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[2014] ZALCJHB 61
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Unitrans Supply Chain Solutions (Pty) and Another v Nampak Glass (Pty) Ltd and Others (J195/14) [2014] ZALCJHB 61; (2014) 35 ILJ 2888 (LC) (24 February 2014)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Reportable
CASE NO J 195/14
In the
matter between:
UNITRANS SUPPLY CHAIN
SOLUTIONS (PTY) First
Applicant
UNITRANS HOUSEHOLD
GOODS LOGISTICS
(PTY)
LTD
Second
Applicant
and
NAMPAK GLASS (PTY) LTD
First
Respondent
TMS GROUP INDUSTRIAL
SERVICES (PTY) LTD
T/A VERICON
Second
Respondent
THE EMPLOYEES LISTED
IN
ANNEXURE A TO THE
NOTICE OF MOTION Third
and further respondents
Application heard: 20
February 2014
Judgment delivered: 24
February 2014
JUDGMENT
VAN NIEKERK J
Introduction
[1] In
Aviation Union of South Africa &
another v South African Airways & others
2012
(1) SA 321
(CC), the Constitutional Court settled the controversy
concerning the meaning of the word ‘by’ in s 197 (1) (b)
of
the Labour Relations Act. The Supreme Court of Appeal had held
that the definition of transfer in subsection (1)
(‘the
transfer of a business
by
one employer … to another employer…
’)
had the consequence that s 197 did not apply to a transfer of a
business from one service provider to another (‘second’
and any further generation transfers) or the resumption by the client
of a service previously outsourced (‘insourcing’).
The
basis of the SCA’s decision, simply put, was that ‘by’
does not mean ‘from’. The
Constitutional Court
reversed that decision and held that the word ‘by’ should
not be afforded its literal meaning
and that s 197 applies,
potentially at least, to any transaction in terms of which the whole
or part of a business is transferred
as a going concern, irrespective
of whether the transfer is occasioned by the outsourcing of services,
and regardless of the ‘generation’
of the transfer.
[2] As
the present case illustrates, that principle is more easily stated
than applied. The applicants seek an order declaring that
the
termination of an agreement to provide services concluded between the
first applicant and the first respondent (Nampak) and
the
simultaneous appointment of the second respondent (TMS) to render the
services to Nampak, constitutes a transfer for the purposes
of s
197 of the LRA. The application is opposed by TMS. Nampak does not
oppose the application, and abides
by the decision of the court.
[3]
The application raises two crisp issues. The first concerns the
status of the first applicant. The first applicant is the entity
that
until 31 January 2014, was contracted to provide the services to
Nampak. But it is not the employer of the third to further
respondents, the affected employees. For tax-related or other
reasons, they are all employed by the second applicant, which does
no
more than supply their labour to the first applicant. In these
circumstances, TMS contends that the first applicant cannot be
the
‘old employer’ for the purposes of s 197; the ‘old
employer’ is the second applicant, which on the
applicants’
own version, intends to transfer nothing to TMS. The second issue is
whether, on the assumption that the first
applicant can be said to be
the ‘old employer’ for the purposes of s 197, the
transaction assumes the form of a transfer
of the whole or part of a
business as a going concern from the first applicant to TMS, thus
triggering the application of s 197.
Factual
background
[4]
The material facts are not in dispute. Nampak manufactures glass
products such as bottles, for on-sale to customers such as
breweries
and food manufacturers. Nampak’s factory premises houses the
manufacturing, warehousing, distribution and management
functions in
a single premises. Warehousing and distribution of glass products
form an essential part of Nampak’s glass manufacturing
business. Manufactured glass products are received into stock
directly from the manufacturing plant (which is adjacent to the
warehouse), and are dispatched from the warehouse, loaded onto trucks
and transported to customers. Originally, Nampak employed
all staff
in these divisions. During 2007, Nampak began a process of
outsourcing portions of its warehousing and distribution functions,
by appointing labour brokers to provide staff for some of the
warehousing functions, such as forklift drivers and storekeepers
(under Nampak management), and by appointing an external transport
company to handle distribution, under Nampak’s control.
