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[2015] ZALCJHB 437
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City of Johannesburg Metropolitan Municipality v South African Municipal Workers Union and Others (J2582/15) [2015] ZALCJHB 437 (28 December 2015)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: J 2582/15
In the matter between:
CITY OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Applicant
And
SOUTH AFRICAN MUNICIPAL
WORKERS
UNION
First Respondent
PERSONS MENTIONED
IN ANNEXURE A
Second to Further Respondents
Heard:
22 December 2015
Delivered: 28
December 2015
Summary: Urgent
Interdict. Strike Action. Separating permissible from impermissible
demand. Employees interdicted from
striking on impermissible demand
and allowed to strike on the permissible demand.
JUDGMENT
Molahlehi, J
Introduction
[1]
This
is an urgent applicant in terms of which the applicant seeks an order
interdicting the respondents from embarking on a strike
action a day
before Christmas day, 24 December 2015.The applicant seeks an interim
relief pending the referral of a dispute concerning
interpretation
and application of the collective agreement in terms of s 24 of the
Labour Relations Act 66 of 1995 (LRA). It also
seeks to have the
planned strike interdicted pending the referral of the dispute to
arbitration in terms of s 74 of the LRA.
[2]
The
parties have placed all the relevant affidavits for consideration of
this matter before the court. At the commencement of the
hearing I
enquired from Mr Buiski’s, for the applicant as to why in light
of this a final rather than an interim relief should
not be
considered.
[3]
The
essence of Mr Buiski’s argument was that an interim order be
given to afford the applicant the opportunity to refer the
matter to
arbitration for a dispute concerning interpretation and application
of the provisions of collective agreement. This in
my view is not
necessary because if found that the issue in dispute concerns
interpretation and application of the collective bargaining
agreement
then that would mean that the respondents are not entitled to embark
on a strike action. This would mean that the strike
action is not the
proper forum for addressing the dispute but rather that the proper
forum would be arbitration. After putting
this proposition to him he
accepted that the matter should be considered on the basis of a final
determination.
Background facts
[4]
During
the course of the hearing Mr Buiski brought an application to file a
further affidavit to supplement the applicant’s
papers. The
application was refused and the reasons thereof were made ex temper.
[5]
The
relationship between the parties as members of the SALGBC is governed
by the Main Collective Bargaining Agreement (the main
agreement). The
scope of the main agreement covers all local government undertakings
across South Africa.
[6]
The
main agreement provides for two levels of bargaining in relation to
certain of the local authorities and that would take place
at the
divisional level. “Division of the council,” is defined
to including amongst others Johannesburg Metropolitan.
[1]
[7]
The
list of the subject matters for collective-bargaining at national
level are set out at clause 10.2 of the main agreement
and
includes the following:
Wages
and Salaries; Medical aid;
Retrenchment
policy and severance pay; Retirement funds;
Home
owners allowance;
Annual
leave; Maternity leave;
Sick
leave;
Hours
of work; and Family responsibility leave.
[8]
Clause
10.3 deals with subject matters that shall be negotiated at
divisional level and they are:
Special
leave;
Acting
allowance; Night work allowance;
Standby
allowance;
Shift
allowance;
Long
service bonus;
Emergency
work;
Legal
Indemnification;
Additional
paid sick leave Administrative measures for the taking of sick leave;
and Measures to manage the taking and accrual lf
sick leave.’
[9]
The
main agreement also provides for Minimum Services for the designated
essential services which has to be determined by a collective
agreement in terms of s 72 of the LRA.
[10]
The
current Main Collective Agreement between IMATU, SAMWU and SALGA, was
concluded on 9 September 2015. This agreement replaced
the 2007/2012
agreement.
[2]
[11]
It
is common cause that the applicable collective agreement in relation
to the Essential Services is that which was concluded in
2003 which
has since not been updated nor amended. The agreement was ratified by
the Essential Services Committee in 2005. For
the purposes of this
judgement clause 8 of the Minimum Service Level Agreement (the
service level agreement) deals with matters
related to Municipal
Police Services which in the present matter relates to the
Johannesburg Municipal Police Department (the JMPD).
[12]
At
the time the service level agreement came into effect the total
number of the JMPD staff was 2684 and the agreed minimum service
level consisted of 470 members. The agreement further states in a
note that “the JMPD is committed to providing the minimum
of
474 which is an increase of 71 employees of that of the original
agreement of 403.”
[13]
It
is common cause that the number of staff members in the JMPD has
since increased significantly with the estimated number being
4000
staff members.
