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[2011] ZALCPE 17
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General Motors of South Africa (Pty) Ltd v National Union of Metalworkers of South Africa obo Members Employed by the Applicant and Another (P470/11) [2011] ZALCPE 17 (18 November 2011)
REPUBLIC OF SOUTH
AFRICA
Reportable
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case
no:P470/11
In
the matter between:
GENERAL
MOTORS OF
SOUTH
AFRICA (PTY) LTD
…..................................................................................................
Applicant
and
NATIONAL
UNION OF METALWORKERS
OF
SOUTH AFRICA
obo
MEMBERS
EMPLOYED
BY THE APPLICANT
…........................................................................
First
Respondent
THE
PERSONS REFERRED TO IN SCHEDULE "1"
TO
THE NOTICE OF APPLICATION
…...............................................................
Further
Respondents
Heard:
15
November 2011
Delivered:
18 November 2011
JUDGMENT
BHOOLA
J
Introduction
[1]
The applicant seeks confirmation of a
rule
nisi
granted
by Cele J on 28 September 2011 in the following terms :
1.1.
Declaring that the first respondent's members are not entitled to
embark upon strike action in respect of the dispute which
formed the
subject matter of the first respondent's referral to conciliation
under Case No. ECPE4345-10.
1.2.
Interdicting and restraining the first and further respondents from
embarking upon strike action, or any conduct in furtherance
or
contemplation of such strike action in respect of the dispute
concerning the payment of a transport allowance.
Background
to the dispute
[2]
It is common cause that the first respondent ("NUMSA") has
issued a strike notice in respect of the following demand:
"the
employer to increase transport allowance from R40 to R200 a week for
members/operators". The demand is for an across
the board
increase lor all the further respondents ("the members"),
irrespective of whether they use public or private
transport or
whether they incur transport costs at all.
[3]
it is further common cause that the respondents' entitlement to
strike is contingent on the interpretation of Clause A.8.3 of
the
National Bargaining Forum ("NBF") agreement, which is a
collective agreement as contemplated by section 213 of the
Labour
Relations Act 66 of 1995 ("the Act"). The NBF was concluded
between the parties in August 2010 and is operative
until 30 June
2013. Clause A.8.3 reads as follows :
"8.3
NO FURTHER CLAIMS UNDERTAKING
The
parties undertake that they will make no further claims/demands,
either at industry or at company/plant level, for the duration
of
this Agreement, in respect of substantive wage and or benefit on-cost
items covered by this Agreement.
The
parties are however, entitled to raise proposals, either at industry
or at company/plant level, on substantive and /or benefit
items,
which will result in further on-cost and which are not covered by
this
Agreement,
for discussion and/or consultation and/or negotiation,
subject
to the following :
8.3.1.
The party on whom the proposal is served is obligated to engage in
bona fide discussion, consultation and/or negotiation
on the
proposal.
8.3.2.
The parties will, in the event of the interaction becoming
deadlocked, refer the issue to expedited third party facilitation
in
an endeavour to reach agreement.
8.3.3.
These interactions will take place in a collaborative manner without
any coercion being embarked upon by either party.
Should
the party serving the proposal believe that the other party is not
engaging in good faith, then the first party is entitled
to demand
that the second party's alleged bad faith conduct be subjected to
arbitration. The arbitrator will be empowered
to,
if
he/she finds the bad faith allegation to be true, compel the second
party to engage in good faith in terms of the provisions
of this
clause.
The
costs of each facilitation will be shared equally between the parties
unless otherwise agreed".
[4]
During 2009 the parties were forced to consider a change to the
previous arrangement in respect of the transport allowance.
