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[2014] ZALCJHB 196
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Association Of Mineworkers And Construction Union v Lonmin Platinum (Comprising Eastern Platinum Ltd And Western Platinum Ltd) and Others (J1134/14) [2014] ZALCJHB 196; (2014) 35 ILJ 3097 (LC) (2 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, IN JOHANNESBURG
JUDGMENT
REPORTABLE
CASE
NO: J1134/14
In
the matter between:
ASSOCIATION OF
MINEWORKERS AND CONSTRUCTION UNION
Applicant
AND
LONMIN PLATINUM
(COMPRISING EASTERN PLATINUM LTD AND WESTERN PLATINUM LTD)
First
Respondent
IMPALA PLATINUM
LIMITED (ON BEHALF OF ITS RUSTENBURG OPERATIONS)
Second
Respondent
AMPLATS
AMERICAN PLATINUM LTD
Third
Respondent
Heard:
30 May 2014
Delivered:
2 June 2014
Summary:
(Urgent interdict – SMS communications of offers from employers
to striking employees – lack of urgency).
JUDGMENT
LAGRANGE,
J
Introduction
[1]
This is an urgent application launched on a
13 May 2014 by The Association of Mineworkers and Construction Union
(“AMCU”)
against three platinum mining companies,
Lonmin Platinum (comprising Eastern Platinum Ltd and Western Platinum
Ltd) (‘Lonmin’),
Impala Platinum Ltd (‘Implats’)
and Anglo American Platinum Ltd (‘Amplats’). The union
and its members
are engaged in a protracted protected wage strike at
the mining companies, which has been going on for approximately 4
months since
it began on or about 23 January this year.
[2]
The application was originally set down for
hearing on 20 May 2014, it was postponed
sine
die
by agreement between the parties to
allow the Labour Court an opportunity to settle the wage dispute. The
application was re-enrolled
for a hearing on 30 May 2014. By that
date, as a result of discussions between the union and the first
respondent, Lonmin, the
two parties have agreed to postpone the
application indefinitely, with costs being reserved. The first
respondent has undertaken,
pending the application against it being
re-enrolled, not to convey wage offers by Short Message Service
(‘SMS’) to
the union members it employs for direct
acceptance. Thus, for all intents and purposes this application only
concerns urgent relief
sought against Implats and Amplats.
[3]
The relief sought by the applicants in the
form of interim relief pending the outcome of two distinct types of
dispute the union
has declared with both respondents. The first
dispute concerns a claim under sections 4 and 5 read with section 9
of the LRA and
the second concerns the alleged breach of provisions
of the relevant collective agreements between the union and the
respondents.
[4]
The relevant dispute mechanisms in AMCU’s
collective agreements with the three respondent’s were invoked
by AMCU a few
days prior to launching the application, and AMCU
referred disputes under s 9 of the LRA a day or two later.
[5]
Although wider ranging relief was set out
in the notice of motion, at that hearing of the application, the
union abandoned relief
sought under prayer 2.1.4 of its notice of
motion, and confined itself to seeking interim relief under prayer
2.1.2, 2.1.3 and
2.2 of the notice of motion in the following terms:
" 2.1.2 Interdicting
and restraining [Implats] from conducting a survey which requires the
applicant's members to indicate
directly to that whether they wish to
return to work (which by necessary implication entails an acceptance
of the second respondent's
latest wage offer);
2.1.3 Interdicting and
restraining the [Amplats] from making direct wage offers to the
applicant's members requiring them to accept
such wage offers and
further interdicting and restraining [Amplats] from inciting,
inducing or assisting any of the applicant's
members to resign from
the applicant and/or to breach the Constitutional provisions of the
applicant's constitution in particular
clause 7.4 thereof; ...
...
