About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2010
>>
[2010] ZALCJHB 338
|
|
Clidet No 957 (Pty) Ltd v South African Municipal Workers Union and Others (J2401/2010) [2010] ZALCJHB 338 (3 December 2010)
Delivered
03122010
Reportable
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO: J 2401/2010
In
the matter between:
CLIDET
NO 957 (PTY) LTD
APPLICANT
and
SOUTH
AFRICAN MUNICIPAL WORKERS’
UNION
1
ST
RESPONDENT
EMPLOYEES
OF THE APPLICANT WHO ARE
MEMBERS
OF THE 1
ST
RESPONDENT
2
ND
TO FURTHER RESPONDENTS
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an urgent application in which the applicant seeks an interim
order interdicting the respondents from engaging in a
secondary
strike. The primary strike is protected (this court having granted an
order to that effect on 29 November 2010), and
the first respondent
(the union) has given the notice required by s 66 (2) (b) of the
Labour Relations Act (LRA). The crisp issue
in dispute in these
proceedings is whether the proposed secondary strike meets the
requirement established by s 66 (2) (c) of the
LRA, i.e. whether the
nature and extent of the secondary strike is reasonable having regard
to the direct or indirect effect of
the strike on the business of the
primary employer.
Factual
background
[2]
The material facts are largely a matter of common cause. The primary
employer is the Metropolitan Trading Company (MTC), a wholly
owned
subsidiary of the City of Johannesburg Metropolitan Council. MTC’s
business is the provision of certain services at
bus stations, or
more accurately, the provision of persons to render services relating
to ticket sales, marshalling and the like.
After MTC concluded what
was termed an ‘employment framework agreement’ with taxi
industry representatives, MTC gave
the union notice of its intention
not to renew certain fixed term contracts in terms of which union’s
members are employed.
This notice was prompted by a term of the
agreement to the effect that an agreed percentage of MTC’s
posts will be filled
by taxi drivers whose taxis will be
decommissioned. The union is in dispute with MTC over a demand that
union members who are currently
employed by MTC on fixed term
contracts be appointed to permanent positions. As stated in the
introduction, the union has
given notice of its intention to commence
a strike in support of this demand.
[3]
The applicant is a private company and an independent entity, at
least in the sense that there is no common shareholding as
between it
and the primary employer. The applicant carries on business as a bus
operator, and provides a bus service to the City
of Johannesburg
Metropolitan municipality as party of the Rea Vaya Bus Rapid
Transport system. The applicant receives a fee
for providing
bus transport services to the City, and transports between 30 000 and
35 000 commuters every day.
Condonation
[4]
The first issue to be decided is whether the applicant’s
failure to give the required notice of this application should
be
condoned. On 19 November 2010, the union gave 10 days’ notice
of the intended strike. Section 68(3) of the LRA provides
that
when notice is given at least 10 days before the commencement
of a strike, the applicant must give at least five days’
notice
of any application to interdict the strike. The present application
was filed on 26 November 2010, and set down for hearing
on 29
November. The union contends that the applicant has therefore failed
to afford the notice required by s 68 (3) and that for
this reason,
the application ought to be removed from the roll.
[5]
Whether the applicant’s failure to provide the required notice
is fatal has been the subject of conflicting decisions
by this court.
In
Automobile Manufacturers Employers’
Organisation v NUMSA
[1998] 11 BLLR
1116
(LC) Landman J held that notice of an application meant formal
notice of the application with supporting affidavits, and that a
failure to comply with s 68 (3) could not be condoned. In
City
of Johannesburg v SA Municipal Workers Union & others
(2010)
31
ILJ
1175
(LC), Molahlehi J expressed a different view and condoned the filing
of a similar application that had been served on three
days’
notice. Molahlehi J relied
inter alia
on
Queenstown Fuel Distributors CC v
Labuschagne NO & others
(2000) 21
ILJ
166
(LAC), in which the Labour Appeal Court held that s 145 of the Act,
while it does not expressly give the court the power to
condone
non-compliance with the six-week time limit established by that
section, is directory, and that it should not be read so
as to
exclude the power to grant condonation for good cause shown. In my
view, to regard the provisions of s 68 (3) as peremptory
has the
potential to occasion injustice, and for the reasons articulated by
Molahlehi J, I intend to consider what is effectively
an application
for condonation by the applicant.
[6]
The applicant’s CEO states that the strike notice was received
on Friday 19 November. The applicant sent the notice to
its
attorneys, who contacted the CEO on Monday 22 November. Thereafter
enquiries were made to the attorneys representing MTC, when
details
of the primary dispute emerged. On 25 November a written undertaking
was sought from the union to the effect that its members
would not
embark on a secondary strike. The undertaking was not forthcoming,
and on 26 November this application was filed for
hearing on 29
November simultaneously with the application to interdict the primary
strike. As events transpired, after the dismissal
of that
application, the parties agreed to postpone the application to 1
December 2010, and to a timetable for the filing of answering
and
replying affidavits. These were filed within the agreed periods, and
the matter was heard on 1 December, five days after notice
of the
application. In these circumstances, while the applicant’s
explanation for its failure to give the required
notice is thin, the
respondent has not suffered any material prejudice, and the interests
of justice would not be served by removing
the matter from the roll
only to be re-enrolled on the same papers within a day or two. The
applicant’s failure to give five
days’ notice of the
application is accordingly condoned.
