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[2014] ZALCJHB 83
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Murray & Roberts Projects, a division of Murray & Roberts Limited v Metal and Electrical Workers Union of South Africa and Others; Actom (Pty) Ltd v National Union of Metal Workers of South Africa and Others (J1742/13; J1745/13) [2014] ZALCJHB 83 (17 January 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO J 1742/13
In
the matter between:
MURRAY
& ROBERTS PROJECTS, A DIVISION OF
MURRAY
& ROBERTS
LIMITED APPLICANT
and
METAL
AND ELECTRICAL WORKERS
UNION
OF SOUTH
AFRICA 1
ST
RESPONDENT
BUILDING
CONSTRUCTION AND ALLIED
WORKERS
UNION 2
ND
RESPONDENT
CHEMICAL,
ENERGY, PAPER, PRINTING
WOOD
AND ALLIED WORKERS
UNION 3
RD
RESPONDENT
THE
NATIONAL UNION OF METAL
WORKERS
OF SOUTH
AFRICA 4
TH
RESPONDENT
NATIONAL
UNION OF
MINEWORKERS 5
TH
RESPONDENT
UNITED
ASSOCIATION OF SOUTH AFRICA
THE
UNION 6
TH
RESPONDENT
REUBEN
MOJELA AND 1751 INDIVIDUALS
7
TH
TO FURTHER
EMLOYEES
LISTED IN ANNEXURE
“SGA” RESPONDENTS
and
also
CASE
NO: J1745/13
In
the matter between:
ACTOM
(PTY)
LTD APPLICANT
and
THE
NATIONAL UNION OF METAL
WORKERS
OF SOUTH
AFRICA 1
ST
RESPONDENT
UNITED
ASSOCIATION OF SOUTH
AFRICA 2
ND
RESPONDENT
DIKELEDI
SALOME AND THE 656 INDIVIDUALS
EMLOYEES
LISTED IN ANNEXURE “FS1”
3
RD
TO FURTHER
TO
THE
AFFIDAVIT RESPONDENTS
Application
heard: 17 October 2013
Judgment
delivered: 17 January 2014
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
On 8 August 2013, the court (per Malindi AJ) granted orders to the
effect that in case number J 1742/13, six unions cited as
the first
to sixth respondents respectively and named individual respondents,
and in J 1745/13 two unions cited as the first and
second respondents
respectively and named respondents, be interdicted from embarking on
or participating in unprotected industrial
action and from committing
acts of violence, intimidation damage to property and the like. This
is the return date in respect of
both orders. The confirmation of the
rule granted in each case was opposed by the fourth respondent in
case number J 1742/13 and
the first respondent in case number J
1745/13, the National Union of Metal Workers of South Africa (the
union) . Both matters concern
the same material issues, and the
parties agreed that they should be heard simultaneously.
[2]
To the extent that the interim relief granted on 8 August 2013
concerned acts of violence and specifically a restraint against
the
committing of acts of violence by any of the respondents, the union
does not oppose the confirmation that part of the rule.
What is in
issue is that part of the rule concerning what the applicants claim
to be an unprotected strike and the participation
of the union’s
members in that strike. The union denies that there was a strike by
its members, and opposes confirmation
of the rule to this extent and
also any liability for the costs of the proceedings.
[3]
In each instance, the founding affidavit filed by each of the
applicants sets out the salient facts in some detail. The
applications
concerned particularly what was averred to be a refusal
by the individual respondents in each case to work on 1 and 2 August
2013,
in support of a demand relating to a commuting allowance in
respect of local employees, as well as safety concerns. The
applicants
further aver that none of the procedures established
either by the applicable Project Labour Agreement (PLA) or the Labour
Relations
Act had been invoked prior to the refusal to work.
Ultimatums to return to work were issued on to August 2013 and
ignored, as were
efforts by the applicant to seek undertakings from
individual respondents said they would tender their services and work
in accordance
with their contracts of employment.
[4]
In matter number J 1742/13, the founding affidavit canvasses in some
detail a refusal by the individual respondents to return
to work on
24 July 2013 and Friday 2 August 2013. The issue in dispute in this
case would appear to relate to a grievance concerning
deductions from
remuneration for the purposes of PAYE. It would appear to be common
cause that no procedures were followed prior
to the refusal to work.
The applicant specifically avers that on 23 July 2013 the union
presented a feedback session to its members
on site regarding the
progress of the negotiation of what was referred to as a partnership
agreement and more specifically, an
increased travel allowance for
non-local employees and a commuting allowance for local employees.
