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[2016] ZALCD 20
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Liberty Liquors (Pty) Ltd v SACTWU and Others (D1238/16) [2016] ZALCD 20 (29 September 2016)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Not
reportable
Of
interest to other judges
C
ase
no: D 1238/16
In
the matter between:
LIBERTY LIQUORS
(PTY) LTD
Applicant
And
SACTWU
First respondent
Mxolisi VUSUMUZI &
22 others
Second and further
respondents
Heard
:
27 September 2016
Delivered
:
29 September 2016
Summary:
Urgent application – strike interdict –
LRA s 65(3)(a).
Res judicata
considered.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
applicant, Liberty Liquors, seeks to interdict a strike called by the
first respondent, SACTWU. It argues that the strike will
be
unprotected by virtue of s 65(3)(a) of the Labour Relations Act
[1]
because the union and its members are bound by a collective agreement
between Liberty and the majority union, SACCAWU.
[2]
Background facts
[2]
Liberty Liquors conducts a liquor retail
business at three outlets in KwaZulu-Natal – two in Durban
(Argyle Road and Queen
Street) and one in Pietermaritzburg. It
employs 17 employees at Queen Street, 25 at Pietrmaritzburg and 30 at
Argyle Road. Most
of the employees who fall within the bargaining
unit are members of either SACTWU or SACCAWU. Membership has changed
over time.
Liberty treats all three outlets as one “workplace”
for the purposes of collective bargaining and calculating union
membership; SACTWU says they should be treated as three workplaces.
[3]
In May 2016 Liberty concluded a collective
agreement with SACCAWU in respective of all three outlets. SACTWU
referred a “refusal
to bargain” dispute to the CCMA. The
parties settled in these terms at conciliation: “The parties
agree to meet on
Monday 23 May 2016 at 2 pm at the employer’s
premises to discuss wage increments.” They met but could not
reach a further
agreement.
[4]
SACTWU referred a fresh mutual interest
dispute over increased wages to the CCMA. Conciliation was
unsuccessful. The CCMA issues
a certificate to that effect on 22 June
2016. SACTWU gave 48 hours’ notice of a strike to start on 1
July 2016.
[5]
The applicant launched an urgent
application to interdict the strike. A rule
nisi
was issued on 30 June 2016. On the return day, 29 July 2016, it came
before Whitcher J. She held that SACCAWU was not the majority
union
(it had 48,7% membership at the time) and that SACTWU had complied
with s 64. She dischargd the rule
nisi
with costs on the attorney and client scale.
[6]
In the interim SACCAWU did become the
majority union. On 25 July 2016 Liberty and SACCAWU concluded a
further collective agreement
covering wages retrospectively from 1
April 2016 until 31 March 2017.
[7]
On 12 September 2016 SACTWU issued a fresh
strike notice for a strike to start on 28 September 2016. It is that
strike that the
applicant wants to interdict.
The applicant’s
case
[8]
The applicant relies on s 65(3)(a)(i) of
the LRA for a clear right. That subsection provides that:
“
Subject
to a collective agreement, no person may take part in a strike …
(a)
if that person is bound by –
(i)
any … collective agreement that
regulates the issue in dispute.”
[9]
The applicant says the issue in dispute is
a wage increase. That is covered by the collective agreement between
Liberty and SACCAWU,
the majority union. And the agreement binds all
employees in the bargaining unit at all three branches. It says so.
And in terms
of s 23(1)(d) of the LRA, a collective agreement binds:
“
employees
who are not members of the registered trade union or trade unions
party to the agreement if –
(i)
the employees are identified in the
agreement;
(ii)
the agreement expressly binds the
employees; and
(iii)
that trade union or those trade unions have
as their members the majority of employees employed by the employer
in the workplace.”
The union’s
response
[10]
SACTWU raises the following defences:
10.1
The issue of the “lawfulness”
of the respondents’ right to strike is
res
judicata
(I take that to mean the issue
of whether the strike is protected or not);
10.2
the new collective agreement of 25 July
2016 cannot operate with retrospective effect; and
10.3
there is a dispute about what constitutes
the workplace, and only the CCMA has jurisdiction to determine that
dispute.