2.2
compelling the respondent to address all wage offers which require
acceptance to [AMCU]
and not its members "
[6]
Even though, it might have made sense to
deal with the merits of the matter as if it were an application for
final relief, the employer
parties insisted, as they were entitled
to, that the question of the urgency of the application had to be
addressed. In any event,
AMCU is only seeking interim relief pending
the outcome of other disputes it has initiated, which are mentioned
below. The question
of urgency therefore remains a live issue between
the parties, and accordingly needs to be determined before any
consideration
can be given to whether or not the AMCU has satisfied
other requirements for obtaining interim relief.
Urgency
[7]
In order to deal with the question of
urgency, it is necessary to look at the chronology of communications
between the two respondents
and striking employees prior to the
application being launched on 13 May 2014. Although there are some
similarities, it is necessary
to set out what transpired at the
respective firms because each company was driving its own
communication strategy.
Implats communications
[8]
Implats communicated on an ongoing and
regular basis with its employees by means of regular SMS messages
even from shortly before
the commencement of the strike. Most of
these communications took the form of so-called "Strike
Updates". Essentially,
these messages contained a varying mix of
elements. Most of them were simply bulletins about the progress of
the negotiations and
exhortations by Implats management to strikers
to comply with the interdict against strike violence obtained on 24
January 2014
or to comply with picketing rules. Interspersed among
these terse bulletins was the occasional cheerful missive such as a
Mother's
Day greeting to all "Impala Mom’s" or a
message conveying Easter greetings.
[9]
In some messages, management repeated its
views about what it characterised as the ‘unrealistic’
demands of AMCU. In
messages sent on 13 February, 12 March, 3 April,
25 April, 5 May and 13 May 2014 the company urged strikers to
persuade the union
to accept the employer’s current offer or
asked strikers in general terms to agree to the offer. For example, a
message which
combines both elements was one on 1 April 2014 which
read:
"IMPLATS :-)
Management calls for visionary leadership from AMCU. Accept
Management's offer and end the strike."
[10]
Apart from these SMS messages, Implats also
communicated by means of printed Strike Briefs, one page in length,
which were distributed
via e-mail, on the company intranet and to
employees’ residences. Strike Brief 16.14 issued on 24 February
2014 reads:
"SUBJECT:
IMPALA'S
OFFER REMAINS UNCHANGED
AMCU is not willing to
move from their original basic wage demand of R12,500 and the company
simply cannot afford to meet this demand.
Impala has offered the best
wage increase we possibly can in these difficult times. The wage
offer that Impala has put on the table
is significantly above the
rate of inflation, it is fair and reasonable. We will increase the
minimum monthly guaranteed wages
by 26% over three years.
Submitting to AMCU’s
demands would more than double Impala's current wage bill. This would
mean that Impala would have to
look at restructuring and shaft
closures. Prolonged strike action will take the mine many months to
recover and become profitable
again.
Terence Goodlace, CEO of
Implats says: ‘We are disappointed that we have not made
progress on the platinum industry wage negotiations.
We are committed
to engaging further with AMCU and are determined to finding a
solution that will allow better wages and benefits
for employees,
preserve jobs and ensure the survival of our business.’
AMCU refuses to accept
the economic circumstances the company is facing and is not focusing
on making sure you keep your job.
Impala is not able to
offer any more money and will be forced to make the above-mentioned
adjustments if the strike continues. Please
look at everything
carefully and see that Impala's offer is fair and good.
Stand up
and accept Impala's offer to end the strike, save jobs and protect
your future
."
[11]
There were also two communications of a
distinctly different character which involved what Implats
characterised as ‘surveys’.
The first survey took place
on 17 and 18 February 2014. The survey, which employees had a choice
not to participate in, was an
automated telephonic survey. The survey
was initiated by a phone call announcing an important and urgent
message from the company.
Once the recipient of the call had elected
to listen to the message in the language of their choice, the script
of the automatic
call went as follows:
"Impala Platinum is
committed to helping employees during the strike.
Please answer the
following question for us and we're sure you that this will remain
confidential. No one will know your response
1. Would you like to come
back to work?
·
If your answer is YES please press 1
·
if your answer is NO please press 2
If employee selects 1:
Impala thanks you for
your support and commitment to your job. We would like to confirm
that this information will not be given
to anyone. We will keep
sending messages with updates to let you know what happens during the
strike. Thank you
If employee selects 2:
Thank you-if the reason
you do not want to come back to work because you are afraid of
violence and intimidation please press 1.
