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[2015] ZALCJHB 348
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Swissport (South Africa) (Pty) Ltd v National Transport Union and Others (J1940/15) [2015] ZALCJHB 348 (9 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: J1940/15
DATE:
09 OCTOBER 2015
Not Reportable
In
the matter between:
SWISSPORT
(SOUTH AFRICA) (PTY)
LTD
.......................................................................
Applicant
And
NATIONAL
TRANSPORT
UNION
...........................................................................
First
Respondent
THE
EMPLOYEES LISTED IN ANNEXURE (“A”)
......................
Second
to Further Respondents
Heard:
29 September 2015
Delivered:
9 October 2015
JUDGMENT
RABKIN-NAICKER,
J
[1]
On the September 23 2015, this court issued a rule
nisi
calling upon the respondents to show cause as to why a final order
should not be made in the following terms:
“
4.1
Declaring that the action and/or proposed strike action contemplated
for the 23
rd
of September 2015 constitutes an unprotected strike action in terms
of
section 68
of the
Labour Relations Act 66 of 1995
as amended;
4.2 Interdicting
the Respondents from participating in any such unlawful and
unprotected strike action;
4.3 Interdicting and
restraining the respondents from committing any acts of violence,
intimidation and threatening any and all
employees of the Applicant
in any way whatsoever including but not limited to intimidating them
to participate and join in.”
[2]
The interim relief was granted by my sister Whitcher J. On the 29
September 2015 the matter came before me in terms of Rule
8 (10), the
respondents anticipating the return date of 4 December 2015. Also
filed was an application for contempt in respect
of the interim order
and an answer thereto. The contempt application was not argued before
me.
[3]
I must decide whether the rule should be confirmed or discharged. In
this regard I will deal with first with the question of
whether or
not the strike that commenced on 23 September 2015 was protected.
[4]
Section 64(1)
and (2) of the LRA provides as follows:
64
Right to strike and recourse to lock-out
(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; or
(c) in the case of a
proposed lock-out, at least 48 hours' notice of the commencement of
the lock-out, in writing, has been given
to any trade union that is a
party to the dispute, or, if there is no such trade union, to the
employees, unless 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
(d) in the case of a
proposed strike or lock-out where the State is the employer, at least
seven days' notice of the commencement
of the strike or lock-out has
been given to the parties contemplated in paragraphs (b) and (c).
(2) If the issue in
dispute concerns a refusal to bargain, an advisory award must have
been made in terms of
section 135
(3) (c)
before notice is given
in terms of subsection (1) (b) or (c)
. A refusal to bargain
includes-
(a) a refusal-
(i) to recognise a
trade union as a collective bargaining agent; or
(ii) to agree to
establish a bargaining council;
(b) a withdrawal of
recognition of a collective bargaining agent;
(c) a resignation of
a party from a bargaining council;
(d) a dispute about-
(i)
appropriate bargaining units;
(ii)
appropriate bargaining levels; or
(iii)
bargaining subjects.
[5]
On the 31 August 2015, the CCMA conciliated the dispute between the
parties which it characterised as a “refusal to bargain”.
The advisory award under case number GAEK 6217-15 records as follows:
“
The
Applicant party, NTM, wants to negotiate wages with the Respondent.
The Respondent does not want to enter into discussions on
wages with
the Applicant due to the terms of an existing collective agreement,
as well as its view that the Applicant Union does
not meet the
threshold in such collective agreement.
The Applicant party
requested an Advisory Arbitration Award. The parties agreed to a
process going forward, which will be reflected
below. The Applicant
wanted this agreement to be placed in the Advisory Award.”
[6]
In his analysis of evidence and argument the Commissioner records as
follows:
“
[9]
According to the 2010 Recognition agreement, SATAWU had to maintain a
majority in order to qualify for collective bargaining
rights. This
they did not have in 2014, albeit by a short margin of just 8 people.
As such, the collective agreement signed with
SATAWU in 2014 is
invalid.
[10] There is an
evidentiary issue concerning the current membership of NTM at the
Respondent. The parties have agreed that they
will engage in a
verification exercise in order to confirm the current membership of
NTM, and that if they experience serious difficulties,
that they
would approach the CCMA in order to assist with verification.
[11] A verification
exercise, as mentioned above, will have an important and immediate
effect on the way forward concerning the
relationship between the
parties.
[12]
Until such time as the parties complete the verification exercise, it
makes practical sense to continue with the terms of the
2014
agreement for purposes of wages and conditions of employment.
