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[2013] ZALCJHB 31
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Brinant Security Services (Pty) Ltd v United Private Sector Workers Union UPSWU and Others (J3339/12) [2013] ZALCJHB 31 (18 March 2013)
7
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case
no: J3339/12
In the matter between:
BRINANT SECURITY
SERVICES (PTY) LTD
................................................
Applicant
and
UNITED PRIVATE SECTOR
WORKERS
UNION (UPSWU)
...............................................................................
First
Respondent
PATRICK TLAKA &
115 OTHERS
...............................
Second
to 117
th
Respondents
Heard :
17
January 2013
Order
: 17
January 2013
Judgment : 18 March
2013
Summary : Return date.
True nature of the dispute relates to a refusal to bargain. Intended
strike unprotected. Rule
Nisi
confirmed.
judgment- REASONS FOR
ORDER
AC BASSON J
Introduction
[1] On 20 December 2012
Lallie, J gave an order in the following terms:
“
1.
The non-compliance with the Rules of this Court in respect of forms
and times is condoned and the matter is heard as one of urgency;
2.
A rule nisi with return date on 14 February 2013 at 10:00, or as soon
thereafter as the matter may be heard, is issued calling
upon the
Respondents to show cause why the following order should not be made
final:
2.1.
The strike action embarked upon by the 1
st
Respondent
union and its members (the 2
nd
to further Respondents, a
list of which is annexed hereto as Annexure “X”) employed
by the Applicant, as from 05:45
on 19 December 2012, is declared to
be unprotected strike action;
2.2.
The 1
st
Respondent union and its members are interdicted
and restrained from inciting or participating in any conduct in
contemplation
or furtherance of the unprotected strike action;
2.3.
The 1
st
Respondent union and its members (the 2
nd
to 117
th
Respondents) are ordered to pay the Applicant’s
costs of the application on the attorney and own client scale,
jointly and
severally, the one paying the others to be absolved;
3.
The order as per paragraphs 2.1 and 2.3 shall operate as an interim
order with immediate effect, pending the return day rule
nisi;
4.
Service of the Court order must be effected on Respondent union and
its members by means of affixing a copy of this order to
the main
entrances of the sites where the Second to 117
th
Respondents render services and by transmitting a copy of this order
to the principal office of the 1
st
Respondent union by
means of telefax.”
[2] This matter came
before this Court on the return day of a rule
nis
i
issued by Lallie, J on 20 December 2012 in which the first respondent
(United Private Sector Workers Union – hereinafter
referred to
“the union”) and second respondents (Patrick Tlaka and
115 others) were interdicted from participating
or inciting conduct
in contemplation of an unprotected strike. (I will refer to the first
and second respondents collectively as
‘the respondents’
except where the context necessitates reference to a specific
respondent). The respondents opposed
the confirmation of the rule
nisi
.
[3] The applicant is a
private security firm that employs approximately 800 employees at
various sites. These employees render private
security services to a
number of clients.
[4] From the papers it
appears that the union ostensibly recruited a number of members
amongst the employees of the applicant and
on 16 October 2012 the
union submitted a list to the applicant containing the names of the
116 individuals who purportedly joined
the union. The letter attached
to the list of employees recorded that the union sought the following
rights from the applicant
in terms of the Labour Relations Act
1
(“the LRA”:
The right to access (section 12 of the LRA); the right to stop order
deductions (section 13 of the LRA)
and the right to union
representation (section 14 of the LRA).
[5] It was not disputed
that, before the parties could meet to discuss the request, the union
referred a dispute to the CCMA on
23 October 2012. The date upon
which the dispute arose is recorded on the referral form (LRA7:11) as
16 October 2013 which is the
exact same date as the date on which the
union presented the introductory letter and the list of names of
individual members to
the applicant.
[6] On 12 November 2012
the parties met at the CCMA in an attempt to conciliate the dispute
referred to the CCMA. The applicant
advised the union at the
conciliation meeting that it will not bargain with the union prior to
the finalisation of a proper verification
exercise of the names on
the list attached to the introductory letter. The parties then met
again on 29 November 2012 and a follow-up
meeting was scheduled for
12 November 2012 to discuss the verification of membership and the
issue of bargaining.