If the reason you do not
want to come back to work is because you support AMCU and their
demands please press 2.
If employee selects 1:
Impala Platinum is
committed to providing safe working conditions for all staff and
resolving all the current problems that we are
experiencing. We would
like to confirm that this information will not be given to anyone. We
will keep sending messages with updates
to let you know what happens
during the strike. Thank you
If employee selects 2:
The strike is damaging to
both the company and employees. Prolonged strike action would be to
shaft is closing in people losing
their jobs. AMCU’s
demands are unaffordable and unrealistic and we encourage you to
accept the company's fair wage
offer.
If the employee does
not make selection
Impala Platinum is
committed to providing safe working conditions for all our staff and
resolving all the current problems that
we are experiencing."
[12]
The second automated telephonic survey was
conducted on 28 March 2014. The script for the survey was virtually
identical to the
previous one except that the message to those who
indicated they did not want to come back to work because they still
supported
AMCU’s demands was that the employer was not going to
budge on its last stated offer, so prolonging the strike would not
change the position. The results of the survey were conveyed in
Strike Brief number 25.14, namely that approximately 86% of the
7668
employees who responded to the survey wanted to return to work. The
bulletin ended trying to persuade strikers to agree to
the company's
current offer as follows:
"Employees need to
influence union leaders to accept the company's current wage offer
which is fair, signed a wage agreement
and end the strike so that the
Impala team can go back to work."
[13]
On 24 April 2014, SMS messages were sent
out conveying the current revised offer from the platinum firms. On
29 April the union
advised the companies that it was continuing
consultations with its members concerning the offer and was seeking a
fresh mandate
from them. It requested the employers not to
communicate the offer directly to employees but the companies would
not accede to
this request. In a joint statement released on 30
April, the three companies responded thus:
"AMCU has requested
the producers did not communicate the offer directly to employees.
The companies cannot accede to this
request. The producers have a
responsibility to ensure that employees, including AMCU members are
fully apprised of the latest
offer and options open to them. The
producers’ preference is for a negotiated settlement with AMCU
and they urge employees
to provide a mandate to the union to accept
the offer. The companies have also put in place, or are putting in
place, mechanisms
for employees to accept the offer individually.
...
The
producers advise further that:
·
Communication with employees has
begun through both targeted and mass communication. It is not all
employees are immediately contactable
around operations, this
communication needs to reach labour sending areas around South Africa
and neighbouring countries.
·
The companies look forward to
positive feedback, in respect of the offer, from AMCU.
·
The companies will not be releasing
detailed information on communications initiatives, and progress made
in contacting employees
or detailed attendance numbers. This is being
done to reduce the risk of intimidation and violence. Updates will be
provided to
the market at a critical junctures."
[14]
Following a further meeting on 5 May 2014
in which the union reiterated its intention to continue with the
strike, a further joint
statement was issued lamenting what the
companies characterised as AMCU’s failure to suggest a solution
to the strike. The
update stated amongst other things:
"The companies will
continue their direct approaches to employees:
·
Lonmin has asked employees to
indicate their intention to accept the settlement offer by SMS by 8
May 2014. A provisional return
to work date of 14 May 2014 has been
planned, and would be dependent on the responses received.
·
Implats continues to communicate
with employees to gauge their response to the offer, and would advise
progress in due course.
·
Amplats has made the offer available
to its employees and has already seen the commencement in the uptake
thereof.
None of the companies
have set final acceptance dates; nor have they presented ultimatums
to employees.
Regrettably the companies
have received feedback from large number of employees that while
there would prefer to accept off and
returned to work, many are
fearful of doing so due to the threats to their personal safety."
