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[2012] ZALCJHB 30
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Mega Express (Pty) Limited v Employees Whose Names are Listed in Annexure A to the Notice of Application (J56/12) [2012] ZALCJHB 30; (2012) 33 ILJ 2634 (LC) (14 March 2012)
11
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
reportable
Case No J 56/12
In the matter between:
MEGA EXPRESS (PTY)
LIMITED
…................................................................
Applicant
and
THE EMPLOYEES WHOSE
NAMES
ARE LISTED IN ANNEXURE
A TO THE
NOTICE OF APPLICATION
…........................................
First
to Further Respondents
Heard: 13 January 2012
Delivered: 14 March
2012
Summary: UNPROTECTED
STRIKE
The applicant launched this urgent application for an
order restraining and interdicting the respondents from proceeding
their unprotected
strike pending the outcome of the arbitration the
respondents had referred to the SARPBC. The order was granted because
the respondents’
collective refusal to do night work for the
purpose of having their dispute against the applicant resolved
constitutes strike action.
The respondents’ strike was
unprotected because their dispute was based on issues governed by a
collective agreement which
has a dispute resolution clause. After the
certificate of the non-resolution of the dispute at the conciliation
stage was issued
the respondents should have referred their dispute
to arbitration and awaited the arbitration award. Strike action over
a dispute
which has to be referred to arbitration in terms of the LRA
is unprotected in terms of section 65 of the LRA.
COLLECTIVE AGREEMENT:
A collective agreement remains binding for its duration on members of
a registered trade union which is a
party to it even after those
members have resigned from the trade union if they remain employees
of the employer party to the collective
agreement.
INTERIM INTERDICT:
Employment of other employees to perform the duties of employees who
have embarked on an unprotected strike does
not constitute
alternative relief for purposes of determining the grant of an urgent
interdict as if does not constitute alternative
remedy for the
violation of the applicant’s right by the respondents.
________________________________________________________________
JUDGMENT
LALLIE J
[1] The applicant
approached this Court on an urgent basis for an interim interdict.
After arguments were presented on behalf of
both parties on 13
January 2012 the following order was granted:
‘
1 Pending
the outcome of the dispute referred by the Respondents to the South
African Road Passenger Bargaining Council under case
number 11-01, an
order is made in the following terms:-
1.1 The withholding of the services by
the Respondents with effect from 9 January 2012 and collective
refusal by the Respondents
to work any shift scheduled before 6h00
and after 18h00 each day is declared to be unprotected strike as
contemplated in section
68 of the Labour Relations Act 66 of 1995
(“the LRA”);
1.2 The Respondents are interdicted
and restrained from participating in such an unprotected strike;
1.3 The Respondents are directed to
work in accordance with their current terms and conditions of
employment with the Applicant
pending the referral to arbitration and
final adjudication of the dispute that has been referred to the South
African Road Passenger
Bargaining Council under case number 11-01;’
[2] The order also
provided for the manner in which its service was to be effected on
the first to further respondents (respondents).
The following are the
reasons for the order. The reason the applicant launched this
application is that from 9 January 2012 the
respondents collectively
refused to work any shift scheduled before 06h00 and after18h00. The
respondents having, through their
attorney, addressed a letter to the
applicant demanding the following undertakings from the applicant:
2.1 payment of an
acceptable shift allowance;
2.2 suitable
transportation (or payment of a suitable transportation allowance)
for each employee to and from home; and
2.3 calculation and
payment of the allowances to the respondents no later than 31 March
2012 with effect from the date of employment
of each employee.
[3] The basis of the
respondents’ demand was that by requiring the respondents to
arrive at work at 03h30 and to work after
18h00 without receiving a
shift allowance the applicant acts in contravention of section 72 of
the Basic Conditions of Employment
Act (the BCEA).
1
In addition,
the respondents alleged
that in the absence of the allowances,
they
were under no obligation to arrive at work before 06h00 and to work
after 18h00.
[4] The main reason for
this application therefore is that the applicant sought an order
declaring that by collectively refusing
to work before 06h00 and
after 18h00 the respondents were participating in an unprotected
strike as contemplated in
section 68
of the
Labour Relations Act
(
the LRA).
2
Background
[5] The applicant
conducts business as a bus operator part of which is to convey
passenger to and from Gautrain stations in terms
of a contract it
entered into with the Bombela Consortium. It employs 402 employees.
