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[2012] ZALCCT 1
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Cape Clothing Association v Southern African Clothing and Textile Workers Union and Another (C 1006/2011) [2012] ZALCCT 1; [2012] 6 BLLR 552 (LC); (2012) 33 ILJ 1643 (LC) (13 January 2012)
REPUBLIC OF SOUTH AFRICA
Reportable
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT CAPE TOWN
CASE NO C 1006/2011
In the
matter between:
CAPE
CLOTHING ASSOCIATION
…..........................................................
Applicant
and
SOUTHERN
AFRICAN CLOTHING
AND
TEXTILE WORKERS UNION
…............................................
First
Respondent
NATIONAL
BARGAINING COUNCIL FOR THE
CLOTHING
MANUFACTURING INDUSTRY
(CAPE
CHAMBER)
…...............................................................
Second
Respondent
Date
heard: 18 December 2011
Date of
order: 19 December 2011
Reasons
for judgment: 13 January 2012
REASONS FOR JUDGMENT
VAN NIEKERK J
Introduction
On 19 December 2011, I granted the following order:
“
1. A rule nisi is issued calling on the
first respondent to show cause on 25 January 2012 why a final order
should not be made in
the following terms:
1.1 Declaring that the dispute between the applicant and the first
respondent pertaining to the interpretation, application or
rectification
of clause 5 of the 2011/2012 substantive agreement
between the applicant and the first respondent, is a dispute
contemplated by
section 24
of the
Labour Relations Act, 66 of 1995
;
1.2 Ordering that the first respondent is interdicted and
restrained from calling upon its members to embark on strike action
in
relation to the dispute;
1.3 Ordering that the first respondent inform its members that
strike action pertaining to the dispute will be unprotected and that
they should desist from such strike action;
1.4 Ordering the first respondent to pay the costs of these
proceedings.
2. Subparagraphs 1.2 and 1.3 above shall operate as an interim
order pending he final outcome of this application
.”
These are my brief reasons for granting the order.
[2] The facts relevant to the application are common cause. The
essence of the dispute between the parties concerns the quantum
of
annual leave pay for the period of the sector’s annual shut
down. Part F of the National Consolidated Main Agreement makes
provision for every employee to be granted at least three consecutive
weeks’ plus one working day’s annual leave between
15
December of each year and 14 January of the next. In effect,
employees receive 22 calendar days leave.
[3] Clause 5 of the 2011/2012 substantive agreement between the
parties deals separately with the issue of payment for annual leave,
and how public holidays that fall within a period of annual leave are
to be accounted for. At issue in these proceedings is clause
5 of the
agreement. It reads as follows:
“
WESTERN CAPE PUBLIC HOLIDAYS
5.1 The Western Cape collective agreement to be amended to reflect
the wording of the KwaZulu Natal metro agreement wording on payment
of public holidays falling during the shutdown of the industry. This
parity dispensation shall become binding with effect from
the
2011/2012 annual leave period.
5.2 Consequent to the implementation of the provisions of
sub-clause 5.1 above, Western Cape employees shall be paid an
additional
two (2) days’ paid leave for the 2011/2012 annual
leave period.”
[4] The union contends that the existing terms and conditions of
employment of its members in the Western Cape require that they
be
paid an amount equivalent to 20 (or 21) days pay over the annual
industry shut down period. The claim is computed on the basis
that
the Main Agreement entitles each worker to 18 (or 19) days’
pay, plus the additional two days referred to in clause
5.2 of the
2011/2012 substantive agreement. (Whether the claim is for 20 or 21
days is dependent on whether the Day of Reconciliation,
16 December,
falls within the annual shut down period of any particular employer).
