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[2015] ZALCJHB 269
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Interstate Bus Lines (Pty) Ltd v Venter NO and Others (JR1840/11) [2015] ZALCJHB 269 (20 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR1840/11
INTERSTATE
BUS LINES (PTY) LTD
Applicant
and
VENTER, P M,
N.O.
First Respondent
SOUTH AFRICAN ROAD
PASSENGER
BARGAINING
COUNCIL
Second Respondent
SATAWU obo MEMBERS
Third Respondent
Heard:
19
August 2015
Delivered:
20
August 2015
Summary:
Review
– commissioner exceeding powers in redefining agreed issue in
dispute and then finding that employer guilty of an unfair
labour
practice relating to the provision of benefits on that basis –
award set aside
JUDGMENT
MYBURGH,
AJ
[1]
The
company
[1]
has in place an
incentive scheme in terms of which employees can earn a 14
th
cheque on a sliding scale, subject to performance. In terms of clause
6 of the policy document, “[i]f employees participate
in a
strike [implicitly an unprotected one] … the employees
involved loose 50% of their incentive payment and the company
maintains the right to decrease their incentive payment further or to
completely cancel the incentive scheme” (“clause
6”).
[2]
On
6 and 10 August 2010, SATAWU
[2]
members (“the employees”) engaged in a so-called picket
at the company’s premises. On the facts before the arbitrator,
the action entailed the employees collectively protesting during
their breaks (falling within the company’s business hours)
in
front of the company’s premises by displaying placards and
chanting slogans about various grievances that they (as SATAWU
members) had against the company. The purpose of the picket was to
put pressure on the company to attend to and resolve such grievances.
By agreement between the company and SATAWU, the employees were
issued with a final written warning relating to their participation
in the picket, for misconduct described as “disseminating false
information to the public and by doing so, putting the company’s
name into disrepute”.
[3]
The
employees were also only paid two-thirds of their incentive payment,
whereas those who did not participate in the picket received
full
payment. This resulted in SATAWU referring an unfair labour practice
dispute relating to the provision of benefits (section
186(2)(a) of
the LRA
[3]
) to the
bargaining council.
[4]
Ultimately, on 4 July 2011, the arbitrator
[5]
issued an award determining the dispute. He found that the employees
had not engaged in a “strike” as defined in section
213,
[6]
and accordingly that the
company had committed an unfair labour practice is reducing their
incentive payment by a third. He thus
ordered the company to effect
payment of the outstanding amount.
[4]
The
company now seeks to review the award in terms of section 145. In
argument before me, Mr Snyman (who appeared for the company)
advanced
two grounds of review. Firstly, that the arbitrator exceeded his
powers in deciding the matter on the basis that he did,
because the
dispute he was required to decided, as defined by the parties, was
whether or not the picket was lawful (i.e. protected)
– it
having been accepted by the parties that the answer to this question
would be dispositive of the employees’ entitlement
(or
otherwise) to payment of a full incentive payment. Secondly, and in
the alternative, that the arbitrator committed a material
error of
law (a reviewable irregularity) in finding that the employees were
not on strike as defined in section 213.
[5]
A
somewhat unusual situation arose at the arbitration. In the context
of the parties reaching agreement on the definition of the
dispute as
described above, the company accepted that no strike had taken place
(by which it seems to have meant, no protected
strike pursuant to
which a legitimate picket could be called
[7]
).
After the matter had been fully dealt with before the arbitrator on
the basis of the defined issue, and in circumstances where
his award
was pending, the arbitrator issued a ruling on 8 June 2011. In terms
of this ruling, he found, in effect, that the real
issue was whether
the picket qualified as a “strike” for the purposes of
clause 6, and that “an award will not
do justice to the dispute
if this aspect is not addressed”. In the result, the matter was
reopened, with the parties being
afforded the opportunity of dealing
with this issue on 28 June 2011. At this sitting, the company
objected to the redefining of
the issue for determination, and
refused to make any further submissions. As stated above, the
arbitrator then issued his award
on 4 July 2011, in which he
determined the matter on the basis that a strike had not occurred. In
the process, the arbitrator
recorded that “it was common cause
that no strike took place”.
[6]
Turning
now to the first ground of review, I am of the view that there is
merit in it. Parties are at liberty to define the dispute
for
determination by an arbitrator, and where they do so, but he decides
the matter on a different basis (as occurred herein),
this
constitutes the arbitrator having exceeded his powers in terms of
section 145(2)(a)(iii).
