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[2015] ZALCCT 22
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Intercape Ferreira Mainliner (Pty) Ltd and Another v NUMSA and Others (C 179/2015) [2015] ZALCCT 22 (2 April 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa, Cape Town
Judgment
Case
No: C 179/2015
DATE:
02 APRIL 2015
Reportable
Of
interest to other judges
In
the matter between:
INTERCAPE
FERREIRA MAINLINER (PTY)
LTD
..................................................
First
applicant
MUNTASHE
TRAINING AND HR SERVICES (PTY)
LTD
..................................
Second
applicant
And
NUMSA
..........................................................................................................................
First
Respondent
Persons
Listed on Annexure
“A”
......................................................
Second
and further Respondents
Heard:
2 April 2015
Delivered:
2 April 2015
Summary:
Strike interdict –LRA s 64(4) - whether strike unprotected –
unilateral change to terms and conditions of employment
or change to
work practices.
Judgment
STEENKAMP
J
Introduction
[1]
The first applicant, Intercape, obtained a
rule
nisi
in the following terms on Friday, 20 March 2015:
“
Declaring:
1.
the strike of which the first respondent
[NUMSA] initially gave notice on 16 March 2015 and which is due to
commence at 05h00 on
21 March 2015 to be not in compliance with the
[Labour Relations] Act and unprotected; and
2.
the additional tasks set out in annexure
“B” hereto that are required to be performed by the
second and further respondents
who are drivers used by the applicants
(because of the phasing out of the applicants’ cabin
attendant/hostess roles and the
duties not being allocated to other
employees or dispensed with in toto), do not constitute a change to
the terms and conditions
of employment of the said drivers.”
[2]
The first respondent, the National Union of
Metalworkers of South Africa (NUMSA), has now anticipated the return
day on 24 hours’
notice on the eve of the Easter weekend.
[3]
The pleadings comprise 550 pages. This
judgment has been prepared under severe time constraints. It is
unfortunate that the union
waited for 10 days to anticipate the
return day on 24 hours’ notice, expecting an immediate
judgement from the court.
Applicants’
alleged failure to comply with section 68 (2)
[4]
Before turning to the merits, the court has
to address a submission by the respondents that the applicants did
not comply with section
68 (2) when they brought the initial
application on an urgent basis on 19 March 2015. The application was
heard at 12:00 on 20
March 2015. The respondents say that the
applicant did not apply for condonation for its failure to give 48
hours’ notice
of the application as required by section
68(2)(b).
[5]
But as part of its application for urgent
interim relief on 19 March, the applicants sought condonation for
non-compliance with
the rules and asked that the matter be disposed
of as a matter of urgency in accordance with section 68(2). The
grounds for
urgency were set out in the founding papers. The Court
[per Rabkin-Naicker J] granted this relief in terms of paragraph 1 of
the
interim order which is not part of the rule nisi, and therefore
is not part of the order which is to be revisited on the anticipated
return day. That order stands.
Background
facts
[6]
Intercape used to employ cabin attendants
or hostesses on its buses. It no longer does. As a result, bus
drivers now have to perform
some of the duties that the cabin
attendants did previously. The union says this amounts to a
unilateral change to terms and conditions
of employment. The company
says it is merely a change to work practice.
[7]
There are two drivers on each trip. They
drive for shifts of four hours at a time. While the one drives, the
other rests. One of
the issues in this case is whether the new way of
working either impinges upon drivers’ resting time; or on the
driving duties
of the active driver, thus endangering their and their
passengers’ safety.
[8]
This
court is in the unenviable position that it has to decide upon
matters of fact on affidavit and under severe time constraints.