The
previous arrangement was one between the applicant and the Algoa Bus
Company in terms of which employees utilising public transport
were
entitled
to
purchase
subsidised bus tickets. The bus company had provided a dedicated bus
service at the end of each shift for the members
who
relied
on public transport (about 50 to 60% of the members). However, when
the Department of Transport discontinued the subsidies
it provided to
the Algoa Bus Company, the arrangement between the bus company and
the applicant came to an end. NUMSA and the applicant
then agreed on
a system in which ail employees received a wage increase of R40.00
per week. The specific terms of the agreement
between the parties was
as follows :
Record
of
Agreement
-
introd
uction
of
Transport
Allowanc
e
for
Hourly
employees level 1to4 : Background:
As
a result of changes required by the Department of transport relative
to the provision of transport through the services of Algoa
Bus
Company, GMSA is no longer in a position to continue with the current
transport arrangement.
Proposal:
In
an effort to alleviate the negative consequences that this may impose
on hourly employees skill levels 1-4, the company proposes
the
introduction of a Travel Allowance of R40.00(forty rand) which will
be payable to all eligible hourly employees on a weekly
basis as part
of their normal wages.
Implementation:
Following
discussions held between the company and the Shop Steward Council it
has been agreed that:
Effective
Monday 6 April 2009, all hourly employees level 1 to 4 will receive
a weekly travel allowance of R40.00 (this allowance
will be taxed at
the marginal tax rates as prescribed by SARS).
As
a gesture of goodwill the company will affect an advance payment of
R30.00 (thirty) payable to eligible employees on Tuesday
7 April
2009. This is to assist with week of 6
th
-9
th
April
2009. This amount will be deducted from the following week's payroll.
[5]
During April 2010 NUMSA indicated an intention to demand that this
R40.00 travel allowance should be increased to R200.00 per
week. The
applicant, relying on the "no claims" clause of the NBF,
disputed NUMSA's entitlement to raise this demand
but expressed a
willingness to apply the agreed annual wage increase to the travel
allowance component. This proposal was rejected
by NUMSA. Whilst
these discussions were continuing the 2010 NBF Agreement was
concluded.
[6]
Towards the end of 2010 NUMSA gave notice of its termination of the
[7]
On 23 September 2011 NUMSA referred its demand for the increased
travel allowance to increase to the Commission for Conciliation,
Mediation and Arbitration ("CCMA") as a mutual interest
dispute. Over the course of the meetings which followed NUMSA
confirmed that its members were not prepared to consider the
reintroduction of any form of bus coupon arrangement to replace the
travel allowance component of their weekly wages. It further
confirmed that all the further respondents
regardless
of whether they utilised public transport or not
,
1
insisted on the increased travel allowance.
Is
the strike protected?
[8]
The only issue for determination is whether the strike is protected
by sections 64 and 65 of the Act. This is contingent on
determining
whether the demand for an increased travel allowance is in substance
a wage demand. If so, the applicant would have
shown a clear right to
the protection sought, on the authority of the recent
BMW
decision
of the LAC cited by the applicant as discussed below.
[9]
Turning to the provisions of the Act it is clear that section 65(1
)(a) provides that "no person may take part in a strike
or a
lockout...if..that person is bound by a collective agreement that
prohibits a strike...in respect of the issue in dispute...".
Mr
Wade, appearing for the applicant, relied on
Gillett
Exhaust Technology (Pty) Ltd t/a Tenneco v National Union of
Metalworkers of South Africa on behalf of Members and another
(2010)
31
ILJ
(LAC)
which makes it clear that "[s]ection 65(1)(a) of the Act is
clear : if there is a collective agreement between the parties
that
specifically provides that neither of the parties may participate in
a strike or lock-out or any conduct in contemplation
or furtherance
therein in respect of a specified issue in dispute, then there can be
no strike or lock-out about that issue".
2
Section 65(3) (a) (i) also prohibits strike action by a person who is
bound by a collective agreement that regulates the issue
in dispute.
Mr Wade submitted that both provisions serve to prohibit the strike
action contemplated. Firstly, a proper reading
of the
"no
claims" clause prohibits a strike in relation to an employee's
remuneration, and secondly the collective agreement
plainly regulates
the issue of remuneration within the meaning of section 65(3) (a)
(i).
