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[2017] ZALCJHB 59
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Biz Africa 1150 (Pty) Ltd t/a Tau Mining v Association of Mineworkers and Construction Union and Others (J275/17) [2017] ZALCJHB 59 (24 February 2017)
Of
interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
C
ase
no: J 275/17
In
the matter between:
BIZ AFRICA 1150 (PTY) LTD t/a
TAU
MINING
Applicant
and
ASSOCIATION OF MINEWORKERS
AND CONSTRUCTION UNION
First Respondent
THE PERSONS WHOSE NAMES ARE
LISTED IN ANNEXURE “A”
TO THE
NOTICE OF APPLICATION
Second Respondent
Heard
:
16 February 2017
Delivered:
24 February 2017
Summary:
(Strike interdict-dispute over whether the strike
demand concerns a matter of interest or right- 64(4))
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is the
second
part
of a judgement in an application
for interim relief. The first part was handed down the day the matter
was heard and concerned
the effect of an agreement to suspend a
strike pending conciliation in terms of s 150 of the Labour Relations
Act, 66 of 1995 (‘the
LRA’). Some parts of the narrative
in the first part of the judgement are simply repeated here for the
sake of coherence.
This part of the judgement concerns the protected
nature of the strike. The union issued a strike notice in respect of
a dispute
concerning the non-payment of a ‘13
th
cheque’ to its members employed by the applicant at the end of
2016.
[2]
The applicant asks the court to make an
interim order declaring the strike action unprotected and to
interdict further participation
in the strike and the picket by the
union’s members being held on the premises of the applicant’s
client where the
members work.
[3]
The essence of the dispute about the
protected nature of the strike is that, the applicant argues that the
strike is nothing more
than a strike over a demand to consult with
the union before deciding not to pay the bonus and is a dispute over
an alleged unilateral
change to the strikers contracts of employment,
whereas in terms of the provisions of those contracts the award of a
bonus is a
matter for management discretion and therefore a failure
to pay the bonus does not amount to a unilateral change to their
conditions.
The union contends that even though the dispute was
referred to, as a strike over a unilateral change to terms and
conditions of
employment and made reference to section 64(4) of the
LRA, the demand effectively constitutes a demand for payment of
a 13
th
bonus cheque, and accordingly is a dispute of interest.
[4]
On the papers, I am satisfied that the
bonus described in the employees contracts of employment is a
discretionary one and not a
contractual right. I am also satisfied
that union and its members are aggrieved both by the fact that there
was not proper consultation
prior to the decision not to pay the
bonus and the decision not to award the bonus. The effective demand
is that the bonus should
be paid.
[5]
The applicant did not claim that the
contract of employment was part of a collectively negotiated
agreement in terms of which employees
may not strike over conditions
of employment for the duration of the agreement. The mere fact that
the respondents in this case
wanted the applicant to review the
exercise of its discretion not to award the bonus or to pay the
bonus, in my view does not preclude
them from striking to persuade
the employer to do so. In the circumstances, I am satisfied that the
strike is not unprotected and
that aside from their agreement to
temporarily suspend their strike, once the suspension is lifted they
are entitled to proceed
with their strike.
[6]
The applicant had also asked that the
respondents be denied the right to picket at the main entrance of
Kumba Iron Ore Sishen mine
pending the determination of picketing
rules by the CCMA. This matter was referred to the CCMA and was due
to be dealt with earlier
this week. In view of the fact that the
picket took place on the premises of the mine and not at the premises
of the applicant,
the mine needed to be given an opportunity to
address the picketing arrangements in terms of s 69(6)(a). It would
be wrong in my
view for the court to second guess the outcome of the
CCMA proceedings in this regard, so I am prepared to grant the
applicant
temporary relief in respect of picketing at the mine.
Order
[7]
The applicant’s non-compliance with
the forms and service contemplated in the Labour Court Rules is
condoned and the matter
is dealt with as one of urgency in terms of
Rule 8.
[8]
The urgent application to declare the
strike initiated by the strike notice issued on 3 February 2017
unprotected is dismissed.
[9]
The respondents are called upon to show
cause on or about 20 April 2017 on or about 10 H00 why an order
should not be made in the
following terms -
9.1
Interdicting and restraining the first and
further respondents from picketing at the main entrance to the Kumba
Iron Ore Sishen
Mine pending the determination of picketing rules by
the CCMA in support of the strike initiated by the strike notice
issued by
the first respondent on 3 February 2017.
9.2
Ordering the first to further respondents
to pay the costs of the application in the event of opposing a final
order.
[10]
The relief in paragraphs 9.1 and 9.2 shall
operate as interim relief pending the return date of the court order.
[11]
The order shall be served on the first
respondent by serving and/or telefaxing a copy of the order to the
first respondent.
[12]
The order shall be served on the second and
further respondents by serving and/or telefaxing a copy of the order
to the first respondent
and by placing copies of the order on notice
boards and the entrance to the applicant’s premises and/or
placing copies of
the order at the entrance to the Kumba Iron Ore
Sishen Mine’s entrances.
_______________________
Lagrange J
Judge
of the Labour Court of South Africa
APPEARANCE
For the Applicant:
M
Van As instructed by
Bowman Gilfillan
For
the Respondents
S
Collet instructed by Larry
Dave
Attorneys