later, presented the parties with
what is termed an ‘advisory award’. To date, no
certificate of outcome has been
issued.
[5] The advisory award
reads as follows:
“
Having
considered the submissions of the parties the following advisory
award is made:
1.
Parties are advised to extend the
lifespan of the conciliation process for 30 days in order to engage
in meaningful consultation
and explore options of reaching a
resolution.
2.
Furthermore, an opportunity exists
to seek CCMA assistance in term of s 150 should parties so desire.
3.
It is unfortunate that the referral
to the CCMA appears to have been solely to unlock the relevant
section and open the parties
to a potential strike which may not be
in the interest of promoting sound employment relations in the short
term.
4.
It is envisaged that this could
still be attained as provided for in points 1 and 2 above.”
[6] On 26 February 2010,
the applicant filed an application to review and set aside the
advisory award. Those proceedings remain
pending.
[7] On 26 June 2010 union
issued a strike notice, in which a strike was called in support of
the demands for the inclusion of supervisors
in the bargaining unit,
the appointment of a full time shop steward, and paid time-off for
shop stewards.
Legal issues
[8]
In these proceedings, the applicant relied initially on the fact of
the pending application to review and set aside the advisory
award to
seek an order interdicting the second and further respondents from
embarking on strike action. I will deal with this issue
in due
course. Mr Boda, who appeared for the applicant, raised a number of
additional arguments. First, he relied on the wording
of s 64(1) (a)
read with s 135(5) (a)
[1]
to
submit that the strike was unprotected because the commissioner had
failed to issue a certificate of outcome. The use of the
word “must”
in s 135 (5)(a), he contended, necessarily required a commissioner to
issue a certificate of outcome, even
if a conciliation meeting was
never convened, and the issuing of the certificate was a necessary
procedural step prior to the acquisition
of any right to strike.
[9] There is no merit in
this submission. While s 135(5) (a) requires a commissioner to
issue a certificate of outcome, it
does not follow that a failure to
do prejudices the right to strike. The clear wording of s 64(1) (a),
and in particular the use
of the word “or” between items
(i) and (ii), contemplates that the procedural requirements
established by s 64 (1)
are met once 30 days have elapsed from the
date of the referral, whether any commissioner appointed to
conciliate the dispute certificate
has issued a certificate or not.
The purpose of item (i) of subsection (a) is to cater for a situation
where conciliation
fails within the 30 day period referred to in item
(ii). In other words, the procedural requirements imposed by the
section are
met once a certificate of outcome is issued by a
commissioner, or 30 days have elapsed from the date of the referral,
whichever
occurs first.
[10] Mr Boda’s
second submission was that in effect, the nature of the dispute
referred to the CCMA was one of a refusal to
bargain. As I understood
the submission, the demands for the inclusion of supervisors in the
bargaining unit, a full time shop
steward and paid time-off for shop
steward were all made in the context of a demand for recognition.
That being so, it was necessary
for the commissioner to have made a
valid advisory award on all of these issues before the union was
entitled to issue a strike
notice in terms of s64(1)(b).
[11]
There is similarly no merit in this submission. Although the
preamble to the definition of a ‘refusal to bargain’
in
s64(2) is clearly open-ended, the list does not refer to nor does it
include disputes about what the Act elsewhere refers to
as
organisational rights.
[2]
There
is thus a clear a distinction between disputes that concern the right
to organise, and those that concern matters more closely
associated
with the right to bargain. Organisational rights disputes may be
referred to arbitration or become the subject of strike
action, at
the union’s election.
[3]
Although the LRA does not establish a duty to bargain, the intention
of s 64(2) is to provide a basis for advice to be given to
the
parties in dispute on issues relating to elements of the right to
bargain that is being sought by a union and resisted by an
employer.
It was hoped, no doubt, that the wisdom and experience of
commissioners would be reflected in advisory awards made in
terms of
s 64(2), which would in turn persuade the parties in dispute to adapt
their bargaining positions. To consider disputes
about
organisational rights as disputes about a refusal to bargain, even
when a demand for these rights forms an integral part
of a
recognition battle, would be to muddy a distinction that the LRA
clearly makes, and would have the consequence of imposing
restrictions on the exercise of the right to strike which are simply
not sustainable having regard to the plain wording of the
statute.
[4]
[12] I should mention,
for the sake of completeness if nothing else, that while paid time
off for shop stewards is a right established
by the LRA (see s
14(5)), the Act does not establish a right to the appointment of
full-time shop stewards. To this extent, the
union has an election to
strike or to refer the dispute to arbitration in relation to its
demand for paid time off, but there is
no election in relation to the
demand that a full time shop steward be appointed. This is a matter
in respect of which the provisions
of Part A of Chapter III of the
Act do not apply.