[14]
Turning
to the background facts related to the current dispute, it is common
cause that it arose from the disagreement between the
parties as to
whether the demand for the reintroduction of the pay progression is a
matter for bargaining at national or divisional
level of the
bargaining council. The other demand raised by the respondents,
concerns payment of allowances to staff members in
the JMPD.
[15]
The
issue concerning the pay progression between the parties has been
going on since 2012. It is apparent that the issue arose three
years
after the pay progression was abolished in 1999.
[16]
In
the course of the engagement between the parties and with the view to
seeking clarity on the approach to be adopted in dealing
with the
matter, Mr Fowler, the City Manager addressed the letter to the CEO
of SALGA on 17 September 2012, the essence of which
was a request
that the Exco of SALBC be approached and be requested permission for
the Johannesburg City to engage with the unions
with the view to
finding interim measures to address the pay progression issue.
[17]
It
is evidently clear from the letter that the stand taken by the
Johannesburg City was that the issue of pay progression is a matter
that falls under the national and not the divisional part of the
bargaining council.
[18]
The
CEO of SALGA responded in the letter dated 1 October 2012, the
salient features of which was that SALGA was surprised by the
attitude of SAMWU and IMMATWU. It was however pointed out in that
letter that the request would be presented to SALBC for guidance.
[19]
On
12 September 2012 the matter served before the Exco of the SALGBC
which then resolved as follows:
‘
6.10.1
The Executive Committee of the Central Council hereby grants
delegated authority to the Johannesburg Metropolitan Council
and its
Local Labour Forum to engage in negotiations with IMATU and SAMWU to
negotiate a collective agreement on re-introduction
of a salary notch
system.
6.10.2
The delegation is for the purposes of enabling the conducting of
negotiations and the conclusion of a Collective Agreement
on salary
notches. Any Collective Agreement concluded in the LLF on this issue
is subject to its ratification by the Executive
Committee of the
Central Council of the SALGBC.
6.10.3
The delegation in 6.10.1 above is limited to the Johannesburg
Metropolitan Council only and shall not be applied to any other
municipality.
6.10.4
The General Secretary will inform the parties to the Johannesburg
Division of the above resolution.’
[20]
The
parties were unable to reach any agreement at the divisional level of
the bargaining council and accordingly the status quo
in relation to
pay progression remained. In other words once the negotiations failed
the issue of pay progression remained an issue
to be bargained for at
national level according to the applicant.
[21]
On
20 April 2015, the respondents referred a dispute to the regional
bargaining council concerning, “(1) Progression and (2)
Allowances.” It is indicated in the referral form that the
outcome of the conciliation which the respondents were looking
for
was “Implementation of Progression Plan and Allowances.”
[22]
The
demand for the payment of allowances involves the payment of acting
in a higher position to the one occupied by the acting person,
nightshift allowance,
Sunday
bonus and standby allowance at home.
[23]
Subsequent
to the referral of the dispute to the region of the bargaining
council the respondent issued the applicant with the,
“Notice
of Strike action by Non-Essential JMPD Employees.” There was
some suggestion in the applicant’s papers
that the notice of
the strike was defective. This point was not pursued in the heads of
argument nor in the submission during the
hearing.
[24]
The
applicant responded to the above notice with a letter through their
attorney dated 18 December 2015 wherein amongst others it
is stated
that:
4.1.1.
‘
The
issue in dispute is regulated by a collective agreement and/or is one
that a party has the right to refer to arbitration or
to the Labour
Court as contemplated by section 65 of the LRA, and no reliance by
SMWU on a SALGBC certificate of outcome to the
effect that the matter
is one of mutual interest detracts from these facts;
4.2.
Insofar
as your members include members of the JMPD, the person who intend to
strike are essential service employees as contemplated
by section
65(1) (d) of the LRA.
4.3.
Albeit
that the strike notice purports to be in respect of non-essential
service employees, having regard to recent press statements
by
SAWMU’s Archie Ntaba and Jack Mokalapa, that “…the
new strike certificate included uniformed JMPD officers
would not be
taking part in festive season road blocks… we hope management
will go and get uniforms themselves and set up
road block as [police
officers] will be on strike..”, it is clear that the intended
strike shall include both essential and
non-essential service
employees; and
4.4.
Your
strike notice is furthermore defective and in breach of section
64(1)(d) of the LRA for want of, inter alia, its failure to
indicate
precisely who will participate therein.’
