About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2012
>>
[2012] ZALCJHB 52
|
|
South African Municipal Workers Union obo Members in the employ of the Respondent v Ekurhuleni Metropolitan Municipality (J1120/11) [2012] ZALCJHB 52; [2012] 11 BLLR 1174 (LC); (2012) 33 ILJ 2961 (LC) (31 May 2012)
Reportable
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no.: J 1120/11
In
the matter between:
SOUTH
AFRICAN MUNICIPAL WORKERS
UNION
obo ITS MEMBERS IN THE EMPLOY
OF
THE RESPONDENT
….........................................................................................
Applicant
and
EKURHULENI
METROPOLITAN MUNICIPALITY
…............................................
Respondent
Heard:
29 November 2011
Order:
29 November 2011
Reasons:
31 May 2012
Summary:
Full time shopstewards entitled to payment of their salaries during a
protected strike provided that they continue to tender
their services
to their union in terms of an applicable collective agreement.
JUDGMENT
AC
BASSON J
On
29 November 2011,I gave the following order:
The
Respondent is interdicted from deducting amounts from the salaries
of members of the Applicant in the Respondent’s employ
contrary to the provisions of
section 34(1)
of the
Basic Conditions
of Employment Act, of 1997
.
The
Respondent is ordered to make payments of their arrear salaries for
the month of March, April, May and June 2011 to:
Elsie
Pos;
Nhlanhla
Mazibuko;
Phillip
Moepye
The
Respondent is interdicted from withholding the salaries of the
aforesaid employees
The
Respondent is ordered to make payment of the amounts which the
Respondent undertook to deduct from the salaries of the employees
and to pay to the creditors of Elsie Pos, Nhlanhla Mazibuko and
Philip Moepye and which payments have not been made for the months
of March, April, May and June 2011within 24 hours of the issue of
this order.
The
Respondent is ordered to pay the costs of this application, which
costs include the costs of Senior Counsel.
Here
are the brief reasons for my order. The applicant (the South African
Municipal Workers Union – hereinafter referred
to as ‘SAMWU’)
approached this Court on motion on behalf of three of its members
for an order that the respondent
(the Ekurhuleni Metropolitan
Municipality) be interdicted from deducting amounts from the
salaries of Ms. Elsie Pos (Clinic Head
– hereinafter referred
to as ‘Pos’); Mr Nhlankhla Mazibuko (Senior Property
Officer – hereinafter referred
to as ‘Mazibuko’)
and Mr Phillip Moepye (Cashier – hereinafter referred to as
‘Moepye’) and for
an order directing the respondent to
repay the deductions made from their salaries.
When
the matter first came before this Court by way of motion, the issue
of whether the three employees mentioned above in fact
attended work
during the strike and therefore entitled to be remunerated was
referred to oral evidence in light of the dispute
of facts which
arose on the papers. At issue was whether these three employees
(full-time shop stewards) were entitled to be
paid during the
currency of a strike in circumstances where the principle of
‘no-work-no-pay’ was applied to the
rest of the
workforce who went on strike. The factual issue referred to oral
evidence only concerns the narrow question of whether
the three
employees attended work during the strike.
The
respondent treated these employees as if they were not rendering
services during the currency of the strike and consequently
applied
the principle of ‘no-work-no-pay’ to them.
In
terms of the South African Local Government Bargaining Council: Main
Agreement (hereinafter referred to as ‘the main
agreement’)
concluded between the South African Local Government Association
(‘SALGA’); the Independent Municipal
and Allied Trade
Union and SAMWU, the unions have the right to elect full-time shop
stewards who will remain in the employ of
the respondent but will
represent the interests of the trade union and their members on a
full time basis. The three individual
employees have been elected as
full time shop stewards to represent SAMWU’s members. In their
capacity as full time shop
stewards, they received their salaries
and all benefits which are allowed for in the main collective
agreement until the aforementioned
deductions were made from their
salaries on the basis that they have participated in the strike.
