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[2010] ZALCD 4
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South African Freight And Dock Workers Union (SAFDU) v SAFCOR Freight (Pty) Ltd t/a SAFCOR Panalpina and Others (D104/08) [2010] ZALCD 4 (1 July 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA HELD IN DURBAN
CASE NO: D104/08
REPORTABLE
In
the matter between
SOUTH
AFRICAN FREIGHT AND DOCK WORKERS UNION
(SAFDU)
Applicant
And
SAFCOR
FREIGHT (PTY) LIMITED
t/a
SAFCOR PANALPINA
First
Respondent
PERSONS
LISTED IN ANNEXURE A Second
to further Respondents
JUDGMENT
Cele
J
Introduction
[1]
This is an application in terms of section 158 (1) (a) of the Labour
Relations Act No 66 of 1995 (the Act) for an order in the
following
terms:
1.
Declaring the award in August 2007 by the respondent of a
remuneration increase to employees who are not members
of the
applicant, backdated to 1 July 2007, subject to a condition that the
employees who enjoy the dual benefit of the increase
in remuneration
and from a date earlier than was customary, may not be members of the
applicant and shall forfeit such benefit
if they become members ( as
embodied in the letter to non union staff members and quoted in
paragraphs 9 and 10 of the founding
affidavit of Gokulanand Thupsee)
(“the award of increased remuneration”):-
a.
Constitutes discrimination against employees who have exercised their
rights under section 4 of the Act to
join the applicant, a registered
trade union, which discrimination is proscribed by section 5(1) of
the Act;
b.
Constitutes conduct which imposes an incentive and thus indirectly
requires those employees who are not members
of the trade union not
to become members of the applicant and an inducement to those
members who are to give up trade union
membership which is proscribed
by section 5(2)(a)(ii) and (iii) of the Act;
c.
Prejudices employees because of present or anticipated membership of
a trade union which is proscribed by section
5(c)(i) of the
Act;
d.
Advantages employees in exchange for that person not exercising the
right conferred by the Act to join a trade
union which is proscribed
by section 5 (3) of the Act and is accordingly invalid in terms of
section 5(4) of the Act.
2.
Declaring the award of increased remuneration to be unconstitutional
as being discriminatory and an unfair
labour practice and, as such,
conduct inconsistent with section 9 and 23 of the Constitution of the
Republic of South Africa and
accordingly invalid in terms of section
2 of the Constitution.
3.
Directing the respondent to remedy its unlawful and unconstitutional
conduct and to this end that it be and
is hereby directed to inform
all the employees to whom the unilateral increases were awarded of
the fact that respondent’s
conduct in awarding the increases
was unlawful and furthermore is hereby directed within10 days of the
grant this order to either
recover the amounts and reverse the date
of the annual increase from non union staff members to whom such
increases have been paid
or alternatively to grant to all employees,
including those who are or may become members of the applicant,
similar increases in
remuneration backdated to 1 July 2007.
4.
Ordering the respondent to pay the costs of this application.
[2]
The first respondent has opposed this application. There has been no
opposition by the second to further respondents who are
employees of
the first respondent and stood to be affected by the order sought by
the applicant. Reference to the company involved
in this matter will
henceforth be to the respondent.
Background
facts
[3]
The facts of this matter are basically common cause between the
parties.
[4]
The respondent is engaged in the freight forwarding industry. It has
branches at all South Africa's major ports - Cape Town,
Durban, Port
Elizabeth, East London and Richard's Bay - as well as Johannesburg.
The respondent employs over 1100 employees in
its operations. At its
Durban operation, which is the subject matter of this application,
the respondent employs 277 employees,
31 of whom are managerial
employees. Since 1996 the applicant has been recognised as a
bargaining agent for certain employees employed
by the respondent in
Durban. In 2006 the Union and the applicant entered into a detailed
relationship agreement.
