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[2010] ZALCJHB 349
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Johannesburg Metropolitan Bus Services (Pty) Ltd v SAMWU and Others (J2276/10) [2010] ZALCJHB 349 (14 December 2010)
REPORTABLE
OF
INTEREST TO OTHER JUDGES
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: J 2276/10
IN
THE MATTER BETWEEN:
JOHANNESBURG
METROPOLITAN
BUS
SERVICES (PTY)
LTD
APPLICANT
AND
SAMWU
FIRST RESPONDENT
IMATU
SECOND RESPONDENT
EMPLOYEES
LISTED IN ANNEXURE A
THIRD
AND FURTHER RESPONDENTS
JUDGMENT
STEENKAMP
J:
Introduction
[1]
Johannesburg Metropolitan Bus Services
(Pty) Ltd (“Metrobus”) implemented a revised shift
schedule on 6 December 2010.
Is this a unilateral change to bus
drivers’ terms and conditions of service? If so, the trade
unions who are the respondents
(SAMWU and IMATU) are entitled to call
their members out on a protected strike. If not, their intended
strike is unprotected and
stands to be interdicted.
[2]
The dispute came before me by way of the
return day of a rule
nisi
granted by Bhoola J – on an unopposed and urgent basis –
on 6 December 2010.
[3]
The first respondent is the South African
Municipal Workers Union (SAMWU). It anticipated the return day on 48
hours’ notice
and I heard the matter on an urgent basis on
Friday 10 December 2010.
[4]
The second respondent is the Independent
Municipal and Allied Workers’ Union (IMATU). IMATU abides the
decision of the court.
[5]
The third and further respondents are the
affected bus drivers.
Background facts
[6]
Metrobus transports commuters in the
greater Johannesburg area using a scheduled bus service. It
transports about 90 000 passengers
daily, with approximately 498
buses covering approximately 80 scheduled routes and approximately
130 school routes.
[7]
The bus drivers employed by Metrobus are
mostly members of SAMWU or IMATU. They work according to a shift
system. Their contracts
of employment do not specify a particular
shift. Their maximum working hours are set out in collective
agreements of the South
African Local Government Bargaining Council
(SALGBC).
[8]
According to Metrobus, the current driver
shift system has resulted in overcrowding on some routes and
underutilisation of buses
on other routes. As a result, it has
implemented a revised driver system which will have the effect of
revising both shifts and
routes worked. It maintains that this will
be to the benefit of the travelling public and will improve the
sustainability of the
company. SAMWU says that it will have the
opposite effect on its members. Although their working hours will not
be longer, some
bus drivers – depending on their shift –
may have to stay at the depot later. The new shifts may also be less
convenient
to them.
[9]
Metrobus initially wrote to SAMWU and IMATU
as long ago as 8 February 2010 in order to consult about the proposed
changes. It held
a meeting with shop stewards on 17 February 2010.
The matter could not be resolved. Shop stewards were requested to
provide written
inputs by 24 February 2010, but did not do so. On 1
March 2010 Metrobus requested the unions to provide input by 5 March
2010.
In the spirit of the World Cup 2010, though – or, more
cynically, to prevent industrial action during the World Cup –
Metrobus took no further steps to implement a revised shift system
over the next five months.
[10]
On 30 September 2010 Metrobus informed the
unions once again that it intended to implement the revised driver
shift system. Metrobus
informed the unions that it wished to
implement the new shift system by 15 November 2010. It requested
feedback by 15 October 2010.
Metrobus reiterated that the review of
existing schedules did not mean that a retrenchment exercise was
underway but was required
in order to comply with the needs of
commuters and to grow business in areas where it could not currently
cope with demand.