[15]
Four days later on 8 and 9 May, Implats
conducted the most recent automated telephonic survey. According to
Implants’s answering
affidavit, the motivation for the survey
was that Implats claimed that a large number of employees had sought
information about
when the strike would end and when they could
return to work; reports had been received that anchor was not
communicating the wage
offer properly to members; shareholders were
putting pressure on management to establish information in order to
make plans to
resume operations if the event the strike came to an
end (the shafts having been closed since February),and a board
meeting was
scheduled in which management needed to be able to report
on the state of affairs including the attitudes of employees. The
company
said the survey was conducted by an independent firm and the
results of the survey could not be traced back to the individual
participants.
[16]
On the same day the survey commenced, the
following article which appears to be a mixture of reportage and
commentary appeared on
the eNCA news website: which reads:
"
Striking Implats
Miners to Vote on Wage Offer by SMS
JOHANNESBURG-Impala
Platinum, the world's second-largest producer of the metal said on
Thursday it would ask its striking so that
it can employees to vote
by text message this week on its latest wage offer and whether they
wanted to return to work.
Spokesman Johan Theron
said the vote would be conducted on Thursday or Friday and in would
involve striking miners who had indicated
their willingness to take
part.
The 15-week stoppage has
also hurt rival producers Amplats-American Platinum and Lomin,
hitting 40% of global production of the
precious metal used for
emissions-capping catalytic converters in automobiles.
Implats’ move is
the latest attempt by the three producers to undermine the
Association of Mineworkers and Construction Union
(AMCU) by taking a
wage offer directly to miners after talks collapsed two weeks ago.
Implats
said last week that two-thirds of its striking workers had already
indicated by text message and phone calls that they want
to return
but it was now asking for a formal vote on the offer."
[17]
The pertinent portion of the automated
script in this survey reads:
"Impala would like
to once again asked employees how they feel about the company's new
offer and whether you want to return
to work.
Please answer the
following two questions for us and we assure you that this will
remain confidential. No one will know your response.
The current wage of fish
will ensure that the minimum cash remuneration (comprising the basic
rate + holiday leave allowance + accommodation
advanced) for entry
level underground employees will rise to R12,500 over five years;
and R11,500 for entry-level surface
employees.
Question
1
do you think the
current wage offer is fair?
·
If your answer is YES please press 1
·
if your answer is NO please press 2
If the employee
selects 1:
Impala thanks you for
your response. We would like to confirm that this information will
not be given to anyone. We are committed
to working to find an
affordable solution to ending the strike. We will keep sending
messages with updates to let you know when
the strike ends and when
you can return to work. Impala thanks you for your support and your
commitment to your job.
If the employee
selects 2:
Impala thanks you for
your response. The AMCU demand of R12, 500 basic rate in four years
remains unaffordable and will result in
shaft closures and job losses
with disastrous consequences for employees, communities and the
company.
We ask the AMCU leaders
to consider the economic realities facing our business and to work
with us to reach a compromise that will
get employees back to work
and save jobs. Impala would like to appeal to all employees to accept
the settlement offer so that we
can return to work.
Question
2
Would you like to
come back to work?
·
If your answer is YES please press 1
·
if your answer is NO please press 2
If the employee
selects 1:
Impala thanks you for
your support and your commitment to your job. We would like to
confirm that this information will not be given
to anyone. We would
like to thank all non-striking employees who are affected by force
leave decision for their commitment, sacrifice
and understanding at
this very crucial time in the industry. We will keep sending messages
with updates to let you know when the
strike ends when you can return
to work. Thank you.
If the employee
selects 2:
Thank You- If the
reason you do not want to come back to work is because you are afraid
of violence and intimidation, please
press one.
If the reason you do not
want to come back to work is because you support AMCU and their
demands, press two.
If the employee
selects 1:
Impala Platinum is
committed to providing safe working conditions for all staff. You are
aware of the devastating impact of the
strike and we want to find a
solution as soon as possible. We would like to confirm that this
information will not be given to
anyone. We will keep sending
messages with updates to let you know when the strike ends and when
you can return to work. Thank
you.