The
Applicant’s case
[25]
The
applicant contends that the strike action by the respondents is
unprotected because the issue in dispute being the demand for
salary
progression is governed by a collective bargaining council agreement
operative at the national level. A strike action based
on this demand
according to the applicant would be in contravention of the
provisions of section 65 (3) (a) of the LRA.
[3]
The
proper forum for addressing this issue is the CCMA by arbitrating a
dispute concerning interpretation and application of the
provisions
of the collective bargaining agreement in terms of s24 of the LRA.
[26]
The
other issue raised by the applicant is that the demand of the
respondents is regulated by the arbitration award issued during
June
2010.
[27]
In
terms of s 65 (3) (a) (i) of the LRA a strike action is prohibited if
there is collective agreement or binding arbitration award
dealing
with the issue in dispute.
[28]
The
arbitration award in question concerned the interpretation of the
2007/2012 collective agreement. As stated earlier that agreement
was
replaced by the current agreement of 2015 and therefore the
arbitration award is of no application to the present matter. There
was also no submission from the applicant that the provisions of the
2007 agreement were incorporated into the 2015 agreement.
The Respondent’s case
[29]
The
respondent contends that the demand for pay progression has no
bearing on the terms and conditions of the salary and wages concluded
in the 2015 collective agreement and therefore they are entitled to
make such a demand on the applicant. According to them the
pay
progression has to do with movement from one notch to the other which
occurs automatically by lapse of time.
[30]
In
relation to the allowance demand the respondents argues that the only
allowance regulated by the collective agreement is the
home owner’s
allowance. They also argued that the issue of allowances is not a
matter dealt with at the nation level but
rather is a matter for the
division of the bargaining council
The legal requirements for an
urgent interdict
[31]
As
indicated above it was agreed that the matter should be determined on
the bases of a final relief and therefore in
order to
succeed it has to satisfy the following requirements:
(a)
a
clear right
(b)
an
injury which was actually committed or one which is apprehended
(c)
that
there is no other satisfactory remedy to protect its interest.
[32]
The
other requirement which the applicant has to satisfy concerns the
provisions of rule 8 of the Rules of the Court which includes
the
applicant having to show the reason for urgency and why urgent relief
is necessary and why the requirements of the rules were
not complied
with.
[33]
I
am satisfied that the application complies with the above
requirements and accordingly non-compliance with the rules is
condoned.
[34]
In
terms of s 72 of the LRA the agreed minimum services are regarded as
essential services in which case the provisions of 74 do
not apply.
[35]
As
indicated earlier it is trite that employees would not be entitled to
strike where there is a collective agreement or an arbitration
regulating an issue in dispute.
Evaluation/Analysis
[36]
The
key question to answer in relation to the demand for pay progression
is whether that demand is a matter to be bargained for
at the
national or divisional level of the bargaining council. It is common
cause that pay progression does not appear in the list
of matters for
bargaining at the both levels of the bargaining council
[37]
The
applicant contends firstly that the respondents are prohibited from
embarking on a strike action because of the arbitration
award made in
2010 in terms of the provisions of the 2007 collective bargaining
agreement is binding on the parties. The other
point made by the
applicant is that the pay progression demand must be interpreted as
an aspect of the salary and wages agreement.
[38]
The
respondent’s argument on the other hand, and as I understand it
is that a pay progression is a system whose purpose is
only to deal
with the salary movement of employees within the salary band. It does
not have any impact on the wages and salaries
agreed to in terms of
the collective agreement.
[39]
It
is common cause that the 2015 main agreement, is a three-year term
agreement. Whilst pay progression has to do with the ranges
within
the salary band, its relationship and impact on the wage and salary
increase agreement which is based on a three year period
is a matter
that lends itself to the interpretation and application arbitration
in terms of section 24 of the LRA. This means the
issue of pay
progression is an issue regulated by the provisions of section 65 (1)
(b) of the LRA.
[40]
It
follows based on the above that it is impermissible for the
respondent to embark on a strike action based on the pay progression
demand.
[41]
The
next issue to consider is whether the respondents have a right to
strike based on the demand for payment of the various allowances
referred to above. The respondents have abandoned the issue of the
risk allowance.
[42]
The
applicant has not disputed that except for the housing allowance all
other allowances are subject matters for bargaining at
the divisional
level and that the demanded payment of allowances by the respondents
are not regulated by the main agreement neither
is there evidence
that they are regulated by a collective agreement at the divisional
level.
[43]
It
follows from the above analysis that the respondents’ demand
for the payment of allowances is permissible and therefore
would be
entitled to embark on a strike action in that regard.
