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[2010] ZALCJHB 374
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South African Airways (Pty) Ltd v South African Transport And Allied Workers Union and Others (J2292/10) [2010] ZALCJHB 374 (3 December 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT BRAAMFONTEIN)
Case
No.
J2292/10
(Strike
interdict: demands)
In
the matter between:
SOUTH
AFRICAN AIRWAYS (PTY) LTD
Applicant
and
SOUTH
AFRICAN TRANSPORT AND
ALLIED
WORKERS
UNION
First Respondent
KOTSEDI
& OTYHER
Second and Further Respondents
JUDGMENT
GUSH
J
1.
The applicant in this matter seeks the confirmation of an order
granted by this court on the 16
th
November 2010.
2.
The applicants brought an urgent application on the 16
th
November 2010 seeking an order calling upon the respondents’ to
show cause on the 30
th
November 2010 why an order should
not be granted:
2.1.
“Interdicting and restraining
the respondents from
participating in industrial action in relation to the strike notice
issued on 10
th
November 2010; and
2.2.
Interdicting an restraining the respondents
from instigating or
promoting industrial action by any of the second to further
respondents in relation to the strike notice issued
on 10
th
November 2010”
3.
The order was granted and operated as an interim order pending the
return date which was the 30
th
November 2010. By the 30
th
November 2010 the matter was opposed and in the interim the
respondents had filed an answering affidavit and the applicants a
replying affidavit.
4.
The background to the application is that the first respondent had
sent a letter to the applicant stating:
“
RE: NOTICE OF
OUR CONTEMPLATED STRIKE ACTION
Pursuant to various
certificates of non- resolution issued by the CCMA, SATAWU would like
to give 48 hours notice of its contemplated
strike action in order to
advance the following demands.
1.
Phasing out of levels 2-5 and accordingly replace them with
level 6-9 (entry level)
2.
Abolition of performance Management system.
3.
Phasing out of the contracted companies after their respective
expiry dates.(sic)
4.
Suspension/removal and disciplinary processes against Simon
Ngwenya…
5.
FIFA 2010 World Cup incentive bonus of R10,000 per employee.
6.
Removal of the external consultants from the internal
disciplinary hearings.
7.
Inconvenience of usd 50,00 per sector for any flight operating
short(sic) Should the employer fail to address the above demands
within 48 hours, SATAWU will commence a Strike action on Monday the
15
th
November 2010
. (sic)”
5.
In response to the 1
st
respondent’s letter the
applicant replied indicating that it believed that the issues were
not matters of mutual concern
and asked for an undertaking that the
2
nd
and further respondents would not embark on strike
action failing which the applicant would seek to interdict the strike
action.
6.
The 1
st
respondent’s reply sought to justify and to
some extent explain the demands upon which the respondents had set
out in the
notice of intended strike action including referring to
certificates issued by the CCMA dealing with some of the demands and
in
respect of the 3
rd
demand listing the companies that
the respondent demanded “be phased out”. The respondents
confirmed that they intended
proceeding with the strike as planned.
7.
The applicant responded by launching the urgent application. In its
founding affidavit and in support of the relief sought the
applicant
averred variously that:
7.1.
the respondents had not referred
the 5
th
6
th
and 7
th
demands to the CCMA as required by S64(1)(a) of
the Labour Relations Act 66 of 95 (LRA)
7.2.
That no certificate of non resolution
had been issued in respect of
these disputes;
7.3.
None of the respondents’ demands
related to matters of mutual
interest;
7.4.
The 1
st
demand is covered by a collective agreement which
provides:
“
There will be
no further negotiations on wage increases until the 2011 negotiations
as stipulated in the agreement
” and that the demand is no
more than a disguised wage demand
7.5.
The second demand is dealt with
in a collective agreement which
governs inter alia the development and implementation of a
“performance payment scheme”;
7.6.
The 4
th
demand is neither legal nor fair;
7.7.
The 5
th
demand is contrary to the applicant’s policy
regarding incentive bonuses;
7.8.
Regarding the 6
th
demand that the applicant has
contractual obligations to the external consultants and may not
unilaterally or prematurely cancel
such contracts.
8.
In its answering affidavit in support of its opposition to the
confirmation of the rule the respondents’ Mashego, a full
time
shop steward and employee of the applicant:
8.1.
