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 197
|
|
Imperial Group (Pty) t/a Imperial Cargo Solutions v South African Transport And Allied Workers Union and Others (J2903/13) [2014] ZALCJHB 197; (2014) 35 ILJ 3154 (LC) (2 June 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, IN JOHANNESBURG
JUDGMENT
REPORTABLE
CASE
NO: J 2903-13
In
the matter between:
IMPERIAL GROUP
(PTY) LTD T/A IMPERIAL CARGO SOLUTIONS
Applicant
AND
SOUTH AFRICAN
TRANSPORT AND ALLIED WORKERS UNION
First
Respondent
PERSONS
LISTED IN ANNEXURE “A”
Second
Respondent
Heard:
15 May 2014
Delivered:
02 June 2014
Summary:
(Provisions of s 64(4) of the LRA akin to a strike notice and must
meet the same standards of clarity
– protected strike pursuant
to a s 64(4) referral is only protected for the duration of the
relevant time period in s 64(1)(a)
of the LRA)
JUDGMENT
LAGRANGE,
J
Order
[1]
This Matter Concerns a Strike Interdict, in
which the Applicant Seeks confirmation of a
Rule
Nisi
Originally issued on 17 December
2014. The original return day was 27 February 2014, but by agreement
the parties agreed to extend
the rule until 15 May 2014. The court
further extended the rule in interim orders on 20 May 2014 and 30 May
2014.
Brief chronology
[2]
On 17 December 2013, the union issued a
notice to the applicant which read:
"
UNILATERAL
CHANGE TO TERMS AND CONDITIONS OF EMPLOYMENT
Dear Sir
Kindly take notice that
members have reported that the company has unilaterally changed the
previous condition of paying shunting
money to drivers at Distel
contract, and that you have tempered with the prior practice a manner
which assistance allowance should
be utilised.
We therefore serve to
yourself a referral form as a 48 hours notice to restore or not to
implement an intended change of any previous
condition, 48 hours will
be calculated as from today 17 December 2013, and should you fail to
comply with a notice your total operation
will embark to legal
industrial action starting from 20 4H00 in midnight of Thursday, 19
December 2013.
Trusting the above is in
order"
(
sic
)
[3]
On the same
day that the notice was issued, the applicant referred a dispute to
the National Bargaining Council for the Road Freight
and Logistics
Industry (' the bargaining Council'). The applicant was clearly
seeking to invoke the provisions of section 64 (4)
of the Labour
Relations Act 66 of 1995 ('the LRA') in terms of which a union which
refers a dispute about a unilateral change to
terms and conditions of
employment to the relevant bargaining Council may require the
employer not to implement the change until
the ordinary periods for
conciliating a dispute in terms of section 64 (1) (a) have expired.
If the employer fails to heed the
union's demand within 48 hours of
receiving it, the employees may embark on a protected strike.
[4]
In the
original founding affidavit, the applicant simply sought to challenge
the strike notice on the basis that no certificate
of outcome had
been issued by the bargaining Council. This was clearly a
misconception of the effect of section 64 (4) read with
section 64
(3) (e) of the LRA. In a supplementary affidavit filed later on 19
December 2014, the applicant advanced other grounds
why the strike
was unprotected. These were:
4.1
The applicant was ignorant of what the term
"shunting money" referred to and therefore had no idea how
it could give an
undertaking to revert to the status quo on that
claim.
4.2
The applicant did not alter the practice or
manner in which a so-called assistance allowance was utilised, but
had reiterated an
existing rule that drivers were not allowed to have
passengers in the vehicle cabin.
[5]
The applicant did mention that there was a
Guard Fee collective agreement between it and the union in terms of
which certain drivers
in a particular division of the firm were
entitled to a weekly guard fee. In terms of clause 7 of that
agreement, drivers who were
entitled to the allowance received it
"...in lieu of no assistant being on the vehicle and for
performing her duties such
as tarping and untarping (including
strapping) which might be performed by the driver or paid for by the
driver".
[6]
The applicant also contended that the
strike had been initiated maliciously by the union official issuing
the strike notice, who
it claimed had ‘an axe to grind’
with the applicant following his dismissal in 2011 by the applicant,
which formerly
employed him.
