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[2015] ZALCJHB 215
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CBI Electrical: African Cables - A Division of ATC (Pty) Ltd v National Union of Metal Workers of South Africa and Others (J317/14) [2015] ZALCJHB 215 (21 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: J317/14
In
the matter between:
CBI ELECTRICAL:
AFRICAN CABLES – A DIVISION OF ATC (PTY) LTD
Applicant
and
NATIONAL UNION OF
METAL WORKERS OF SOUTH AFRICA
First Respondent
THE PERSONS WHOSE
NAMES APPEAR ON ANNEXURE “A” TO THE NOTICE OF MOTION
Second to Further
Respondents
Decided
in Chambers: 21 July 2015
JUDGMENT
– REASONS FOR ORDER
TLHOTLHALEMAJE,
AJ
[1]
The Applicant had approached the Court on an urgent basis to seek a
rule nisi calling upon the Respondents to
show
cause on a return date why an order should not be granted declaring
the strike action due to commence on 12 February 2014 to
be an
unprotected strike as contemplated in section 68 of the Labour
Relations Act
[1]
(The LRA).
[2]
An
order was issued on 11 February 2014 in terms of which the
application was struck off the roll on account of lack of urgency,
and the reasons for the order and determination of costs to follow.
Ms. Ruth Edmonds had submitted that the Respondents were entitled
to
costs.
[3]
A
dispute was referred by the First Respondent on behalf of the Second
and further Respondents to the Metal Engineering Industries
Bargaining Council (The MEIBC) during November 2013 where a number of
demands were made. One of the demands was subsequently resolved
leaving only disputes in relation to payment of a housing allowance;
travel allowance and funeral allowance.
[4]
The
matter was set down for conciliation at the MEIBC where a point
in
limine
was apparently raised in terms of which the Applicant herein was of
the view that the demands were included in the subject matter
of a
collective agreement (the agreement) between the Steel and
Engineering Industries Federation of South Africa (SEIFSA) and
a
number of unions, including the First Respondent, thereby precluding
strike action over the demands.
[5]
The
conciliation proceedings were postponed and a certificate of
non-resolution only issued during January 2014 giving the Second
to
Further Respondents permission to strike in pursuance of their
demands. The Applicant requested the First Respondent to provide
a
written undertaking that its members would not participate in
industrial action as it was of the opinion that such industrial
action would be unprotected. Furthermore, the Applicant advised that
it was of the view that the dispute relating to whether the
demands
fell within the ambit of the agreement should be arbitrated under the
auspices of the MEIBC.
[6]
The
First Respondent had declined to make any such undertaking. A strike
notice was faxed to the Applicant on Sunday 9 February
2014, and came
to the Applicant’s attention the following day, which advised
that a strike would commence at 06H00 on Wednesday
12 February 2014
in support of the demands that were the subject of the dispute
referred to the MEIBC.
[7]
The
urgent application was thereafter launched in an attempt to interdict
the impending strike action. The urgent application was
served on the
First Respondent but due to limited time available, the Respondents
were unable to draft and file an answering affidavit.
Ms Ruth Edmonds
of the Respondents’ attorneys of record had however opposed the
application from the bar.
[8]
Central
to this application is whether the Applicants were entitled to embark
on the strike action in the light of the Applicant’s
contention
that the issues in dispute or that led to the demand were covered by
the main collective agreement as concluded between
SEIFSA and various
unions including the First Respondent.
[9]
In
the light of the matter having been struck off the roll on account of
lack of urgency, and it being the prerogative of the Applicant
to
place the matter on the ordinary roll for the full merits of the
application to be ventilated, no purpose will be served in
giving
full reasons for the order. The only issue that remains is whether
the Respondents are entitled to costs in these circumstances.
[10]
In
considering whether or not to grant costs, the Court is guided by the
provisions of section 162 of the LRA, which states that:
“
(1) The Labour Court may
make an order for the payment of costs, according to the requirements
of the law and fairness.”
[11]
The aspect
of
law
in section 162 (1) of the LRA denotes that costs should follow the
results
[2]
. In other words a
successful party would be entitled to costs. The aspect of
fairness
on the other hand denotes that costs do not automatically follow the
results
[3]
, and the Court should
thus look at the general purpose of awarding costs and exercise its
discretion accordingly
[4]
.
Furthermore, in considering costs, the Court must take into account
the conduct of the parties during the dispute and in the conduct
of
the litigation, and determine whether there are special or
exceptional circumstances justifying a costs order, such as
mala
fides
,
unreasonableness and frivolousness on the part of a party.
[5]
[12]
Central
to this dispute is whether the issues that the Respondents sought to
embark on strike action over are covered by the Main
Collective
Agreement or not. In bringing this application, even though the
Applicant had an option of referring a section 24 of
the LRA dispute,
I am not convinced that it acted
mala
fide
,
or unreasonably in approaching the Court on an urgent basis. As
at 3 March 2014, the strike action had been suspended and
the parties
had agreed that the merits of the matter should be dealt with on an
urgent basis under case number J336/14. Notwithstanding
this dispute,
it is further my view that the parties are in an on-going
relationship
albeit
that relationship appears confrontational. Be that as it may,
considerations of fairness dictate that each party must be burdened
with its own costs in respect of the proceedings of 11 February 2014.
Order:
i.
No
order as to costs is made in respect of the urgent application that
was struck off the roll on 11 February 2014.
____________________
TLHOTLHALEMAJE, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For the Applicant: Mr H J
Van Rensburg
For
the Respondent: Ruth Edmonds Attorney
[1]
Act 66 of 1995 as
amended
[2]
See
City
of Cape Town v SAMWU
(2008) 7 BLLR 618 (LC).
[3]
See
Apollo
Tyres (Pty) Ltd (formally Dunlop Tyres Internal (Ladysmith (Pty)
Ltd) v NUMSA & Others
2009
JOL 24326 (LC)
[4]
Chevron Engineering
(Pty) Ltd v Nkambule & Others
2004
(3) SA 495
(SCA) para [42]
[5]
National Union of
Mineworkers East Rand Gold & Uranium Ltd
[1991] ZASCA 168
;
1992
(1) SA 700
(A) at 738F–739G