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[2017] ZALCJHB 260
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Nyambi and Others v H C Shaik Investment CC and Another (J1471/17) [2017] ZALCJHB 260; (2017) 38 ILJ 2806 (LC) (5 July 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Reportable
Case
No: J 1471/17
In
the matter between:
JIMMY
NYAMBI & 14
OTHERS
Applicants
and
H
C SHAIK INVESTMENT
CC
First
Respondent
NAMPAK
GLASS (PTY)
LTD
Second
Respondent
Heard
:
04 July 2017
Delivered
:
05 July 2017
Summary:
(Urgent – interdict to prevent alteration to terms and
conditions of employment to preserve right to exercise right to
strike
against true employer under s 64(4) – whether either or
both respondents the applicants’ employer the subject of a
pending arbitration ruling by the CCMA under s 198D of the LRA
–existence of suitable alternative mechanism for bringing
lawful strike action to bear on the second respondent)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an urgent application interdict to prevent the alleged
unilateral alteration of terms and conditions of employment pending
outcome of a dispute about the applicant’s employment status
which has been referred to arbitration under section 198 D of
the
Labour Relations Act, 66 of 1995 (‘the LRA’). In terms of
that section, any dispute about the employment status
of the
employees in relation to a temporary employment service or the client
of such a service may be referred to arbitration.
[2]
At present, an arbitration award is pending concerning whether or not
the applicants are employees of either or both the first
and second
respondents. The respondents denied that the first respondent is
providing labour broking services as a temporary employment
service
to the second respondent as its client. They maintain that the
commercial relationship between them is simply governed
by a “service
level agreement” (‘SLA’) and not by a temporary
employment service (’TES’) agreement.
In practical terms,
the applicants are essentially engaged in various tasks checking the
quality of bottles produced by the second
respondent (‘Nampak’)
and work they perform is intimately connected with the operations of
the second respondent. Nevertheless,
for the purposes of this
judgement it is not necessary to determine whether the relationship
between the respondents is that of
a TES and a client, which in any
event is the subject matter of the pending arbitration award (CCMA
case no GAEK 929216).
Urgency
[3]
The application was launched on Thursday 27 June, and the applicants
gave the respondents very short notice of approximately
one day to
file answering affidavits. The notification of the alleged changes to
terms and conditions of employment due to be implemented
on 1 July
2017 was conveyed to the individual applicants on 14 June 2017 and a
letter of demand calling of the first respondent
not to implement the
changes was conveyed by the applicants’ attorney of record on
22 June 2017. By 24
th
June, the applicants had responses
from both respondents which made it clear that the demand not to
implement changes to working
hours and other aspects of the
applicants’ employment would not be acceded to. The application
was then launched three days
later. As matters turned out, answering
affidavits were filed on 30 June. The applicants filed a replying
affidavit on the morning
of the urgent application hearing.
[4]
The respondents contend that the urgency was self-created because the
application was brought on very short notice when the
applicants
waited 10 days to bring the application. I accept that in dealing
with a large number of unionised employees, there
might have been
some delay before proper instructions could be obtained in order to
submit the letter of demand on 22 June. Similarly,
the applicants
could not have been expected to launch the application before waiting
a reasonable time for the respondents to answer
the letter of demand.
The additional delay of a couple of days in launching the application
is not material in my view. Had the
respondents not been able to
respond adequately in the time available before the hearing on 4
July, the matter might well have
been dismissed for lack of urgency
justifying the drastic curtailment of normal time periods for filing
answering affidavits. However,
since they were able to respond before
the matter was heard, I am prepared to accept that the application
should be considered
on an urgent basis.
Existence of a prima
facie right
[5]
The object of the application is to preserve the ability of the
applicants to engage in protected strike action against true
employer
or employers in terms of sections 64 (4) and (5) of the LRA, which
provides:
(4) Any employee who or
any trade union that refers a dispute about a unilateral change to
terms and conditions of employment to
a council or the Commission in
terms of subsection (1)(a) may, in the referral, and for the period
referred to in subsection (1)(a)-
(a) require the employer
not to implement unilaterally the change to terms and conditions of
employment; or
(b) if the employer has
already implemented the change unilaterally, require the employer to
restore the terms and conditions of
employment that applied before
the change.
(5) The employer must
comply with a requirement in terms of subsection (4) within 48 hours
of service of the referral on the employer.”
[6]
The applicants argue that even though there is no dispute that the
first respondent is their employer, until the outcome of
the
arbitration, it is uncertain whether the second respondent is also
their employer. Consequently, until they learn the outcome
of those
arbitration proceedings, they are unsure whether they can exercise
the right to engage in a protected strike in which
other employees of
the second respondent could participate. By obtaining the interdict,
the applicants would be able to prevent
the respondents from
implementing any of the changes until they are in a position to know
what the ambit of potential primary strike
action under section 64
(4) is.
[7]
In essence, the applicants wish to be able to exercise their rights
under section 64 (4) only when there is certainty about
whether or
not the second respondent is also their employer. In the meantime,
they wish to prevent any changes to their working
conditions being
made. At this juncture, it is important to emphasise that this
application is based on protecting the applicants’
ability to
embark on a primary strike against both respondents under section 64
(4). The applicants did not seek to assert their
right to specific
performance of their existing contractual obligations, which was also
available to them as an alternative cause
of action.