[7]
With the filing of answering and replying
affidavits some of the factual obscurity in the original application
was clarified.
[8]
As regards the convoluted reference in the
strike notice to the assistance allowance, the union claims that the
applicant tampered
with the practice in terms of which the assistance
allowance was utilised by making it a rule that "The Driver Is
the Only
person allowed in cab. No Assistants (except where
permanently employed as an assistant)". The union was of the
view that
the prohibition on temporary/ad hoc truck assistants being
in the vehicle was a clear contravention of the Guard Fee Agreement.
[9]
The Guard Fee agreement itself makes no
reference to the issue of transporting assistance in the vehicle. It
would seem that the
union was trying to suggest that there was some
relationship between the entitlement to the Guard Fee and the
necessity of allowing
temporary truck assistants to ride in the truck
cab. However even though the union had an opportunity to make the
connection clear,
the answering affidavit unfortunately it did not do
so.
[10]
Secondly, the so-called "shunting
money" took on a more concrete form. According to the
respondents, long-distance truck
drivers working on the Distell
contract are paid "shunting money" whenever they are
required to do local distance trips
while they were waiting for the
processing of their long-distance trips by the applicant and for the
loading of their long-distance
vehicles. On the drivers pay slips
these monies were recorded as "trip fees".
[11]
The union claims that in November 2013 the
employer had told the drivers that it intended to change their
conditions of employment
by withdrawing the payment of shunting
money. As evidence thereof the applicant provided payslips of a
driver, one of which showed
that he had received a payment for trip
fees, whereas the other had no trip fee payment. It also provided
copies of “Daily
Shunting” slips bearing the applicant’s
corporate logo and containing a written entries and payment
calculations which
correspond trip fee payments on a payslip. On this
basis, the respondents question how, Mr L Hollander, the deponent to
the founding
affidavit could have claimed complete ignorance of
shunting moneys.
[12]
In reply, Hollander continued to profess
his ignorance of the term and provided no explanation why the company
produced daily shunting
slips which were clearly used as the basis
for calculating trip fees. Instead, he continued to argue that in the
absence of conciliation,
the applicant could not be sure what the
reference to shunting money referred to and expresses the view that
the term was used
deliberately rather than the well-known term' trip
fees', which appeared on payslips.
[13]
The applicant also refer to an enforcement
award of 25 October 2013 which appears to have concerned the
employer’s previous
non-compliance with the bargaining Council
collective agreement governing overtime. The enforcement award issued
by the arbitrator
ordered the applicant to comply with clause 35 of
the bargaining Council agreement by ensuring that "...all of its
employees
are remunerated ordinarily (
sic)
and overtime is implemented from one
December 2013."
[14]
Further, the dispute which the union had
referred to the bargaining Council in terms of section 64 (4) of the
LRA had been conciliated
on 4 February 2014. According to the
arbitrator's ruling of 13 February 2014 (case number GPRFBC 28516),
the union had alleged
that the unilateral change concerned stopping
the incentive payment of "shunting" and stopping drivers
from transporting
casual employees on the company's truck. The
applicant raised a preliminary points arguing that the dispute could
not be entertained
by the arbitrator because of the earlier
enforcement award of October 2013.
[15]
According to the arbitrator's summary of
the applicant’s submissions, it appeared that it had justified
the withdrawal of
the trip fees because all incentive payments had to
fall away once it had been ordered to remunerate employees
‘ordinarily’
and pay them overtime in terms of the
bargaining Council agreement. As regards the second issue of the
transportation of casual
workers, the applicant had submitted that it
was practice amongst drivers which stopped because of the risk of
third-party liability
in the event of an accident. The respondent had
further argued that even though casual labour could be used, casual
labourers could
not be transported in the applicant's vehicles. It
further submitted that ceasing the practice could not be interpreted
as a change
of terms and conditions of employment.
[16]
In reply the union and submitted that the
enforcement award did not apply to drivers when they were doing local
trips and according
to the new Council did have the jurisdiction to
entertain the dispute about the removal of the shunting allowance.
The union agreed
on the practice regarding casual workers being
transported on the vehicle.
