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[2017] ZALCJHB 1
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Johannesburg Metropolitan Bus Service SOC Limited v DEMAWUSA and Others (J2903/16) [2017] ZALCJHB 1 (6 January 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
CASE NO: J2903/16
In
the matter between
JOHANNESBURG
METROPOLITAN BUS
SERVICE
SOC LIMITED
Applicant
And
DEMAWUSA
First Respondent
SAMWU
Second Respondent
THE
INDIVIDUALS LISTED IN ANNEXURE
“
X”
TO THE NOTICE OF APPLICATION
Third and Further Respondents
Heard:
20 December 2016
Delivered:
6 January 2017
Summary:
A trade union’s authority to act on behalf of employees is
limited to the powers granted to it in
Section 200
of the
Labour
Relations Act 66 of 1995
. Absent proof of trade union membership, the
trade union lacks the authority to act.
JUDGMENT
Lallie,
J
[1]
The applicant launched this urgent application for an order, mainly,
in the following terms:
‘
1.
Dispensing with the provisions of the rules relating to the time and
manner of service
referred to therein and dealing with this matter
as one of urgency in terms of
Rule 8
of the rules and condoning,
insofar as is necessary, any failure to comply with section 68 of the
Labour Relations Act 66 of 1995
(“the LRA”).
2.
Ordering that a Rule Nisi be issued calling upon the Respondents to
show cause
on a date to be fixed by the Registrar of this Court why
an order should not be made in the following terms:
2.1
Declaring the strike threatened by the Respondents in the First
Respondent’s letter
of 17 November 2016 (“the Strike”)
to be unprotected.
2.2
Interdicting and restraining the First Respondent from calling,
promoting, encouraging,
supporting or otherwise furthering the
Strike.
2.3
Interdicting and restraining the Third and Further Respondents from
promoting, encouraging,
supporting, participating in or otherwise
furthering the Strike.
2.4
Alternatively to prayers 2.1, 2.2 and 2.3 above:
Pending the determination of the First
Respondent’s referral to the CCMA under case number
GAJB12382-16:
2.4.1 interdicting
and restraining the First Respondent from calling, promoting,
encouraging, supporting or otherwise
furthering the strike;
2.4.2 interdicting
and restraining the Third and Further Respondents from promoting,
encouraging, supporting,
participating in or otherwise furthering the
strike.’
[2]
The application is opposed by the first respondent. The factual
background to this dispute is that on 24 October 2016 TR Mandiwana
acting on behalf of the third and further respondents referred a
grievance to the applicant. In the grievance form the name of
employee is recorded as “TR Mandiwana obo members on the list”.
Attached to the grievance form is a list of employees
some of whom
have appended their signatures next to their names. The nature of
their grievance is state in the following terms:
‘
(1) Replace
all scrap tickets machine from all buse. (2) Put new machine or
cashless Machine in all buses. (3) All tickets irregularities
cases
be put on hold and appoint a qualified person to investigate them.
(4). All outsourced function be stoped on their expiry
date. (5). The
GM operation be removed as he was appointed out of procedure’
.
A
week later and before the grievance was dealt with the first
respondent referred a mutual interest dispute on behalf of its
members
against the applicant. The dispute was not resolved at
conciliation. The conciliation process succeeded to clarify the first
respondent’s
dispute. The CCMA issued the certificate of the
non-resolution of the dispute on 17 November 2016.
[3]
On 18 November 2016 the first respondent served the applicant with a
notice to embark on a protected strike from 04h00 on 11
January 2017.
The first respondent demanded the applicant to meet three demands
namely, replacement of scrap ticket issuing machines
with new or
cashless machines, stoppage of all outsourcing on expiry date and the
removal of the General Manager who was purportedly
appointed in
violation of the applicant’s procedures. The applicant
respondent to the strike notice by addressing a letter
to the first
respondent on 23 November 2016, in which it pointed out that the
intended strike would be unprotected. It required
the first
respondent to withdraw the strike notice by 28 November 2016 failing
which the applicant would launch the present application.
The first
respondent did not withdraw the strike notice and this application
was filed.