Comprehensive founding, answering and replying affidavits have been
filed, setting out the drivers’ duties in detail. In
attempting
to decide where the truth lies, and more importantly, whether the
company has unilaterally changed the drivers’
terms and
conditions of employment, the court bears in mind the principles set
out in
Plascon-Evans
[1]
and in
Wightman
t/a JW Construction v Headfour (Pty) Ltd
[2]
:
“
A
real, genuine and bona fide dispute of fact can exist only where the
court is satisfied that the party who purports to raise the
dispute
has in his affidavit seriously and unambiguously addressed the fact
said to be disputed. There will of course be instances
where a bare
denial meets the requirement because there is no other way open to
the disputing party and nothing more can therefore
be expected of
him. But even that may not be sufficient if the fact averred lies
purely within the knowledge of the averring party
and no basis is
laid for disputing the veracity or accuracy of the adjournment. When
the facts averred are such that the disputing
party must necessarily
possess knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true
or accurate but, instead
of doing so, rests his case on a bare or ambiguous denial the court
will generally have difficulty in
finding that the test is
satisfied.”
[9]
In this regard the court has to take into
account the factual basis for changes in the drivers’ duties as
set out by the applicants,
as against the union’s version,
which is essentially based on the affidavit of one of the drivers and
his difficulties on
one trip. The court also has to consider the
provisions of the drivers’ contract of employment. But first,
the legal framework.
The
legal principles
[10]
Mr
Doble
,
for the respondents, made it clear that they rely on the right to
strike in terms of s 64(4) of the LRA.
[3]
That subsection reads:
“
Any
employee who or any trade union that refers a dispute about a
unilateral change to terms and conditions of employment to a council
or the Commission in terms of subsection (1)(a) may, in the referral,
and for the period referred to in subsection (1)(a) –
(a)
require the employer not to implement
unilaterally the change to terms and conditions of employment; or
(b)
if the employer has already implemented the
change unilaterally, require the employer to restore the terms and
conditions of employment
that applied before the change.”
[11]
That is what the union has done in this
case. The respondents argue, therefore, that they need not follow the
steps set out in section
64(1) in order to embark on a protected
strike, that is, either waiting for a certificate stating that the
dispute remains unresolved
after conciliation, or for a period of 30
days; and then giving 48 hours’ notice of the commencement of
the strike.
[12]
This
court dealt with the provisions of s 64(4) in
Johannesburg
Metropolitan Bus Services (Pty) Ltd v SAMWU
.
[4]
It found that the changes implemented by the bus company in that case
comprised no more than a change in work practices. It did
not amount
to a unilateral change in the bus drivers’ terms and conditions
of employment. Therefore, it held, the trade unions
representing the
drivers did not have the right to strike over a unilateral change to
terms and conditions of employment in terms
of section 64 (4).
[13]
Discussing
that judgment, Grogan
[5]
commented:
“
The
finding that the shift change merely amounted to a change of work
practice seems correct. But the court’s conclusion that
the
strike was accordingly unprotected is debatable. Section 64 (4)
merely confers on unions the right to demand that employers
restored
changed terms and conditions of employment for 30 days. Nothing in
the LRA suggests that employees may not strike over
a change in work
practice, even if it does not amount to a change in terms and
conditions of employment.”
[14]
Shortly
thereafter, on 29 January 2011, Van Niekerk J held in
Ram
Transport (Pty) Ltd v SATAWU
[6]
that, in that case, there was no unilateral change to terms and
conditions of employment. “For this reason, the strike called
by the union is unprotected.” With reference to the comments by
Grogan
[7]
, though, he noted that
this is not an uncontested position.
[15]
Some
two weeks later, Van Niekerk J again dealt with Metrobus and
SAMWU.
[8]
Subsequent to this
court’s earlier judgement relating to section 64 (4), the union
had referred a new dispute to the bargaining
council describing the
nature of the dispute as one concerning a matter of mutual interest.
Holding that it could call its members
out on strike on that basis,
Van Niekerk J remarked (referring to Grogan in a footnote):
“
Steenkamp
J was called on to decide only whether the changes in the shift
system constituted a unilateral change to terms and conditions
of
employment for the purposes of section 64 (4) of the LRA. This much
is apparent from the quote from the judgement in paragraph
[3] above.
Steenkamp J did not decide, nor was he required to decide, whether
the union’s members were entitled to demand
the reinstatement
of the old shift system.”
[16]
And
most recently, Gush J pronounced in
Apollo
Tyres
:
[9]
“
[T]he
second and further respondents may not rely on the provisions of
section 64 (4) of the LRA and are required to tender their
services
in accordance with new shift patterns.