Correctly pointed out that the absence
of a certificate did not
preclude the 2
nd
and further respondents from embarking on
a protected strike if the 30 day period referred to in S64(1)(a)(ii)
had elapsed;
8.2.
Conceded that the dispute regarding
the 5
th
demand was not
properly referred to the CCMA and that it was no longer the intention
to strike in respect of that demand.
8.3.
Stated that the issue in respect of
the 6
th
demand had
been referred to the CCMA and that a certificate had been issued;
8.4.
Conceded that the demand regarding
the payment of the USD 50, (the
7
th
demand), had been not been referred as a demand for
payment but as an issue concerning the applicant’s refusal to
rectify
or realign awkward flight schedules;
8.5.
Denied that the 1
st
demand was a disguised wage demand or
that it was governed by a collective agreement. Mashego admitted
however that the collective
agreement referred to 2011
negotiations and that although he disputed that the demand was a wage
demand the respondents were
only seeking its implementation with
effect from the 1
st
April 2011;
8.6.
Denied that the 2
nd
demand was governed by the
collective agreement headed “
PERFORMANCE GRATUITY
AGREEMENT
”; and
8.7.
Indicated that the 2
nd
and further respondents did not
intend striking over the 4
th
demand.
9.
The applicant’s replying affidavit took the matter no further
save for:
9.1.
Pointing out that the certificate
issued in respect of the 7
th
demand related to a dispute referred for conciliation that “
The
employer party refuses to rectify and/or realign the cabin crew
flight schedules
” as opposed to the demand for
“
Inconvenience of usd 50,00 per sector for any flight
operating short
”;
9.2.
Reiterating the applicant’s
contention that clause 6 of
the “
WAGE AGREEMENT 2008-2011
” precluded the
parties from negotiating wage increases until the expiry of the
agreement on the 31
st
March 2011; and
9.3.
Suggesting that the contractors referred
to in the 6
th
demand were in fact employees and not external contractors.
10.
The applicant argued that for the following reasons the respondents’
demands were impermissible, incapable of implementation
and/or a
demand that had not been referred for conciliation.
10.1.
Regarding the 1
st
demand the applicant’s view was
that it was a wage issue and covered by the wage agreement;
10.2.
The 2
nd
demand was covered by the collective agreement
dealing with the performance payment scheme;
10.3.
The 3
rd
demand was not a demand that could reasonably be
contemplated by the applicant let alone implemented;
10.4.
The 6
th
demand was incapable of implementation as the
so-called “
external consultants
” were in fact not
consultants but fixed term employees; and
10.5.
The 7
th
demand was a dispute that had not been referred to
conciliation.
11.
The respondents argument was that:
11.1.
The 1
st
demand did not constitute a wage matter and it was
therefore not the governed by the collective wage agreement;
alternatively it
was a dispute involving promotion; further
alternatively, as raised by the deponent to the answering affidavit,
whilst not conceding
that it was a wage issue, the respondent only
sought that the demand be implemented in on the 1
st
April 2011;
11.2.
The 2
nd
demand was not connected to the “
PERFORMANCE
GRATUITY AGREEMENT
” in that that agreement was confined to
a “
once off payment
” and that the agreement was of
“
historical interest only
”;
11.3.
The 3
rd
demand was capable of implementation as the
respondents had listed the companies they had in mind;
11.4.
The 6
th
demand was a valid interest dispute and in the
absence of copies of the contracts the applicant’s
averments that the
persons in question were employees had no factual
foundation;
11.5.
The 7
th
demand viz “
Inconvenience of usd 50,00
per sector for any flight operating short”
(sic) was the
same as the demand referred to conciliation viz. “
The
employer party refuses to rectify and/or realign the cabin crew
flight schedules
”; and
11.6.
The demands made by the respondents were despite being conveyed
as a
series of demands in one communication were in fact seven different
and severable demands.
12.
In the
unreported judgment of Van Niekerk in J DIGISTICS (Pty) LTD and
SATAWU and Others
[1]
(upon which
judgment both parties relied) the learned judge applied the
principle enunciated by Landman J in the matter
of
SAMANCOR & Another and NUMSA
[2]
viz that if one of a number of disputes is impermissible the strike
upon which all the demands is based the strike is wholly
impermissible
until the impermissible dispute is abandoned or as Van
Niekerk J put “the single bad apple taints the entire
barrel”
[3]
.
13.
