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[2011] ZALCJHB 17
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City of Johannesburg Metropolitan Municipality and Another v South African Municipal Workers Union and Others (J253/11) [2011] ZALCJHB 17; (2011) 32 ILJ 1909 (LC) (18 February 2011)
Reportable
Delivered 180211
Edited 280311
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT BRAAMFONTEIN
CASE NO J253/11
In
the matter between:
CITY
OF JOHANNESBURG METROPOLITAN
MUNICIPALITY
…..................................................................................
1
ST
APPLICANT
JOHANNESBURG
METROPOLITAN BUS SERVICES
(PTY)
LTD
…..........................................................................................
2
ND
APPLICANT
and
SOUTH
AFRICAN MUNICIPAL WORKERS UNION
…....................
1
ST
RESPONDENT
THE APPLICANTS’
EMPLOYEES WHO ARE
MEMBERS OF THE FIRST
RESPONDENT
…....
2
ND
AND
FURTHER RESPONDENTS
JUDGMENT
___________________________________________________________________
VAN
NIEKERK J
Introduction
[1] The applicant seeks a
rule
nisi
calling on the respondents to show cause why an
order should not be granted to the effect that strike action by the
second and
further respondents (all employees of the second
respondent) that commenced on 9 February 2011 is unprotected and
unlawful, and
that secondary strike action by employees of the first
applicant, scheduled to commence on 18 February 2011, is similarly
unprotected
and unlawful. In the interim, the applicant seeks an
order restraining the respondents from participating in the primary
and the
secondary strike. The application was argued as a matter of
urgency yesterday afternoon, and my reasons for judgment are
necessarily
brief.
Factual background
[2] The first respondent
(the union) is recognised by both applicants as representative of the
majority of their employees. On 30
September 2010, the second
applicant informed the union that it intended to implement a revised
shift system, with effect from
15 November 2010. On 22 November 2010,
the union referred a request for conciliation to the bargaining
council.
[3] On the same date,
this court granted an interim order interdicting the second
respondent from embarking on strike action. The
rule was confirmed on
10 December 2010. Steenkamp J delivered a written judgement
(unreported, case number J2276/10) in which he
considered whether the
implementation of the revised shift schedule on 6 December 2010
constituted a unilateral change to bus drivers’
terms and
conditions of employment. The court concluded as follows
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.
[4] On 7 January 2011,
the union again made a referral to the bargaining council in respect
of the change in shift times. In paragraph
3 of the referral, the
union described the nature of the dispute as one concerning a matter
of mutual interest and summarised the
defects of the dispute as
follows:
The employer
implemented the new shift system on 6 December. The union demands
that (a) the shift system before 6 December be immediately
reinstated; (b) the employer agrees, in writing, that it will not
change the shift system in future without the unions agreement;
(c)
that the employer reinstate the task team – which will meet
annually to negotiate on whether changes to the shift system
on this
is an undesirable; (d) the employer agrees that the picking of
shifts, based on seniority, will be permitted every time
the shift
system has been altered were amended; (e.g.) drivers will only be
obliged to work on the shift they have picked (provided
that the
shift has been picked in accordance with seniority).
[5] On 14 January 2011,
the second applicant addressed a letter to the union inviting the
union to a pre-conciliation meeting. In
the letter, the second
applicant stated that ‘in view of the pending conciliation
(date still to be determined) with regard
to the dispute relating to
the rescheduling and new shift system, Metrobus Management wishes to
extend an invite to meet with SAMWU
representatives at the level of
pre-conciliation meeting (sic)’. The proposed meeting took
place on 18 January 2011. At this
meeting, the second applicant
expressed the view that the union’s referral to the bargaining
council was premature, given
that a dispute had not yet arisen
between the parties.
[6] Despite the second
applicant’s objection, the bargaining council appointed a
commissioner to preside at the conciliation
meeting. The
representative of the second applicant raised an objection to the
effect that the bargaining council did not have
jurisdiction to
consider the referral to conciliation. The objection was in essence
that the referral of the alleged dispute to
the bargaining council by
the union was premature and invalid, that there was no issue in
dispute capable of being referred to
the bargaining council, and that
the allegation made by the union in its referral that the parties had
had discussions which had
failed to yield any agreement was factually
incorrect. After being addressed on the points
in limine
, the
commissioner postponed the meeting. On 7 February 2011, the
commissioner issued what is termed a ‘jurisdictional ruling’.
The salient part of the ruling reads as follows:
It appears that after
receipt of the ruling from the Labour Court, the parties never met to
discuss the issues which could lead
to the declaration of a dispute
in case they deadlocked. The applicant claimed that there was a
meeting, however such could not
be proved.
