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[2011] ZALCJHB 211
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Pikitup Johannesburg (Pty) Ltd v South African Municipal Workers Union and Others (J 584/2011) [2011] ZALCJHB 211 (18 April 2011)
Page
9
of
12
J584/2011
NOT
REPORTABLE / NOT OF INTEREST TO OTHER JUDGES
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO J 584/2011
In
the matter between:
PIKITUP
JOHANNESBURG (PTY) LTD
.....................................................
APPLICANT
and
SOUTH
AFRICAN MUNICIPAL WORKERS’ UNION
......................
1
ST
RESPONDENT
THE
PERSONS WHOSE NAMES ARE LISTED IN
ANNEXURE
“A” TO THE NOTIC OF APPLICATION
.....................
2
ND
RESPONDENT
JUDGMENT
AC
BASSON, J
This is an urgent application by the
first applicant Pikitup Johannesburg (Pty) Ltd (hereinafter referred
to as “the applicant”)
to declare the strike by the
second to further respondents which commenced on 7 April 2011 to be
an unprotected strike in terms
of
section 68
of the
Labour Relations
Act 66 of 1995
.
The parties
The applicant is Pikitup Johannesburg
(Pty) Ltd. The first respondent is the South African Municipal
Workers (hereinafter referred
to as “SAMWU”). The second
and further respondents are members of SAMWU. I will refer to the
second respondents as
the “individual respondents”. The
applicant is engaged in the removal and disposal of garbage in the
Greater Johannesburg
Metropolitan District. The applicant employs
some 2 600 employees of which approximately 80% are members of
SAMWU. SAMWU is recognized
by the applicant and engages with the
applicant in collective bargaining,
inter alia
, over matters
of mutual interest.
Background facts
Due to the urgency of this matter, I
intend to give only brief reasons for my order. Most of the facts
are not in dispute. What
is in dispute is whether or not the
applicant has acceded to the demands of SAMWU. If this Court finds
that the applicant has
acceded to the demands, the strike will be
unprotected.
At the end of January 2011, SAMWU
referred a dispute to the South African Local Government Bargaining
Council (hereinafter referred
to as “the Bargaining Council”).
A series of demands are listed in the referral. The dispute was set
down for conciliation
on 14 February 2011 and thereafter postponed
to 22 February 2011, 9 March 2011 and 14 March 2011.
SAMWU previously served a strike
notice dated 23 February 2011 on the applicant. The strike did not
commence and SAMWU suspended
the strike.
At the commencement of the
conciliation proceedings the applicant raised a point
in limine
in terms of which it argued that a number of the demands referred to
the Bargaining Council were disputes of right and not matters
of
mutual interest. The commissioner requested the parties to lead
evidence in order to determine what the issues in dispute
between
the parties are.
On 3 April 2011 the arbitrator issued
a comprehensive ruling and concluded as follows:
“
6. RULING
I hereby determine that:
6.1 the parties have deadlocked and
there are disputes on the following:
6.1.1 the outsourcing of services
within the respondent, other than the incinerator and composting
site;
6.1.2 the failure to appoint the
employees from labour brokers on a permanent basis.
6.1.3 the failure to appoint
internal applicants to the post of drivers;
6.1.4 the failure to launch an
investigation into all tenders the respondent [the applicant] had
entered in to, save for the contract
dealt with in a letter by the
AMD…………..
6.2 A certificate must be issued
pursuant [to]
section 135(5)(a)
reflecting that the aforementioned
issues remained unresolved as at the date thereof.”
(I will
refer to this ruling simply as “the ruling”.)
A certificate of non-resolution was
thereafter issued to the effect that the matters reflected in the
ruling remained unresolved
as at 4 April 2011 and that SAMWU could
therefore resort to strike action on these demands:
On 4 April 2011 SAMWU issued a strike
notice in terms of which it is recorded that a strike notice was
issued on 17 March 2011
but that SAMWU decided not to commence with
the strike but to suspend it. The notice further records that,
despite discussions,
the issues have not been settled. The employer
is now informed that the workers will be embarking on strike action
on 7 April
2011. In respect of the demands the notice states the
following:
“
Our member’s demands
and/or grievances relate to those issues set out in paragraph 6.1 of
the SALGBC ruling dated 3 April
[2011]”.
On 9 April 2011 Bowman Gilfillan
Attorneys (the attorneys for the applicant) addressed a letter to
SAMWU in which acknowledges
that the applicant has received a copy
of the strike notice dated 4 April 2011 and that it is also in
possession of the ruling
dated 3 April 2011 by the Bargaining
Council (
supra
). The letter further lists the four demands as
set out in paragraph 6 of the ruling (
supra
). SAMWU is then
informed that the applicant, with immediate effect, unconditionally
accedes to all of the demands. More in particular,
it undertakes not
to outsource any service other than the incinerator and composting
site. In respect of the employees employed
or formally employed by
Labour Brokers, the following is stated:
“
4.2 our client currently has
no employees coming from an labour broker and has no intention of
utilising services from any labour
broker”.
