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[2010] ZALCCT 3
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Swissport (South Africa) (Pty) Ltd v SATAWU and Others (C600/2010) [2010] ZALCCT 3 (30 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: C 600/2010
IN
THE MATTER BETWEEN:
SWISSPORT
(SOUTH AFRICA) (PTY)
LTD APPLICANT
AND
SATAWU FIRST
RESPONDENT
THE
EMPLOYEES LISTED SECOND
AND FURTHER RESPONDENTS
IN
ANNEXURE “A1”
JUDGMENT
STEENKAMP
J:
Introduction
[1]
This is the return day of a rule
nisi
interdicting the respondents from calling for or participating in
unprotected strike action. The threatened strike never ensued.
The
applicant no longer seeks a confirmation of the rule
nisi
but both parties are persisting with an argument over costs. The
argument raises questions about protected strike action in the
context of an alleged unilateral change to terms and conditions of
employment.
THE INITIAL
APPLICATION
[2]
The applicant is a baggage handler and
logistics facilitator at airports in South Africa and across the
world. It brought the initial
application on an urgent basis on
Saturday 20 June 2010. The matter was heard
ex
parte
. Basson J granted a rule
nisi
calling upon the respondents to show cause on the return day why an
order should not be made final, declaring that the action of
the
respondents in calling a strike would constitute unprotected strike
action; and interdicting the respondents from calling for,
orchestrating or participating in any such strike action.
[3]
In
considering any factual disputes on the papers before me, I do so
according to the well-trodden principles set out in
Plascon-Evans
Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[1]
,
ie:
"It is correct that,
where in proceedings on notice of motion, disputes of fact have
arisen on the affidavits, a final order,
whether it be interdict or
some other form of relief, may be granted if those facts averred in
the applicant’s affidavits
which had been admitted by the
respondent, together with the facts alleged by the respondent,
justify such an order."
[4]
A dispute concerning an alleged unilateral
change in a shift roster between SATAWU and Swissport arose during
March 2010. This dispute
was settled at the CCMA when Swissport
agreed not to implement a new shift roster unilaterally.
[5]
According to the trade union, Swissport
reneged on that agreement when it unilaterally implemented a new
shift roster which had
not been agreed between the parties for June
2010.
[6]
SATAWU referred a dispute about the alleged
unilateral change in terms and conditions of employment to the CCMA
on 9 June 2010.
Although Swissport initially denied having received
that referral, on the return day Ms
Bailly
,
who appeared for Swissport, conceded that the CCMA referral form had
clearly been properly served on Swissport.
[7]
On 18 June 2010, SATAWU’s Western
Cape organiser, TK Roto, wrote to Swissport. The letter was headed:
"RE: UNILATERAL
CHANGE IN TERMS OF CONDITIONS OF EMPLOYMENT".
It states the following:
"I refer to my
letter dated 20 May 2010, and my referral to the CCMA re: the above
mentioned.
In terms of s64(4) of the
Labour Relations Act the company did not comply. We therefore give
you 48 hours to go on strike."
[8]
It was as a result of this strike notice
that Swissport brought the urgent application on 19 June 2010. Roto
states that he only
became aware of the application when a
representative of Swissport telephoned him on Saturday 19 June 2010.
He went to meet a representative
of Swissport, Charisse Alexander, at
its offices at Cape Town International airport. He travelled by
public transport to the office,
but when he got there, the office was
locked and neither Alexander nor anyone else was available. He
returned home to Bellville.
(It must be borne in mind that this was
on a Saturday and trade union officers were closed).
[9]
Alexander telephoned Roto again between
1300 and 1400 and apologised for not being at the office. Alexander
and Roto agreed to meet
again on Monday, 21 June 2010 to negotiate
the implementation of a new shift roster. Roto told Alexander that
the strike would
not commence on Monday 21 June 2010.
