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[2010] ZALCJHB 359
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Unitrans Fuel And Chemical (Pty) Ltd v Transport And Allied Workers Union of South Africa and Another (J1633/10) [2010] ZALCJHB 359 (8 September 2010)
Delivered
080910
Of
interest to other judges
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO: J 1633/10
In
the matter between:
UNITRANS
FUEL AND CHEMICAL (PTY) LTD
APPLICANT
and
TRANSPORT
AND ALLIED WORKERS UNION
OF
SOUTH AFRICA
1
ST
RESPONDENT
NATIONAL
BARGAINING COUNCIL FOR
THE
ROAD FREIGHT INDUSTRY
2
ND
RESPONDENT
REASONS
FOR JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an urgent application in which the applicant seeks to
interdict the first respondent (‘the union’) and its
members
inter alia
from participating in a strike in
furtherance of a strike notice issued by the union on 6 August 2010.
On 3 September 2010 I dismissed
the application with no order as to
costs. These are my brief reasons for that order.
The
facts
[2]
The background facts are not in dispute, and can be briefly
summarised as follows. The applicant is in the haulage business.
In February 2009, a contract between the applicant and Shell
Petroleum terminated. Of the 1109 employees engaged on the contract,
31 remained in the applicant’s employ. Some 24 of those
employees signed new employment contracts in terms of which they
accepted a reduced level of remuneration. Seven of the 31 employees,
members of the union, refused to sign the contracts. However,
since
February 2009, the seven employees have continued working on the
terms offered by the applicant.
[3]
On 15 March 2010, the union sent the applicant a telefax headed
‘workers concerns’, in which it raised a number
of issues
concerning the allocation of long distance work, the registration of
employees wage discrepancies, wage cuts, coupling,
clarification of
bargaining council benefits, provident fund trustees, and report back
meetings during working time.
[4]
The parties met on 11 May 2010 to discuss the issues listed in the
letter. After further correspondence and attempts to convene
a
further meeting, on 5 July 2010, the union referred a number of
disputes to the bargaining council. There were three separate
referrals. I do not intend to describe the terms of these referrals
in any detail, save to say that the first referral made reference
to
an alleged refusal by the applicant to allow feedback by shop
stewards to members, the second made reference to the allocation
of
two drivers per truck and a refusal to pay them in terms of a
previous agreement with Roadway Logistics, and that the third
referral had attached to it the union’s letter dated 15
March 2010. After a conciliation meeting, the union claims
that only
the issues of wage discrepancies, wage cuts, coupling (more
particularly, a demand for an additional R500 per month for
those
drivers performing what was referred to as coupling) and the issue of
the administration of the provident fund remained on
the agenda. The
conciliation meeting appears mainly to have addressed a claim by the
union that the applicant had unilaterally
introduced changes to terms
and conditions of employment, and that the disputes referred to
conciliation were disputes of this
nature. This issue assumes
some significance in the founding affidavit, as it appears to be the
primary basis on which the
strike called by the union is claimed to
be unprotected, and on which the commissioner’s conduct is
attacked. In particular,
the applicant claims that none of the
disputes over which the strike has been called are in truth disputes
over the unilateral
variation of terms and conditions of employment.
In any event, a certificate of outcome was issued on 29 July
2010, reflecting
that a dispute concerning “unilateral terms
and conditions of employment changes” remained unresolved, and
that it
could be referred to industrial action. The same
issues that the union claims remained on the agenda after the
conciliation
meeting were the subject of a notice of intention to
strike issued by the union on 5 August 2010. This application was
filed on
11 August 2010.
The
applicant’s contentions
[5]
In essence, the applicant contends that to the extent that the
disputes referred to conciliation were claimed to concern a change
to
terms and conditions of employment, it had effected no such change.
In particular, the applicant contends that in terms of s
64 (4) of
the LRA, the union could only have issued a strike notice had there
been a failure by the applicant to refrain from unilaterally
implementing any changes to terms and conditions of employment, and
that in the absence of such a failure, there is no basis for
the
strike. The applicant also attacks the certificate of outcome,
and in particular, the jurisdiction of the commissioner
to issue the
certificate. The certificate is the subject of a separate application
for review, and for reasons that will become
apparent, it is not
necessary to pursue this matter any further.