[5] A
series of transactions took place between 2007 and 2011, in which it
appears that Nampak experimented with various degrees
of outsourcing,
and with various suppliers. During April 2011, Nampak and Unitrans
concluded a warehousing agreement setting out
the terms of service
that Unitrans was to provide to Nampak. Briefly, Unitrans was to
manage the warehousing and distribution planning
function on Nampak’s
behalf. This entailed Unitrans providing the managers, logistics
specialists, forklift operators and
warehouse staff necessary to run
the warehousing and distribution operations on a 24/7 basis, using
Nampak’s premises, assets
and IT systems.
[6]
Unitrans duly provided the services described in the warehousing
agreement until it expired on 31 January 2014. The services
are fully
described in the agreement, and are discussed in more detail below.
Minor informal variations to services were agreed
to with Nampak, and
Nampak took back control of a few of the functions listed in the
warehousing agreement, during the months preceding
its expiration on
31 January 2014.
[7]
During October 2013, Unitrans informed Nampak that it did not intend
submitting a bid for a renewed contract or agreeing to
an extension
of the contract. Nampak was informed that Unitrans regarded s197 as
applicable to the appointment of a new service
provider or the
insourcing of the work by Nampak. During early January 2014,
discussions recommenced regarding the conclusion of
an agreement in
terms of s 197(6), and practical arrangements for a handover.
Negotiations continued until the expiration of the
agreement on 31
January 2014, but these ultimately proved to be unsuccessful.
[8] As
of 1 February 2014, TMS has taken over the rendering of services to
Nampak. Unitrans staff that have presented themselves
to continue
working have, as of 1 February, been refused access to the Nampak
premises.
[9]
Nampak has directly employed two former Unitrans employees to perform
the same functions. During September 2013, Nampak took
direct control
of a portion of the services provided by Unitrans in terms of the
Warehousing Agreement, namely control of pallet
and packaging returns
from customers. The Unitrans employee (Govender) responsible for this
function was hired directly by Nampak
to perform the same function. A
key employee, Alvin Anthony, who has crucial knowledge and experience
of the Nampak systems, and
of the warehousing and distribution
functions, resigned from his employment with Unitrans on 31 January
2014, and took up employment
with Nampak on 1 February 2014, and
performs the same functions as before.
[10]
TMS does not dispute that it has entered into a service provider
agreement with Nampak to render warehousing and auditing facilities
to Nampak, with effect from 1 February 2014. TMS disputes however,
that it has taken over any person employed by the applicants
or the
first respondent or any assets, (whether corporeal or incorporeal),
goodwill or intellectual property from either the applicants
or
Nampak. TMS contends that it engages ‘entirely its own
resources’ to perform the services to Nampak. What TMS does
not
disclose is precisely what services it has been contracted to tender
to Nampak. The answering affidavit deposed to by the managing
executive of TMS is coy, to say the least. It is replete with
denials, averments of denials of any knowledge of the assertions
made
in the founding affidavit, and in respect of many key averments,
seeks to put the applicants to the proof of what they assert.
This is
a singularly unhelpful approach to adopt in proceedings such as the
present. Be that as it may, what is not in dispute
is that TMS now
provides the services previously provided by the first applicant to
Nampak. The terms on which it does so are obviously
relevant to the
present enquiry, and I address this issue below.
Relevant
legal principles
[11] Section 197(1)
provides:
“
(1)
In this section and in section 197A –
(a)
‘
business’ includes the whole
or part of any business, trade, undertaking or service; and
(b)
‘
transfer’ means the transfer
of a business by one employer (“the old employer”) to
another employer (“the
new employer”) as a going concern.
(2)
If a transfer of a business takes place,
unless otherwise agreed in terms of sub-section (6) –
(a)
the new employer is automatically
substituted in the place of the old employer in respect of all
contracts of employment in existence
immediately before the date of
transfer;
(b)
all the rights and obligations between the
old employer and an employee at the time of transfer continue in
force as if there had
been rights and obligations between the new
employer and the employee;
(c)
anything done before the transfer by or in
relation to the old employer, including the dismissal of an employee
or the commission
of an unfair labour practice or act of unfair
discrimination, is considered to have been done by or in relation the
new employer;
and
(d)
the transfer does not interrupt and
employee’s continuity of employment, and an employee’s
contract of employment continues
with the new employer as if with the
old employer.”
