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[2017] ZALCJHB 206
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Koornfontein Mines v NUM obo Members (J371/17) [2017] ZALCJHB 206 (24 May 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
case
no: J 371/17
In
the matter between:
KOORNFONTEIN
MINES
Applicant
And
NUM
OBO
MEMBERS
Respondent
Heard
:
20 February 2017
Delivered
:
21 February 2017
Edited:
24 May 2017
EX
TEMPORE JUDGMENT
MOSHOANA
J
: In this matter, yesterday I
had issued an order wherein I can repeat the order – The
application to interdict the
strike was dismissed and I made no order
as to costs. And I had indicated to the parties that the reasons
would be provided in
court today. And here are my reasons:
This
is an application to interdict an intended strike action which is to
commence at 6 AM on the 21
st
of February 2017. The application is opposed by the respondents. The
issue of urgency and compliance with section 68(2) has been
dealt
with and it is worth not mentioning at this stage. What remains is
whether the applicants are entitled to a relief contemplated
in
section 68(1)(a) of the Labour Relations Act. In terms of section
68(1)(a) the following obtains:
“
In
the case of any strike or lockout or any conduct in contemplation or
in furtherance of a strike or lockout that does not comply
with the
provisions of this chapter, the Labour Court has exclusive
jurisdiction to grant an interdict or order to restrain any
person
from participating in a strike or any conduct in contemplation or in
furtherance of a strike, or any person from participating
in a
lockout or any conduct in contemplation or in furtherance of a
lockout.”
Therefore,
as the provisions of the section are very clear, any strike that does
not comply would be interdictable.
The
law relating to strikes
The
starting point would be section 64(1) of the Labour Relations Act
which provides as follows:
“
Every
employee has a right to strike and every employer has a recourse to
lock out.”
I
am omitting from the quotation the subparagraphs (a), (b) and (c) and
further. The requirements… or rather I am omitting
(c) and
further, but would quote (a) and (b). It provides:
“
If
the issue in dispute has been referred to a council or to the
commission as required by this act; and -
(i)
a certificate stating that the dispute remains unresolved has been
issued; or
(ii)
a period of 30 days, or any extension of that period agreed to
between the parties to the dispute, has elapsed
since the referral
was received by the council or the commission; and after that -
(b)
In the case of a proposed strike, at least 48 hours’ notice of
the commencement of the strike in writing has been
given to the
employer, unless -
(i)
the issue in dispute relates to a collective agreement to be
concluded in a council in which case notice must
have been given to
that council; or
(ii)
the employer is a member of an employers’ organisation that is
party to the dispute in which case notice
must have been given to
that employers’ organisation.”
These
are what may be termed the procedural steps before an employee can
exercise the right to strike. Therefore, if an employee
does not meet
the procedural steps, then the provisions of section 64 would not
have been met. Section 2(13) defines an issue in
dispute as to mean,
in relation to a strike or a lockout, a demand, a grievance or the
dispute that forms the subject matter of
the strike. Therefore, in
terms of section 64(1)(a) there must be either a demand or a
grievance or a dispute that forms the subject
matter of the dispute
that must be referred.
Section
64(4) provides a special dispensation, as it were, for disputes
about unilateral change to the terms and conditions of
employment.
Such dispensation is that the employee may require the employer not
to implement the change to the terms and conditions
of employment; or
if the terms and conditions of employment have been changed, to
restore those terms that had applied before the
change. In terms of
the provisions of the section, the employer is obliged to comply
within 48 hours of the service of the referral.
Such statutory
obligation means that an employee may elect to approach this court to
compel compliance or resort to power play
in order to compel
compliance.
Section
65 places limitation on the right to strike. Of importance in this
judgment is the provisions of section 65(1)(c) which
reads as
follows:
“
No
person may take part in a strike or a lockout or in any conduct in
contemplation or furtherance of a strike or a lockout if
(c)
the issue in dispute is one that a party has the right to refer to
arbitration or to the Labour Court in terms of
this Act or any other
employment law.”
It
is clear to my mind that the requirements of the law are such that if
a dispute is one that a party has a right to refer, either
to
arbitration or to this court for adjudication in terms of the LRA or
any other employment law, then the employee has no right
to strike
over that issue. Employment law, as mentioned in the subsection I
have just read, came as a result of the 2014 amendments.
And section
2(13) defines employment law to mean the LRA, which is the Labour
Relations Act, or any other act which is falling
under the
administration of the Minister of Labour. The Basic Conditions of
Employment Act is such act.