This
does not, however, preclude the respondents pursuing the dispute
regarding the imposition of the new shift patterns as a dispute
of
interest in accordance with the provisions of section 64 (1) of the
LRA.”
[17]
In
summary, the position is this: in terms of section 64 (4), the union
may call its members out on strike without further ado,
and without
following the procedures set out in section 64 (1), if the employer
unilaterally changes workers’ terms and conditions
of
employment. If those changes merely amounted to changes in work
practice, it cannot do so. However, nothing precludes the union
from
declaring a dispute over a matter of mutual interest and calling its
members out on strike after having followed the prescribed
procedures
in section 64 (1) and adhering to the time periods prescribed in that
subsection.
[10]
[18]
In this case, the union relies on section
64 (4) only in order to assert its right to go on strike immediately.
It is therefore
important to decide whether Intercape has indeed
unilaterally changed the drivers’ terms and conditions of
employment.
The
facts of this case: unilateral change to terms and conditions of
employment or change to work practices?
[19]
The starting point in order to consider
whether the drivers’ terms and conditions of employment have
been altered, is to consider
what they were before. The following
issues are common cause:
19.1
the individual respondents were employed as
professional drivers;
19.2
their tasks are set out in their contracts
of employment;
19.3
their contracts of employment require them
to do more than simply drive buses;
19.4
drivers are responsible for dealing with
passengers in a professional and courteous manner and be
“accommodative of their
needs”;
19.5
drivers are responsible for ticket
inspection;
19.6
drivers had to ensure the tidiness and
cleanliness of the bus;
19.7
the drivers received training in terms of a
training manual and were informed of their duties;
19.8
in terms of certain letters of employment
the possibility of changes to conditions of employment were envisaged
and agreed to.
The
contracts of employment
[20]
Drivers are employed in four categories:
20.1
those appointed by Intercape under its
original written conditions of service or “old contracts”;
20.2
those appointed by Intercape under new
written conditions of service or “new contracts”;
20.3
those appointed by the second applicant
(Munashe) under its written conditions of service but working for
Intercape; and
20.4
those working for Intercape in terms of
oral agreements.
Intercape
drivers employed under old contracts
[21]
Those drivers appointed by Intercape under
its original written conditions of service are contractually obliged
to:
21.1
transport passengers;
21.2
load luggage in a safe and secure manner;
21.3
meet the needs and requirements of
passengers;
21.4
ensure tidiness/cleanliness of the bus;
21.5
ensure the safety and reliability of the
service;
21.6
ensure comfort of passengers;
21.7
comply with company guidelines;
21.8
perform various pre-trip,
en
route
and post trip duties;
21.9
give reports of incidents as per company
policy;
21.10
inform passengers of late
arrivals/departures; and
21.11
inform passengers of non-permissible cargo.
Intercape
drivers employed under new contracts
[22]
These drivers are contractually obliged to:
22.1
accept that the employer may include or
exclude any task that may be necessary in the interests of the
employer at its discretion
in the spectrum of services and duties
they have to perform; and
22.2
comply with all Intercape’s
reasonable and lawful instructions.
Munashe’s
employees
[23]
Those drivers employed my Munashe but
working for Intercape:
23.1
accepted that “it is possible that
changes may occur in the business over a period of time which may
make it necessary for
changes to be made in conditions of employment
and management reserves the right to make such changes as they become
necessary”;
23.2
had to do pre-trip inspections and
preparation of the vehicle;
23.3
were contractually obliged to secure
loading (tagging of luggage) and offloading luggage (controlling the
tagged luggage and passengers);
23.4
how to do cleaning of the vehicle inside
and outside;
23.5
had to do pre-and post-trip administration;
23.6
had to collect fares.
Changes
in work
[24]
The changes to the duties which the drivers
must now perform comprise the following:
24.1
drivers must assist with seat allocations
and check documents that are referred to as “manifests”
for passengers who
embark
en route
;
24.2
on some occasions drivers will have to
issue tickets to those passengers who had not pre-booked;
24.3
drivers have been trained to do those
aspects of the work previously done by cabin attendants that are
still required;
24.4
drivers have to ensure that the bus is neat
and clean, but the company would appoint cleaners at stop-off points
along routes to
do the cleaning previously done by hostesses;
24.5
drivers have to make or play certain
recorded announcements.
