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[2011] ZALCJHB 241
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Exxaro Resources Ltd and Others v National Union of Mineworkers and Others (J 1018/11) [2011] ZALCJHB 241 (19 October 2011)
Not Reportable
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case Number: J 1018/11
In the matter between:
EXXARO RESOURCES LTD
.........................................................................
First
Applicant
EXXARO COAL MPUMALANGA (PTY) LTD
............................................
Second
Applicant
EXXARO COAL (PTY) LTD
..........................................................................
Third
Applicant
EXXARO REDUCTANTS (PTY) LTD
.........................................................
Fourth
Applicant
EXXARO SANDS (PTY) LTD
.........................................................................
Fifth
Applicant
EXXARO TSA SANDS (PTY) LTD
................................................................
Sixth
Applicant
FERROALLOYS (PTY) LTD
.....................................................................
Seventh
Applicant
and
NATIONAL UNION OF
MINEWORKERS
..................................................
First
R
espondent
SOLIDARITY
........................................................................................
Second
Respondent
PERSONS ON ANNEXURE “A” TO
“M”
....................................
Third/Further
Respondents
Date of Hearing: 29 September 2011
Date of Judgment: 19 October 2011
JUDGMENT
MOSHOANA AJ
Headnotes:
Application for
interdicting a strike-return day, confirmation of the rule.
Introduction
[1] On 10 June 2011, Acting Justice
Cawe issued a
rule nisi
returnable on 1 July 2011. Justice
Francis struck the matter from the roll due to non pagination of the
Court file on the return
day. On 26 August 2011, Justice Lagrange
extended the rule to 29 September 2011. On this day, the matter was
fully argued. The
Court reserved its judgment. This matter turns on a
very narrow issue of whether the issue in dispute forming the subject
matter
of the proposed strike is one that the First Respondent can
refer to either this Court or Arbitration within the contemplation of
Section 65 (1) (c) of the Labour Relations Act (LRA)?
1
The factual inquiry is limited to what
the true and real issue in dispute is? The Applicants contend that
the real and true dispute
is one that the First Respondent can refer
to this Court therefore not strikeable. The First Respondent contends
that the true
and real dispute is not one that this Court can
adjudicate upon therefore strikeable. Second Respondent and its
members are not
opposing the order. Only the First Respondent and its
members are opposing the confirmation of the rule.
Background facts
[2] The Applicants have embarked on a
restructure project named the “Siyaya Project”, with a
view to improving productivity
and reducing costs. If and when
implemented, certain jobs will disappear, certain jobs will diminish
and new jobs will be created.
It was clear that the restructure will
cause some redundancies, however it was also unclear whether
retrenchments will follow.
Nonetheless on 2 November 2010, the
Applicants issued a Section 189 (3) notice. Since then consultations
ensued. A Facilitator
was appointed to assist the consulting parties.
Various consultative meetings were held with the assistance of the
Facilitator.
The last consultative meeting was held on 6 May 2011. It
was in this meeting that the First and Second Respondents made
allegations
that the consultative process was flawed and not
meaningful.
[3] On 6 May 2011, the First
Respondent referred a dispute to the CCMA. It characterised the
dispute as follows: “Employer
has decided to implement
solutions leading to retrenchments without a proper consultations
with organised labour”. The desired
outcome was the following:
“The employer not to implement the solutions until proper
consensus-seeking consultation has been
finalised”. The Second
Respondent also referred a similarly worded dispute. The disputes
could not be resolved by the CCMA.
[4] On 8 June 2011, the First
Respondent served a strike notice with an intention to commence
action on 13 June 2011. Owing to the
rule issued on 10 June 2011, the
strike action could not commence. On 7 June 2011, the Applicants had
issued a note wherein the
employees were advised of agreements
reached on 6 May 2011and the process to unfold. On the same day, the
First respondent responded
to the note and amongst others recorded
the following: “We will, as we have always done, ensure that we
use all the legal
means at our disposal to
ensure that no single
worker is retrenched
to enrich a few people” (My emphasis).
