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 181
|
|
Imvula Quality Protection (Africa) (Pty) Ltd and Another v Commission For Conciliation, Mediation and Arbitration and Others (J1135.14) [2014] ZALCJHB 181 (17 May 2014)
REPUBLIC
OF SOUTH AFRICA
Of
interest to Other Judges
THE LABOUR COURT
OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
Case
no: J1135/14
In
the matter between:
IMVULA
QUALITY PROTECTION (AFRICA) (PTY)
LTD
..............................
First
Applicant
IMVULA
SECURIPARK (PTY)
LTD
.................................................................
Second
Applicant
AND
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
...................................................................
First
Respondent
COMMISSIONER
NADIA SITHOLE
N.O
....................................................
Second
Respondent
SECURITY
OFFICERS CIVIL RIGHTS
AND
ALLIED WORKERSS
UNION
................................................................
Third
Respondent
THOSE
INDIVIDUALS AS LISTED IN
ANNEXURE
“A” TO THE NOTICE OF
MOTION
.....................................................................................
Fourth
and Further Respondents
Heard:
16 May 2014
Delivered:
17 May 2014
Summary:
(Urgent – Strike interdict – non-compliance with dispute
resolution procedure in collective agreement -
compliance with
LRA dispute resolution procedures).
JUDGMENT
LAGRANGE,
J
Introduction
[1]
This is an urgent application to interdict
strike action due to commence on matters of mutual interest on 19 May
2014. My brief
reasons for the decision set out below.
Salient
facts
[2]
For the purposes of this application, it
appears that both the union and employer parties accept that the
recognition agreement
concluded between a company whose business was
absorbed by the applicants is binding on them. That agreement
contains dispute procedure.
In terms of the dispute procedure, it is
stipulated that:
"15.2 The
party declaring the dispute shall do so in presenting a written
notice, shall set out the nature of the dispute and
the parties
proposed settlement.
15.3 Party
receiving the notice shall convince a meeting with the other, within
5 days of receipt of the notice referred to above
for the purpose of
endeavouring to settle the dispute.
15.4 At any stage
following a meeting referred to in clause 15.3 above, a party
declaring the dispute shall be entitled to refer
the dispute in terms
of the act, provided the dispute remains unresolved.
15.5
Notwithstanding that the dispute may have been in terms of the act,
parties may continue to meet and attempt to resolve the
dispute will
agree to any other dispute resolving procedure.
15.6
If either party declares dispute in terms of clause 15.2 above, the
labour practice in employment relationship prevailing
immediately
prior to the change which gave rise to the dispute shall be restored
until the dispute resolving procedure has been
exhausted."
(sic)
[3]
In essence, the procedure requires that
before either party may resort to the dispute resolution procedures
of the Labour Relations
Act, 66 of 1995 (‘the LRA’), a
written description of the dispute and how it should be resolved must
be sent to the
other party and a meeting must be convened within five
days of the latter party receiving it.
[4]
In this case, the respondents concede that
they did not comply with clause 15.2 literally, but did comply with
it substantially.
In support of this contention they point out that
the issues over which the union has called for the strike as set out
in its list
of demands are ones that have been discussed in a number
of meetings with the applicants. It is true that one of the items had
been on the agenda of a meeting between the parties as far back as
October 2012. However, the closest the union came to meeting
the
requirements of clause 15.2 was in a letter of 27 February requesting
a meeting with the company on 5 March 2014. The letter
contained an
agenda of items, most of which made it onto the list of final demands
set out in the union’s strike notice of
2 May 2014.
[5]
In relation to the issue of proposals to
resolve the dispute, the union contended that these were canvassed in
the meetings which
took place between the parties even if they had
not been reduced to writing in the notice.
[6]
The day after the first meeting between the
parties on 5 March 2014, which was the first one held following the
union’s letter
of 27 February, the union referred a mutual
interest dispute to the CCMA. Before the matter was due for
conciliation of the CCMA
on 30 April 2014, the union proposed further
meetings between the parties to discuss their members’ demands.
The applicants
indicated their willingness to hold such a meeting,
but insisted that the referral should be withdrawn pending the
outcome of such
meetings. Although the applicants’ letter to
this effect does not make explicit reference to the provisions of
clause 15,
it is apparent from the union’s response to the
letter that it was fully aware of the need to comply with that
provision.