[10]
Mr Wade submitted that on a proper assessment of the respondents'
demand it is no more nor less a demand for increased remuneration.
It
is common cause that the amount of R800.00 per month is sought for
ail NUMSA members without any qualifying criteria in respect
of
transport needs, and it is an arbitrarily determined amount not
linked to actual transport costs. Its implementation will mean
that
every single hourly paid employee will have their monthly income
increased by this amount. For those who do not incur transport
expenses it represents a pure remuneration increase. It is in
substance a wage demand.
[11]
Mr Le Roux submitted that the only issue for determination is whether
it is a genuine demand for a travel allowance. In this
regard he
submitted that the demand must be understood in the historical
context as it did not arise in a vacuum. The present demand
for an
increase mirrors the structure of the past transport allowance in
that it was (a) a weekly amount (b) paid across the board
to all
hourly paid employees (c) over and above their hourly remuneration.
The respondents do not seek therefore to introduce a
series of
negotiations outside the ambit of the NBF but simply to increase the
amount involved to ensure that it is more realistic.
Moreover, the
applicant cannot now contend that the label is spurious or obtuse in
that it labelled the R40.00 historically as
a "travel
allowance." It does not by any means represent payment for
services rendered and cannot therefore be considered
to be
remuneration. It is an amount paid to offset travel costs and its
distribution across the board (as has always been the case)
does not
render it a pure wage demand. Lastly, the amount was pitched at a
realistic level and it cannot be argued on this basis
that it was not
a genuine amount to ameliorate the costs incurred by employees in
travelling to work.
[12]
Mr Le Roux did not dispute that not all of the NUMSA members actually
incur transport costs. He submitted however that limiting
the
allowance to those employees who incur transport costs prevents all
the employeesfrom having an option to secure better and
alternative
means of travel (for instance by forming a car pool with other
employees or buying a second hand car). In his words,
the denial of
the demand amounts to sentencing the members to remain pedestrians in
perpetuity (it appears to be common cause that
a number of the
members live in close proximity to the applicant and choose to walk
to work). The respondents are moreover not
amenable to reverting to a
coupon arrangement or subsidised transport as this would not afford
them the opportunity to improve
the quality of their lives. The
demand therefore is an across the board demand and the respondents do
not seek to differentiate
between the members on the basis of those
who need or use transport, public or otherwise.
[13]
It is trite that irrespective of the form in which it is articulated
(i.e. a travel allowance) this court is empowered to determine
what
the substance of the demand is.
3
The LAC has further cautioned against allowing parties to 'convert'
justiciable issues into disputes in respect of which strike
action is
permissible by changing the nature of the demand as this would allow
"the tail to wag the dog" :
Ceramic
Industries Ltd t/a Betta Sanitary Ware v NCBAWU (2)
(1997)
18
ILJ
671
(LAC) at 678. It does not avail the respondents to argue that because
the term "transport allowance" is not referred
to in the
NBF it is something in respect of which they can make a demand. The
NBF does not expressly refer to a range of entitlements
that can
potentially be claimed. The tail cannot wag the dog. If the demand,
properly construed, amounts to a claim for increased
remuneration, a
strike is prohibited by reason of the provisions of both sections
65(1) (a) and 65(3) (a) (i) of the Act.
[14]
In the recent
BMW
4
decision
the LAC reflected on the interpretation of Clause A.8.3 in the
context of an almost identical demand. NUMSA had initially
demanded a
"transport allowance of R3500 per employee per month for all
hourly paid employees employed by BMW South Africa
(Pty) Ltd -
Rosslyn plant". The LAC, as per Landman AJA noted, albeit in an
obiter
remark,
that it was "common cause that this demand was an impermissible
one by virtue of the undertaking in the opening paragraph
of Clause
A.8.3 and could not found a protected strike".
[14]
NUMSA's demand in present matter is formulated in similar terms.
However in
BMW
the
initial demand was amended and on the basis of the amended demand the
strike was held to be protected. The LAC approached the
matter as
follows:
"The
first question to be considered is whether the initial demand and the
demand as clarified on 14 September 2011 amounts
to one and the same
thing. To my mind there is a substantial difference between the two.