Objections
raised by NUMSA
[25]
The union and the drivers have raised a
number of objections, both in the consultation process which preceded
the introduction of
the changes and in these proceedings. These
objections include:
25.1
that cabin attendants would no longer be
able to keep the drivers alert;
25.2
drivers would now have to deal with
misbehaving passengers;
25.3
drivers will have to deal with emergencies;
25.4
an increased workload;
25.5
drivers will have to assist passengers;
25.6
drivers will have to communicate with
passengers on double-decker coaches;
25.7
the
revised duties will be complex, time-consuming and unlawful to the
extent that they would require a driver to work in excess
of the
maximum hours permitted in terms of the Basic Conditions of
Employment Act.
[11]
[26]
The respondents also say that the following
categories of work are not covered by the contract of employment:
26.1
cleaning the bus;
26.2
selling water to passengers;
26.3
making lengthy announcements;
26.4
dealing with problematic passengers;
26.5
completing the manifest;
26.6
making credit card impressions; and
26.7
completing on-board sales (refer to as
OBS).
[27]
In response, the applicants say that most
of these duties are part of the drivers’ terms and conditions
of employment; and
in so far as they have had to take on additional
duties, they are not onerous and demand to know more than changes in
work practice.
And in any event, drivers will be compensated for the
extra work brought about by the changes.
[28]
Intercape accepts that there will be some
“teething problems”. With regard to specific complaints,
it points out that:
28.1
Drivers are allowed to sell water to
passengers for the own account if they wish to do so, but there is no
obligation on them.
28.2
Drivers are required to assist passengers
but not to get into debates with them.
28.3
Drivers will be given cell phone charging
facilities in the cabin and hands-free kits are to be installed.
28.4
The announcements are mostly pre-recorded.
And even if the drivers were required to read out the announcements
next to the answering
affidavit, the most lengthy announcement would
take a driver less than one and a half minutes to deliver.
[29]
Intercape has presented an extensive
document to the court setting out the tasks to be performed; the
action required; the links
between the drivers’ existing
knowledge and tasks and the new tasks; the time and effort required
for each task; and similar
existing tasks of the drivers. An employee
physically performed each of those tasks in order to put a time to
each task.
[30]
With regard to the manifests and ticketing
tasks, the applicants point out that:
30.1
On-board sales are very rare, usually two
to three per trip.
30.2
Most passengers travel from the main depot
to the arrival depot, rather than embarking
en
route
.
30.3
At those depots, manifests and tickets
sales are not the responsibility of drivers.
[31]
The applicants further say that the drivers
on duty (active service) are not expected to perform the jobs of two
people or to take
on substantial, onerous new duties that change the
nature of their employment. The assistant drivers (when in active or
resting)
are not required to do anything. Most of the tasks relating
to completing manifests are done before the bus departs. The manifest
duties at the major point of departure performed by non-drivers at
these centres. The same applies to the bulk of the cleaning
duties.
Only a limited number of manageable administrative tasks are being
taken on by the drivers and the range of the services
to passengers
provided by those thesis previously are simply falling away.
[32]
Concerning alleged contraventions of the
BCEA, the applicant submit that once the bus is in motion, the on
duty driver’s primary
function is driving. The extra tasks are
attended to by that driver during his working time (e.g. at stops)
and not the driver
who is resting. Therefore, there is no violation
of BCEA working hours limitation. And in any event, the drivers’
terms and
conditions are governed by the SARPBAC main agreement.
The
requirement that drivers communicate with passengers via intercom
[33]
An
intercom system has been installed that enable passengers to
communicate with the driver. The intercom handset is situated to
the
right of the driver. The respondents say that is a contravention of
regulation 308A(1) of the National Road Traffic Act
[12]
which provides that a person may not drive a vehicle on a public road
while holding a communication device. They say that this
is a change
to the drivers’ terms and conditions of employment that require
them to adhere to national traffic rules and
regulations.
