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[2011] ZALCJHB 204
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BMW South Africa v NUMSA obo Members (J2251/11) [2011] ZALCJHB 204 (14 February 2011)
Not Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case
no:
J2251/11
In the matter between:
BMW
SOUTH AFRICA
......................................................................
Applicant
and
NUMSA
obo MEMBERS
...............................................................
Respondent
Heard
:
28 January 2011
Delivered
:
14 February 2011
Summary:
Urgent application – interdicting a strike-
prohibited by the provisions of National Bargaining Forum of the
Automobile National
Bargaining Council. Certificate of non resolution
issued before the expiry of the extended 30 days period.
JUDGMENT
MOLAHLEHI J
Introduction
This is an application in terms of which the applicant seeks to
interdict the planned strike of NUMSA which was supposed to have
commenced on 18 October 2011. The substantive aspect of the notice
of motion of the applicant reads as follows:
'2.1 declaring the strike action
NUMSA and its members intended to embark upon with effect 18 October
2011 and in terms of a Notice
to Strike dated 11 October 2011 (“the
notice”) to be unlawful and unprotected:
2.2 declaring participation by
NUMSA’s members in the strike action referred to in this Strike
Notice, with effect from 18
October 2011 and/or any date thereafter
to be unlawful and unprotected:
2.3 interdicting and restraining
NUMSA and its members from participating in the strike action from 18
October 2011 and/or any date
thereafter:
2.4 interdicting and restraining
NUMSA and the members from promoting, or taking any action to
promote, the strike action as envisaged
in the Strike Notice;
2.5 declaring the Certificate of
Outcome, issued by the CCMA on 11 October 2011 (under case number G a
TW 10780 – 11) to be
invalid;
2.6 alternatively to the relief
in paragraph 25 above, interdicting and refraining NUMSA and its
members from participating in the
protest action, pending a Review
Application to be filed to have the Certificate declared invalid.’
Subsequent to the postponement of the matter on the first day of the
hearing, the parties have now filed all their respective
papers. It
was thus agreed that in light of that, the issue of urgency would
not arise. It is for that reason also that whilst
the applicant
sought an interim order the matter was to be considered on the basis
of a final determination.
Background facts
It is common cause that the parties are bound by the National
Bargaining Forum agreement (“the NBF agreement”)
concluded at the Automotive National Bargaining Council which is
binding on both parties for a period of three years ending, 30
June
2013. The relevant clause of the NBF for the purpose of this
judgment is clause 8.3 which reads as follows:
‘
NO
FURTHER CLAINS UNDERTAKING
The parties undertake that
they will make no further claims/demands, either at industry or
company/plant level, for the duration
of this agreement in respect
of substantive wage and/or benefit on – cause I term covered
by this Agreement.
The parties are, however,
entitled to raise proposals, either at the industry or at
company/plant level on substantive and/or benefit
items, which will
result in further on – cost and which are not covered by
disagreement, for discussions and/or consultation
and/or negotiation,
subject to the following:
8.3.1 The party on whom the
proposal is served is obliged to engage in bona fide discussion,
consultation and/or negotiation on
the proposal.
8.3.2 The parties will, in
the event of the into action becoming deadlocked, referred the issue
to expedited third party facilitation
in an endeavour to reach
agreement.
8.3.3 These interactions will
take place in a collaborating manner without any corporation being
embark upon a either party.
Should the parties serving
the proposal believe that the other party is not engaging in good
faith, then the first party is entitled
to demand that the second
party is alleged that the conduct is subject the arbitration. The
arbitrator will be empowered to, if
he/she find they said they'd
allegation to be true, compared the second party to engage in good
faith in terms of the provisions
of this clause.’
It is also common cause that on 11 July 2011, NUMSA submitted a
demand requiring payment by BMW of the following: “
A
transport allowance of R3500.00 per employee per month for all of
the hourly employees employed at the BMW South Africa (Pty)
Ltd-Rosslyn plant.”
BMW rejected the demand and contended that it was unlawful because
it was in breach of the provisions of clause 8.3 of the NBF
agreement. The essence of rejecting the demand was that it was a
claim for an additional remuneration and thus a demand in wage
increase.
On August 2011, NUMSA, addressed a letter to BMW, informing it that
it was, ‘formally declaring a dispute’ concerning
its
demand
.
In light of this, NUMSA required that a mediator be
appointed in terms of clause 8.2.2.1 of the NPF agreement.
During August 2011, the parties engaged in discussions and shared
their different views about the matter, including picketing
which
members of NUMSA wanted to embark upon. In this regard, BMW
expressed its view in a letter dated 30 August 2011, which
reads as
follows:
"Dear Mike
We refer to a demand for payment
of a "transport allowance" of 3,500, per employee per
month, for all hourly rated associates
engaged by the company at it
Rosslyn facility.
