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[2011] ZALCCT 42
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Regional Commissioner for Correctional Services, Western Cape and Another v POPCRU and Others (C1126/2010) [2011] ZALCCT 42 (7 January 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE NO: C1126/2010
In the matter between:
THE REGIONAL COMMISSIONER FOR CORRECTIONAL
SERVICES, WESTERN CAPE
.........................................................................
First
Applicant
THE AREA COMMISSIONER FOR CORRECTIONAL
SERVICES, GOODWOOD MANAGEMENT AREA
.................................
Second Applicant
and
POPCRU
.........................................................................................................
First
Respondent
SS BANGANI & OTHERS WHOSE NAMES
APPEAR IN THE SCHEDULE “A” HERETO
......................
Second to Further
Respondents
JUDGMENT
FRANCIS J
Introduction
1. This is an urgent application brought by the Regional Commissioner
for Correctional Services, Western Cape - the first applicant
and the
Area Commissioner for Correctional Services, Goodwood Management Area
- the second applicant, against the first respondent
POPCRU, a duly
registered union and the second to further respondents who are
members of POPCRU, employed by the Department of
Correctional
Services (the department) in the Goodwood Management Area and the
names appear in Annexure “A” annexed
to the notice of
motion, for the following relief:
1. Condoning Applicants’ failure to comply with the
ordinary rules of the above Honourable Court and permitting this
matter
to be heard on an urgent basis;
2. Declaring the action taken by the Respondents in pursuit of
their demand for a two by 12 hour shift arrangement to constitute
a
strike in terms of the
Labour Relations Act 66 of 1995
;
3. Declaring such strike action to be unlawful and not in
compliance with the provisions of the
Labour Relations Act 66 of
1995
;
4. Ordering the Second to Further Respondents to immediately
desist from the strike action in which they are currently engaged
and to tender their services during the festive season until 31
January 2011 in the manner required by the Applicants;
5. Restraining the Respondents from any and all further
participation in the strike action in which they are currently
engaged;
6. Restraining the Respondents from promoting, inciting or
instigating the strike action of the First Respondent’s
members
in the Applicants employ or any industrial action relating
thereto;
7. That First Respondent be ordered to pay Applicants costs in
this application should it be opposed;
8. Directing that services of this order be effected by a
representative of the Applicant by faxing or delivering a copy of
the
order to First Respondent’s offices of the Western Cape
region and by posting the order on the main entrances and on all
relevant notice boards in Goodwood Correctional facility;
9. Directing that the Applicants may supplement these papers;
10. Directing the parties as to the further conduct of this
matter;
11. Granting the Applicants further and/or alternative relief.”
2. The application was heard by Basson J on 10 December 2010 who
granted prayers 1 to 6 and 8 of the notice of motion. The
respondents brought an urgent application to rescind the orders
granted by Basson J. The rescission application was heard by Waglay
DJP on 21December 2010 who rescinded the orders made by Basson J.
The respondents were ordered to file their opposing papers
by noon
on 22 December 2010 and the applicants their replying papers by
close of business on 28 December 2010. The parties were
ordered to
file their heads of arguments by noon on 30 December 2010 and the
matter was postponed to 31 December 2010.
Background facts
3. The Correctional Services have been declared an ‘essential
service’ in terms of
section 71(8)
of the Labour Relations Act
66 of 1995 (the LRA).
4. On 24 June 2009, the State as an employer concluded a collective
agreement, “GPSSBC Resolution 2 of 2009” with
trade
unions in the GPSSBC, on the implementation of an occupational
specific dispensation (OSD) for Correctional Services officials.
One
of the objectives of Resolution 2 of 2009 is the introduction of a
45-hour week and the implementation of a 7-day establishment
shift
system for centre based correctional officials. Clause 13 provides
as follows:
“
13. Introduction of 45 hour week and 7
day establishment:
13.1. All centre based correctional officials shall be translated
to the 45 hour work week with effect from 1st July 2009.
