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[2011] ZALCJHB 218
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SAMWU v JMS Meter Reading (Pty) Ltd (J 909/11) [2011] ZALCJHB 218 (31 May 2011)
PATHER
AJ
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Not
Reportable
Case
No: J 909.11
In
the matter between:
SAMWU
...............................................................................................................
Applicant
and
JMS
METER READING (Pty) Ltd
...................................................................
Respondent
Date
of hearing: 27 May 2011
Date
of Judgment: 31 May 2011
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
PATHER
A.J.
Introduction
This
is an application which was heard on 27 May 2011.
The
applicant sought the following urgent relief:
“
2
Declaring that the deductions made from the applicant’s
members’ (listed in annexure VM1) salaries paid on 25 May
2011
were unlawful;
Directing the respondent to pay
the applicant’s members’ the amounts unlawfully deducted
from their salaries within
24 hours of receipt of the order;
Directing the respondent to pay
the costs of the application.”
Background
The
applicant’s members are in dispute with the respondent
concerning wages and others matters of mutual interest. Following
an
unsuccessful attempt at conciliation before the CCMA, a Certificate
of Outcome was issued, and the applicant issued a strike
notice on
23 May 2011. According to the strike notice, “Due to
unresolved conciliation of mutual interest dispute held
at CCMA on
17 May 2011 the Union hereby give a formal notice that our members
will embark on indefinite strike starting from
the morning of 26
th
of May 2011”. Later on in the day, the respondent’s
general manager, Mr N Saloojee (Saloojee) informed the applicant’s
shop stewards, among other matters, that the striking employees
would not be paid for the time that they did not work. Saloojee’s
earlier memorandum sent to the applicant’s members on 10 May
2011 stated the following: “In terms of Company Policy
employees on strike will not be remunerated” and further on,
“You are reminded of the Company’s policy of “no
work no pay”. This will apply during the period of the strike
action.”
The
respondent further addressed a letter to the applicant in which it
was stated that all members would be paid on 25 May 2011,
but that
payment for the days from 26 May 2011 onwards would not be included
as the respondent had been advised that members
would be on strike
from then onwards. In terms of its letter dated 25 May 2011
addressed to Mr Esauw Mbhele, chairperson of the
applicant’s
Johannesburg branch, the respondent set out the procedures in terms
of which employees’ salaries are
paid. The respondent pointed
out that:
All
monthly payments are calculated from the 1
st
of a
calendar month to the last day of a calendar month; as an example,
30
th
or 31
st
day of a month;
Remuneration
due is paid by electronic transfer of funds (EFT) to employees’
chosen account on the nearest working day to
the 25
th
day
of a month or on the 25
th
day itself, if that is a
working day; and
This
had been the practice for over 30 years, and employees are advised
of this at the interview stage and during induction.
In
accordance with the procedures outlined above, all employees were
paid on 25 May 2011. However the applicant’s members
were not
paid for the period 26 May 2011 to 31 May 2011. The respondent had
deducted from the applicant’s members’
salaries, payment
for those days commencing 26 May 2011, being the day it had been
notified the strike would commence until the
last day of the month
of May 2011. While conceding that the respondent is entitled to
apply the “no work no pay”
rule, the applicant contends
that it is not entitled to unilaterally decide that the strike would
continue until “30 May”
and therefore make deductions
from the salaries according to that assumption. According to the
applicant, the deduction from
the salaries of striking employees for
time not spent at work are to be made from their salaries for the
following month on 25
June 2011. The deductions made for May 2011,
according to the applicant, demonstrate victimisation of striking
employees as no
deductions were made from the salaries of
non-members, that is, those employees who were not on strike. In
this regard, the respondent
submits that the deductions arise
precisely because of the stated intention of the applicant’s
members to embark on the
strike, and that all non-striking employees
are consequently not affected by such deduction.
The
respondent denies that its action is designed to victimise or harass
striking workers and contends that there is no obligation
upon it to
pay salaries when such salaries are not due. In this regard, the
respondent refers to an extract of what appears to
be its standard
contract of employment, which, under the subheading “ABSENCE
FROM WORK”, again states its policy
of not paying employees
for time not spent at work.
Urgency
It
was submitted that this matter be heard and determined without delay
in order to prevent the respondent’s undermining
the strike.
It was submitted further that an application in the ordinary course
to recover “the unlawful deductions”
would be of little
value once the strike is over.
Evaluation
Mr
Maddern on behalf of the respondent argued that contrary to the
applicant’s submission, the deductions were not unlawful.
