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[2011] ZALCJHB 249
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ADT Security (Pty) Ltd v South African Transport and Allied Workers Union and Others (J 2939/11) [2011] ZALCJHB 249 (14 December 2011)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case number: J 2939/11
In
the matter between:
ADT
SECURITY (PTY) LTD
........................................................................................
Applicant
and
THE
SOUTH AFRICAN TRANSPORT AND
ALLIED
WORKERS’ UNION
..........................................................................
First
Respondent
THE
PERSONS WHOSE NAMES APPEAR
IN
ANNEXURE “A”
...................................................................................
Second
Respondent
EX TEMPORE
JUDGMENT
Lagrange J
The
ex tempore
judgment below, as edited, was handed down on 14
December 2011.
This
is an application to interdict a strike by employees of the
applicant company on the basis that the strike is unprotected.
It is
common cause that the respondent union did follow the standard
procedure for calling protected strike action in the sense
that it
referred a dispute of mutual interest to the CCMA and after
obtaining a certificate of outcome issued a strike notice
giving 48
hours notice of the strike due to commence the following day.
I
am satisfied that given that the applicant was unaware that a
certificate of outcome had been issued and it only became aware
of
this on 29 November and arranged to hold a meeting with the union on
13 December 2011 as soon as it became aware of a possible
impending
strike, that the matter is sufficiently urgent for the Court to hear
it on this basis.
The
demand raised by the respondents is that salaries paid to armed
response officers in Port Elizabeth should be the same as
those in
Gauteng and Cape Town.
Both
parties are either a member of a party or a party to a so-called
"negotiating framework agreement for the national bargaining
forum for the private security sector". The preamble to that
agreement states that despite the fact that terms and conditions
of
employment within the sector had traditionally been determined by
Sectoral Determinations published under the Basic Conditions
of
Employment Act, the parties acknowledged that they have
traditionally negotiated terms and conditions within the private
sector at national level amongst each other so that any agreement
reached between them would reflect a broadly held consensus
which
could be adopted by the Minister of Labour as the basis of future
sectoral determinations.
The
agreement goes on to state that: "the parties to this agreement
agree that in future or national level negotiations on
terms and
conditions of employment and other related matters of mutual
interest in the private security sector will take place
in
accordance with this agreement."
Clause
8.5 of the agreement provides that: "unless otherwise agreed,
no party or member of the party to this agreement shall
raise for
negotiation with any other party or member of such party to this
agreement any issue that has been tabled, traded off
or negotiated
in the course of any round of negotiations until the commencement of
the next round of negotiations in terms of
this agreement."
Essentially,
the applicant is arguing that the demands made for parity between
wages in different regions is a national issue
on which cannot be
determined in isolation through negotiation between the union and
the applicant company alone. It is evident
that the sectoral
determination based on the negotiations does make provision for wage
differentiation between different geographical
areas.
The
union contended that clause 8.5 has no application because the issue
in question cannot be classified in terms of any of the
types of
issue described in that clause. The union also contends that the
framework agreement was not negotiated in the context
of a
bargaining Council for which the Minister might extend a collective
agreement. Lastly, there is nothing in the negotiating
framework
agreement that expressly forbids plant level bargaining, nor
prevents strike action arising from a dispute at plant
level.
It
seems to me that the essential question raised by this application
is whether the demand made is one that ought to be tabled
at the
National negotiations, which are currently underway in the
negotiating forum, and whether it is open to the respondents
to
embark on strike action on the issue in question if it is.
The
only provision in the LRA which might apply in prohibiting the union
and its members from participating in a protected strike
in these
circumstances is section 65 (3) (a) (i), which states that:
“
Subject
to a collective agreement, no person may take part in a strike or a
lockout or in any conduct in contemplation or furtherance
of a strike
or lockout-
(a)
if that person is bound by-
(i)
any arbitration award or
collective agreement that
regulates the issue in dispute;
or...
"
(My
emphasis)
The
first point to make is that this Court has held in
Fidelity
Guards v PTWU and others
[1997] 11 BLLR 1425
(LC) at 1433
that
the word ‘regulates’ also includes creating a process
for resolving the issue. As I understand this means that
if there is
a procedural agreement which deals with the process for negotiating
the issue in question, that agreement would regulate
the issue for
the purposes of
section
65 (3) (a) (i). It would seem to me
at least on a
prima facie
view that a demand to equalise
wages in one region with a another is an issue of national
relevance, and accordingly if the demand
in question has not been
tabled in the forum which the parties have agreed should deal with
such issues, a strike in contemplation
of a demand that has not been
tabled in that forum, and would amount to a strike over a demand
which parties have agreed ought
not to be negotiated at the level of
an individual employer, and in that sense would be a strike over an
issue regulated by the
National negotiating framework agreement.
Secondly
it also appears that in terms of the preamble to the collective
agreement that the parties have acknowledged that they
negotiate
terms and conditions in the sector at national level.
Another
argument raised by Mr Baloyi who appeared for the respondent was
that a demand in respect of actual wages could not be
equated with a
demand over minimum wages, which appears to be part of the demand
presented to the applicant. In the case of
Cape Gate (Pty) Ltd
v National Union of Metalworkers of SA & Others
(2007)
28
ILJ
871 (LC)
at paragraphs [36] and [37]
of the judgement, the court held that it would be contrary to the
purpose of a provision in a collective
agreement providing that a
national forum should be the sole negotiating forum, to allow
demands to be tabled in respect of actual
wages at plant level.