13.2. The Department shall introduce a 7 day establishment for
correctional facilities with effect from 1st July 2009.
13.3. The Department shall develop a 7 day establishment models
taking into consideration institution - specific needs.”
5. The major challenge for the department and labour, has been
clause 13.3 stating that “the Department shall develop a
7-day
establishment model taking into consideration institution - specific
needs”. This has necessitated on going consultation
between
management and labour to develop shift systems that meet
institution-specific needs. POPCRU contends that what is required
is
a shift system comprising two 12 hour shifts a day. This is the
demand which the respondents are advancing at present in the
Goodwood Correctional facilities. The department has been open to
attempting the introduction of the said system, but it has
been
found that its implementation is extremely difficult given the
severe shortage of staff in correctional facilities. In Goodwood
a
pilot project was implemented as from 3 July 2009 testing the two by
12 hours shift system, and the pilot was followed in Brandvlei.
However, the pilot revealed that in these facilities the shift
arrangement caused insurmountable problems due to shortage of
staff,
and the requisite security measures which the department is obliged
to take, and the duties that the department has in
respect of
rehabilitation and development of offenders.
6. In July and/or August 2009, the department in the Western Cape
region set up a task team, consisting of management and POPCRU
and
the PSA, to try to find a solution to the problem of developing
institution specific models as required by Resolution 2 of
2009. On
a visit to the Goodwood and Brandvlei correctional facilities where
the pilot project was underway, the applicants found
situations
where one correctional official was responsible for 100 inmates.
Such a situation is violating the Correctional Services
Act and
applicable prescripts. Standing Orders of the department require
that the ratio should be 1:40. Subsequent to this inspection,
the
task team called a series of meetings to discuss the different
options about shift managements to remedy the situation at
Goodwood
and Brandvlei. POPCRU stated that it was unable to attend a number
of those meetings with resultant postponement of
meetings.
7. On 22 November 2010, at a meeting between POPCRU, PSA, the
regional management of the Western Cape Department and the managers
of Goodwood and Brandvlei Management Areas, it was clear that no
long term solution was in sight and going to be agreed through
the
task team. Due to the imminent festive season, and directives from
the national commissioner about the special security measures
needed
every year during this period, proposals were urgently requested
from both POPCRU and PSA, about arrangements for an interim
shift
system to be put into operation at Brandvlei and Goodwood for the
period 1 December 2010 to 31 January 2011. POPCRU was
unwilling to
make any proposals in respect of this issue. As a result of POPCRU’s
refusal to present proposals, interim
arrangements had to be decided
upon by the regional management.
8. The Area Commissioners held meetings with POPCRU and PSA in this
regard on 23 November 2010. Brandvlei Management and labour
agreed
on an interim shift arrangement but the representatives of POPCRU
from Goodwood requested permission to be excused from
the meeting
because they stated that they would not budge from their demand
regarding the two by 12 hours system. The interim
shift arrangement
is that the employees should work a 5 shift system with effect from
1 December 2010.
9. In Goodwood Correctional facilities, the second to further
respondents have refused to obey the instructions of management
regarding the first interim arrangements, and by sticking to their
demands that the pilot project two by 12 hour shift system
remains
in operation during the festive season are thus refusing to report
to work according to the new interim shift arrangement.
The shop
stewards of POPCRU at Goodwood and the second to further respondents
were informed that the meetings that were being
held on the premises
and their refusal to work as instructed, were illegal, and despite
this continued with their actions.
10. On 3 December 2010, a meeting was held between the applicants
and the provincial leadership of POPCRU. POPCRU’s demands
were
to go back to the pilot two by 12 hour system immediately, until
they had discussed the issue at their NEC meeting. It was
explained
to them that the challenge to such a situation would be impossible
to deal with on an administrative and security basis,
and therefore
could not be agreed to. POPCRU then informed the regional
commissioner that they would declare a dispute. However
there has
been no formal declaration of a dispute by POPCRU, and their members
continue to engage in an illegal strike, according
to the
applicants. As a result of the second to further respondents stance,
a second interim arrangement was put into place from
8 December 2010
which involves a 3 shift system. The second to further members again
refused to work in terms of the interim
arrangement.