[11]
On 8 October 2010 IMATU replied and
requested further time to respond. Metrobus granted it time until 27
October 2010. On 20 October
2010 Metrobus sent a further letter to
both unions. It acknowledged IMATU’s request for additional
time and requested a response
from SAMWU. On 26 October 2010 Metrobus
wrote to SAMWU again. The pertinent sections of the letter indicated
that:
·
it was regretted that SAMWU had not
responded to Metrobus’s earlier letters;
·
"...it is still our conviction to
embrace any constructive submissions from your office. To this end
and in the interests of
your members, we wish to call you with a
chance to make submissions on the matter not later than 3 November
2010.” If no
submissions were received, "management will
assume that you … consent with [
sic
]
the new shift changes”;
·
Metrobus anticipated the introduction of
the new schedules by 15 November 2010 "and the same day, shifts
will be displaying
at the operating depots drivers to peruse and
pick”;
·
operationally Metrobus’s schedules
are “inefficient and not in sync with our commuter needs”;
and the state of
the schedules determines the overall efficiency of
the bus company.
[12]
On 4 November 2010 SAMWU’s branch
chairperson wrote back, referring to the letter of 30 November 2010.
He stated that the
September letter was “ambiguous” and
that “we could not understand whether you consult or propose to
have a meeting
to discuss around your proposal”. He called for
a meeting on a date to be agreed.
[13]
Despite this proposal, Metrobus wrote back
to SAMWU on 8 November 2010 and stated:
"As indicated in our
letter dated 30 September 2010 and our subsequent correspondences in
this regard, the revised shifts have
now been placed on the notice
boards. This is in line with our implementation date as previously
communicated in the letter referred
to above. We therefore request
that you advise your members to interact with their line managers, to
bring any concerns arising
from these duties as a matter of urgency."
[14]
On 12 November 2010, shop stewards went to
the officers of the managing director. Metrobus maintains that they
"stormed an
Exco meeting" and then refused to discuss the
revised shift schedule. SAMWU denies that they "stormed"
the meeting
and say that they wanted to seek clarity about why a
meeting scheduled for the previous day did not occur. Be that as it
may, the
parties did discuss the issue again on 15 November 2010 but
could not resolve it.
[15]
On 22 November 2010 SAMWU referred a
dispute about an alleged unilateral change to terms and conditions of
employment to the SALGBC.
It also wrote to Metrobus the demands that
the employer to restore the terms and conditions of employment that
applied before the
alleged change. It sought an undertaking from
Metrobus to do so by no later than 24 November 2010.
[16]
Metrobus
responded by denying that it had implemented a unilateral change to
terms and conditions of employment.
[1]
The managing director of the company set out in some detail the
history of attempted consultations dating back to February 2010.
He
stated that "the implementation of a shift system does not
amount to a breach of the main collective agreement in that
it is not
an amendment to working hours agreed at a national level." He
went on to say that:
"We are advised that
a change to the method of performing work may only amount to a change
to terms and conditions of employment
if it entails a change to the
essential nature of the job and there has been no unilateral change
to terms and conditions of employment
of bus drivers.
“
Given
that there has been no unilateral change to terms and conditions of
employment, the provisions of section 64(4)(a), (b) or
section 64(5)
of the LRA do not apply to this dispute and Metrobus is not obliged
to halt its implementation of the revised shift
scheduling system."
[17]
On 29 November 2010 Metrobus indicated in a
memorandum to drivers that they should review the new shifts and
bring any anomalies
to management’s attention. That did not
occur.
[18]
On 2 December 2010 IMATU referred a dispute
about a unilateral change to terms and conditions of employment to
the SALGBC. It demanded,
in terms of s 64(4) of the LRA, that the
employer not unilaterally change the proposed changes that led to the
dispute for 30 days,
or that it restore the terms and conditions of
employment that applied before the change.
[19]
On 6 December 2010 Metrobus implemented the
new shifts. There is a dispute between the parties as to whether a
strike actually started
on that day. What needs to be decided,
though, is whether the unions are entitled to strike in terms of s
64(4).
