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[2011] ZALCJHB 29
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Transnet v South African Transport and Allied Workers Union and Others (J2345/10) [2011] ZALCJHB 29; [2011] 11 BLLR 1123 (LC); (2011) 32 ILJ 2269 (LC) (20 April 2011)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
Case number:
J2345/10
In the matter between:
TRANSNET LIMITED
…........................................................................................
Applicant
And
SOUTH AFRICAN
TRANSPORT AND
ALLIED WORKERS UNION
…....................................................................
1
st
Respondent
THE PERSONS LISTED IN
ANNEXURE “A”
…......................................
2
nd
Respondents
Judgment
Molahlehi J
Introduction
The applicant on the
return day in this matter sought to have the interim order which was
made by Bhoola J on the 21
st
November 2010 confirmed. The
order made by the learned Judge declared the strike which the
respondents had planned to for the
22
nd
November 2010 to
be unlawful and unprotected in terms of section 64 (1) (a) and (b)
read with section 65 (3) (a) (i) and (c)
of the Labour Relations Act
66 of 1995 (the LRA).
Background facts
This matter arose from
two disputes which the respondents had referred to the bargaining
council concerning:
The alleged changes to
the terms and conditions of employment
The demand to have the
area manager employed by the applicant dismissed.
In relation to the first
dispute the respondents contend that the applicant had contrary to
the established practice at one of
its depots introduced a shift
roster without consulting with and obtaining the agreement of the
shop stewards. It is apparent
from the papers that the change in
question occurred at the Kazerne depot.
It seems common cause
from the papers that the practice at Kazerne was that management
would always consult with the shop stewards
and also reach an
agreement with them before introducing any change to the shift
roster. This practice apparently came about
because the previous
complaint by the first respondent that changes to the shift roster
was always implemented to favour members
of another union –
UTATU.
It is common cause that
during April 2009, the parties concluded a variation agreement in
terms of the
Basic Conditions of Employment Act 75 of 1997
. The
variation agreement was later extended to March 2011. The agreement
provides under its area and scope that:
“
Unless otherwise
specifically
in this or any
other agreement, the terms of this agreement shall be applicable to
all bargaining unit employees who are employed
by Transnet Freight
Rail in the Republic of South Africa, irrespective of whether they
are represented by a Trade Union or not
. . .”
In terms of its
objectives the variation agreement provides as follows:
“
This agreement is aimed at
establishing mutually acceptable basic conditions of employment with
due regard to legislative requirements
and to vary by agreement those
areas of the Act in terms of Section 49 that will allow operational
flexibility without compromising
the health and safety of employees.”
Clause 5 (10) of the
variation agreement provides as follows:
“
Shifts will
be
arranged after consultation
with the employees and their representatives in accordance with the
provisions of this agreement and
depending on operational
requirements
”
The variation agreement
has to be read with the collective bargaining agreement signed by
the parties. The agreement does not,
contrary to the practice that
was in place at Karzene, require consent of the shop stewards before
management can change and
implement a shift roster. In terms of
broader principles the agreement provides:
Employees are required
to work a rotational shift system;
The applicant is to
consult with the unions in designing its shift system;
The scheduling of
employees in terms of the shift roster is the prerogative of the
applicant.
After the conclusion of
the variation agreement the applicant informed the shop stewards
that management was responsible for the
formulation of the shift
roster. It is apparent that the employees at Karzene depot were not
happy with what they were told.
They expressed their anger and
disapproval by embarking on a work stoppage on the 23, 29 and 30
July 2010.
Thereafter the first
respondent referred a dispute to the bargaining council concerning
the issue that gave rise to the industrial
action. The respondent
demanded that the applicant should reverse its decision regarding
the changes to the shift roster in terms
of
section 64
(4) of the
Labour Relations Act of 1995
.
As concerning the demand
that the applicant should discipline its manager based at Karzene,
the second respondents issued its
strike notice on 25 August 2010.
On receipt of the strike notice the applicant arranged for a meeting
with the first respondent.