[17]
In arriving at her ruling that the
bargaining Council did not have jurisdiction to entertain the
dispute, the arbitrator reasoned
as follows:
17.1
On the issue of the trip allowance, the
union had not presented any evidence to support its argument that the
enforcement award
only applied to drivers when they were doing
long-distance trips whereas the award itself stated that the order
was applicable
to 'all' employees, which tended to support the
employer's argument that the order impacted across the board on all
drivers. The
arbitrator suggested that the union’s real problem
lay with the enforcement award.
17.2
On the question of the transportation of
casual workers, the arbitrator was satisfied that it was common cause
that it was the practice
of drivers to transport casual workers on
the company vehicle and consequently the issue had incorrectly been
categorised as a
change of conditions of employment.
[18]
Effectively, the arbitrator concluded that
the driver’s entitlement to ‘trip fees’ was an
issue that had been
determined by the October enforcement award, and
that the issue concerning the transport of casual workers did not
concern a change
to conditions of employment.
[19]
SATAWU also attacked the employer for not
complying with of the LRA which requires the applicant to give
written notice of its intention
of bringing the application and
criticises the application as being hopelessly premature because it
was made without responding
to the union’s request not to
implement the unilateral variation of terms and conditions it accused
the applicant of. As
such, it had no clear right to the interdict.
Moreover, it argued that all the applicant had to do was to reverse
the changes it
had made to avoid the strike so it was facing no
imminent harm.
[20]
In reply, the employer raised a further
objection to the union being permitted to strike pursuant to the
strike notice issued on
17 December 2013, because the period during
which it would have been permitted to strike in terms of section 64
(4), namely the
ordinary conciliation period provided for in section
64 (1) (a) has expired. This is considered below as it arises as an
issue
even if it had not been raised by the applicant.
Evaluation
[21]
The first point which must be made is that
the applicant disingenuously raised the two bargaining Council awards
only in its replying
affidavits, when clearly it should have placed
these matters before the court in a supplementary affidavit before
the applicant
filed an answering affidavit. The union’s
answering affidavit pertinently draws the court’s attention to
the fact that
the applicant was given leave to supplement its
founding papers on 19 December 2013 but had not done so. In its
replying affidavit,
the applicant simply ignores this issue and fails
to explain why it did not supplement its founding papers further, but
then proceeds
to raise entirely new issues in reply. In keeping with
the well-known principles set out in
Plascon-Evans
Paints v Van Riebeeck Paints
1984 (3) SA 623
(A)
,
which
apply to the determination of matters of fact where final relief is
sought, I should disregard the fresh allegations about
the awards
which the applicant ought to have included in a supplementary
affidavit.
[22]
The cardinal issue which remains for the
purposes of making a final order is whether the union had satisfied
the requirements of
section 64 (4) when it referred a dispute over
unilateral change to terms and conditions to the bargaining Council
and simultaneously
demanded the reinstatement of the status quo
regarding the issues in question. At this stage, I am no longer
concerned with the
issue whether or not interim relief ought to have
been granted initially. The issue is whether on the contents of the
affidavits,
which can be properly admitted as evidence, a final order
can be granted.
[23]
The strike notice issued by the union under
section 64 (4) was not a model of clarity. I am inclined to agree
that it is improbable
the applicant did not know what the term
shunting money referred to. It provides no satisfactory explanation
for its own forms
which used the term and which were used to
calculate what was perhaps more accurately called the “trip
fees”. The union
for its part explains the connection between
the daily shunting slip and the trip fees but does not explain why it
did not refer
to the withdrawal of trip fees, which is the way the
payment is actually reflected on driver’s pay slips. It must
also be
mentioned that neither party provided any indication that
there were any discussions preceding the issuing of the strike
notice,
in terms of which the content of the notice might have been
more readily understood.
[24]
Leaving aside the somewhat obscure
reference to "shunting money", the union’s other
reference to what was in fact
an issue concerning the transportation
of casual employees was extremely poorly expressed. The way it is
expressed makes it appear
as if it is referring to the payment of an
allowance for assistance. In my view, this would explain why the
applicant made reference
to the Guard Fee Agreement in its original
supplementary affidavit. That agreement seems to provide a payment to
drivers in circumstances
where they might use a third party's
services to perform the duties for which they receive the Guard Fee.
In this regard, I cannot
attribute any deliberate misinterpretation
on the part of the applicant of the second demand.