In respect of the remainder of the
demands, the applicant also acceded to the demands. The letter
further states that, in light
of the unconditional undertaking to
accede to all of the demands, the issues subject to the current
strike action have therefore
been resolved. As a consequence the
reason for the workers wanting to strike has therefore disappeared.
On 11 April 2011 and in response to
this letter, Cheadle Thompson and Haysom Inc (SAMWU’s
attorneys) wrote to the applicant’s
attorneys stating,
inter
alia
, that it is denied that the applicant has unconditionally
acceded to the demands which are the subject matter of the strike.
The letter further states as follows:
“
Furthermore, we do not
accept that you have correctly set out our client’s demands,
grievances or disputes which form the
subject-matter of the strike.
In particular, we record that SAMWU did not merely demand that
Pikitup appoint labour brokered employees
on a permanent basis. SAMWU
also demanded (and continues to demand) that your client permanently
employ all employees of third
party contractors which it used and
still uses. In addition, our client has always asserted that the
investigation into the tenders
must be conducted in an objected and
transparent manner, with the least amount of interference by
Pikitup.”
The argument
As already pointed out, the applicant
contention is that the strike became unprotected because the
applicant has acceded to the
four demands which form the
subject-matter of the strike. The respondents dispute this and
contend that the applicant has not
acceded to two of the demands
most notably the one in respect of the permanent employment of those
workers who were previously
employed by the Labour Brokers (and who
are now employed on a three year fixed term contract) and those who
are currently employed
by Third Party Contractors. (I will return to
this issue hereinbelow.)
I have also already pointed out that
the arbitrator had identified four issues as being the issues in
dispute in his ruling. It
is the second issue (in dispute) that is
the bone of contention in this application. The applicant submits
that the dispute was
identified by the commissioner as being
the
failure to appoint the employees from labour brokers on a
permanent basis.
As already pointed out, it is the applicant’s
case that it has already acceded to the demand. The respondents’
case
is that the applicant has not acceded to this demand.
It is further the applicant’s
case that the dispute that now forms the basis of the strike notice
is different from the
one that was identified by the arbitrator in
paragraph 6.1 (more in particular 6.1.2 of the ruling) in that what
is now being
demanded is that the applicant “
permanently
employ all employees of third party contractors which it used and
still uses
”. In this regard the applicant argues that this
is not the demand that was recorded in paragraph 6 of the ruling
and, more
importantly, this is not the demand that was included in
the second strike notice.
SAMWU’s argument is that,
although the ruling states that the parties have reached deadlock on
(
inter alia
) the failure of the applicant to appoint the
employees from labour brokers permanently, “
[t]he applicant
and the first respondent both understood that the demand that labour
brokered employees be employed permanently
also related to the
employees of so-called “third party contractors’. In
fact, the term third party contractors is
a fiction created by the
applicant. These so-called third party contractors are in fact
labour brokers
”. SAMWU therefore submits that the demand
in respect of the employees of the Labour Brokers and the demand in
respect of
the Third Party Contractors should be viewed in its
proper context. Mr. Van der Riet invited the Court to have regard
not only
to the ruling of the arbitrator but also to the minutes of
the various meetings that were held between the parties leading up
to this dispute.
It appears from the ruling that the
issue before the arbitrator was that all employees employed by
Labour Brokers (LB’s)
(and who are now employed on the
so-called Expanded public Works Programme on a three year fixed term
contract)
and
those employees from Third Party
Contractors (“TPC’s) should be absorbed in the
employment of the applicant. In this
regard the arbitrator
specifically records that the respondents’ demand is that the
applicant must --
“
appoint these employees on a
permanent basis (see the demand as framed in the list of demands).
Some of these employees were given
fixed term contracts under the
auspices of Expanded Public Works Programme (“EPWC). The
applicant made a demand on the 8
th
December 2010, on which
there was collective agreement as per pages ninety to ninety one (90
– 91) of the relevant mutes,
that EPWP workers, in line with
the original demand of 8
th
March 2010, be appointed
permanently, It is common cause that the EPWP employees were formerly
employed by LBs
.”
I interpose here to point out that it
appears from the papers that the contracts with the Labour Brokers
have been terminated
during the early part of 2010. During March
2010 the applicant placed the employees who were previously employed
by Labour Brokers
on the Expanded Public Works Programme (“EPWP”)
which is a government programme aimed at providing poverty and
income
relief through temporary work for the unemployed. These
employees employed through EPWP were, however, required to sign a
three
year fixed term contract. It is further appears from the
ruling of the arbitrator that the demand that the applicant
permanently
employ these employees were specifically raised before
him. The demand that the applicant permanently employ employees of
Third
Party Contractors (TBC’s) were likewise specifically
raised during the proceedings. The arbitrator was therefore alive to
the fact that SAMWU’s demand was that the employees who were
previously appointed by the Labour Brokers (and who were appointed
on fixed term contracts), be appointed permanently:
“
While management undoubtedly
made laudable efforts at improving the conditions of the said
employees from Lb’s, its endeavours,
bona fide as they might
be, fall short of the demand made. The applicant’s demand is
that the respondent must “appoint
these employees on a
permanent basis” (see the demand as framed in the list of
demands”. Some of these employees were
given fixed term
contracts under the auspices of Expanded Public Workers Programme
(EPWP)…. In line with the original demand
of 8
th
March 2010, be appointed permanently. It is common cause that the
EPWP employees were formerly employed by LBS”.”