Further it recorded: “Lastly, the only suitable solution
employees will give
you is that
no one must be retrenched
, not
now, not next year and not ever”. (My emphasis)
Contentions of the Parties in
argument
[5] It may be appropriate to highlight
the First Respondent’s contentions first, given the view I
intend taking at the end.
Those are:
Sections 189 and 189A of the LRA are
irrelevant to this case because as the applicants themselves state,
no notice of dismissal
has been issued.
There is thus no part of the
restructuring dispute that is presently capable of adjudication by
this Court
The dispute over restructuring and
implementation of the Siyaya project remains one of mutual interest
at this stage.
The NUM has made it plain that it
disputes the underlying rationale and need for the implementation of
the Siyaya project. The
demand is that it not be implemented. In so
far as this was ever unclear, it is made clear in the answering
affidavit. Just to
mention at this stage, the answering affidavit
states the following: “Our demand is that the employers must
agree not to
implement the Siyaya plan without our consent.”
In short the submission is that
Section 65 (1) (c) of the LRA does not prohibit the proposed strike
action, since the dispute is
one of mutual interest. The dispute is
about the rationale as spelled out in the letter of 15 April 2011.
Accordingly, the rule
ought to be discharged with costs.
[6] On the other hand, the Applicants
persisted with the submission that Section 65 (1) (c) of the LRA is
being offended if the
real and true dispute is flashed out. It was
submitted that it is the duty of this Court to establish the true and
real dispute
in order to decide whether Section 65(1) (c) of the LRA
finds application.
Evaluation
[7] This is one of those matters that
call upon a judge to decide what the parties’ dispute is.
Ironically, parties should
know what they are disputing each other
about otherwise there is no “dispute”. Nonetheless the
LAC made it plain that
this duty is a statutory one imposed upon this
Court by Section 65 (1) (c) of the LRA. See
Coin
Security Group (Pty) Ltd v Adams and Others
2
)
and Ceramic Industries Ltd t/a Betta Sanitaryware v NCBWU and Others
(2).
3
)
[8] The exercise is conducted by
having regard to the surrounding circumstances, the correspondence,
negotiations and affidavits
exchanged between the parties. (See
TSI
Holdings (Pty) Ltd and Others v NUMSA and Others.
4
It is accepted that strikers are
entitled to develop and vary their demands during the course of the
strike. (
See City of
Johannesburg Metropolitan Municipality v SAMWU and Others
5
)
What is the issue in dispute?
[9] In order to properly deal with
this question, in my view, the starting point should be Section 64
(1) of the LRA. The section
guarantees the right to strike if the
issue in dispute has been referred to the Council or the CCMA. The
Act defines an issue in
dispute in relation to strike to mean any of
the three, which forms the subject matter of the strike. Those are a
demand, grievance
or the dispute. In other words, an issue in dispute
can take a form of a demand, a grievance or a dispute as in
disagreement as
it were. In the matter before me, it is plain that
there is a demand. It is important to mention that it is the demand
that should
be the subject matter of the strike. Put it differently,
the strike must be about that demand. If the demand is met the strike
is bound to end.
[10] Therefore, whenever reference is
made of an issue in dispute in Section 65(1) (a)-(c) of the LRA, it
must be the one referred
to in Section 64 (1). The issue in dispute
as required by Section 64 (1) must be referred to the Council or
CCMA. Therefore that,
in my view, makes the referral document an
important source to determine the issue in dispute. I must add that a
strike notice
also plays a vital role thereafter. In this matter, the
First respondent spelled out its demand in no uncertain terms in the
referral
document to be one of no implementation of solutions leading
to retrenchments until proper consensus-seeking consultation has been
finalised. It follows axiomatically that had the Applicants acceded
by not implementing a solution that leads to retrenchments
as alleged
that would have been the end of the demand. Put it differently, the
issue in dispute would have dissipated and there
would have been no
need to issue a strike notice.
[11] A proper reading of the letter of
15 April 2011 reveals that the issue was about the envisaged
retrenchments and not the rationale
of the project as argued.
Nonetheless, closer to the issuing of the strike notice, Blaai made
it abundantly clear that what they
seek to avert is the proposed
retrenchment - the letter of 7 June 2011, W13. The demand as set out
in the answering affidavit does
not feature anywhere other than in
there. It seems clear to me that this was an afterthought.