Section
77(3) of the Basic Conditions of Employment Act grants the Labour
Court concurrent jurisdiction with the civil courts to
hear and
determine any matter concerning a contract of employment,
irrespective of whether any basic conditions of employment
constitutes a term. To my mind, section 65(1)(c) is specific. It
states that a party must have a right to refer to the Labour Court
and/or arbitration. Section 77(3) does not create such a right of
referral. All it does is to give the court jurisdiction to hear
and
determine any matter concerning a contract of employment; such that
if an employee elects to refer the unilateral change of
terms and
conditions to this court, this court has powers to hear it and
determine it in terms of section 77(3). Section 65(1)(c)
is not an
absolute limitation.
In
section 65(2)(a) the following obtains:
“
Despite
subsection (1)(c), a person may take part in a strike or a lockout or
in any conduct in contemplation or in furtherance
of a strike or
lockout if the issue in dispute is about any matter dealt with in
sections 12 to 15.”
A
further limitation appears in section 65(3) which reads as follows:
“
Subject
to a collective agreement, no person may take part in a strike or a
lockout in any conduct in contemplation or furtherance
of a strike or
lockout -
(a)
If that person is bound by -
(i)
any arbitration award or collective agreement that regulates the
issue in dispute; or
(ii)
any determination made in terms of section 44 by the Minister that
regulates the issue in dispute or any determination
made in terms of
chapter 8 of the Basic Conditions of Employment Act and that
regulates the issue in dispute during the first year
of that
determination.”
A
brief factual synopsis follows – The employees of the applicant
acquired a right to 25 days’ paid leave. The relevant
part of
the contract reads as follows:
“
You
will be entitled to 25 working days per annum of which 21 consecutive
days must be taken per year. The remainder may be accumulated
in cash
or taken at a later date.”
The
literal meaning of this clause is that: in a leave cycle an employee
can accumulate four days. So, if an employee accumulates
a number of
four days, he or she is entitled to encash them or take them as leave
days. Therefore, in relation to the encashment,
employees of the
applicant were entitled to accumulate and encash at a later stage as
per this clause or a term of the contract.
Employees continued to
reap the benefits of their bargain until when the payroll no longer
processed the leave encashment submitted.
In
a meeting of the joint forum held on the 26
th
of May 2016, the first respondent raised an issue that payroll no
longer processes the leave encashment. It was in this meeting
that
the General Manager of the applicants stated that management were
told to no more make the payments, because it is not their
policy to
encash leave and it is against the law as in section 21 of the Basic
Conditions of Employment Act.
The
union, NUM, expressed unhappiness to such an act. And in that meeting
the management undertook to investigate the aspects of
unhappiness
and revert at a later stage. Indeed in a meeting of 15 July 2016
management reported that the leave encashment was
placed on
moratorium due to business financial constraints. On 11 August 2016
NUM raised an issue of unilateral changes to the
conditions of
employment. Management responded thereto by stating:
1.
The moratorium was because of the financial constraints.
2.
The legal constraints as placed by section 21 of the Basic Conditions
of Employment Act.
On
24 November 2016 the union issued an official dispute notification.
They stated the following:
“
We
are therefore informing you that we are in dispute with regard to
leave encashment agreement.”
They
made certain... they proposed a solution to the demand or the concern
that they had and reserved their right to refer the same
dispute to
the CCMA as the deviation, as they called it, or unilateral change to
terms and conditions of employment as advised
by their Legal
Department. The applicant acknowledged the notification of the
dispute on the 26
th
of November 2016.
On
23 December 2016 the dispute about unilateral change, as advised, was
referred to the CCMA. On 21 January 2017 the dispute was
enrolled for
conciliation at which point a point in
limine
was raised by the applicant to the effect that the dispute was
referred out of time and therefore the CCMA lacked jurisdiction.
A
ruling was issued on the 31
st
of January 2017 dismissing that point and a non-resolution
certificate was issued.
On
15 February 2017 the applicant launched a review application against
the ruling on jurisdiction and the issuing of the certificate.
On 16
February 2017 the union issued a notice within the contemplation of
section 68(1)(b). Following that, a letter indicating
an intention to
approach this court was issued by the applicant followed by the
present application.
Basis
for the interdict
Five
grounds were mentioned by Mr Bekker for the applicants. In this
judgment I would deal with all the five grounds and whereafter
I
would reach a conclusion.
The
first ground related to: In the submission by Mr Bekker, the true
nature of the dispute is that of benefits; and in their submission,
since the issue of benefits is regulated by section 186(2)(b) of the
Labour Relations Act, this is not a matter that the employees
can go
on strike about. It is indeed the duty of this court to determine the
true nature of the issue in dispute. Having had regard
to the
material background, I am persuaded that the true dispute is that of
unilateral change to the terms and conditions of employment
as
opposed to the one relating to benefits. Therefore, I reject the
contention that this is a benefits dispute.