11. In respect of the long term prospects of a shift system between
the labour partners, the applicants agree with POPCRU that
such must
be done under the auspices of the GPSSBC and both parties are intent
on pursuing this route in the new year. The applicants
said that
before the interpretation of the 2009 collective agreement and
particularly clause 13 thereof can be dealt with in
the appropriate
forum, they urgently required this Court to put a stop to the
unprotected strike that is threatening the security
and well-being
of offenders and of the public at large. At Goodwood, POPCRU members
number 304 out of a workforce of 511. About
76 members of POPCRU are
refusing to work in terms of the interim arrangements.
12. The applicants brought an urgent application on 9 December 2010
which was set down for a hearing on 10 December 2010.
The parties contentions
13. The applicants contended that the action taken by the
respondents falls with the definition of a strike in section 213 of
the LRA, with its purpose the demand that the two 12 shift hour
shift system that operated during the pilot project continues
during
the festive season. The work that the employees are required to
perform is work they are contractually obliged to do,
and the second
interim shift system is in line with the principles contained in
Resolution 2 of 2009. The then National Commissioner
issued a
circular regarding the implementation of the 7-day establishment 45
hour week aligned to GPSSBC Resolution 2 of 2009.
The applicants
contended that they have a clear right to seek the prevention of
strike action by its essential service employees.
14. It was further contended on behalf of the
applicants that given the specific demands relating to security,
care and rehabilitation
of offenders, and the safety of the service
providers and the community over the festive season, the balance of
convenience clearly
favours the applicants, i.e. that the relief
prayed for be granted to implement an interim shift system for this
short period
until the end of January 2011, so that the
constitutional obligations and standards of care that the department
has in respect
of offenders in Goodwood management area, are met.
Given the continuing apprehension of serious harm should the
Goodwood facilities
remain understaffed, with second and further
respondents continuing to stage their unprotected and illegal
action, and the lack
of alternative remedy to solve the crisis, the
applicants seek the relief for prayed in the notice of motion.
15. The respondents denied that the authority to determine work
hours by the national commissioner has been properly delegated
to
the levels of the regional commissioner, or the area commissioner.
They could accordingly not determine working hours on the
basis of
the circular by the national commissioner, as such a circular was
not a proper delegation in accordance with section
97 of the
Correctional Services Act. The regional commissioner and the area
commissioner are not properly delegated to exercise
the authority to
determine working hours in the department.
16. The respondents contend that the dispute arose as a result on
the instruction issued by the applicants to work the so-called
straight shift system. The refusal to work did not arise from a
dispute about a matter of mutual interest the employees wanted
to
resolve. The refusal to work was accordingly the catalyst for the
dispute and the dispute was the result of the refusal to
work. The
refusal to work does not amount to a strike according to the
definition of the LRA and an interim order cannot be granted
against
the respondent.
17. The instruction issued to work according to the so-called
straight shift system does not reflect how many days per week the
correctional officials are required to work, or how the night shift
will be dealt with. The instruction is so vague that no proper
effect could be given to it. As far as the straight system
introduced by the regional commissioner and area commissioner
complied
with the circular by the national commissioner dated 1 July
2009, it contravenes section 15 of the Basic Conditions of
Employment
Act (the BCEA) in that correctional officials are not
granted a weekly rest period of at least 36 hours. The shift system
introduced
and implemented by the applicants is unlawful and cannot
be enforced.
Analysis of the facts and arguments raised
18. It is not necessary to deal with all the grounds raised in this
application. The crucial question that needs to be determined
is
whether the second to further respondents had embarked on
unprotected strike action. If they have embarked on an unprotected
strike, the application stands to be granted irrespective of whether
the regional commissioner’s decision was unlawful
as contended
by the respondents.
