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[2017] ZALCJHB 75
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Swissport (South Africa) (Pty) Ltd v National Transport Union and Others (J1940/15) [2017] ZALCJHB 75 (8 March 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
no: J1940/15
In
the matter between:
SWISSPORT
(SOUTH AFRICA) (PTY)
LTD
Applicant
And
NATIONAL
TRANSPORT
UNION
1
st
Respondent
EMPLOYEES
OF THE APPLICANT AND
Second and Further Respondents
MEMBERS
OF THE FIRST RESPONDENT
Date
heard: 19 November 2015
Date
delivered: 19 November 2015; reasons on 08 March 2017
Summary:
Rule
nisi
application
– the result of the verification exercise where the union is
below the agreed threshold for collective bargaining
does not make
the strike unprotected because collective bargaining in 2015 was not
provided for by the agreement. The dispute is
one of refusal to
bargain and not interpretation and application of a collective
agreement. The latter is merely a tool for determining
whether the
strike is protected.
JUDGMENT
EVERETT
AJ;
Introduction
[1]
These are the reasons for an order made on 19 November 2015. Leave to
appeal was filed on 20 November 2015 but the applicant
has requested
reasons so as to prepare and file written submissions for the
purposes of that application.
[2]
In the order of 19 November 2015, I dismissed an urgent application
for a
rule nisi
calling on the respondents to show cause why
an order should not be made declaring the strike which was due to
begin on 16 November
2015 unlawful and unprotected, and interdicting
the strike.
[3]
Due to the volume of the file and numerous court proceedings between
the parties, I was provided with the file only at the end
of 2016.
Background
[4]
The applicant employer provides baggage handling services at the
airports. In years gone by the majority union was SATAWU, with
which
the employer had a recognition agreement. In August 2014, the
employer and SATAWU concluded a three-year agreement on wage
increases for the years 2015, 2016 and 2017. The agreement specified
that strikes over the contents of the agreement were prohibited
during the periods covered by the agreement. NTM was not a party to
that agreement.
[5]
By July 2015, if not before, SATAWU’s membership had decreased
drastically and he employer concluded a collective agreement
with NTM
setting a threshold of 30 percent for organizational rights and 45
percent for the right to bargain collectively. The
agreement also
provided that where the union had the right to bargain collectively,
wage negotiations would take place in June
of that year and the wage
agreement would be implemented in January of the following year.
[6]
In mid-2015, NTM sent wage demands to the employer, claiming to have
ousted SATAWU as the majority union. The employer did not
respond to
the demands and NTM then referred a refusal to bargain dispute to the
CCMA in August 2015. The CCMA issued an advisory
arbitration award on
15 September 2015. NTM again requested wage negotiations and when the
employer did not respond, it issued
a strike notice and the strike
commenced on 23 September 2015.
[7]
The employer applied for a
rule nisi
which was granted in the
form of an interim interdict and a return date of 4 December 2015 was
set. On 29 September 2015, NTM anticipated
the return date and
Rabkin-Naiker J discharged the
rule nisi
. The employer filed
an application for leave to appeal the discharge of the
rule nisi
.
[8]
The employer filed a new urgent application on 10 October 2015 and it
was struck off the roll by Molahlehi J. NTM then applied
for leave to
give effect to the Rabkin-Naiker’s judgment despite the
application for leave to appeal. Rabkin-Naiker J struck
the
application, finding that it was unnecessary since noting an appeal
does not revive a
rule nisi
once it is discharged.
[9]
A verification exercise, recommended by the commissioner in the
advisory award, was conducted and the outcome of 10 November
2015
identified NTM’s membership as 42.5%. NTM gave notice on 13
November 2015 to commence its strike on 16 November 2015.
On 14
November 2015, the employer made the urgent application which
resulted in my order of 19 November 2015.
Arguments
[10]
The employer argued that the strike was prohibited because the result
of the verification exercise demonstrated that NTM did
not have the
right to bargain collectively as it had not met the threshold. Even
if it had met the threshold, its wage increase
demands would only be
due for negotiation in May 2016 for implementation in January 2017.
The dispute, the employer argued, was
not a refusal to bargain
dispute in terms of section 64(2) of the Labour Relations Act but one
of interpretation of a collective
agreement in terms of section 24 of
the Labour Relations Act.
