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[2011] ZALCJHB 230
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Pride Milling Company (Pty) Ltd v FGWU and Others (J 469/11) [2011] ZALCJHB 230 (4 August 2011)
1
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case No.: J 469/11
In the matter between:
PRIDE MILLING COMPANY (PTY) LTD
....................................
Applicant
and
FGWU
........................................................................................
1
ST
Respondent
THOSE EMPLOYEED IDENTIFIED
......................
2
ND
–
21
ST
Respondent
IN ANNEXURE “A” OF THE
SUBSTANTIVE APPLICATION
JUDGMENT
CAWE AJ:
Introduction
[1] The matter first served on an urgent basis, before
Acting Judge Shai on the 18
th
March 2011. He made an
interim order that the First and Second Respondents are interdicted
from proceeding with industrial action
in terms of the certificate of
outcome issued by the CCMA under case number MP1257 – 11
pending the finalisation of the review
application under case number
JR570 – 2011.
[2] On the return date Judge Bhoola extended the Rule,
by consent of the parties, to the date that the matter served before
me.
[3] At the beginning of the proceedings the Applicant’s
counsel, Ms Loise Charoux, asked for the Rule to be confirmed.
[4] The Respondents’ representative, Mr Ben
Mtshali, opposed this request citing the fact that the Respondents
want to embark
on strike action pursuant to a valid certificate of
non resolution that was issued by the CCMA.
Background facts
[5] At the heart of the dispute between the parties is
what is alleged by the Respondents as a unilateral charge of
employment conditions
by the Applicant. The conditions that the
Respondents regard as an issue relate to tea and lunch breaks that
have allegedly been
changed by the employer .i.e. the Applicant.
[6] The Applicant operates a business in the agriculture
industry.
[7] The First and Second to Further Respondents referred
a “unilateral change to terms and conditions of employment”
to the CCMA on 16 February 2011. The alleged complaint that the First
and Second to Further Respondents had was that the Applicant
had
unilaterally changed the tea breaks and lunch breaks without
consulting the union on such change.
[8] On 16 March 2011 the matter was set down before
Commissioner Simon Malaza for a conciliation meeting. The
Commissioner issued
a certificate of outcome identifying the dispute
as a “unilateral change to terms and conditions of employment
section 64(4).”
[9] On the same date that the certificate was issued the
Respondents issued the Applicant with a strike notice that indicated
that
they would embark on what they called a protected strike on the
19
th
March 2011.
[10] On 17 March 2011 the Applicant’s attorney of
record sent a letter to the First Respondent and advised the First
Respondent
that the Applicant will file a review in respect of the
certificate of outcome issued by Commissioner Malaza on 16 March
2011.
The Applicant’s attorney of record also advised the First
Respondent of the Applicant’s intention to proceed with an
urgent application on 18 March 2011 to prevent the industrial action
on 19 March 2011.
[11] The application was heard by Acting Judge Shai on
the 18 March 2011. He issued the Order that appears at the beginning
of the
present judgment (paragraph 1, lines 2-6).
[12] In the urgent application before Acting Judge Shai
the Applicant sets out the grounds of review as follows:
The Commissioner failed to deal with the Applicant’s
jurisdictional challenges;
the certificate of outcome is irregular;
there was no unilateral change to the employees’ conditions
of Employment
The Applicant consulted with the Second to Further Respondents and
agreed to the conditions as set out in Annexures “F”,
“G”, “H” regarding meal intervals.
The application for review is being finalized under case number
JR570-2011.
[13] The Applicant persists on the grounds that are set
out above and requests, on the basis thereof, the Court to stop the
Respondents
from going ahead with the threatened industrial action.
[14] After the CCMA conciliation the Commissioner issued
a section 64(4) certificate. The Applicant submits that First
Respondent
lodged a dispute regarding alleged unilateral changes to
the conditions of employment in bad faith as there is no obligation
on
the Applicant to inform the First Respondent regarding the meal
intervals of the Second and Further Respondents.
[15] The Applicant further denies that there is a
collective agreement between the parties as it had cancelled the
agreement when
it was allegedly breached by the Respondents. This is
not disputed by the Respondents. They have taken the matter to Court
to have
it reversed.
[16] The Respondent’s reaction, to the Applicant’s
submission that it need not consult with the Union before changing
the employees mealtimes, is that the employer should prove that it
had reached an agreement with the employees before the implementation
of such change.
[17] On the Respondent’s referral form the issue
is clearly indicated in paragraph 3 as:
“
The Respondent (Applicant
in the instant matter) unilaterally changed the tea breaks and lunch
breaks without consulting the union
on such changes.”
[18] To the extent that the referral form indicates that
the matter before the CCMA was a section 64(4) application, I fail to
understand
the basis on which the Applicant contends that the
certificate of outcome was irregularly issued as a ground of review
that it
relies on to have the industrial action by the Respondents
stayed.
[19] Applicant’s counsel submitted that the
Commissioner ought to have made a Ruling before issuing the outcome
certificate
in terms of Section 135 of the Labour Relations Act.