[1]
[13] In view of the
particular circumstances of this case, the requirements concerning
the dates of engagement of wages and other
conditions of employment
should be relaxed in order to allow the Respondent and NTM to
consult, if indeed NTM have exceeded the
required threshold.”
[7] The advisory
award reads as follows:
“
ADVISORY
AWARD
[14] The parties are
to engage in a joint verification exercise, which is to commence
within 14 days hereof.
[15] In view of the
fact that it is common cause that NTM have more membership than any
other Union currently at the Respondent’s
workplace, the
Respondent should not refuse to bargain with the Applicant. This
should be the case even prior to the finalization
of the verification
exercise, and irrespective of whether or not it results in a
collective agreement.”
[8]
As referred to above the proceedings at the CCMA were conciliation
proceedings after a referral by the union based on ‘a
refusal
to bargain’. Conciliation proceedings are governed by
section
135
of the LRA:
'135 Resolution of
disputes through conciliation
(1) When a dispute
has been referred to the Commission, the Commission must appoint a
commissioner to attempt to resolve it through
conciliation.
(2) The appointed
commissioner must attempt to resolve the dispute through conciliation
within 30 days of the date the Commission
received the referral:
However the parties may agree to extend the 30-day period.
(3) The Commissioner
must determine a process to attempt to resolve the dispute which may
include —
(a) mediating the
dispute;
(b) conducting a
fact-finding exercise; and
(c)
making a recommendation to the parties,
which may be in the form of an advisory arbitration award.'
(my
emphasis)
[9]
Section 135
further states:
'(5) When
conciliation has failed, or at the end of the 30-day period or any
further period agreed between the parties —
(a) the commissioner
must issue a certificate stating whether or not the dispute has been
resolved;
(b) the Commission
must serve a copy of that certificate on each party to the dispute or
the person who represented a party in the
conciliation proceedings;
and
(c) the commissioner
must file the original of that certificate with the Commission.'
[10]
It was argued by the union that given the matter is a ‘refusal
to bargain dispute’ and that an advisory award
had been
issued, that the requirements for issuing a strike notice had been
met. On a proper reading of
section 64(2)
and
section 135
of
the LRA, an advisory award is required to be issued, and in addition,
the certificate of outcome must be issued or an elapse
of the 30 day
period from date of referral must take place before a notice of a
protected strike is given. As my brother Van Niekerk
stated in
Digistics
(Pty) Ltd v SA Transport & Allied Workers Union & others
[2]
:
“
While
s 135(5)(a)
requires a commissioner to issue a certificate of
outcome, it does not follow that a failure to do so prejudices the
right to strike.
The clear wording of
s 64(1)(a)
, and in
particular the use of the word 'or' between subparas (i) and (ii),
contemplates that the procedural requirements established
by
s 64(1)
are met once 30 days have elapsed from the date of the referral,
whether any commissioner appointed to conciliate the dispute
certificate has issued a certificate or not. The purpose of subpara
(i) of para (a) is to cater for a situation where conciliation
fails
within the 30-day period referred to in subpara (ii). In other words,
the procedural requirements imposed by the section
are met once a
certificate of outcome is issued by a commissioner, or 30 days have
elapsed from the date of the referral, whichever
occurs first.
[11]
The date of referral to the CCMA was the 17 July 2015. The
conciliation was held on the 31 August 2015. Thirty days had expired
since the referral of the dispute at date of issue of the strike
notice on 20 September 2015. Given there was no agreement to extend
the thirty day period referred to in
section 64(1)(a)
(ii), I accept
that the requirements in terms of
section 135
read with
section 64
to
issue the strike notice have been met. I note that it would have been
in the interests of labour peace had the Commissioner
attempted to
get agreement that the verification process could go ahead in the
context of an extension of the 30 day period.
[12]
There is a further basis on which the respondent claims that the
strike is unprotected. This is that the issue in dispute over
which
the union began strike action was in fact over wage negotiation
proposals and not a refusal to bargain. These ‘proposals
and/or
demands” are contained in a letter to the employer from the
applicant dated 2 July 2015.
[13]
In
Coin
Security Group (Pty) Ltd v Adams & others
[3]
it
was said that:
'It is the court's
duty to ascertain the true or real issue in dispute: Ceramic
Industries Ltd t/a Betta Sanitaryware v National
Construction
Building & Allied Workers Union & others (2) (1997) 18 ILJ
671 (LAC); Fidelity Guards Holdings (Pty) Ltd v
Professional
Transport Workers Union & others (1) (1998) 19 ILJ 260 (LAC). In
conducting that enquiry a court looks at the
substance of the dispute
and not at the form in which it is presented (Fidelity at 269G-H;
Ceramic at 678C). The characterization
of a dispute by a party is not
necessarily conclusive (Ceramic at 677H-I; 678A-C). There is in my
view no difference in the approach
of these decisions. In each case
the court was concerned to establish the substance of the dispute.