If the employee
selects 2:
AMCU’s
demands are unaffordable and unrealistic and we encourage you to
accept the company's current fair wage offer. There
are rumours that
the longer the strike continues the more chance there is the company
will change to offer. Please note that this
is not true-our offer
will not change. By giving in to AMCU’s demands it will mean
that you, the employees will face job
losses with disastrous
consequences for employees, communities and the company.
If the employee does
not make a selection:
Impala
Platinum is aware of the devastating impact of the strike on
employees, their families, the mine and the communities and
we are
committed to finding a solution as soon as possible. We ask the AMCU
leaders to consider the economic realities facing our
business and to
work with us to reach a compromise that will get employees back to
work and save jobs. Impala would like to appeal
to all employees to
accept the current fair wage offer so that we can return to work."
[18]
Implats claims that 10397 employees
participated in the survey and 67% of those surveyed considered the
wage offer fair and a further
85% of the 8214 employees who answered
the second question wanted to return to work.
Amplats Platinum
[19]
The approach adopted by Amplats from early
on in the strike was to appeal directly to strikers to return to work
and receive the
wage increase it was offering. So, for example, on 11
February 2014 Amplats sent two SMS messages to employees, which read:
"Striking employees
will lose their increased backpay unless they accept the company's
offer. The backpay is R 4,244 to R10,
718, depending on your level.
Your income losses also impact your family. Make the right decision
for you and your family- Accept
the wage increase offer and end the
strike!"
"Accept the wage
increase offer and you will get R 606 to R 1,531 under more,
depending on your level. You will also get R
4,244 to R10,718
in backpay, depending on your level. Make the right decision for you
and your family- Accept the offer and
end the strike!"
[20]
On 2 April 2014, the company sent the
following SMS to employees:
"The company can't
afford to meet the unions wage demand.' No work, No pay!' If you
continue striking, you will lose April's
wage too. You may even lose
your job when unprofitable shots close down. Return to work and start
earning your new higher wage."
[21]
In the same vein, it sent the following SMS
to employees on 14 April 2014:
"If you return to
work, you will qualify for back pay and start earning your new higher
wage. You can then take care of your
family again and pay off your
debts."
[22]
Further SMS’s on 25 April 2014
invited strikers to go to their TEBA office to get their “personal
wage offer”
and reiterated that if strikers returned to work
they would start earning the higher wage and backpay for the period
from 1 July
2013 until the commencement of the strike.
[23]
Like Implats, Amplats also distributed
leaflets it called ‘news flashes’ which were distributed
in picketing areas and
other areas where they could easily be
accessed by employees such as the entrance and exit gates of the
mines. In addition, mine
security personnel distributed copies of the
news flashes in surrounding villages. Like the issuing of SMS
messages, as early as
5 February 2014, Amplats issued a newsflash
which stated:
"Employees will be
updated on further developments. In the meantime all employees are
encouraged to do the right thing and
report for duty for the best
interest of the company and their families."
On the following two
days, Amplats sent these SMS messages to the strikers:
"Choose the wise
solution- Accept a wage increase offer, end strike and return to
work. Get your wages back, with back pay
and increases."
"Today is the 16th
day since the AMCU strike action began. We urge all employees to
return to work so that you can start earning
wages again and be able
to support your families. A long strike will result in bigger
increases, but it does cause huge production
losses for the company
and wage losses for employees.
Do the right thing for
yourself and your family-accept the wage increase offer and end
strike."
[24]
Similar messages continued to be issued
throughout March, all of which conveyed the same suggestion: accept
the company's wage offer
and return to work. Unlike the more
carefully couched messages of Implats, it is difficult to read these
messages as anything other
than a direct invitation to employees to
abandon their strike and report for work on the terms offered by the
company. Although
the messages also referred to the union's demands,
they clearly were intended to appeal directly to individual workers
and did
not suggest that the only way to accept the company's offer
was to persuade their union to do so.
[25]
On 24 April 2014, Amplats issued a
newsflash setting out the implications of its latest revised offer
which, amongst other things,
would achieve the R12,500 monthly wage
demanded by AMCU by July 2017. The newsflash also stated:
"We are now at a
point where we are left with no choice but to make direct offers to
employees as an attempt to end stalemate
and finally bring workers
back to work so they can start earning for their families again.
