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[2011] ZALCJHB 3
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RAM Transport (SA) (Pty) Ltd v South African Transport Allied Workers Union (J106/2011) [2011] ZALCJHB 3; (2011) 32 ILJ 1722 (LC) (29 January 2011)
1
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO J 106/2011
In
the matter between:
RAM
TRANSPORT (SA) PTY LTD
…..............................................................
Applicant
and
SOUTH
AFRICAN TRANSPORT AND
ALLIED
WORKERS UNION
…...........................................................
First
Respondent
MOTOR
TRANSPORT WORKERS UNION
…..............................
Second
Respondent
THE INDIVIDUALS LISTED IN ANNEXURE
A
…..........
Third to further
Respondents
JUDGMENT
VAN
NIEKERK J
[1] On 26 January 2011 I granted an
order in the following terms, after hearing argument in an
application in which the applicant
sought an interim order
interdicting strike action by the third and further respondents and
various acts of misconduct claimed
to have been committed by certain
of them:
1 The third and further respondents
are interdicted and restrained from:
1.1 intimidating non-striking
employees;
1.2 damaging the property of the
applicant or non-striking employees;
1.3 interfering in any way with the
lawful conduct of the applicant’s business operations.
The application for condonation
for the failure to comply with s 68(2) is refused. In respect of the
relief sought in prayer 2.1
of the Notice of Motion, the application
is postponed to 28 January 2011 at 14h00.
The respondents’ may file
supplementary affidavits by close of business on 27 January 2011 and
the applicant may file a
reply by Friday January 2011 at 12h00.
The costs of today are reserved.
The first and third respondents did
not oppose the relief concerned with acts of violence and other
misconduct. Prayer 2 of the
notice of motion seeks to interdict the
strike on the basis that it is unprotected. The reason for the
postponement was the applicant’s
failure to give 48 hours
notice of the application as is required by s 68(2) and the absence
of any factual basis to justify a
relaxation of that requirement.
Indeed, the papers were drafted as if s 68 (2) did not exist. The
application to condone the non-compliance
with the Act was moved
ultimately from the Bar, but in circumstances where the founding
affidavit made no direct reference to any
of the grounds on which
this court is entitled to condone a failure to give the required
notice. The application was postponed
both to cure the s 68 defect
and to afford the first and third and further respondents the
opportunity to file a more considered
and substantive answering
affidavit.
[2] Before the matter was called
yesterday, the applicant filed a supplementary notice of motion in
which it sought a rule nisi
calling on the third and further
respondents to show cause why they should not be held in contempt of
the order granted on 26 January
2011. I shall return to this aspect
of the dispute in due course.
[3] The background facts are a matter
of common cause, but for two aspects that I will highlight. The
applicant conducts business
as a courier. The first and second
respondents represent an undisclosed number of its employees. The
first respondent is not a
party to the dispute that is the subject of
these proceedings. On Friday 21 January 2011, the first respondent
(the union) telefaxed
a strike notice to the applicant, together with
a copy of the referral of a dispute to the bargaining council. The
referral was
made in respect of a dispute concerning the unilateral
change to terms and conditions of employment, “in that the
employer
changed the working hours.” The referral is dated 9
December 2010. It is not disputed that this was the first occasion on
which members of the applicant’s management had sight of the
referral. It is also not disputed that on enquiry to the bargaining
council, it transpired that the council had no record of having
received the dispute on 9 December 2010, the date on which the
union
claims that it telefaxed the referral to both the applicant and the
bargaining council. On Tuesday 25 January 2011, the third
to further
respondents commenced the strike presaged by the notice. While there
is some disagreement about whether the demands
made of the applicant
were confined to a dispute about hours of work, this is not material
for present purposes, and I shall accept
the union’s version
that the issue giving rise to the strike is a change to working
hours.
[4] The applicant does not dispute
that during December 2010, the working hours of those employees
engaged on what is termed the
‘10/7 shift’ were changed.
Prior to the change, the employees worked from 10h00 to 19h00. To
deal with an increase
in the volume of work, the shift time was
changed to start at 9h00, ending at 18h00. In other words, the
affected employees were
to work the same number of hours, the only
difference being that the shift commenced one hour earlier and
finished an hour earlier.
The applicant contends that all of the
affected employees (including the union’s members) agreed to
the change, which had
the advantages that they would qualify for
overtime and end the working day an hour earlier. The union contends
that its members
engaged on the shift did not agree to the change.
[5] The applicant raises two primary
arguments in support of the relief sought. The first is that on a
balance of probabilities,
there was no proper referral of the dispute
to the bargaining council. In this regard, the applicant points to
the undisputed fact
that neither the applicant nor the bargaining
council have any record of receipt of the referral, and to
discrepancies in the status
reports recording the transmission. In
particular, the original status report appears to indicate that four
pages were transmitted;
a copy annexed to the founding appears to
record that two pages were sent. Secondly, the applicant contends
that there is no dispute
between the parties since there was
agreement on the change to working hours, and because the change to
shift times in the present
instance did not, in any event, constitute
a unilateral change to conditions of employment. In this regard, the
applicant relied
on two submissions, the first being that the terms
of the relevant contracts permitted a variation of shift times; the
second being
that, as a matter of law, the change did not amount to a
unilateral variation of the relevant contracts. In the absence of any
unilateral change to a term and ocndition of employment, and that
being the nature of the dispute that the union claims was referred
to
the bargaining council, the strike is unprotected.