[20]
Metrobus launched an urgent application and
the rule
nisi
was granted on an unopposed basis on 6 December 2010. The unions were
called upon to show cause why a final order should not be
granted in
the following terms:
19.1 declaring that
the revised shift scheduling system does not amount to a unilateral
change to terms and conditions of
employment,
19.2 interdicting
the third and further respondents (i.e. the bus drivers) from
refusing to comply with the obligation to
work in accordance with the
revised shift scheduling system of the applicant and in accordance
with the operational requirements
of the applicant;
19.3 declaring the
strike action embarked upon by the respondents from Monday, 6
December 2010 to constitute unlawful and
unprotected industrial
action;
19.4 interdicting
and restraining the respondents from engaging in, proceeding with,
participating in, calling for, supporting,
encouraging or exciting
employees to engage in unprotected strike action in support of the
demand that the revised shift scheduling
system not be implemented by
the applicant;
19.5 directing the
respondents forthwith to cease any industrial action relating to an
alleged unilateral change to terms
and conditions of employment and
to comply with the provisions of this order;
19.6 ordering the
first and second respondent to inform the third two further
respondents to desist from participating in
unprotected strike.
[21]
There was a further order relating to
service of the rule
nisi
;
and an interim order with regard to costs.
[22]
SAMWU anticipated the return day on 48
hours’ notice on 8 December 2010. Thus this matter was enrolled
for hearing on Friday
10 December 2010.
Conditions of service
[23]
SAMWU points out that many of the affected
bus drivers were employed by the greater Johannesburg Metropolitan
Council (GJMC) on
a contract basis prior to the formal establishment
of Metrobus. When their employment became permanent they were not
asked to sign
new employment contracts.
[24]
Apart
from their employment contracts, the bus drivers’ conditions of
service were governed by the "Conditions of Employment
Agreement: Transvaal" published in the
Government
Gazette
on 28 October 1994.
[2]
These
conditions of service had been negotiated and agreed to by the
parties to the Industrial Council for the Local Government
Undertaking, i.e. the relevant trade unions and employer
organisations. Clause 9 of that collective agreement sets out the
working
days and working hours for local government employees. It
sets out maximum working hours but does not specify any shift system.
[25]
When Metrobus was corporatised in 2000, the
bus drivers were transferred from the GJMC to Metrobus in terms of s
197 of the LRA
on the same terms and conditions of employment that
governed them previously. They did not sign new employment contracts.
[26]
On 5 April 2003 Metrobus concluded a
collective agreement with SAMWU and IMATU after a protracted strike
of five weeks. The parties
agreed,
inter
alia
, that:
·
shifts will not exceed 13 1/2 hours; and
·
workers shall be allowed to pick shifts on
seniority.
[27]
The "picking” of shifts needs to
be explained. The current shift system comprises three shifts, namely
the day shift,
a spread-over and the night shift. These shifts are
subject to –
·
agreed maximum working hours;
·
implementation of shifts by Metrobus in
accordance with a schedule relating to routes at the times that
shifts are worked; and
·
the right of drivers to pick shifts
according to their seniority.
[28]
The picking of shifts was explained in
court at the hand of scheduled shifts at the Milpark depot. Metrobus
decides on the shift
schedule overall. Within the schedule, it
assigns certain routes and times. For example, on shift number 215, a
driver on the old
schedule would start his duties at 05:30 and stop
at 09:50. He would be on duty again from 10:20 until 12:10; and again
from 12:10
until 14:00, thus comprising 8 working hours. But a senior
bus driver has the prerogative to pick a shift, ie a route and hours
that suits him best. For example, he may pick shift number 202 in
order to have the afternoon free. He would then sign on at 04:15;
sign off at 08:05; and assume duty again from 09:35 until 13:35,
after which he is free for the rest of the day (comprising 07:50
working hours).
[29]
It is clear from this example that the bus
drivers (or the unions) do not have a say in the actual compilation
of a shift system
or the schedules within that system. The drivers
only have the prerogative, according to seniority, to pick specific
routes and
hours within the existing shift schedule.
[30]
The change implemented on 6 December 2010
comprises a change in the scheduling of current shifts to change the
routes and the times
when shifts are worked. None of the following is
changed:
·
the three shift system;
·
the agreed maximum hours;
·
shift allowances;
·
night work allowance;
·
standby allowance;
·
the right of drivers to pick shifts
according to their seniority.
