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[2015] ZALCJHB 367
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NUMSA obo Members v Videx Wire Products (Pty) Ltd and Others (JR1298/12) [2015] ZALCJHB 367; (2016) 37 ILJ 171 (LC) (28 October 2015)
REPUBLIC
OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 1298/12
In
the matter between:
NUMSA obo its
members
(as listed in
annexure “A”)
Applicant
And
VIDEX WIRE PRODUCTS
(PTY) LTD
First Respondent
K DRISCOLL
Second Respondent
MEIBC
Third Respondent
Heard
:
8 October 2015
Delivered
:
28 October 2015
Summary:
Review – LRA s 158(1)(g) – whether
demands of union members were strikeable – question whether
issue in dispute
covered by Main Agreement of Bargaining Council.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
applicant, NUMSA
[1]
, seeks to
have an arbitration award reviewed and set aside in terms of s
158(1)(g) of the LRA.
[2]
The
commissioner
[3]
held that the
union members’ demands in terms of the Main Agreement governing
them constitute demands for remuneration and/or
productivity
bargaining which may not be negotiated outside the Bargaining
Council.
[4]
Therefore NUMSA may
not strike over those issues.
Background
facts
[2]
The union and the employer are bound by the
Consolidated Main Agreement for the Metal and Engineering Industries
Bargaining Council.
More specifically, they are bound by the
agreement reached at national level over remuneration and
productivity bargaining. The
company argues that the union’s
members may not strike over those issues at plant level during the
period of the agreement;
the union contends otherwise. Clause 37 of
the main agreement reads as follows:
“
37.
LEVELS OF BARGAINING IN THE INDUSTRY
(1)
Subject to subclause (2) –
a.
the Bargaining Council shall be the sole
forum for negotiating matters contained in the Main Agreement;
b.
during the currency of the Agreement, no
matter contained in the Agreement may be an issue in dispute for the
purposes of a strike
or lock-out or any conduct in contemplation of a
strike or lock-out;
c.
any provision in a collective agreement
binding an employer and employees covered by the Council, other than
a collective agreement
concluded by the Council, that requires an
employer or a trade union to bargain collectively in respect of any
matter contained
in the Main Agreement, is of no force and effect.
(2)
Where bargaining arrangements at plant and
company level, excluding agreements entered into under the auspices
of the Bargaining
Council, are in existence, the parties to such
arrangements may, by mutual agreement, modify or suspend or terminate
such bargaining
arrangements in order to comply with subclause (1).
In the event of the parties to such arrangements failing to agree to
modify
or suspend or terminate such arrangements by the date of
implementation of the Main Agreement, the wage increases on scheduled
rates and not on the actual rates shall be applicable to such
employers and employees until the parties to such arrangement agree
otherwise.”
[3]
Annexure D to the Main Agreement provides:
“
Subject
to the provisions of clause 37 of the Main Agreement, an employer,
his employees, any employee representative body and any
trade unions
representing the affected employees may, by mutual agreement, enter
into voluntary negotiations to conclude a productivity
agreement with
the objective of achieving measurable improvements in productivity
performance and work life at company level in
terms of the principles
and guidelines contained in this Annexure.”
[4]
The issue of production targets has been a
contentious one for a number of years. NUMSA sent a letter to the
company setting out
their demands (or proposals). For the sake of
understanding those demands, and whether or not they are covered by
the main agreement,
they are worth quoting in full:
“
RE:
STANDARD FOR PRODUCTION TARGETS
Further
to our previous discussions pertaining the above, please find
herewith our proposals in respect of production targets:
1.
We submit that all members are paid per
hour, and not per the targets.
2.
We submit that production targets must not
be linked to the hourly rate.
3.
We submit that failure by employees to
reach the production targets should not result in disciplinary
action.
4.
We submit that production targets should be
based and/or calculated on the sliding scale.
5.
We propose that there should be a daily
amount which employees will receive for reaching the production
targets.
6.
We propose that in case the employee did
not reach targets he/she will forfeit certain amount of money
percentage of daily targets
money based on the sliding scale [
sic
].
7.
We propose that in case the employees reach
daily targets prior to knock off time, such employee should have
option to knockoff
continue to work as overtime.
8.
We propose that any increase to production
targets must be subject to negotiations between the union and
company.
9.
We propose that production targets be dealt
with by the accredited professionals with good reputation in general
and SABS in particular.
10.
We put on record that the production
targets must not violate basic human rights and health and safety
rules and regulations.
11.
We propose to meet with yourselves [
sic
]
on either 13/04/2011 at 12h00 or on 20/04/2011 at 10h00 to discuss
about this matter including procedural and recognition agreement.”
[5]
The parties could not reach agreement. The
union referred a dispute to conciliation at the bargaining council.
They characterised
it as a matter of mutual interest in terms of s 64
of the LRA. Conciliation failed and the Council commissioner issued a
certificate
to that effect. He ticked the box that indicated that, if
the dispute remains unresolved, the union could call its members out
on strike.
[6]
The company responded to the demands set
out in the union’s letter, but still the parties could not
agree. The union issued
a notice that it would embark on a protected
strike within 48 hours in terms of section 64 of the LRA. The union
reiterated the
10 demands set out in its earlier letter. It added a
new demand that “five grade structure must be benchmarked by
the highly
paid artisans” but subsequently withdrew it.
[7]
The company’s attorneys sent a letter
to NUMSA advising them that the strike would be in support of
productivity bargaining;
that that was an issue covered by the main
agreement; and that, hence, the strike would be unprotected. They
further pointed out
that the company had not agreed to negotiations
on productivity bargaining in accordance with Annexure D to the Main
Agreement.