[12]
To the extent that they require further repetition, what follows is a
brief summary of the relevant principles. Section
197 seeks to
vary the common law consequence of the transfer of a business as a
going concern. At the level of policy, the section
seeks to preserve
security of employment in these circumstances, and to facilitate the
transfer of businesses. Once a transfer
of the kind identified by s
197(1) occurs, all contracts of employment that existed immediately
before the transfer took place
are automatically transferred to the
transferor (the ‘new employer’), by operation of law,
together with the business.
The transferee replaces the transferor as
the employer party in terms of the contracts of employment and
assumes all obligations
of the previous employer. The new employer
also acquires the contractual rights of the previous employer.
[13]
For s 197 to apply, there are three conditions, all of which must be
met simultaneously. These are:
a.
a transfer;
b.
of a business (the transfer must be of the whole or part of a
business);
c.
as a going concern.
[14]
The label that parties attach to the transaction under scrutiny is
not relevant. As Jafta
J stated in the
SAA
judgment at paragraph [44]–
“
It
must be stressed that the event which brings s 197 into play is the
transfer of business as a going concern. The question whether
the
section applies to a particular case cannot be determined, as the
Supreme Court of Appeal did, with reference to the label
of the
transaction effecting transfer. The section does not cite
transactions to which it applies. Nor does it refer to any labels.
Instead, its application must always be determined with reference to
three requisites, namely, business, transfer and going concern.”
[15]
Each the three requirements that in combination trigger the
application of s 197 have been interpreted by the South African
courts, by and large, using the language of the European Court of
Justice in the application of the Business Transfers Directive
applicable in the European Union. That court has held, in summary,
that a transfer must relate to an economic entity (defined to
mean an
organised grouping of persons and assets facilitating the exercise of
an economic activity that pursues a specific objective),
and a
determination of whether that entity retains its identity after the
transfer.
[16]
Outsourcing agreements, in principle at least, meet these criteria
least where the
agreement is one of an
initial outsourcing from a client to a service provider (a ‘first
generation’ transfer). The
meaning of a ‘transfer’
in the context of the outsourcing of services was discussed in the
SAA
judgment
by Jafta J, who said the following:
[47]
But whether a transfer as contemplated in section 197 has occurred or
will occur is a factual question. It must be determined
with
reference to the objective facts of each case. Speaking
generally, a termination of a service contract and a subsequent
award
of it to a third party does not, in itself, constitute a transfer as
envisaged in the section. In those circumstances,
the service
provider whose contract has been terminated loses the contract but
retains its business. The service provider would
be free to offer the
same service to other clients with its workforce still intact.
[48]
For a transfer to be established there must be components of the
original business which are passed on to the third part….’
[17]
In relation to the requirement that a business be transferred as a
going concern, the court emphasised that what matters during
the
factual enquiry is its substance rather than its form. At
paragraph [52] of the judgment, Japhta J said:
‘
Although
the definition of business in section 197(1) includes a service, it
must be emphasised that what is capable of being transferred
is the
business that supplies the service and not the service itself. Were
it to be otherwise, a termination of a service contract
by one party
and its subsequent appointment of another service provider would
constitute a transfer within the contemplation of
the section. That
this is not what the section was designed to achieve is apparent from
its scheme, historical context and its
purpose. The context referred
to here is the alteration of the common law consequences on
employment contracts, when the ownership
of a business changes
hands.’
[18]
This is consistent with the often quoted statement by the Eourpean
Court of Justice in
Spijkers v Gebroeders Benedik Abattoir v
Alfred Bendik en Zonen BV
[1986] 2 CMLR 296
(ECJ), that ‘
an
entity cannot be reduced to the activity entrusted to it
’
(See also
Süzen v Zehnacker Gebaudereinigung GmBH
Krankenhausservice
[1997] IRLR 255
(ECJ)). The point is
reinforced in paragraph [75] of the
SAA
judgment in relation
to the ‘going concern’ requirement:
The
phrase ‘going concern’ has been construed to include not
only that the business has changed hands but that it is
exactly the
same business that continues to operate. We are told that to
determine this fact one must look at various factors,
none of which
is decisive. These factors include whether or not the same business
is being carried on by the party who received
it. Therefore, proof of
the fact that performance of the same service was to continue, albeit
under different hands, does not establish
a transfer as a going
concern. Something more is required.'