[13]
Finally, I turn to the issue of the advisory award itself. The less
said about it the better. It was not the commissioner’s
brief
to pass judgment, as he appears to have done, on the union’s
motives in referring the dispute to the CCMA. Even if
the union had
done so with the intention, as the commissioner put it, “to
unlock the relevant section and open the parties
to a potential
strike…” this was the union’s right. What the
commissioner was required to do (and what he manifestly
failed to do)
was to isolate those elements of the dispute that concerned a refusal
to bargain (in the present case, the demand
for the inclusion of
supervisors in the bargaining unit) and to issue an advisory award
that addresses the merits of the competing
contentions. Of course any
opinion expressed in these circumstances is by definition not binding
on the parties, but it seems to
me that the commissioner ought at
least to have addressed the relevant factors,
[5]
come to some rational conclusion (expressed as advice to the parties)
and briefly set out the reasoning for the advice proffered.
While the
Act does not prescribe precisely when and how an advisory award is to
be made, I find it difficult to conceive how these
obligations can be
properly discharged without affording the parties the opportunity to
make submissions in support of their respective
positions, and if
necessary, to lead evidence. However, the nature of these proceedings
does not require me to assess the reasonableness
of the
commissioner’s advisory award; that is the function of the
review court in due course. For the purposes of these proceedings,
my
view is that the commissioner’s award, on the face of it, is
not an advisory award contemplated by s 64 (2), and
that the
procedural hurdle to protected strike action established by that
section, in so far as the demand for the inclusion of
supervisors in
the bargaining unit is concerned, has accordingly not been met.
[14]
This leaves the issue of the effect, if any, of the demand for an
expanded bargaining unit on the validity of the strike notice
(which,
as I have noted, incorporates all three demands) and the strike
itself. In other words, does the single bad apple (in the
form of the
demand that concerns a refusal to bargain issue made in circumstances
where no advisory award has been issued) taint
the entire barrel? In
Samancor Ltd & another v National
Union of Metalworkers of SA
(1999)
20
ILJ
2941 (LC), Landman J considered the same question and held that
if it is possible to distinguish between the permissible
and
impermissible demands, once the impermissible demands have been
abandoned, the strike is protected. This matter was not raised
for
debate by either party at the hearing of this application, and in
these circumstances, I am inclined simply to apply the same
principle. I am also inclined to the view that there should be no
order as to costs, having regard to the outcome of these proceedings,
the fact of an on-going collective bargaining relationship between
the parties, and the prospect of prejudice to that relationship
and
the successful resolution of outstanding issues should an order for
costs be made.
I accordingly make the
following order:
1.
To the extent that the strike called by the
first respondent is called in pursuit of a demand relating to
the inclusion of
supervisors in the bargaining unit:
a.
the strike is declared to be
unprotected; and
b.
the second to further respondents are
interdicted from participating in the strike.
2.
This order does not preclude the second and
further respondents from engaging in strike action in pursuit of
demands relating to
the appointment of full time shop stewards
and paid leave for shop stewards, provided that the first respondent
has notified
the applicant of the withdrawal of the demand relating
to the inclusion of supervisors in the bargaining unit.
3.
There is no order as to costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of hearing: 2 July 2010
Date
of judgment 4 July 2010
Appearances
For
the applicant: Adv F Boda, instructed by Eversheds
For
the respondents: Ms Ruth Edmonds, Ruth Edmonds Attorneys.
[1]
Section
135(5)(a) reads:
“
When
conciliation has failed, or at the end of the 30-day period or any
further period agreed between the parties-
(a)
the commissioner must issue a certificate
stating whether or not the dispute has been resolved…”.
Section
64(1)(a) reads:
“
Every
employee has the right to strike and every employer has the right 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;….”
[2]
See
Part A of Chapter III of the LRA, which establish the rights of
access to workplaces, check-off, the appointment of shop stewards,
leave for trade union activities, and the disclosure of information.
[3]
See
s 21(7), read with s 65(2). Section 65 (2)(b) provides that if a
trade union gives notice of intention to strike on an organisational
rights issue, it may not exercise eth right to refer the dispute to
arbitration for 12 moths from the date of the strike notice.
[4]
This
is not to suggest that the distinction between refusal to bargain
disputes and other disputes is always an easy one to make.
See, for
example,
County
Fair Foods (a Division of Astral Operations Ltd) v Hotel, Liquor
Catering Commercial & Allied Workers Union & others
(2006)
27
ILJ
348
(LC), a case that concerned the withdrawal of recognition during a
wage dispute.
[5]
These
are conveniently set out in
SA
Society of Bank Officials v Standard Bank of SA Ltd
(1998) 19
ILJ
223 (SCA).