I acknowledge the fact
that the application was not brought in according to procedures, it
would be irresponsible not to attend
to it as Commissioners have a
duty to check if they have jurisdiction on matters that they have to
preside over. I share the same
view with the respondent, that the
referral was premature. The starting point should be that the parties
should be freshly brought
before the employer, only when the parties
deadlock, a referral can then be made. Continuation with a matter
that has been ruled
over by the Labour Court would constitute an
irregularity, and therefore cannot be limited Therefore I make the
following ruling:
4. Ruling
Until such time that a
new right would have been created, the Council does not have
jurisdiction to deal with the matter at present.
The reasoning supporting
the commissioner’s conclusion borders on the incomprehensible,
but be that as it may, the ruling
is relevant to these proceedings
only to the extent that the applicant contends that its existence
renders the strike unprotected.
The merits
[7] The applicants
contend that the strike is unprotected because:
there is no dispute
between the parties;
the bargaining council
has ruled that it has no jurisdiction to entertain the referral made
by the union; and
this court has already
determined that the dispute between the parties is a dispute of
right and not a dispute of interest (the
res judicata
point).
I deal with each of these
contentions below.
The existence of a
dispute
[8] The applicants submit
that the judgment of Steenkamp J effectively categorised the issue in
dispute as a dispute of right rather
than a dispute of interest. In
the second referral form, the union described the nature of the
dispute as one concerning a matter
of mutual interest. This, the
applicants contend, it cannot do, given the finding by this court
that the changes to the shift system
were within the contemplation of
what the parties agreed in a collective agreement between them.
Further, the applicants contend
that if any one of the parties is in
dispute with the other, the dispute should be stated clearly and not
clothed in such a way
that, objectively viewed, the other party does
not know that it is in dispute. In this sense, a dispute arises only
when the parties
in fact expressly different views and assume
different positions in relation to a specific factual complex. The
mere fact that
one party may be unhappy about a particular state of
affairs does not give rise to a dispute (see
Leoni Wiring Systems
(East London) (Pty) Lt v National Union of Metalworkers of SA &
others
(2007) 28
ILJ
642 (LC), and also the statement by
Zondo AJ (as he then was) in
SACCAWU v Edgars Stores Ltd &
another
(1997) 18
ILJ
1064 (LC) to the effect that for a
dispute to exist, it must ‘postulate the notion of the
expression by the parties, opposing
each other in controversy, of
conflicting views, claims or contentions’.
[9] Support for this view
is to be found in
City of Johannesburg Metro Municipality v SAMWU
& others
(case number J to 2236/07) in which Basson J,
referring to the judgment in
Leoni Wiring Systems
, said the
following:
I am of the view that,
although it is not a prerequisite that one of the disputing parties
must formally or even expressly declare
a dispute (as was the case
under the previous Labour Relations Act), at the very least the issue
referred to conciliation must
be an issue over which the parties have
reached a "stalemate" in the sense that the employer must
have had the opportunity
to reject or accept a demand put forward by
the employees or their representative. To hold otherwise may, in my
view, give rise
to a situation where employees may refer the issue to
conciliation without first having afforded the employer an
opportunity to
formulate a negative response or to reject a demand or
grievance put forward by the employees or their representative. At
the very
least the employer should know what the dispute is about
what is required to resolve the demand or dispute
(at paragraph
[18] of the judgment)
[10] To the extent that
the terms of this judgment require, separately from any requirement
established by the LRA, the articulation
of a demand and its
rejection prior to either party invoking the statutory dispute
resolution mechanisms, this is not an interpretation
that is
supported by the wording of the Act. The basic substantive
requirements for a protected strike are that there must be a
grievance or a dispute in respect of any matter of mutual interest
between employer and employee. These requirements can be gleaned
from
the definition of a ‘strike’ in s 213 of the LRA, which
contemplates a concerted refusal to work ‘for the
purpose of
remedying
a grievance
or
resolving
a dispute
in
respect of any matter of mutual interest...’ (own emphasis).
These proceedings are not concerned with any procedural defects
in
the form of a failure to comply with the provisions of s 64 of the
LRA. The only issue for determination therefore is whether
there is a
grievance or dispute in relation to a matter of mutual interest
between the parties.
[11] The grievance in the
present matter clearly concerns a matter of mutual interest –
to the extent that the applicants
appear to contest otherwise, they
confuse the concepts of a ‘matter of mutual interest’ and
a ‘dispute of interest’.
1
A matter of mutual
interest, broadly speaking, is any matter concerning employment (see
De Beers
Consolidated Mines Ltd v CCMA & others
[2000]
5 BLLR 578
(LC)). Steenkamp J did not find that the dispute before
him did not concern a matter of mutual interest. (I deal further with
the
judgment below in the discussion on the
res
judicata
point.)
[12] The underlying
premise of the applicants’ contention appears to be that
strikes are pegged by ‘demands’ and
‘deadlocks’
in the sense in which these terms were employed under the 1956 Labour
Relations Act. But as Zondo JP pointed
out in
TSI
Holdings (Pty )Ltd & others v National Union of Metalworkers of
SA & others
(2006)
27
ILJ
1483 (LAC):
[There are] three
categories of strikes, namely, those which have a demand, those where
there is no demand but there is a grievance
and those in which there
is a dispute
(at paragraph [27] of the judgment)
.
