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[2015] ZALCJHB 50
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Rooiport Developments (Pty) Ltd v Association of Mineworkers and Construction Union and Others (J272/15) [2015] ZALCJHB 50; [2015] 6 BLLR 641 (LC); (2015) 36 ILJ 2125 (LC) (24 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO: J 272/15
DATE:
24 FEBRUARY 2015
Reportable
In
the matter between:
ROOIPORT
DEVELOPMENTS (PTY)
LTD
........................................................................
Applicant
And
ASSOCIATION
OF MINEWORKERS
AND
CONSTRUCTION
UNION
...............................................................................
First
Respondent
INDIVIDUAL
RESPONDENTS FOR THE FIRST
RESPONDENT
WHOSE
NAMES
APPEAR ON ANNEXURE
A
.............................................
Second
and Further Respondent
Heard:
18 February 2015
Delivered:
24 February 2015
Summary:
The applicant’s obligation to refrain from violating the second
respondent’s right to picket during a protected
strike does not
require the applicant to afford the individual respondents more
rights than they had before the commencement of
picketing, in order
to galvanize the strike and result in the diminution of the
applicant’s ability to pursue its operations
during a protected
strike.
JUDGMENT
LALLIE
J
Introduction
[1]
The applicant launched this urgent application for order in the
“
2
Declaring that the second and further respondents have no right to
make use of the sleeping facilities on the Applicant’s
premises, for the duration of the strike and lockout.
3
Ordering the Second and further Respondents to vacate the sleeping
facilities on the Applicant’s premises immediately.
4
Authorising the South African Police Services to enforce the Order in
players 3, 6, 7.1, and 7.2.
5
In the alternative to players 2 to 4:
5.1
Pending the outcome of a review application, to be instituted within
seven days of this Order, issue an Interim Order, with
immediate
effect, in terms of players 2 to 4 above.
6
Interdicting and restraining the First and Second and Further
Respondents from engaging in unlawful conduct during the course
of
the strike action including any conduct in furtherance of:
6.1
Blocking entrance to and exit from the Applicant’s premises;
6.2
Interfering with traffic of persons entering or exiting the
premises;
6.3
Engaging in any acts of intimidation or violence;
6.4
Carrying weapons or dangerous objects while on the Applicant’s
premises;
7
Ordering the respondents:
7.1
To remove the barricades and desist from blocking access or egress
to the applicant’s premises;
7.2
To desist from caring and/or using weapons during the picket; and
7.3
to comply with the terms of the Picketing Rules relating to the
conduct of the picket.
8.
Ordering the First Respondent to take all reasonable steps to
manage the conduct of the picket; Ordering that the costs of
this
application be paid by the respondents in the event of its opposition
to the granting of relief set out in the notice of
motion”.
Paragraph
9 provides for service of the order the applicant is seeking. This
application is opposed by the first respondent.
[2]
The applicant operates a diamond mine in the Northern Cape. It
engaged in wage negotiations with the first respondent (AMCU),
a
trade union representing the second to further respondents. The
parties were unable to reach an agreement and the wage negotiations
deadlocked. On 9 February 2015, AMCU issued the applicant with a
48-hour strike notice to which the applicant promptly responded
by
issuing a lock out notice effective from the commencement of the
strike. The strike commenced on 11 February 2015. However,
before its
commencement the CCMA determined picketing rules in two rulings dated
3 November 2014 and 18 December 2014. For purposes
of this
application, the second and further respondents are engaged in a
protected strike. The main issues in this application
deal with the
occupation of the sleeping facilities on the applicant’s
premises by the second and further respondents who
will be referred
to this judgement is striking workers or picketers.
[3]
I will firstly consider the issue of the occupation of the
applicant’s sleeping facilities by the striking workers. It
is
common cause that the applicant conducts its operations on a
continual 24 hour basis. Employees work on an “8/4”
shift
system in terms of which employees are divided into three teams. Each
team works on an 8 days on and 4 days off basis. Each
shift lasts for
12 hours, from 06h00 to 18h00 (day shift) and from 18h00 to 06h00
(night shift). Employees have a one hour lunch
break during each
shift. In the 12 hour period between shifts, during their active duty
cycle, employees are entitled to make use
of the sleeping facilities
situated on its premises (the sleeping facilities).
