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[2013] ZALCJHB 102
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Scaw South Africa (Pty) Ltd v National Union of Metalworkers of South Africa and Others (J 911/2013) [2013] ZALCJHB 102 (10 May 2013)

REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case number: J 911/2013
In the matter between:
SCAW SOUTH AFRICA (PTY) LTD
.................................................................
Applicant
and
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA
............................................................................
First
Respondent
INDIVIDUAL RESPONDENTS WHOSE NAMES
ARE LISTED ON ANNEXURE ‘A’
.................................................
Second
Respondent
Heard: 9 May 2013
Delivered: 10 May 2013
Summary: Strike—Collective agreement—Prohibition on
strike where issue in dispute is regulated by collective
agreement—Section 65(3)(a) (i) of LRA 1995
JUDGMENT
PRINSLOO AJ
Introduction:
On 3 May 2013, this Court per
Steenkamp J granted the Applicant an interim interdict prohibiting
the Respondent union and its
members employed by the Applicant from
participating in unprotected and unlawful in strike action. At that
stage, the matter
was unopposed. The return day was 9 May 2013 when
the matter came again before this Court. The matter is now opposed.
Brief history
It is not in dispute that the “MEIBC
Settlement Agreement”, which is the settlement agreement for
the industry for
the period 1 July 2011 to 30 June 2014 is binding
on the parties. In respect of ‘Union Facilities’ the
settlement
agreement provides that clause 46(b) of the Main
Agreement be amended to include that: “The parties agree that
the issue
of full time shop stewards and health and safety
representatives will be a matter for plant level agreement”
.
It further provides that the parties may agree further rights at
plant level.
The Applicant and the representative
unions (NUMSA, Solidarity and MEWUSA) signed a recognition agreement
in April 2011 for an
indefinite period. It provides that the parties
may review the agreement, subject to any amendment to the Labour
Relations Act
66 of 1995 (the Act) with one month notice.
The recognition agreement deals with
a number of issues and organisational rights and relevant to this
application is the provision
in respect of shop stewards. The
recognition agreement provides for the election of shop stewards,
the roles and responsibilities
of shop stewards, meetings and
training of shop stewards. It is specifically provided that shop
stewards shall not leave their
place of work for the purpose of
carrying out their duties as shop stewards, without the permission
of their immediate supervisor,
taking into consideration the
operational requirements in the section, the role and duties of the
shop steward and the ability
of the supervisor to cover the shop
steward’s duties in his absence.
The parties further agreed to a
dispute resolution procedure in the event that they reach a deadlock
in respect of disputes that
are not the subject of negotiations at
bargaining council level. Limitations on industrial action are that
neither party shall
encourage, organise or participate in any strike
or lock-out that is not in compliance with the provisions of the
Act.
On 28 January 2013, the First
Respondent referred a dispute to the Metal and Engineering
Industries Bargaining Council (“MEIBC”)
and the nature
of the dispute was defined as a matter of mutual interest related to
the fact that the Applicant was not prepared
to allow the union to
have a full time shop steward. The matter was set down for
conciliation on 19 February 2013 on which date
the parties agreed to
extend the conciliation period with 30 days in order to attempt to
resolve the dispute.
The dispute was not resolved and the
matter was remitted to the CCMA for conciliation. On 27 March 2013,
the CCMA issued a certificate
of outcome indicating that the matter
of mutual interest remained unresolved and that the Respondents
could embark on strike
action. Subsequent to the certificate of
outcome, the Applicant’s attorneys addressed a letter to the
First Respondent
indicating that the demand that a shop steward be
permitted to have time off on a full time basis with pay falls
within section
14 of the Act and hence the union had to follow the
specific dispute resolution procedures set out in section 21 and 22
of the
Act. The referral was not in compliance with the provisions
of the Act and hence the strike action would be unprotected.
Despite this letter and on 2 May
2013, the First Respondent issued a notice to the Applicant that
strike action would commence
within 48 hours and that the issue in
dispute is the refusal to allow the union to have a full time shop
steward.
The Applicant approached this Court
on an urgent basis on 3 May 2013 seeking to interdict the intended
strike action on the basis
that it is unlawful and unprotected.
The urgent application
The Applicant approached the Court on
an urgent basis and averred that the intended strike action would be
unprotected for two
reasons. Firstly, the matter relates to
organisational rights in terms of the Act and, accordingly, the
provisions of section
21 of the Act apply. The Respondents have not
complied with the provisions and hence there is no dispute between
the parties,
the referral to the CCMA was premature and the CCMA did
not have jurisdiction to conciliate the dispute and issue a
certificate
of outcome.