[10]
Roto states that he was contacted by
Swissport's legal representative again after 1400. He says in his
answering affidavit:
"I confirmed that
there would be no strike on Monday given the agreement that have been
reached between the parties. He then
asked me to reduce is
undertaking on the part of the respondent to writing. I advised him
that I was unable to do so that I was
not in the respondent offers,
was quite a distance away, dependent on public transport, and in any
event was not proficient in
operation of the respondent’s
computers in its office. I confirmed the oral undertaking not to
strike."
[11]
Nevertheless, Swissport proceeded with the
urgent application and the order was granted late in the afternoon of
Saturday 19 June
2010.
[12]
It is common cause that no strike took
place on Monday, 21 June 2010.
WOULD THE INTENDED
STRIKE HAVE BEEN PROTECTED?
[13]
The
requirements for protected strike action under the Labour Relations
Act
[2]
are well-known. Compared
to the regime under the old Labour Relations Act of 1956, the
requirements are relatively simple. The
trade union must refer the
issue in dispute to the CCMA or relevant bargaining council; the CCMA
must issue a certificate that
the matter could not be resolved at
conciliation, or a period of 30 days (or a longer period agreed
between the parties) must elapse;
and the trade union must then give
the employer 48 hours’ notice of the commencement of the
strike, in writing.
[3]
[14]
But even these requirements do not not
apply to a strike if the employer has failed to comply with
subsections (4) and (5) of s
64. These subsections provide as
follows:
“
(4)
Any employee through or any trade union that referred the dispute
about a unilateral change to terms and conditions of employment
to a
council or the commission in terms of subsection (1)(a) may, in the
referral, and for the period referred to in subsection
(1)(a) –
(a)
require the employer not to implement
unilaterally the change to terms and conditions of employment; or
(b)
if the employer has already implemented the
change unilaterally, require the employer to restore the terms and
conditions of employment
that applied before the change.
(5) The employer must
comply with a requirement in terms of subsection 4 with in 48 hours
of service of the referral on the employer.
"
[15]
As
Clive Thompson
[4]
points out:
“
In
order to qualify for this release from the statutory requirements,
the would-be strikers or their union, at the time of referring
the
dispute about the unilateral alteration to the Council or CCMA, must
require the employer not to implement the change (or if
it has
already done so, to restore the pre-existing conditions) for the
duration of the conciliation period. If the employer fails
to comply
with this requirement within 48 hours, a protected strike can
commence with adherence to any further statutory procedures."
[16]
There was no need for SATAWU to give 48
hours’ notice of the intended strike action – even though
it did do so,
ex abundante cautela –
and, contrary to the averments of the
applicant’s Mr Moodley in his founding affidavit, the proposed
strike action was neither
“illegal” (as he termed it) or
unprotected.
[17]
The application was wholly misconceived on
the basis of this, its main point of departure for the relief sought.
Had the applicant
placed all the facts before the court in the
ex
parte
application, it would have been
clear that it had not established even a
prima
facie
right for the interim relief
sought. At this stage, and having regard to the full facts set out in
the answering papers and the
Plascon-Evans
rule I referred to earlier, the applicant has failed manifestly in
establishing a clear right.
THE TRADE UNION’S
CONDUCT
[18]
The applicant made much in its founding
papers and in argument of the “unreasonableness” of
SATAWU’s conduct and
the resultant irreparable harm that would
result from a strike.
[19]
In this regard, the applicant relied mainly
on the fact that it was responsible for baggage handling during the
time of the 2010
FIFA World Cup in South Africa. It submitted that a
strike would cause disruption and lead to operational as well as
reputational
damage.
[20]
These
submissions, emotional as they are, are largely irrelevant. It is an
inevitable consequence of any strike that the employer’s
operations will be disrupted. It is also, depending on the nature of
the employer and its interaction with the public, often an
uncomfortable but inevitable fact that members of the public will be
inconvenienced. That is the price we pay for orderly collective
bargaining in a constitutional democracy. As long as the trade union
complies with the procedures discussed above
[5]
the strike is protected. And as long as its members behave in a
peaceful manner, they may even picket in support of that protected
strike. Violent or unlawful behaviour cannot be condoned and can be
dealt with in disciplinary terms or in terms of the criminal
law.