The importance of doing this
lies in
s 65
of the Act which provides
that no person may take part in a strike if "the issue in
dispute is one that a party has the right
to refer to arbitration or
to the Labour Court in terms of this Act...". The phrase "issue
in dispute" is, in relation
to a strike, defined as "the
demand, the grievance, or dispute that forms the subject matter of
the strike".'
[14]
The Commissioner’s recordal of the evidence of the respondent
at the conciliation, which has not been disavowed in the
papers is
the following:
“
[6]
The Respondent stated that SATAW had indeed lost considerable
membership, and according to their records, was the Union with
the
least membership in the Company It acknowledged that NTM had the
highest membership out of all the Unions present, but that
such
membership was below majority status.
[7] Mr Monnana
referred me to a collective agreement between the Respondent an
SATAWU dated 7 August 2014. This agreement also made
reference to a
Recognition Agreement dated 27 May 2010, also between itself and
SATAWU. In the 2010 agreement, the collective bargaining
threshold
was that of majority status. As at the date of signature of the 2010
agreement, the total number of employees in the
bargaining unit was
2011. SATAWU’S membership was 998. As at 31 August 2015,
SATAWU’s membership was 189 out of a total
of 2251.
[8] Mr. Monnana
argued that NTM did not even have the threshold as per the collective
agreement of 2015. Further, that in terms
of the time periods for
negotiation of wage agreements, as per para. 4.2.2, the wage
proposals should have been made by May 2015,
negotiated in June 2015
and implemented in January 2016. Since they have not complied with
either these time periods, and they
have not reached the threshold,
there is no basis to consult with NTM.”
[15]
In my view given the above, and taking into consideration that that
the company has on the papers not taken any initiative
to act on the
advice contained in the award, I find that the issue in dispute is a
refusal to bargain.
[16]
A further ground relied on by the company in seeking that the strike
be called unprotected is the content of Clause 4.2 of
the recognition
agreement between the parties, as referred to in paragraph 8 of the
Award quoted above. This it argued regulated
the issue in dispute
between the parties. Clause 4.2 records as follows:
“
4.2.1
Once the union has reached 45% the parties agree that the wage
negotiations will be conducted in June of that year to be effective
in January of the following year. This excludes all current and
substantive agreements.
4.2.2 Wage demands
must be submitted by May of preceding year for negotiations to
commence June and effective in January of the
following year.”
[17]
The respondent is of the view therefore that the union may not strike
as the matter is regulated by the clauses above. This
would mean that
collective bargaining could only begin in 2016, once the 45%
threshold is verified. It should be noted that the
clause contains a
suspensive condition i.e. that the collective bargaining threshold is
met. I am of the view that the clause cannot
be said to regulate the
issue in respect of the refusal to bargain in view of the fact that
the verification process has not taken
place.
[18]
The final ground the company relied on was that the union did not
properly notify them 48 hours before the strike because they
did not
use the Human Resources Manager’s direct fax number nor the
domicilium noted in the recognition agreement. In its
affidavit in
terms of
Rule 8(10)
, the union states that it used the number that
was the contact for the company reflected on the award and that the
company appeared
at the CCMA having been notified through that
number. The number used to serve the notice is indeed recorded by the
HR Manager
on the attendance register at the CCMA annexed to the
union’s papers. There is no merit in the company’s case
on this
point.
[19]
In all of the above circumstances, I find that the strike was
protected. Both parties expressed their willingness that they
be
ordered by this court to return to the CCMA to get assistance with
the verification exercise. This should be done urgently in
my view in
the hope that the parties can constructively move forward. In all the
circumstances, I make the following order:
Order
I.
The rule
nisi
is discharged.
II.
The parties are ordered to jointly approach
the CCMA not later than Monday 12 October 2015 in order to obtain
assistance for the
verification process under case number GAEK
6217-15.
Rabkin-Naicker, J
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant: H. Van Beek
Instructed
by: C De Villiers Attorneys
On
behalf of the Respondent: National Transport Movement
[1]
i.e.
the wages and terms and conditions of employed agreed between
SATAWU and the applicant in 2014.
[2]
(2010)
31 ILJ 2896 (LC)
[3]
(2000)
21 ILJ 924 (LAC);