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[2016] ZALCCT 18
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Irwin and Johnson Limited v National Certified and Allied Workers Union (NCFAWU) and Others (C895/2015) [2016] ZALCCT 18 (22 April 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
Number: C895/2015
In the
matter between:
IRWIN & JOHNSON LIMITED
Applicant
And
NATIONAL CERTIFIED &
ALLIED
WORKERS UNION (NCFAWU)
First Respondent
THE PERSONS LISTED IN
ANNEXURE
‘
A’
HERETO
2
nd
to Further
Respondents
Date
heard: 4 December 2015
Delivered:
22 April 2016
JUDGMENT
RABKIN-NAICKER
J
[1] On
the 15 October 2015 a
rule nisi
returnable on 4 December 2015
was issued by Steenkamp J in the following terms:
“
3.
That a
rule
nisi
be issued, returnable on 4
December 2015 at 10h00 calling upon all Respondents to show cause why
the following order should not
be made final and why those
Respondents who oppose the application on the return day should not
be ordered to pay the costs of
application, jointly and severally,
the one paying the others to be absolved:
3.1
declaring in terms of section 65 (1) (c) and s65 (3) of the LRA that
the strike, which commenced
on 12 October 2015 at the entrance to the
Applicant’s (“premises”) following on a strike
notice in terms of section
64 (1) (b) of the LRA and issued on 9
October 2015, was not in compliance with the LRA and is an
unprotected strike;
3.2
declaring that the strike in respect of the dispute concerning a 23%
increase demanded by
the Respondents is unlawful and prohibited on
the grounds:
3.2.1
an agreement was reached on 1 September 2015 which settled the 23%
wage increase dispute for a period of 12 months.
That agreement
regulates the issue in dispute as contemplated in section 65 (3) (a)
(i) of the LRA;
3.2.2
Alternatively, the dispute is one which the Applicants have a right
under section 65 (1) (c) of the LRA to refer
to arbitration or the
Labour Court.
3.3
In terms of section 68 (1) of the LRA, interdicting and restraining
the Respondents from
participating in the strike and in any conduct
in contemplation or in furtherance of the strike;
3.4
interdicting and restraining First Respondent from:
3.4.1
encouraging or instructing its members currently on board the vessels
“ Flame Thorn”, “Fox Glove”,
and “Fuschia”
from performing any acts, or omissions, which may directly or
indirectly endanger the vessel and/or the
lives of any of the crew
aboard the vessels;
3.5
interdicting and restraining such Second to Further Respondents who
are on board the vessels
‘Flame Thorn”, “Fox
Glove”, and “Fuschia” from performing any acts, or
omissions, which may
directly or indirectly endanger the vessel
and/or the lives of any of the crew aboard the vessels;
4.
Pending the return date, directing that the relief in terms of
paragraph 3.3
to 3.5 shall operate as an interim order with immediate
effect.”
[2] The
applicant was given leave to supplement its founding papers and a
timetable was agreed for answering and replying papers.
The matter
came before me on 4 December 2012 in order to decide whether the rule
nisi should be confirmed.
[3] The
applicant sought to establish a clear right to a declarator
that the strike action was unprotected, on the basis of
its
interpretation of a collective agreement between the parties, in
particular the following wording of the agreement:
“
The
parties agreed on a 8.25% increase effect (sic) 1 July 2015 for a 12
month period across the board on
all
minimum and actuals,
on
all
components of remuneration”
[4]
The parties disputed the meaning of the underlined words above. It is
clear to the court that the real issue in dispute between
the parties
is the interpretation and application of the agreement. Thus a
finding on whether the applicant has a clear right to
the declaratory
order it seeks requires an interpretation of the collective agreement
in question. This is reflected in both the
pleadings and submissions
before court. In
Ekurhuleni
Metropolitan Municipality v SA Municipal Workers Union on behalf of
Members
[1]
the
LAC stated that:
“
[29]
The real dispute between the parties was indeed about the
interpretation and application of the main agreement, in particular
clause 2.5.6 thereof. In terms of s 24 of the LRA it was not within
the power of the court a quo to hear and determine such a dispute
between the parties. That power resided in the body contemplated in
the main agreement, if there was indeed a procedure provided
as
contemplated in s 24(1) of the LRA, or in the CCMA……
[31]
Having determined the true nature of the dispute between the parties,
the court a quo should not have gone on to adjudicate
the
merits of the dispute, but ought to have allowed the matter to be
referred to the body or the CCMA with jurisdiction
as contemplated in
s 24 of the LRA. By adjudicating the merits of the dispute, which
squarely involved the interpretation and application
of the relevant
clauses in the main agreement, the court a quo erred and the appeal
should therefore succeed.”
[5] It
was also argued by Mr Ackerman that I could find for the applicant on
the basis that the respondents’ characterised
the dispute as
one pertaining to rights i.e. it was unfair that the skippers had
been given a 23% wage rise. This issue has already
been dealt with in
a ruling of the CCMA dated the 9 July 2015. The union had referred an
unfair labour dispute related to benefits
to the CCMA after the
skipper employed by the company were given an adjustment to their
salaries i.e. an increase of 23%. In that
forum, the applicant argued
that the matter was one of mutual interest and the Commissioner
agreed with it in a jurisdictional
ruling. That ruling has never been
reviewed.
[6]
Mr Ackermann further proposed that because it was a jurisdictional
ruling, this Court is not bound by it and must determine
for itself
the true nature of the dispute. This is incorrect. Section 158(1)(g)
of the LRA provides that this court may “subject
to
section 145, review the performance or purported performance of any
function provided for in this Act on any grounds that are
permissible
in law;”. This court’s jurisdiction to set aside a ruling
of the CCMA derives from section 158(1) (e),
albeit that it employs a
different review test to jurisdictional rulings.
[2]
A jurisdictional ruling is binding and remains valid until set aside
by Labour Court.
[3]
[6] In
all the circumstances, a confirmation of the
rule
would amount
to an adjudication of the interpretation of the collective agreement
in question. This adjudication must
serve before the
appropriate arbitration forum. I therefore make the following order
bearing in mind the ongoing relationship between
the parties:
Order
1.
The rule issued on the 15 October 2015 is hereby discharged.
2.
There is no order as to costs.
_____________
H. Rabkin-Naicker
Judge of the Labour
Court of South Africa
Appearances:
Applicant:
A.W. Ackermann
instructed by Bowman Gifillan
Respondents:
Union official
[1]
(2015) 36
ILJ 624 (LAC)
[2]
SA Rugby
Players Association & others v SA Rugby (Pty) Ltd & others
(2008) 29 ILJ 2218 (LAC)
[3]
De Beers
Consolidated Mines (Pty) Ltd (Venetia Mine) v National Union of
Mineworkers (2008) 29 ILJ 2755 (LC) (2008) 29 ILJ 2755
(LC)