[5]
In terms of this agreement, the applicant is recognised as the
collective bargaining representative for its members within the
bargaining unit, as defined, for so long as it maintains a membership
level of 50% plus 1 of the employees employed within the
Durban
workplace. The bargaining unit is defined in the relationship
agreement as constituting all permanent members of the company
who
are members of the Union, with the exception of certain
administrative and managerial staff.
[6]
Of the 277 employees employed in Durban, only 111 of them are members
of the bargaining unit. The remaining 166 employees are
non-bargaining unit employees. This means that the Union represents
approximately 40% of the employees employed at the Durban operation.
The respondent also recognises the South African Transport and Allied
Workers Union ("SATAWU"), at its Gauteng operation.
However, no other bargaining agent or union is recognised for the
rest of the country. In respect of the majority of respondent's
employees, who are not represented in any bargaining unit, wages and
conditions of employment are determined unilaterally by the
company.
In setting the wages regard is had to any relevant provisions of the
main agreement of the bargaining council having jurisdiction
–
the National Bargaining Council for the Road Freight Industry.
[7]
Across the country, save for Durban, wage increases have
traditionally been extended from 1 July to 30 June of each year.
However,
for the Durban bargaining unit, the wage year runs from 1
January to 31 December each year.
[8]
On 8 August 2007, the respondent sought to change the wage cycle for
the approximately 166 non-bargaining unit and non-union
employees in
Durban. The respondent provided a 4,5% across the board increase to
non-bargaining employees, subject to them accepting
a change in their
wage cycle to make the wage year run from 1 July to 30 June the
following year. This would mean that the non-bargaining
employees in
Durban would then operate on a wage cycle which was the same as the
rest of the country. Only the union members, in
terms of its
substantive agreements with the company, operated on a wage cycle
from 1 January to 31 December each year. The letter
proposing the
change includes conditions precedent to that change and reads:
1. “The
increase in remuneration referred to above is subject to you not at
any time during the period 1
July 2007 to 30 June 2008 (“the
2008 non union staff wage cycle”) becoming a member of the
South African freight &
Dockworkers Union (“the union”)
and thereby becoming part of the Union Bargaining Unit established in
terms of the
Relationship agreement between the Company and the Union
dated 25 October 2006 (“the Relationship Agreement”).
2. In
the event you elect to join the Union during the 2008 non-union staff
wage cycle and become part of the
Union Bargaining Unit you agree
that:
a. The
increase in remuneration referred to in 1 above shall cease at the
end of the calendar month that you elected
to join the Union
Bargaining Unit (“the transfer date”).
b. You
will be entitled to retain all increases paid to you in terms of 1
above up to the transfer date but not
thereafter.
c.
After the transfer date, you will be paid the remuneration you
received immediately prior to the commencement
of the 2008 non
bargaining unit staff wage cycle.
d. You
will be entitled to receive after the transfer date any increase in
remuneration which may be negotiated
by the Union on your behalf as
part of the Union Bargaining Unit, with effect from the transfer date
up to and including the 31
December 2008, being the end of the Union
2008 wage cycle.”
[9]
The respondent therefore granted annual salary increases to
non-unionised employees, six months earlier than it negotiated
increases for unionised employees and that the benefit of the early
increase was made conditional upon the employee concerned not
joining
the union, with the increase to fall away if he did. The respondent
admits that it draws a distinction between bargaining
and
non-bargaining unit employees, but contends that this constitutes
legitimate differentiation.
[10]
On 28 February 2008 the applicant and the respondent entered into a
substantive agreement in terms of wages and conditions
of employment
for bargaining unit members for the period 1 January 2008 to 31
December 2008. This provided for an increase of 7,5%
in the actual
basic remuneration of employees calculated at 31 December 2007. A
dispute still arose between the parties on the
earlier salary
increase of 4,5% granted to the non unionized employees of the
respondent. The applicant referred that dispute to
a relevant
Bargaining Council for conciliation. It was not resolved and a
certificate of outcome was issued, with an endorsement
that the
applicant could engage in a strike. Parties deliberated on the issue
for some time. When it was not resolved, the applicant
referred the
dispute to this court. In its answering affidavit, the respondent
took issue with the efficacy of such a referral.