After this feedback session,
approximately 100 employees refused to
return to work. During the course of subsequent discussions between
the management and shop
stewards, the terms of payment of a commuting
allowance were discussed and it was agreed that the applicant would
request an urgent
Partnership Forum meeting to discuss the issue
since it was not a contractor-specific item. A Mr Ramalata of the
union requested
a shop stewards meeting on 24 July 2013. On that
morning, industrial action involving the employees of other
contractors on site
occurred, accompanied by acts of violence.
Various measures were thereafter adopted to contain the violence and
to resolve the
issues giving rise to it. In this regard, the
applicant avers specifically that on 2 August 2013, a further illegal
work stoppage
occurred at its site. A meeting with the union shop
stewards failed to take place since so the shop stewards refused to
participate
in any meeting at which representatives of other unions
were not present. The following stated at clause 7.32 of the founding
affidavit:
‘
The
Fourth Respondent’s shop stewards stated to the Applicant’s
management this time in the form of an undisguised threatened
that if
the Eighth to Further Respondent’s demands are not met, they
would rampage on site again.’
[5]
The demands at that stage were that the applicant should make good
the effects of increased PAYE deductions and that the management
should address employees regarding the opening of the site, which had
been closed pending discussions in the Leadership Partnership
Forum.
During the course of the day, the deponent to the founding affidavit
states that at least three ultimatums were issued to
the striking
workers and their employees, and that none of the employees return to
the workplaces. As in case number J1745/13,
on 5 August 2013,
undertakings were sought from the unions that members would tender
services in accordance with a contract of
employment, and no
undertakings were provided.
[6]
In both cases, the union filed an answering affidavit. The answering
affidavit comprises a page in which the national legal
officer
responsible for union members employed by the applicant states the
following:
‘
5.
I deny that NUMSA members are on strike at the applicant’s or
have any demands.
In so far as demands were ever made, these have
been and/or unconditionally withdrawn and some members have been
and/or unconditionally
tendering their services.
6.
The applicant is aware of this and was aware of it at the time of
launching the
application.
7.
In the circumstances, I deny that there was any need for the
application to be
launched or that there is any basis for the order
is sought.’
[7]
In both cases, the applicants filed replying affidavits in which the
deponent’s confirmed personally having seen several
union shop
stewards and ordinary members actively taking part in the strike in
the sense that they were actively encouraging the
strike and others
to join it. The deponent stated further that attempts to engage with
the union shop stewards on site were met
with an aggressive response.
Further, evidence was given that video footage of the events
described in the founding affidavit was
viewed in terms of which it
was clear that many of the union’s members had participated in
the strike.
[8]
The replying affidavit in case number J1745/13 replying affidavit
notes, with obvious justification, the nature of the answering
affidavit and cites an inability by the deponent to respond in any
meaningful way to what it contends amounts to a failure to raise
any
bona fide disputes of fact. The applicant does observe however that
given the history of industrial action at Medupi, that
the averment
that the majority of workers would embark on a strike while members
of only one union would watch with disinterest
is “positively
bizarre”.
[9]
The function of the court on the return day of a rule nisi is to
confirm or discharge the rule. If there is a genuine dispute
on a
question of fact, the court may hear oral evidence or refer the
parties to trial. In the present instance, the court has before
it in
the answering affidavits only a terse denial that the union’s
members are on strike, or that they have made any demands
of their
employer. As recorded above, that statement is qualified by averments
to the effect that if any demands were ever made,
they have been or
are unconditionally withdrawn.
[10]
It is a well- established rule of motion proceedings that in the face
of a genuine dispute of fact that is material to the
relief sought,
the application cannot succeed, and the matter ought to be referred
for the hearing of oral evidence. However, this
rule is subject to
qualification, most notably that expressed by Corbett CJ in
Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
where it
was held that the granting of relief ought not to be impeded where no
real, genuine or bona fides dispute of fact is raised
on the papers,
or where the allegations or denials concerned are ‘so
far-fetched or clearly untenable that the court is justified
in
rejecting them merely on the papers’. As Cameron JA observed in
South African Veterinary Council and another v Szymanski
2003
(4) SA 42
(SCA), practice may sometimes be robust, and often rightly
so, in applying the category of ‘far-fetched or clearly
untenable’
denials.