[12] Regard being had to the statement
in the closing paragraph of the letter of 7 June 2011, if the
Applicants accedes to not retrench
a single worker “now, next
year or ever”, the workers would not have deemed it necessary
to “come and tell the
Applicants themselves in the comfort of
their Tshwane office” (to strike and or march). In light of the
above, I have no
hesitation in my mind that the employees were to
strike about a possible retrenchment. Therefore the true and real
dispute is that
of avoiding retrenchments.
Is the issue in dispute one
justiciable in this court?
[13] The approach adopted by
Euijen
for the First Respondent is that of saying since there is no
dismissal yet, then the adjudication issue does not arise. That
approach
is very simplistic in its nature and should not be favoured
by this Court when faced with a matter like the present one. The
answer
lies in Section 65 (1) (c). The section makes reference to a
right to refer and not should refer. Therefore the inquiry is whether
the issue in dispute is capable of being resolved by the Labour
Court? It is abundantly clear that the concern of the First
Respondent
is not that the Applicants have no right to retrench but
they must do so after having followed a fair procedure-consulted with
it.
[14] Section 189A (13) makes it plain
that should an employer not comply with a fair procedure, a
consulting party may approach
the Labour Court by way of an
application. Failure to consult is tantamount to not following a fair
procedure, which was clearly
the demand of the First Respondent.
Follow procedure, consult with us they lamented. It must follow that
to the Applicants to whom
189A applies; the right exists for the
First Respondent to refer to the Labour Court. Therefore, striking
over such a demand is
not permitted by Section 65(1) (c).
[15] In my view, even those employees
of the Applicants not covered by Section 189A cannot strike on the
issue in dispute because
in terms of Section 191 of the LRA, a
dispute about dismissal based on operational requirements can be
adjudicated by this Court.
It is too technical and fanciful in my
view to place emphasis on the fact that until dismissed, that right
does not arise. It must
have been the intention of the Legislature to
allow this Court and other forums an opportunity to resolve dispute
and to avoid
labour unrests. This Court had interfered in uncompleted
hearings and retrenchments for that matter using its powers under
Section
158 of the Act. In such instances, when the interests of
justice so demand, this Court could issue an injunction even before
dismissal.
In my view, there is no difference justifying a different
approach. Such would mean that Section 189 employees can strike on
procedural
issues when Section 189A employees are gagged and directed
to this Court. A proper and better view, which in my view is
consistent
with the purpose of the LRA, is to say both are gagged
because of the same provisions-Section 65(1) (c).
[16] I therefore conclude that the
issue in dispute is justiciable in this Court. That brings me to an
irresistible conclusion that
the proposed strike action is prohibited
by Section 65 (1) (c) of the LRA and therefore interdictable.
The issue of costs
[17] What then remains is the issue of
costs. Both representatives argued that costs should follow the
results. I see no reason
why such should not be the case.
Conclusion
[18] In the result, I make the
following order:-
The Respondents are restrained and
interdicted from participating, promoting and inciting a strike
action against any of the Applicants
or act in contemplation or
furtherance of such a strike action.
The First Respondent to pay the costs
of this application.
This order to be served by delivering
a copy by hand and by telefax to the First Respondent’s Head
Office at 7 Rissik Street
Johannesburg Fax (011) 833 0367. On the
Second Respondent and its members by the same means at DF Malan
Drive Eendracht Kloofsig,
Centurion, fax (012) 664 6531.
This order to be placed at the main
gates and or notice boards of the Applicants’ premises.
____________________________
G. N MOSHOANA
Acting Judge of the Labour Court
Appearances:
For the Applicants: ADV AJ FREUND SC
Instructed by Brink Cohen Le Roux Inc Johannesburg.
For the Respondent: ADV T M G EUIJEN
Instructed by Cheadle Thompson and Haysom Braamfontein.
1
66
of 1995.
2
[2000]
4 BLLR 371 (LAC.
3
(1997)
(18) ILJ 671 (LAC).
4
(2006)
27 ILJ 1483 (LAC).
5
(2009)
30 ILJ 2064 (LC).