On
10 February 2011, SAMWU gave notice to the respondent that it
intended to embark on protracted strike action from approximately
22
February 2011 to May 2012 with the intention to settle a dispute in
respect of the issues as set out in the strike notice
of even date.
According
to the applicant, the full time shop steward did not participate in
the strike but were actively engaged in managing
the strike and
communicating with the striking members and the respondent. In this
regard, the Court was referred to clause 2.5.6
of the main
collective agreement in terms of which it is stated that full time
shop stewards ‘shall represent the interest
of their trade
union and its members.’ According to the applicant’s
founding affidavit, all three employees continued
attending their
places of work and continued with their duties during the currency
of the strike. In support hereof the respective
attendance registers
of the three employees for the periods March, April and May 2011 are
attached to the founding affidavit.
Further in support of the
contention that they were at work, the applicant attached to its
papers a letter dated 21 February
2011 informing the respondent of
the fact that the strike was to commence on 22 February 2011;
correspondence relating to a LLF
Task Team Meeting; documents
confirming that the individual employees continued to deal with
disciplinary proceedings that were
set down by the respondent during
the duration of the strike; documents confirming that discussion
meetings were held with the
respondent to bring the strike to an end
and, lastly, documentation confirming that meetings were held
between the respondent
and SAMWU’s branch executive committee.
The
respondent’s view was that the three individuals had taken
part in a strike and consequently because the principle of
‘no
work no pay’ applied, the respondent was entitled to withhold
remuneration from the individual applicants. The
respondent did not
dispute that it had made the deductions unilaterally from the
salaries of the three full time shop stewards
and that they did not
give them reasons for doing so.
As
already pointed out, the factual dispute about whether the three
shop stewards attended work during the strike and therefore
entitled
to be remunerated, was referred to oral evidence. In the present
case, the three shop stewards allege that they did
report for work
as
per
normal at the union’s offices. The respondent
alleges that they were absent from work as they were participating
in the
strike. In essence, therefore, it is the case before this
Court that because the trade union was on strike, the full-time shop
stewards were deemed to also have been on strike.
Oral
evidence
Pos
and Kekana gave evidence on behalf of the applicant. The respondent
called no witnesses. Pos confirmed that she was elected
as a
full-time shop steward in April 2004. Once appointed, she
relinquished her position as a nurse to attend to the duties of
the
union full time. She confirmed that she submitted leave forms and
study leave forms to the responsible person at Human Resources
of
the respondent. The union will, however, sign the leave form first.
In respect of her duties, she confirmed that she is accountable
to
the trade union, its members as well as the structures of the union.
As a full-time shop steward, she therefore did not do
the duties of
the employer. She testified that she reported to the chairperson of
the region – a one Mr. William Kekana.
He was employed by the
respondent until his dismissal as an employee on 11 February 2011.
He, however, remained as the chairperson
of the region in terms of
the constitution of SAMWU. At all material times he was her
supervisor. Pos explained what her duties
were during the course of
the strike. She explained that she would remain doing her
administrative duties during the strike and
would report at the
union offices. She would fill in the attendance register every day
and would go out to monitor the activities
of the union. Sometimes
she would have meetings with the employer and at other times she
would attend to other union activities.
With reference to her
attendance register attached to the founding affidavit, she
explained that she would fill in the register
and attach her
initials. Her supervisor (Kekana) would then sign the attendance
register and would thereby confirm her attendance
to the office for
a specific period of time. If she is not at work, he will write a
comment in the ‘comment column’.
She therefore
confirmed, with reference to the attendance register that she was at
work during the period in question. Kekana
confirmed that he had
signed her attendance register and that he therefore confirmed that
she was at work at the relevant time.
With
reference to the attendance register of Moepye, Pos confirmed that
she had signed his attendance register as a supervisor
since Moepye
reported to her (as the branch secretary). Pos confirmed that Moepye
reported for work during the strike. In respect
of Mazibuko, Pos
testified that he likewise attended work during the currency of the
strike. Pos confirmed that the attendance
registers were sent to the
respondent and that the respondent never queried the correctness of
the registers.
