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[2012] ZALCD 22
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Apollo Tyres SA (Pty) Ltd v National Union of Metalworkers of South Africa and Others (D172/12) [2012] ZALCD 22 (12 March 2012)
Not reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
DURBAN
JUDGMENT
case
no: D172/12
In the matter between:
APOLLO TYRES SA (PTY) LTD
Applicant
and
NATIONAL UNION OF METALSWORKERS
OF SOUTH AFRICA
First Respondent
EMPLOYEES EMPLOYED AT APOLLO TYRES (DURBAN FACTORY)
Second and further Respondents
Heard
:
9 March 2012
Delivered
:
12 March 2012
judgment
VAN NIEKERK J
This is an urgent application in which the applicant seeks an
interim order interdicting a strike that has been called at its
premises. It does so by seeking a declaratory order to the effect
that the substantive underlying demand for the restoration
of the
shift system worked at the applicant’s Durban factory prior to
20 February 2012 is unlawful, and because the union
has failed to
comply with the recognition agreement.
It is not disputed that the application is urgent. In so far as the
applicant contends that it has a prima facie right that entitles
it
to the relief sought, this is obviously dependent on the correctness
of its contentions as recorded in paragraph [1].
I do not intend to burden this judgment with a recitation of the
material facts – these are largely a matter of common
cause.
All that needs to be recorded for present purposes is that on 12
February 2012, this court (per Gush J), in relation to
a previous
application to interdict a strike called at the applicant’s
premises, granted an order in the following terms:
“
The second and further respondents are
interdicted from continuing with or participating in a strike
concerning the implementation
of the new shift system and are
directed to tender their services in accordance with the new shift
pattern
unless and until they
have complied with the provisions of section 64 (1) of the LRA
”
(own emphasis).
That order was granted in circumstances where the union had
initially contended that it was entitled to call a strike without
compliance with the procedural limitations contained in s 64(1)
because the applicant had failed to restore the status quo as
demanded by the union in terms of s 64(4). In other words, the court
found that the strike was unprocedural, not that it was
unprotected
for any substantive reason, and interdicted the strike for so long
as the union failed to comply with the procedural
requirements set
out in s 64 (1). Those requirements have been met, and there is no
bar either in terms of s 64(1) or the order
granted on 12 February
to the strike that is the subject of these proceedings.
In response to the applicant’s contention that the union’s
demand is unlawful because it requires the applicant to
implement a
shift system that contravened the BCEA, the union modified its
demand to require agreement to apply for a ministerial
variation or
exemption so as to permit the restoration of the old shift pattern.
The union’s demand is not that the applicant
adopts a shift
system that contravenes the BCEA. Its demand, as modified, is that
the applicant agrees to apply for a variation
so as to permit the
reinstatement of the shift system it demands, and that it be
implemented if and when the variation is forthcoming.
The applicant’s case appears ultimately to be that it would be
inconvenient to have to apply for the necessary variation
on an
annual basis, as contemplated by the BCEA . The applicant’s
inconvenience is not a factor that is relevant to the
determination
of the lawfulness of the union’s demand. The shift system that
is the subject of the union’s demand
is one that its members
regard as convenient, but that equally is not a basis for this court
to intervene in the power play that
has been initiated. Following
this, and to the extent that the applicant contends that the union’s
demand is unreasonable
and that it is entitled to an order on that
basis, the LRA establishes a voluntarist system of collective
bargaining. This precludes
courts from determining whether parties
are acting rationally during the collective bargaining process, and
in particular, from
determining the rationality of a party’s
demand. There is an exception perhaps where a demand is unreasonable
in the sense
that it is incapable of acceptance or implementation or
that it would require the party to whom the demand is directed to
act
unlawfully, but this is not a case that falls into that
category.
In so far as the applicant contends that the strike is unprotected
because the union has failed to comply with pre-strike procedures
established by the recognition agreement, the law is clear. In
County Fair Foods (Pty) Ltd v FAWU
[2001] 5 BLLR 494
(LAC),
the Labour Appeal Court held that it was sufficient for a union
party to comply either with the relevant statutory procedures
or
with the provisions of a collective agreement to the extent that the
agreement establishes a dispute resolution procedure.
Although that
decision has been criticised, it remains binding and I fail to
appreciate any basis on which I am entitled to depart
from it.
In the circumstances, the applicant has failed to establish a prima
facie right to the relief that it seeks, and the application
stands
to be dismissed.
Finally, in relation to costs, the parties remain locked in a power
struggle over the issue of a shift system. One way or the
other,
they will have to resolve their differences. In my view, an order
for costs would prejudice the prospects of an expeditious
resolution
of the dispute between them, and for that reason, on tea sis of
National Union of Mineworkers v East Rand Gold and Uranium Ltd
(1991) 12
ILJ
1221 (A), I intend to make no order as to
costs.
Order
I accordingly make the following order:
The application is dismissed.
There is no order as to costs.
_______________________
Van Niekerk J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Mr A Rocher Farrell Inc
Attorneys
.
FIRST RESPONDENT:
Ms B Witcher, Brett
Purdon Attorneys