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[2015] ZALCJHB 154
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Anglo Operations Ltd (Kleinkopje Colliery) v National Union of Mineworkers and Others (J 779/15) [2015] ZALCJHB 154 (21 May 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa, Johannesburg
Judgment
Case
No: J 779/15
DATE:
21 MAY 2015
Not
Reportable
Of
Interest to Other Judges
In
the matter between:
ANGLO
OPERATIONS LTD (KLEINKOPJE
COLLIERY)
..............................................
Applicant
And
NATIONAL
UNION OF
MINEWORKERS
..............................................................
First
Respondent
THE
PERSONS WHOSE NAMES
APPEAR
IN ANNEXURE
‘A1’
.........................................................
Second
and further respondents
Heard: 14
May 2015
Delivered:21
May 2015
Summary:Strike
interdict – urgent application – six demands met –
strike unprotected.
Judgment
STEENKAMP
J
Introduction
[1]
The
applicant conducts mining operations at Kleinkopje colliery. Its
employees who are members of NUM (the first respondent) are
on
strike. The union has followed the prescribed procedure to go on a
protected strike in terms of section 64 of the Labour Relations
Act.
[1]
But the applicant seeks
to have the strike declared unprotected because, it says, none of the
six demands that form the subject
matter of the strike can in law
form the subject matter of a protected strike; either because the
demands have been met or because
they are covered by a collective
agreement and therefore fall outside the scope of a protected strike
in terms of section 65(3)(a)(i)
of the LRA.
[2]
The court granted a rule nisi on 21 April
2015. The matter came before me on the return day on 14 May 2015.
There is no dispute
that it is urgent.
Background
facts
[3]
NUM has referred two disputes to the CCMA.
The first relates to matters of mutual interest, and the second
relates to a reconfiguration
exercise that the NUM contends amounts
to a unilateral change to its members’ terms and conditions of
employment.
[4]
A number of the disputes leading to the
strike arise from the appointment of a new general manager, Mr Dirk
Miller, in October 2014.
The NUM contends that he changed a number of
practices introduced by the previous GM, Mr Leslie Martin; and that
he unilaterally
changed the number of redundancies that would be
declared pursuant to the reconfiguration exercise.
[5]
The union articulated its demands in its
answering affidavit. I will deal with each of those demands in
considering the application.
Evaluation
/ Analysis
[6]
As I have noted, the union has followed the
process in section 64 of the LRA to call its members out on a
protected strike. It referred
the relevant disputes to the CCMA;
conciliation took place; the matters remained unresolved; and the
union gave 48 hours’
notice of the commencement of the strike,
in writing.
[7]
The
employer argues, though, that once the issues in dispute which gave
rise to the strike have been met, the respondents cannot
strike in
pursuance of those issues. In
Ceramic
Industries Ltd v NCBAWU
[2]
the court noted that in terms of section 213 the purpose of the
strike must be “remedying a grievance or resolving a dispute
in
respect of any matter of mutual interest between employer and
employee”. It follows, said the court, that “as soon
as
the issue in dispute which gave rise to the strike has been settled,
any strike which continues beyond this point cannot have
such purpose
because the whole reason for using such economic muscle falls away”.
As Clive Thompson
[3]
has
remarked: “The justification for strong-arm tactics having
fallen away, the action forfeits its protected status.”
Each demand therefore has to be considered.
[8]
It is also important to point out that, at
the hearing of the matter, the company made a formal tender in
respect of five of the
six demands.
First
demand: abandon restructuring
[9]
The first demand appears to be that the
company must abandon its restructuring exercise at the colliery. That
is because the applicant
initially communicated to NUM that 62
redundancies would be declared; but upon Miller’s arrival,
according to the union,
he changed this number to 103 positions. This
unilateral reconfiguration, it says, affected employees and their
shift system. It
amounts to a unilateral change to the terms and
conditions of employment. The parties have not agreed on the number
of positions
that would be affected arising from the reconfiguration
process.
[10]
The applicant has undertaken in a formal
tender to discontinue its restructuring exercise. It undertakes to
engage the union in
a proper consultation process as contemplated by
sections 189 and 189A of the LRA before embarking on any retrenchment
exercise.
[11]
Given this tender, the substratum of the
issue in dispute has fallen away. The strike has lost its purpose –
and therefore
its protected status – in respect of this demand.
Second
demand: reconfiguration
[12]
The second demand relates to the alleged
unilateral change to terms and conditions of employment arising from
the reconfiguration
exercise, and more especially the move from a
“4x4 shift” and the resultant loss of a shift allowance.