Nothing in the present application or that before the CCMA suggests
that a
Ruling should have been made before the certificate was
issued. I agree with the Respondents’ representative that the
certificate
is regular and complies with the proper procedures and
processes of the Labour Relations Act on the issuing of the
certificate
of outcome after conciliation.
[20] The proceedings at which the Applicant raised a
point in limine was case number 8066-10. An outcome report was issued
after
the conclusion of that matter which had nothing to do with the
lunch and tea breaks. The matter was referred in terms of section
64(2) of the LRA. The Commissioner made a Ruling that the matter
remained unresolved and an advisory award should be made in terms
of
Section 135(3) of the LRA. That was duly done by Commissioner Simon
Malaza on the 8
th
February 2011.
[21] Commissioner Malaza conciliated the matter that has
led to the present proceedings before Court. The matter under case
number
MP 8066/10 had nothing to do with the Second to Further
Respondents in the instant matter. It was a refusal to bargain issue
between
the Applicant about a negotiating forum. None of the
Respondents, other than the Union, in the instant matter are cited in
the
MP 8066/10 referral to the CCMA.
[22] The instant dispute between the Applicant and the
Respondent is in terms of Section 64(4). The Applicant misdirects
itself
in its contention that here should be a Ruling before a
certificate can be issued by the CCMA. There is no provision for this
in
the CCMA Rules.
[23] The Second and Further Respondents have the right
to refer a dispute to the CCMA. This is not dependant on Union
membership.
They cannot be prejudiced by the dispute over the
cancelled agreement between the Applicant and the Union. If the Union
is left
out of the picture the Second and Further Applicants would
still have a dispute with the Applicant. The submission by the
Applicant
about not unilaterally changing tea and lunch breaks is not
convincing in view of the Confirmatory affidavits disposed to by some
of the Applicants in support of the First Respondent’s Replying
Affidavit.
[24] The Second and Further Respondents derive their
rights from the LRA and section 23 of the Constitution. Section 23(1)
and (2)
provide that:
(1) Everyone has the right to fair labour practices.
(2) Every worker has the right –
to form and join a trade union;
to participate in the activities and programmes of a trade union;
and
to strike
[25] Subsection (2)(c) provides that every worker has
the right to strike. This cannot be interpreted, as Applicant seems
to suggest,
to mean that workers can only strike if they are members
of a Union in order to strike. The Labour Relations Act does not
exclude
strike action by workers who are not unionised.
[26] Section 64(1)(a)(i) of the LRA also confers the
right to strike upon every worker as it provides:
(1) Every employee has the right to strike and every employee has
recourse to lock-out if -
(a) the issue in dispute has been referred to a council or to the
Commission as required by this Act, and –
(i) a certificate stating that the dispute remains unresolved has
been issued;
[27] The question arises then that should strike action
follow the issue of the certificate of non resolution by the
Commissioner
in the case before this Court. A reading of the
Respondents Notice of Motion seeking the dismissal of the order
issued by Acting
Justice Shai shows that the Respondents are not
agitating for a strike at all costs. Paragraph 5 of the Notice of
Motion referred
to above suggests alternative relief by the
Respondents.
[28] Paragraphs 5.1 and 5.2 are especially pertinent in
this regard. They read as follows:
5. Alternatively, the above Honourable Court grant relief to the
Respondents and order the Applicant in the following terms:
The restoration of the lunch and tea breaks to where they were
before the unilateral change occurred.
The Respondents are paid for the lost time due to this unilateral
change of lunch and tea breaks, calculated at the number
of days
and hours from the date of the implementation until the date of the
order of this Honourable Court.
[29] The purpose of the referral was to have the lunch
and tea breaks restored to their original times and duration by the
Applicant.
My view is that if that can be achieved without the
employees going on strike then it is worth the parties’ while
to grant
the alternative order.
[30] As the matter was brought on an urgent basis by the
Applicant before Acting Judge Shai I am called upon to either dismiss
or
confirm the Rule Nisi issued on the 18
th
March 2011.
The order that would deal with the situation effectively would be to
discharge the Rule Nisi and order the Applicant
to implement the
provisions of paragraph 5.1 and 5.2, with some amendment, of the
Respondents Notice of Motion.
[31] The costs were reserved by Judge Bhoola when she
extended the Rule Nisi. As I have decided to make an order in terms
of paragraph
5.2 of the Respondents’ Notice of Motion I hold
the view that there is sufficient punishment for the Applicant as the
losing
party in the matter. I will therefore not award costs against
the Applicant.
[32] In the premises I make the following order:
1. The Rule Nisi is discharged.
2. The Respondent is to restore the lunch and tea breaks
of the
Second and Further Respondents to where they were before
the change thereto.
3. The Applicant is to pay the Second and Further
Respondents for time lost due to the unilateral change of lunch and
tea breaks,
calculated on the number of days and hours from the date
of implementation of the change to the date the 30
th
June
2011.
4. I make no order as to costs.
___________________________
CAWE AJ
Acting Judge of the Labour Court
Appearances:
For the Applicant: Advocate L Charoux instructed by
Yusuf Nagdee Attorneys
For the Respondents: Ben Mtshali, a union FGWU official
Date of hearing: 26 May 2011
Date of Judgment: 04 August 2011