[34]
The applicants say that they will reverse
this change; but they have not done so within 48 hours. However,
Intercape’s CEO,
Mr Johann Ferreira, has stated under oath that
drivers are not required nor supposed to make regular use of the
intercom system.
The intercom is intended to be accessible for use in
exceptional circumstances for passengers to let the driver know if
there’s
a problem. The driver can then pull off the road and
deal with the issue. This is the
status
quo
until Intercape introduces a
hands-free intercom system “in the near future”.
[35]
The requirement to use an intercom from
time to time does not change the nature of the job. It is a mere
change to the drivers’
way of working. And if it contravenes
any law, the drivers’ contracts of employment make it clear
that the law prevails.
Using
cell phones
[36]
The respondents raise the same argument
concerning the requirement that drivers must receive urgent cell
phone calls and SMS messages.
[37]
Intercape says that it has been and remains
the case that no driver is expected or required to read text messages
whilst driving
or sleeping. And all drivers are required to have a
hands-free kit for the mobile phone as a condition of employment.
This does
not constitute a change to terms and conditions of
employment.
Performance
incentive
[38]
Intercape
has offered the drivers a performance incentive if they performed
certain tasks to management’s satisfaction. Even
though this is
to their benefit, the drivers say that this is also a unilateral
change the terms and conditions of employment that
gives them the
right to strike. As Clive Thompson
[13]
points out, “not only changes that derogate from existing
rights but also those that benefit employees are covered by the
remedy [in section 64 (4)].”
[39]
Firstly, the respondents raised this aspect
for the first time in argument. Secondly, it appears from the
question and answer sessions
between the drivers and management that
they requested increased compensation. And thirdly, the letter to
drivers makes it clear
that this is a once-off incentive payment of
R500 and not a change to terms or conditions of employment. No-one
refused it.
Deductions
[40]
The respondents further submit that, in
terms of the new arrangements, drivers face deductions from their
salaries for “the
water they are required to sell” and
for losses incurred if the taking of a credit card impression does
not result in full
payment. They say that this constitutes a breach
of section 34 (1) of the BCEA.
[41]
As I’ve pointed out above, the
drivers are not “required” to sell water. It is up to
them to do so or not. But
any deductions that are not permitted in
terms of a law, collective agreement, court order or arbitration
award would indeed be
unlawful. The question remains, though, whether
it constitutes a change to the drivers’ terms and conditions of
employment.
[42]
Mr
Stelzner
pointed out that the drivers’
contract of employment specify that:
“
Should
any term of this contract be in conflict with any existing or future
law, sectoral determination or collective agreement,
such law,
determination or agreement shall be binding in respect of the said
provision only and all other terms of this contract
shall remain
valid and binding upon the parties.”
[43]
The applicants have thus undertaken that no
unlawful deductions will be enforced; and in any event, for at least
the following two
months, no funds will be deducted from a driver’s
remuneration a full payment is not received following the taking of a
credit
card impression.
Application
of the law to the facts
[44]
In
Johannesburg
Metropolitan Bus Services
[14]
the court referred to
NUMSA
v Lumex Clipsal (Pty) Ltd
[15]
where the court held that additional tasks assigned to machine
operators and a revised shift system did not amount to a unilateral
change to terms and conditions of employment. That court, in turn,
referred to
CDM
(Pty) Ltd v Mine Workers Union of Namibia
[16]
where the Labour Court of Namibia held that a unilateral change will
be illegitimate where it is “so fundamental as
to amount to a
change in contract”. In that case it was held that it fell
within the managerial prerogative to determine
the methods by which
jobs were to be performed and was envisaged by the relevant contract
of employment and collective agreement
for the company to require its
drivers to also operate a satellite tracking device. The employer
discussed the new system with
the operators and they were trained to
use it. The court held that this was a permissible change to the
company’s methods
of operation which fell within the employer’s
prerogative to implement.