At that meeting the first respondent
complained about the disciplinary action which the applicant
intended taking against its
members at Karzne depot for alleged acts
of sabotage that occurred on 04 and 15 August 2010. The other issue
discussed at that
meeting was the demand that the manager at Karzne
be removed from his position. The applicant says that the first
respondent
made this demand without substantiating the reasons for
such a demand which was that the manager was incompatible. When
pressed
to substantiate the allegation of incompatibility, the first
respondent referred the applicant to its members. It would appear
that the first respondent sought during this meeting to trade off
the dismissal of its members for sabotage with the demand to
have
the manager removed.
The lawfulness of the
planned strike action
The applicant raises a
number of issues as to why it believes that the second respondents
are not entitled to embark on a strike
action and that any action in
that regard is unlawful and unprotected. The applicant firstly
contends that the notice it received
from the respondents indicating
their intention to embark on an industrial action is vague and does
not comply provisions of
s 64
(1) of the LRA in that it does not
indicate whether the strike will be confined to Kazerne or cover all
the other depots of the
applicant. In this respect the applicant
relies on the decision of
Ceramic Industries t/a Betta Sanitory
[1997] 6 BLLR 697
(LAC),
at 702 where it was held that:
“
In
determining whether there has been compliance with
section
64(1)(b)
of
the Act an interpretation must be sought, as stated earlier, which
best gives effect to the broader purpose of the Act and the
specific
purpose of the section itself. Section 64(1) (a) sets out the first
requirement to be met before embarking on a protected
strike viz an
attempted conciliation of the issue in dispute before collective
action is taken. Section 64(1) (b) sets out the
next requirement:
notice of the proposed strike to the employer. Its purpose is to warn
the employer of collective action, in the
form of a strike, and when
it is going to happen, so that the employer may deal with that
situation. By their very nature strikes
are disruptive, primarily to
the employer, but also to employees and, sometimes, to the public at
large. One of the primary objects
of the Act is to promote orderly
collective bargaining. Section 64(1) (b) assists in that orderly
process. A failure to give proper
warning of the impending strike may
undermine that orderliness. This might, in turn, frustrate labour
peace and economic development,
other important purposes of the Act
(section 1). Compliance with the provisions of the section is thus
called for.
The specific purpose
of warning employers of a proposed strike may have at least two
consequences for the employer. The employer
may either decide to
prevent the intended power play by giving in to the employee demands,
or, may take other steps to protect
the business when the strike
starts. For the former the notice in the present case might suffice,
as a minimum period of 48 hours
is given to deliberate on whether to
accede to the demands or not. For the latter, however, the notice is
deficient, because the
employer does not know when, after 48 hours,
the proposed strike will commence. The effect is that one of the
objects of the section
will not have been achieved. As stated in
Maharaj and others v Rampersad 1964 (4) SA 638 (A) at
646E:
“
In
deciding whether there has been a compliance with the injunction the
object sought to be achieved by the injunction and the question
of
whether this object has been achieved is of importance.”
The
language and purpose of
section
64(1) (b)
require that a specific time for the commencement of
the proposed strike be set out in the written notice. The legislature
was
anxious that attention be paid to the “commencement”
of the strike. The use of an exact time expressed in hours as a
minimum of the notice to be given seems to indicate that the longer
period envisaged by the phrase
“
at
least
”
should
also be expressed in an exact manner. The manner in which the time of
the commencement of the strike is expressed may, however,
differ
depending on the nature of the employer’s business. Strikes can
occur which involve the whole workforce and others
which merely
involve one or more shifts. In a shift system notice of the exact
time of the proposed strike in respect of particular
shifts may be
necessary.”
The decision in
Ceramic Industries was confirmed by the Labour Appeal Court in
Fidelity Guards Holdings (Pty) v PTWU & others
[1997] 9 BLLR 1125
(LAC).
In their answering
affidavit the respondents say that the strike would take place at
Kazerne depot only. They do not dispute that
the notice is silent
about whether or not the strike would be confined to Kazerne only.
As stated earlier it is common cause
that the applicant had several
depots across the country.