[7] It is common cause
that the certificate of non-resolution was issued on 26 November 2012
at the insistence of the union. The
certificate recorded that the
union may embark on strike action.
[8] The union issued a
strike notice to the applicant on 12 December 2012 in terms of
section 64(1)(a)(i) of the LRA. The notice
indicated that the strike
will commence on 19 December 2012 at 5:45. Furthermore, if regard is
had to the strike notice issued
by the union it is clear that the
union did not articulate the grievances or demands that must be met
by the applicant in order
to avoid or resolve the threatened strike
action which in turn would also render the intended strike action
unprotected. (I will
return to the issue of the defective notice
hereinbelow.)
[9] The applicant advised
the union on 14 December 2012 that the strike would be unprotected
and also advised the union that the
Labour Court would be approached
and that a punitive cost order would be sought against the union and
their members should the
strike not be suspended until the
verification process has been completed. No response was received
from the union and the applicant
approached the Labour Court for
urgent relief.
Was the strike
unprotected?
[10] I have perused the
papers and it is, in my view, clear that the true dispute between the
parties pertained to a refusal to
bargain. (I will return to my
reasons in more detail herein below.) As no advisory award –
which is peremptory before the
union can give notice of the intention
to strike – was issued, the strike was consequently
unprotected.
[11] The respondents
relied on the fact that because the certificate of non-resolution
gave them the option to strike (which option
they elected) they were
entitled to strike. Furthermore, according to the respondents, the
applicant should have applied for an
order reviewing and setting
aside the certificate. According to the respondents, the certificate
of non-resolution therefore remained
valid until set aside by the
Labour Court.
Evaluation of the
merits
[12] Firstly, it is trite
law that a dispute over a refusal to bargain must be referred for an
advisory award before notice may
be given in terms of the LRA of the
intention to strike.
2
Secondly, in order to
determine what the true or actual issue in dispute is, the Court will
have regard to the referral form (LRA7:11)
as well as the facts
placed before it. It is further trite that the characterisation of
the dispute by a party is therefore not
conclusive of the true nature
of the dispute. The Court is therefore enjoyed to have regard at the
surrounding facts and not only
to the LRA7:11 which contains a
characterisation of the dispute by one of the parties.
3
The most effective way of
determining the real issue in dispute is to ask the following
question:
4
What must the employer do
in order to avoid the commencement of the strike. Where the strike
has already begun the question would
then be: what must the employer
do in order to bring an end to the strike. Furthermore, employees
must clarify the issue in dispute
before they embark upon strike
action – they cannot merely embark on strike action over an
issue that has not been dealt
with at conciliation.
5
[14] I have considered
the papers and it is in my view clear that the real dispute between
the parties was a complaint about the
refusal to bargain despite the
fact that the respondents have referred a dispute about
organisational rights to the CCMA. I have
already indicated that the
characterisation of a dispute in the referral form is not conclusive.
Furthermore, if regard is had
to the papers it is clear that the real
issue in dispute was the refusal to bargain with the union in
circumstances where the union
regarded itself as the representative
of the members in the workplace. This conclusion is supported by the
papers: The following
paragraph contained in the founding affidavit
was admitted by the respondents in the answering affidavit and
supports the applicant’s
case in respect of the true nature of
the dispute:
‘
The
outcome that the union sought was “to grant the union
organisational rights”. It is evidently clear that the union
is
alleging that the Applicant refuses to bargain with them and that the
view them as being representative of the Applicant’s
workplace
if regard is has (sic) to the rights they are seeking to exercise….’
[15] Furthermore, the
respondents also did not deny that the applicant had advised the
union at the conciliation meeting that it
would not bargain with it
(the union) until a proper verification exercise of the purported
list of members has been completed.
More importantly, the respondents
also did not deny the averment contained in the founding affidavit
that the certificate of outcome
issued by the CCMA was erroneous
since the true issue in dispute that was referred to the CCMA
pertained to an alleged refusal
to bargain.