[7]
For present purposes, it is sufficient to
note that the union did not withdraw the CCMA referral, and on 2 May
2014 issued a strike
notice. It must be mentioned that the strike
notice contained two additional demands relating to shop stewards,
which had been
part and parcel of the demands referred to the CCMA,
but which had not been included in the list of items identified for
discussion
by the union in its proposed agenda for the meeting on 5
March 2014.
[8]
Following the strike notice the employer
indicated its continuing willingness to meet with the union on 9 May
2014, as the union
had proposed. The meeting took place but no
agreement on the demands could be reached. There is a dispute about
whether the union
undertook to revert to the company about holding
another meeting on 12 May 2014 to discuss the demands further, and I
must accept
the union’s version that no such undertaking was
given. In any event, it was on 12 May 2014 that the union notified
the company
that the CCMA had issued a certificate of non-resolution.
The applicants responded immediately setting out the view on why the
intended strike action would amount to unprotected strike action and
warning amongst other things of the prospect of bringing an
interdict
to a halt it.
[9]
This application was launched two days
later on 14 May 2014.
Urgency
[10]
Considering the sequence of events leading
up to the launching of the application, while it might be said that
there were no reasons
why the application could not have been
launched after 2 May 2014, it was possible that the meeting of 9 May
might have yielded
a resolution of the matter and the applicant's
effectively gave notice of the prospect of an interdict been launched
seven days
before the strike was due to commence. In the
circumstances, I believe that the union had sufficient notice that
the application
would be brought so it cannot be said that it only
arose at the last minute.
Prima
facie right
[11]
The heart of the dispute on whether the
applicants are entitled to the interdict is twofold. Firstly, in
circumstances where a union
has complied with the provisions of the
LRA in referring a dispute to conciliation and, following the
unsuccessful resolution thereof,
issued a strike notice more than 48
hours before the commencement of the strike, can it be prevented from
striking because it did
not comply with the dispute resolution
provisions of a collective agreement? If the answer to that question
is yes, then the second
question is whether or not the union complied
with the dispute resolution provisions of the collective agreement in
this instance.
[12]
It seems that since the ratio of the
majority in the LAC decision in
BMW
South Africa (Pty) Ltd v NUMSA obo Members
it is no longer the case that compliance with the LRA is sufficient.
Waglay DJP, as he then was, writing for the majority, stated:
“
[8]
It is not for me to interpret the above clause. It is common cause
between parties that the clause sets out the procedure which
the
parties need to follow in dealing with the demand. The appellant
however argued that the procedure set out in clause A.8.3
was the
only way that the respondent was entitled to proceed in addressing
its demand. I agree. Parties by way of a collective
agreement set out
certain procedural steps which they will follow in dealing with their
demands, grievances, concerns, etc. In
this respect appellant is
correct to submit that the respondent was obliged to follow clause
8.3 in having its demand addressed.
[9]
The respondent on the other hand argues that it is not obliged to
comply with the procedure set out in clause A.8.3 because
its demand
is one of mutual interest and it is entitled to embark on a strike in
support of its demand as long as it does so in
compliance with the
provisions of the Labour Relations
Act
66 of 1995
(as
amended) (the Act). I disagree. Where parties have concluded an
agreement which does not deny any of the parties to the agreement
the
rights and obligations provided in the Act, I see no reason why that
agreement cannot be enforced. In fact the Act seeks to
promote
collective bargaining, particularly at the sectoral level and
gives primacy to collective agreements.
[10]A
collective agreement concluded between the parties is binding between
them. It is a contract that sets the agreed terms between
them and as
long as what is agreed upon is not in conflict with the applicable
legislation or contra bones mores it is binding
and enforceable
between them.”
[1]
[13]
Consequently, the contrary approach adopted
in
County Fair Foods (Pty) Ltd v Food
& Allied Workers Union & others
(2001)
22 ILJ 1103 (LAC)
no longer appears to
hold good. In the circumstances, I must agree with the applicants
that they were entitled to require the union
to comply with the
provisions of the dispute resolution process in the recognition
agreement, even though they had complied with
the dispute resolution
provisions in the LRA.