I agree with the
applicant that the terms of the proposed strike must be determined
by reference to the content of the strike
notice, and accordingly
failure to indicate the place of the contemplated strike has
resulted in the applicant being unable to
make informed contingency
plans for the strike. The fact that the applicant could infer from
the facts and the circumstances
of what had happened after the
conclusion of the variation agreement does not in my view remedy the
defect in the strike notice.
The facts and
circumstances of the present case indicate very clearly that it was
essential for the respondents to indicate in
their notice whether or
not the strike was to take place in the whole area of operation of
the applicant or would be confined
only to Karzene depot. Failure by
the respondents to indicate in clear terms as to whether the strike
action would be confined
to Karzene means that the applicant was not
given a proper warning and thus the object section 64(1) (b) was
defeated.
The second point raised
by the applicant as to why the planned industrial action by the
respondents should be regarded as unlawful
and unprotected is that
since issuing the shift roster for the period 18 August 2010 it
never received any unhappiness about
that change from the
respondents.
It was further submitted
on behalf of the applicants that the dispute could not have arisen
on the 23
rd
August 2010 because the roster for August,
September was issued on August 2010 and not the 23
rd
August 2010.
The applicant further
argued that even if it had failed to consult in changing the shift
roster that would not have amounted to
a change in the terms and
conditions of employment. In support of this contention the
applicant says that the employees were
shifted based in terms of
their employment contract and the variation agreement.
In my view the right to
strike of the respondents in the circumstances of this case turns
around the reading of clauses 32 and
33 of the variation agreement
read with section 23 of the LRA. Clause 32 (1) of the variation
agreement reads as follows:
“
This agreement supersedes
all other agreements regarding Service Conditions and aspects
contained herein and which was concluded
prior to the signing of this
agreement.
And clause 33 (1) reads
as follows:
“
Any dispute regarding the
interpretation or application of the clauses as obtained in this
agreement, will be dealt with under the
dispute resolution mechanism
of the Transnet Bargaining Council.”
It has not been disputed
that the variation agreement constitutes a collective agreement
which is binding on the parties. In terms
of section 23 of the LRA,
a collective agreement binds for the whole period of the collective
agreement. The section provides
further under subsection (3) that a
collective agreement varies any contract of employment between an
employee and employer who
are both bound by the collective
agreement.
The limitation to the
right to strike is provided for under the provisions of section
65(3) (a) (i) of the LRA, which provides
that 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 that person is bound by any
arbitration award or collective agreement that regulates the issue
in dispute.
The above in my view
indicates that the issues over which the respondents are seeking to
strike upon are covered by a collective
agreement that is in
operation and binding on all the parties. It is for this reason that
I agree with the applicant that the
intended strike action by the
respondent is unlawful and should be prohibited.
The contention of the
respondents that the practice at Kazerne of always obtaining the
consent of the shop stewards before changing
the shift roster is a
matter as I understand it to do more with the interpretation and the
application of the variation agreement.
In this respect the issue
is, it would seem to me, whether or not the silence of the variation
agreement with regard to the practice
at Kazerne, means that
practice is still in place and binding on the parties. It may well
be that the suggestion that the silence
of the variation agreement
about practice means that the collective agreement did not change
the practice relied upon by the
applicant in seeking to interdict
the strike action. However, the meaning and the implication of the
silence of the variation
agreement with regard to the practice at
Kazerne can only, in my view, be determined in the interpretation
and application of
that collective agreement. It is trite that the
interpretation and application of collective agreements does not
rest with the
province of this court but rather with that of the
bargaining council or the CCMA as the case may be.
In my view the
respondents are not on the proper reading of section 65(3) ( a) (i)
of the LRA entitled to embark on a strike action
because the issue
upon which they intend striking about is governed by a collective
agreement which is in place and is enforceable
between the parties.
If their assertion is that the variation agreement does not have an
impact on the practice at Kazerne, then,
in my view, what they are
asserting is the interpretation and application of a collective
agreement which can be resolved by
means of an arbitration award as
envisaged in the same section and therefore the law has taken their
right to strike away on
that basis.
The demand for the
removal/ discipline of the area manager
The demand in relation
to the removal or discipline of the manager is formulated in the
referral form as follows:
“
DISCIPLINE THE
MANAGER OR REMOVE HIM (FROM) WORKING WITH OUR MEMBERS.”