Secondary
strikes
[7]
The right to engage in secondary action is not unfettered. The model
adopted by the LRA recognises that it is legitimate for
a union to
place additional pressure on the primary employer to meet its demands
by calling out its members employed by another
employer, subject to
the procedural requirements introduced by s 66 (2) (a) and (b), and
the reasonableness requirement introduced
by s 66 (2) (c). In
regard to the latter, the parties were agreed that the relevant legal
principles were those enunciated
in
SALGA
v SAMWU
(2007) 28
ILJ
2603 (LC). In that case, the court said
the following:
Whether
or not a secondary strike is protected is determined by weighing up
two factors - the reasonableness of the nature and extent
of the
secondary strike (this is an enquiry into the effect of the strike on
the secondary employer and will require consideration,
inter alia, of
the duration and form of the strike, the number of employees
involved, their conduct, the magnitude of the
strike’s
impact on the secondary employer and the sector in which it occurs)
and secondly, the effect of the secondary strike
on the business of
the primary employer, which is in essence an enquiry into the extent
of the pressure that is placed on the primary
employer
(at
paragraph [16] of the judgment)
.
[8]
In the present instance, the two businesses represented by the
primary and secondary employer are both service providers to
an
enterprise managed ultimately by a third party. MTC manages the bus
stations; the applicant operates the busses, ultimately
for the
benefit of the City. In one sense, the two entities share a
connection - the stations exist to serve the busses, and the
busses
could not operate effectively without the stations. But that is not
the test. The legitimacy (or otherwise) of the secondary
strike must
be determined by determining the nature and extent of the
proposed secondary strike, and weighing that against
the harm that
will be caused to the business of the primary employer. This approach
is obviously better suited to employers that
stand in a relationship
of customer and supplier, or who enjoy a connection by way of a
common shareholding or some other nexus
that bears on the capacity of
the secondary employer to place pressure on the primary employer to
resolve its dispute with the
union. Where both employers, as they are
in the present instance, simply provide services for the benefit of a
common client, it
is difficult to appreciate how, ordinarily; the one
is in a position to influence the other. The situation is different
as between
MTC and its client; indeed, the application dismissed on
29 November encompassed an interdict against the union from calling a
secondary strike in respect of its members employed by the City.
[9]
In the present instance, in regard to the nature and extent of the
proposed secondary strike, the union appears to have called
for a
complete withdrawal of labour, for an indefinite period. The effect
on the strike on the applicant’s business is likely
therefore
to be significant. The applicant generates revenue on the basis of
kilometers travelled by the buses it operates - if
the busses do not
operate, it generates no revenue, and the uncontested evidence is
that it will incur losses of some R200 000
per day.
[10]
On the other hand, the effect of a secondary strike on the business
of MTC is more difficult to assess. The applicant contends
that the
effect of a strike by its employees on MTC’s business will be
minimal - MTC is not a profit-making concern, and
it has no financial
funding obligations. If the buses operated by the applicant do not
run, MTC incurs no finacial loss. While
the applicant can be
criticised for making much of the detail of its case in the replying
affidavit, the point is foreshadowed
by the founding affidavit, where
the deponent claims that the secondary strike will have no
substantial effect on MTC. A detailed
analysis of the agreements
between the station contractor agreement between MTC and the City is
not necessary; it is clear to me
that MTC, being the provider of
limited services on bus stations that it is, will be marginally
affected (if at all) by the proposed
secondary strike.
[11]
In these circumstances, I fail to appreciate what pressure will be
placed on the business of MTC should the secondary action
proceed.
The only significant effect that the strike will have is the
inconvenience to the thousands of commuters who rely on the
applicant
for their daily transport. They will be inconvenienced no doubt by
the primary strike given the absence of cashiers and
the like, but
the effect of the secondary strike will be to deny them access to the
transport on which they ordinarily rely. But
the question here is not
the extent of any inconvenience to commuters rather than whether on
the test established by s 66, the
applicant can be said to be
reasonably capable of exerting pressure on MTC to meet the union’s
demand that its employees
should be permanently employed. For the
above reasons, in my view, that question must be answered in the
negative.
[12]
At the hearing of the application, the union’s counsel
submitted that I should issue an order that would have the effect
of
mitigating the effects of the strike, should I find that the nature
and extent of the strike were unreasonable. This was done
in
Samancor
Ltd & another v National Union of Metalworkers of SA
(1999)
20
ILJ
2941
(LC), when Landman J ordered that a secondary strike could take place
only on Mondays and Tuesdays until the primary dispute
was resolved.
It does not seem to me that it is competent for this court to make
such an order, unless, as was the case in
Samancor
,
it is an order to which the parties consent. Even if it were, I
would hesitate to prescribe to the union that it should
limit its
strike to a day or two a week, or to adopt whatever formula would
serve to bring the strike within the band of protection
established
by s 66. It seems to me that if the union wishes to reconsider the
nature and extent of any secondary action it should
do so on its own
terms.
[13]
The applicant has applied for an interim order. The papers before me
are comprehensive, and the substantive legal issue raised
by this
dispute has been fully ventilated. I fail to appreciate what purpose
an interim order would serve, and intend to make a
final order.
Finally, in relation to costs, there is no reason why costs should
not follow the result.
For
these reasons, I make the following order:
The
secondary strike called by the first respondent is unprotected.
The
second and further respondents are interdicted from commencing with
or participating in the strike, and the first respondent
is
interdicted from encouraging or promoting the strike.
The
first respondent is to pay the costs of this application.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of application: 1 December 2010
Date
of judgment 3 December 2010
For
the applicant : Adv FJ Nalane, instructed by Cliffe Dekker Hofmeyr
Inc.
For
the respondents: Adv T Ngcukaitobi, instructed by Cheadle
Thompson & Haysom Inc.