[25]
Drawing
on the principles governing strike notices set out in the LAC
judgment in
Ceramic
Industries Ltd t/a Betta Sanitary Ware v National Construction
Building & Allied Workers Union (2)
(1997)
18 ILJ 671
(LAC)
,
which interpreted the purpose of the warning as affording the
employer an opportunity to deliberate on the implications of strike
action and on whether or not to accede to the employees' demands
,
Van Niekerk J has expressed the view that:
“
[27] The
same purposive approach adopted by the Labour Appeal Court requires
that a strike notice should sufficiently
clearly articulate a union's
demands so as to place the employer in a position where it can take
an informed decision to resist
or accede to those demands. In other
words, the employer must be in a position to know with some degree of
precision which demands
a union and its members intend pursuing
through strike action, and what is required of it to meet those
demands.
”
[1]
[26]
I
agree with this approach. It is clear
that the letter claiming the unilateral alteration of terms and
conditions was drafted with
little concern about creating clarity. In
respect of the second issue it was not even clear what the union was
referring to, let
alone what the employer had to do to avoid a strike
in connection with that matter. In this instance where the demand
under s 64(4)(a)
to restore the
status
quo
fulfils the same role as a strike
notice and where it is issued prior to any conciliation process
taking place in which the precise
nature of the issues in dispute can
be clarified, the request to restore the
status
quo
should be drafted with even more
care for the avoidance of doubt about what measures the employer must
reverse or not implement.
For this reason I am satisfied that neither
the referral form nor the covering letter of the union of 17 December
2013, which serve
a similar purpose to a strike notice because the
union is supposed to identify the terms and conditions it claims have
been unilaterally
altered, met the requirements of section 64 (4) by
identifying the terms and conditions in question clearly enough to
avoid ambiguity.
[27]
By reason of non-compliance with s 64(4)(b)
the applicant was entitled to interdict the strike and a strike
pursuant to that referral
would be unprotected at least in so far as
the issue relating to casual assistants being able to be transported
on company vehicles
is concerned.
[28]
On the first issue, I believe that the
applicant probably did know what the “shunting moneys”
referred to and the union
was entitled to embark on strike action on
that issue, based on the admissible evidence before me at least prior
to the arbitrator’s
ruling of 13 February 2013. Ignoring for
present purposes any future consequences of that award, after the
finalisation of the
conciliation phase the opportunity to strike in
terms of the request to restore the status quo under s 64(4) would
have passed
and a fresh strike notice would have to be issued. Thus,
even though the union might have embarked on a protected strike in
respect
of the trip fees that strike would only have been protected
until the expiry of the relevant period of the conciliation phase
described
in s 64(1)(a) and my finding in this regard only has a
bearing on that period.
[29]
I must point out in passing that whether
strike action in respect of the issues which formed the subject
matter of the referral
of 17 December 2014, might be the subject
matter of protected strike action after 13 February 2014, is not a
matter within the
ambit of this judgment, which is confined to the
protected status of strike action within the time period
circumscribed by s 64(4)
and s 61(1) of the LRA.
Costs
[30]
Since the parties are both partially
successful, it would not be just and equitable in my view to make an
adverse cost award against
either of them.
Order
[31]
I find that the first respondent’s
request to the applicant not to implement unilaterally a change to
terms and conditions
in respect of the issue of permitting part-time/
ad hoc casual workers to ride in company trucks (‘the first
issue’)
did not comply with s 64(4)(a) of the LRA, but the
equivalent request in respect of the request to restore the trip fee
payments
(‘the second issue’) did comply therewith.
[32]
Accordingly, the rule interdicting the
respondents from participating in strike action in terms of s 64(4)
in relation to the first
issue is confirmed for the period from 19
December 2013 until 13 February 2014 and the rule interdicting the
respondents from participating
in strike action in terms of s 64(4)
of the LRA in relation to the second issue for the same period is
discharged.
[33]
No order is made as to costs.
_______________________
R LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES:
For the Applicant: C
Roodt instructed by AM Spies Attorneys
For
the Respondents: MM Baloyi of MM Baloyi Attorneys
[1]
SA
Airways (Pty) Ltd v SA Transport & Allied Workers Union
(2010)
31
ILJ
1219 (LC)
at
1228.