Pos
confirmed that they had participated in a strike but testified that
that did not mean that they did not do their duties (as
full time
shop stewards) in terms of the constitution of the union and in
terms of the main agreement. She testified that they
had continued
to serve the interests of their members on a full time basis. She
further, with reference to an affidavit filed
on behalf of the union
in another application brought by the respondent, testified that the
shop stewards acted as marshals at
all pickets and marches in order
to ensure that the members disciplined themselves.
1
Pos
accordingly accepted that they were participating in the strike but
testified that the situation of the three full-time shop
stewards
were different in that they represented the interest of the trade
union during the strike. She explained that although
the respondent
continued to pay their salaries once they were appointed as
full-time shop stewards, they ceased to work for the
employer an
instead rendered their services to the trade union. Consequently,
once an employee becomes a full-time shop steward
the reporting
lines were different: a full-time shop steward no longer reported to
the employer but reported to the union.
Evaluation
of the merits
I
am persuaded on the evidence that the three employees duly attended
work during the period of the strike: They signed the attendance
register during the course of the strike and attended to union
activities during the strike. The only question that remains is
whether full-time shop stewards (who attend to union business on a
full time basis) is entitled to be paid by the employer despite
the
fact that their union is engaged in (protected) strike action and
despite the fact that the principle of ‘no-work-no-pay’
was applied to all striking employees. The real issue in this matter
is therefore the allegation by the respondent that it is
not
required to pay the salaries of the three shop stewards by virtue of
the fact that, once they participate in the strike,
they were not
entitled to be paid by reason of the fact that they were not
rendering their services. The respondent, so it argued,
was
therefore entitled to apply the principle of ‘no-work-no-pay’
to them.
Clause
2.5 of the main agreement provides that each trade union has the
right to elect full-time shop stewards who will be remunerated
on
the basis of the post they held at the time of election. Full-time
shop stewards will receive all salary notches, general
increases and
service condition improvements applicable to such post (clause
2.6.7.1 of the main agreement). Clause 2.5.7.6 of
the main agreement
further states that ‘[a]ll applications for leave will be
dealt with in accordance with the applicable
conditions of service
and will be authorized by the relevant trade union subject to the
provisions that the person designated
in terms of clause 2.5.9.1 is
duly informed’. Clause 2.5.9 states that full-time shop
stewards must report to a designated
member of the employer for
administrative purposes. In terms of clause 2.5.9.2 full-time shop
stewards
shall
report and be accountable to the trade union
structures or members
in accordance with the
respective constitutions and policies of that trade union. I have
already referred to clause 2.5.6.1 which
expressly states that
‘[f]ull- time shop stewards shall represent the interest of
their trade union and its members’.
It is clear from these
clauses of the main agreement that a full-time shop steward no
longer renders work to the employer for
the benefit of the employer.
The task of the full-time shop steward is to act for the benefit of
the union and its members on
a full time basis and in doing so will,
inter
alia,
liaise
with the employer whenever necessary. The anomaly of the position of
the full-time shop steward is the fact that although
he/she remains
employed by the employer and as such is entitled and subject to the
same conditions of service, policies, rules
and regulations which
prevail in his/her employer, the full-time shop steward will not
render a service to,
or
work for the employer for the benefit of that employer: The
full-time shop steward works for the union and for the benefit
of
the union. The further anomaly of this position as full-time shop
steward is the fact that the shop steward,
by
virtue of his/her position,
will
often engage in conflict with the employer over union related
matters. As such full-time shop stewards and employers are
‘natural
adversaries’. (See in this regard:
Independent
Municipal & Allied Trade Union and Others v Rustenburg
Transitional Council
.
2
)
Furthermore,
if regard is had to clauses 2.5.9.2 and 2.5.9.3 of the main
agreement, it is clear that, although shop stewards must
report to a
designated member of the employer for ‘administrative’
purposes, the full-time shop steward is accountable
for the
satisfactory performance of his/her full-time shop steward duties to
the trade union. Furthermore, in terms of clause
2.5.9.3, the trade
union ‘shall ensure that they [the full-time shop stewards]
carry out their duties efficiently and effectively’.
