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[2013] ZALCJHB 46
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South African Municipal Workers Union obo Mkhwanazi v Ekurhuleni Metropolitan Municipality (J496/13) [2013] ZALCJHB 46 (20 March 2013)
3
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE NO: J496/13
In the matter between
SAMWU obo JABU MKHWANAZI
...................................................................
Applicant
and
EKURHULENI
METROPOLITAN MUNICIPALITY
......................................
Respondent
Date
heard: 20 March 2013
Date of ex
tempore judgment: 20 March 2013
Date
Edited: 25 March 2013
___________________________________________________________________
EX- TEMPORE J U D G M E N T
___________________________________________________________________
VAN NIEKERK J
[1] It is an urgent application heard yesterday, which has as its
roots an allegation concerning a change to terms and conditions
of
employment, and more particularly changes to working times at the
respondent’s library operations. It is not clear to
me from the
papers precisely what right it is to which the applicants rely to
frame the relief they seek, which in effect is final
relief.
[2] The test applicable to final interdicts, of course, requires the
applicants to establish the clear right to which they lay
claim. The
papers before me reveal an amalgam that comprises elements of a
contractual claim, more specifically, a claim that the
respondent is
not entitled to make deductions from the wages of the individual
applicants, the breach of a collective agreement
concluded during
February 2013, and rights against unfair labour practices.
[3] However, the first hurdle which the applicants are obliged to
overcome is that of urgency. In this regard, the change to working
hours in the respondent’s library operations was first
announced in October 2012 by way of a memorandum addressed to the
affected employees. The memorandum itself has its origins in a
resolution adopted by the respondent’s Council in January
2009.
[4] On the applicants’ version, what transpired after the
issuing of the memorandum on 1 October last year was a process
of
what it terms bilateral engagement, more specifically after the
respondent threatened to deduct from the individual applicants’
salary amounts in respect of alleged short time worked by them
consequent on their tender to work in accordance with the existing
working hours.
[5] Meetings took place on 14 and 19 January 2013. On the applicants’
version, those meetings resulted in an agreement which
is described
in paragraph 5.13 of Founding Affidavit to the following effect:
“
5.13.1: That the short time of employees in
libraries for the month of January 2013 shall not be affected.
5.13.2: That the management instruction to implement the roster
system shall not be withdrawn.
5.13.3: That a task team shall be composed by the stakeholders to
investigate the commencement and cessation times of libraries
in the
Ekurhuleni Metropolitan Municipality.”
[6] This agreement is hardly a model of clarity. But what transpired
apparently after the conclusion of that agreement, is that
on 22
February 2013 deductions were effected from the salaries of the
individual applicants consequent on their failure to work
the new
working hours. After correspondence between the parties and an
ultimatum addressed to the respondent by the legal representatives
of
the applicant, the present application was filed on 14 March 2013. I
should emphasise that the agreement for which the applicant
contends
(an agreement to withdraw the new working times) is denied by the
respondent, specifically at least to the extent that
the respondent
denies the existence of any agreement to suspend the implementation
of the new working hours.
[7] In regard to the obligation on the applicant to establish that
the application is indeed urgent, the following facts it seems
to me
are not in dispute. First, the applicants have known since October
last year of the respondent’s intention to introduce
new
working hours. The applicant has known since February, last month,
that it had been granted respite in respect of short time
only for
the month of January 2013. Further, that the respondent’s
management’s instruction to implement the new working
hours
would not be withdrawn. Against the factual backdrop, the applicant
has brought this application some six weeks later, and
in my view any
urgency that exists is entirely self-created.
[8] To the extent that the individual applicants rely on an inability
consequent on the respondent’s actions to pay school
fees,
groceries, rates, water and lights and the like, in my view, these
claims are exaggerated. It is not as if the applicants
are not being
paid; what is an issue here is the deduction for what the respondent
contends to be short time worked. To place the
issue in context, I
might refer to one of the payslips that is annexed to the Founding
Affidavit, which reflects that from a gross
salary of R14 557, a
deduction of R524 has been made. Now, this is hardly, in the scheme
of things, an amount that can serve
to justify or to substantiate the
allegations of hardship that the individual applicants have made.
[9] In any event, on the applicants’ own construction of the
agreement that they say was concluded in mid-February, the moratorium
to which they lay claim is valid only for the month of January 2013.
It is not as if any breach of the agreement that they allege
extends
beyond that. So for those reasons, therefore, I am not satisfied that
the application is urgent, and it stands to be struck
from the roll
on that basis. In relation to costs, this Court has a broad
discretion in terms of section 162 of the Act to make
orders for
costs according to the requirements of the law and fairness. The
Appellate Division of the Supreme Court, as it was
then, in the
matter of
National Union of Mineworkers and Others v Ergo
, in
respect of a similar provision contained in the 1956 Labour Relations
Act, required Courts to have regard to any collective
bargaining
relationship between parties, and the extent to which an order for
costs might compromise that relationship.
[10] In the presence instance, I accept that there is a genuine
dispute about the implementation of new working hours and that
the
applicant and its members are dissatisfied with the respondent’s
proposals or demands that working hours ought to be
changed. There
are alternative remedies and causes of actions available to the
applicants to exercise their collective rights.
In any event, there
is the question of a task team that appears to have been established
that must necessarily address this issue
and attempt by any
appropriate means to bridge the gap between the parties and their
expectations.
[11] In these circumstances, it would seem to me that an order for
costs might prejudice the prospects of this matter ultimately
being
resolved to the mutual satisfaction of the parties. And for that
reason I intend to make no order as to costs.
For those reasons then, I make the following order:
1 The application is struck from the roll for lack of urgency.
2 There is no order as to costs.
André van Niekerk
Judge of the Labour Court