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[2017] ZALCJHB 262
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SOS Protec Sure v South African Revolutionary Allied Workers Union (D955/17) [2017] ZALCJHB 262 (5 July 2017)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Case
No: D955/17
In
the matter between:
SOS
PROTEC
SURE
Applicant
and
SOUTH
AFRICAN REVOLUTIONARY ALLIED WORKERS UNION
Respondent
Heard
:
05 July 2017
Delivered
:
05 July 2017
Summary:
(Urgent – strike interdict- alleged unilateral alteration of
conditions of employment)
JUDGMENT
LAGRANGE
J
Background
[1]
This is an urgent application interdict to interdict strike action
due to commence on 06 July 2017. A strike notice was issued
by the
union on 3 July and rising from an unresolved dispute which was
conciliated on the same date.
[2]
The demands set out in the letter are the following:
“
The employees are
not happy that the employer is paying them what he likes there is no
set rate and even so the salaries was reduced
from month to month. No
payslips. Unilateral change of a date. Unilateral change of shift
roster.”
[3]
The papers of both parties appear to have been drawn up without legal
assistance, the applicant was represented by counsel who
had been
instructed only the day before the hearing. On the papers, the only
discernible ground advanced by the applicant for the
strike being
unprotected is that it concerns non-compliance with a Sectoral
Determination which had previously been the subject
matter of a
previous dispute.
[4]
Having regard to the referral documents and to the somewhat unclear
demands of the employees set out in the strike notice, it
does not
appear to me that those demands obviously relate to non-compliance
with a Sectoral Determination except perhaps that the
alleged
provision of payslips is clearly a matter falling either within the
scope of a breach of
s 33
of the
Basic Conditions of Employment Act
75 of 1997
.
[5]
It was alternatively argued by counsel for the applicant that the
contracts of employment of the employees clearly stipulate
the
employer is entitled to vary shifts and that dates were dealt with in
the contracts of employment. In essence, it was suggested
that the
applicant had not implemented any unilateral changes to existing
terms and conditions of employment. However, this alternative
basis
for interdicting the strike was not set out in the founding papers
and the union could not be expected to deal with it in
its answering
papers. Consequently, a proper evidentiary basis for this claim was
not set out in the founding papers.
[6]
The fact that the applicant drafted the papers itself, does not mean
that the court can simply permit additional grounds and
further
evidence to be entertained when the other party has not at an
opportunity to deal with them prior to the hearing. In passing,
it
should be mentioned that no, application was made to supplement the
applicant’s papers. In any event, I agree with the
following
observation in the judgement in
Sibanye Gold Ltd v Association of
Mineworkers & Construction Union & others
(2017) 38 ILJ
1193 (LC), namely:
“
In Maritime
Industries Trade Union of SA & others v Transnet Ltd & others
(2002) 23 ILJ 2213 (LAC);
[2002] 11 BLLR 661
(LAC), Zondo JP noted
that a
s 64
(4) dispute about a unilateral B change to terms and
conditions of employment could legitimately be the subject of a
referral in
terms of
s 64
(1) and thus the subject of a strike. He
went on to note (at paras 106 and 107 of the judgment) that to an
extent, a union had
an election between power-play on the one hand
and arbitration on the other, as a means to resolve the dispute. What
was required
in each case was to determine the nature of the dispute.
I do not understand this statement to require the court mero motu to
determine
what it considers to be the nature of the dispute —
the language of the judgment is cast in the terms of choice. In other
words, a dispute about a unilateral change to terms and conditions of
employment may be cast in those terms, or it may equally
be cast in
terms so as to fall within the ambit of an unfair labour practice
dispute, or even a breach of contract. In this sense,
the union has
an election as to how it wishes to progress the dispute — by
the exercise of economic power, by arbitration
(as an unfair labour
practice) or in this court by way of a dispute about a contract of
employment. In other words, the manner
in which the dispute is cast
will ultimately determine the manner in which the dispute is to be
resolved. The right to make that
election must be respected, as must
the outcome.”
[1]
[7]
In relation to the demands of the union, I am satisfied that the
demand relating to the provision of payslips whether justified
or not
is not a matter in respect of which a protected strike could be
called because that is clearly a dispute of right, for which
the
union has alternative remedies under the BCEA or the relevant
Sectoral Determination. To the extent that the union persists
with
this demand, the strike would be unprotected. However, the remaining
demands are not demands that the employer claims it does
not
understand and on the papers before me has not advanced other grounds
why those demands could not be the basis of protected
strike action.
[8]
In the circumstances, the applicant is entitled only to partial
relief.
[9]
In passing, it must be mentioned that it was common cause that
shortly before this matter was heard telephonically in Johannesburg,
a union official had been arrested by police on an alleged charge of
fraud relating to union membership forms when he came to attend
the
hearing at the Labour Court in the Durban. It was suggested in the
oral submissions of Mr Mdluli, the union official who made
representations at the hearing that employees might well go on strike
in any event as result of this event. The timing of the arrest
is a
matter of concern to the court and is reminiscent of what used to
occur pre-1994 when some employers resorted to criminal
law remedies
as a strong-arm adjunct to their industrial relations strategy. In
all probability, an event like this occurring as
it did just before a
strike interdict hearing, where a strike is imminent, is only likely
to inflame matters. However, it had already
taken place by the time
the proceedings commenced and the court has no powers to intervene in
that matter.
Order
[1]
The matter is dealt with as one of urgency and non-compliance with
the requirements of the Rules of the Labour Court relating
to time
periods and service are condoned.
[2]
Pending the return date of this application on 25 August 2017, when
the respondent must show cause why the order in paragraphs
2.1 and
2.2 should not be made final, the following order is made:
2.1 The Respondent and
its members employed by the applicant are interdicted from embarking
on strike action pursuant to the strike
notice issued by the
Respondent on 3 July 2017, unless and until it withdraws in writing
its demand regarding the alleged non-provision
of payslips, which
notice must be served on the applicant or its attorneys of record by
fax or hand delivery.
2.2 Service of this order
must be effected on the Respondent by fax and copies of the order
must be made available to employees
of the applicant.
[3]
Costs of the application are reserved for determination on the return
date.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
A
P v d Westhuizen instructed by .................
RESPONDENT:
M
Mdluli (union official)
[1]
At
1201, para [20]