The 320 respondents are employed by the applicant
as driver
conductors. The applicant operates a two shift system. The first
shift starts at 04h30 and the last one finishes at 22h00.
[6] On 7 April 2011, when
some of the respondents were members of the South African Transport
and Allied Workers Union (SATAWU),
SATAWU, Transport & Allied
Workers Union of South Africa (TAWU), Transport & Omnibus Workers
Union (TOWU) the employee
party concluded the Main Collective
Agreement (agreement) with the South African Bus Employers
Association (SABEA), under the auspices
of the South African Road
Passenger Bargaining Council (SARPBC) which governs the terms and
conditions of employment of employees
in their industry. At the time
of the conclusion of the agreement, the applicant was and is still a
member of the SABEA. The agreement
is valid from 1 April 2011 to 31
March 2012. Some respondents terminated their membership from SATAWU
subsequent to the signing
of the agreement. The applicant argued that
notwithstanding the resignation, the agreement is still binding on
them. The respondents
held a different view, they believed that the
agreement might be binding on the respondents.
[7] The following clauses
of the agreement are relevant to the present dispute:
‘
8
(3) Meal intervals – An employer
shall not require or permit an employee to work continuously for more
than five hours without
a meal interval of not less than 30 minutes
during which interval such Employee shall not be required or
permitted to perform any
work, and such interval shall not form part
of the ordinary hours of work or overtime.
(6) Spreadover – In the case of
a member of the Operating Staff the ordinary hours of work, including
the meal interval where
applicable, and all overtime, shall on any
one day be completed within a spreadover of 14 hours.
12.
NIGHT-SHIFT ALLOWANCE
A night-shift allowance of five rand
(R5.00) per hour will be payable to Employees for actual hours worked
between 20:00 and 03:00
(including meal breaks) applicable until 31
st
March 2013.’
Did the respondents’
conduct constitute an unprotected strike?
[8] The applicant relied
on the following submissions in substantiating its version that the
respondents had embarked on an unprotected
strike:
[8.1] The Main Collective
Agreement was binding on the respondents for its duration, that is,
from 1 April 2011 to 31 March 2012.
It provides for the scheduling of
shifts and the payment of a night shift allowance of R5.00 per hour
to employees for actual hours
worked between 20h00 and 03h00.
[8.2] The applicant
denied having acted in contravention of
section 17
(2) of the BCEA on
the grounds that a collective agreement can vary, replace or exclude
any basic conditions of employment other
that those specified in
section 49
of the BCEA.
[8.3] The applicant
denied that
section 17
of the BCEA places a duty on it to provide
transport to and from the place of residence of the employees. It
submitted that it
is sufficient that transport is available before
06h00 and after 18h00 in the form of taxis.
[8.4] The collective
refusal by the respondents to work complete shifts allocated to them
in support of their demand for transport
to and from their places of
residence constituted a strike as defined in
section 213
of the LRA.
[8.5] As the respondents’
dispute was about the interpretation and application of a collective
agreement, they should have
referred it to arbitration in terms of
section 24
of the LRA instead of taking the law into their hands by
unilaterally and collectively withdrawing their labour before 06h00
and
after 18h00.
[8.6] The respondents
should also have referred a grievance to the SARPBC.
[9] The respondents
denied having embarked on an unprotected strike on the following
grounds:
[9.1] The Main Collective
Agreement is not binding on them as some of them were never members
of the employee party to the agreement.
It could possibly be binding
on about 180 respondents who were members of SATAWU at the time it
was signed. The respondents further
submitted that the applicant’s
failure to identify those respondents who were at some stage members
of SATAWU was fatal.
[9.1] The agreement is of
no relevance or application as it was conceived for the conventional
bus operations and could not have
been formulated to deal with the
terms and conditions of service that apply to the respondents as
their job functions had not yet
come into existence. It was also
signed before the full bus service operation in support of the
Gautrain had been rolled out.
[9.2] The respondents’
refusal to do night work does not constitute strike action on the
grounds that the applicant is acting
in contravention of
section 17
of the BCEA by not providing them with transport to and from work
when they do night work. Transport is also not available to the
respondents at the commencement and conclusion of night work.
Section
49
of the BCEA does not take away the rights held by the respondents.
