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[2015] ZALCJHB 247
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Zululand Anthracite Colliery Proprietary Limited v Association of Mineworkers And Construction Union and Others (J167/15) [2015] ZALCJHB 247 (7 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
No: J167/15
In
the matter between:
ZULULAND
ANTHRACITE
COLLIERY
PROPRIETARY
LIMITED
Applicant
and
ASSOCIATION
OF MINEWORKERS
AND
CONSTRUCTION
UNION
First Respondent
THE
INDIVIDUAL RESPONDENTS WHOSE
NAMES
ARE LISTED IN ANNEXURE “A”
Second to Further Respondents
Date
heard: 5 March 2015
Delivered:
7 August 2015
JUDGMENT
RABKIN-NAICKER
J
[1] The applicant company
approached the court on an urgent basis for an order declaring a
strike which started on 30 January 2015,
to be unprotected, and
interdicting the second and further respondents from participating in
the said conduct. A
rule nisi
by consent was ordered by my
brother Cele J on 3 February 2015. Before me, the respondents opposed
confirmation of the rule and
sought to have it discharged with costs.
The parties are signatories to a collective agreement (the
relationship agreement) which
provides that AMCU will only have
access to the Bargaining Forum to negotiate on substantive issues
once it has enjoys 30% representivity
in the bargaining unit. At the
time of the strike it had 22.63%.
[2] It is argued by AMCU,
on the basis of the full set of affidavits, that the strike was
protected and the company is not entitled
to the confirmation of the
rule which should be discharged with a punitive costs order. The
company contends that the true reason
for the strike is that AMCU
sought to bargain with it in contravention of the recognition
agreement which only permits bargaining
where certain representative
thresholds are met. On the other hand, AMCU contends in its papers
that the true reason for the strike
was the unilateral implementation
of changes to the shift system.
[3] However, in
submission before me on behalf of AMCU it was argued that nothing
turns on the question of the nature of the shift
system and that even
if it is accepted that the company was entitled to introduce the
system as a matter of managerial prerogative,
it does not follow that
the employees were precluded from striking in relation to changes to
the shift system. In other words it
is on this novel submission that
AMCU wishes to have the matter decided.
[4] The argument put up
on behalf of AMCU is as follows:
4.1
The definition of “strike” in section 213 of the LRA is:
“'strike'
means the partial or complete concerted refusal to
work, or the retardation or obstruction of work, by persons who are
or have
been employed by the same employer or by different employers,
for the purpose of remedying a grievance
or resolving a dispute in respect of any matter of mutual interest
between employer and
employee, and every reference to 'work' in this
definition includes overtime work, whether it is voluntary or
compulsory;”
(AMCU’s
emphasis);
4.2
This definition ought to be considered together with the definition
of the phrase
“issue in dispute” in section 213 of the
LRA i.e. “the
demand, the
grievance, or the dispute
that forms
the subject matter of the strike or lock-out”. (AMCU emphasis)
4.3
As such, it is a misnomer that a strike must be premised on a demand
made in
the context of collective bargaining (or an attempt to
bargain or obtain rights).
4.4
It is perfectly permissible for employees to strike in relation to an
issue
in respect of which they are aggrieved, with a view to
resolving such grievances.
4.5
The strike that commenced on 30 January 2015, took place:
(a)
outside of the context of collective bargaining (or a demand or
attempt by any party
to bargain collectively);
(b)
in the context of the employees being aggrieved regarding changes to
the shift system implemented
by the company on 21 October 2013;
4.6
The strike accordingly related to a grievance regarding the
implementation of
the 3 shift system (and not a demand in the context
of collective bargaining, or an attempt to bargain regarding the
issue).
4.7
The employees thus were entitled to strike on the basis of their
grievance.
This is so irrespective of whether, from a contractual
perspective, the Company was entitled to introduce changes to the
shift
system on 21 October 2013.
[5] Further, AMCU submits
that to consider whether collective action which falls within the
definition of “strike” is
protected, regard must first be
had to section 64(1)(a) (i)and (b) of the LRA, i.e.