[19]
In
Franmann Services (Pty) Ltd v Simba (Pty) Ltd & another
(2013) 34
ILJ
897 (LC), a case that concerned a decision
by a labour broker to terminate a contract to supply labour to its
client, this court
said the following:
‘
In
other words, the test for determining whether a business (including a
service) has been transferred as a going concern must incorporate
all
of the components of the transferring entity to determine whether
that entity is essentially the same after the transfer. This
is an
enquiry that extends beyond the function being provided (see Craig
Bosch ‘Section 197 of the Labour Relations Act:
The Next
Generation’ in
Labour Law into the
Future: Essays in Honour of D’Arcy du Toit
(Juta
Cape Town) at p. 185). This formulation broadly reflects the
jurisprudence of the European Court of Justice. The general
rule
remains that in
Süzen v Zehnacker
Gebauderenigung GmbH Krankenhausservice
[1997]
IRLR 255
where the court held that the mere fact that the service of
the old and the new awardees of a contract is similar does not
support
the conclusion that an economic entity has been transferred.
– ‘an entity cannot be reduced to the activity entrusted
to it’. The high water mark for the applicant is
Carlito
Abler v Sodhexo MM Catering Gesellschaft GmbH
[2004]
IRLR 168
, a case that concerned a change in service providers
contracted to provide catering at a hospital. The court held that
there was
a relevant transfer in circumstances where the new
contractor utilised substantial parts of the assets (the hospital
kitchen and
its equipment) previously used by the outgoing contractor
but owned by the client. In effect, there was the transfer of a
licence
to use the client’s facilities. The present case is not
analogous. The applicant supplies only labour – it does
not provide a service that requires the use of the first respondent’s
infrastructure, at least not in the sense that it is
afforded control
over that infrastructure for the purpose of providing the contracted
service.
[20]
The parties are agreed that on the facts, the present case is
distinguishable from
Franmann
,
at least in the sense that the first applicant’s function was
not limited to the supply of labour. What the case raises
is
the application of s 197 where there is a change in service provider,
in circumstances where there are no assets that pass to
the
transferee, but the transferee assumes control of assets and
equipment (more accurately, an infrastructure) provided by the
client
and which is required for the services to be performed.
Who
is the ‘old employer?”
[21]
As I have indicated, it is not disputed that the first applicant was
the party to the contract to provide the services to Nampak,
and that
the second applicant was no more than the employer of the persons who
were engaged to discharge the first applicant’s
obligations to
Nampak. It is also not disputed that the affected employees are all
employed by the second applicant. It is also
common cause that the
second applicant has no contractual obligations to Nampak, and that
there will be no transfer of any description
as between the first
applicant and Nampak. That being so, TMS submits, there is no
transfer as s 197 is thus not triggered.
[22]
The starting point in the determination of whether the entity that
employs the affected employees is of any significance is
the purpose
of s 197. In
National Education Health
and Allied Workers Union v University of Cape Town & others
(2003) 24
ILJ
95 (CC), the Constitutional Court held that s 197 must be construed
as a whole, in the light of the declared purpose of the LRA,
i.e. to
promote economic development, social justice and labour peace. While
s 197 serves the dual purpose of protecting employment
security and
facilitating the transfer of businesses, the purpose of protecting
workers against loss of employment must be met
in substance and form
(at paragraph [62] of the judgment). As the same court observed in
SAA
, s 197
is located in a chapter of the LRA that seeks to promote the right to
fair labour practices, a right guaranteed by s 23
of the Constitution
(at paragraph [36] of the judgment). This is the context
against which the definition of ‘transfer’
must be
construed, and in particular, in which a meaning must be ascribed to
the term ‘old employer’.
