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[2012] ZALCJHB 16
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ADT Security (Pty) Ltd v South African Transport and Allied Workers Union and Others (J 2939/11) [2012] ZALCJHB 16; (2012) 33 ILJ 2061 (LC) (28 February 2012)
REPUBLIC OF SOUTH AFRICA
Reportable
Of interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case no: j 2939/11
In the matter between:
ADT
SECURITY (PTY) LTD
…........................................................................
.Applicant
and
THE
SOUTH AFRCAN TRANSPORT
AND
ALLIED WORKERS’ UNION
....................................................
First
Respondent
THE
PERSONS WHOSE NAMES
APPEAR
IN ANNEXURE “A”
…...................................................
Second
Respondent
Heard
:
17 February 2012
Delivered
:
28 February 2012
Summary: Return day. Interdict strike- non compliance with the
provisions of the collective agreement. Distinction between
substantive
issues and process related issues. Section 65 of the LRA.
JUDGMENT
MOLAHLEHI J
Introduction
On 14 December 2011, Lagrange J made an interim order in terms of
which the respondents were interdicted and restrained from
embarking
on a strike action because the issue in terms of which they intended
striking on was governed by the provisions of
a collective
bargaining agreement.
The applicant now seeks to have the interim order confirmed. The
application to have the order confirmed is opposed by the
respondents.
Background facts
The applicant falls within the Private Security Sector (the sector)
and is accordingly covered by the Sectoral Determination
6: Private
Security Sector, South Africa (sectoral determination) which was
promulgated by the Minister of Labour in terms of
section 56 of the
Basic Conditions of Employment Act (the BCEA) and which presently
regulates the basic conditions of employment
with in the sector.
The applicant contends that the sectoral determination which was
amended in September 2010 is binding on it and has accordingly
given
effect to its provisions. The sectoral determination is promulgated
by the Minister of Labour in terms of the provisions
of the BCEA. It
is also common cause that once an agreement is concluded at the
bargaining forum, it is forwarded to the Minister
of Labour for
promulgation into a wage determination.
The negotiation process takes place under the auspices of the
Sector’s National Bargaining Forum. The applicant participates
in that process through its membership of Security Sector Employers’
Organization (SSEO). The first respondent is one of
the unions that
participate in the collective bargaining process with other unions
in that forum. Although the first respondent
is the majority union
of those unions participating in the forum, its representivity in
the sector is not significant, representing
about 10% employees in
the sector.
The current minimum wages were promulgated by the Minister during
September 2011. The determination as promulgated by the Minister
regulates a number of the terms and conditions of employment,
including for the purposes of this judgment specifically the minimum
wages.
The present issue arose from a dispute which the first respondent
had referred to the CCMA during August 2011. In terms of that
referral, the first respondent raised a dispute concerning wages of
its members in the Port Elizabeth area. The first respondent
demanded that its members be remunerated at the same level as those
in the Gauteng and Cape Town regions.
It is common cause that the sectoral determination provides
deferential salary grades in the different magisterial areas across
the country. The salary rates are categorised into three magisterial
areas, known as Area 1, Area 2 and Area 3. The first respondent
demanded an increase in the salary of its members employed in the
Port Elizabeth area. Its demand is that its members in that
area
should be remunerated at the same level as those employees in the
sector who are based in the Gauteng and Cape Town areas.
Attempts at conciliation of the dispute took place during October
2011. The conciliation process having failed and the certificate
of
outcome having been issued, the first respondent issued the
applicant with a notice of the intention to embark on a strike
action during December 2011.
Submissions by the parties
The applicant contends that the first respondent and its members are
not entitled to embark on a strike action on the basis that
the
issue upon which they wish to strike on is governed by the
provisions of a collective agreement.
The first respondent on the other hand contends that its members in
the Port Elizabeth area are underpaid in comparison to those
in
Gauteng and Cape Town. The applicant does not dispute that the
payment between employees in the Gauteng and Cape Town areas
are
different to those applicable to employees employed in the sector
and based in the Eastern Cape areas. The disparities between
the
salaries in these regions are provided for in the sectoral
determination and the rational for that is based on the differences
in the cost of living in these regions. The cost of living in the
Port Elizabeth area is said to be lower than that in Gauteng
and
Cape Town regions.
Mr Mphahlani, for the respondents, in his submission argued that the
issue in dispute is not covered by the provisions of the
agreement
because the respondents are demanding an actual wage increase as
opposed to the minimum which is provided for in the
sectoral
determination.
Relying on the authority of
Black Allied Workers Union and others
v Palm Beach Hotel,
1
the case decided under the 1956 Labour Relations Act, Mr Mphahlani
argued that the sectoral determination regulates the minimum
wages
and not the actual salary increase as demanded by the respondents
and therefore they were entitled to go on strike. In
other words,
the issue of the minimum salary rates provided for in the sectoral
determination is a different issue to the actual
wage increases
demanded by the respondents.
