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[2017] ZALCJHB 389
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Imperial Cargo (Pty) Ltd v DETAWU and Members (J2689-17) [2017] ZALCJHB 389 (25 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 2689-17
In
the matter between:
IMPERIAL
CARGO (PTY)
LTD
Applicant
and
DETAWU
and
MEMBERS
Respondents
Heard:
19
October 2017
Delivered:
25
October 2017
JUDGMENT
WHITCHER,
J:
[1]
The applicant provides road freight transport
services to clients from its base in Paarl, Western Cape. The
respondents intend embarking
on a strike in support of four demands.
A referral and conciliation that complies with
section 64
of the
Labour Relations Act 66 of 1995
was held. The sole issues for
determination are whether the intended strike action in respect of
all or any of the strike demands,
is protected.
[2]
Section 65(1)(a)
of the LRA provides that no
person may take part in a strike if that person is bound by a
collective agreement that prohibits a
strike in respect of the issue
in dispute.
[3]
Section 65(3)(a)
of the LRA provides that,
subject to a collective agreement, no person may take part in a
strike if that person is bound by any
collective agreement that
regulates the issue in dispute.
[4]
The parties fall under the National Bargaining
Council for the Road Freight and Logistics Industry and the Main
Agreement concluded
there applies to the parties.
[5]
Clause 2 of the Main Agreement provides that the
agreement is binding on the parties until 28 February 2019.
[6]
Clause 57 provides that the Council is the
exclusive forum for the negotiation and conclusion of agreements on
substantive issues
between employers/employer organisations and employees/trade unions.
The clause further provides that no trade union or employer
may call
a strike or lockout or in any other way seek to induce or compel
negotiations on
substantive issues
at
any level other than the Council. The agreement goes on to define
substantive issues
as
all issues
involving
costs and affecting the wage packets of employees.
[7]
In labour parlance, the term
substantive
issues
is usually used to refer to terms and
conditions of employment - the terms under which employees work, or
their benefits, rather
than mere working practices.
[8]
It is clear that in terms of the Main Agreement
all and any negotiation in relation to substantive issues must be
negotiated at
the Bargaining Council and that the respondents may not
resort to industrial action concerning these issues.
[9]
The applicant contends that all the demands over
which the individual respondents intend to strike amount to
substantive issues
and moreover substantive issues which will involve
severe cost implications for the applicant. Accordingly, the strike
is hit by
the prohibitions in
section 65
of the LRA.
[10]
It
is necessary to analyse each demand separately, as it may be that a
strike is protected in respect of one or more demands, but
not in
respect of others.
[1]
First
Demand
[11]
The applicant employs truck drivers, who drive
the various freight trucks, and in respect of short routes or where
client requirements
dictate, van assistants to assist with tarping
and offloading. On the longer routes, it is common cause that the
applicant has
for a period of over 10 to 15 years paid to each driver
what has become commonly known as a
guard fee
for the performance of tarping and offloading
duties. The payment of the guard fee is not the subject of a
collective agreement.
According to the respondents, the performance
of these duties and the payment of a guard in respect thereof is thus
an implied
term of the employment contract. Applicant contends that
the payment of a guard fee is merely a work practice to recognise
that
they perform duties that, although they fall within the
definition of driver’s work in the Main Agreement, they were
often
performed by assistants, until the use of on-board assistants
was largely phased out.
[12]
The demand is that the applicant:
“…
must
employ general workers to accompany or work with the drivers to
perform duties of the general worker in the truck whilst on
route or
loading and unloading or any duties connected with that which is the
work of a general worker”.
[13]
Drivers must however continue to receive their
guard fee allowance. I say this because the respondents, with
reference to their
declaration of dispute notice, state the following
in their opposing affidavit:
“
In our
demands we had never said the company must do away with the guard
fees, but we have demanded it to employ general workers
to perform
duties of a general worker”.