[23]
It has been suggested in relation to application of the European
Directive that the employees transferred are those actually
working
in the business at the material time, irrespective of who, in formal
terms, is their employer (see N Smit ‘Labour
law
implications of the transfer of an undertaking’ unpublished LLD
thesis, Rand Afrikaans University, 2002). Prof Smit also
refers to
Duncan Web Offset (Maidstone Ltd v
Cooper
1995 IRLR 633
(EAT), where the
Employment Appeal Tribunal remarked:
‘
Industrial
tribunals will be astute to ensure that the provisions of the
Regulations are not evaded by devices such as service companies,
or
by complicated group structures which conceal the true position. Thus
it may well be possible to say, in any given case, that
if the person
always and only works on Y’s business, then X was employing him
on behalf of and as an agent for Y. Alternatively,
there may be
circumstances in which X may be regarded as a party to the transfer,
even if not expressly named in the contract of
sale. Or, on the other
hand, it may be that the employee remained employed by X who had
other work for him to do.
’
[24]
It should be recalled that this court has not hesitated, on the
facts, to recognise and give effect to an employment relationship,
and specifically, to recognise a party as the true employer despite
the labels that the parties have attached to their relationship,
and
despite the confines of any contracts between them. This is
particularly so in relation to unfair dismissal claims, where
employers have relied on a variety of agreements and constructions
that seek to avoid designating a person contracted to provide
services as an ‘employee’. In these circumstances,
the courts look beyond the label to the substantial relationship
between the parties, and have always given effect to substance over
form. In the present instance, it is not disputed that the
affected
employees were engaged by the second applicant for the sole purpose
of providing services in terms of the agreement between
the first
applicant and Nampak. It is also not disputed that the reason for
their employment by the second applicant was related
to
considerations relevant to the group structure, and that at all
material times, they were assigned by the second applicant to
work
under the supervision and control of the first applicant. Further,
the second applicant was the entity listed on the invoices
provided
to Nampak for work performed in terms of the warehousing agreement.
There is therefore support on the undisputed evidence
for the
conclusion that the first and second applicants ought for present
purposes to be as a single entity.
[25]
I do not for a moment suggest that the purpose of the second
applicant employing the affected employees was to circumvent s
197
(indeed, the applicants seek to enforce the section). But as the
decision in
Duncan Web Offset
illustrates, if the court were to adopt a more rigid interpretation,
the protections of s 197 might easily be avoided by the creation
of
distinct legal entities established for that purpose. Employers might
simply ensure that employees are always employed by an
entity
different to the entity in which the assets and activities that form
a particular business are housed. It seems to me that
the identity of
the ‘old employer’ for the purposes of s 197 ought to be
determined in a manner that gives effect to
substance rather than
form, and that regards a
de facto
employer as the transferor or ‘old employer’.
[26]
For these reasons, in my view, the fact that the affected employees
are employed by the second applicant does not preclude
the
application of s 197 where there is a transfer of a business as
between the first applicant and TMS.
Is
there the transfer of a business as a going concern?
[27]
A useful starting point to determine the existence of any transfer as
a going concern is the contract between Unitrans and
Nampak. The
first applicant’s principal obligation in terms of the
agreement is to render the services in accordance with
an attached
service level agreement. Briefly, Unitrans was to manage the
warehousing and distribution planning function on Nampak’s
behalf. This entailed Unitrans providing the managers, logistics
specialists, forklift operators and warehouse staff necessary
to run
the warehousing and distribution operations on a 24/7 basis, using
Nampak’s premises, assets and IT systems. The services
defined
in annexure A to the agreement require Nampak to provide the first
applicant with suitable warehousing facilities, suitable
office space
and infrastructure, including telephone instruments and lines,
computers, equipment and access to Nampak’s software.
Nampak is
also required to provide gas in such quantities as required to
operate the forklift trucks to be used in the provision
of the
services. Also significant Nampak’s agreement to supply
what is termed ‘the products’, a list of
items ranging
from computers, to desks and chairs, filing trays, trolleys, waste
bins, shelving and the like. These and other
facilities are
described in the agreement as ‘the infrastructure’.