[5] The applicant does not share this interpretation. It contends
that clause 5 of the collective agreement sought to ensure parity
with the dispensation on KwaZulu Natal and that the union’s
interpretation of clause 15 would require employers in the Western
Cape to pay a premium of two days pay, over and above that paid by
employers in KZN. (It appears that in KZN, employers pay employees
for 15 days plus 3 (or 4 if they shut down on 15 December)). On 29
November 2011 the applicant declared a dispute about the
interpretation
and application of clause 5. The dispute was referred
to expedited arbitration.
[6] Shortly before the commencement of the arbitration, there was a
dispute about the arbitrator’s terms of reference and
the
proceedings were aborted. On 14 December 2011, the union referred a
dispute to the bargaining council, contending that the
applicant had
unilaterally varied the terms and conditions of employment of its
members by paying less than 20 or 21 days for the
2011/2012 holiday
period, and seeking the restoration of the status quo as contemplated
by
s 64
(4). The union subsequently issued a notice of its intention
to strike in circumstances where it contended that the time limits
contained in
s 64
(1) did not apply, at least as against those of the
applicants members who failed or refused to pay 20 or 21 days leave.
[7] In these proceedings, in essence, the union contends that the
existing terms and conditions of employment that apply to its
members
in the Western Cape require their employers to pay to them the amount
equivalent to 20 (or 21) days pay over the shut down
period, and that
the applicant’s members have unilaterally changed this term by
stating that the employers will only pay
for 18 (or 19) days pay.
Having declared a dispute in terms of
s 64(4)
, the union contends
that there is no reason in law why it should not declare a dispute in
terms of
s 64(4)
, and to take strike action when the employers do not
reverse the unilateral change complained of within the 48 hour period
referred
to in
s 64(3)
(e).
[8] Mr Oosthuizen SC, for the applicant, submitted that properly
construed, the dispute between the parties is one concerning the
interpretation and application of clause 5 of the collective
agreement, and that in terms of
s 24
of the LRA, that is a dispute
that is required to be referred to arbitration. Since the substantive
limitations on the right to
strike in
s 65(1)
(c) of the Act extend
to disputes that the Act requires be referred to arbitration or
adjudication, the strike called by the union
is unprotected.
[9] In
Ceramic Industries LTA t/a Betta Sanitary Ware v National
Construction Building and Allied Workers Union (2)
(1997) 18
ILJ
671 (LAC), Froneman JA dealt with the characterisation of a
dispute for the purposes of strike action. In that case, a union had
referred a dispute to the CCMA concerning the harassment of its
officials and members by certain members of management. Rejecting
a
characterisation by this court that the subject matter of the dispute
included a demand for the dismissal of the latter, Froneman
JA said:
“
Even it was open to approach the matter
on the basis of a characterisation of the issue as one involving a
specific demand, there
are compelling reasons why it would not in any
event not affect the eventual outcome of the present case. The
union’s initial
complaint was the alleged harassment of union
officials and employees. For the reasons already stated that was a
justiciable rights
dispute with a specific remedy to be pursued at
the Labour Court. The union could not convert the nature of that
underlying dispute
into a non-justiciable one simply by adding a
demand for a remedy falling outside those provided by the Act. The
tail cannot wag
the dog. If such an approach is allowed, an
underlying rights dispute normally justiciable or arbitrable in terms
of the Act could
be transformed into a strikeable issue simply by
adding a demand for a remedy not provided for in the Act. That would
not be acceptable
” (at
677J-678A).
[10] This has been interpreted by the Labour Appeal Court to mean
that it is this court’s duty to ascertain the true or real
issue in dispute (see
Coin Security Group (Pty) Ltd v Adams &
others
(2000) 21 ILJ 925 (LAC), at 9309B). In doing so, the court
is obliged to look at the substance of a dispute, and not the form in
which it is presented. Nor is the characterisation of a dispute by
any of the parties decisive.
[11] Applying these principles, it seems to me that properly
characterised, the dispute between the parties in the present
instance
concerns the application and interpretation of the
collective agreement between them, and more particularly of clause 5.