Secondly, the dispute relates to an
issue that is governed by a collective agreement and thus not a
dispute over which the Respondents
can strike. The demand for a full
time shop steward is a dispute pertaining to an issue governed by
the recognition agreement.
The Respondents are opposing the
application and in its opposing affidavit denied that the dispute
relates to organisational rights
or that it was an issue governed by
a collective agreement. The Respondents averred that the issue is a
matter of mutual interest
and that the provisions of section 21 of
the Act do not apply.
The arguments and merits
The Applicant argued that the issue
in dispute pertains to a demand by the First Respondent for a full
time shop steward. The
Applicant challenged the proposed strike
action on two main grounds. The parties have a recognition
agreement, which governs
shop stewards and time off for union
activities, and hence the matter is regulated by a collective
agreement and thus not a dispute
over which the Respondents may
strike. Section 65(3)(a)(i) of the Act precludes the Respondents
from participating in a strike
over this issue and for this reason
alone the strike is unprotected.
Secondly, the dispute is about
organisational rights and relates to a matter governed by section 14
of the Act and, accordingly,
the dispute falls within the parameters
of section 21 of the Act. The First Respondent has not complied with
the provisions of
section 21, which provisions are prescriptive. Ms
Davey for the Applicant submitted that section 14(5) of the Act
provides for
reasonable time off for shop stewards to perform
functions of a trade union and that the union’s demand for a
full time
shop steward falls squarely within section 14 and hence
constitutes an organisational right. She submitted that the
Respondents’
denial that the dispute relates to organisational
rights is without merit. Disputes of this nature are governed by
section 21
read with section 65(2)(a) of the Act.
Ms Davey submitted that the Applicant
has a clear right to the relief it seeks as there had been no
compliance with section 21
read with sections 64(1) and 65(2) of the
Act and the issue in dispute is covered by a collective agreement.
Ms Edmonds submitted that section 21
is not applicable as the Respondents’ dispute is not about
organisational rights. She
submitted that section 14 of the Act
deals with part time shop stewards and not full time shop stewards.
The Respondents are
seeking a full time shop steward, which they are
not entitled to in terms of the provisions of section 14. The
Respondents could
have a full time shop steward only if the
Applicant agrees to that or by embarking on industrial action to
demand a full time
shop steward. This is a matter of mutual
interest.
Ms Edmonds further submitted that the
issue in dispute is not covered by the recognition agreement as the
agreement does not deal
with full time shop stewards, but only
provides for part time shop stewards. The Respondents are entitled
to strike as Chapter
3 of the Act does not regulate the dispute,
section 21 does not have to be complied with and there is no
collective agreement
that covers the issue of full time shop
stewards.
Full time shop steward and the
recognition agreement
What is a full time shop steward and
is that covered in the recognition agreement?
In
SA Municipal Workers Union
on behalf of Members v Ekurhuleni Metropolitan Municipality,
1
it
was held that:
‘
The
task of the full-time shop steward is to act for the benefit of the
union and its members on a full-time basis and in doing
so he or she
will, inter alia, liaise with the employer whenever necessary. The
anomaly of the position of the full-time shop steward
is the fact
that although he/she remains employed by the employer
and
as such is entitled and subject to the same conditions of service,
policies, rules and regulations which prevail at his/her
employer,
the full-time shop steward will not render a service to, or work for
the employer for the benefit of that employer: The
full-time shop
steward works for the union and for the benefit of the union.’
The recognition agreement provides
that shop stewards shall not leave their place of work for the
purpose of carrying out their
duties as shop stewards, without the
permission of their immediate supervisor, taking into consideration
the operational requirements
in the section, the role and duties of
the shop steward and the ability of the supervisor to cover the shop
steward’s duties
in his absence.
It is evident from the provisions of
the recognition agreement that a shop steward may not leave their
place of work without permission
and with due consideration of the
employer’s operational requirements. This is not referring to
full time shop stewards,
who would act for the benefit of the union
and its members on a full time basis and not rendering a service to
or work for the
employer. A full time shop steward would not need
permission to take time off or to leave his or her workstation to
attend to
union activities.
The issue in dispute relating to full
time shop stewards is not regulated by the recognition agreement.
Section 65(3)(a)(i) of
the Act, therefore, cannot preclude the
Respondents from participating in a strike over this issue for
reasons that it is not
regulated in the agreement.
The provisions of section 14 and 21
of the Act
Ms Edmonds submitted that section 21
of the Act is not applicable as the Respondents’ dispute is
not about organisational
rights. She submitted that section 14 of
the Act deals with part time shop stewards and not full time shop
stewards.
Ms Davey on the other hand submitted
that section 14(5) of the Act provides for reasonable time off for
shop stewards to perform
functions of a trade union and that the
union’s demand for a full time shop steward falls squarely
within section 14 and
hence constitutes an organisational right.
