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[2017] ZALCJHB 292
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City of Johannesburg Metropolitan Municipality v South African Municipal Workers Union (SAMWU) and Others (J1799/17) [2017] ZALCJHB 292; [2017] 12 BLLR 1244 (LC) (10 August 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
REASONS
Not
reportable
Case
no: J1799/17
In
the matter between:
CITY
OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Applicant
and
SOUTH AFRICAN
MUNICIPAL
WORKERS
UNION (SAMWU)
First Respondent
THE FIRST
RESPONDENT’S MEMBERS
LISTED IN ANNEXURE
“A” TO NOTICE
OF
MOTION
Second to Further
Respondents
Heard:
7
August 2017
Delivered:
10
August 2017
Summary:
Strike
prima
facie
unprotected – interim order interdicting strike granted
JUDGMENT
MYBURGH,
AJ
Introduction and
background
[1]
On 7 August
2017, I granted an urgent interim order interdicting a threatened
strike by SAMWU at the municipality (“the strike”)
–
the application having been unopposed. I did so on the basis that I
was persuaded that the municipality had established
– on a
prima
facie
basis – that the strike was unprotected, and had met the other
requirements for the grant of interim relief. What follows
are my
brief reasons for finding that the strike was
prima
facie
unprotected.
[2]
The
essential background is this. For reasons that need not be traversed
herein, the municipality transferred some 94 bus drivers
to other
positions / departments pending the conducting of disciplinary
enquiries into alleged misconduct by them – this
being referred
to in the papers as a “precautionary transfer”. On 14
February 2017, and arising from this, SAMWU referred
a dispute about
an alleged unilateral change to terms and conditions of employment to
the SALGBC. In the referral form, SAMWU invoked
the provisions of
section 64(4) of the LRA
[1]
(but
the municipality did not comply therewith). On 24 July 2017, the
SALGBC issued a certificate of outcome reflecting that the
dispute
remains unresolved, and that it could either be referred to the
Labour Court or form the subject of strike action. On Thursday
3
August 2017 (at 16h04), SAMWU issued a strike notice, in which it
notified that “consistent with the certificate of outcome”,
a strike would commence on Tuesday 8 August 2017 at 05h00 –
thus giving the municipality 4 ½ days’ notice of
the
strike. On 4 August 2017, the municipality launched an urgent
application to interdict the strike, which was enrolled for hearing
on Monday 7 August 2017. As stated above, on that day, the matter was
unopposed, and I granted an interim order interdicting the
strike.
Grounds relied on by
the municipality
[3]
In its
founding papers, SAMWU contends that the strike is unprotected on the
following five grounds:
a)
firstly,
the municipality is a state employer and ought thus to have been
given at least seven days’ notice of the strike
in terms of
section 64(1)(d);
b)
secondly,
where section 64(4) is invoked, it is not competent to strike after
the elapse of the period referred to in section 64(1)(a);
c)
thirdly,
the precautionary transfer did not constitute a unilateral change to
terms and conditions of employment;
d)
fourthly,
insofar as the precautionary transfer did constitute a unilateral
change to terms and conditions of employment, it involves
a
contractual dispute between the parties which SAMWU has the right to
refer to the this court in terms of section 77(3) of the
BCEA, with
the result that the strike is hit by the section 65(1)(c) limitation
of the right to strike; and
e)
fifthly,
insofar as SAMWU alleges (as it did in its application for
condonation in respect of the late referral of the dispute to
conciliation) that the precautionary transfer is causing its members
“suppression, abuse or injustice”, the dispute
amounts to
an unfair labour practice in terms of section 186(2)(b), with the
result that the strike is again hit by the section
65(1)(c)
limitation of the right to strike.
Evaluation and
analysis
[4]
Regarding
the
first ground
,
in order for section 64(1)(d) to be applicable, the municipality
would have to fall within the phrase “the State is the
employer”. In
City
of Matlosana v SA Local Government Bargaining Council & others
(2009) 30
ILJ
1293 (LC), Pillay J found that “a municipality … must …
be the State at local government level”,
[2]
and accordingly that section 64(1)(d) applied to a municipality. I am
unaware of any direct authority to the contrary, and thus
accept this
as the prevailing legal position, with the result that the strike is
unprotected on account of short notice having
been issued.