There are no bright
lights between these categories. Sometimes the word ‘demand’
is used in a generic sense to refer
to all three categories of
strikes; sometimes it is used to refer to demands for higher wages.
But these are not statutorily sanctioned
requirements. The LRA refers
only to a ‘grievance’ or a ‘dispute’. There
is thus no statutory requirement
for the existence of a deadlock
before a referral to either the CCMA or a bargaining council.
[13] In the present
instance, the grievance in issue appears in the union’s summary
of its demands. It can be summarised as
concerning the following:
The reinstatement of the
shift system which applied before 6 December 2010;
Employer to commit that
they will be no changes in the shift system without the consent of
the union;
the reinstatement of the
task team, responsible for the negotiation of the shift system:
employees to be allowed
to choose shifts freely based on seniority;
employees only to work
on those shifts which have been selected.
[14] Even if I am wrong
in coming to this conclusion, the definition of ‘dispute’
in s 213 includes ‘an alleged
dispute’. For the purposes
of the definition of a strike, therefore, all that need be
established as an objective fact is
the allegation of a dispute, not
its existence. This the union has done.
The referral to
conciliation and the commissioner’s jurisdictional ruling
[15] The referral to
conciliation was made on 7 January 2011. In so far as the applicant
contends that the jurisdictional ruling
made by the commissioner
renders the strike unprotected, while it may be correct that the
commissioner found that the bargaining
council had no jurisdiction to
entertain the referral, the applicants’ submissions overlook
the fact that it is not necessary
under the LRA for a conciliation
hearing actually to take place before a strike can be protected. In
terms of section 64 (1) (a)
of the LRA, it is sufficient if 30 days
have elapsed since the referral of the dispute. In other words, the
commissioner’s
ruling affected only the convening of the
conciliation process; it says no more than that the bargaining
council did not have the
jurisdiction to conciliate the dispute.
Since a conciliation meeting is not a precondition for a strike to be
protected (because
it is sufficient that 30 days have elapsed after
the date of the referral) the commissioner’s ruling is not a
relevant factor.
Res judicata
[16] The applicants
submit that the strike must be interdicted because it is contrary to
the rule regarding
res
judicata
.
In particular, it is contended that Steenkamp J confirmed the rule
nisi
on the basis that a
change in a shift system was no more than a change in a work
practice. This was permitted in terms of the applicable
collective
agreement, and hence there could not be a unilateral change to terms
and conditions of employment. This submission is
predicated on a
misunderstanding of the approach taken by the union. The union
contends that the strike is protected because there
is a grievance
that has been referred for conciliation, which remains unresolved.
Steenkamp J was called on to decide only whether
the changes in the
shift system constituted a unilateral change to terms and conditions
of employment for the purposes of section
64 (4) of the LRA. This
much is apparent from the quote from the judgment in paragraph [3]
above. Steenkamp J did not decide, nor
was he required to decide,
whether the union’s members were entitled to demand the
reinstatement of the old shift system.
2
Thus, for the purposes of
the present application, it is immaterial whether the changes
introduced by the second applicant amounted
to changes in terms and
conditions of employment.
[17] In short, there is
manifestly a grievance or issue in dispute between the parties; the
grievance patently concerns a matter
of mutual interest; the
grievance has been referred to conciliation and more than 30 days
have elapsed since the date of the referral.
There is accordingly no
discernible barrier to the strike action that the union has
undertaken and the secondary action that it
intends to undertake.
[18] Finally, in relation
to costs, neither party raised any basis why the general rule should
not apply i.e. that costs should
follow the result.
I accordingly make the
following order:
The application is
dismissed with costs.
`Andre van Niekerk
judge of the Labour
court
Date of application 17
February 2011
Date of judgment 18
February 2011
Appearances
For the applicants: Adv N
Cassim SC with Adv T Ratsheko, instructed by Werksmans Inc.
For
the respondents: Adv Tembeka Ngcukaitobi, instructed by Cheadle,
Thompson and Haysom Inc.
1
See
Van Niekerk et al.,
Law@work
,Lexis Nexis, Durban, 2008, at p
400
2
To
the extent that Steenkamp J held that since the change was one to
work practices the union was not entitled to call its members
out on
a protected strike, it is not clear to me why a union ought not to
be entitled to call a strike over a change to a work
practice. Even
if a change to shift times is a change to a work practice rather
than to terms and conditions of employment, there
is nothing in the
LRA that prevents workers from striking in respect of the change to
the work practice, provided, of course,
that the strike satisfies
the procedural and substantive requirements established by sections
64 and 65 respectively (see Grogan
Labour Law Sibergramme
1/2011
at p6).
9