In addition, you have indicated
that it is your intention to pursue your demand on the basis that it
constitutes a dispute of interest,
in accordance with the process
provided for in Clause 8.2.2 of the NBF Agreement. You have called
for the appointment of a mediator
for this purpose.
In this regard the company
records the following:
“
The
demand to have made, upon a proper construction, is in fact one for
an increase in the remuneration of hourly rated employees.
As such, it is prohibited in
terms of clause 8.3 of the NBF Agreement.
In addition, and in any event,
and even if the demand does not constitute a "patient
substantive wage and/or benefit on cost
term” covered by the
NBF agreement (which is denied) your union is precluded, in terms of
clause 8.3 of the NBF Agreement,
from embarking on a course of
action designed to coerce the Company to accede to the demand. As
this is clearly the intended
consequence of your seeking to pursue
the mediation process provided for in clause 8.2.2 of the NBF
Agreement, recourse to such
procedure is equally prohibited in terms
of the clause in question.
The Company is therefore
satisfied that you are precluded from pursuing the cause of action
which you have proposed, and is equally
satisfied, for this reason,
that not purpose is to be served by participating in the mediation
process you have suggested.
It is the Company understanding
of your position, that you do not accept the Company's stance as
outlined above.
A dispute therefore exists
pertaining to the interpretation and application of clause 8.3 of
the NBF Agreement.
This communication is intended:
7.1 To record the existence of
this dispute; and
7.2 To propose that the meeting,
which was scheduled for tomorrow (31 August 2011) be utilised for the
purples sits contemplated
in clause 8.2.1 of the NBF Agreement
8. The Company will submit its
proposals to you at the meeting regarding the matters dealt with in
Clause 8.2.1, with a view to
progressing the proposed arbitration
process in relation to the dispute.”
Following the above letter, a meeting was held on 31 August 2011,
where BMW affirmed its position as stated in the letter. NUMSA
on
the other hand, indicated that it required an opportunity to respond
formally to the above letter. It was then agreed that
NUMSA would be
afforded the opportunity to respond to the letter and further that
the time frames for the referring the matter
to arbitration in terms
of the provisions of clause 8.2.1 of the NBF agreement would be
waived.
On 1 September 2011, NUMSA referred the dispute to the CCMA
categorising it in the referral form as follows: ‘Refusal by
the employer to agree on (sic) the union’s demand- transport
allowance
.’
On 9 September 2011, BMW filed an application seeking a ruling that
the CCMA did not have jurisdiction to conciliate the dispute.
It is
apparent that the CCMA never made any ruling regarding the issue of
jurisdiction. A conciliation meeting was however held
on 16
September 2011. At that meeting, the parties agreed as follows:
The life of the conciliation will be extended by 30 days in terms of
section 135(2)
of the
Labour Relations Act, 66 of 1995
with effect
from 16 September 2011.
The Applicant’s Representative will participate in
facilitation in accordance with clause 8.3 of the NBF agreement.
In the event that the parties do not settle the matter through
facilitation conciliation, the Applicant will request the CCMA
to
issue a certificate of non- resolution.
Should the Applicant’s endeavour upon a strike action over the
dispute, the Applicant will give the Respondent five working
days
written notice.
Should the Respondent attempt to interdict such strike action it
will provide the Applicant’s attorneys of record with
two
working days notice . . .”
Thereafter, NUMSA addressed a letter to BMW wherein it proposed a
meeting for 23 September 2011 to discuss the appointment of
a
mediator. NUMSA further complained in the same letter that BMW was
obstructing the process, which was denied
.
The parties held a meeting on 29 September 2011, which had been
requested by BMW. The discussion during that meeting centred
on
whether NUMSA in its demand wanted its members to be treated the
same way as salaried employees.
According to BMW, the meeting ended again without any clarity as to
the nature of the demand made by NUMSA. BMW further says
that it
communicated in writing with NUMSA regarding how the matter had
unfolded at that stage and further suggested that the
discussions
between the parties should resume on 11 October 2011.
BMW followed up the possibility of a meeting on 11 October 2011 by
telephone contact to NUMSA on 7 October 2011. On the same
day, 11
October 2011 NUMSA issued a notice to BMW, which reads as follows:
“
NUMSA
DEMAND
That the employer makes payment
of a transport allowance to hourly paid employees on the same basis
as that applied to transport
(car and fuel allowance) provided by
the employer to salaried employees entitled to such allowances.”