[16] I have already
pointed out that the respondents’ argument was that the
certificate of non-resolution gave them the option
of a strike which
they have elected to do. The strike would therefore, according to the
respondents, have been protected as they
have acquired the right to
strike by virtue of the certificate of non-resolution.
[17] It is, however,
trite in light of the above that the mere fact that the certificate
of non-resolution purportedly afforded
the union a right to strike,
does not mean that in law the respondents were in fact entitled to
embark on a protected strike. Moreover,
the Labour Court has the
exclusive jurisdiction to determine whether a strike was protected:
The CCMA and Bargaining Councils do
not have the necessary
jurisdiction to make conclusive pronouncements over their own
jurisdiction.
6
[18] I am therefore
satisfied that the true issue in dispute was the refusal to bargain.
Consequently the respondents should have
awaited an advisory award
before embarking on a strike. It is common cause that no advisory
award was issued in terms of section
135(3)(c) of the LRA before the
strike notice was issued. The strike is therefore unprotected.
7
[19] Lastly, I have
already indicated that the strike notice is defective in that it
contains no information whatsoever about what
the employer must do in
order to avoid the commencement of the strike.
8
In the event the strike
is unprotected on this ground alone. In respect of costs I can find
no reason why the cost order should
not be confirmed. The applicant
was forced to approach this Court on an urgent basis over the festive
season. Furthermore, the
respondents have further failed to show
cause why a punitive cost order should not be granted against them.
[20] In the event the
rule
nisi
is confirmed.
_______________________
AC BASSON J
Judge of the Labour Court
APPEARANCES:
For the Applicant :
Advocate W P Bekker
Instructed by : Nothnagel
Attorneys
For the Respondent :
Gwabeni Incorporated
1
Act
66 of 1995
2
Section
64(2) reads as follows: If the issue in dispute concerns a refusal
to bargain, an advisory award must have been made in
terms of
section 135(3)(c) before notice is given in terms of subsection
(1)(b) or (c). A refusal to bargain includes-
a refusal-
to recognise a trade
union as a collective bargaining agent; or
to agree to
establish a bargaining council;
a withdrawal of
recognition of a collective bargaining agent;
a resignation of a
party from a bargaining council;
a dispute about-
appropriate
bargaining units;
appropriate
bargaining levels; or
bargaining subjects.
“
3
Coin
Security Group (Pty) Ltd v Adams & Others(2000) 21 ILJ 924
(LAC): ‘[16] It is the court's duty to ascertain the
true or
real issue in dispute: Ceramic Industries Ltd t/a Betta Sanitaryware
v National Construction Building & Allied Workers
Union &
others (2)
(1997)
18 ILJ 671 (LAC)
; Fidelity Guards Holdings (Pty) Ltd v
Professional Transport Workers Union & others (1)
(1998)
19 ILJ 260 (LAC)
. In conducting that enquiry a court looks at
the substance of the dispute and not at the form in which it is
presented (Fidelity
at
269G-H; Ceramic
at
678C). The characterization of a dispute by a party is not
necessarily conclusive (Ceramic
at
677H-I; 678A-C). There is in my view no difference in the approach
of these decisions. In each case the court was concerned
to
establish the substance of the dispute. The importance of doing this
lies in s 65 of the Act which provides that no person
may take part
in a strike if 'the issue in dispute is one that a party has the
right to refer to arbitration or to the Labour
Court in terms of
this Act . . .’ The phrase 'issue in dispute' is, in relation
to a strike, defined as 'the demand, the
grievance, or dispute that
forms the subject matter of the strike'
.
‘
4
See
in general in respect of the requirements fo a strike notice:
Ceramic Industries Lta t/A Betta Sanitary Ware
v National Construction Building & Allied Workers Union
(2)(1997) 18 ILJ 671
(LAC).