Evaluation / Analysis
[11]
I shall consider each of the defences in
turn.
Res judicata
[12]
Whitcher J discharged the rule
nisi
in the earlier application because the
collective agreement on which the applicant relied was struck with
SACCAWU when it did not
have a majority; and because SACTWU’s
strike notices had complied with s 64.
[13]
To
succeed with a plea of
res
judicata
,
the judgment relied upon must be a judgment given in litigation to
which the parties are the same; and the cause of action must
be the
same:
[3]
“
Die
gemeenregtelike vereistes vir die toepassing van die verweer van
res
judicata
is (i) dat twee aksies tussen
dieselfde partye aanhangig gemaak is; (ii) dat die skuldoorsaak in
beide gedinge diselfde was; and
(iii) dat dieselfde regshulp in beide
aksies gevorder is.”
[14]
In this case, the parties are not quite the
same, although it may appear so at first blush. The applicant and the
first respondent
(SACTWU) are the same; but the individual union
members (the further respondents) are not. In the case that came
before Whitcher
J there were 26 further respondents; in this case
there are 23.
[15]
More importantly, the cause of action is
not the same. The Whitcher judgment dealt with an application based
on the collective agreement
of May 2016, at a time when SACCAWU was
not the majority union. This application rests on s 65(3)(a)(i) with
reference to the new
collective agreement struck with SACCAWU as the
majority union – and binding all employees in the bargaining
unit –
on 25 July 2016.
[16]
The plea of
res
judicata
fails.
Retrospective effect
[17]
There
is no bar that I am aware of against the retrospective effect of
collective agreements that are properly concluded in terms
of s
23.
[4]
I do not agree with Ms
Harries
that the retrospectivity of the collective agreement takes it out of
the purview of s 65(3)(a)(i).
The workplace
[18]
It
is so that SACTWU disputes the employer’s characterisation of
all three outlets as the “workplace”. Ms
Harries
has persuasively argued that it may be best for the CCMA to decide
what the workplace is and whether SACCAWU has the majority in
the
“workplace” comprising all three outlets or at each
outlet. But the CCMA does not have exclusive jurisdiction to
entertain that dispute; and I am not persuaded that the strike would
be protected pending the resolution of that issue by the CCMA.
[5]
Conclusion
[19]
The
applicant has set out a clear right for the relief it seeks. It has
also provided proof of an injury reasonably apprehended
– the
economic loss it will suffer as a result of the strike is the
inevitable consequence of a strike against which the
strikers are
protected in the case of a protected strike, but which an employer
should not suffer because of an unprotected strike.
And the applicant
has no other satisfactory remedy available to it.
[6]
[20]
With regard to costs, I take into account
that there is an ongoing relationship between the parties and that
the union had little
choice but to defend the application. I do not
consider a costs award to be appropriate in law or fairness.
Order
I
therefore order that the respondents are interdicted from
participating in a strike in contravention of the provisions of ss 64
and 65 of the LRA.
_______________________
Anton Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Gardner
van Niekerk SC
Instructed
by Millar & Reardon.
RESPONDENTS:
Julie
Harries of Brett Purdon attorneys.
[1]
Act 66 of 1995 (the LRA).
[2]
[2]
Ironically, this is one of many workplaces where fraternal COSATU
unions are fighting for members. The old mantra of “one
industry, one union” clearly no longer holds true.
[3]
Le Roux
v Le Roux
1967 (1) SA 446
(A);
National
Sorghum Breweries (Pty) Ltd v International Liquor Distributors
(Pty) Ltd
[2000] ZASCA 159
;
2001 (2) SA 232
(SCA) para [9].
[4]
See, for example,
Waverley
Blankets v CCMA
(2000)
21
ILJ
2738 (LC) para [10];
SA
Airways (Pty) Ltd v Jansen van Vuuren
(2014) 35
ILJ
2774
(LAC) para [7].
[5]
Chamber
of Mines of SA v AMCU
(2014)
35
ILJ
3111 (LC);
TAWUSA
v
Putco
(2016) 37
ILJ
1091 (CC).
[6]
Setlogelo
v Setlogelo
1914 AD 221
at 227.