The interpretation
of clause 5 is obviously contested terrain, and
what the union effectively claims is that those employers who fail to
pay the additional
two days’ leave pay are in breach of the
collective agreement. The appropriate remedy in this instance is to
invoke the provisions
of
s 24.
There is a weight of authority to
suggest that the CCMA has the necessary jurisdiction to correct any
erroneous interpretation
of a collective agreement and to order a
party in breach of the agreement to comply with it (see, for example,
Fouche A in
Oelofsen & another and SA Police Service
(2006)
27
ILJ
639 (A, especially at 651, referring to
Coetzee v
SAPS
PSCB 146-03/04). To find that the union members’
existing terms and conditions of employment entitle them to leave as
contended
for by the union, I would necessarily be obliged to
determine the dispute about the interpretation of clause 5. This I am
clearly
not empowered to do – a dispute of this nature must in
the first instance be referred to arbitration. It is not possible for
me to make a ruling in favour of the union without usurping the
arbitrator’s function. This court has no jurisdiction to
adjudicate a dispute that the Act requires to be arbitrated (see
s
157(3)).
For those reasons, in my view, the application cannot
succeed.
[12] In any event, I am not persuaded that the provisions of
s 64(4)
give rise to a right to strike in the present circumstances. That
section is concerned to preserve the status quo, pending the
outcome
the conciliation process prescribed by the Act. To invoke the remedy
established by
s 64
, it is necessary to establish both an existing
term and condition of employment and the fact of a variation of that
term and condition
by the employer, in circumstances where the
employee has not consented to the variation. The easy examples are
the unilateral change
to hours of work or a shift system, or the
unilateral implementation of an offer tabled by the employer during
the bargaining process
that has the effect of increasing employees’
remuneration but not to the extent demanded by the union. Here, there
is some
overt act by the employer that constitutes the act of
variation. That element is not present in this instance. The status
quo relied
on by the union is its interpretation of the Main
Agreement and the 2011/2012 substantive agreement. That
interpretation is contested
terrain. It does not ordinarily amount to
a unilateral change to employment conditions when a union claims that
a collective agreement
giving rise to those conditions provides for
x
while the employer claims that they provide for
y
.
Secondly, the temporary nature of the status quo relief is a clear
indication that it is not intended to apply in circumstances
such as
the present. Du Toit
et al
in
Labour Relations Law: A
Comprehensive Guide
5th ed., observe that
s 64(4)
does not apply
to changes that may be referred to arbitration or adjudication in
terms of the Act, because such disputes are excluded
altogether from
the ambit of protected industrial action (see p 304). There is
another reason why this is so. Assuming the union’s
submissions
to be correct, it would mean that the employers in the sector are
obliged to pay annual leave pay at the rate the union
contends for,
but only for the period referred to in
s 64
(4), i.e. the period of
the conciliation proceedings. Presumably, after the expiry of that
period, the union’s members would
then be obliged to return the
additional leave pay they claim to their employers. This is not
consistent with the purpose of
s 64(4)
, which, as I have indicated,
is ultimately directed at delaying an employer’s right to
resort to economic power in the form
of a unilateral implementation
of changes to conditions of employment.
[13] In short: even if the dispute between the parties is to be
categorised as a dispute concerning a unilateral change to conditions
of employment, the status quo remedy established by
s 64
is not
applicable in the present instance, and the union is not entitled to
rely on
s 64
(?) to give notice of a strike without the time periods
established by
s 64
being exhausted.
[14] For these reasons, I was satisfied that the applicant had
established a prima facie right for the purposes of the test
applicable
to the granting of interim relief, and issued the rule
nisi
reflected in paragraph [1].
_______________________
André van Niekerk
Judge
APPEARANCES
APPLICANT: Adv A Oosthuizen SC, instructed by Norton Rose
Fax (021) 418 6900
FIRST RESPONDENT: Mr J Whyte, Cheadle Thomson and Haysom Inc.
Fax (012) 422 2376