We will be communicating
with employees over the next few days to give them further details
about how they can accept the offer.
We are also organising
meetings over the long weekend to keep details of the wage offer and
encourage a return to work.
Employees to return to
work now to start earning their new, higher wage will also receive
back pay dated from 1 July 2013 until
the start of the strike, as' no
work, no pay' applied during the strike.
It is time to' get back
to work and get money back in your pockets', so that employees can
take care of their families again. "
[26]
The union was also provided with a copy of
the memorandum Amplats intended to distribute to members.
[27]
The union also alleged that on 11 May 2014,
a member was approached at home by two members of Amplats's security
personnel and presented
with a form to sign to indicate her
willingness to return to work. She says that no explanation about the
content of the form was
given to her. Amplats denies any knowledge of
the incident or that such conduct by its security personnel is
authorised. The founding
affidavit does not state whether the member
signed the form, retained the form or handed it back, but the form
was not annexed
to the founding affidavit. This vaguely described
incident is the only one of its kind mentioned by the applicant.
Persuading union members
to resign
[28]
The applicant also alleges that "
...it
appears that the striking members who have accepted the wage offer
made directly by [Amplats] have been requested by [Amplats]
to cancel
their membership with the applicant
."
In support of this claim, cancellation of union membership forms
signed by AMCU members were attached to the founding affidavit.
Amplats does not dispute making such forms available but denies
asking the employees to resign from the union. Even though it
concedes that the
pro forma
cancellation
document refers to a resignation with immediate effect, Amplats
claims that the 30 day notice period for membership
resignations
required by AMCU’s Constitution is given effect to in practice.
[29]
Apart from disputing the applicant’s
contentions, Amplats in any event undertook in its answering
affidavit "not to incite
or induce AMCU members to resign their
membership with AMCU”, which it claims disposes of the need for
any urgent relief
on this issue.
Evaluation
The case for urgency
relating to Implats
[30]
As far as Implats is concerned, the union
identifies two events which justified it launching its application
only in mid-May. Firstly,
it contends that the telephonic survey of 8
and 9 May constituted a disguised direct offer to union members to
disassociate from
the union and accept the offer. As the AMCU is the
collective bargaining representative of the members, the company had
no right
to approach them directly. Secondly, AMCU argues that the
survey must be seen in the context of the article appearing on the
eNCA
website that was published at the same time. In the founding
affidavit of the applicant the allegation is set out as follows:
"Hence, from 8 May
2014, and subsequent to the announcement by Implats’ Theron,
the nature of the SMS communication from
Implats to striking
employees changed. As appears from the SMS messages below [a
reference to the SMS is announcing the telephonic
survey on 8 May
2014], Implats was now attempting to elicit a response directly from
striking employees with regard to acceptance
of the latest wage
offer, thus circumventing the applicant, undermining the Applicant is
recognised role as collective bargaining
agent, undermining the
recognition agreements and constitutional and statutory rights
referred to above and inducing the workers
to terminate their
membership with the Applicant."
[31]
Impala, by contrast, maintains that there
is a distinction between making the wage offer directly to its
employees and asking them
to vote on whether or not they thought it
was fair and if they wanted to return to work, which it says the
telephonic survey was
intended to gauge. It further strongly denies
any attempt to induce strikers to terminate their membership with the
union. It would
appear that the latter allegation is a speculative
one on the part of the union, rather than one supported by evidence.
Where the
company had referred to union membership in the SMS
messages, it had emphasised the employee’s freedom to choose
their union,
in which the company played no part.
[32]
In relation to the survey, it is noteworthy
that if an employee participating in the survey indicated that they
thought the wage
offer was fair, the automated response which
followed did not invite the employee to act in accordance with their
view and report
back directly to the company to accept the offer.