In their heads of
argument, parties did not persist with the issue, correctly so, in my
view as substance should prevail over form.
The respondent
filed its answering affidavit out of time but did ask and was granted
by the applicant an extension of the filing
time. Court accordingly
grants the respondent condonation.
The
issue
[11]
The issue in the case is whether it is legitimate, lawful and
constitutional to reward non-unionised employees with an early
increase in salary and impose a condition upon payment thereof that
the employee concerned does not join the union.
Submissions
by parties
Applicant’s
submissions
[12]
It is the applicant’s contention that this conduct breaches
sections 5(1), 5(2)(a) (i) and (ii), 5(c) (i), 5(3) and is
proscribed
under section 5(4) of the Act. A declaratory relief is sought in
relation to this in paragraph 1 of the Notice of Motion.
It is
submitted that it is self evident that the applicant is correct and
the reasons given by the respondent to justify its unlawful
conduct
cannot explain away the fact that what was done was unlawful and it
follows therefore that there cannot be a valid reason
for doing what
is unlawful. The conduct complained about is also repugnant to the
Constitution and therefore invalid under section
2 thereof. Reliance
is placed specifically upon the right not to be discriminated against
upon an arbitrary ground (section 9)
and the right to fair labour
practices (section 23). Declaratory relief is sought in this regard
as well in paragraph 2 of the
Notice of Motion.
[13]
The remedy sought is designed to compel the respondent to recover the
payment from those who received it or alternatively to
pay the
unionised employees similar increases from the date in question i.e.
1 July 2007 until January 2008. The parties have reached
agreement in
relation to the period after January 2008 and so the relief in this
application relates to the declarations sought
as well as
consequential relief for the six months from 1 July 2007 to 1 January
2008.
Respondent’s
submissions
[14]
It is submitted that section 5 of the Act is aimed at protecting the
right of freedom of association and preventing victimisation
for
involvement in union activities. The prohibition against
"anti-union
discrimination"
is contained in a convention of the
International Labour Organisation - Convention 98 of 1949. This
Convention at article 1(2) describes
"discrimination"
as:
"acts calculated
to -
(a)
make
the employment
of a
worker subject to the condition that he
shall not join
a
union
or
shall relinquish trade union
membership;
(b)
cause
the dismissal
or
otherwise prejudice
a
worker by reason
of
union membership
or
because
of
participation
in union activities outside working hours
or,
with the consent
of
the employer, within working hours."
[15]
Section 5(1) of the Act does not refer to
"unfair
discrimination",
but uses the word
"discriminate",
without the pejorative adverb
"unfair".
Under
section 9 of the Constitution discrimination is only actionable if it
is unfair. Common to most analyses of what constitutes
"discrimination"
is that it must constitute
something more than differentiation. Even prior to the advent of the
Interim Constitution and the final
Constitution the Industrial Court
dealt with 6 cases of discrimination and stigmatised them as unfair
labour practices. Discrimination
was regarded as attracting legal
sanction if it took place on a ground, or for a reason, that it
considered impermissible. See
Siyela & Others v Sneller
Enterprises (Pty) Limited (1985) 6 ILJ 3 (IC) SA Iron. Steel &
Allied Industries Union v Chief
Inspector. Department of Manpower
(1987) 8 ILJ 303 (lC) at 307, 311 SACCWU & Others v Sentrachem
(1988) 91LJ 410 (IC) at 429
Chamber of Mines v Council of Mining
Unions (1990) 11 ILJ 52 (IC)
.