19. It is common cause that the Correctional Services have been
declared an ‘essential service’ in terms of section
71(8) of the LRA. As a result, the second to further respondents are
prohibited from embarking in any strike action and must
refer any
dispute that they might have to arbitration. In this regard see
sections 65(1)(d)(i) and 74(1) of the LRA.
20. It is common cause that on 23 November 2010 the area
commissioner of the department in the Goodwood management area
issued
an instruction that correctional officials must work
according to a so-called “5 shift system”. They refused
to comply
with the instruction. The area commissioner issued a
further instruction on 8 December 2010 that theymust work according
to a
so-called “3 shift system” and they again failed to
give effect to the instruction. The second to further respondents
have demanded to work the two 12 hour shifts and were not prepared
to render any services in terms of the new interim arrangements.
They felt aggrieved with the new interim arrangement.
21. Mr Basson who appeared for the respondents when asked by this
Court whether the second to further respondents were rendering
any
services, said that since 21 December 2010 after Waglay DJP had
rescinded the default order, they were rendering services
in terms
of the two 12 shifts arrangements.
22. It was not entirely clear whether the second to further
respondents were rendering services before 21 December 2010. It is
pleaded by the applicants in paragraph 7 of the founding affidavit
that the second to further respondents have on 1 December
2010
embarked on prohibited industrial action in a bid to further their
demands that shift arrangements during December 2010
and 31 January
2011 be organised on the basis of two 12 hour shifts. In paragraphs
10 of the founding affidavit it is pleaded
that since 1 December
2010 the second to further respondents have been refusing to work
according to interim shift arrangements
and instead demand that they
work a shift system consisting of two 12 hour shifts. Although they
were present at the Goodwood
Correctional Centres at the time they
would work in terms of the two by 12 hour system, they were refusing
to carry out any of
their duties. In paragraph 11 of the founding
affidavit it is pleaded that in the region of 76 members of POPCRU
were involved
in this action, which action amounts to an unprotected
strike in terms of the LRA. In paragraph 12 it is pleaded that
despite
negotiations the unprotected strike continued. In paragraph
25 it is pleaded that they have refused to obey the instructions of
management regarding the first interim arrangements, and are
sticking to their demands and are refusing to report to work
according
to the new interim shift arrangement. In paragraph 25 and
26 and 30 it is pleaded that the unprotected strike action was
ongoing.
23. The respondents have pleaded in paragraphs 3 and 34 to 40 of the
answering affidavit that the applicants did not have the
authority
to determine working hours in the department and that the
instruction issued by them to work according to the new shift
system
was
ultra vires
and invalid. The dispute that has arisen
between the parties was the consequence of the respondents’
refusal to work caused
by the introduction of the straight system
and that the dispute was not the catalyst for the refusal to work.
The refusal to
work did not arise from a dispute about a matter of
mutual interest the employees wanted to resolve. The refusal to work
according
to the new shift system was the catalyst of the dispute
between the parties. The new shift system was unlawful and
contravened
section 15 of the BCEA. The respondents in paragraph 15
denied that the conduct of the employees constitutes industrial
action
and said that the refusal to work according to the new shift
system was not the result of a deadlock during negotiations on
working
hours.
24. The respondents denied that their conduct constitutes industrial
action. The refusal to work according to the new shift system
was
not the result of a deadlock during negotiations on working hours,
and is not a strike. The refusal to work according to
the new shift
system was the catalyst of the dispute between the parties.
25. It is clear from the pleadings and from what Mr Basson informed
Waglay DJP that from 1 December 2010 to 20 December 2010
the second
to further respondents were not rendering any services at all. The
applicants have pleaded in their founding papers
that they reported
for work in terms of the two by 12 shifts arrangements but were
refusing to carry out their duties. This was
not disputed by the
second to further respondents. It would appear from the undertakings
made to Waglay DJP that they have since
21 December 2010 carried out
their duties. They did not deem it necessary to have approached this
Court on an urgent basis to
declare the said arrangement as
unlawful. They did not deem it necessary to utilise the provisions
of section 74 of the LRA which
deals with disputes in essential
services which should be referred to conciliation and arbitration.
