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[2013] ZALCJHB 85
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Trustees of Lekoa Trust v TAWU and Others (J599/2013) [2013] ZALCJHB 85 (26 March 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, B
RAAMFONTEIN
JUDGMENT
Not Reportable
Case no: J599/2013
In the matter between:
TRUSTEES OF LEKOA TRUST
................................................................................
Applicant
and
TAWU AND OTHERS
..........................................................................................
Respondents
Heard
:
26 March 2013
Delivered
:
26 March 2013
judgment
GUSH, J
The applicants, in this matter, have applied for an order, firstly
condoning the applicants’ non compliance to the forms
of
service provided for in the Labour Court Rules and treating the
matter as one of urgency and for a rule
nisi
calling on the
first and further respondents to show cause in date and time to be
determined by the court why an order should
not be made in the
following terms:
‘
2.1.
Declaring the refusal by the individual respondents employed by the
applicant as set out in Annexure A to the Notice of Application
to
work special hired trips; to be an unprotected strike and or unlawful
industrial action as contemplated in Section 68 of the
Labour
Relations Act 66 of 1995 (“the LRA”)
2.2. Interdicting and
restraining the individual respondents employed by the applicant as
listed in Annexure A to this notice of
application from participating
in the unlawful strike, and or unlawful industrial action of refusing
to work on special hire trips;
2.3. Interdicting the first
respondent from instigating the individual respondents to participate
in an unprotected strike by refusing
to work on special hire trips.’
The applicant applied for the above three paragraphs to serve as an
interim interdict pending the final determination of the
application.
The basis for the interdict is a collective refusal by the second
and further respondents to undertake trips known as special
hire
trips where a party hires a bus from the applicant for purposes of
attending a function together. It is common cause that
the
individual respondents who are drivers employed by the applicant are
collectively refusing to undertake such trips.
The respondents have raised a number of issues why they are refusing
to undertake such trips which I will deal with later. The
respondents’ concede that they have not referred a dispute
over these issues for conciliation as is required for a protected
strike to take place.
In fact, Mr Lengane, who appeared for the respondents, despite the
affidavit filed by the respondents in which it is admitted
that the
respondents are refusing to undertake “private hire”
trips conceded variously at times during his argument
that the
individual respondents that they were refusing to undertake the
special hire trips at times argued that they were not
refusing to
undertake the “special hire” trips.
The applicant’s drivers, including the respondents are
employed in terms of a contract of employment which provides under
the heading ‘Hours of Work’, that they would work 45
hours per week. In so doing, the contract requires that they
work
six days a week, Mondays to Saturdays and from time to time they
will be required to work overtime and operate special hires.
The respondents urged that the interpretation of this clause should
be interpreted to mean something other than it in fact means.
The
respondents urged that this clause should be interpreted to mean
that all special hire trips are overtime. The clause clearly
provides that from time to time the employees will be required to
work overtime on the one hand and on the other, from time to
time
the employees will be required to operate special hire trips.
There is nothing to support the respondents’ suggested
interpretation that the clause designates special hire trips as
overtime.
The second issue which was raised by the respondents was that as
they had made no demand this defeated any suggestion that their
action in refusing to undertake the trips was a strike.
Attached to the applicants’ papers, however is a letter
addressed by the respondents to the applicants. Although it is
headed a request, it is no more than a demand by the respondents
that they be paid a certain amount per special hire trip and
that it
is very urgent matter and that a reply is requested on or before
Friday 8 March.
The payment for undertaking special hire trips appears to be the
central issue surrounding the refusal to work. The applicants
have
set out in their founding affidavit the source of the respondents’
unhappiness. It appears that having discovered
some irregularities
in the booking of private hire trips that it outsourced the booking
of these trips in order to obviate the
irregularities and had this
was the reason for the respondents’ concern.
In its opposing papers, the respondent raises a number points
in
limine
. The first point
in
limine
is that the
urgency is supposedly self created. The basis upon which the urgency
is supposedly self created is that the applicant
had knowledge of
the alleged unprotected strike action on 6 March when the letter was
sent which I referred to earlier.