[4]
One of the grounds the applicant sought to rely on to have the
intended strike interdicted is that the first respondent lacks
locus
standi
to act on behalf of the third and further
respondents as they are members for SAMWU. The applicant filed a
confirmatory affidavit
of a SAMWU shop steward who confirmed that the
third and further respondents had on 9 December 2016, according to
SAMWU records,
not resigned from SAMWU and were still registered and
paid-up members of SAMWU. The applicant submitted that the only
member of
the first respondent in its employ is Mr Makhura. It
further submitted that the third and further respondents should be
precluded
from embarking upon strike action until their membership of
the first respondent had been demonstrated.
[5]
Section 200
of the
Labour Relations Act 66 of 1995
as amended (“the
LRA”) grants a registered trade union power to act in any
dispute to which any of its members is a
party, in its own interest,
on behalf of any of its members and in the interest of any of its
members. In an attempt to prove its
authority to act on behalf of the
third and further respondents, the first respondent sought to rely on
the third and further respondents’
application forms to become
members of the first respondent as well as their resignation forms as
members of SAMWU. The applicant
submitted that the forms are
unreliable. Denying that the third and further respondents are
members of the first respondent, the
applicant relied on a
confirmatory affidavit in which some of the third and further
respondents are said to be members of SAMWU
in good standing who
still pay their SAMWU subscriptions.
[6]
A perusal of the third and further respondents’ application
forms to become members of the first respondent supports the
applicant’s submission that they are unreliable. Some third and
further respondents signed their forms to become members
of the first
respondent between July 2015 and June 2016. In a number of
application forms the date on which witnesses signed is
not
reflected. In others the date on which the member signed is not
reflected. In addition to the absence of the date on which
members
applied for membership, the signatures of witnesses are also missing
from some application forms. One application form
was signed by a
member in 2015 but the witness signed it in 2012. A number of
application forms are not signed by witnesses. There
are also
application forms that were signed by witnesses days after they were
signed by members.
[7]
A perusal of the third and further respondents’ resignation
forms from SAMWU reflects that some employees consented to
the last
contribution to SAMWU to be made months after their resignation
dates. There is an employee who resigned form SAMWU on
28 February
2016 but gave the applicant authority to deduct his last SAMWU
subscription on 27 February 2017. The third and further
respondent’s
willingness to pay their SAMWU subscriptions long after their
resignation from SAMWU supports the need to verify
whether the third
and further respondents are in fact the first respondent’s
members in good standing.
[8]
The first respondent supported its submission that the third and
further respondents are no longer members of SAMWU by relying
on the
SAMWU’s constitution which provides that by joining another
trade union, its member terminates his or her SAMWU membership.
Reliance which the first respondent sought to place on the SAMWU
constitution is not sufficient to prove that the third and further
respondents are its members in good standing. One of the factors
which is taken into account in deciding whether an employee is
a
member of a trade union is deduction of trade union subscription fees
from that employee’s remuneration. It is common cause
that the
applicant is not deducting the first respondents’ subscription
fees from the third and further respondents’
remuneration. The
first respondent did not prove the manner in which the third and
further respondents became its members in terms
of its constitution.
For these reasons, the first respondent has failed to prove that it
has the necessary authority to act on
behalf of the third and further
respondents to promote, support or encourage the third and further
respondents to participate in
a protected strike from 11 January
2017. The third and further respondents’ trade union membership
will be verified when
the CCMA is determining the dispute referred to
it by the first respondent under case number GAJB 12382-16.
[9]
In the premises the following order is made:
9.1
The first respondent is interdicted and restrained form calling,
promoting, encouraging,
supporting or otherwise furthering the strike
intended to commence at 04h00 on 11 January 2017:
9.1.1 Pending
the determination of the first respondent‘s referral to the
CCMA under case number GAJB12382-16.
9.2
The third and further respondents are
interdicted and restrained from promoting, encouraging,
supporting
and participating in or otherwise furthering the strike intended to
commence at 04h00 on 11 January 2017.
Lallie J
Judge
of the Labour Court in South Africa
Appearances
For
the Applicant: Advocate Hutchinson
Instructed
by Moodie & Robertson Attorneys
For
the First Respondent: Advocate Masombuka
Instructed
by Morwasehla Inc