[14]
This brings me to the second question. As
mentioned above, the union has argued that even if it did not comply
with the letter of
the dispute resolution process in the collective
agreement, there had been substantial compliance therewith. It is
true that the
agenda notice contained in the union’s letter of
27 February 2014 contained most of the items over which it
subsequently
declared a strike. What was missing from the letter as
required by clause 15.2 of the recognition agreement were the
proposals
for settling the dispute. The union contested that these
were essentially addressed in the discussions which followed. I have
two
difficulties with this approach. Firstly, the declaration of
dispute is a signal to the respondent party that matters have come
to
a head on certain issues between them. Like the orange warning light
on a traffic light, it signifies that however matters have
been
proceeding to date, things are about to change. Secondly, the clear
identification of demands and the proposed resolution
provides
clarity for the way forward. The union’s letter of 27 February
2014 did not meet these requirements. The difficulty
with relying on
the un-minuted discussions of what took place in meetings after that
agenda notice as a basis for arguing that
there was substantial
compliance, is that, it lacks the very clarity which a dispute
notice, like a strike notice provides. I am
not satisfied on the
available evidence that there was substantial compliance with the
provisions of the agreement
[15]
Accordingly, I am satisfied that the
applicants have established a
prima
facie
right to the relief sought, which
does not require the union to abandon any intended strike action
altogether but is only prevented
from doing so before it has
completed the dispute process set out in clause 15 of the recognition
agreement.
Irreparable
harm and balance of convenience
[16]
Had the union withdrawn the referral to the
CCMA and simultaneously complied with clause 15.2 of the agreement,
it would have been
in a position to initiate the dispute procedures
of the LRA within a week assuming that the parties did not resolve
the dispute
at a meeting provided for in clause 15.3 of the
agreement. I do not think that this is unduly onerous for the union
to comply with,
especially given that the dispute has had a
relatively long gestation period. On the other hand, it is unlikely
that the applicants
would be able to recover any economic loss
resulting from unprotected strike action, if they were ultimately
successful in obtaining
a final interdict.
Costs
[17]
Although the applicants have been
successful I do not believe that the union’s opposition to the
application was in bad faith
given that it raised genuine issues of
dispute relevant to whether or not the applicants were entitled to
the interdict. Consequently,
a costs order would be inappropriate in
my view.
Order
[18]
Consequently, an order is granted as
follows:
18.1
Dispensing with the provisions of the Rules
of the above Honourable Court relating to time and manner of service
referred to therein
and enrolling the matter as one of urgency in
terms of Rule 8 of the Rules of Conduct of Proceedings in the Labour
Court.
18.2
Condoning the non-compliance with section
68(2) in so far as it is found to be applicable.
18.3
Declaring the intended strike action by the
Third Respondent and the Fourth to Further Respondents planned for 19
May 2014 commencing
at 06h00 at the Applicant’s head office
situated at 5 - 8 Wolseley Street, Woodmead East, Sandton,
Johannesburg, and at all
branches within the Republic of South Africa
to be unlawful.
18.4
Interdicting the Third and Fourth to
Further Respondents from participating in the planned strike of 19
May 2014 until such time
that they have complied with the dispute
resolution provisions set out in the recognition agreement which
binds them.
18.5
Declaring the participation of the Fourth
to Further Respondents planned strike of 19 May 2014 to constitute a
breach by them of
their contracts of employment with the Applicants.
18.6
Declaring that the Third Respondent’s
dispute referral to the First Respondent and the certificate of
non-resolution issued
by the Second Respondent under case number GAEK
1949-14 is premature in that the Third Respondent failed to comply
with the dispute
resolution provisions set out in the recognition
agreement which binds them.
18.7
That the orders prayed at paragraphs 3, 4,
5 and 6 in this Notice of Motion operate immediately as a
rule
nisi
pending the return date of the
rule nisi
on 8 August 2014.
18.8
Directing that an order granted in terms of
this motion be served upon the Third Respondent by transmitting it by
way of a telefax
to its head office and at fax number 011 331
5998.
18.9
Directing that service upon the Fourth to
Further Respondents to be done by persons nominated by any one of the
Applicants by reading
a copy of the order to so many of the Fourth to
Further Respondents who may be gathered at its head office situated
at 5 and 8
Wolseley Street, Woodmead East, Sandton, Johannesburg and
at its branches within the Republic of South Africa.
18.10
Directing further that service on the
Fourth to Further Respondents to be done by affixing a copy of an
order of this Court on so
many of the Applicants’ notice boards
as are accessible to them.
18.11
Each party must pay its own costs.
_______________________
R LAGRANGE, J
Judge of the
Labour Court of South Africa
APPEARANCES
APPLICANTS:
F Bhoda instructed by Norton Rose Inc
FIRST RESPONDENT: K
Mkhize of Bowman Gillfillan Inc
[1]
(2012)
33 ILJ 140 (LAC) at 150-151