On 9 March, the individual respondents did not undertake the special
hire trips apparently in accordance with the demand (which
the
respondent deny is a demand) not having received the desired reply
by 8 March. Special hire trips are generally undertaken
over
weekends.
The respondents’ refusal to undertake the trips continued over
the 16 March weekend and the applicant is criticised by
the
respondents for attempting to resolve the matter by meeting with the
first respondent without approaching the court. This,
the
respondents suggest, lead to a self created urgency.
It is nothing of the sort, it is no more than the responsible action
of an employer to approach the representative trade union
and to try
and resolve the matter before resorting to court action.
This application was brought shortly after theses attempts failed
and in anticipation of a reasonable apprehension that the refusal
would continue. I have no doubt that given the circumstances of the
matter that the application is urgent.
The second point in
limine
which the respondents raise is the
existence of an alternative remedy. The alternative remedy which the
respondents suggested
was for the applicants could refer the dispute
to arbitration. Quite how this would deal with the continued
concerted refusal
to work in support of their demand, clearly, a
dispute they regard as a dispute of interest, is a mystery. The
respondents’
in addition suggested that the dispute could be
referred to private arbitration. The respondents offer no
explanation why they
have not taken steps to have the dispute
referred to the bargaining council in order that the matter be
conciliated and to enable
them to embark on protected industrial
action.
I have no doubt that in the circumstances taking into account the
nature of the demand which is for additional payment and the
timing
of the strike, the applicants had no reasonable alternative remedy
other than to approach the court.
In addition to the respondents demands for increased payment, the
respondents suggest that the reasons for the refusal are that
they
are required to do private hire trips for other companies and claim
payment from the other company.
Apart from denying that this takes place, it is clear from the
papers that the private hire trips undertaken by the applicant
are
operated in circumstances where a third party or an agency hires the
vehicle and the vehicle is despatched by the applicant
and is driven
by one of its drivers and the applicant pays the driver for his
services. The services of the driver in these circumstances
fall
within the second and further respondents’ duties as set out
in their contracts of employment.
I have no doubt in the circumstances that the applicants are
entitled to an order that the respondents’ conduct constitutes
an unprotected strike and that the applicants are entitled to an
order interdicting and restraining the second and further
respondents from continuing with and participating in the
unprotected strike action.
As regards any disputes which relate to payment, it is open to the
respondents to refer such disputes to the appropriate Bargaining
Council for those disputes to be resolved. If the respondents are
instructed to obtain their remuneration from a third party
in
respect of a trip they are required to undertake, and refuse to do
so, that refusal does not fall within their contracts of
employment
and their refusal to undertake such trips does not constitute an
industrial action.
In the circumstances, I grant an order as set out in paragraphs 1
and 2 and 2.1, 2.2, 2.3, 2.4, 2.5, and 2.6 as amended viz:
a. The applicant’s non compliance with the forms and service
provided for in the Labour Court Rules and treating this matter
as
one of urgency in terms of Rule 8 is condoned;
b. A rule nisi is issued calling upon the first and further
respondents to show cause on 16 May 2013 why an order should not be
made in the following terms:
1. Declaring the refusal by the individual respondents employed by
the applicant as set out in Annexure A to the Notice of Application
to work special hired trips; to be an unprotected strike and or
unprotected industrial action as contemplated in Section 68 of
the
Labour Relations Act 66 of 1995 (“the LRA”)
2. Interdicting and restraining the individual respondents employed
by the applicant as listed in Annexure A to this notice of
application from participating in the unprotected strike, and or
unprotected industrial action of refusing to work on special hire
trips;
3. Interdicting the first respondent from instigating the individual
respondents to participate in an unprotected strike by refusing
to
work on special hire trips.
c. That the respondents pay the costs hereof
d. That paragraphs 1,2, and 3 above operate as an interim order
pending the final determination of this application
e. That the order be served on the first respondent by serving or
faxing the order to the first respondent on fax number 0118384452;
and on the second and further respondents by serving or faxing the
order to the first respondent and by placing a copy of the order
on
the notice boards at the applicant’s operations.
___________
Gush, J
Judge
APPEARANCES
For the Applicant: Advocate Nalane
Instructed by: Bowman Gilfillan
First and Further Respondents: Advocate Lengane
Instructed by: Medupi Lehong Inc