In general, the law
requires an employer to act fairly towards its employees. Before
instituting a disciplinary hearing it is
necessary for the employer
to conduct some preliminary enquiry on the allegations that may have
been made against the employees.
Conducting a disciplinary enquiry
when there is no basis for it has a detrimental impact on the
employee’s integrity, dignity,
job security and career
development. It is therefore important for the union to state the
basis upon which their demand that
the manager should be disciplined
is based upon. A demand for the removal of an employee unaccompanied
by substantiation of the
allegations upon which disciplinary action
is demanded should take place amounts to saying that the employer
must convene a disciplinary
action for the sake of it and dismiss an
employee for no reasons or for that matter dismiss the employee
without him or her knowing
and having the opportunity to defend
himself or self against whatever the allegations may be. This
clearly is a demand that an
employer does something that our law
prohibits and therefore it is by definition unlawful.
The above point is
supported by what was said by the Supreme Court of Appeal in the case
of
Ntshangase v MEC for Finnance: KWAZULU-NATAL & Another
(2009) 30 ILJ 2653 (SCA) whose facts are of course different to those
of the present case in that in that case the court was dealing
with
the issue of whether the decision of the disciplinary hearing was
reviewable by the court. The observation which is apposite
the
present matter is made by the court at paragraph [18] of the judgment
where the following is stated:
“
[18]
Undoubtedly the
second respondent (the employer) has an interest in ensuring that
fair labour practices are upheld in its employment
relationships. The
same holds true for its employees. All actions and/or decisions taken
pursuant to the employment relationship
between the second respondent
and its employees must be fair and must account for all the relevant
facts put before the presiding
officer . . .”.
In the present instance
the respondents were seeking to have the applicant to convene a
disciplinary enquiry against the manager
and to appear before a
chairperson of such a disciplinary hearing without having facts upon
which it could rely on in making accusations
of incompetence against
the manager.
The applicant in the
founding affidavit says that there is no allegation that the area
manager has committed misconduct for which
he should be disciplined.
The respondents in their answering affidavit fail to state the
details of and the substance of the
allegations against the manager.
All that the respondents say is that they deny the contents of what
is said by the applicant
and put it to prove thereof. They further
say:
“
On the meeting of 2
nd
September 2010 and on previous meeting, the problems including the
management style of the Area Manager and the fact that the Area
Manager is not compatible with the work force in the Kazerne.”
As indicated above the
respondents have put forward a bare denial in almost all of the
allegations made by the applicant. They
do not deal with the
fundamental aspects of their case which is that they had never
lodged a grievance against the area manager
and that they had not
set out what the nature of the problems they had with the manager.
In my view, regard being had to the
possible and serious
consequences that may follow out of a disciplinary action they
needed to say more than simply saying that
the problem they had with
the manager was his style of management. The essence of the
applicants’ demand in the manner
it is formulated require the
applicant to act contrary the provisions of section 23 of the
Constitution.
In answering to the
averment of the applicant at paragraph 40 of the founding affidavit,
that the demand does not require the
applicant to comply with fair
procedures in dealing with the manager the respondents at paragraph
63 of the answering affidavit
again make a bare denial and put the
applicant to prove thereof.
In light of the above
discussion I am of the view that the applicant has made out a case
that on the facts and the circumstances
of the matter it ought not
to be faced with a strike action by the first respondent and its
members. I do not however believe,
taking into account the
relationship between the parties that it would be appropriate to
allow the costs to follow the results.
In the premises the
following order is made:
The interim order
made on the 22
nd
November 2010 declaring the planned
strike action of the respondents to be unlawful and unprotected
in terms of section
64 (1) (a) and (b) read with
section 65
(3)
(a) (i) and (c) of the
Labour Relations Act 6 of 1995
, is
confirmed.
There is no order as
to costs.
Molahlehi J
Judge of the Labour Court
of South Africa
Date of Hearing: 09
February 2011
Date of judgment: 20
April 2011
Representation
For the applicant: Mr P
Maserumule of Maserumule Inc.
For the respondent: Mr X
Ngako of Ruth Edmonds Attorneys.
11