He further relied on the academic writing of Annali Basson
et
all where the learned authors in dealing with this issue has the
following to say:
‘
Because
wage determinations and sectoral determinations usually regulate only
minimum terms and conditions of employment and sectoral
determinations, by their very nature, are concerned with basic
conditions of employment, this would mean that employees can still
embark on strike action in support of actual or better terms
conditions of employment.
2
’
A similar view is expressed by D du Toit
et
all in the
following terms:
‘
Under
the previous Act the courts [applying similar phraseology] took the
view that where collective agreements set minimum wages
only, it is
permissible for employees to strike in support of improved [or
‘actual’] wages. A similar approach has
been adopted
under the current Act. Thus,
in
PSA v Minister of Justice and Constitutional Development and Others
,
it was held that a demand for a once-off pay increase for certain
employees to conciliation was separate and discrete form an
annual
salary increase for all public servants that was regulated by
collective agreement. Strike action in support of the former
demand
was therefore not prohibited.’
3
[Footnote omitted]
Before dealing with the real issue at hand, it is important to point
out that the above authorities dealt with the substantive
issue of
the demand and not the process for dealing with the process for
negotiating over that issue.
4
The issue in this matter is whether the respondents are entitled or
prohibited from calling on a strike action based on the demand
for
actual wage increase in the face of the provisions of the collective
agreement which is still current and which requires
terms and
conditions of employment to be negotiated at national level.
The issue of whether a trade union is prohibited from embarking on a
strike action on an issue governed by a collective agreement
is
regulated by the provisions of section 65 (3) (a) (i) of the LRA
which reads as follows:
5
‘
(1)
...No person may take part in a strike or a lock-out or in any
conduct in contemplation or furtherance of a strike or a lock-out-(a)
if that person is bound by (i) any award or a collective agreement
that regulates the issue in dispute;
The prohibition against a strike action where there is a binding
collective agreement is not limited to substantive issue/s in
dispute but includes the procedure laid out in the collective
agreement. The collective agreement in the present instance
provides:
‘
1.2
...Organised labour and organized employers, including the parties to
this agreement, have traditionally negotiated terms and
conditions
with Private Security Sector at national level amongst each other so
that any arrangements reached between them would
be reflected a
broadly held consensus and thus adopted by the Minister of Labour as
the basis of future Sectoral Determinations.
’
And clause 1.3 provides:
‘
. . .
The
parties recognised that it is in their own interests as well as in
the interests of relationships between them and some industrial
relations practice that negotiations could take place a properly
regulated and the framework of such negotiations understood by
all
parties thereto. The parties to this agreement agree that in future
all 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
.’
The procedure to be followed for negotiations of a collective
agreement is set out in clause 8 of the Frame Work Agreement. In
terms of this clause, proposals relating to terms and conditions of
employment within the sector are to be tabled by parties
for
purposes of negotiations at national level. If an agreement is
reached at national level then such an agreement is forwarded
to the
Minister for promulgation into a wage determination.
It has not been disputed that the Frame Work Agreement is a binding
collective agreement as envisaged in the LRA. The agreement
does not
lapse with the promulgation of the wage determination by the
Minister. It continues to exist even after the promulgation
and
continues to bind the parties to it. Whilst the agreement does not
deal with substantive issues, like the wages it provides
for a
procedure through which such substantive issues may be tabled for
negotiations. In terms of that procedure, parties are
required to
raise such issues at the national level and thus are prohibited from
raising them at regional or local level. It
is important to
emphasise that once an agreement is reached the terms of that
agreement are forwarded to the Minister for promulgation
It is thus my view that in seeking to rely on the distinction
between the minimum and the actual wage demand to assert its right
to strike, the respondents overlooked the procedural prohibition of
the strike action as envisaged in terms of section 65 of
the LRA. It
is also my view that the authorities relied upon by the respondents
do not apply in the circumstances of the present
case. The
authorities relied upon by the respondents deal with the substantive
issues of the distinction between the minimum
and the actual wage
increases. There are authorities, which hold the view that the
prohibition under section 65 of the LRA applies
also where the
parties in the collective agreement have made provision for a
process through which the substantive issues may
be resolved.
In
Fidelity Guards Holdings (Pty) Ltd v PTWU and Others,
6
the court held that:
‘
In
section
65 (1)
parties
can enter into a collective agreement which prohibits a strike. This
peace obligation is in fact a substantive rule. Its
relationship with
the constitutional right to strike need not be explored in this
judgment...I am of the opinion that the phrase
“regulates the
issue in dispute” refers to a substantive regulation of the
issue or a process leading to the resolution
of the issue.’
In granting the interim order Lagrange J, in this matter correctly
interpreted the decision in
Fedelity Guard
to mean:
‘
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] .
. .’
In
Cape Gate (Pty) Ltd v National union of Metal Workers of SA
and Others,
7
the court held that:
‘
...It
is correct that the main agreement does not preclude an employer from
granting an increase in excess of that required by the
main
agreement. But proper regard and effect must be given to the
provisions of clause 37, which I have quoted above. It is in
my view
artificial to interpret that clause as allowing unions and their
members to negotiate at plant level and strike over wage
increases
which are over and above those provided for in the main agreement
itself. The whole purpose of clause 37 is to ensure
that – in
contract with the pre-1992 dispensation – there is no
multiplicity of forums for negotiating what is regulated
in the main
agreement and that there is to be no strike in respect of the matters
agreed to in that agreement. Of relevance here
is the determination
of wages. That is one of the “matters contained in the main
agreement” as contemplated in clause
37(1)(a).
