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[2013] ZALCPE 22
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National Union of Metal Workers of South Africa (NUMSA) obo Members v Bridgestone South Africa (Pty) Ltd (P 167/2011) [2013] ZALCPE 22 (25 July 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: P167/2011
In the matter between:
THE NATIONAL UNION OF METALWORKERS
OF
SOUTH AFRICA (obo its members)
.....................................................
Applicant
(Applicant in the application for leave to appeal)
and
BRIDGESTONE
SOUTH AFRICA (PTY) LTD
.........................................
Respondent
(Respondent in the application for leave to appeal)
Decided : In Chambers
Judgment : 25 July 2013
Summary : Application for leave to appeal dismissed with costs.
JUDGEMENT – APPLICATION FOR LEAVE TO APPEAL
AC BASSON J
[1] This is an application for leave to appeal against an order of
this Court dated 14 April 2011. For purposes of this brief judgment
I
do not intend repeating the facts that were placed before the Court
when the matter was brought to this Court as an urgent application.
The main relief sought was for an interdict against an alleged
unprotected strike. Relief was also sought that the respondent be
ordered to pay the union members’ wages lost during the period
of the lock-out. The primary relief is no longer relevant.
The issue
about whether the union members are entitled to lost wages is still
relevant.
[2] The applicant takes issue with various findings of the Court. I
do not intend to repeat the submissions made on behalf of the
applicant. Suffice to point out that I have considered the arguments
and that I am of the view that there is no reasonable prospect
that
the Labour Appeal Court will come to a finding that is different from
the one arrived at by this Court. For purposes of this
judgment, I
will briefly deal with one or two salient arguments. I, however, wish
to make it clear that I am of the view that neither
of these grounds
for appeal has merit.
[3] At the outset I should point out that in deciding this matter
this Court was obliged to have regard to the facts averred by
the
respondent in its answering affidavit together with facts averred by
the applicant which Bridgestone did not dispute. See in
this regard
Plascon-Evans Paints Limited v Van Riebeeck Paints (td) Limited
.
1
[4] In essence therefore the facts that were material to the matter
were that the parties commenced negotiations on wages and conditions
and employment during 2010. The negotiations resulted in a strike on
30 August 2010. A lock-out was instituted against the strike.
An
agreement was reached on wages but not in respect of the so-called
red-circled employees. In March 2011 an overtime ban had
been called.
The respondent was informed that it was in support of the wage demand
in respect of the red-circled employees (which
had not been
resolved). The union did not at any stage dispute the fact that the
dispute was about the red-circled employees. On
18 March 2010 the
respondent instituted a defensive lock-out (a lock out in response to
the strike) in respect of the dispute which
was about the red-circled
employees.
[5] I am in agreement with the submission made on behalf of the
respondent namely that the dispute was - and in fact had been since
the previous strike - about the red-circled employees and that that
dispute had not been resolved. There is, in my view, therefore
no
reasonable likelihood that an Appeal Court will find that the
respondent sought to pursue a demand in respect of employees already
covered in the collective agreement as this is simply not borne out
by the facts. The argument that the dispute was different from
the
one that was the subject of the 2010 industrial action is therefore
totally without any merit. Furthermore, there was no other
dispute
between the parties at that stage and this was the only outstanding
issue. Also, the means used to resolve the dispute
– namely the
previous strike – had been suspended.
[6] In the event the application for leave to appeal is dismissed. I
can find no reason why costs should not follow the result.
___________________
AC BASSON J
Judge of the Labour Court
APPEARANCES:
For the Applicant : Minnaar Niehaus of Minnaar Niehaus Attorneys
For the Respondent : Advocate AIS Redding SC
Instructed by : Tabacks Attorneys
.
1
[1984] ZASCA 51
;
1984
(3) SA 623
A).