[16]
It was pointed out in the leading commentary on the 1989 amendments
to the then
Labour Relations Act that
the concept of
"unfair
discrimination",
introduced by those amendments, identified
not ordinary distinctions or differentiations in criteria, but rather
the
"unacceptable face"
of discrimination as
constituting an unfair labour practice. There, the authors said:
"The distinction
between acceptable and unacceptable forms for discrimination is
premised in comparative labour law on the
'inherent requirements of
the particular job'. In other words distinctions based on
qualifications, occupational status, skill,
training, experience (in
a
word 'merit) will not, all things being equal, constitute
unfair
discrimination.
"
Cameron et al,
The New
Labour Relations Act, pp161/2
.
[17]
In dealing with discrimination in terms of section 9(3) of the
Constitution Act, 1996 the Labour Appeal Court considered
discrimination
to be unfair and actionable if the discrimination was
on an impermissible ground, that is, one of the listed grounds in
section
9(3) of the Constitution. Accordingly, the Labour Appeal
Court stated that the approach was the following:
"In short: is
there
a
differentiation? If so, is it discriminatory? If
so,
is it unfair either directly, on one or more of the specified
grounds, or indirectly? " See
Mias v Minister of Justice &
Others (2002) 23 ILJ 884 (LAC) at para 21.
[18]
It is submitted that this approach to the concept of discrimination
which has applied to the interpretation of the discrimination
provisions in the Constitution, the Employment Equity Act and the
previous unfair labour practice definition, the same approach
should
be brought to bear on interpreting section 5(1) of the Act.
Accordingly, it is submitted that a contravention of section
5(1)
comprises two elements: first, discriminatory conduct, second, that
it be actuated by an illicit reason.
[19]
Since different wage cycles for different employees clearly
constitutes differentiation, the question then becomes one about
the
reasons for the difference in order to establish whether it is
discriminatory and whether it is for an illicit reason.
[20]
The company has advanced a number of reasons for the change:
20.1 The
non-union employees in Durban are placed on the same wage cycle as
the remainder of the employees employed
elsewhere in South Africa.
20.2 There
are certain labour relations advantages, including -
20.2.1 There is an
advantage in different wage groups receiving increases at different
times. The employer may be able to avoid
the disruption of industrial
action if it has peace obligations with one group with which it has
settled wages where it enters
into a dispute with the other wage
group, with whom no settlement has been reached.
20.2.2 There is an
efficient use of management resources in allowing performance reviews
and wage increases to be calculated at
different times, rather than
impose the burden of performing all of this on time.
20.2.3 It reduces the
opportunity for conflict between wage negotiations and corporate
budgeting.
20.3 Reviews
for clients' rates occur in April or May of each year. A wage cycle
which begins thereafter enables the
company's management to more
accurately calculate and identify the money available for wage
increases.
[21]
The Act permits plural or multiple representivity. Employees are free
to choose their bargaining agent and to conclude agreements
on terms
and conditions of employment represented by that agent. If there is
more than one agent or union this necessarily implies
that different
terms and conditions of employment may be concluded between employees
who are similarly placed.
[22]
In addition, the reasons for the difference are not motivated by an
anti-union bias. There are operational advantages to having
the wage
cycles at different times of the year, and preserving this situation.
It is submitted that one of the most convincing
reasons relates to
the employer's interest in a peace obligation with one group, while
bargaining with another. There is nothing
impermissible for an
employer to organise its affairs so as to minimise the effects of
industrial action, if this takes place.
[23]
A union member, having asked to be treated differently to the
non-union member in order to receive the fruits of collective
bargaining, cannot now complain about differential treatment and
require that the company treat him equally. If the employer does
so,
it runs the risk of obliterating the distinction between the
bargaining units and then becoming bound to provide equal wage
cycles
for union and non-union members alike.
[24]
It is respectfully submitted that the applicants are attempting to
encourage the Labour Court to enter into the arena of collective
bargaining. This arena is a dangerous one. It is in the nature of
collective bargaining and the power play between employer and
employees that while the one party may have the upper hand for a
time, this position may quickly be reversed. Intervention by the
Court on one side or the other in the contest may prove not just
destructive of collective bargaining as a principle, but one of
the
participants in it.