Evaluation
[11]
For this
rule nisi
application (which would operate as an
interim interdict of the strike) to succeed, the employer had to show
that – at least
on the face of it – the strike was
unprotected. Rabkin-Naiker J has already found that the dispute was a
refusal to bargain
dispute; that the union was entitled to strike
over the issue of the employer’s refusal to bargain and, in a
separate decision,
that an appeal of the discharge of the
rule
nisi
did not revive the interim interdict.
[12]
There is no reason for me to repeat the contents of Judge
Rabkin-Naiker’s judgment and I align myself with her reasoning
and conclusion that the strike was protected.
[13]
In the hearing of this matter I asked applicant’s counsel to
indicate what new circumstances had arisen (other than those
that
existed at the time of Judge Rabkin-Naiker’s discharge of the
rule nisi
) to warrant a fresh
rule nisi
to be issued.
[14]
The basis of the employer’s application was that the
verification exercise had been conducted and the union did not meet
the threshold specified for collective bargaining in the recognition
agreement between the parties. The employer also submitted
that the
demands for wage increases would be due for submission only in May of
the following year.
[15]
I accept that the CCMA’s verification exercise of 10 November
2015 showed that NTM had 42.5% membership and that this
is below the
agreed threshold of 45%. There is also no question that the
collective agreement between the employer and NTM is valid
and
binding.
[16]
The employer’s argument that the result of the verification
exercise means that the union had not met the agreed threshold
for
collective bargaining, and the strike was therefore prohibited, fails
to take into account that at the time this dispute arose,
the
collective agreement did not make provision for collective bargaining
in the course of 2015, irrespective of whether the union
had met the
threshold or not.
[17]
Simply put, there was no collective bargaining threshold agreement in
respect of the 2015 year because the timeframes for negotiating
for a
wage increase in 2015 were impossible to meet at the time of
concluding the recognition agreement, which was July 2015. It
is for
this reason that the employer’s argument that the union’s
wage demands could only be submitted in May the following
year
contradicts its argument regarding failure to meet the threshold.
[18]
From a practical labour relations perspective, it ought to have been
obvious to the employer that NTM would not want to be
bound by a
collective agreement entered into between SATAWU and the employer
when SATAWU’s membership had fallen drastically.
The new
recognition agreement with NTM made no provision for collective
bargaining with NTM in the year 2015, irrespective of a
threshold. It
is my opinion that the employer took a legalistic rather than
practical approach to its labour relations, in a volatile
situation
of break-away inter-union rivalry, and the wisdom of its approach is
questionable. The practice of labour law is seldom
a question of
right and wrong; it is more often about responding appropriately in
changing environments, being pro-active, practical
and fair, and
respecting the wishes of the majority of workers.
[19]
As held in
NUMSA v Bader Bop
(2003) 24 ILJ 305 (CC) even a
minority union is entitled to strike in support of its demand for
recognition or the conclusion of
an agreement on terms and conditions
of employment. In the absence of a collective agreement on collective
bargaining in 2015,
the union’s strike over the employer’s
refusal to bargain was protected. The resumption of the strike on 16
November
2015 was also protected.
[20]
I believe it worth addressing the employer’s argument that this
is a dispute of interpretation and application of a collective
agreement and not a refusal to bargain dispute. Almost any
determination of whether a strike is protected will require
consideration
of the collective agreements between the dispute. This
does not change the dispute to one of interpretation and application
of
a collective agreement. It is merely a tool for determining
whether the strike is protected.
[21]
The Labour Appeal Court held in
Pikitup (Soc) Ltd v SAMWU &
others
[2014] 3 BLLR 217
(LAC) that the phrase “matters of
mutual interest” has a wide scope and it includes all matters
arising in a workplace
which affect employees. The employer’s
decision to adhere to a wage agreement entered into with the former
majority union
and to sideline NTM in the year 2015 relates to a
refusal to bargain dispute and it is unquestionably a matter of
mutual interest.
Once the union had followed the required processes
of conciliation and obtaining an advisory award and issuing a
compliant strike
notice, it was entitled to embark on protected
strike action, and there is no basis to interdict the strike.
[22]
The strike was protected and not unlawful. There was accordingly no
basis for issuing the
rule nisi
.
[23]
As regards costs, I believe it is equitable if each party covers
their own.
Order
I
make the following order:
1.
The
application is dismissed.
2.
There is no
order as to costs.
_________________
Winnie
Everett
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
Adv. FMM
Snyman
Instructed
by
C de Villiers Attorneys
For
the Respondent:
Mr E Mphahlele of NTM