[4]
There is serious contention regarding the right of the striking
workers to use the sleeping facilities outside their active
duty
cycle. The applicant submitted that the sleeping facilities consist
of prefabricated huts each with 8 beds, with a total of
approximately
80 beds. Employees are not obliged to make use the sleeping
facilities as employees residing at Schmidtsdrift, which
is about 10
kilometres from the applicant’s premises are transported to and
from work by bus between shifts while on active
duty. The applicant
therefore contended that the sleeping facilities are used temporarily
only while employees are rostered to
work their 8 day on shift, that
is, during the active duty cycle. Employees therefore are not
entitled to use the sleeping facilities
when they are not working.
This lack of entitlement to the sleeping facilities by employees who
are not on active duty is the applicant’s
basis for submitting
that the 60 striking workers who are presently occupying the sleeping
facilities should be ordered to vacate
them.
[5]
The first respondent insisted that the striking workers are entitled
to use the sleeping facilities because although each hut
has 8 beds
only 4 are occupied in the twelve hour period between each shift. The
same 4 employees occupied the same 4 beds in the
twelve hour period
between shifts. The beds are available to specific employees and are
not occupied during the 4 off days. Each
employee has his own
designated bed which is not used by other employees and retains the
key to the hut, leaving his personal belongings
in the hut even
during off days. The first respondent denied that employees are not
allowed access to the sleeping facilities on
off days and submitted
that employees who are ill, injured in those who elected not to go
home during off days stayed in their
huts. They further submitted
that the right to the sleeping facilities was confirmed in the
picketing rules. Any insistence for
them to vacate the sleeping
facilities during the protected strike would force the striking
workers to go home. Some homes are
as further as 280 kilometres from
the workplace. They would consequently not be present to utilise
their right to strike, picket
and allied rights, thus frustrating or
even defeating the objectives of the right to strike.
[6]
It was argued on behalf of the first respondent that this court lacks
jurisdiction to grant an order evicting the striking workers
from the
sleeping facilities. This argument is based on section 67 (2) of the
Labour Relations Act 66 of 1995 (the LRA) which provides
that an
employee does not commit a delict or breach of contract by
participating in a protected strike or any conduct in contemplation
thereof. Participating in picketing which required the striking
workers to continue using the sleeping facilities formed part of
their participation in a protected strike. Evicting the striking
workers, so went the argument, falls outside the realm of section
157
of the LRA. The applicant argued that this court has, in terms of
section 158 (1) and (j) of the LRA power to interdict conduct
committed during a strike, including conduct in breach of picketing
rules. In this regard it sought to rely on
Vodacom
(Pty) Limited v Communication Workers Union and Others
[1]
.
The fundamental difference between the versions of the parties is
that the applicant alleges that the striking workers have no
right to
the sleeping facilities during their protected strike and lockout
while the respondents hold a different view.
[7]
It is common cause that the use of the sleeping facilities by the
striking workers forms part of their terms and conditions
of
employment. In terms of
section 77
(3) of the
Basic Conditions of
Employment Act 75 of 1997
this court has concurrent jurisdiction with
the civil courts to hear and determine any matter concerning a
contract of employment.
I am therefore of the view that this court
has the necessary jurisdiction to determine the issue of the eviction
of the striking
workers because it is an issue concerning the
striking workers’ contracts of employment. It also falls within
the purview
of
section 158
of the LRA.
[8]
There is a material dispute of fact in respect of the striking
workers right to use the sleeping facilities when they are not
on
active duty. As the applicant is seeking final relief, the
respondents’ version must prevail unless it is far- fetched
or
untenable. In this regard see
Pascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[2]
.
A number of submissions point to the conclusion that the
respondents’ version is far- fetched. The respondents submitted
that each employee using the sleeping facilities has a bed allocated
to him which was for his exclusive use. It is common cause
that
employees work an 8 day shift and are off for 4 days thereafter. The
applicant’s vision is that it has 350 employees
and about 80
beds. The only explanation that more than 80 employees could use 80
beds is consistent with the applicant’s
vision. The first
respondent conceded at least that workers could go home at the end of
the 8 day shift. This means that their
beds would not be used for 4
days. And if they chose to go home each time they were not on active
duty their beds would not be
used by workers on active duty who
needed to use them. The example given by the first respondent when
illustrating their right
to the sleeping facilities is telling, it is
that they are allowed in the facilities when they are not on active
duty when they
are ill or injured until they are able to return to
work. This example refers to an exception rather than the rule as it
connotes
that it is in circumstances when they are not physically
strong to go home that they are allowed to use the sleeping
facilities
when they were not on active duty. They therefore needed a
valid to be at the facility and not be there because they were
exercising
their right to be at the facility whenever they please.
The allegation that the striking workers had a right to use the
sleeping
facilities on off days is inconsistent with common cause
evidence that the striking workers lived at their homes and it
changes
the sleeping facilities into their homes. The applicant’s
version must in the circumstances prevail.