[11]
In the present instance, the applicants in both instances have set
out in some detail the circumstances giving rise to the
dispute
between it and the union and employees cited as respondents. Specific
evidence has been provided in relation to participation
in what
clearly amounts to a strike by individual members of the union. In
the circumstances, a more comprehensive response was
called for from
the union and the bare denial that forms the subject of the answering
affidavit in each case is patently untenable.
In particular, it is
not disputed that at least three ultimatums were issued to striking
employees after the commencement of the
unpredicted strike. Had the
union’s members not been on strike, it seems obvious that the
union would have said so at the
time. In the replying affidavit filed
under case number J 1742/13, there are three statements attached,
being affidavits deposed
to by members of the union who, by their own
admission, took an active part in the strike. These affidavits, the
content of which
is not been denied, must be assessed in conjunction
with an affidavit deposed to by the applicant’s IR coordinator
who states
that he personally saw several union shop stewards and
ordinary union members taking active part in the strike in the sense
that
they were not only on strike, but actively encouraging others to
participate in it.
[12]
The union filed a supplementary affidavit on the day of the hearing,
deposed to by its instructing attorney. The affidavit
reiterates that
the union’s members had tendered to return to work but that
they had been precluded from doing so on account
of the applicant’s
failure to provide transport to Medupi, as it was obliged to do. The
affidavit also discloses what, for
present purposes, appears to be
the real issue between the parties. The affidavit states:
’
14.
In the normal course, when an urgent application for an interdict has
been granted and the return
date is extended for a period of months,
the intention behind this is to allow matters to return to normal and
for eth rule to
be discharged upon the return date.
15.
The respondent believed that this was the way in which the applicant
intended to conduct
matters and was surprised to receive the Replying
Affidavit on 10 October which did not deal with the current situation
at all
or give any reason why a final order was necessary.
16.
For this reason, Edmonds addressed a letter to the applicant’s
attorneys on 15 October
2013 requesting confirmation that the rule
would be discharged with no order as to cost…
17.
On the same day, the applicant’s attorneys indicated that they
would proceed with
the matter.’
[13]
What this discloses, assuming the content of these paragraphs to be
correct, is a stratagem where employers faced with unprotected
strike
action (accompanied or otherwise by acts of violence) seek interim
orders with a view only to the restoration of normality,
and on the
basis of an understanding with the relevant respondents that once
normality is restored in the workplace, the rule will
be discharged
with no order as to costs. In other words, the role of this
court is reduced to the purely instrumental. This
is not to say that
parties to litigation of the present sort do not use the right of
recourse to the courts to advance their interests
and to their
tactical advantage – of course they do. But the court should be
wary that its credibility is not undermined
by being drawn into what
amounts to an elaborate game.
[14]
In the present instance, the union cries foul because it believes
that the applicants have broken a rule of the game by seeking
to have
a rule nisi confirmed, with costs, after the restoration of
industrial peace. But it is not the function of this court
to act as
a referee in a game that the parties may have elected to play. The
only issue before the court is whether, on the papers,
the union has
shown cause why the applicant is not entitled to a final order.
Events that transpire subsequent to the granting
of a rule nisi will
ordinarily have little bearing on this enquiry. In my view, for the
reasons that are recorded above, the rule
nisi granted on 8 August
2013 should be made absolute.
[15]
Insofar as costs are concerned, this court has a broad discretion in
terms of section 162 of the LRA to make orders for costs
on the basis
of the requirements of the law and fairness. The court has
traditionally not made orders for costs in matters where
the parties
are engaged in a collective bargaining relationship, and where an
order for costs might potentially prejudice that
relationship. On the
other hand, in the present instance, the unprotected strike in which
the union’s members engaged was
wholly unjustifiable. I make no
judgment in this context in relation to the wanton acts of violence
that are evident from the papers
before the court; the applicants
have not averred that the union’s members are directly
responsible for these and subsequent
investigation will no doubt
identified at least some of the perpetrators. On balance, I am
persuaded that a sound collective bargaining
relationship between the
parties is in their interests and in the broader national interest
and that an order for costs made at
this stage may well serve to
prejudice any goodwill that might currently exist. For those reasons,
I intend to make no order as
to costs.
I
make the following order:
1. The
rule nisi issued on 8 August 2013 is confirmed.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Appearances
For
the applicant: Adv H van der Merwe instructed by Fluxmans Inc.
For
the fourth respondent in J 1742/13 and the first respondent
in
J 1745/13: Ms R Edmonds, Ruth Edmonds Attorneys