“
(1)
Every employee has the right to strike and every
employer has recourse to lock-out if-
(a)
the issue in dispute has been referred to a council or to the
Commission as required by this Act, and-
(i)
a certificate stating that the dispute remains unresolved has been
issued; or
(ii)
a period of 30 days, or any extension of that period agreed to
between the parties to the dispute,
has elapsed since the referral
was received by the council or the Commission; and after that-
(b)
in the case of a proposed strike, at least 48 hours' notice of the
commencement of the strike, in writing,
has been given to the
employer, unless-
(i)
the issue in dispute relates to a collective agreement to be
concluded in a council, in which
case, notice must have been given to
that council; or
(ii)
the employer is a member of an employers' organisation that is a
party to the dispute, in which
case, notice must have been given to
that employers' organisation; …..”
[6] On the basis that the
jurisdictional pre-requisites of the above provision were met and
that the applicant company did not specifically
identify any
provision contained in section 65 of the LRA, the respondents submit
that the strike was protected.
[7] The above argument
falters in major respects. First, the AMCU submissions are premised
on the basis that there is a right to
strike over a grievance that
does not amount to a demand within the context of ‘collective
bargaining.’ This stance
misconstrues what ‘collective
bargaining’ is. In
National Union of Public Service and
Allied Workers obo Mani & Others v National Lotteries Board
2014
(3) SA 544
(CC)
,
the majority judgment per Zondo J,
considered the meaning and purpose of collective bargaining:
“
[142]
Earlier I referred to every trade union's right in s 23(5) of the
Constitution 'to engage in collective bargaining' and the
fact that
the LRA was enacted to give effect to the rights in s 23 of the
Constitution. About collective bargaining it has been
said:
'(B)y bargaining
collectively with organised labour, management seeks to give effect
to its legitimate expectation that the planning
of production,
distribution, etc should not be frustrated through interruptions of
work. By bargaining collectively with management,
organised labour
seeks to give effect to its legitimate expectations that wages and
other conditions of work should be such as
to guarantee a stable and
adequate form of existence and has to be compatible with the physical
integrity and moral dignity of
the individual, and also the job
should be reasonably secure. This definition is not intended to be
exhaustive. It is intended
to indicate (and this is important for the
law) that the principal interest of management in collective
bargaining has always been
the maintenance of industrial peace over a
given area and period, and that the principal interest of labour has
always been the
creation and the maintenance of certain standards
over a given area and period, standards of distribution of work, of
rewards,
and of stability of employment.' As to what collective
bargaining entails, it has also been said that —
'(b)y collective
bargaining is meant those social structures whereby
employers (either alone or in coalition with other
employers) bargain
with the representatives of their employees about terms and
conditions of employment, about rules governing
the working
environment (eg the ratio of apprentices to skilled men) and about
the procedures that should govern the relations
between unions and
employer. Such bargaining is called 'collective' bargaining because
on the workers' side the representative
acts on behalf of a group of
workers.'”
[8]
Second, the respondents have submitted that given the jurisdictional
pre-requisites of the provisions of section 64 of the LRA
were met,
the strike was protected. However, the basis of the section 64
referral, the issue in dispute, was that the change in
the shift
system (which occurred some twelve months earlier) amounted to a
unilateral change to their members’ terms and
conditions of
service. The respondents’ approach to this application has not
been to rely on the alleged unilateral change
to terms and conditions
of employment as their protection. The respondents have rather used
this Court to test out an approach
which if accepted would permit a
union to claim that a strike is protected despite the LRA or a
collective agreement requiring
that the dispute in question must go
to arbitration, or over which an advisory award is required where
there is a refusal to bargain.
The approach is without merit,
misconstrues the meaning of collective bargaining and is blind to the
design of dispute resolution
contained in the LRA.
[9] I therefore find that
given the terms of the collective agreement, the strike was
unprotected. Given that the strike is long
over, the rule stands to
be discharged. In all the circumstances, I make the following order:
Order
1.
The rule
nisi
issued on the 3 February 2015 is discharged.
2.
The respondents are ordered to pay the costs of the application
jointly
and severally, the one paying the other to be absolved.
________________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances
:
For the Applicant:
Mr K Makapane
of Bowman Gilfillan Attorneys
For the Respondents:
Adv Riaz
Itskin
Instructed
by:
Larry Dave Attorneys