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[2011] ZALCJHB 228
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South African Aviation and Allied Workers Union v Airport Company of South Africa (Pty) Ltd and Another (J1064/11) [2011] ZALCJHB 228 (3 August 2011)
VAN NIEKERK J
Not reportable
Of interest to other judges
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J1064/11
In the matter between:
SOUTH AFRICAN AVIATION AND ALLIED WORKERS UNION
......................
Applicant
and
AIRPORT
COMPANY OF SOUTH AFRICA
(PTY)
LIMITED
.......................................................................................
First
Respondent
NATIONAL
EDUCATION, HEALTH AND
ALLIED
WORKERS UNION
.............................................................
Second
Respondent
Date of
hearing: 3 August 2011
Date of
judgment: 3 August 2011
_____________________________________________________________
JUDGMENT
_____________________________________________________________
VAN NIEKERK, J
:
This is an urgent application brought this morning in terms of which
the applicant, the South African Aviation and Allied Workers
Union,
seeks the following relief:
"That a
rule nisi
be
issued calling on the response to show cause why:
2.1 The first and second
respondents should not be interdicted and restrained from commencing
with the intended negotiations from
3 August 2011 pending proper
verification of Applicant's membership of the First Respondent."
2. The application must be viewed in its context. There is a dispute
between the applicant and the first respondent in relation
to the
verification of the membership of the applicant’s members
employed by the first respondent. That dispute has its roots
in a
settlement agreement concluded under the auspices of the Commission
for Conciliation Mediation and Arbitration (the CCMA)
on 3 May 2011.
3. In terms of that agreement, the applicant and the first respondent
agreed that the applicant would submit what is referred to
as
‘joining forms and resignations’ to the first respondent
by 5 May 2011; that the first respondent would then conduct
a
verification exercise in respect of both the joining forms and the
resignations by no later than 13 May; and finally, that the
parties
would meet before 20 May 2011.
4. The applicant contends that the first respondent is in breach of
the agreement. However, the applicant's case goes somewhat
further.
As I understand them, the applicant's contentions are that should a
proper verification exercise be done, it will be found
that the
applicant represents 50% plus 1 of the respondent's employees.
5. The applicant then makes a curious leap of logic to contend that
it on this basis, it is entitled to bargain with the first
respondent
on the basis that the collective agreement between the first and
second respondents provides that the second respondent,
having met a
threshold of 50%+1, is the sole bargaining agent of employees in the
bargaining unit.
6. In short, the applicant’s claim appears to be that the
second respondent is no longer a representative of the first
respondent's
employees and that given the 50% plus 1 threshold
established by the recognition agreement between the first and second
respondents,
the applicant is entitled, on an urgent basis, to be
substituted as the bargaining representative of the first
respondent's employees.
7. I deal first with the question of urgency. The averments in the
founding affidavit in regard to urgency rest entirely on the
contention that wage negotiations between the respondent are to be
conducted on 3, 4 and 5 August, and that the applicant would
be
irremediably prejudiced should those negotiations continue.
8. This the fact of a pending wage negotiation is denied. The
deponents to the answering affidavits filed on behalf of the
respondents
state that no negotiations have been scheduled for the
period referred to and that the meeting which is to take place today,
which
the applicant contends is a wage negotiation is a internal
meeting of the second respondent’s officials.
9. The denial of any wage negotiation commencing later today has not
been contested. The applicant has failed to file a replying
affidavit, and the court is accordingly bound to find that as a
matter of fact, there is no meeting scheduled between the first
and
second respondents for today and that the meeting is an internal
NEHAWU meeting of the respondent.
10. The applicant's representative, during his reply, handed up a
copy of an email in terms of which members of what is referred
to as
the NBC, are to be released from work in order to attend a meeting
scheduled for 3 to 5 August 2011. That may be so, but
there is
nothing in the document handed up to the court to indicate, or to
call into question, the version deposed to by the deponents
to both
answering affidavits, i.e. that the meeting is an internal function
and has nothing to do with the collective bargaining
process.
