Brief Summary

Strike — Unprotected strike action — Unilateral change in terms and conditions of employment — Applicant sought an interim interdict against the Respondent union and its members from participating in unprotected strike action regarding the withdrawal of transport and half-day leave on payday — Court found that the issues in dispute had not been conciliated and no certificate of non-resolution had been issued, thus rendering the strike unprotected — Interim interdict granted prohibiting the strike action.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter was an urgent application in the Labour Court for interim relief, in the form of an interdict restraining intended strike action on the basis that it would be unprotected under the Labour Relations Act 66 of 1995 (LRA). The applicant was Pikitup Johannesburg (SOC) Ltd (the municipal waste management entity), and the respondents were the South African Municipal Workers Union (SAMWU) and employees of Pikitup who were SAMWU members.

On 5 May 2013 the Labour Court granted a rule nisi and an interim interdict prohibiting the respondents from embarking on the strike that was to commence on 6 May 2013, as well as from interfering with and disrupting the applicant’s business. At that stage the matter was unopposed. The matter then returned on 10 May 2013 as the return day, when it was opposed and argued.

The underlying dispute concerned whether the applicant’s decision to discontinue free transport to employees and the longstanding practice of allowing employees to leave early (a half-day off on the last Friday of the month) constituted a unilateral change to terms and conditions of employment, thereby entitling employees to invoke the special mechanisms in section 64(4) and 64(5) of the LRA and to strike without following the ordinary procedural requirements.

2. Material Facts

Historically, before the applicant’s establishment, certain employees worked in municipal waste management structures and were later transferred to Pikitup when it was established in 2001. It was common cause that, both prior to 2001 and thereafter, employees were allowed to leave earlier on payday to cash cheques, and employees were provided with free transport. These arrangements persisted for many years.

On 26 April 2013, management informed SAMWU that it would no longer provide transport and would no longer allow employees to leave at 12h00 on the last Friday of the month. The applicant’s explanation was that employees were now paid by EFT, making early departure to cash cheques unnecessary, and that the applicant did not have a lawful passenger-transport fleet (it had waste collection vehicles not designed for passenger conveyance, with potential safety and legal implications). The applicant also alleged that it had sought to engage SAMWU about withdrawing these arrangements at the Local Labour Forum, including a meeting scheduled for 28 March 2013 that SAMWU allegedly did not attend.

On 30 April 2013, the respondents referred a dispute to the CCMA described as a “unilateral change to terms and conditions”, identifying the issues as transport and the half-day practice. In the referral, the respondents required the applicant not to implement the changes for 30 days, alternatively to restore the prior position. It was common cause that the dispute was referred, that it had not yet been conciliated, and that no certificate of outcome had been issued.

On 3 May 2013, the applicant wrote to SAMWU noting the referral and seeking confirmation of “rumoured” industrial action. Later that day, at 16h43, the applicant received a strike notice stating that strike action would commence on 6 May 2013 at 06h00, based on the two issues (transport and half-day off).

In opposing the application, the respondents contended that the free transport and early-departure arrangement were terms and conditions of employment due to longstanding practice and the circumstances of transfer in 2001, and that the applicant’s discontinuation was a unilateral change entitling the respondents to invoke section 64(4) and 64(5) without the ordinary notice and conciliation preconditions.

The court identified a central disputed factual characterisation: although the practices were longstanding (which was common cause), it was seriously disputed whether they had become contractual or collectively agreed terms and conditions of employment as opposed to mere practices. The applicant relied on the existence of a collective agreement regulating conditions of service, including 40 hours per week, and pointed out that the collective agreement made no mention of free transport or a half-day off. The court also noted there was no evidence that stopping the half-day practice would result in employees working more than 40 hours per week, and the respondents’ assertion that remuneration would be negatively affected was not explained with supporting detail.

3. Legal Issues

The court framed three interrelated issues for determination.

The first issue was whether the strike notice issued on 3 May 2013 was valid, particularly in light of the procedural requirements ordinarily applicable to protected strikes under the LRA, and the respondents’ reliance on the special dispensation created by section 64(4) and 64(5) for unilateral changes to terms and conditions of employment.