In terms of the submission and argument, BMW contends that NUMSA is
not entitled to embark on a strike action because the true
nature of
the dispute raised is one, centring on the proper interpretation and
application of clause 8 of the NBF agreement.
It was further
submitted that the dispute as raised by NUMSA is one governed by the
NBF agreement and should for that reason
be resolved through the
mechanisms of the NBF agreement. In its heads of argument BMW
summarises its contention as follows:
60.1 The demand for the
“transport allowance” is one relating to an increase in
the wages of the hourly rated employees
on whose behalf, the demand
is made, and as such, constitute a "substantive wage and/or
benefit on-cost item” covered
by the NBF agreement;
60.2 NUMSA cannot escape this
consequence by conveniently in seeking to refrain to it as “transport
allowance." It is
plainly nothing other than a wage increase.
60.3 NUMSA is accordingly
precluded by the provisions of clause 8.3 of the NBF agreement from
(pursuing) this demand.
60.4 Even if the demand for
“transport allowance” is not a "substantive wage
and/or benefit on- cost item",
covered by the agreement (which
is denied):
60.4.1 NUMSA, fully aware of the
provisions of the NBF agreement regulating disputes of this nature,
has embarked upon a deliberate
forum shopping exercise, designed to
place NUMSA in possession of a certificate of non resolution issued
by the CCMA, which may
be utilised by NUMSA for the purpose of
coercing BMW to (accede ) to its demand;
60.4.1 This conduct is equally
prohibited by the provisions of clause 8.3 of the NBF agreement.”
It was further argued on behalf of BMW that the demand of NUMSA was
in essence the same as the original demand. In other words
the
reformulated demand was an on–cost item and therefore NUMSA
was prohibited from striking based on that demand.
Evaluation and analysis
As far as I can understand it, the following are common cause facts:
The agreement concluded at the CCMA is a binding collective
agreement.
NUMSA approached the CCMA and obtained the certificate of outcome
prior to the expiry of the 30 days as stipulated in the collective
agreement.
The initial dispute as was presented by NUMSA was impermissible in
terms of the NBF agreement.
NUMSA through its attorneys of record clarified the nature of its
dispute.
The first issue to consider in this matter is whether NUMSA has in
the process leading to issuing BMW with the notice of intention
to
strike complied with the provisions of
section 64
of the LRA.
Section 64
of the LRA provides for the procedure to be followed if
the strike is to be lawful and protected. The first requirement in
seeking
to ensure that the strike action is protected is that the
dispute of interest must have been referred to the CCMA or a
bargaining
Council with the necessary jurisdiction. The dispute must
have been conciliated and a certificate of non-resolution issued or
30 days having lapsed since the date of the referral whichever
occurs first.
1
The issue that always arises in matters of this nature usually turns
around the status of the certificate of non resolution.
A similar
situation arose in
South African Post Office Ltd v Moloi N.O and
others.
2
In that case, the applicant sought to review and set aside on an
urgent basis the certificate of non resolution that had been
issued
by the CCMA. The court in refusing to review the certificate aligned
itself and quoted with approval what Van Niekerk
J said in
Bombadier
Transportation (Pty) Ltd v Mtiya NO and Others
3
when he said:
“
In
other words, a certificate of outcome is no more than a document
issued by a commissioner stating that on a particular date,
a dispute
referred to the CCMA for conciliation remained unresolved. It does
not confer jurisdiction on the CCMA to do anything
that the CCMA is
not empowered to do, nor does it preclude the CCMA from exercising
any of its statutory powers. In short, a certificate
of outcome has
nothing to do with jurisdiction. If a party wishes to challenge the
CCMA’s jurisdiction to deal with an unfair
dismissal dispute,
it may do so, whether or not a certificate of outcome has been
issued. Jurisdiction is not granted or afforded
by a CCMA
commissioner issuing a certificate of outcome. Jurisdiction either
exists as a fact or it does not.’
In the present instance, there is no dispute that the applicant
referred the dispute to the CCMA for conciliation. The conciliation
process was extended for a further 30 days period for the parties to
engage in a facilitation process. In my view, there is nothing
in
the agreement concluded at the CCMA that says that any of the
parties could not approach the CCMA for the certificate of outcome
until the expiry of the extended 30 days period. In fact the
agreement makes reference to
sections 65
of the LRA. The facts
before this Court shows clearly that the conditions precedent for
approaching the CCMA and requesting the
certificate of non
resolution were satisfied.
The parties had in this regard agreed to extend the life of the
conciliation process for a further 30 day period. They further
agreed that that is the way to settle the matter by means of a
third-party facilitation and NUMSA would be entitled to approach
the
CCMA for the certificate of non resolution.
The applicant also seeks to interdict the strike on the basis of
non-compliance with the provisions of
section 65
of the LRA.