[9]
The picketing rules provide that accommodation will be determined by
the terms and conditions of employment of the striking
workers which
existed before the strike and picketing. They therefore did not
create new rights to accommodation for the striking
workers but
merely confirm the position which prevailed before the picketing and
the strike. The position being that the striking
workers were
entitled to use the sleeping facilities only when they were on
active duty.
[10]
It was argued on behalf of the respondents that this court must
exercise its discretion in a manner which advances rather
than
limits or undermines constitutionally guaranteed fundamental rights,
as well as the objects set out in
section 1
of the LRA, in
particular the right to strike, the right to engage in
collective-bargaining and participate in union activities,
and the
right to picket, as well as the LRA’s objects of giving effect
to the rights guaranteed by section 27 of the Constitution,
promoting orderly collective-bargaining in the effective resolution
of labour disputes. I have considered these submissions carefully
as
well as counterarguments on behalf of the applicant. The obligation
to take into account the rights enshrined in the Constitution
does
not eliminate the obligation to be fair to both parties. The
constitutional right to strike is partly regulated by section
67 of
the LRA which provides that a person does not commit a delict or a
breach of contract by taking part in any conduct contemplated
in
furtherance of a protected strike. I am of the view that section 67
(2) of the LRA requires employers not to violate employees’
right to picket. Employers are therefore precluded from either
behaving in a manner that will encroach on employee’s right
to
strike or disturb them when exercising their right to strike and
picket. The right to strike and picket does not create an
obligation
on employers to enhance striking employees’ right to picket
and make their strike more effective. The respondents
did not prove
their right to the sleeping facilities when not on active duty. There
is therefore no basis for the applicant to
create that right when
they are on strike. If use of the sleeping facilities formed the
striking workers’ payment in kind,
they would have requested
its continued use during the strike terms of section 67 (3). The
applicant therefore has proved its
right to have the striking workers
ordered to vacate the sleeping facilities.
[11]
The applicant has proved that it is suffering material injury as a
result of the striking workers’ continued use of
the sleeping
facilities as it is unable to use them to accommodate rostered
workers who are not participating in the strike and
alternatively
labour. It has no alternative relief as the CCMA has no jurisdiction
to grant an order for the striking workers
to vacate the applicant’s
sleeping facilities.
[12]
The applicant further sought an order interdicting the striking
workers from engaging in unlawful conduct during the strike.
The
conduct includes blocking of access or egress, brandishing weapons,
threatening behaviour, failure to picket in the designated
picketing
area, absence of convener and marshals and failure to control
picketing. The applicant failed to prove that the persons
who
committed the unlawful conduct were the striking workers in
circumstance where identification of the persons was possible.
It
therefore failed to establish a right to have the striking workers
interdicted from engaging in unlawful conduct during the
strike.
[13]
In the premises the following order is made:
13.1
The applicant’s failure to comply
with the provisions of Section 68(2) of the Labour Relations Act of
1995 (“the LRA”),
and disposing of this matter as one of
urgency, in accordance with the provisions of Rule 8 of the Rules of
this Court is condoned.
13.2
A rule nisi is hereby issued, calling upon
the respondents to show cause on 17 April 2015 at 10h00 why a final
order should not
be granted in the following terms:
13.3
Declaring that the Second and Further
Respondents have no right to make use of the sleeping facilities on
the Applicant’s
premises for the duration of the strike and
lock out.
13.4
Ordering the second and further respondents
to vacate the sleeping facilities on the applicant’s premises
immediately.
13.5
The relief in paragraph 13.1, 13.2, 13.3
and 13.4 operate as an interim order with immediate effect pending
the finalisation of
this application on the return date.
13.6
Costs stand over for determination on the
return date.
13.7
Services of this order be effected as
follows:
13.7.1
By
faxing a copy of the order to the First Respondent’s head
office to (013) 656 5112 and emailing same to
flipmarais1@gmail.com
.
13.7.2
On the Second and Further Respondents by
communicating the provisions of the order to them as such premises
they find themselves
by issuing copies of the order and to be placing
copies of the order on the notice boards to which the second and
further respondents
have access.
Lallie
J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant: Advocate Redding SC
Instructed
by: Cliff Dekker Hofmeyr
For
the Respondents: Advocate Kennedy SC and Advocate Govender
Instructed
by: Larry Dave Incorporated Attorneys
[1]
(2007)
28 ILJ 2846 (LC)
[2]
[1984] ZASCA 51
;
1984
(3) SA 623
(A)