[28]
TMS has elected not to take the court into its confidence by
disclosing the terms of its contract with Nampak (other than to
refer
to it as a service provider agreement) or by providing any
substantial information as to the factual circumstances on which
its
engagement will proceed. Given the nature of the relationship between
the first applicant and Nampak, and the terms on which
the first
applicant rendered services in terms of the warehousing agreement, it
is not unreasonable to conclude that the service
to be rendered by
TMS and the assets used in the performance of those services will be
the same or substantially the same as those
utilised by the first
applicant in the performance of its obligations until 31 January
2014. The services that TMS has been contracted
to perform can only
be performed at the Nampak production facility, i.e. at the same site
and fixed premises. It is also reasonable
to assume that TMS will
make use of the same equipment and IT systems that were used by the
first applicant, including forklifts,
furniture and the JD Edwards
computer system (a system that appears to be driven by Nampak’s
software, enabling the movement
of stock to be tracked.) All of these
assets are the property of Nampak, and were used by the first
applicant. There is nothing
in the papers before me to indicate that
they will not be utilised by TMS. TMS concedes that prior to 1
February, its employees
observed the manner in which the affected
employees performed services in terms of the warehousing agreement.
The only purpose
for this can be to ensure a smooth transition when
TMS commenced rendering the services on 1 February, performing
exactly the same
tasks as those previously performed by the affected
employees. TMS places much store on the assertion that it does not
intend to
take transfer of any assets from either Nampak or the first
applicant. This submission loses sight of the relevance of the
assumption
of a comprehensive right of use of Nampak’s assets
to in effect, continue the same business.
[29]
In short: the warehousing service provided by the first applicant to
Nampak constituted an economic entity, or, put another
way, an
organised grouping of resources. This comprises, at least, the
contractual right to perform the services, the assets owned
by Nampak
but used by the affected employees, the specific activities performed
by the affected employees and the employees themselves.
This economic
entity constitutes a service for the purposes of s 197 (1).
[30]
To the extent that the contractual right to provide warehousing
services now vests in TMS, the same assets are used to provide
those
services and the activities conducted at Nampak’s behest are
substantially the same as those performed by the first
applicant
prior to 1 February, the business performed by the first applicant
has transferred as a going concern to TMS. To use
the language of the
warehousing agreement, the infrastructure that passed to the first
applicant when it assumed obligations in
terms of the contract
reverted to Nampak, and has been made over to TMS. This is not unlike
the situation in
Allen & others v
Amalgamated Construction Co Ltd
[2000]
IRLR 119
(ECJ), where the ECJ affirmed the principle that the fact
that ownership of the assets required to run an undertaking does not
pass to the transferee is not decisive, and does not preclude a
transfer for the purposes of the Directive. The comprehensive right
of use of the infrastructure and the assumption of control over that
infrastructure are the key triggers.
[31]
This brings the present matter squarely within the scope of the
principle established by
Sodhexo
,
where a change in service providers triggered the equivalent of s 197
in circumstances where the incoming contractor is permitted
the right
of use of infrastructural assets owned by the client necessary for
the purpose of continuing the relevant service. The
LAC recently
considered
Sodhexo
,
and impliedly appeared to approve of its application by
distinguishing it on the facts in a case that concerned the
cancellation
of a franchise agreement and the appointment of a new
franchisee. (see
PE Pack 4100 CC v
Saunders
[2013] 4 BLLR 348
(LAC)).
Given the importance attached by the Constitution to comparative law
and the application by the Constitutional Court of
the principles
established by the ECJ in relation to the application of s 197, I see
no reason to depart from this principle.
[32] I
am satisfied on the evidence before me that the assumption of the
right of use of the infrastructural assets by TMS in circumstances
where it will provide the same services from the same premises,
without interruption, constitutes a transfer as a going concern.
In
my view, in these circumstances, s 197 applies and the affected
employees are employed, by operation of law and on the same
terms and
conditions, by TMS.
[33]
Finally, there is no reason why costs should not follow the result.
Neither party contended any differently.
I
make the following order:
1.
The termination of the warehousing
agreement between the first applicant and second respondent and the
conclusion of an agreement
for the provision of similar services by
the second respondent constitutes a transfer in terms of
s 197
of the
Labour Relations Act, 66 of 1995
.
2.
The contracts of the third to further
respondents transfer automatically from the second applicant to the
second respondent on the
date of the transfer.
3.
The second respondent is to pay the costs
of the application, such costs to include the employment of two
counsel.
ANDRE VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the applicants: Adv. AT Myburgh SC, with him Adv G Fourie, instructed
by Bowman Gilfillan Inc.
For
the first respondent: Adv. A Snider, instructed by DLA Cliffe Dekker
Hofmeyr
For
the second respondent: Adv. F Boda, instructed by Assenmacher
Attorneys