[8]
Implicit in the parties’ definition of the issue for
determination appears to have been an acceptance by them that the
word
“strike” in clause 6 was to be interpreted widely to
include picketing. The parties were entitled to contract on this
basis, but the arbitrator simply overrode their agreement – and
this at a time
after
the matter had been heard by the arbitrator. To exacerbate
matters, having unilaterally redefined the issue for determination,
the arbitrator then used against the company the concession that it
had made that no strike had taken place – a concession
made in
the context of the original definition of the dispute. (This
notwithstanding, it is clear that the arbitrator misconstrued
the
nature of the concession made by the company – it being to the
effect stated above.) This clearly demonstrates the danger
of an
arbitrator redefining agreed terms of reference.
[7]
Had
the arbitrator determined the dispute as originally defined (as he
ought to have done), he would probably have been driven to
conclude
that the picket was unlawful (i.e. unprotected). This appears from
the judgment of the LAC in
ADT
Security (Pty) Ltd v National Security & Unqualified Workers
Union & others
(2015) 36
ILJ
152
(LAC). In comparable circumstances to the present matter (SATAWU
having obtained municipal permission for the picket herein),
the LAC
found that the picket was unlawful in that the employees in that
matter (as occurred herein) had not followed the applicable
dispute-resolution mechanisms provided for in the LRA before
resorting thereto. Such a finding would have been determinative of
the incentive payment issue in favour of the company. In the result,
I uphold the first ground of review.
[8]
In
the circumstances, it is unnecessary to decide on the second (and
alternative) ground of review. But insofar as I am wrong on
the first
ground, it seems to me that, in any event, the arbitrator’s
conclusion that employees’ conduct did not qualify
as a strike
may well constitute a material error of law, on the following basis.
While it is so that the employees were on their
breaks (lunchtime,
etc) at the time of engaging in the picket, on the jurisprudence of
this court, the word “work”
in the strike definition has
been interpreted as including a lawful and reasonable instruction,
with the result that where employees
refuse to carry out such an
instruction (even in their own time) they, in effect, refuse to work
for the purposes of the strike
definition.
[9]
In this matter, the company warned the employees against engaging in
the picket and instructed them not to do so, but they refused
to heed
the instruction. The act element of the strike definition was thus
arguably satisfied, with there being no controversy
that the other
elements were met.
[10]
But I
make no final determination in this regard, because it is unnecessary
to do so.
[9]
In
the light of the determination that I have made in para 7 above,
little purpose would be served in remitting the matter back
to the
bargaining council for a fresh arbitration.
[10]
In
the result, the following order is made:
1.
the
arbitration award is set aside on review;
2.
the
arbitration award is replaced with an order that the company’s
conduct did not constitute an unfair labour practice, and
that
SATAWU’s referral to arbitration is dismissed;
3.
there
is no order as to costs.
________________________________
Myburgh, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the applicant: S Snyman of Snyman Attorneys
On
behalf of the third respondent: no appearance
[1]
The applicant.
[2]
The third
respondent.
[3]
Labour Relations
Act 66 of 1995
. All references to sections herein are to the LRA.
[4]
The second
respondent.
[5]
The first
respondent.
[6]
The definition
defines a “strike” as follows: “… 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… .”
[7]
Section 69(1)
provides that “[a] registered trade union may authorise a
picket by its members and supporters for the purposes of peacefully
demonstrating – (a) in support of any protected strike”.
[8]
See by way of
analogy,
Reunert
Industries (Pty) Limited t/a Reutech Defence Industries v Naicker &
others
[1997] 12 BLLR 1632
(LC) at 1638A-B;
Telkom
SA Ltd v CCMA & others
[2003] 1 BLLR 92
(LC);
Transnet
Freight Rail v Transnet Bargaining Council & others
(2011) 32
ILJ
1766 (LC) at para 74.
[9]
Mndebele &
others v Xstrata South Africa (Pty) Ltd t/a Xstrata Alloys
(Rustenburg Plant)
(unreported LC judgment, case no. JS 1017/09, dated 21/8/2012, per
Lagrange J) at para 122.
[10]
These being that
the employees must act in concert, and that the purpose of their
conduct must be to remedy a grievance or resolve
a dispute.