In
this regard, he referred to section 67 (3) of the Labour Relations
Act, (“the Act”),
1
,
which provides
inter
alia
,
that an employer is not obliged to remunerate an employee for work
not rendered during a protected strike. Furthermore, he argued,
this
legal position accords with the respondent’s policy as set out
in its standard contracts of employment. Arguing further
that the
legal position is trite, Mr Maddern submitted that the power play in
terms of strikes must be allowed. In regard to
the applicant’s
contention that the respondent sought to undermine the strike by
withholding remuneration of striking employees,
Mr Maddern pointed
out that the respondent did not offer non-striking employees any
more than being remunerated for the days
that they worked; the
policy of “no work no pay” applied to all employees. In
this regard, if the striking employees
returned to work before the
end of May 2011, the respondent would be obliged to effect payment
for those days on which their
services were tendered.
Mr
Daniels responded that the respondent’s policy was being
applied inconsistently in that if a non-union member did not
come to
work on 31 May 2011, she/he would still have been paid on 25 May
2011. I asked Mr Daniels whether the situation he referred
to
entailed a non-union member’s having given notice that she/he
would not be at work on 31 May 2011. He responded that
he was
referring to a situation in which such employee for example, becomes
sick on such a date and is therefore prevented from
tendering
her/his service. This exchange in my view takes care of the
applicant’s argument that striking employees, and
since they
all are members of the applicant, therefore, union members, are
being treated differently simply by virtue of the
strike; that the
respondent’s act of deducting payment of salaries for the days
not work during the strike, amounts to
an attempt to undermine the
strike. The fact is that the applicant signalled to the respondent
in clear and unequivocal terms
that the strike would commence on 26
May 2001 and would continue indefinitely. In terms of its policy as
outlined above and the
rights conferred on it in the Act, the
respondent was entitled to deduct that portion of the applicant’s
members’
remuneration for the days that they had indicated
they would not tender their services. It is trite that an employer’s
obligation to pay remuneration is reciprocal to an employee’s
obligation to render service. However, if the respondent had
gone
further and made deductions from the salaries of monies owing to the
striking employees for periods beyond 31 May 2011,
only then can it
be claimed that the respondent’s conduct may be unlawful, and
based on its unilateral assumption. No deductions
have been made
from the salaries of non-striking employees precisely because unlike
striking employees, they have not indicated
that they would not be
tendering their services. If, for whatever reason, a non-striking
employee does not attend work on 31
May 2011, it is true; such
employee has already been paid in advance on 25 May for that day. In
such a case, the respondent would
later have to consider the
circumstances surrounding that employee’s absence and
determine whether a proportionate deduction
will have to be made
from her/his salary in June 2011, in view of the fact that such
employee was already paid in advance. Where
however, an employee
either from the ranks of union members or non-union members, has
indicated a clear and unambiguous intention
not to be at work on any
day or days after the 25
th
of a month but before payment
of salaries on that 25
th
or the closest working day
after, then in that case, the respondent will be entitled to make
the proportionate deductions for
that part of the month up to and
including the last day of that month. If the strike continues beyond
31 May 2011, the respondent
will have to attend to the further
application of its policy relating to absence from work on or before
25 June 2011.
Mr
Daniels referred the court to the cases
of
National Union of Mineworkers v Namakwa Sands – A Division of
Anglo Operations Ltd
2
,
and
FAWU
and Others v Pets Products (Pty) Ltd
3
neither
of which are applicable in view of the finding that the respondent,
by making deductions from the salaries of striking
employees, is not
acting unlawfully.
Did
the facts of the case warrant an urgent application? In the ordinary
course, financial hardship and loss of income are sadly,
a
consequence of strike action generally, and particularly, in terms
of the respondent’s contract of employment relating
to absence
from work for “work stay-aways, stoppages, go slows, sit or
sleep-ins and strikes” (paragraph 16, exhibit
“D”
of the opposing affidavit). The applicant has not shown why its
allegation of unlawful deduction from members’
salaries could
not have been referred to the Department of Labour who, under the
Basic Conditions of Employment Act
4
is
tasked with its monitoring and enforcement. . In the circumstances,
the applicant has not set out a case for urgent relief
to be granted
to it.
In
view of the continuing strike, and power play, which Mr Maddern
correctly submitted must be allowed to play itself out, I am
reluctant to tip the scales by awarding a costs order against one
party in this early stage of the dispute.
In
the premises, the following order is made:
The
application is dismissed.
___________________
PATHER
AJ
Date of Hearing : 27 May 2011
Date of Judgment: 31 May 2011.
Appearances
For the Applicant : R. Daniels from Cheadle Thompson &
Haysom Attorneys
For the Respondent: R. Maddern from Wright, Rose-Innes
Inc
1
66
of 1995.
2
(2008)
29 ILJ 698 (LC).
3
2000
(21) ILJ 1100 (LC).
4
75
of 1975.
7