5
Food
& General Workers Union & Others v Minister Of Safety &
Security & Others (1999) 20 ILJ 1258 (LC): ‘[28]
While it
is so that the dispute between the parties in this matter was
initiated by a standard demand for a wage increase and
improvement
in certain conditions of service, this is not enough in itself to
categorize the ensuing dispute as one concerning
a mere matter of
mutual interest,…
[29] The meaning of the
phrase 'refusal to recognize a trade union as a collective
bargaining agent' has not yet received judicial
attention. Mr
Nduzulwana contended that the phrase should be restrictively
construed so as to embrace only disputes arising out
of the refusal
by an employer to enter into a formal recognition agreement with a
trade union. Although I am conscious that,
insofar as they curtail
the constitutional right to strike, restrictions imposed by the Act
on strike action should be narrowly
interpreted (see, for example,
Adams & others v Coin Security Group (Pty) Ltd Labour Court case
no C163/97 dated 3 September
1998 unreported) in my view the phrase
'refusal to recognize a trade union as a collective bargaining
agent' embraces situations,
such as those in casu, in which the
employer refuses to negotiate with a trade union over wages and
conditions of service.’
6
Cape
Gate (Pty) Ltd V National Union Of Metalworkers of SA & Others
(2007) 28 ILJ 871 (LC): “[31] The fact that the
commissioner
dealt with and made findings on the same arguments now raised in
these proceedings cannot be regarded as having
any binding effect on
this court. I agree with Francis J in the Mittal Steel matter that
neither the CCMA nor the bargaining
council and their commissioners
have the necessary jurisdiction to determine whether a strike is
prohibited or protected, particularly
at the stage of an attempt to
conciliate the dispute.
[32] Nor does the
issuing of a certificate of outcome have the effect contended for on
behalf of NUMSA, namely that it would render
a strike lawful,
protected and immune from challenge in the Labour Court.
[33]
I accordingly conclude that this court is not precluded either by
the commissioner's ruling on jurisdiction or by the certificate
of
outcome from determining the legal status of the intended strike
action.’ See also: Lesedi Local Municipality v SA Municipal
Workers Union on behalf of Members(2008) 29 ILJ 2780 (LC): ‘16]
In Cape Gate (Pty) v National Union of Metalworkers of
SA &
others
(2007)
28 ILJ 871 (LC)
Kennedy AJ held that:
'Neither the CCMA nor
the bargaining council and the commissioners have the necessary
jurisdiction to determine whether the strike
is prohibited or
protected particularly at this stage of an attempt to conciliate the
dispute.'
[17] Thus whether or not
a strike is protected cannot be determined by the mere entry in the
certificate of non-resolution that
the dispute should be referred to
a particular process. Section 64(1)(a) (i) of the LRA simply
requires the conciliating commissioner
to issue a certificate
indicating that the dispute remains unresolved. There is nothing in
the LRA that gives the commissioner
the power to determine the true
nature of the dispute including whether or not the strike is
protected.
[18] The entry in the
certificate by the commissioner indicating where the dispute should
be referred serves as a mere guidance
to the parties as to the next
step they may wish to follow in taking forward the resolution of
their dispute. This is however
not determinative of the true nature
of the dispute.
[19] This court is
therefore not precluded from determining whether or not the strike
is protected because of the entry made by
the commissioner that the
dispute be referred to arbitration. The court has the power to
determine what the true nature of the
dispute is, despite the
classification or categorization of the dispute by the commissioner
in the certificate.’
7
See
in this regard:
Platinum Mile Investments
(Pty) Ltd t/a Transition Transport V SA Transport & Allied
Workers Union & Others (2010) 31
ILJ 2037 (LAC).
8
See
in this regard: SA Airways (Pty) Ltd v SA Transport & Allied
Workers Union (2010) 31 ILJ 1219 (LC): “[27] The same
purposive approach adopted by the Labour Appeal Court requires that
a strike notice should sufficiently clearly articulate a
union's
demands so as to place the employer in a position where it can take
an informed decision to resist or accede to those
demands. In other
words, the employer must be in a position to know with some degree
of precision which demands a union and its
members intend pursuing
through strike action, and what is required of it to meet those
demands.”