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[2010] ZALCJHB 370
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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 370 (15 September 2010)
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
RULING:
APPLICATION FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1]
This is an application for leave to appeal against an order made on
3 September 2010, in terms of which an urgent application
to
interdict a strike called by the first respondent was dismissed, with
no order as to costs. I do not intend to repeat the material
facts;
these are recorded in the brief reasons that I handed down on
September 2010. In essence, the first respondent (the union)
issued a
notice of intention to strike on issues described variously in the
strike notice as “wage discrepancies”,
“wage cuts”,
“coupling” and a unilateral change of the administration
of the provident fund. The applicant
sought to interdict the strike,
and brought the application which resulted in the order that is the
subject of these proceedings.
[2]
The application for leave to appeal was argued yesterday afternoon.
The applicant was represented by new counsel and a new instructing
attorney. At issue was whether what the applicant presented amounted
to a new case, one not foreshadowed by the papers filed in
the urgent
application. Mr. Franklin SC, for the applicant, fairly submitted
that the basis on which the applicant’s case
had been presented
at the hearing of the application was unfortunate, in that its focus
was a dispute about whether the union’s
claim in reality
concerned a unilateral variation to conditions of employment, the
certificate of outcome and the commissioner’s
conduct during
the conciliation proceedings. The primary submission made by the
applicant in these proceedings is simple –
the intended strike
should have been interdicted because it falls foul of the substantive
limitations contained in s 65 (1) and
(3) of the Labour Relations
Act. On a proper consideration of these provisions read with the
relevant collective agreements, Mr.
Franklin submitted, there were
good prospects that the Labour Appeal Court, having regard to the
agreements, may declare the strike
unprotected.
[3]
The applicant disavows any reliance on new evidence. It claims that
the substantive limitations contained in s 65 were referred
to,
albeit obliquely, in the founding affidavit, that at least the
demands concerning wage discrepancies, the wage cut and an allowance
for coupling. That being so, clause 50 of the bargaining council’s
main agreement precluded these issues from being raised
at plant
level. The submission proceeds on this basis: s 5 of the Civil
Proceedings Evidence Act, 25 of 1965, provides that judicial
notice
shall be taken of any law or government notice, or of any other
matter which has been published in the Government Gazette.
The
bargaining council’s main agreement, published in the gazette
on 30 April 2004 and subsequently amended and extended,
is currently
in force. It is not disputed the main agreement binds the parties to
this dispute. The full text of the agreement,
not before the court at
the hearing of the matter, defines “substantive issues”
to mean “…all issues involving
cost and affecting the
wage packets of employees.” The first three demands are wage
demands, and amount to ‘substantive
issues’, affecting as
they do employees’ wage packets and employers’ costs.
Clause 50 of the main agreement states:
The forum for the negotiation and
conclusion of substantive agreements on wages, benefits and other
conditions of employment between
the employers and employers
organisations on the one hand and trade unions on the other hand,
shall be the council.
Clause 50 (3) states:
No trade union or employers
organisation shall attempt to induce or compel or be induced or
compelled by, any natural or juristic
person or organisation, by any
form of strike or lockout, to negotiate the issues referred to in
sub-clause (1) above at any level
other than council.
[4]
There is nothing to preclude the applicant from raising new points of
law on appeal, and should the applicant wish to introduce
new
evidence on appeal, it has the right to persuade the Labour Appeal
Court that this would be in the interests of justice. However,
as I
have indicated, Mr. Franklin intimated that the basis for the appeal
was foreshadowed by the papers, and indeed, this application
was
argued on that basis. I am persuaded that there are reasonable
prospects that a court on appeal may find that the first
three
demands amount to substantive issues as defined in the main
collective agreement, and are therefore not capable of forming
the
subject of a protected strike, given the limitations contained in s
65 (1) (a) and (3)(a) of the LRA. It is accordingly not
necessary for
me to consider Mr. Franklin’s submissions on the provisions of
the council’s exemption and dispute resolution
collective
agreement, and I say no more expect to observe that the wording of
clause 50 (2) of the main agreement, which provides
that in the event
of a deadlock in negotiations on non-substantive conditions of
employment, is not peremptory.
[5]
Finally, in relation to the union’s fourth demand, it seems
clear to me that the dispute concerns the administration of
the
provident fund. Mr. Franklin submitted that the dispute concerned the
interpretation and application of the provident fund
collective
agreement, and that in terms of that agreement, any dispute is to be
dealt with in terms of the council’s exemptions
and dispute
resolution agreement. This submission overlooks the fact that the
provident fund that is the subject of the union’s
complaint and
demand is an “in house” fund – it has nothing to do
wit the industry fund or the collective agreement
that establishes
that fund. To the extent that the applicant submits that the union’s
demand is incompetent because it is
addressed to a third party in the
form of the fund and its administrator’s it seems to me that
this submission ignores the
substance of the union’s demand
(which is that the fund be administered on a different basis) and the
assertion made in the
replying affidavit to the effect that the
provident fund has always been under the applicant’s control,
and that and that
a concession had been made during the meeting
between the parties on 11 May 2010 when Mr. Sekano, the applicant’s
human resources
manager, stated that he had said that he had no
objection to the union writing a letter to the principal officer of
the fund requesting
a change to the rules of the fund. It seems to me
that a demand to the effect that an employer use its influence to
ensure that
the administration of a retirement fund controlled by an
employer more closely accords with employees’ interests is a
legitimate
demand, and that it is not a substantive issue as defined
in the collective agreement. However, in view of my finding on the
first
three issues giving rise to the strike, I need not pursue this
matter further.
[6]
Finally, whether the appeal is to be heard on an urgent basis (and
any other terms that apply to the prosecution and hearing
of the
appeal) is not a matter for me to determine.
In
the result, I make the following order:
1. Leave to appeal against the
order made on 3 September 2010 is granted, costs to be costs in the
appeal.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date of
application 14 September 2010
Date of
ruling :15 September 2010