11. That being so, the basis of any urgency disappears and the matter
therefore falls to be removed from the roll on the basis
that it is
not urgent. In any event, in my view, the applicant has failed to
establish that it is entitled to the relief that it
seeks. It is
trite that in proceedings such as this, the applicant must make out a
proper factual and legal basis and show
inter alia
that it has
a
prima facie
right, though open to some doubt that it is a
well grounded apprehension that it may suffer irreparable harm if
interim relief
is not granted and that the balance of convenience
favours the granting of an interim interdict and that it has no other
satisfactory
remedy.
12. I deal first with the question of a
prima facie
right. The
applicant, as I have indicated, appears to through the agency of
these proceedings, seek bargaining rights with the
first respondent.
It is trite that in terms of the Labour Relations Act, there is no
enforceable duty to bargain. The Act adopts
a system that is
sometimes referred to voluntarism. Inn
National Police Service
Union and Others v National Negotiating Forum and Others
,
1
the Court said:
"The LRA adopts an
unashamedly voluntarist approach, it does not prescribe to parties
who they should bargain with, what they
should bargain about or
whether they should bargain at all. In this regime the courts have
now right to intervene and influence
collectively bargained outcomes.
Those outcomes must depend on the relative power of each party to the
bargaining process. That
power is underpinned by the organisational
rights conferred by Part A of Chapter III of the Act and the right to
collective actions
conferred by Chapter V."
13. Although that matter concerned the withdrawal of recognition of a
union that was party to a bargaining forum, the principle
remains
valid. Effectively, what the applicant seeks from this Court is an
order declaring the applicant to be the bargaining representative
of
the respondent's employees. There can be no other reason for the
relief that is sought, i.e. to interdict and restrain the first
respondent from commencing wage negotiations with the second
respondent..
14. For the reasons given above, in the absence of any statutory
right to bargain and in the absence of any agreement by the first
respondent to bargain collectively with the applicant, there is no
prima facie
right, in fact there is no right at all which can
legitimately found in this application.
15. Further, in regard to the availability of alternative remedies,
to the extent that the applicant seeks to have this court conduct
a
verification exercise, that is not the function of this court.
Section 21 makes it clear that disputes of that nature are to
be
dealt with by the CCMA.
16. If it is the applicant's case – and this not entirely
clear from the papers before me -- that the respondent is
in breach
of the settlement agreement concluded between the parties on 3 May
2011, that is a matter that must be dealt with in
terms of section 24
by an arbitrator if necessary.
17. In short, for the reasons that I have outlined, the application
is not urgent, and even if it is, the applicant has manifestly
failed
to establish any right to interim relief. The application accordingly
falls to be dismissed.
18. With regard to costs, Mr Wilken, who appeared on behalf of the
first respondent, submitted that the application was frivolous
and
that a punitive order for costs was warranted. Section 162 of the LRA
confers a broad discretion on the court to make orders
as to costs,
according to the requirements of the law and fairness. I take into
account that those representing the applicant are
union officials and
not necessarily legally trained, that however does not exculpate them
entirely from their ineptitude. The fact
remains that the respondents
have brought to this court by the applicant on short notice - these
papers were filed yesterday afternoon
- to face a case which has no
foundation whatever. In those circumstances, it seems to me that
neither respondent should be denied
its costs and that it is
appropriate that an order for costs should be made on the ordinary
scale.
19. I therefore make the following order:
1. The application is removed from the roll for lack of urgency.
2. The applicant is to pay the costs of these proceedings.
___________________________
VAN NIEKERK J
Appearances:
For the applicant : Union Official
For the first respondent : Mr St E Wilken, Tabacks Attorneys
For the second respondent: Ms S Gaibie, Cheadle Thompson and Haysom
Inc.
1
(1999)
20 ILJ 1081 (LC) at para 52.
7