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[2016] ZALCCT 19
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Cape Global Construction And Engineering Training Center (Pty) Ltd v Building Industry Bargaining Council (Cape of Good Hope) (C 408/16) [2016] ZALCCT 19 (15 July 2016)
THE LABOUR COURT
OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case no C 408/16
DATE: 15 JULY
2016
Not Reportable
In
the matter between:
CAPE
GLOBAL CONSTRUCTION AND ENGINEEERING
TRAINING
CENTRE (PTY)
LTD
..........................................................................................
Applicant
And
BUILDING
INDUSTRY BARGAINING COUNCIL
(CAPE
OF GOOD
HOPE)
....................................................................................................
Respondent
Heard:
8 July 2016
Judgment:
15 July 2016
JUDGMENT
VAN
NIEKERK J
[1]
The applicant seeks an interim order, pending the final determination
of a demarcation dispute, preventing the respondent and
its agents
from what it contends are unlawful acts during the course of site
inspections carried out at the sites of one of the
applicant’s
clients, NMC (Pty) Ltd (NMC). These are my brief reasons for the
order that is recorded below.
[2]
It is not in dispute that the applicant and its employees are
currently registered with the bargaining council established for
the
metal and engineering industries (MEIBC), and that the terms and
conditions of employment of the applicant’s employees
are
regulated by the agreements concluded in the MEIBC. There is
currently a demarcation dispute pending between the parties. The
issue to be determined in that dispute is whether the applicant’s
employee engaged at NMC sites fall under the jurisdiction
of the
respondent or the MEIBC. The demarcation hearing has been postponed
to mid-October 2016. The respondent contends that the
applicant’s
employees on NMC sites are subject to its jurisdiction, that they are
required to be registered with the respondent,
and that its
collective agreements apply to them.
[3]
The applicant contends that the respondent’s agents conducting
inspections at NMC sites have informed the applicant’s
employees that they cannot be registered with the MEIBC, that they
are obliged to be registered with the respondent if they want
to work
on NMC sites, that they are currently not entitled to benefits and
that in order to qualify for benefits, they must register
with the
respondent. It is not disputed that the respondent’s agents
have required the applicant’s employees to complete
what is
referred to as a ‘provisional registration’ form. The
applicant contends that the sole purpose of the respondent
requiring
its employees to complete the form is to procure the registration
with the respondent and that this, in itself, is subversive
and
undermining of the pending demarcation process. It warrants mention
that the registration form informs employees that the registration
application can be completed only once a copy of the relevant
employee’s identity document is received and all other
information
required to submitted and that to this end, employees are
required to bring the form and their identity documents to the
respondents
office ‘to receive your December leave pay’.
[4]
I deal first with the question of urgency. The respondent contends
that the application is not urgent, primarily on the basis
that any
urgency is self-created. Initial complaints regarding the conduct of
the respondent and its agents were made as early
as February 2016,
when an undertaking was sought failing which the applicant indicated
that it would consider approaching this
court for an urgent
interdict. Site inspections by the respondent continued during April,
May and June 2016 and no application
for an urgent interdict was
filed in circumstances in which the applicant must have been aware of
the inspections. The applicant
contends that the matter is inherently
urgent, given the ongoing nature of the harm. It relies particularly
on a letter dated 17
June 2016 when the respondent was again
requested to provide a written undertaking that it would not carry
out inspections in an
unlawful manner, failing which this application
would be brought. The respondent’s attorneys responded to that
letter on
21 June 2016, stating that the allegations were
unsubstantiated and seeking details that were, so the applicant
contends, within
the respondent’s knowledge. The letter
concludes with a statement to the effect that the respondent would
continue to conduct
inspections of building sites as it has done in
the past, including NMC sites. On 22 June 2016, the respondent’s
attorneys
addressed a letter to NMC reiterating its position that it
would continue to do site inspections and, pending the demarcation,
would ‘not follow these through to arbitration’, but that
it would, in the event that the demarcation dispute was determined
in
its favour, hold the applicant and NMC jointly and severally liable
for any payments due to it. The present application was
filed on 1
July 2016.
[5]
I am satisfied having regard to the ongoing nature of the harm that
is alleged and the unequivocal refusal by the respondent
during the
last week of June to provide the undertaking sought by the applicant,
that this is not a matter where it can be said
that urgency has been
self-created. Clearly, the applicant would not be able to obtain
substantial redress at any hearing in due
course and in my view, this
warrants the matter being treated as urgent. The fact that the
applicant did not seek an expedited
hearing as contemplated by the
practice manual is not fatal. The present application was filed in
circumstances where the court
was in recess for some four weeks, and
it is doubtful whether even an expedited hearing could be arranged
before the recommencement
of the demarcation hearing.
[6]
The parties are in agreement that since the present application is
one in which the applicant seeks interim relief, the principles
set
out in
Webster v Mitchell
1948 (1) SA 1186
(W) are applicable. In essence, this requires that
where a genuine dispute of fact arises on the papers, the applicant’s
version must be preferred.
[7]
The only material dispute that arise from the papers are whether the
respondent’s agents have singled out the applicant’s
employees, separated them from other employees on-site and informed
them that they cannot be registered with the MEIBC. The respondent
does not dispute that its agents, in accordance with the standard
operating procedure, interview employees and ask questions relating
to the terms of employment. This information is recorded on a
prescribed form which is signed by the employee concerned. The form
provided to employees in the present instance is that which is
described, as I have indicated above, as a ‘standard
provisional
registration form’ which the respondent avers is
put to various uses, including the collection and confirmation of
employee
information. To the extent that the respondent avers that
the forms are not handed to employees to procure their individual
registration
with the respondent or to require them to report at the
offices of the respondent, that begs the question of the stated
purpose
of the form. The face of the form clearly indicates that its
purpose is to secure the provisional registration of new employees,
for the purposes of assessing arrear wages. Further, the document
specifically directs employees to bring the form, together with
an ID
document, to the respondent’s offices ‘to receive your
December leave pay’. In my view, the terms of the
document
should be viewed from the perspective of the employee to whom the
document is issued. I agree with Mr Leslie, who appeared
for the
applicant, that an employee is more likely than not to consider that
the document amounts to something more than the mere
capturing of
information and that some action is required on the employee’s
part in relation to registration with the respondent
and the receipt
of benefits in the form particularly of leave pay.