The agreement is silent on the issue of transport for night work.
The
respondents therefore contend that they cannot act unlawfully by
refusing to do work they are not required to do in terms of
the law.
[10] In determining
whether the respondents’ conduct constituted an unprotected
strike, I considered whether the agreement
was binding on them
because clause 39 of the agreement is the dispute resolution clause.
It provides for resolution of disputes
through conciliation,
mediation and/or arbitration.
Section 24
(1) and (2) of the LRA
provides that disputes about the interpretation and application of a
collective agreement are required to
be resolved through conciliation
and through arbitration if they remain unresolved after the
conciliation.
Section 65
(1)(c) of the LRA prohibits from taking part
in a strike, persons whose issue in dispute is one that a party has a
right to refer
to arbitration in terms of the LRA.
[11] Some of the people
that a collective agreement binds in terms of
section 23
(1)(c) of
the LRA are members of a registered trade union that is a party to
the agreement if the collective agreement regulates
terms and
conditions of employment.
Section 23
(1)(d) of the LRA adds to the
category of employees bound by a collective agreement, employees who
are not members of a registered
trade union or trade union party to
the agreement if the employees are identified in the agreement. The
following clause of the
agreement stipulates some of the people who
are bound by it:
‘
1.1.1 The
terms of this agreement shall be observed in the Road Passenger
Transport Industry –
(b) by all Employers and Eligible
Employees within the Road Passenger Transport Industry in the
Republic of South Africa.’
[12] Clause 2 (5) of the
agreement defines an “Eligible Employee” as an
individual, other than an individual who is
part of an Employer’s
Management, Supervisory or Management Support Staff, who works in the
Road Passenger Transport Industry
and who is in the permanent employ
of an Employer in that industry.
Section 23
(2) provides that a
collective agreement binds for the whole period of the collective
agreement every person bound in terms of
section 23
(1)(c) who was a
member at the time it became binding, or who became a member after it
became binding whether that person continues
to be a member of the
registered trade union.
[13] Based on the above,
it is clear that the agreement is binding on all the respondents who
were members of SATAWU on and after
1 April 2011 when it became
operative. It will remain binding on them until 31 March 2012 as its
duration is from 1 April 2011
to 31 March 2012. Their resignation
from SATAWU after the agreement was concluded is of no moment. The
agreement is also binding,
for its duration, on the remaining
respondents because they are identified in the agreement as people on
whom it is binding as
they fall within the category of “Eligible
Employees” as envisaged in clause 2 (5) of the agreement. I
have rejected
the respondents’ argument that the agreement is
not binding on them because it has no basis.
[14] Partial concerted
refusal to work by persons who are employed by the same employer for
the purpose of remedying a grievance
or resolving a dispute in
respect of any matter of mutual interest between employer and
employee constitutes strike action in terms
of
section 213
of the
LRA. Relying on the decision in
Simba (Pty) ltd v Food &
Allied Workers Union and Others
(1998) 19 ILJ 1593 (LC), the
respondents argued that their conduct did not constitute an
unprotected strike as they refused to do
work which they were not
legally required to do. It was the respondents’ argument that
the applicant was acting in contravention
of the BCEA by not granting
them meal breaks and requiring them to do night work without
providing them with transport at the commencement
and end of their
shifts which started before 06h00 and ended after 18h00. They also
argued that as the applicant’s conduct
was illegal because it
was in breach of the BCEA this application should be refused. In this
regard they referred to this court’s
decision in
Simba (Pty)
Ltd v Food and Allied Workers Union and Others
(1997) 18 ILJ 558
(LC).
[15] The present case can
be differentiated from the two decisions the respondents sought to
rely on because it involves a collective
agreement which is binding
on the parties. The respondents’ concerted refusal to do night
work for the purpose of resolving
the dispute over meal breaks,
spreadover and transport to and from work when doing night work
constitutes a strike.
[16] The issues which
form the basis of the respondents’ dispute are governed by the
agreement; meal intervals in clause 8
(3), spreadover in clause 8 (6)
and night shift allowance in clause 12. Clause 39 of the agreement
provides the dispute resolution
procedure. It refers to conciliation
mediation and/or arbitration. The respondents’ strike action to
resolve issues governed
by the agreement was in breach of clause 39
of the agreement,
sections 24
and
65
(3) of the LRA and therefore
unprotected.