In
respect of the practice of ‘no-work-no-pay’, it is trite
that this practice arises from the principle that an employee
is to
tender his/her services to the
employer
in return for payment
of its salary. If the employee does not tender her services during
the currency of a protected strike,
she will not be entitled to
payment of her remuneration. If regard is had to clause 2.5.6 of the
main agreement, it is clear
that a full-time shop steward represents
the interests of the trade union and as such he/she renders his/her
services to the
trade union to act as its representative in dealings
with the employer. The full-time shop steward, although still an
‘employee’,
no longer tenders his/her services to the
employer. As long as the full-time shop steward tenders and/or
engages in the duties
and obligations of a full-time shop steward
he/she is therefore entitled to the payment of his/her salary. I am
of the view that
this principle extends to full-time shop stewards
who participates in a strike in the sense that they fulfill their
union obligations
whilst the strike is continuing. The principle of
‘no-work-no-pay’ therefore does not apply to a full-time
shop steward
during the course of a strike (provided that the
full-time shop steward engages in trade union activities to the
satisfaction
of the trade union (clause 2.5.9.2 of the main
agreement) and provided that the full-time shop stewards in terms of
the collective
agreement report to the trade union structures during
the currency of the strike).
I
am further of the view that, because of the nature of what full-time
shop stewards do,
their
position cannot be equated with that of an ‘ordinary’
shop steward who remains obligated to render his/her services
to the
employer. A full-time shop steward has by virtue of his/her position
(as a full-time shop steward) been exempted from
rendering his/her
services to the employer. I have debated the question with counsel
on behalf of the respondent namely whether,
in light of the fact
that a full-time shop steward no longer renders a service to the
employer,
it
may be concluded that a full-time shop steward can participate in a
strike. This question is relevant in light of the anomaly
that
arises namely that,
once
an employee is appointed as a full-time shop steward he/she no
longer renders a service/work to the employer in the strict
sense
although he/she remains entitled to the remuneration he/she would
have received had he/she remained in the position appointed
to.
Inherent to strike action is the withdrawal or refusal to work. In
this regard a ‘strike’ is defined as ‘the
partial
or complete concerted
refusal
to work
3
…
by persons who
are or have been 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..’.
4
The question therefore
arises whether a full-time shop steward who participates in a strike
but at the same time continues to
fulfill its obligations towards
its union during the strike, can be said to participate in the
strike particularly in light of
the fact that he/she is not
withdrawing his/her services from the employer.
In
the present case, I am of the view that the employees did not
participate in the strike and therefore they are entitled to
their
remuneration for the months in question. In arriving at this
decision, I have taken note of the following: Firstly, on
the facts,
the employees did not withhold or withdraw their labour from the
employer: They signed in every day and reported for
work (as
full-time shop stewards). Secondly, during the course of the strike
they attended to their duties as full-time shop
stewards: They
monitored the strike and attended disciplinary hearings and
meetings. Thirdly, although I do take the point that
a full-time
shop steward never loses his/her status of being an employee; the
three employees participated in the strike in the
capacity of
serving the interests of the union and its members. Fourthly, the
employer’s obligation to remunerate an employee
is suspended
in terms of
section 67(3)
of the LRA which states that an employer
is not obliged to remunerate an employee for services that the
employee does not render
during a protected strike. There is no
evidence before this Court that the individual employees did not
render their services.
They continued as normal and their
involvement in the strike was in their capacity as full-time shop
stewards who had to manage
the strike on behalf of the union. They
did not refuse to render services to the employer as this obligation
was suspended by
virtue of their appointment as full-time shop
stewards.
In
the event, it is concluded that the three employees were at work and
hence entitled to their salaries. In respect of costs,
I can find no
reason why the applicant should not be entitled to its costs which
costs include the employment of senior counsel.