Another important factor to note, is that, according to Implats, the
results
of the survey was anonymous. In consequence, an employee who
rated the wage offer as fair could not be identified. All that the
survey could reveal is the percentage of those surveyed who thought
the offer was fair.
[33]
The automated response which followed a
negative answer to the same question criticised the union
leadership’s alleged failure
to consider the economic realities
of the business and made a general appeal to "all employees to
accept the settlement offer
so that we can return to work." This
statement addressed to someone who rejected the offer as fair, can
hardly be construed
as a direct invitation to that employee to accept
the settlement offer as an individual. It is not markedly dissimilar
from appeals
made in two earlier SMS messages which read:
"Implats :-)
Management the calls for visionary leadership from AMCU. Accept
management's offer and end the strike.
1 April 2014 04:00 pm
Implats :-) Thank you for
taking part in a recent survey. 86% of our employees said that they
want to return to work and don't support
the strike. R 12500 Basic
over four years is unaffordable. AMCU need to review their demands
and signed a wage agreement so that
you can all return to work.
3rd
April 2014 12:47 pm”
[34]
Further, when wage talks deadlocked on 25
April 2014, the following SMS message was sent to employees:
"Implats :-)
Management the calls for visionary leadership from AMCU. Accept
management's offer and end the strike.
25 April 2014 11:09
pm
”
Even after the second
telephonic survey, this was the SMS message dealing with the first
part of the survey:
"Implats :-) thank
you for participating in our survey. The first question asked if you
feel the current wage offer is fair.
65% agreed that the current
offer is fair. We urge you to communicate to AMCU that you are happy
with offer so that this wage dispute
can be resolved.
13 May 2014
04:10 pm
”
[35]
Considering the tenor of communications from an early stage in the
strike, I do not believe that there has been a fundamental
shift in
Implats’s approach that would justify an argument that recent
communications justify an application for urgent interim
relief at
this stage. Since early on in the strike, the thrust of the
communications to employees has been for them to pressurise
AMCU to
revise the demands or to accept the employers' offer. In short, quite
apart from the fact that Implats appears to have
been careful to
emphasise the collective nature of a resolution to the dispute, there
is nothing in its approach immediately before
the interdict was
launched that makes the nature of its communications and exhortations
to striking workers distinctly different
from what went before.
Accordingly I am satisfied that the applicant has not established
changed circumstances which warranted
bringing this application now
rather than, say, at the beginning of April.
[36]
The further alternative argument of the union is that notwithstanding
its failure to act earlier, the relief should be granted
in any event
because it would be unconscionable to allow Implats to continue
acting unlawfully pending the outcome of the various
disputes which
have been referred for determination. Assuming for the moment that it
would be unlawful for Implats to invite striking
employees to
individually accept its latest offer, I am not persuaded that the
survey conducted on 8 and 9 May 2014 can be interpreted
as a direct
offer to each participant in the survey to personally accept the
employer's latest proposal and to return to work on
the basis of that
acceptance.
[37]
No doubt the dissemination of results of the survey attacks the
credibility of a claim by the union that its membership is
100% in
favour both of continuing the strike and rejecting the employers’
proposal, but that is another issue and in substance
is little
different from the union attacking the credibility of the employers’
claims that the union's demands are unaffordable.
The case for urgency
relating to Amplats
[38]
On the matter of the claim that Amplats is inducing the resignation
of AMCU members, the only facts which emerge from the affidavits
is
that Amplats does indeed provide Union membership cancellation forms
to employees on request and that the 30 day notice period
is
implanted in practice despite the wording of the form. It should be
mentioned that the form is a generic cancellation form in
the sense
that the name of the union from which the employee is resigning has
to be written on the form. There was no confirmatory
affidavit from
any AMCU member to support the claim that Amplats was requesting them
to resign. Whilst denying it is guilty of
such interference with its
employees’ right to freedom of association, Amplats has in any
event given an undertaking as referred
to above.
[39]
In the absence of cogent evidence supporting the union’s claim
and given the undertaking, this matter does not warrant
the court
making any order in this regard.