Such behaviour may lead to dismissal, despite the fact that the
strike is protected. But that is not what I’m dealing
with on
the facts of this case. The strike – had it gone ahead –
would have been protected. The fact that it may have
caused
disruption and inconvenience, even during the hallowed month of the
2010 FIFA World Cup, is irrelevant. Contrary to what
some pundits may
believe, FIFA and Mr Sepp Blatter have neither the power nor the
jurisdiction to usurp the laws or Constitution
of this country and
impose their own rules of the game on its citizens. The economic and
logistical harm inflicted by protected
strike action are part and
parcel of the powerplay inherent in collective bargaining. If a trade
union chooses to exact maximum
leverage by timing that maximally
inconveniences the employer – and even members of the public –
it may seem to be
unreasonable, but it is not unlawful.
THE ROLE OF THE
ATTORNEYS
[21]
The rule
nisi
was extended by agreement on 13 July
2010 to enable the parties to file further pleadings.
[22]
On 22 July 2010 SATAWU’s attorney, Mr
Wayne Field, addressed a letter to Swissport’s attorney, Ms
Caroline de Villiers.
He pointed out that –
22.1
Roto had given an oral undertaking that the
strike would not proceed on Monday 21 June;
22.2
Swissport had not complied with s 64(4)
within 48 hours; and
22.3
SATAWU was not required to comply with the
provisions of s 64(1).
[23]
Given
those facts, and in an effort to avoid incurring the costs of
drafting further pleadings and attending further court proceedings,
Mr Field proposed that the matter be settled on the following
basis:
[6]
23.1
Swissport withdraw its application; and
23.2
Each party bear its own costs (at that
stage SATAWU’s costs were limited to the perusing of documents,
a consultation and
the drafting of that letter).
Field
noted that, if that proposal was not acceptable to Swissport, his
instructions were to draft opposing papers and to seek costs
on an
attorney-client scale.
[24]
Field received no response to that letter.
On 26 July 2010 De Villiers phoned him, but she told him that she had
not received the
letter. Field read and explained his client’s
proposal of 22 July 2010 to her. She responded that the proposal was
not acceptable
to the client and that she had instructions that the
matter should proceed. The attorneys then agreed to a further
timetable for
the exchange of further pleadings.
CONCLUSION
[25]
Given
the clear explanation in Field’s letter of 22 July 2010 that
the application was bad in law, it was wholly unnecessary
for the
parties to incur further costs. The offer that the application should
be withdrawn, with each party to bear their own costs,
was an
eminently reasonable one. The application was misconceived and based
on an incorrect understanding of s 64 of the Act. There
is no reason
in law and fairness why the applicant should not bear the
respondents’ costs.
[7]
ORDER
25.1
The rule
nisi
is discharged.
25.2
The applicant is ordered to pay the
respondents’ costs.
_______________________
ANTON
STEENKAMP
JUDGE
OF THE LABOUR COURT
CAPE
TOWN
Date
of hearing:
25 November 2010
Date
of judgment:
30
November 2010
For
the applicant:
Adv
Chantal Bailly
Instructed
by
Caroline de Villiers attorney
For
the respondents:
Mr
Wayne Field
Instructed
by
Bernadt
Vukic Potash & Getz
[1]
1984 (3) SA 623 (A)
[2]
Act 66 of 1995
[3]
s 64(1)
[4]
Helen Seady and Clive Thompson, “Strikes and lock-outs”
in Thompson & Benjamin,
South
African Labour Law
AA1
– 320.
[5]
As set out in s 64 of the LRA
[6]
The letter was not written on a “without prejudice”
basis and Mr Field was not prevented from drawing it to the court’s
attention.
[7]
In argument, Mr Field did not persist with the prayer for punitive
costs.