The second issue was whether the matters in dispute—withdrawal of free transport and the payday half-day practice—were terms and conditions of employment (as alleged by the respondents) or merely historical practices (as alleged by the applicant). This issue required the court to characterise the true nature of the dispute, which is a question involving the application of legal principles to established or undisputed features of the employment relationship and the evaluation of whether contractual or collective rights were shown.

The third issue was whether, given that characterisation, the proposed strike would be protected or unprotected, including whether the substantive and procedural limitations on the right to strike in the LRA applied (in particular, whether the respondents could rely on section 64(4) and 64(5), or whether the ordinary procedural requirements and/or statutory limitations applied).

4. Court’s Reasoning

The court approached the matter by emphasising that it is required to determine the real issue in dispute, having regard to substance rather than the parties’ labels. In this respect, the court referred to authority emphasising that parties cannot convert a dispute that is properly resolved through statutory adjudication or arbitration into a strikeable dispute by the way they frame the issue, and that a court must determine the genuine dispute for strike purposes.

On the question of strike notice validity, the court considered the operation of section 64(4) and 64(5), which provides a short-term remedy where an employer unilaterally changes terms and conditions of employment. The court accepted, with reference to Swissport (SA) (Pty) Ltd v SA Transport and Allied Workers Union and Others (2011) 32 ILJ 1256 (LC), that where a union refers a unilateral-change dispute and, in that referral, requires the employer not to implement the change (or to restore the pre-existing terms if already implemented), and the employer fails to comply within 48 hours, a protected strike may commence without adherence to further statutory procedures. Applying this to the referral documents, the court found that the respondents did include the statutory requirement in their referral (a demand not to implement for 30 days, alternatively to restore). On that basis, the court was not persuaded that the strike notice was invalid merely because it did not afford 48 hours’ notice; the court considered that if section 64(4) and 64(5) were applicable, the respondents would not be obliged to give 48 hours’ notice.

However, the court held that the central enquiry was not purely the formal validity of the notice, but whether section 64(4) was engaged at all. That depended on whether there was, in truth, a unilateral change to terms and conditions of employment. The court therefore turned to the characterisation of the issues (transport and half-day off) as terms and conditions versus practices.

In determining whether an aspect of the employment relationship constitutes a term and condition of employment (as distinct from a working practice), the court considered that the enquiry required an examination of the employees’ contracts of employment, relevant collective agreements, and whether any additional terms could be implied from conduct, custom, or practice in the workplace. The court placed weight on the documentary framework that governed conditions of service: the letters of appointment did not mention either free transport or a half-day off, and there was no allegation supported by evidence that individual employment contracts contained such entitlements. Most importantly, the court noted that a collective agreement existed between the applicant and the representative unions (including SAMWU), and that it expressly regulated conditions of service, including working hours (40 hours per week), yet made no provision for free transport or a half-day off on the last Friday of the month.

Although the court accepted the practices were longstanding and pre-dated 2001, it was not persuaded that longevity alone established a contractual or collectively agreed right. The court further noted that there was no evidence that discontinuing the half-day practice would increase working time beyond the collectively agreed 40-hour week, and the respondents’ claim that remuneration would be negatively affected was unsupported by detail. The court also accepted the applicant’s evidence that the discontinuation did not alter the essential terms and functions of employees, and that the collectively agreed terms and conditions remained unchanged.

The court distinguished authorities relied upon by the respondents on the basis that those cases involved either a clear policy forming part of an employment benefit scheme or a formal agreement creating a contractual entitlement. By contrast, the court found no comparable evidence of a policy or agreement in this matter that elevated the practices to enforceable terms. The court consequently concluded that it was not convinced the half-day off and free transport practices had become terms and conditions of employment, and found they remained longstanding practices only.

Having reached that conclusion, the court held that the discontinuation did not amount to a unilateral change to terms and conditions of employment, and therefore section 64(4) did not apply. As a result, the court reasoned that the respondents could not rely on the section 64(4) and 64(5) dispensation to bypass the ordinary procedural requirements. The court considered that the procedural limitations applicable to any right to strike that might otherwise arise from the referral to conciliation therefore continued to apply, consistent with the approach in South African Airways (Pty) Ltd v South African Transport and Allied Workers Union (2010) 31 ILJ 1219 (LC).