[44]
The
question that then follows from the above is whether the respondents
are entitled to embark on a strike action when one of their
demands
is impermissible.
[45]
The
issue of whether a union has a right to strike when its dispute is
based a combination of permissible and impermissible demands
received
attention in
Samancor
Ltd & another v National Union of Metalworkers of SA,
[4]
where
Landman J considered the same question and held that if it is
possible to distinguish between the permissible and impermissible
demands, once the impermissible demands have been abandoned, the
strike is protected.
[46]
In
the unreported case of
Digistics
(Pty) Ltd v South African Transport and Allied Workers
Union and Others
[5]
,
Van Niekerk J in following the decision in Samacor granted an order
interdicting the union from embarking on the strike in relation
to
those demands which were impermissible and granted them the right to
strike in relation to those that were permissible.
[47]
The
Labour Appeal Court in the unpublished case of
CSS
Tactical (Pty) Ltd v Security Officers Civil Rights and Allied
Workers Union (SOCRAWU)
[6]
,held
that:
“
[15]
The import of this concession is twofold. First
the demands were permissible demands and so a strike relating
solely
to those demands would be protected.”
[48]
In
conclusion I find that the impermissible demand of pay progression
and the demand for payment of the various allowances are separable
and accordingly the respondents are to be interdicted from embarking
on a strike in as far as the impermissible demand is concerned.
They
however have the right to strike as concerning the permissible
demand.
[49]
For
the purposes of this judgment and the right to strike of the
respondents in terms of the permissible demand, the following as
agreed to between the parties shall constitute minimum service:
Roles/Occupations
Total
Employees
%
ratio as per MSA 2001
SAMWU
Minimum Service Employees who will be on duty during this strike
as per % of total number of employees in a category
(number are
rounded
Directors
7
40
3
Deputy
Director
14
25
4
Chief
Superintendents/Heads
16
12.12
2
Superintends
60
29.63
18
Inspectors
1
71.43
1
Sergeants
168
46.51
78
MPO/MP/MPD
(Officers)
2183
24.72
540
LEO/By-laws
Enforcement
231
19.31
45
Call
Takers/Dispatchers
20
20
4
Breakdown
Drivers
2
50
1
Breakdown
Operators
3
50
2
Breakdown
Assistants
6
28.57
2
Ranger
(Armourers/Investigator Fire Arm Control
2
33.3
1
2713
701
Order
[50]
In
the premises the following order is made:
1.
To
the extent that the strike called by the first respondent is in
pursuit of a demand relating to the introduction of pay
progression system:
a.
the
strike is declared to be unprotected; and
b.
the
first respondent is interdicted from calling on its members to embark
on a strike action.
c.
the
second to further respondents are interdicted from participating in
the strike concerning the demand for pay progression .
2.
This
order does not preclude:
a.
the
first respondent from calling on a strike by its members; and
b.
the
first respondents’ members, the second and further respondents
from engaging in a strike action in pursuit of the demand
relating to
the payment of the allowances.
3.
In
pursuing the right to strike in terms of the demand for payment of
allowance, the respondent are ordered to comply with minimum
service
as set out at paragraph [49] of this judgment.
4.
There
is no order as to costs.
E Molahlehi
Judge
of the Labour Court, Johannesburg
Appearances:
For the Applicant:
Adv. P Buiski
Instructed by:
Salijee Du Plessis Van der Merwe Attorneys
For the Respondent:
Mr Daniel of
Cheadle, Thompson and Haysom Attorneys.
[1]
Other
divisions of the council includes; Cape Metropolitan, Eastern Cape,
eThekwini Metropolitan, Free State, Gauteng, KwaZulu-Natal
Limpopo,
Mpumalanga, Northern Cape, North West, Tshwane Metropolitan and
Western Cape.
[2]
See
clause 22.1 of the Main Collective Agreement which provides; “This
Agreement together with its annexures replaces the
Main Collective
Agreement dated 18 June 2007.
[3]
Section
64 (3) (a) (i) of the LRA reads as follows: “(1) No person may
part take in a strike . . . . or any
conduct in
furtherance of strike . . . if- (a) that person is bound by a
collective agreement that prohibits a strike
. . . in respect
of the issue in dispute.”
[4]
(1999)
20
ILJ
2941 (LC).
[5]
(
J1316/10)
[2010] ZALCJHB 352 (04 July 2010).
[6]
(2015)26
ILJ
2764 (LAC) SALCJHB352.