The
objective underlying the clause is to ensure that negotiation of such
matters takes place only at the level of the bargaining
council and
in no other forum, such as at plant level. It is also to preclude any
strike action over such matters while they continue
to be regulated
by the main agreement. The clause would make little sense if it had
the effect now contended for and on behalf
of NUMSA, namely that
where wage increases are determined in the main agreement, employees
and their unions are free to agitate
for further increases by way of
plant level negotiation and ultimately strike action. This would be
subversive of the objective
of promoting collective bargaining at the
level of bargaining councils and the effectiveness of their
agreements. This would not
accord with the clear and worthy
objectives of the LRA. Accordingly the interpretation which is
advanced on behalf of NUMSA cannot
be sustained.’
Conclusion
It is clear that the right to strike may be prohibited in terms of
section 65 of the LRA where the collective bargaining agreement
between the parties makes provision for a peace clause either
regulating the substantive issues that may be raised subsequent
to
the conclusion of that agreement or the process through which
substantive issues may be raised for negotiations thereafter.
The
same applies where the parties agree as to the level at which the
subject matter of the dispute may be raised.
The present case does not concern the substantive issue of
bargaining but rather the process for the resolution of that issue.
I have already mentioned earlier that the provisions of section 65
(1) (a) of the LRA envisages prohibition of strike action
even where
the union fails to follow the process for resolving the substantive
issue. In other words before embarking on a strike
action, a trade
union has to satisfy both the substantive and the procedural aspect
of dealing with the issue in dispute.
The applicant’s application stands to succeed. It does not
appear to me that the respondents were unreasonable in opposing
the
application neither do I belief that it would be in the interest of
building a good relationship between the parties in the
long term to
allow costs to follow the results.
Order
In the premises and in confirmation of the rule
nisi
the
following order is made:
The planned strike by the first to further respondents is
unprotected in terms of the provisions of the
Labour Relations Act
of 1995
The planned strike action by the first to further respondents would
be unlawful, if it was to take place without following the
process
set out in the collective bargaining agreement.
The first to further respondents are interdicted and restrained from
participating in a strike action on the basis of the certificate
of
outcome issued by the CCMA on 9 November 2011, under case number
ECPE4275/11
The first respondent is interdicted and restrained from encouraging
and or inciting the individual second respondents from participating
in a strike action.
The second respondents are ordered to comply with their contractual
obligations owed to the applicant.
There is no order as to costs.
__________________
Molahlehi J
Judge of the Labour Court of South Africa
APPEARANCES:
FOR THE APPLICANT: Adv P Kennedy SC, instructed by Routleledge Modise
FOR THE RESPONDENTS: Adv Mphahlani, Instructed M M Baloyi Attorneys
1
(1988)
9 ILJ 1016 [IC].
2
Essential
Labour Law
(LLP 3
rd
ed 2002) at
3
Labour
Relations Law
(LexisNexis Butterworths 1999, 4
th
ed )
at
293
The citation for
PSA v Minister of
Justice and Constitutional Development and Others
,
[2001] 11
BLLR 1250
(LC).
4
See
also
Motor
Industry Bargaining Council v South African
Motor Industry Employers’ Organisation and Others
[1997]
10 BLLR 1328
(LC) where it was held that the fact that the parties
had in the past bargained only over minimum wage did not create an
immutable
rule that they could not bargain over actual wages in the
future. The same approach was followed in
Vereeniging Refractory
Ltd v Building Construction and Allied Workers’ Union
[1989] 10 BLLR 79
(W) where the court held that the matter giving
rise to the planned strike action was a demand for higher actual
wages and not
the minimum wage which was fixed in the wage
determination.
5
The
phraseology used in the present LRA is very similar to that of the
1956 LRA.
Section 65
(1) (a) and (b) of the 1956 LRA read as
follows:
‘
(1) No employee or other
person shall instigate a strike or incite any employee to take part
in or continue a strike or take part
in a strike or in the
continuation of the strike, and no employer or other person shall
instigate a look out or incite employer
or other person to take part
or to continue a lock- out or take part in lock-out or in the
continuation of a lock-out-
during the period of the currency of any agreement,
award or determination which in terms of this Act is binding on the
employees
or employers who are or would be concerned in the strike
or lock-out or;
during the period of one year reckoned from the date of
publication of a notice under
section 14
[2] of the Wage Act, 1957 (
Act No 5 of 1957), in respect of a determination under that Act,
which is binding upon the employees
or employers who are or would be
concerned in the strike or lock-out and any provision of which deals
with the matter giving
occasion to the strike or lock-out.’
6
[1997]
11 BLLR 1425
(LC) at 1433 F-H.
7
(2007)
28 ILJ 871 (LC) paras 37 and 38.