In order to determine whether the
applicant has acceded to SAMWU’s demands, it is necessary to
determine what the demand
is. In arriving at a conclusion, the Court
also had regard to the minutes of the meetings that were held
between the parties
leading up to this dispute:
(i) The minutes of a meeting held in
September 2009
(under point 4.10) reflects that the issue of
the absorption of employees of Labour Brokers in Pikitup was on the
table as far
back as September 2009.
(ii) The minutes of the meeting of
12
March 2010
specifically records that the demand was that
management do away with Labour Brokers and that all temporary
employees should be
appointed permanently. The applicant’s
response was that it will employ 665 employees from Labour Brokers on
a three year
contract basis under the Expanded Public Workers
Programme.
(iv) The following is recorded in the
minutes of the Local Labour Forum held on 17 March 2010:
“
Organized labour also
requested that all employees who are performing any work for Pikitup
under Labour Brokers and third party
contractors be absorbed.
Organized Labour claimed on the
Local Fabour Forum held on the 18/02/2009 the (sic) was an agreement
that all employees will be
absorbed under Labour Brokers and Third
Party contractors.
…
.
Organized Labour insisted that a
requested (sic) was made that Labour Brokers and Third Party
Contractors be cancelled and employees
be absorbed
.”
At this meeting it was therefore
specifically noted that the demand for permanent employment extended
to both employees previously
employed by Labour Brokers and those
employed by Third Party Contractors.
(v) The minutes of the Local Forum
held on
8 December 2010
records the following:
“
5.3 EPWP: ORGANISED LABOUR.
●
Called for the company to
employ EPWP workers permanently.
●
Stated that it has become
apparent that the company is substituting permanent employees with
EPWP workers and that the company is
not imparting any skills to the
PEWP workers.
MANAGEMENT
●
Concurred with labour on
the conditions of EPWP but stated that although more is required to
be done, the company can only afford
this movement for now, and as to
what happens after the expiry of the three-year term will be dictated
by the reality at that time.”
The applicant, however, submits that
the demand as it stands now, namely that the applicant must employ
all Third Party Contractors
employees on a permanent basis, is an
expansion of the demand. SAMWU’s rejects the response received
from the applicant
namely that it (the applicant) “
has no
employees coming from any labour broker and has no intention of
ulilising services from any labour broker
”. SAMWU submits
with reference to the ruling that it is clear that the parties had
to lead evidence on these two issues
before the arbitrator. Because
the parties have not reached agreement on these two issues the
respondents are therefore entitled
to embark on protected strike
action. The fact that the arbitrator only refers to labour brokers
is therefore not conclusive:
Both parties understood that the demand
that labour brokered employees be employed permanently also relates
to the employees
of so-called “Third Party Contractors”.
SAMWU therefore submits that the fact remains that the applicant has
not
employed up until now the employees that were previously
employed by Labour Brokers. Consequently the applicant has therefore
not acceded to the demand to employ permanently these employees.
Instead during March 2010 it placed all employees who were
previously employed by Labour Brokers on Expanded Public Workers
Programme and required them to sign a three year fixed term
contract.
I am in agreement with SAMWU that it
is clear from the arbitrators ruling that the demand all along was
that employees previously
employed by Labour Brokers and those
employed by Third Party Contractors be employed permanently. This
much is also clear from
the minutes of the meeting of 17 March 2010
where it was specifically demanded that those employees performing
work for the applicant
through Labour Brokers and Third Party
Contractors, be permanently and directly employed by the applicant.
The same demand was
also expressed at the meeting on 11 September
2009 and 8 December 2010. The fact that the applicant no longer use
employees from
Labour Brokers and that these employees have been
employed through the EPWP on a three year fixed term contract, does
not, in
my view, change the substance of the demand which is that
the workers previously employed by Labour Brokers be employed
permanently.
In the event it is concluded that the
demand contained in the strike notice is not a new or expanded
demand but a demand that
was mooted all along and to which the
applicant has not yet acceded to. The strike is therefore not
unprotected and the application
falls to be dismissed. I have
decided not to make an order as to costs in light of the fact that
there is an ongoing relationship
between the parties.
In the event the following order is
made:
1. The application is dismissed.
2. There is no order as to costs.
AC BASSON, J
Date of proceedings:
15
April 2011
Date or order:
18 April
2011
For the applicant:
Adv van As. Instructed by Bowman
Filfillan
For the respondent:
Mr van der Riet SC. Instructed by
Cheadle Thompson & Haysom