[45]
That
court also cited with approval the dictum in the English case of
Creswell
v Board of Inland Revenue
[17]
where it held that “...an
employee did not have a vested right to preserve his working
conditions completely unchanged and
must adapt himself to new methods
and techniques”. In
Creswell
it was held that:
"…
An employee was expected to adapt to new methods and techniques in
performing his duties provided the employer arranged
for him to
receive the necessary training in the new skills and the nature of
work did not alter so radically that it was outside
the contractual
obligations of the employee; that it was a question of fact whether
the introduction of new methods and altered
the nature of the work to
such a degree that it was no longer the work that the employee had
agreed to perform under the terms
of his contract."
[46]
The
Labour Appeal Court considered a similar issue in
A
Mauchle (Pty) Ltd t/a Precision Tools v NUMSA
.
[18]
Workers were instructed to operate two machines instead of one. The
court held as follows:
“
A
description of the work to be performed as that of “operator”
should not, in my view, ‘. . . be construed inflexibly
provided
that the fundamental nature of the work to be performed is not
altered’: Wallis,
Labour and
Employment Law
, par 45 p7-19. I agree
with the view expressed by the learned author at p7-23 fn 9 that
employees do not have a vested right to
preserve their working
obligations completely unchanged as from the moment when they first
begin work. It is only if changes are
so dramatic as to amount to a
requirement that the employee undertakes an entirely different job
that there is a right to refuse
to do the job in the required manner.
[47]
On the evidence before me, it does not
appear that the additional obligations imposed on the drivers “are
so dramatic as to
amount to a requirement that [they have to
undertake] an entirely different job”. The new tasks amount to
a variation of
work practice occasioned by compelling operational
reasons that led to the retrenchment or redeployment of the cabin
assistants.
They are not overly onerous or time-consuming and they do
not constitute a change to the drivers’ terms and conditions of
employment as set out in their contracts of employment.
Conclusion
[48]
In conclusion, I find that the additional
duties to be undertaken by the drivers do not amount to a change in
terms and conditions
of employment enabling them to strike in terms
of section 64(4) without following the process prescribed in section
64(1) of the
LRA. The changes required are not of such a degree that
it is no longer the work that the drivers had agreed to perform under
the
terms of their contracts of employment.
[49]
With regard to costs, I take into account
that there is an ongoing relationship between the parties. I also
take into account that
the drivers will have to undertake additional
duties and that they will have to make some compromises in order to
assist the employer
and to ensure the survival of the business. And
lastly, I take into account that the union did follow the prescribed
procedure
in terms of section 64 (4) in circumstances where it
believed that it was entitled to do so. In law and fairness, I do not
consider
a costs order to be appropriate.
Order
The
rule
nisi
issued on 20 March 2015 is confirmed.
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
R G L Stelzner SC
Instructed
by Edward Nathan Sonnenbergs.
RESPONDENTS:
Grant Doble of Cheadle Thompson and Haysom.
[1]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) 634E-635C.
[2]
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para 13,
[3]
Labour Relations Act 66 of 1995.
[4]
(2011) 32
ILJ
1107
(LC); [2011] 3 BLLR 231 (LC).
[5]
John Grogan,
Labour
Law Sibergramme
1/2011
(13 January 2011) at 6.
[6]
(2011) 32
ILJ
1722 (LC).
[7]
Supra.
[8]
City
of Johannesburg Metropolitan Municipality v SAMWU
[2011]
7 BLLR 663
(LC) para 16.
[9]
Apollo
Tyres South Africa (Pty) Ltd v NUMSA
[2012] 6 BLLR 544
(LC) paras 31-32.
[10]
See also the discussion in
Imperial
Group (Pty) Ltd v SATAWU
(2014) 35
ILJ
3162 (LC) paras 16-21.
[11]
Act 75 of 1997 (the BCEA).
[12]
Act
93 of 1996.
[13]
Thompson and Benjamin,
South
African Labour Law
AA1-320.
[14]
Supra
paras 38-39.
[15]
J 1070/98 (24 August 2000).
[16]
1997 (2) LLD 65 (LCN),
[17]
(1984) (2) AER 713
(CHD).
[18]
[1995] 4 BLLR 11
(LAC), cited in
Johannesburg
Metropolitan Bus Services (supra).