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[2017] ZALCJHB 44
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Bidvest Services (Pty) Ltd v NUMSA and Others (J309/17) [2017] ZALCJHB 44 (13 February 2017)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase
no: J 309/17
In the
matter between:
BIDVEST SERVICES (PTY) LTD
Applicant
and
NUMSA
First Respondent
THE INDIVIDUALS LISTED IN
ANNEXURE “X” TO
THE NOTICE OF
APPLICATION
Second and
further
Respondents
Heard:
13 February 2017
Delivered
:
13 February 2017
JUDGMENT
(EX TEMPORE)
LAGRANGE
J
Introduction
[1]
Having considered the matter and having
heard the applicant’s counsel, I am satisfied that on the
papers before me:
1.1
The applicant is justified in launching
proceedings less that 48 hours’ notice as required by section
68(2) of the labour
relations act, 66 of 1995 (‘the LRA’)
in view of the first respondent initially indicating it might be
amenable to
postponing the strike pending arbitration proceedings
requested by the applicant, but then reverted late on 10 February
2017 to
say the strike would proceed today.
1.2
On the face of it, the first respondent is
asserting its claim to organisational rights based on having majority
membership at the
workplace. As such, it is not entitled to embark on
protected strike action over organisational rights demands, which is
an election
available only to minority unions since the
Constitutional Court’s decision in NUMSA v Bader Bop (Pty) Ltd
& another
[2002] ZACC 30
;
[2003] 2 BLLR 103
[CC] at 122 para [43]. See also
National Transport Movement & others, Transnet SOC Ltd v (2014)
35 ILJ 1418 (LC) at 1423 para
[14].
1.3
In the circumstances, I am satisfied the
applicant has established a clear right that open to some doubt to
the relief sought. Further,
the respondents will not be unduly
prejudiced if they are ultimately entitled to strike over their
demands, as compared to the
prejudice that the applicant will suffer
if they are not entitled to strike, but are allowed to do so pending
a final determination
of the issue.
Order
In light
of the above, an order is made in the following terms:
[2]
The Labour Court Rules relating to the time
and manner of service of applications are dispensed with and the
matter is dealt with
as one of urgency in terms of Rule 8 and the
applicant’s failure to give 48 hours’ notice of this
application is condoned.
[3]
The respondents are called upon to show
cause on 10 March 2017 why an order should not be made in the
following terms:
3.1
Declaring the strike threatened by the
first respondent to commence on 13 February 2016 (‘the strike’)
to be unprotected.
3.2
Pending the outcome of the CCMA arbitration
under case number LP 7000-16 the respondents are interdicted
restrained from promoting,
encouraging, supporting, participating in
or otherwise furthering the strike.
3.3
Ordering the respondents, jointly and
severally, to pay the costs of this application.
[4]
It is ordered that the orders in paragraphs
3.1 and 3.2 above shall operate with immediate effect pending the
final determination
of this matter on 10 March 2017.
[5]
Service must be effected on the first
respondent by fax and, if possible, by email. Service on the second
and further individual
respondents must be effected, as far as
possible, by the distribution of copies of the order and SMS
notifications to them.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
W
Hutchinson instructed by
Moodie & Robertson
RESPONDENTS:
No
appearance