It is evident from the provisions of
section 14 of the Act that it refers to ‘reasonable time off’
for trade union
representatives and section 14 does not refer to or
regulates full time shop stewards.
In
Digistics (Pty) Ltd v SA
Transport and Allied Workers Union and Others,
2
the Court did not preclude the union
and its members from engaging in strike action in pursuit of demands
relating to the appointment
of full-time shop stewards. It was held
that:
‘
I
should mention, for the sake of completeness if nothing else, that
while
paid time-off for shop stewards is a right established by the LRA
(see s 14(5)), the Act does not establish a right to the
appointment
of full-time shop stewards. To this extent, the union has an election
to strike or to refer the dispute to arbitration
in relation to its
demand for paid time-off, but there is no election in relation to
the
demand that a full-time shop steward be appointed. This is a matter
in respect of which the provisions of part A of chapter
III of the
Act do not apply.’
3
It is evident that section 14 does
not establish a right to the appointment of full time shop stewards
and that the provisions
of section 21, in fact the entire Chapter 3
of the Act, do not apply.
The Applicant’s argument that
the dispute is about organisational rights and relates to a matter
governed by section 14
of the Act and, accordingly, falls within the
parameters of section 21 of the Act and the Respondents have not
complied with
the provisions of section 21 cannot be sustained.
The attack on the strike based on the
fact that there had been no compliance with section 21 read with
sections 64(1) and 65(2)
of the Act, is without merit.
Is the strike action unprotected
The Applicant’s case is that
the strike action is unprotected because the matter relates to
organisational rights and the
Respondents have not complied with the
provisions of section 21 of the Act and, secondly, because the
dispute relates to an issue
that is governed by a collective
agreement and thus not a dispute over which the Respondents can
strike. Both these grounds have
been dealt with and are not
sustainable to support a notion that the strike is not protected for
the reasons so raised.
Section 64 of the Act sets out the
requirements for a protected strike. Firstly, the dispute should
have been referred and a certificate
stating that the dispute
remains unresolved should have been issued.
In
Air Chefs (Pty) Ltd v SA
Transport and Allied Workers Union and Others,
4
the Court dealt with the certificate
and held that:
‘
It
is now trite law that the significance of a certificate of
outcome
being issued is that it essentially marks the end of the conciliation
phase of a dispute and the description of the dispute
on the
certificate is nothing more than indicative of what the dispute might
concern. It is not a finding by the author of the
certificate.
Consequently, it cannot be said that the employer ought to have set
aside
the
certificate before it could raise its argument that the dispute
concerns a dispute of rights rather than one of interest. In
passing,
it might also be mentioned that the term 'matter of mutual interest'
is often erroneously used as a synonym for a dispute
of interest,
whereas disputes of mutual interest may be either disputes of rights
or disputes of interest.’
The First Respondent indeed referred
a mutual interest dispute regarding the appointment of a full time
shop steward to the bargaining
council and CCMA. A certificate of
outcome was issued and hence there is compliance with section
64(1)(a)(i) of the Act.
The second requirement is that at
least 48 hours notice of the commencement of the strike should have
been given to the employer
in writing. The Respondents has issued a
48 hours notice of intention to strike to the Applicant on 2 May
2013.
The Respondents complied with the
provisions of section 64 and can claim protection in terms of the
provisions of the Act.
Conclusion
In summary, the various reasons
advanced by the Applicant why a strike in support of the union's
demand for the appointment of
full time shop stewards would be
unprotected must be dismissed.
I am satisfied that if the
Respondents embark on a strike in support of a demand for the
appointment of full time shop stewards,
in respect of the dispute
referred to the bargaining council in January 2013, that strike
would be protected.
I am also inclined to the view that
there should be no order as to costs, having regard to the outcome
of these proceedings, the
fact of an on-going collective bargaining
relationship between the parties, and the prospect of prejudice to
that relationship
and the successful resolution of outstanding
issues should an order for costs be made.
In the premises. I make the following
order:
1.
The rule
nisi issued on 3 May 2013 is discharged;
2.
The First,
Second and further respondents may engage in strike action in pursuit
of the demand relating to the appointment of a
full time shop
steward;
3. No order as to costs.
_____________
Prinsloo AJ
Acting Judge of the Labour Court
APPEARANCES:
For the Applicant: Attorney Davey of
Bowman Gilfillan Inc
For the
Respondents: Attorney Edmonds of Ruth Edmonds Attorneys
1
(2012)
33 ILJ 2961 (LC) at para 16.
2
(2010)
31 ILJ 2896 (LC).
3
Id
at para 12.
4
(2013)
34 ILJ 119 (LC) at para 15.