[31]
Although the maximum working hours will not
change, the new routes and hours may lead to some drivers leaving the
depot later. For
example, on shift 215 a driver will only finally
sign off at 18:25 instead of 14:00; but he would still work for only
eight hours.
On the other hand, a driver on shift number 211 will
finally sign off at 14:30 instead of 15:20, having started work at
05:20 or
05:10 respectively. It is within this system where the
senior drivers at the prerogative to pick the more favourable shifts.
Unilateral change to
terms and conditions of employment?
[32]
The new shift schedules will not affect the
agreement reached in 2003. Shifts will not exceed 13 1/2 hours; and
drivers will still
be allowed to pick shifts on seniority.
[33]
Similarly, the new schedules will not
affect the agreement of the parties in 2007 that drivers could pick
shifts according to seniority.
[34]
SAMWU further relies on a minute of a task
team meeting of 8 February 2010 where the following is reflected:
"Amendment of
shifts is not allowed without consulting."
[35]
Metrobus
disputes the accuracy of that minute. For the purposes of argument,
though, and in accordance with the rule in
Plascon-Evans
Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[3]
,
I
will accept that it is indeed an accurate minute.
[36]
But that does not assist the unions. It
provides only for consultation. As I have set out above, Metrobus has
entered to consult
on the revised shift schedules since February
2010. The question remains whether it amounts to a unilateral change
to terms and
conditions of employment. If the shift schedules
comprise terms of employment, they could only be changed by
agreement; and if
it were to be changed unilaterally, the unions
could embark on a protected strike.
[37]
In
SA
Police Union v National Commissioner of the SA Police Service
[4]
this
court dealt with a very similar question. In that case, SAPS
implemented an 8 hour shift system in the place of the prevailing
12
hour system. The trade union objected on the basis that it was a
unilateral change to terms and conditions of employment. Murphy
AJ
[5]
commented as follows after having regard to the relevant collective
agreement and contracts of employment:
"In short, it was
not a term of the contract of employment that employees working 12
hour shifts would always be entitled to
do so. Without express,
implied or tacit contractual rights to such effect, the employees do
not have a vested right to preserve
their working times unchanged for
all times. The alteration of shifts does not result in the employees
being required to perform
a different job thereby entitling them to
claim a material breach or alteration in the supposition of the
contract. The change
in timing does not amount to a change in the
nature of the job. The shift system was accordingly merely a work
practice not a term
of employment.”
[38]
And
in
NUMSA
v Lumex Clipsal (Pty) Ltd
[6]
the court held that additional tasks assigned to machine operators
and a revised shift system did not amount to a unilateral change
to
terms and conditions of employment. The court referred to
CDM
(Pty) Ltd v Mine Workers Union of Namibia
[7]
where the Labour Court of Namibia held that a unilateral change will
be illegitimate where it is “so fundamental as to amount
to a
change in contract”. That court, in turn, cited with approval
the
dictum
in the English case of
Creswell
v Board of Inland Revenue
[8]
where
it held that “...an employee did not have a vested right to
preserve his working conditions completely unchanged and
must adapt
himself to new methods and techniques”. In
Creswell
it
was held that:
"… An
employee was expected to adapt to new methods and techniques in
performing his duties provided the employer arranged
for him to
receive the necessary training in the new skills and the nature of
work did not alter so radically that it was outside
the contractual
obligations of the employee; that it was a question of fact whether
the introduction of new methods and altered
the nature of the work to
such a degree that it was no longer the work that the employee had
agreed to perform under the terms
of his contract."
[39]
The
Labour Appeal Court considered a similar issue in
A
Mauchle (Pty) Ltd t/a Precision Tools v NUMSA.