However it must be said that the provisions of that agreement were
far more stringent. Thus Clause 37 of
the main agreement in that
case read as follows:
“
37.
Levels of bargaining in the industry
(1) Subject
to sub-clause (2) -
(a) the
Bargaining Council shall be the sole forum for negotiating matters
contained in the Main Agreement;
(b) during
the currency of the Agreement, no matter contained in the Agreement
may be an issue in dispute for the
purposes of a strike or lock-out
or any conduct in contemplation of a strike or lock-out;
(c) any
provision in a collective agreement binding an employer and employees
covered by the Council, other than
a collective agreement concluded
by the Council, that requires an employer or a trade union to bargain
collectively in respect
of any matter contained in the Main
Agreement, is of no force and effect.
(2) Where
bargaining arrangements at plant and company level, excluding
agreements entered into under the auspices
of the Bargaining Council,
are in existence, the parties to such arrangements may, by mutual
agreement, modify or suspend or terminate
such bargaining
arrangements in order to comply with sub-clause (1). In the event of
the parties to such arrangements failing to
agree to modify or
suspend or terminate such arrangements by the date of implementation
of the Main Agreement, the wage increases
on scheduled rates and not
on the actual rates shall be applicable to such employers and
employees until the parties to such arrangement
agree otherwise.
(3) The
provisions of this clause shall apply equally to any trade unions not
party to this Agreement.
”
So
too, the relationship between centralised and employer level
bargaining in the
Fidelity Guards
matter was much more
explicitly distinguished. The following passages from pages 1428-9
of the judgment illustrates this:
“
14.5
Clause
10 of the constitution of the national bargaining forum provides that
‘All parties to this council accept the principle
of
industry-wide bargaining and, accordingly, all parties agree to
negotiate, on an annual basis, substantive issues of employment
in
respect of employees in the industry’.
14.6
Clause
10.3 provides that ‘The parties agree that any issues or
matters which have been negotiated between them shall not
be
negotiable at regional or company level’.
14.7
The
first respondent, in terms of this collective agreement, is free to
negotiate plant level conditions of employment only with
non-parties
to the national bargaining forum. As long as the first respondent has
chosen to bargain at a particular level in respect
of particular
subjects, it may not retreat and launch negotiations at another level
with the same party (being the applicant).
14.8
Therefore, as far as the national industry bargaining forum is
concerned, the first respondent is a party to the agreement,
and
continues to be a member of the said forum.
”
Conclusion
I
believe that the applicant has made out a
prima facie
case
that the national negotiating framework agreement binds the parties
to conduct negotiations on the issue in question at
the National
negotiations conducted in terms of that agreement. Accordingly, the
dispute concerns an issue that is regulated
by the same agreement in
the sense meant by section 1 and a dispute over regional wages which
arises in the context of those
national
negotiations could
well give rise to protected strike action.
However,
the employer in this instance is entitled to refuse to negotiate
closing regional wage gaps outside of the context of
those national
negotiations. A strike arising from a refusal to exceed to demands
at the level would be a strike in respect of
an issue regulated in
the sense meant by section 65 (3) (a) (i) and consequently would be
unprotected.
Order
Accordingly, it is
ordered that:
Declaring
that
the strike by the second to further Respondents ("the
individual respondents") which is due to commence on Thursday
15 December 2011 ("the strike") to be an unprotected
strike in terms of the Labour Relations Act, 66 of 1995 ("the
LRA");
Declaring
that
the anticipated action of the Second to Further Respondents referred
to in annexure "
A1
" constitutes unlawful strike
action pending the outcome of the national wage negotiations;
Interdicting
and
restraining the Second to Further Respondents referred to in
annexure "
A1
" from participating in any strike
action;
Interdicting
and
restraining the first Respondent ("the Union") from
encouraging and/or inciting the individual respondents to
participate in such a strike;
Ordering
the
Second to Further Respondents referred to in annexure "
A
"
to comply with their contractual obligations owed to the Applicant;
Ordering
the
Union and such individual respondents who oppose this application to
pay the costs of this application, jointly and severally,
the one
paying the others to be absolved.
Directing that the
relief set out in prayers 1.1 to 1.6 above operate as an interim
order with immediate effect.
Ordering that service of
this order be effected as follows:
on the Union per telefax
at its head office and its regional office;
on the individual
respondents by a duly appointed official of the Applicant reading
out this order to such of the individual respondents
who are present
at the Applicant's place of business and by affixing copies of this
order on prominent notice boards at the Applicant's
place of
business and handing copies of this order to such of the individual
Respondents who may request a copy of this order.
The provisions of
paragraphs 1 to 3 hereinabove shall operate with immediate effect,
as an interim order, pending the final order
being made on the
return date 26 January 2011 of the Rule
Nisi
as aforesaid.
The issue of costs is
deferred to the return date.
Either party may
anticipate the return day on supplemented papers, if necessary, on
three court days’ written notice.
ROBERT LAGRANGE
JUDGE OF THE LABOUR
COURT
Date of hearing: 14
December 2011
Date of judgment: 14
December 2011
Applicant’s
representative: H. Schensema for Routledge Modise t/a Eversheds
attorneys
Third Respondent’s
representative: M.M. Baloyi for Baloyi Attorneys