[13]
The employer has tendered to discontinue
its reconfiguration exercise with immediate effect. Those employees
who no longer work
4x4 shifts as a result of having accepted a
transfer to an alternative position will continue receiving a 4x4
shift allowance for
a period governed by a collective agreement
titled ‘the 4x4 shift roster at Kleinkopje Colliery”.
[14]
The company has also undertaken to engage
the union in an appropriate process of consultation should the need
exist to examine further
reconfiguration.
[15]
It seems clear that the company has acceded
to this demand as well and the strike loses its protected status in
respect of this
demand.
Third
demand: pre-interview panel
[16]
The union says that there was a practice,
orally agreed to with the former GM, Martin, that the union would be
allowed to have an
observer at the “pre-interview panel”
preceding recruitment interviews. The company denies such an oral
agreement,
but has in any event tedered to allow an observer
appointed by the NUM to attend the pre-interview panel meeting and
interviews
for prospective job applicants and applicants for vacant
positions.
[17]
In so far as the NUM demands the right to
also cast a vote as a panellist, the employer has pointed out that
such a demand is contrary
to the recruitment policy annexed to the
union’s answering affidavit. And in any event, both parties
accept that the appointment
and promotion of personal are not matters
of mutual interest.
[18]
The union is not entitled to call out its
members on a protected strike on this issue.
Fourth
demand: health and safety representatives.
[19]
The union relies on yet another verbal
“prior arrangement” with Martin that two health and
safety representatives would
be moved as follows:
19.1
one employee to be appointed as a full-time
health and safety representative; and
19.2
the second employee to be moved to the VOHE
department.
[20]
The union says that Miller reneged on this
agreement and directed the two employees involved to return to their
previous positions.
[21]
The employer has pointed out that the
redeployment of SHE representatives who have not been re-elected is
governed by a collective
agreement. Therefore the respondents are
prohibited from striking in pursuance of this demand in terms of
section 65(3)(a)(i) of
the LRA.
Fifth
demand: appointment of a second full-time health and safety
representative
[22]
The company has undertaken in the tender to
appoint a second full-time SHE representative by 31 May 2015. This
representative will
be elected in accordance with the provisions of
the Full-Time Health and Safety Representative Collective Agreement.
The substratum
of this issue in dispute has been settled and the
respondents are not entitled to strike in pursuance of this demand.
Sixth
demand: bonuses
[23]
The union says that it reached an agreement
with Martin in 2013 to change the bonus system for foremen and
officials from one calculated
at a “30%/70% rate” to a
100% monthly bonus system.
[24]
The company has undertaken to pay a full
monthly production bonus to foremen and officials with effect from 30
June 2015 provided
that the parties have reached an agreement as to
the calculation of those bonuses.
[25]
The union concedes that the parties have
not yet reached an agreement as to the formula to be used for
calculating the monthly bonus.
The part of the demand that remains,
therefore, is an inchoate demand that cannot form the subject matter
of a protected strike.
Conclusion
[26]
The union has lost the right to strike in
pursuit of the demands that have been met by the applicant’s
tender; and in respect
of the demands governed by a collective
agreement, it is not entitled to embark on a protected strike.
[27]
It follows that the interim order granted
on 21 April 2015 must be confirmed.
Costs
[28]
Mr
van As
argued that the union should be ordered
to pay the company’s costs, as the company has exceeded to the
union’s demand
and has tried to avoid both the strike and
further litigation.
[29]
Taking into account the requirements of
both law and fairness, I do not agree. There is an ongoing
relationship between the parties.
That relationship may well have
been placed on a better footing following the company’s efforts
to exceed to the union’s
demands. But more work is to be done
to build that relationship. I fear that an adverse cost order at this
stage may have a chilling
effect on those efforts.
Order
I therefore make the
following order:
29.1
The rule nisi issued on 21 April 2015 is
confirmed.
29.2
There is no order as to costs.
Steenkamp J
APPEARANCES
APPLICANT: M J
van As
Instructed by
Cliffe Dekker Hofmeyr.
RESPONDENTS: L
Pillay
Instructed by
Molebaloa attorneys.
[1]
Act 66 of 1995 (the LRA).
[2]
(1997) 18
ILJ
550 (LC);
[1997] 5 BLLR 547
(LC) at 552. See also
Pikitup
(SOC) Ltd v SAMWU (2)
[2013]
11 BLLR 1118
(LC); (2014) 35
ILJ
201 (LC).
[3]
Thompson & Benjamin,
South
African Labour Law
AA1-308.