[40]
On the issue of the Amplats offer to employees to accept its latest
proposals and return to work, such offers, which are open
ended in
the sense that they do not require employees to accept the offer
within a certain time, have been made since early on
ixhortations to
workers were not couched in collective terms urging strikers to
mandate AMCU to accept the offer.
[41]
Amplats could hardly have been surprised if striking employee had
presented themselves for duty, and had shown the text of
SMS messages
sent out by it during February, March or April to security personnel
at mine entrances as proof they had come to take
up the offer
contained in one of those messages. The messages were clearly asking
strikers to exercise a personal choice to abandon
the strike and
return to work on the terms offered by the company at that particular
time. What the offers did not do was to require
acceptance of the
offer on pain of suffering some penalty if acceptance was not
forthcoming, nor was any additional positive inducement
mentioned as
a ‘sweetener’ to accept the offer. Hence, the offensive
conduct complained of relates only to the making
of direct offers to
employees of the same offer that the mines had presented to AMCU.
[42]
The statement of intent by Amplats on 24 April that it had reached
the point it would make direct offers to employees in truth
did not
herald a new approach on its part: it has been doing this all along.
It is difficult to see as a matter of principle how
such a measure
could further infringe any of AMCU’s rights as the collective
bargaining agent of its members, than Amplats
already has, assuming
for the moment it does amount to an infringement. The more
plausible explanation for trying to have
the matter dealt with as
urgent after failing to address it for so long, might be that it
reflects a more practical concern of
the union, that after being on
strike for so long, its members might be more susceptible to such
offers than they were previously.
However, in its papers the union
portrays its members as united behind AMCU in their determination to
pursue the strike. Paradoxically,
this suggests that the offers made
by Amplats to date have had little effect on its members’
resolve and therefore pose no
real harm to its negotiating
capabilities or stature as a collective bargaining representative.
[43]
Mr
Bhoda
,
who appeared for the applicant, argued that even if AMCU had not
acted earlier on such a matter, that was no reason not to entertain
the application for interim relief on an urgent basis. This argument,
alluded to above, is that where there is an ongoing infringement
of
rights which cannot be adequately remedied by obtaining subsequent
relief in due course, urgent relief can be granted. In this
regard he
rightly pointed out a court would be reluctant to refuse an interdict
against strike violence simply because an employer
had not acted
immediately it became aware of such conduct. However, interdicts in
such matters are typically concerned with threats
to personal safety
or preventing criminal acts in relation to property, where the need
for immediate intervention by the court
is as pressing as the need
for police to intervene in such circumstances. By comparison, a right
to prevent an employer inviting
employees to accept the same offer it
is presenting to the union it negotiates with, in my view is not of
the same order as a right
to be protected against criminal action, in
the sense that it self-evidently justifies interim relief despite
delays in invoking
it.
[44]
Consequently, I am not persuaded that the union has satisfactorily
explained the length of time it has taken to challenge this
perceived
infringement.
Costs
[45]
The case is one of some complexity and
involves consideration of contested rights which have not enjoyed
much judicial consideration
since the heyday of the duty to bargain
under the pre-1995 labour dispensation. Accordingly, it is matter
warranting two counsel
in my opinion. There is no reason in the
circumstances not to make a cost award given that the duration and
intensity of
the strike as well as the social and economic upheaval
it has involved are likely to have a far greater effect on the
relations
between the parties than an order of costs.
Order
[46]
The application against the Second and
Third respondents is struck off the roll for lack of urgency with
costs including the costs
of two counsel where applicable.
[47]
The application against the first
respondent is postponed
sine die
and the issue of costs is reserved as between the applicant and the
first respondent.
_______________________
R LAGRANGE, J Judge of
the Labour Court of South Africa
APPEARANCES
APPLICANT:
F Bhoda assisted by V September instructed by Larry Dave Attorneys
SECOND
RESPONDENT: G Fourie instructed by Edward
Nathan Sonnebergs
THIRD
RESPONDENT:
AT Myburgh, SC assisted by M J Engelbrecht instructed
by Edward
Nathan Sonnebergs