[8]
The applicant contends, in support of the
prima
facie
right on which it relies, that
until such time as the demarcation dispute is resolved, the
respondent has no right to take steps
aiming at procuring the
registration of the applicant’s employees with the respondent,
since this is the very subject matter
of the pending dispute. The
apprehension of irreparable harm on which the applicant relies is one
that amounts to an irremediable
breach of its rights. In particular,
the applicant contends that it and its employees have the right to
carry on their activities
free of unlawful harassment from the
respondent. The applicant also relies on what it contends will amount
to disruption, confusion
and instability being sown by the respondent
at NMC sites, with the prospect of labour unrest and mass
resignations. Should the
respondent be permitted to persist with its
conduct, the applicant contends that it and its employees will be
severely prejudiced
and that on the other hand, should the relief
sought be granted, given that the notice of motion is limited to
interdicting unlawful
conduct only, there will be no prejudice to the
respondent. The respondent will be free to continue site inspections
and perform
its statutory mandate, but within the bounds of
lawfulness. Finally, the applicant contends that it has no adequate,
ordinary legal
remedy available to it.
[9]
At the outset, it should be emphasised that the applicant does not
seek to prevent the respondent from lawfully carrying out
its
obligations in terms of the Labour Relations Act and in particular,
does not seek an order preventing the respondent from carrying
out
any site inspections at NMC sites or even issuing compliance orders
against the applicant. The relief sought is narrow –
the
applicant seeks only to limit the conduct of the respondent’s
agents during site inspections which it contends exceeds
the bounds
of lawfulness. As I have indicated, much of the relief sought is not
the subject of any material dispute of fact and
would, if
established, entitle the applicant to the relief that it seeks. To
the extent that the respondent denies that its agents
single out the
applicants employees and separate them from other employees on-site
and informed them that they cannot be registered
with the MEIBC and
that they are not permitted to work on NMC sites until such time as
they are registered, given the applicable
test, these disputes of
fact must be resolved in favour of the applicant. It is likely, given
the facts regarding the agents’
conduct in requiring employees
to register in order to receive benefits and the like that the agents
would also have informed the
employees that they must not be
registered with the MEIBC and that they would not be permitted on NMC
sites until they had registered
with the respondent. I should mention
in this regard that in the applicant’s letter of demand dated
17 June 2016, it was
specifically put to the respondent that its
inspectors provided the applicants employees with registration forms
and advised them
that they must register themselves with the
respondent. The response dated 21 June 2016 contains a categorical
denial of these
allegations, and a refusal to provide the undertaking
sought on this basis. In these proceedings, in the answering papers
and in
particular in the supporting affidavits of various of the
respondent’s agents, it was confirmed that employees were
required
to complete the provisional registration forms and that
copies of the completed forms were handed back to them.
[10]
Put bluntly, unless and until there has been a demarcation in the
respondent’s favour, the respondent’s agents
have no
business conducting themselves in the manner contemplated in
paragraph 2 of the notice of motion. Of course, they are entitled
(indeed obliged) to exercise their duties under the LRA and that they
are entitled to carry out site inspections. What they are
not
entitled to do is to act unlawfully. The prohibitory interdict sought
by the applicant does no more than require the respondent’s
agents to act within the proper and lawful course and scope of their
statutory duties. For the above reasons, in my view, the applicant
is
entitled to the relief it seeks.
[11]
Finally, there is no reason why costs should not follow the result.
I
make the following order:
1.
Pending the final determination of the
demarcation dispute between the respondent and the applicant before
the CCMA under case number
WECT 19390- 15:
1.1.
The respondent and/or its agents, in carrying out site inspection at
NMC sites upon which the applicant’s employees work,
are
interdicted and restrained from:
1.1.1.
victimising and/or singling out the applicant’s employees by
inter alia
calling them together as a group separated from all
other employees employed or engaged at the NMC site in question;
1.1.2.
informing the applicant’s employees that they cannot be
registered with the Metal and Engineering Industries Bargaining
Council;
1.1.3.
informing the applicant’s employees that they are obliged
and/or required to register with the respondent;
1.1.4.
purporting to require and/or advise the applicant’s employees
to register with the respondent;
1.1.5.
furnishing the applicant’s employees with application forms for
registration with the respondent;
1.1.6.
informing the applicant’s employees that they are not permitted
to work or be present at the NMC sites until such time
as they are
registered with the respondent;
1.1.7.
making any representation to the applicant’s employees
regarding their current entitlement to employment benefits,
including
but not limited to:
1.1.7.1.
statements to the effect that the applicant’s employees are not
entitled to benefits, and
1.1.7.2.
statements to the effect that the applicant is “stealing”
or “robbing them” of their benefits;
and
1.1.8.
in any manner unlawfully disrupting the applicant’s employees’
activities on NMC sites and/or inciting or intimidating
them in any
way.
2.
The respondent is to pay the costs of this application.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION
For
the applicant: Adv. G Leslie, instructed by Assheton-Smith Inc.
For
the respondent: Adv. C Bosch, instructed by Bowman Gilfillan Inc.