Finally, on costs, the court exercised a discretionary value judgment informed by labour-relations considerations, holding that no costs order was appropriate in light of the ongoing collective bargaining relationship and the risk that a costs order might prejudice the relationship and the resolution of outstanding issues.

5. Outcome and Relief

The court confirmed the rule nisi issued on 5 May 2013, with the effect that the interdict restraining the respondents from participating in the intended unprotected strike action (and from interfering with and disrupting the applicant’s business) remained in force.

The court made no order as to costs.

Cases Cited

Swissport (SA) (Pty) Ltd v South African Transport and Allied Workers Union and Others (2011) 32 ILJ 1256 (LC).

Cape Clothing Association v South African Clothing and Textile Workers Union and Another (2012) 33 ILJ 1643 (LC).

Ceramic Industries Ltd t/a Betta Sanitary Ware v National Construction Building and Allied Workers Union (2) (1997) 18 ILJ 671 (LAC).

Coin Security Group (Pty) Ltd v Adams and Others (2000) 21 ILJ 924 (LAC).

Staff Association for the Motor and Related Industries v Toyota of South Africa Motors (Pty) Ltd (1997) 18 ILJ 374 (LC).

South African Municipal Workers Union v Matjibeng Local Municipality (2011) 3 BLLR 299 (LC).

Maritime Industries Trade Union of South Africa and Others v Transnet Ltd and Others (2002) 23 ILJ 2213 (LAC).

South African Airways (Pty) Ltd v South African Transport and Allied Workers Union (2010) 31 ILJ 1219 (LC).

Legislation Cited

Labour Relations Act 66 of 1995, including section 64(1)(a), section 64(3)(e), section 64(4), section 64(5), section 65(1)(c), and section 186(2)(a).

Labour Relations Act 28 of 1956.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Labour Court held that the longstanding practices of providing free transport and allowing employees a half-day off on the last Friday of the month were not established on the papers as terms and conditions of employment contained in contracts of employment or in the operative collective agreement. The court therefore found that discontinuing those practices did not constitute a unilateral change to terms and conditions of employment.

Because there was no unilateral change to terms and conditions, the special remedial regime in section 64(4) and section 64(5) of the LRA was held to be inapplicable, with the result that the ordinary procedural limitations for protected strike action continued to apply. The strike action threatened for 6 May 2013 was accordingly treated as unprotected, and the interim interdict was confirmed. The court made no costs order.

LEGAL PRINCIPLES

A court determining whether strike action is protected must ascertain the true or real issue in dispute, looking to the substance rather than the parties’ characterisation of the dispute. A dispute that is fundamentally a rights dispute cannot be converted into a strikeable issue merely by adding a demand framed to suggest a different remedy.

The special mechanism in section 64(4) and section 64(5) of the LRA operates only where there is a dispute about a unilateral change to terms and conditions of employment, and where the referring party has, in the referral, required the employer not to implement the change (or to restore prior terms if already implemented). If the employer fails to comply within 48 hours, a strike may commence without further procedural steps. However, this dispensation depends on proof that an existing term and condition of employment has been varied unilaterally.

Whether a workplace arrangement constitutes a term and condition of employment rather than a mere practice requires consideration of the contractual and collective regulatory instruments governing the relationship (including individual contracts and collective agreements), as well as whether any term can be implied from conduct, custom, or practice. Longstanding practice, without more, is not necessarily sufficient to establish an enforceable term where the operative collective agreement comprehensively regulates conditions and does not include the alleged entitlement.

Where section 64(4) does not apply because no unilateral change to terms and conditions is established, the ordinary procedural limitations for protected strike action—including conciliation-related requirements and statutory notice requirements—remain applicable, and non-compliance may render strike action unprotected.

In determining costs in labour disputes, the Labour Court may decline to award costs where ongoing collective bargaining relationships may be adversely affected, and where broader labour-relations considerations justify the absence of a costs order.

Pikitup Johannesburg (SOC) Ltd v South African Municipal Workers Union and Others (J920/2013) [2013] ZALCJHB 75; (2014) 35 ILJ 188 (LC) (15 May 2013)