______________
AC
BASSON J
APPEARANCES
FOR
THE APPLICANT: H van der Riet SC
Instructed by AC Schmidt
Incorporated
FOR
THE RESPONDENTS: Unknown
Instructed by Maria
Phefadu Attorneys
1
In
this regard the following is stated in paragraphs [10] and [11] of
the said affidavit: ‘“[10] It is a longstanding
policy
of the union to deploy its shop stewards to act as marshals at all
pickets and a march is organised by the union to ensure
a
disciplined event. At this moment and since the commencement of the
strike on 22 February 2011, the union shop stewards
have
closely monitored the strike and the conduct of its members. No
complaints of unlawful conduct by members have been brought
to the
attention of the union.’
‘
[11]
I have personally attended most of the marches and pickets during
the current strike. I can state without fear of contradiction,
that
there had been no unlawful acts committed by
bona
fide
members of the union during the strike. The applicant is invited to
approach the union of any complaints of unlawful conduct
by its
members for its part. The union will continue to preach to its
members the importance of disciplined strikes, especially
since
unlawful conduct of striking members is prejudicial to the interest
of the union.’
2
(2000)
21 ILJ 377 (LC). The court held at paras 5 - 7 that ‘So much
should be trite. In the nineteenth century it most certainly
was. No
one
I
denied
the adversarial nature of the relationship between unions and
employers and each dealt with the other accordingly. The
question
became confused, however, when the role of unions became secure and
their legitimacy was accepted, for efforts were
then made to recast
them as partners in a corporatist enterprise. It took a Kahn-Freund
to debunk these unitarist theories and
remind us that
the conflict between capital and labour is eternal: 'Any approach to
the relations between management
and labour is fruitless unless the
divergency of their
A
interests is plainly recognised and
articulated. . . . It was [Mr Justice Higgins, ''the principal
Founding Father of the Australian
system of arbitration and
conciliation'] who said that ''the war between the profit-maker and
the wage-earner is always with
us'.' (The passage is taken from the
last edition of which he was sole author: see
Labour
and the Law
(1977) at 16-17.).
In some cases, no doubt,
the conflict is veiled. Years of cooperation, which can be of
considerable mutual benefit, can encourage
a belief that the union
is the employer's friend. One of the first applicant's constituent
unions was, it seems, seen in precisely
this light in the period
preceding the amalgamation of 1995, presumably because wage
negotiations were normally smooth and because
the union, by
efficiently administering its employee benefit schemes, was
providing the employer as well as its members with
a useful service.
In such a climate it is easy to see why the employer might look with
indulgence upon a situation in which its
top management occupied the
senior positions in the union. Such relationships are seldom
enduring, however, as municipalities
have discovered in the period
since 1995. Obliged to live together though they are, unions and
employers are natural adversaries,
and the first applicant and the
respondent are no exception.
By joining a union, an
employee commits himself to a body that stands in opposition to his
employer. In a real sense he “goes
over” to the
opposition. This can be a breach of the duty of fidelity owed by an
employee to an employer for “the
servant is bound to give of
personal service to his master and, as a consequence, to refrain
from any course of conduct the natural
tendency of which used to
injure his master's trade or business” (
R
v Eayrs
(1894) 12 SC 330
at 332). The
judgment in
Premier Medical & Industrial
Equipment (Pty) Ltd v Winkler
1971 (3) SA
866
(W) at 867H-I is in the same vein: “There can be no doubt
that during the currency of his contract of employment the servant
owes a fiduciary duty to his master which involves an obligation not
to work against his master's interests.” As these
and other
cases reveal, the employee can commit a breach of the duty by
moonlighting for a competitor, and does so when he discloses
confidential information, touts for business on another's behalf or
encourages fellow employees to leave the employer and take
up work
elsewhere. There is, as far as I know, no case in our law in which
it has been held to be lawful to dismiss an employee
for joining a
union but I have little doubt that such a dismissal might be
legitimate at common law. Aligning oneself with a
body specifically
established as a counterweight to the employer is arguably a greater
infringement of the duty of fidelity than
taking up a part-time
position with a competitor; it certainly seems to be no less.
’
3
My
emphasis.
4
Section
213
of the LRA.