They asked NUMSA to give an undertaking to stop the
strike.
[8]
NUMSA refused. The company launched an
urgent application in this Court. The Court granted an interdict
stopping the strike pending
a referral to arbitration of the
following question:
“
Whether
the union demands in terms of the Main Agreement constitutes [
sic
]
demands for remuneration and productivity bargaining which may not be
negotiated outside the Bargaining Council and if so whether
the union
may strike over the issue.”
[9]
The arbitrator answered the question in the
affirmative and ruled that the union and its members “may not
strike over the
issues”.
The
award
[10]
The
commissioner was guided by the remarks of the LAC in
Northern
Cape Forests
[5]
that the interpreter of a collective agreement should, in addition to
applying the ordinary rules of interpretation, also ask the
question
whether the interpretation accords with the objectives of the LRA.
Those objectives include providing a framework for
collective
bargaining; and to encourage collective bargaining at sectoral rather
than plant level. “The negotiating and setting
of wage
increases, the minimum wages assigned to each job category and the
terms and conditions of employment are thus at the heart
of
collective bargaining and a bargaining council.”
[11]
The company had argued that the union’s
demands were essentially in support of more money. In particular,
NUMSA demanded an
additional payment of R150 per day for meeting
production targets; but their other demands did not fall away. The
arbitrator considered
those demands. She concluded that the demands
do indeed pertain to issues which are governed by the Main Agreement.
The real demand
was for an increase of workers’ wages and this
may only be negotiated nationally under the auspices of the
Bargaining Council.
Review
grounds
[12]
The
applicant submits that the award is reviewable because the arbitrator
“committed misconduct in that she rendered an award
which no
reasonable decision maker could render”. Both parties argued
the review application on the basis of that reasonableness
test set
out in
Sidumo
[6]
,
even though the application was launched under s 158(1)(g) rather
than s 145 of the LRA.
[13]
Mr
Ngako
submitted that the real dispute between the parties pertained to
production targets and target incentives, and that those issues
are
not governed by the main agreement. NUMSA’s main demand was
that “there should be a daily amount of money which
employees
will receive for reaching the daily targets”, being R150 per
day. That, he argued, is not covered by the main agreement.
Evaluation
/ Analysis
[14]
On the evidence before the arbitrator, she
correctly found that the company had assigned a daily production
target to the workers.
It paid them the hourly wage whether they
reached the target or not. The union’s demands, including the
demand for R150 per
day if they reached the target, would mean extra
money in their pockets. The arbitrator’s finding that their
demands were
for “an amount of money in addition to the normal
hourly rate, for no additional work”, is not unreasonable.
Neither
is the following conclusion:
“
[T]he
additional amount is related to a particular aspect of …
employment and has the single effect of increasing the [workers’]
wages. This in my view places the demands within the ambit of the
Main Agreement”.
[15]
The arbitrator applied the facts on the
evidence before her to the provisions of the Main Agreement. She
concluded that the demands
amounted to a demand for higher wages;
that this could only be negotiated nationally under the auspices of
the Council; and that,
therefore, the union and its members could not
strike over those demands. That conclusion is not so unreasonable
that no other
commissioner could have come to the same conclusion on
the facts before her.
[16]
In
support of his argument, Mr
Ngako
referred
to a judgment of the Labour Appeal Court in
Unitrans
[7]
in which the LAC held that the fact that the union could not strike
over one issue governed by a collective agreement, did not
prevent
them from striking over another discrete issue. That proposition is
certainly correct. But that judgment was followed by
a more recent
one
[8]
. In
Unitrans
(2)
,
the LAC held on the facts of that case that a demand relating to wage
disparities was one that would lead to increased costs for
the
company; that it was subject to collective bargaining; and thus that
it “stood outside the confines of the area of a
protected
strike as defined by the Labour Appeal Court.”
[9]
[17]
The same considerations apply to this case.
The arbitrator’s finding that the union’s demands were
essentially for more
money, and that it formed the subject matter for
collective bargaining under the auspices of the Council, is not so
unreasonable
that no other arbitrator could have come to the same
conclusion.
Conclusion
[18]
The arbitrator’s conclusion is not so
unreasonable that no other commissioner could have come to the same
conclusion on the
facts before her. The award is not open to review.
[19]
Concerning costs, I take into account that
there is an ongoing relationship between the parties and that the
issues in dispute may
well form the subject of collective bargaining
in months to come. In law and fairness, I do not consider a costs
order to be appropriate.
Order
The
application for review is dismissed.
_______________________
Anton Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Xolisa
Ngako of Ruth Edmonds attorneys.
FIRST
RESPONDENT:
Greg
Fourie
Instructed
by Cliffe Dekker Hofmeyr.
[1]
The National Union of Metalworkers of South Africa.
[2]
The Labour Relations Act, Act 66 of 1995.
[3]
The second respondent, Ms K Driscoll.
[4]
The Metal and Engineering Industries Bargaining Council (MEIBC), the
third respondent.
[5]
Northern
Cape Forests v SA Agricultural & Allied Workers’ Union
(1997) 18
ILJ
971 (LAC).
[6]
Sidumo
v Rustenburg Platinum Mines Ltd
[2007]
12 BLLR 1097 (CC).
[7]
Unitrans
Fuel & Chemical (Pty) Ltd v TAWUSA
[2011]
2 BLLR 153
(LAC) [
Unitrans
(1)
].
[8]
TAWUSA
v Unitrans Fuel and Chemical (Pty) Ltd
[2015]
ZALAC 24
(24 June 2015) [“
Unitrans
(2)
].
[9]
Unitrans
(2)
para [33] [per Davis JA].