[9]
Workers
were instructed to operate two machines instead of one. The court
held as follows:
[10]
“
The
evidence of what constituted the terms of employment of the
applicants was vague. Most of the applicants did not sign letters
of
appointment. They were employed as operators in terms of oral
contracts and were trained on machines upon the commencement of
their
employment. The more recently employed applicants signed letters of
appointment in which it was specified that they were
appointed as
operators and required to perform any task that might reasonably be
expected of them.
On those facts it was not
a term of the contracts of employment that the applicants would
operate only one machine. A description
of the work to be performed
as that of “operator” should not, in my view, “. . .
be construed inflexibly
provided that the fundamental nature of the
work to be performed is not altered”:
Wallis
, Labour and
Employment Law, par 45 p7-19.
I agree with the view expressed by
the learned author at p7-23 fn 9 that employees do not have a vested
right to preserve their
working obligations completely unchanged as
from the moment when they first begin work. It is only if changes are
so dramatic as
to amount to a requirement that the employee
undertakes an entirely different job that there is a right to refuse
to do the job
in the required manner
. In
Creswell v Board of
Inland Revenue
(1984) 2 All ER 713
(ChD) at 720b-d, Walton J
said:
“
I
now turn straight away to a consideration of the main point on which
counsel for the plaintiffs relied. He put his case in this
way, that
although it is undoubtedly correct that an employer may, within
limits, change the manner in which his employees perform
a work which
they were employed to do, there may be such a change in the method of
performing the task which the employee was recruited
to perform
proposed by the employer as to amount to a change in the nature of
the job. This would mean that the employee was being
asked to perform
work under a wholly different contract and this cannot be done
without his consent . . .
It is a very fine line
from counsel’s submissions to the submission that employees
have a vested right to preserve their working
obligations completely
unchanged as from the moment when they first begin work. This cannot
surely, by any stretch of the imagination,
be correct.”
See, too,
De Beers
Consolidated Mines Ltd (Finch Mine) v The National Union of Mine
Workers and Others
, an unreported decision of the Northern Cape
Division of the Supreme Court, case no 1111/92.”
[40]
In the case before me, SAMWU has not been
able to point to any term contained in a collective agreement or in
the bus drivers’
contracts of employment that accords them a
vested right to a specific shift schedule. They have vested rights
with regard to maximum
working hours; and the right to pick shifts
according to seniority. These rights have not been changed or
infringed.
Conclusion
[41]
The changes implemented by Metrobus
comprise no more than a change in work practice. It does not amount
to a unilateral change in
the bus drivers’ terms and conditions
of employment. Therefore, the trade unions representing the drivers
do not have the
right to strike over a unilateral change to terms and
conditions of employment in terms of section 64 (4) of the LRA.
Costs
[42]
The parties have an ongoing relationship.
Both parties acted reasonably by approaching this court on an urgent
basis to obtain clarity
on their rights in terms of the LRA. in law
and fairness, I do not deem it appropriate to order either party to
pay the costs of
the other.
Order
[43]
The rule
nisi
granted on 6 December 2010 is
confirmed. There is no order as to costs.
_______________________
ANTON
STEENKAMP
JUDGE
OF THE LABOUR COURT
Date
of hearing:
10 December 2010
Date
of judgment:
14
December 2010
For
the applicants:
Adv Tim Bruinders
Instructed
by:
Bowman Gilfillan
For
the respondent:
Adv Gys Rautenbach
Instructed
by:
Cheadle Thompson & Haysom
[1]
The letter attached to the pleadings is undated, but it is common
cause that it was received by SAMWU in response to its letter
of 22
November 2010.
[2]
Regulation Gazette no 5416, No R1828
[3]
1984
(3) SA 623 (A)
[4]
(2005) 26
ILJ
2403
(LC)
[5]
As he then was (para [84] at 2427 H – J)
[6]
Unreported, J 1070/98, Labour Court, 24 August 2000
[7]
1997 (2) LLD 65 (LCN)
[8]
(1984) (2) AER 713 (CHD)
[9]
[1995]
4 BLLR 11
(LAC). The judgment of the court
a
quo
is reported at
(1992)
13
ILJ
663 (IC).
[10]
At 19 (my emphasis).