[14]
On the respondents’ own version, the demand
for the appointment of general workers is premised on the fact that
the Main Agreement
defines a general worker as an employee who
assists in the loading or unloading of any goods, containers or
vehicles and the throwing
over or removing of tarpaulins or
coverings, amongst other things. The respondents contend that this
means that it is not the duty
of a driver to perform the work of
loading, off-loading and tarping. They contend that this
interpretation is reinforced by the
fact that clause 4 of their
contracts of employment states that drivers
supervise
the loading and off-loading of the vehicle and the vehicle assistant
is a company employee employed by the company.
[15]
The applicant, on the other hand, contends that
the definitions of
drive
and
hours of work
in
the Main Agreement and the fact that there is no specific definition
of driver in the Main Agreement envisage that the roles
of drivers
will include activities other than actual driving.
[16]
The word
drive
in the Main Agreement is defined as including all periods of driving,
all periods during which the driver is obliged to remain
at his post
in readiness to drive and any other time spent by the driver in
connection with the vehicles or its load.
[17]
Hours of work
is
defined to include all periods of driving and any time spent by a
driver connected with the vehicle or the load and all periods
during
which the driver is obliged to remain at his post in readiness to
work when required to do so, but does not include any
meal intervals
prescribed in terms of clause 5 or any period in respect of which a
subsistence allowance is payable to an employee
in terms of clause
36, if during such interval or period the driver does no work other
than remaining in charge of the vehicle
and its load.
[18]
I agree with the applicant that to meet this
first demand it would have to employ additional staff at significant
additional cost
and it would lead to a term of employment that
drivers are entitled to have van assistants. This is clearly a
substantive matter,
which moreover
involves
costs.
Such issues must be negotiated at
sectoral level at the Bargaining Council.
[19]
This demand is hit by a further
prohibition, namely
section 65(1)(c)
of the LRA which holds that
no
person may take part in a strike or a lock-out if the issue in
dispute is one that a party may refer to arbitration in terms
of the
LRA.
[20]
The demand is premised on a dispute between the
parties as to the interpretation of the Main Agreement, and in
particular whether
the Main Agreement reserves duties of tarping and
loading/offloading to be performed exclusively by ‘general
workers, or
whether drivers can also be expected to perform such
duties. Accordingly, it is arguable that the real dispute concerns
the interpretation
and application of a collective agreement.
[21]
However, as indicated earlier on it, is necessary
to analyse each demand separately, as it may be that the strike is
protected in
respect of one or more of the other demands.
Second
Demand
[22]
The respondents have taken issue with the
scheduling of weekend trips for long distance drivers.
[23]
They demand that the applicant schedule single
crews to leave their place of residence or depots on Saturday
afternoon where they
are expected to deliver their cargo to the
client on a Monday. In the case of a double crew, they want to leave
their place of
residence or depot on a Sunday where they are expected
to deliver their cargo to the client on a Monday.
[24]
The applicant contends that this demand concerns
a substantive issue because the practical effect of it would be that
drivers earn
overtime rates on Saturday afternoons and evenings, and
double pay on Sundays, whereas currently the drivers will arrive at
the
destination depot by Saturday lunch time, and then earn a
subsistence allowance in terms of clause 36 of the Main Agreement
(but
not normal wages) over the course of the weekend, while waiting
to deliver the load to the client first thing on a Monday morning.
Rescheduling would thus involve a significant increase to the
applicant’s wage (overtime) bill.
[25]
In my view this demand does not concern a
substantive issue. It concerns a work practice with regard to the
specific operations
of the applicant – not the sector.
[26]
There is nothing on the papers to indicate that
the scheduling of trips is capable of being contractually regulated
at a sectoral
level or can be turned into a term capable of being
applied across the sectoral board.
[27]
On the applicant’s own version it is a work practice that falls
within management’s prerogative.
[27]
The fact that capitulation to the demand may
result in the drivers earning overtime on Saturday afternoons and
evenings, and double
pay on Sundays does not render it a substantive
issue involving costs. The demand is not about overtime. There is no
integral or
internal cost element in the demand itself.
It
does not amount to a demand for an amount of money.