They have been demanded to
work the two 12 hour shifts. Their
conduct amounts to strike action as defined in section 213 of the
LRA.
26. This Court was informed that Cele J had dealt with the issue of
delegation in an unreported judgment under case number D1004/2010.
Problems were encountered in obtaining a copy of the
ex tempore
judgment due to mechanical problems. It does not for purposes of
this judgment matter whether the applicants were not properly
delegated to exercise the authority to determine the working hours
in the department. The fact is that the second to further
respondents were rendering essential service and cannot embark on
any strike action. As pointed out above they have several remedies
available to them and did not follow that route.
27. I am satisfied that the applicants have made out a proper case
for the relief sought. They have met the requirements for
interdictal relief. It follows that the application stands to be
granted.
28. I had initially raised with the parties that since this is an
urgent application, the application must comply with the provisions
of rule 8 read with rule 7 of the Rules of this Court. Rule 8(1)
provides that a party that applies for urgent relief must file
an
application that complies with the requirements of rules 7(1), 7(2),
7(3) and if applicable 7(7). Rule 7(2)(e) provides that
the notice
of application must substantially comply with Form 4 and must be
signed by the party bringing the application. The
application must
be delivered and must contain a notice advising the other party that
if it intends to oppose the matter, that
party must deliver an
answering affidavit within 10 days after the application has been
served, failing which the matter may
be heard in the party’s
absence and an order of costs may be made.
29. It is apparent from the provisions of rules 8(1) and 7(2)(e)
that they are couched in peremptory terms. This Court can condone
a
failure to comply with the time limits contained in the rule but it
cannot in my view condone non compliance with the rule.
The notice
of motion does not contain the provisions stipulated in rule
7(2)(e). However since the parties were ordered by Waglay
DJP to
file their papers within specified time limits it is implicit that
the applicants’ failure to comply with rule 7(2)(e)
was
condoned.
30. All that remains to be determined is the issue of costs and the
costs reserved in the rescission application. It is unclear
on what
basis costs were reserved in the rescission application. The
applicants had sought final relief as opposed to interim
relief in
the urgent application. It is unclear why final relief was sought.
Had the Court issued a
rule nisi
the respondents would have
anticipated the return date and there would have been no need to
have brought the rescission application.
However I do not believe
that this is a matter where costs should follow the result. The
respondents were successful in the rescission
application. The
applicants are successful in this application. The parties have an
ongoing relationship. It would in the circumstances
be fair and just
not to award any costs at all.
31. In the circumstances I make the following order:
31.1. The applicants’ failure to comply with the rules of this
Court is condoned and this matter is heard on an urgent
basis;
31.2. The action taken by the second and further respondents in
pursuit of their demand for a two by 12 hour shift arrangement
constitutes an unprotected strike which is not in compliance with
the provisions of the LRA;
31.3. The second to further respondents are to immediately desist
from the strike action in which they are currently engaged
and to
tender their services during the festive season until 31 January
2011 in the manner required by the applicants or until
they obtain a
court order;
31.4. The second to further respondents are restrained from any and
all further participation in the strike action in which they
are
currently engaged;
31.5. The second to further respondents are restrained from
promoting, inciting or instigating the strike action of the first
respondent’s members in the applicants’ employ or any
industrial action relating thereto;
31.6 There is no order as to costs.
FRANCIS J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR THE APPLICANTS : T GOLDEN INSTRUCTED BY STATE ATTORNEY
FOR RESPONDENTS : JL BASSON INSTRUCTED BY GROSSKOPF ATTORNEYS
DATE OF HEARING : 31 DECEMBER 2010
DATE OF JUDGMENT : 7 JANUARY 2011