Section
65
of the LRA reads as follows:
65.
Limitations on right to strike or recourse to lock-out
‘
(1)
No person may take part in a strike or a lock-out or in any conduct
in contemplation or furtherance of a strike or a lock-out
if-
(a)
that person is bound by a collective agreement that prohibits a
strike or lock-out in respect of the issue in dispute;
(b)
that person is bound by an agreement that requires the issue in
dispute to be referred to arbitration;
(c)
the issue in dispute is one that a party has the right to refer to
arbitration or to the Labour Court in terms of this Act;
(d)
that person is engaged in-
(i)
an essential service; or
(ii)
a maintenance service.
13
(2)
(a) Despite
section 65(l)(c)
, a person may take part in a strike or a
lock-out or in any conduct in contemplation or in furtherance of a
strike or lock out
if the issue in dispute is about any matter dealt
with in
sections 12
to
15
.
(b)
If the registered trade union has given notice of the proposed strike
in terms of
section 64(l)
in respect of an issue in dispute referred
to in paragraph (a), it may not exercise the right to refer the
dispute to arbitration
in terms of
section 21
for a period of 12
months from the date of the notice.
(3)
Subject to a collective agreement, no person may take part in a
strike or a lock-out or in any conduct in contemplation or
furtherance of a strike or lock-out-
(a)
if that person is bound by-
(i)
any arbitration award or collective agreement that regulates the
issue in dispute; or
(ii)
any determination made in terms of
section 44
by the Minister that
regulates the issue in dispute; or
(b)
any determination made in terms of the Wage Act and that regulates
the issue in dispute, during the first year of that determination.’
In my view, the question of whether there has been compliance with
the provisions of section 65 of the LRA or otherwise by NUMSA
has to
be determined in the context of the collective agreement concluded
by the parties at the CCMA conciliation meeting. It
is further my
view that the true nature of the dispute as subsequently clarified
does not fall foul of the provisions of section
65 of the LRA. The
true nature of the dispute is that which was explained after 16
September 2011.
I am also of the view that in the true nature of the dispute is not
in conflict with the provisions of clause 8.3.3 of the NBF
agreement. It does not subject itself to the issue of interpretation
and application as contended by BMW. It is apparent from
the reading
of that clause that it could never have been their intention to take
away the right to strike by means of that clause.
What is clear in
my view is that coercion is only prohibited whilst the parties are
still engaged in the facilitation process
and not once the
facilitation had failed or where a deadlock has been reached. In
other words, the question envisaged under that
clause applies during
the facilitation process prior to failure of the facilitation. It
does not in other words, apply where
there is a deadlock or where
facilitation had for whatever reason failed. In short, for BMW to
succeed, it has to show that it
has a right not to be faced with an
unprotected or unlawful strike by the members of the NUMSA. BMW has
to do that by showing
that the intended strike does not comply with
both the procedural and/or substantive requirements for a protected
strike as set
out in as set out in sections 64 and 65 of the LRA.
BMW has failed in my view to show that the planned strike action by
NUMSA
does not comply with the requirements of sections 64 and 65 of
the LRA.
In light of the above, I am of the view that the applicant has
failed to make out a case warranting the issuance of an interdict
against the strike planned by NUMSA. I do not, however, believe that
it would in the circumstances of this case allow costs to
follow the
results.
In the premises, the applicant's application is dismissed with no
order as to costs.
_______________________
Molahlehi J
Judge of the Labour Court.
APPEARANCES
For the APPLICANT:
Gideon van der
Westhuizen from MacRoberts Attorneys
FOR THE RESPONDENT: R Edmonds of Edmonds Attorneys
1
The
relevant part of section 64 for the purposes of this judgment reads
as follows:
“
64.
Right to strike and recourse to lock out
(1) Every employee has
the right to strike and every employer has recourse to lock out if-
(a) the issue in dispute
has been referred to a council or to the Commission as required by
this Act, and-
(i) a certificate
stating that the dispute remains unresolved has been issued; or
(ii) a period of 30
days, or any extension of that period agreed to between the parties
to the dispute, has elapsed since the
referral was received by the
council or the Commission; and after that-
(b) in the case of a
proposed strike, at least 48 hours' notice of the commencement of
the strike, in writing, has been given
to the employer, unless-
(i) the issue in dispute
relates to a collective agreement to be concluded in a council, in
which case, notice must have been
given to that council; or
(ii) the employer is a
member of an employers' organisation that is a party to the dispute,
in which case, notice must have been
given to that employers'
organisation; or
2
unreported
case number J142/11..
3
(2010)
8 BLLR 840
(LC) at paragraph 15.