[28]
Employees
may strike in support of a demand to change a work practice where the
strike has been processed in terms of
section 64(1)
, which was done
in this case.
[2]
The
third demand
[29]
The respondents demand that the applicant provide
food or food allowances to drivers when they work more than three
hours overtime.
[30]
This is clearly a substantive issue, which should
be dealt with in the centralised bargaining structure.
The
fourth demand
[31]
The demand is that off days for drivers must take
place in the course of their 5 or 6 day shift, and drivers must be
able to spend
their off day at home.
[32]
I agree with the applicant that this demand
concerns a substantive issue that is regulated by the Main Agreement,
which requires
that drivers’ scheduled shifts be continuous –
i.e. that the full contingent of days be worked continuously.
[33]
If the respondents want an amendment to the Main
Agreement, there is nothing stopping them from presenting such a
demand at the
next round of sectoral bargaining.
Are
the demands severable?
[34]
The demands are clearly
severable
and each can stand alone.
Conclusion
[35]
I have found that only one of the four demands is permissible. This,
however, will not render the intended strike unprotected.
[36]
The Constitutional Court in
Transport and Allied Workers Union of
South Africa obo MW Ngedle and 93 Others v Unitrans Fuel and Chemical
(Pty) Limited
[2016] ZACC 28
held:
[33] It is clear
that Waglay DJP held that if one or two of the demands being pursued
during a strike is permissible, that strike
in respect of this
permissible demand is lawful even if TAWUSA had added impermissible
demands severable from the permissible demands.
It follows that since
the Shell seven workers’ demand was lawful and severable from
the other demands, the addition of an
impermissible demand could not
render the Shell seven workers’ demand unlawful.
[34] The right
to strike in pursuit of a permissible demand does not evaporate upon
the addition of impermissible demands….
[35] …It
follows that when the permissible demand is extinguished following
the employer’s acceptance of such demand
the collective refusal
to work becomes unprotected.
[38] In this
case, I am satisfied that the introduction of the impermissible wage
cut demand in respect of the other workers did
not extinguish the
permissible wage cut demand…Therefore, the strike remained
protected by virtue of and within the ambit
of the Shell seven
workers’ wage cut demand.
[39] In the
result, the strike was protected from 28 October 2010 until 1
November 2010 when the employer capitulated to the [permissible
demand]… From that moment, the workers could not persist in
their conduct of withholding their labour as the other demands
were
impermissible demands and no longer enjoyed the protection provided
by the Shell seven workers’ wage cut demand. Their
actions in
participating in an unprotected strike from 1 November 2010 amounted
to misconduct.
[37]
In light of my findings that the second demand is
lawful and that the remaining demands are severable (each can stand
alone), the
applicant cannot succeed to have the strike interdicted.
Strike
notice
[38]
Considering that the strike notice which set out
the commencement date of the strike is now academic and the applicant
must be given
at least 48 hours’ notice of the commencement of
the strike, the respondents must issue a fresh notice of the
commencement
date of the strike in the event they decide to proceed
with the strike.
Costs
[39]
I do not deem it fair to issue a cost order
against the applicant. The respondents did not really assist in the
determination of
this matter, considering their opposition consisted
of one submission really, that the dispute concerns a matter of
mutual interest.
Order
[40]
In the premises, the following order is made:
1.
The application is dismissed with no order as to
costs.
___________________________
B.
Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
G A Fourie
Instructed
by:
Cliffe Dekker Hofmeyer Inc
For
the Respondents:
J H Groenewald
Instructed
by:
T.S Mnisi Attorneys
[1]
See:
Unitrans
Fuel and Chemical (Pty) Ltd v TAWUSA and another
[2011]
2 BLLR 153
(LAC);
Transport
and Allied Workers Union of South Africa obo MW Ngedle and 93 Others
v Unitrans Fuel and Chemical (Pty) Limited
[2016]
ZACC 28.
[2]
See
Intercape
Ferreira Mainliner (Pty) Ltd and another v NUMSA and others
(2015) ZALCCT 22 at paragraphs [13] to [17].