[25]
It is accordingly submitted that the respondent’s conduct does
not constitute a breach of the provisions of section 5
of the Act,
nor does it constitute a breach of section 9, nor section 23 of the
Constitution.
[26]
Further, discrimination on the basis of union membership does not
fall within the analogous grounds which have a similar relationship
and impact to injury to human dignity.
[27]
Similarly, differentiation between employers which is contemplated
and supported by the provisions of the Act cannot fall foul
of
section 23 of the Constitution. It will be noted that the applicants
do not challenge the constitutionality of the Act in their
application.
Evaluation
[28]
In the main, this application is premised on the infringement of
section 5 of the Act and section 9 of the Constitution Act,
1996. At
the very outset, I need to point out that I am indebted to the
parties’ representatives for the submissions they
made in this
matter. Section 5 of the Act reads:
“
Protection of
employees and persons seeking employment
(1) No person may
discriminate against an employee for exercising any right conferred
by this Act.
(2) Without limiting the
general protection conferred by subsection (1), no person may do, or
threaten to do, any of the following-
(a)
require an employee or a person seeking employment-
(i)
not to be a member of a trade union or workplace forum;
(ii)
not to become a member of a trade union or workplace forum; or
(iii)
to give up membership of a trade union or workplace forum;
(b)
prevent an employee or a person seeking employment from exercising
any right conferred
by this Act or from participating in any
proceedings in terms of this Act; or
(c)
prejudice an employee or a person seeking employment because of past,
present or anticipated-
(i)
membership of a trade union or workplace forum;
(ii)
participation in forming a trade union or federation of trade unions
or establishing
a workplace forum;
(iii)
participation in the lawful activities of a trade union, federation
of trade unions or
workplace forum;
(iv)
failure or refusal to do something that an employer may not lawfully
permit or require
an employee to do;
(v)
disclosure of information that the employee is lawfully entitled or
required to give
to another person;
(vi)
exercise of any right conferred by this Act; or
(vii)
participation in any proceedings in terms of this Act.
(3) No person may
advantage, or promise to advantage, an employee or a person seeking
employment in exchange for that person not
exercising any right
conferred by this Act or not participating in any proceedings in
terms of this Act. However, nothing in this
section precludes the
parties to a dispute from concluding an agreement to settle that
dispute
(4) A provision in any
contract, whether entered into before or after the commencement of
this Act, that directly or indirectly
contradicts or limits any
provision of section 4, or this section, is invalid, unless the
contractual provision is permitted by
this Act”
[29]
Sections 9 and 23 of the Constitution Act on which the applicant has
also placed reliance proscribe unfair discrimination and
confer a
right to fair labour practices respectively and anything inconsistent
with the Constitution is invalid. The sections read:
“
9
Equality
(1) Everyone is equal
before the law and has the right to equal protection and benefit of
the law.
(2) Equality includes the
full and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative
and other measures designed to
protect or advance persons or categories of persons, disadvantaged by
unfair discrimination may
be taken.
(3) The state may not
unfairly discriminate directly or indirectly against anyone on one or
more grounds, including race, gender,
sex, pregnancy, marital status,
ethnic or social origin, colour, sexual orientation, age, disability,
religion, conscience, belief,
culture, language and birth.
(4) No person may
unfairly discriminate directly or indirectly against
anyone on one or more grounds in
terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair
discrimination.
(5) Discrimination on one
or more of the grounds listed in subsection (3) is unfair unless it
is established that the discrimination
is fair”
“
23
Labour relations
(1) Everyone has the
right to fair labour practices.
(2) Every worker has the
right-
(a)
to form and join a trade union;
(b)
to participate in the activities and programmes of a trade union; and
(c)
to strike.