The
second ground related to the prohibition by section 65(1)(c); such
that the matter or the dispute in itself ought to be referred
to
arbitration as opposed to be resolved through power play. Since I
have found that this is not a benefit dispute, it cannot be
a dispute
that ought to be referred to arbitration. This is the unilateral
change to the terms and conditions of employment within
the
contemplation of section 64(4) and the employees have an election.
They have elected to resolve that dispute through power
play. As I
have pointed out already, section 77(3) does not give a right to
refer. Accordingly, this ground is also rejected.
The
third ground related to the strike notice being defective. Mr Bekker
submitted that the strike notice is not very clear in that
it does
not require or it does not give an indication of what is required of
the employer to do in order to resolve the dispute.
He made reference
to various authorities of this court dealing with a strike notice
that is unclear in which event it would affect
the protection of the
strike. However, if regard is had to the notice itself, it is very
clear. We as the union raised a concern
that you have changed the
terms and condition and we have referred a dispute in terms of
section 64(4) which states that: if you
have implemented, then you
must restore. And if you have not implemented, you should not
continue to implement. That is clear as
daylight. And therefore, it
is my view that the strike notice is clear. It requires restoration
of the status quo; i.e. the payment
of the accumulated leave in terms
of clause 25 of the employment contract.
The
fourth ground: Mr Bekker submitted that the demand is unlawful. This
was premised on the basis that the employees cannot ask
the employer
to breach the provisions of section 21 of the Basic Conditions of
Employment Act. The Basic Conditions of Employment
Act is provided or
it is enacted, as it were, to deal with the basic or minimum
conditions of employment. And if parties to an
employment enter into
an agreement where the terms and conditions are even more improved,
there is nothing wrong with that. The
provisions of section 4 of the
Basic Conditions of Employment Act provides as follows:
“
A
basic condition of employment constitute a term of any contract of
employment, except to the extent that -
a)
any other law provides a term that is more favourable to the
employee.”
Now,
the provision for the encashment of the accumulated leave provides a
favourable condition, as it were, to the employees. And
if they had
managed to bargain for that, there is nothing unlawful about. In
fact, in terms of section 64(4), employees are entitled
to
demand
restoration of the unilaterally changed terms and conditions of
employment. So, to my mind, the demand is not unlawful.
Lastly,
he raised the issue of the arbitration. Mr Bekker submitted that the
employer party, the applicant before me, decided on
its own to refer
a dispute to arbitration; not the same issue in dispute, I hesitant
to say. The employer decided to create its
own dispute and refer it
to arbitration whereafter it then sought to approach this court and
indicate that the issue in dispute
is pending before an arbitration
proceedings and therefore, the employees cannot exercise their right
to strike. I cannot agree.
The
only provision that would bar or limit the right to strike is when
there is an arbitration award in terms of section 65(3) that
deals
with the issue in dispute. Not when a party, like the employer in
this case, decided on its own to refer a dispute, seeking
some form
of a declaratory order from the CCMA. Such does not prevent the
employees to continue with a strike that comprise with
the provisions
of section 64(4). Those are the reasons for the order that I had
made.
-
- - - - - - - - - - - - -
On
behalf of applicant
:
Adv Bekker
On
behalf of respondent
:
(No annotations)
Date
of judgment
:
2017-02-21
DIGITAL AUDIO
RECORDING TRANSCRIPTIONS
No:
86 Cnr Juta & Melle Street, Arbour Square, 6th Floor
Braamfontein, JHB
TEL
/ FAX 011 339 4362 FAX: 086 726 6628
TRANSCRIBER’S
CERTIFICATE
This
is to certify that,
insofar as it is audible
, the aforegoing
is a true and correct transcript of the proceedings recorded by means
of a mechanical recorder in the matter of:
KOORNFONTEIN
MINES
v
NUM
OBO MEMBERS
CASE
NUMBER:
J371/17
RECORDED
AT:
Labour Court
DATE
HELD:
2017-02-21
ORDER
TO TRANSCRIBE:
Judgment
TRANSCRIBER:
Ms M Brits
DATE
COMPLETED:
2017-03-22
NUMBER
OF CD/AUDIO FILES: 1
NUMBER
OF PAGES:
11
REPORT ON
RECORDING
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DIGITAL AUDIO
RECORDING TRANSCRIPTIONS
No:
86 Cnr Juta & Melle Street, Arbour Square, 6th Floor
Braamfontein, JHB
TEL
/ FAX 011 339 4362 FAX: 086 726 6628