The
initial
demand
was
that
every
hourly
paid
employee be
paid
a
transport allowance regardless
of
whether
the employee
used
transport,
and if so, t
he
nature of the
transport.
The clarified demand makes it clear that a transport allowance is not
demanded for every hourly paid employee but only
those hourly paid
employees who would be entitled to such an allowance had they been
salaried employees, it is recorded in the
founding affidavit that
many salaried employees do not qualify for a car allowance".
5
The LAC held that the strike was protected on the basis of the
clarified demand, which was as follows : "[t]hat the employer
make payment of a transport allowance to hourly paid employees on the
same basis as that applied to transport (car and fuel allowances)
provided by the employer to salaried employees entitled to such
allowances".
[15]
This judgment is on all fours with the present matter except for the
clarified or amended demand. The key difference between
the two
demands, Mr Wade submitted, is that what was being demanded in
BMW
was
an
actual transport allowance for those NUMSA members who had transport
needs and who would have qualified for such an allowance
in
accordance with the policy applied to salaried employees. This was
the demand that was referred to conciliation and on the basis
of
which the employees were permitted to strike. This is in my view a
critical distinction, in the present case although the respondents
draw an analogy with team leaders, they have not formulated their
demand to claim the same or similar benefits as afforded to team
leaders. The respondents moreover do not seek to be placed in the
same position as team leaders but appear to have cited them as
a
point of comparison during the negotiations. In any event, as was
submitted by Mr Wade and was stated in the founding affidavit,
team
leaders are in fact dealt with differently - they do not receive a
travel allowance but have the option of participating in
a motor
vehicle lease scheme or increasing their monthly remuneration to an
equivalent value
[16]
It is trite that in order to obtain a final order the applicant must
establish: a clear right; an injury actually committed
or reasonably
apprehended; and the absence of similar protection by any other
ordinary remedy. The applicant must establish the
existence of a
clear right as a matter of substantive law and must do so on a
balance of probabilities. The respondents do not
appear to oppose the
matter on the basis of any other ground other than whether the
applicant has a clear right to the relief sought.
[17]
Having terminated the travel allowance policy, the respondents
currently have no entitlement to the R40 00 and hence a demand
for an
increase
is
in my view misplaced. However, this is not the issue before me nor am
I required to determine whether on the basis of the quantum
sought it
can be presumed to be a genuine travel allowance demand. It is trite
that to qualify for a transport allowance at the
very least certain
qualifying criteria must exist, least of all that the members do
incur transport costs or have transport needs.
For those members who
do not require or have transport, the demand as currently formulated
constitutes in substance a demand for
additional remuneration and is
therefore impermissible. The intended strike on this demand would, in
respect of those members therefore,
offend the provisions of 65(1)
(a) and 65(3) (a) (i).
[18]
Since none of the other grounds for relief were seriously in issue it
is appropriate on this basis to confirm the
rule
nisi.
There
were no submissions that this is an instance where the interests of
fairness would not justify the award of costs. However
I do not
consider an order of costs to be appropriate given the continuing
relationship between the parties as it will serve merely
to
exacerbate existing tensions.
Order
[19]
Therefore, I make the following order:
1.
The
rule
nisi
is
confirmed.
2.
There is no order as to costs.
BHOOLA
J
Judge
of the Labour Court
APPEARANCES
APPLICANT:
R B Wade SC
Instructed
by Chris Baker and Associates.
FIRST
and
FURTHER
RESPONDENTS:F Le Roux, Francois le Roux attorneys
1
Counsel's
emphasis.
2
At
para [13],
3
See
inter
alia Coin Security Group (Pty) Ltd v Adam & others
[2000]
4 BLLR 371
(LAC).
4
BMW
South Africa (Pty) Ltd v NUMSA oho Members,
unreported
decision of the LAC
under
case
number JA71/2011.
5
Counsel's
emphasis.