[6] I deal with the last point first.
It is not disputed that the change to the shift times was that
described above, i.e. the new
times did not impose any increase in
working hours, the only change was to commence the shift an hour
earlier than was previously
the case. That being so, it seems to me
that the principles recently referred to by Steenkamp J in
Johannesburg Metropolitan Bus Services (Pty) Ltd v SAMWU &
others
(unreported, case J 2276/10, 10 December 2010), are
relevant. In that case, the court reviewed the authorities relevant
to changes
to work practices on the one hand and terms and conditions
of employment on the other, and how to discern the difference between
the two. In
SA Police Union v National Commissioner of the SA
Police Service
(2005) 26 ILJ 2403 (LC), Murphy AJ (as he then
was) stated:
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 time. 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 a work practice not a term of employment
(at 2427 H-J).
This distinction has its roots in the
principle that employees do not have a vested right to preserve their
conditions of employment
completely unchanged from the moment they
are employed. In
A Mauchle (Pty) Ltd t/a Precsion Tools v NUMSA
[1995] 4 BLLR 11
(LAC) the court distinguished between ‘terms
of employment’ on the one hand and ‘work practices’
on the
other, the latter being subject to the employer’s
prerogative and its introduction not constituting a unilateral
change.
[7] On this basis, in the present
instance, there is no term of any collective agreement or contract of
employment that accords
the third to further respondents a vested
right to specific shift times. Their rights have not been affected by
the applicant’s
conduct, and the applicant was entitled as a
matter of law to introduce what amounted to a new work practice.
There was therefore
no unilateral change to terms and conditions of
employment. For this reason, the strike called by the union is
unprotected. This
is not an uncontested position – Grogan has
suggested that while it may e correct that a change in shift times
constitutes
a work practice rather than a change to terms of
employment, there is nothing in the Act that precludes employees from
striking
in respect of a change in a work practice (see
Labour Law
Sibergramme
1/2011 at p 6). It is not necessary for me to make
any finding on this point since, in any event, the terms of the
contracts of
employment of the third to further respondents
acknowledge the necessity for flexible working hours, and record
their express agreement
to the requirement that working hours should
be ‘reasonably flexible’. It seems to me that an
adjustment in the starting
time of a shift by an hour is not by any
stretch of the imagination unreasonable, particularly in the absence
of any particular
complaints by the union about any inconvenience or
other prejudice that its members might suffer consequent on the
change. I fully
appreciate that a copy of the contract of employment
was introduced in the replying affidavit, but given the nature of the
proceedings
and in the absence to any challenge to the terms of the
contract, the court is entitled to have regard to it. In short - the
change
in shift times is contemplated and permitted by the contract
of employment. In the absence of any unilateral change to a term and
condition of employment, the strike called by the union is
unprotected.
[8] In view of my finding on the
existence or otherwise of a unilateral change to terms and conditions
of employment, it is not
necessary for me to consider the applicant’s
submissions in relation to the validity of the referral to the
bargaining council.
[9] Turning next to the supplementary
notice of motion, Mr Naidoo, who appeared for the first and third and
further respondents,
stated that he had no instructions to oppose the
relief sought. The affidavits filed in support of the rule nisi that
the applicant
seeks, identifies only a person named ‘Jabulani’
as having physically threatened an employee not participating in the
strike. (There is an averment that a Dumisani Twala called another
employee a ‘sell-out’, but this does not on the
face it
constitute a breach of the order). In the absence of any further
particulars about the identity of ‘Jabulani’,
I am
reluctant to make the order sought. Regrettably, the detailed
incidents of violence and damage top property perpetrated by
unidentified persons that are recorded in the papers are
representative of a blight that has come to characterise the South
African
industrial relations landscape. This court is always open to
those who seek the protection of the right to strike. But those who
commit acts of criminal and other misconduct during the course of
strike action in breach of an order of this court must accept
in
future to be subjected to the severest penalties that this court is
entitled to impose.
[10] In view of the basis for my
finding, little purpose would be served in granting the interim
relief sought by the applicant.
The applicant has established a clear
right to the relief it seeks and a final order is appropriate.
Finally, in relation to costs,
there is an ongoing relationship
between the applicant and the union, however fraught it might be at
present. Given that consideration,
and the fact that the applicant
has only partially succeeded in the relief that it has sought (both
on 26 and 28 January 2011)
it seems fair to me that there should be
no order as to costs.
For these reasons, I make the
following order:
The strike action embarked upon by
the third to further respondents, at the instance of the first
respondent, is unprotected and
unlawful.
The respondents are interdicted from
participating in the unprotected strike.
There is no order as to costs.
ANDRE VAN NIEKERK
JUDGE OF THE LABOUR COURT
Date of application: 28 January 2011
Date of judgment: 29 January 2011.
Appearances
For the applicant: Adv A Redding SC,
with Adv G Fourie, instructed by Werksmans Inc
For
the respondent: Mr K Naidoo, instructed by Cheadle Thompson and
Haysom Inc.