[5]
The
question that arises from this is whether the strike would only be
unprotected until the seven days’ notice (calculated
from 16h04
on Thursday 3 August 2017) runs out, or whether SAMWU is obliged to
give the municipality seven days’ notice afresh
in order for
the strike to be protected. To my mind, a fresh notice would have to
be issued. This is so because the municipality
is entitled to know
when the strike is to commence,
[3]
and the threatened time of commencement (05h00 on Tuesday 8 August
2017), which was unlawful, has come and gone.
[4]
[6]
Regarding
the
second ground
,
the municipality places reliance on the judgment of Snyman AJ in
Sibanye
Gold Ltd v AMCU & others
(2017) 38
ILJ
1193 (LC) (“
Sibanye
(1)
”),
particularly on this passage:
“
[70] In simple terms, it is
about what forms the basis of the alleged unilateral change in
employment conditions. If the unilateral
change if founded on a
vested right, whether by policy, contractually or
ex
lege
, the right to strike
lapses when the time period as contemplated by section 64(1)(a)(i) or
(ii) expires. If not, then the
employees may continue with
their strike after the time period as contemplated by section
64(1)(a)(i) or (ii) expired, provided
proper notice of intention to
strike is then given in terms of section 64(1)(b).”
[7]
I am not
persuaded that this passage assists the municipality. The finding was
made in the context of the fact that AMCU had invoked
section 64(4)
and resorted to a retaliatory strike over a unilateral change to
terms and conditions of employment, with Snyman
AJ having found that
the strike could not endure on a protected basis after the elapse of
the period referred to in section 64(1)(a)
– this in
circumstances where he considered the dispute to be about benefits
and thus a dispute of right. In the present
case, despite having
purported to invoke section 64(4) in its referral to conciliation,
SAMWU has not engaged in a section 64(4)
strike, and seeks instead to
strike in the ordinary course – this after having complied with
all the requirements of section
64. I thus do not consider the
passage from Snyman AJ’s judgment to be of application (but
this does not detract from my
view in relation to the fourth ground
addressed below). In any event, the rule
nisi
issued by Snyman AJ pursuant to the above-mentioned finding was
discharged by Van Niekerk J on the return date,
who
disagreed with Snyman AJ on the law (see
Sibanye
Gold Ltd v AMCU & others
(2017) 38
ILJ
1193 (LC) (“
Sibanye
(2)
”)
at paras 16-17).
[8]
Regarding
the
third ground
,
I do not consider this to be of any moment because SAMWU is not
engaging in a section 64(4) strike. In any event, the municipality
has not established on the papers that the precautionary transfer did
not constitute a unilateral change to terms and conditions
of
employment. Indeed, the fourth ground advanced by the municipality
(see below) is potentially at odds with this.
[9]
Regarding
the
fourth ground
,
it is useful to expand upon how the municipality’s case was
advanced before me – it having been contended as follows:
SAMWU’s complaint is that the precautionary transfer
constituted a unilateral change to terms and conditions of
employment;
this equates to an allegation of a breach of its members’
contracts of employment; this is actionable in terms of section
77(3)
of the BCEA in this court; and, accordingly, the strike is hit by the
section 65(1)(c) limitation of the right to strike.
[10]
In
assessing this ground, it is noteworthy that section 65(1)(c) was
amended by way of the 2014 amendments to the LRA to read (the
underlining reflects the amendment): “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
”.
This would cover the BCEA, and section 77(3) thereof, which clothes
this court with (employment) contractual jurisdiction.
[5]
Of relevance here is
Mawethu
Civils (Pty) Ltd & another v National Union of Mineworkers &
others
(2016) 37
ILJ
1851 (LAC), where Murphy AJA appears to have indicated that
insofar as a dispute is actionable in terms of section 77(3) of
the
BCEA in this court, a strike over the dispute would be hit by the
section 65(1)(c) limitation of the right to strike (see paras
14 and
18 of the LAC’s judgment). At best, however, the indication is
obiter
and not binding on this court, but is (potentially) of persuasive
value. The indication given by Murphy AJA accords with the approach
of Snyman AJ in
Sibanye
(1)
,
who found the same thing in relation to benefits (i.e. if the
unilateral amendment relates to a benefit, then the strike is hit
by
the section 65(1)(c) limitation of the right to strike, because a
benefits dispute is a dispute of right).