(3) Every employer has
the right-
(a)
to form and join an employers' organisation; and
(b)
to participate in the activities and programmes of an employers'
organisation.
(4) Every trade union and
every employers' organisation has the right-
(a)
to determine its own administration, programmes and activities;
(b)
to organise; and
(c)
to form and join a federation.
(5) Every trade union,
employers' organisation and employer has the right to engage in
collective bargaining. National legislation
may be enacted to
regulate collective bargaining. To the extent that the legislation
may limit a right in this Chapter, the limitation
must comply with
section 36 (1).
(6) National legislation
may recognise union security arrangements contained in collective
agreements. To the extent that the legislation
may limit a right in
this Chapter the limitation must comply with section 36 (1)”.
[30]
I find agreement with the submission made by the respondent that
section 5(1) of the Act does not refer to
"unfair
discrimination",
but uses the word
"discriminate",
without the pejorative adverb
"unfair". S
ub
s
ections
9 (2) to 9 (5) of the Constitution Act make it clear that it is
unfair discrimination which is actionable. See in this respect
the
decision in
Harksen v Lane No & Others 1998(1) SA 300 CC
paragraph [47] where court held that:
“
Section 8 (2)
contemplates two categories of discrimination. The first is
differentiation on one (or more) of the 14 grounds specified
in the
subsection (a ‘specified ground’). The second
differentiation on a ground not specified in ss (2) but
analogous to
such ground (for convenience hereinafter called an ‘unspecified’
ground) which we formulated as follows
in
Prinsloo
:
‘
The second form is
constituted by unfair discrimination on grounds which are not
specified in the subsection. In regard to this
second form there is
no presumption in favour of unfairness.…..
Given the history of this
country we are of the view that “discrimination” has
acquired a particular pejorative meaning
relating to the unequal
treatment of people based on attributes and characteristics attaching
to them… (U)nfair discrimination,
when used in this second
form in s 8(2), in the context of section 8 as a whole,
principally means treating persons differently
in a way which impairs
their fundamental dignity as human beings, who are inherently equal
in dignity.…..
Where discrimination
results in treating persons differently in a way which impairs their
fundamental dignity as human beings, it
will clearly be a breach of
section 8 (2). Other forms of differentiation, which in some other
way affect persons adversely in
a comparably serious manner, may well
constitute a breach of section 8 (2) as well.’
There will be
discrimination on an unspecified ground if it is based on attributes
or characteristics which have the potential to
impair the fundamental
dignity of persons as human beings, or to affect them adversely in a
comparably serious manner.”
[31]
On the authority of
Mias v Minister of Justice & Others (2002)
23 ILJ 884 (LAC),
I accept the proposition advanced by the
respondent that the differentiation complained of must not only be
discriminatory in nature
but must be unfair either directly on one or
more of the specified grounds or indirectly.
[32]
Further, the Act does indeed permit plural or multiple
representations, meaning that employees are free to choose their
bargaining
agents and to conclude agreements on terms and conditions
of employment as represented by those chosen agents. Where there are
more unions than one in a workplace that will necessarily imply that
different terms and conditions of employment may be concluded
between
employees of that industry. The reasons for discrimination therefore
become all the more important.
[33]
The first such reason given by the respondent is that the non
unionized employees in Durban are placed on the same wage cycle
as
the remainder of the employees employed elsewhere in South Africa.
This approach, by its very nature was more than likely to
create
tensions in the employees of the respondent who are placed in the
same working environment but would be treated differently
when it
came to their employment conditions as different wage cycles were
more likely to produce different results. No reason has
been
proffered why the respondent preferred this approach. It is not only
in the Durban base that the respondent’s employees
are
unionized. Satawu is another union operating in the working place of
the respondent though outside of Durban. By the respondent’s
own admission, Satawu members’ wage cycle in Gauteng is the
same as of the non unionized members. A differentiation in the
wage
cycle in Durban does not appear to provide a valid and a reasonable
explanation for the change as the same argument will not
apply in the
Gauteng region of the respondent.