[8]
Undoubtedly, if the second respondent is also the applicants’
employer, they would have a clear right to embark on primary
strike
action against it utilising the procedure under section 64 (4) if the
changes intended by the first respondent amount to
changes to their
terms and conditions of employment. In passing, the alleged changes
to terms and conditions of employment
concern the following, at
least some of which appear to amount to entail material
alterations of working conditions, viz:
8.1 Relocation of the
workplace to Alrode from the existing Germiston location, which is
not disputed.
8.2 Reduction of working
hours by half, which the respondents’ claim is simply
short-time.
8.3 Reduction in staff
per shift and a less than proportionate cut in minimum target rates,
which also appears to common cause.
8.4 The allocation of
some staff per shift to perform lower paid functions.
However,
for the purposes of this judgment it is not necessary to determine if
they amount to a variation of the applicant’s
contractual
entitlements.
[9]
A primary
strike against the second respondent would allow employees of the
second respondent who are not applicants to also participate
in the
strike in support of the applicants’ demands, it being well
established that it is not only the employees who are
directly
affected by strike demands made on an employer who may participate in
a protected strike in support of those demands.
[1]
[10]
It is trite
that the object of a strike is to bring economic pressure to bear on
an employer to accede to the demands of the striking
employees. The
question which arises is whether the only way the applicants can
ensure that they and all employees of the second
respondent can
engage in protected strike action is by preserving the prevailing
circumstances of their employment until such time
as it is
established that the second respondent is also their employer. The
respondents argued that nothing prevents the applicants
from
initiating a primary strike against the first respondent, provided
they follow the procedural requirements of section 64 (4)
and then
giving the second respondent seven days’ notice of a secondary
strike in accordance with the requirements of section
66 (2)(b) of
the LRA. Provided those procedural requirements and the requirements
of s 66(2)(c) are also satisfied
[2]
,
other employees of the second respondent would be entitled to
participate in the strike action in support of the applicants’
demands even if the applicants are not employees of the second
respondent.
[11]
Having regard to the inextricably close connection between the work
performed by the applicants as employees of the first respondent
and
the operations of the second respondent, there can be little doubt
that such strike action would be reasonable having regard
to the
direct and material impact on the operations of the second respondent
and would fulfil the requirements of s 66(2)(c). The
economic
pressure that such a strike would bring to bear the second respondent
would be indistinguishable from the economic effect
of a primary
strike by the same employees in support of the same demands. The
applicants advanced no grounds why this was not a
reasonably suitable
alternative to a primary strike against the second respondent. In
short, I am not satisfied that in order to
effectively exercise the
right to strike in support of demands made pursuant to a referral
made under section 64 (4) and in order
to afford employees of the
second respondent the right to participate in a strike in support of
those demands, it is necessary
for the applicants to await the
outcome of the pending arbitration award, given the facts of this
application. It follows therefore
that the applicants have a suitable
alternative remedy they can pursue without having to await that
event.
[12]
For the
sake of completeness, mention must be made of the judgment in
De
Klerk v Project Freight Group CC
[3]
cited by the applicants in support of their argument that they are
entitled to an interdict to preserve the dispute resolution
processes
of the LRA. That case concerned an employee engaged in retrenchment
consultations who obtained an interdict preventing
his employer from
retrenching him prior to giving him access to relevant information
needed for the consultation process as the
court found he was
entitled to under s 16 of the LRA. The analogy the applicants seek to
draw with their case is inappropriate
in my view. In that case the
provision of information was ancillary to exercising the right to be
able to engage in meaningful
consultation. The applicants are not
prevented from utilising strike action which could include employees
of the applicant provided
they fulfil the statutory requirements for
a primary and secondary strike. Obtaining the interdict is not a
pre-requisite for them
to do so.
[13]
Consequently, the application should be refused on account of the
existence of a suitable alternative remedy.
Costs
[14]
As the matter entails a reasonable degree of complexity and as there
is no reason to believe that the application was brought
in bad
faith, an adverse cost order would not be appropriate.
Order
[1]
The application is heard as a matter of urgency and non-compliance of
Court Rules pertaining to service and time periods is
condoned.
[2]
The application is dismissed.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
D
Cartwright of David Cartwright Attorneys
FIRST
RESPONDENT:
H
Horn instructed by Desiree Phillips Attorneys
SECOND
RESPONDENT
M
J Van As instructed by Cliffe Dekker Hofmeyr Inc.
[1]
See
Transport
& Allied Workers Union of SA on behalf of Ngedle & others v
Unitrans Fuel & Chemical (Pty) Ltd
(2016) 37
ILJ
2485 (CC) at 2518, par [111] and the cases referred to in footnote 80
thereof.
[2]
Section 66 (2) reads:
“
No person may
take part in a secondary strike unless-
(a) the strike that is
to be supported complies with the provisions of sections 64 and 65;
(b) the employer of the
employees taking part in the secondary strike or, where appropriate,
the employers' organisation of which
that employer is a member, has
received written notice of the proposed secondary strike at least
seven days prior to its commencement;
and
(c) the nature and
extent of the secondary strike is reasonable in relation to the
possible direct or indirect effect that the
secondary strike may
have on the business of the primary employer.”
[3]
(2015)
36
ILJ
716
(LC).