[11]
But Van
Niekerk J adopted a different approach in
Sibanye
(2)
. As
far as he was concerned, a dispute about a unilateral change to terms
and conditions of employment is a specific / peculilar
type of
dispute, and does not change its character because it involves a
unilateral amendment which might be actionable as a dispute
of right
(for example, a benefits dispute). In this key passage, Van Niekerk J
went on to find:
“
[17] This is not a dispute that
concerns rights rather than interests, or to be more precise, it is
not a dispute in respect of
which strike action is prohibited because
the dispute is required by the LRA or another employment law to be
referred to arbitration
or to this court for adjudication.
I
am unaware of any provision in the LRA (or any other law) that
provides that a party has the right to refer a dispute about a
unilateral change to a term and condition of employment to either of
these institutions
. In the
absence of such a provision, it seems to me that the dispute
concerning the unilateral change to the acting allowance policy
is
one that is capable of being the subject of a protected strike, at
least in the sense that it is not a dispute that any party
has the
right to refer to arbitration or adjudication.” (Own emphasis.)
[12]
This court
is thus confronted with conflicting judgments and approaches. On the
approach of Murphy AJA in
Mawethu
Civils
(albeit
tentative and at best
obiter
),
which is consistent with that of Snyman AJ in
Sibanye
(1)
,
the strike herein is unprotected because, although styled as a
dispute about a unilateral change to terms and conditions of
employment,
the dispute is actionable in terms of section 77(3) of
the BCEA as a breach of contract, with the result that the strike is
hit
by the section 65(1)(c) limitation of the right to strike. But on
the approach of Van Niekerk J in
Sibanye
(2)
,
the fact that SAMWU might otherwise have characterised the dispute as
a breach of contract, does not detract from the fact that
the actual
nature of the dispute herein is a dispute about a unilateral change
to terms and conditions of employment, with there
being nothing that
provides that such a dispute may be referred to arbitration or to
this court for adjudication. Accordingly,
on the latter approach, the
strike is not hit by the section 65(1)(c) limitation of the right to
strike.
[13]
In the
urgent circumstances in which this application was brought and
argued, it was not possible for me take a definitive view
on which of
these approaches is correct. The issue is complex and each of the
approaches has its merits. For present purposes,
I am, however, of
the view that the municipality has succeeded in at least establishing
a
prima
facie
right to relief on this ground. By that I mean a right “even
though open to some doubt”.
[6]
[14]
Regarding
the
fifth
ground
,
section 186(2)(b) defines an unfair labour practice as involving “the
unfair suspension of an employee or any other unfair
disciplinary
action short of dismissal in respect of an employee”. Given
that SAMWU does not invoke the section, and that
the municipality
itself disavows the precautionary transfer as constituting a
suspension or disciplinary action, the section is
clearly
inapplicable. In the result, there is no merit in this ground.
Conclusion
[15]
In summary
and conclusion, I am of the view that the municipality established –
on a
prima
facie
basis warranting the grant of interim relief – that the strike
is unprotected on the first and fourth grounds discussed above.
(Of
course, having been decided on a
prima
facie
basis, the finding is not binding on this court on the return
date.)
[16]
I
accordingly granted the interim order that I did on 7 August 2017.
________________________________
Myburgh, AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For
the applicant: Adv C Malan instructed by Moodie &
Robertson
[1]
Unless otherwise stated, all
references to sections herein are to the LRA.
[2]
At 1297.
[3]
Ceramic Industries Ltd t/a Betta
Sanitary Ware v National Construction Building & Allied Workers
Union (2)
(1997) 18
ILJ
671 (LAC) at 676.
[4]
See
City
of Matlosana
(
supra
)
at 1298: “A fresh notice is required in any event because the
date for commencing the strike on 4 August 2008 has passed.”
[5]
As the LAC put it in
Rand
Water v Stoop
and
others
[2013] 2 BLLR 162
(LAC) at para 39.2, “the Labour Court has jurisdiction over
any claim as long as it involves a contract of employment”.
[6]
Webster v Mitchell
1948
(1) SA 1186
(W);
Palace
Group Investments (Pty) Ltd & another v Mackie
(2014) 35
ILJ
973 (LAC) at para 18. In para 19 of the latter judgment, the LAC
said this about a
prima
facie
right: “With
regard to the first prerequisite, it is necessary to assess whether
an applicant has,
prima
facie
, established a right
capable of protection.”