The
relevant legal principles
[6]
Section 64 of the LRA does not require conciliation or the issuing of
a certificate of outcome as a pre-condition for a protected
strike. I
have previously expressed the view that a certificate of outcome has
no legal significance other than to state that a
dispute referred to
conciliation remains unresolved as at a particular date; it certainly
is not definitive of the nature of any
dispute either referred for
conciliation or that remains unresolved after the conciliation
process (see
Bombardier Transportation (Pty) Ltd V Mitya NO &
others
[2010] 8 BLLR 840
(LC)). The court is required
to look at the substance of any dispute referred to conciliation and
that is the subject of
a call to industrial action, and is not bound
by the label that the parties or a commissioner choose to give it.
The question to
be asked in an application such as the present is
whether the strike called by the union satisfies the substantive and
procedural
requirements established by the LRA for protected strike
action. Section 64 (1) of the LRA provides that the issue in dispute
must
have been referred to the CCMA or a bargaining council with
jurisdiction, and that either a certificate stating that the dispute
remains unresolved has been issued, or a period of 30 days, or any
agreed extension of that period, has elapsed since the referral.
In
the present matter, the strike notice was issued more than 30 days
after the referral of the dispute. What transpired at the
conciliation was therefore irrelevant.
[7]
To the extent that the applicant contends that the referrals were
made out of time, the LRA does not prescribe a time limit
for the
referral of disputes such as those referred on 5 July 2010. While it
is true that disputes must be referred in a reasonable
time, in the
present instance, the demands were tabled in March 2010, and pursued
by the union between then and the referral on
5 July.
[8]
To the extent that the applicant relies in these proceedings on a
substantive attack on the nature of the issues in dispute,
I would
observe that the LRA defines a “dispute” to include “An
alleged dispute”. This is a strong indication
that it is not
for the court to interrogate each matter placed in dispute by a party
in a collective bargaining process for the
purposes of determining
whether the dispute is indeed a dispute between the parties. It is
not necessary for me to canvass this
issue any further, since it is
clear to me that the disputes in respect of which the strike has been
called are disputes, that
they are disputes that are capable of being
the subject of industrial action and that they remain unresolved at
the time that the
strike notice was issued. In particular, the
dispute concerning wage parity concerns a demand that the applicant
introduce parity
across all contracts .i.e. that it abandons the
practice of paying differential wages in respect of different
contracts. The ‘wage
reduction’ dispute similarly is one
in which the seven employees who have refused to sign new contracts
be paid the wage
they received during the currency of the Shell
contract. To the extent that the applicant claims that the affected
employees have
waived their rights to make demands in respect of this
issue, there is nothing in the papers before me to indicate that this
demand
has been either abandoned or waived (see
Free State
Consolidated Gold Mines Ltd v NUM
(1987) 8 ILJ 606 (O)), which
concerned a delay in commencing strike action, but where the
principle that waiver should not readily
be implied in labour
disputes remains applicable). The dispute concerning ‘coupling’
is centered on a demand that drivers
who perform this work should be
paid an extra R500 per month. The applicant claims that this is a
matter that should be bargained
at sectoral level. There is nothing
in the papers before me to indicate that the union is prohibited from
raising a demand of this
nature at plant level. Finally, the dispute
concerning the administration of the provident fund was discussed at
the meeting held
on 11 May, and is clearly a matter over which none
of the substantive limitations contained s 65 apply.
[9]
In short: the issues over which the strike has been called are issues
that may competently be the subject of protected strike
action. The
union has complied with all of the relevant procedural requirements,
and in particular, more than 30 days have elapsed
since the referral
of the dispute. In these circumstances, what transpired at the
conciliation meeting and the conduct of the conciliator
is of no
consequence. The application therefore stands to be dismissed.
Costs
[10]
Finally, in relation to costs, the approach applied in this court,
which has its origins in
National Union of Mineworkers v East Rand
Gold and Uranium Co Ltd
[1991] ZASCA 168
;
1992 (1) SA 700
(A), is that where
parties to a collective bargaining relationship are parties to
litigation, the court should be slow to make
costs orders against one
or the other. The parties are engaged in a collective bargaining
relationship and so as not to prejudice
the nature of that
relationship, and in the absence of any compelling reason why the
respondent should be awarded its costs, I
do not intend to make any
order in that regard.
[11]
For these reasons, I made the order reflected in paragraph [1] above.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of application: 31 August 2010
Date
of judgment: 3 September 2010
Reasons
filed: 8 September 2010
Appearances:
For
the applicant Adv B Jackson, instructed by Marshall Attorneys
For
the respondent: Adv Wilke, instructed by Ramushu Mashile Twala Inc.