About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2014
>>
[2014] ZALCJHB 132
|
|
CBI Electric: African Cables A Division of ATC (Pty) Ltd v National Union of Metal Workers of South Africa and Others (J818/14) [2014] ZALCJHB 132 (4 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO J 818/14
NOT
REPORTABLE
In
the matter between:
CBI
ELECTRIC: AFRICAN CABLES- A
DIVISION
OF ATC (PROPRIETARY)
LIMITED
Applicant
and
NATIONAL
UNION OF METAL
WORKERS
OF SOUTH
AFRICA
First
Respondent
THE
PERSONS WHOSE NAMES
APPEAR
ON ANNEXURE "A1"
TO
THE NOTICE OF
MOTION
Second
to Further Respondents
Application
heard: 4 April 2014
Judgment
delivered: 4 April 2014
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an urgent application to interdict a strike called in support
of a demand for the payment of a housing allowance.
[2]
The starting point in any determination of the status of the intended
strike is s 65 of the Labour Relations Act. Section 65
places
substantive limitations on the exercise of the right to strike and
prohibits participation in a strike
inter alia
in
circumstances where a person is bound by a collective agreement that
prohibits a strike in respect of the issue in dispute.
[3]
The collective agreement in issue in the current proceedings is the
main agreement concluded by the Metal and Engineering Industries
Bargaining Council. Clause 37 of that agreement regulates the level
at which collective bargaining may take place in the industry.
The
relevant portion of the clause reads as follows:
’
37. Levels of
Bargaining in the Industry
(1) Subject to sub
clause 2-
a. The
Bargaining Council shall be the sole forum for negotiating matters
contained in the Main Agreement;
b.
During the currency of the agreement no matter contained in the
agreement may be an iisue in dispute for the
purpose of a strike or
lockout or any conduct in contemplation of a strike or lockout;
c. Any
provision in the collective agreement binding on an employer and
employees covered by the Council, other
than a collective agreement
concluded by the Council, that requires an employer and trade union
to bargain collectively in respect
of any matter contained in the
Main Agreement, is of no force and effect.’
[4]
The intended strike that is the subject of these proceedings has been
called, as I have indicated, in support of a demand that
the
applicant pay a housing allowance to its employees. It is not
disputed that at a national negotiation meeting held on 26 and
27
March 2014, the first respondent tabled a set of what are described
as ‘core demands’. It is also not disputed that
included
in these core demands is a demand that employers pay a housing
allowance of not less than R2 500 per month to each worker
in the
industry.
[5]
In essence, the applicant contends that by tabling the demand for a
housing allowance at central or industry level, the first
respondent
has sought to amend or modify the main agreement and that it has
acknowledged the bargaining council as the sole forum
for the
negotiation of this demand. In particular, the applicant contends
that on a proper construction of clause 37(1)(a), the
introduction of
a demand for payment of a housing allowance at the central level
creates at least the potential for the incorporation
of such payments
into the main agreement. Having thus elected to bargain the issue of
housing allowances at central level, as I
understood the submission,
it is not open to the first respondent to conduct a parallel
negotiation at plant level, as it has sought
to do at the applicant’s
plant. Consistent with this submission, the applicant sought to amend
the notice of motion effectively
to the effect that any strike at the
applicant’s plant be prohibited for so long as central
negotiations for the introduction
of a housing allowance into the
main agreement continues. This would serve to address the prospect of
either the withdrawal of
the demand or agreement being reached in the
central negotiation.
[6]
In my view, a proper interpretation of s 65 of the LRA would in the
present circumstances serve to prohibit to strike only where
there is
in existence a binding collective agreement to that clearly prohibits
a strike on the issue in dispute. Clause 37 (1)
(b) of the main
agreement serves only to prohibit plant level bargaining on those
matters that are contained in the main agreement.
In the present
instance, it is common cause that the payment of housing allowances
is not a matter that is regulated by the main
agreement. Although
clause 37 (1) (a) acknowledges the bargaining council as the
exclusive forum in which matters contained in
the main agreement must
be negotiated, it does not expressly or impliedly prohibit parallel
bargaining in respect of matters that
are not regulated the agreement
but which are sought to be included by way of negotiation. While it
is true that where a demand
is pursued by the union both at central
and at plant level there is the potentiality for incorporation of any
agreement into the
main agreement, any potentiality for conflict is
removed by clause 37 (1) (c), which in effect provides that the main
agreement
trumps.
[7]
In short: In the absence of any binding collective agreement that
expressly prohibits a strike in respect of a demand made at
plant
level for the payment of a housing allowance, in my view, the first
respondent, provided it complies with all of the other
substantive
and procedural limitations on the right to strike, is entitled to
exercise that right.
[8]
In so far as costs are concerned, neither body pursued the issue of
costs. This court traditionally does not make orders for
costs in
circumstances where the parties are engaged in a collective
bargaining relationship and where an order for costs has the
potential to prejudice that relationship. In the present instance I
see no reason to depart from that tradition and I do not intend
to
make any order for costs.
For
the above reasons I make the following order:
1. The
application is dismissed.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Representation:
For
the Applicant: Adv. MSM Brassey SC, with him Adv. M van As,
instructed by DLA Cliffe Dekker Hofmeyr
For
the respondent: Ruth Edmonds, Ruth Edmonds Attorneys