[34]
The change was accompanied by an early salary increase for the non
unionized employees in Durban to the exclusion of the members
of the
applicant. The conditions attendant to the salary increase are
clearly a prima facie infringement of section 5, particularly
section
5 (2) (a) and 5 (3) of the Act. The conditions discouraged a non
union member from exercising a right protected by the
Act to join a
union at his or her discretion, for a specific period of time. The
respondent has not really tendered an explanation
for its approach in
this regard. It chose to explain the inequality brought about by the
plurality of its bargaining agents. Inequality
brought about by the
plurality of bargaining agents is one matter. It has nothing to do
with dissuading an employee from exercising
his right to join a
union. All employees of the respondent had a right to join a union of
their choice. Those employees of the
respondent based in Durban were
discouraged by the conditions of the salary increase from joining a
union when those based outside
of Durban were not. The conditions
brought about an unequal treatment by the respondent of its employees
without a valid and a
fair reason.
[35]
It was within the powers of the respondent to preserve the separate
identities of its bargaining units without unilaterally
collapsing
the distinction between its bargaining units. In doing so, it could
however not lay down conditions that violate the
provisions of the
Act and the Constitution Act. The unfairness in the conditions it
imposed remains unexplained and these conditions
have tainted the
awarding of the remuneration to the non-bargaining unit employees. In
my view, the application is meritorious.
[36]
The following order is therefore to issue:
1.
Declaring the award in August 2007 by the respondent of a
remuneration increase to employees who are not members
of the
applicant, backdated to 1 July 2007, subject to a condition that the
employees who enjoy the dual benefit of the increase
in remuneration
and from a date earlier than was customary, may not be members of the
applicant and shall forfeit such benefit
if they become members ( as
embodied in the letter to non union staff members and quoted in
paragraphs 9 and 10 of the founding
affidavit of Gokulanand Thupsee)
(“the award of increased remuneration”):-
a.
Constitutes unfair discrimination against employees who have
exercised their rights under section 4 of the
Act to join the
applicant, a registered trade union, which discrimination is
proscribed by section 5(1) of the Act;
b.
Constitutes conduct which imposes an incentive and thus indirectly
requires those employees who are not members
of the trade union not
to become members of the applicant and an inducement to those
members who are to give up trade union
membership which is proscribed
by section 5(2)(a)(ii) and (iii) of the Act;
c.
Prejudices employees because of present or anticipated membership of
a trade union which is proscribed by section
5(c)(i) of the
Act;
d.
Advantages employees in exchange for that person not exercising the
right conferred by the Act to join a trade
union which is proscribed
by section 5 (3) of the Act and is accordingly invalid in terms of
section 5(4) of the Act.
2.
Declaring the award of increased remuneration to be unconstitutional
as being discriminatory and an unfair
labour practice and, as such,
conduct inconsistent with section 9 and 23 of the Constitution Act,
1996 and accordingly invalid.
3.
Directing the respondent to remedy its unlawful and unconstitutional
conduct and to this end that it be and
is hereby directed to inform
all the employees to whom the unilateral increases were awarded of
the fact that respondent’s
conduct in awarding the increases
was unlawful and furthermore is hereby directed within 21 days of the
grant this order to grant
to all employees, including those who are
or may become members of the applicant, similar increases in
remuneration backdated to
1 July 2007.
4.
Ordering the respondent to pay the costs of this application.
_____________
Cele
J.
DATE
OF HEARING
: 25
MARCH 2010
DATE
OF JUDGMENT
: 01 JULY
2010
APPEARANCES
FOR
APPLICANT
: Adv M
PILLEMER SC
Instructed
by
: BRETT
PURDON ATTORNEYS
FOR
RESPONDENT
: Adv AS
REDDING SC
Instructed
by
: DENEYS
REITZ ATTORNEYS