[17]
Section 17
of the
BCEA requires that employees be compensated for night work. It is
common cause that the agreement provides that the respondents
be
granted an allowance for night work.
Section 17
(2) further provides
for the availability of transport between the employee’s place
of residence and the workplace at the
commencement and conclusion of
the shift. In dealing with night work therefore the parties included
only the allowance part of
section 17
and excluded the part dealing
with availability of transportation.
Section 49
(I)(b) of the BCEA
prohibits parties to a collective agreement from reducing protection
afforded to employees who perform night
work in terms of
section 17
(3) and (4) of the BCEA. Availability of transportation to employees
doing night work is provided for in
section 17
(2)(b) of the BCEA and
falls within the realm of the basic conditions which can be excluded,
in terms of
section 49
of the BCEA, by a collective agreement
concluded in a bargaining council. The right of workers doing night
work to transportation
has been excluded. The dispute regarding the
exclusion of the availability of transport for employees doing night
work therefore
falls within the disputes governed by the agreement as
it deals with the exclusion of the right of employees doing night
work to
transportation. I therefore concluded that the respondents’
strike action based on the applicant’s refusal to provide
the
respondents who did night work with transport to and from their
places of residence at the commencement and end of night work
was
unprotected for the same reasons which rendered their strike action
for meal intervals and spreadover unprotected. All the
disputes and
grievances which led the respondents to embark on the unprotected
strike are governed by the agreement. The respondents
correctly
referred them to the SARPBC for conciliation. They should have
referred them to the same SARPBC for arbitration. Their
failure to do
so and embarking on a strike instead rendered their strike action
unprotected.
Urgency
[19] The applicant has
proved its
prima
facie
right
by proving that the respondents should have referred the matter to
arbitration, in terms of the agreement, the dispute it
sought to
resolve by embarking on an unprotected strike. The applicant has a
right to schedule shifts in terms of the agreement
and to conduct its
business free from interruption by unprotected strikes.
[20] The balance of
convenience favoured the applicant in that the applicant would have
suffered more prejudice had this application
been refused than the
respondents had it been granted. I say so because the applicant could
have suffered financial loss and the
loss of the contract for
ferrying passengers to Gautrain bus stations. The respondents may be
granted relief by the arbitrator
which will address all the prejudice
they will have suffer should the arbitrator find in their favour.
[22] I considered the
respondents’ point
in
limine
that
the applicant was not entitled to any form of interdict because it
has an alternative remedy of employing other people to work
before
06h00 and after 18h00. At the time of this application,
those people had already
started working for the applicant before 06h00 and after 18h00. It is
true that an applicant for an interdict
has to prove that there is no
other adequate available remedy. In
Setlogelo
v Setlogelo,
3
the court considered
whether a claim for damages would not have been an adequate remedy.
Dealing with the question of alternative
remedy,
the
court in
Minister
of Law and Order v Committee of the Church Summit,
4
found that alternative
remedy must be adequate in the circumstances, ordinary and
reasonable; must be a legal remedy and grant similar
protection. The
alternative remedy that is referred to is alternative remedy to the
grant of an interdict for the violation of
the applicant’s
right by the respondents.
[23] I have already found
that the respondents violated the applicant’s right to conduct
its business in terms of the agreement.
It cannot be said that
employing other employees to perform duties which the respondents
refuse to perform in breach of the agreement,
such conduct does not
constitute alternative remedy for the violation of the applicant’s
rights. An example of alternative
remedy in the context of an
application for an interdict would be damages. The respondents’
point
in
limine
therefore
has no basis. In the circumstances,
I
accepted the applicant’s argument that it had no alternative
remedy. Having considered all the factors which I had to consider
collectively I concluded that the application was urgent.
[24] It is for these
reasons that I granted the interdict on 13 January 2012.
_______________________
LALLIE J
Judge of the Labour Court
APPEARANCES
FOR THE APPLICANT:
Advocate Cassim SC
Instructed by Bowman
Gilfillan Incorporated
FOR THE RESPONDENTS: Mr
Van Huysteen of Van Huysteen Incorporated
1
75
of 1997.
2
66
of 1995.
3
1914
AD 221.
4
[1994]
(3) SA 89
(B
).