Firstly despite the averment that the respondents’ demands were
7 separate distinguishable it is clear that they were
conveyed in the
same notice and as such constituted the “entire barrel”
and must be dealt with accordingly.
14.
I have no doubt that the 1
st
demand is to all intents and
purposes a wage demand particularly given the respondents statement
that this should take effect only
on the 1
st
April 2011.
The effect of the demand will simply be to award to those employees
who occupy grades 1 – 5 an increase in wages.
The wage
agreement provides that there will be no further negotiations on wage
increases until 2011 negotiations. In the absence
of any indication
that this dispute arose in the course of the 2011 negotiations this
demand is covered by the wage agreement and
the demand is
impermissible. If it was a promotion dispute as suggested by the
respondents then in any event the demand would not
constitute a
dispute of interest.
15.
Likewise the 2
nd
demand is a demand for the “
Abolition
of performance Management system
” in the face of a
performance gratuity agreement signed and agreed to by the
respondents that specifically records their
agreement surrounding
payments for performance, a performance payment scheme that applies
for the same period covered by the wage
agreement and that a
performance payment scheme was under development. I am accordingly
satisfied that this demand too is the subject
of a current collective
agreement which on the face of it has neither been challenged nor
cancelled.
16.
The 3
rd
demand that the applicant “
Phas[e] out of
the contracted companies after their respective expiry dates”
.(sic)
(which requires some liberal interpretation to understand) is despite
the somewhat belated listing of these companies (which
in itself
given the companies on the list is problematic) is not a demand with
which that the applicant can reasonably be expected
to comply.
17.
The 7
th
demand is by no stretch of the imagination,
despite the respondents’ attempt to explain it, the dispute
referred to conciliation
by the respondents. A demand for
“
Inconvenience of usd 50,00 per sector for any flight
operating short”
(sic) is simply not the same as a complaint
that “
The employer party refuses to rectify and/or realign
the cabin crew flight schedules
”. The respondents
accordingly neither have a certificate issued by the CCMA that the
dispute is unresolved nor has the 30
day period expired and therefore
should they embark on strike action over this dispute the strike will
be unprotected.
18.
What remains then is only the 6
th
demand which may be a
permissible demand. The Applicant initially suggested in its founding
affidavit that this demand could not
be complied with as it was
contractually bound to “
the external consultants mentioned
”.
The demand was clear: it was the “
external consultants from
the internal disciplinary hearings
” the respondents’
wanted removed. In the absence of any explanation it remains unclear
why the applicant only in its
replying affidavit identifies the
persons as employees employed on fixed term contracts.
19.
The respondents urged me to grant an order similar to that granted by
Van Niekerk J in the DIGISTICS matter should I find that
a strike in
support of some of the demands would be unprotected viz. make an
order that the 2
nd
and further respondents are not
precluded from engaging in strike action in respect of those
remaining demands once the respondents
have notified the applicants
of the abandonment of those demands upon which the respondents cannot
embark on a protected strike.
20.
In the circumstances that out of a list of 7 original demands and the
extent to which the respondents had to explain or modify
them at
least 6 are either no longer of concern or do not permit the
applicants to embark on protected industrial action and that
the
demands were made as a collective demand, it is inappropriate for the
court to have to select for the respondents from their
shopping list
what they may or may not take industrial action over. The
applicant is at least entitled to know exactly what
the concerns or
demands are in order to weigh up whether it should capitulate or
resist.
21.
I am of the view therefore having regard to the circumstances of this
matter, the nature and the extent of the demands that
the following
is the appropriate order.
21.1.
The rule is confirmed;
21.2.
There is no order as
to costs.
GUSH
J
Date
of hearing: 30
th
November 2010
Date
of judgment: 3
rd
December 2010
Appearances:
For
the applicant: Mr. T Motau SC; Instructed by Cliffe Dekker
Hofmeyr Attorneys
For
the first second and further respondents: Mr. T. M. G. Euijen;
Instructed by Cheadle Thompson Haysom Attorneys
[1]
Case Number J1316/2010
[2]
(1999) 20 ILJ 2941 (LC) at p2945 and CERAMIC INDUSTRIES t/a
BETTA SANITARYWARE vs NATIONAL CONSTRRUCTION BUILDING &
ALLIED
WORKERS UNION and Others (1997) 18 ILJ 716 (LC)
[3]
Digistics supra para 14