About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 444
|
|
South African Postal Workers Union v South African Post Office (SOC) Limited (J2871/17) [2017] ZALCJHB 444 (28 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 2871/17
In
the matter between:
THE SOUTH AFRICAN POSTAL WORKERS
UNION
Applicant
and
THE SOUTH AFRICAN POST OFFICE
(SOC) LIMITED
Respondent
Heard:
16 November 2017
Delivered:
28 November 2017
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction:
[1]
South African Post Office (SOC) Limited (SAPO) issued a notice on
31 November 2017 informing the applicant, the South
African
Postal Workers Union (SAPWU) of its intention to terminate the
recognition agreement entered into between the parties on
14 February 2013 (as amended on 30 May 2014). SAPWU
approached this Court on an urgent basis seeking an order to set
aside that notice.
[2]
SAPWU further seeks a declaratory order preserving its status and
bargaining rights within the bargaining unit of SAPO, pending
the
final determination of the dispute referred to the Commission for
Conciliation Mediation and Arbitration (CCMA).
Background:
[3]
The purpose of the recognition
agreement as per its clause 1.1 is
inter
alia,
to establish
harmonious industrial relations between the parties to the
recognition agreement, and to facilitate orderly resolution
of
disputes, grievances and general complaints. The recognition
agreement stipulates that any other issue not contemplated in the
recognition agreement shall be dealt with in terms of the provisions
of the Labour Relations Act (LRA)
[1]
and the Basic Conditions of Employment Act (BCEA).
[2]
[4]
In terms of the provisions of clause 1.5, SAPO undertook to grant any
union organisational rights under sections 12, 13, 14
and 15 of the
LRA, that can demonstrate that it is sufficiently representative, or
which has a membership of less than 50% plus
one (1) but more than
35% plus one (1) in the bargaining unit.
[5]
It terms of clause 3.1, the parties recognised that SAPWU had
sufficient representation within the bargaining unit. The bargaining
unit is defined by the recognition agreement as shall mean all
permanent employees of SAPO on the salary scale A1 up to C5, with
the
exclusion of employees who are on a total cost to company. SAPWU’s
recognition in terms of the agreement was dependent
on it maintaining
a membership threshold of 35% plus one (1).
[6]
In terms of the provisions of clause 4.1, the recognition agreement
commenced on 20 February 2013, and continued for
an
indefinite period. SAPO however, in terms of the provisions of clause
4.2 has a right to terminate the agreement by at giving
at least a 90
days’ written notice period to the Union of its’
intention to do so. In the notice, SAPO must allege
that the Union no
longer meets its 35% plus one (1) threshold of membership within the
bargaining unit. During the notice period,
the Union must establish
that it has the requisite representation threshold. In terms of the
provisions of clause 4.3, should the
Union fail to establish that it
has maintained a representation of 35% plus one (1) during the notice
period, it shall cease to
enjoy the rights as contained in the
recognition agreement with immediate effect from end of business day
after the expiration
of the notice period.
[7]
The recognition agreement contains a built-in dispute resolution
procedure. Clause 14 stipulates that should the parties to
the
agreement fail to reach consensus on the interpretation of the
recognition agreement, the aggrieved party may declare
a dispute in
writing to the other party. The party to whom the notice has been
issued, shall within five (5) days from the receipt
of the notice of
dispute, offer a reply thereto in writing setting out the proposed
remedies, alternatives and proposed terms of
settlement. The parties
shall thereafter convene a meeting within 10 business days of receipt
of the reply. If the parties fail
to resolve the dispute, they may
agree, in terms of the provisions of clause 14.5, to refer the
matter for private mediation
and arbitration, or refer the dispute in
terms of the relevant dispute resolution mechanism in terms of the
LRA.
[8]
SAPO also has recognition agreements with two other unions operating
within the bargaining unit, viz, Communication Workers
Union (CWU),
and the Democratic Postal and Communication Union (DEPACU).
[9]
The background of the dispute between the parties, which does not
appear to be seriously disputed is as follows:
9.1.
During 2016, a dispute ensued in respect of the verification of
SAPWU’s membership.
That dispute was in respect of stop order
payments for the period between December 2015 and March 2016.
The dispute was
referred to the CCMA under case number GAJB 8223-16.
The parties concluded the terms of reference, which included that the
CCMA
would conduct a verification exercise, and to advise the parties
of the date and time of the verification process.
9.2.
On 30 November 2016, the recognised trade unions attended a
meeting with management
of SAPO. During the meeting, the trade unions
requested that the membership status of each recognised trade union
be shared amongst
each other. In response to the request, SAPO on
14 December 2016 sent written communication to all
recognised trade unions.
From the letter, it became apparent that
none of the recognised unions met the threshold of 35% (plus one) for
sufficient recognition.
9.3.
It was established that CWU enjoyed 29% representation, SAPWU enjoyed
22% representation,
and DEPACU enjoyed 19% representation. In the
same letter, SAPO proposed, in an event of a dispute arising from the
information
provided relating to trade union membership status, that
a membership audit should be undertaken through an independent
auditing
firm.
9.4.
SAPWU according to SAPO, did not respond to the letter of
14 December 2016. It
further did not dispute the contention
that its membership stood at 22%, nor did it refer a dispute to any
dispute resolution forum.
9.5.
During April 2017, SAPO attempted to conclude a new recognition
agreement with the
recognised trade unions including SAPWU. These
attempts however did not yield positive results and, the old
recognition agreement
remained in force.
9.6.
On 9 June 2017, SAPO dispatched a letter to the Secretary
General of SAPWU, stating
the following;
“
The
South African Post Office SOC Limited wishes to inform you that in
terms of its records, the South African Postal Workers’
Union
does not have a representative status of 35% = 1 within the
bargaining unit. [The] South African Postal Workers’ Union’s
current membership as at May 2017 is at 23% within the Bargaining
Unit.
The
SA Post Office SOC Limited invokes clause 4.2 of the Recognition
Agreement between the South African Workers’ Union by
serving
you in writing with the notice of intention to terminate this
agreement, giving 90 days to establish that you have a representation
status of 35% = 1 (thirty five percent plus one) within the
Bargaining Unit.
If the trade union is
unable to prove that it is sufficiently representative by 17 October
2017, then the recognition agreement
terminates on 18 October 2017.”
9.7.
SAPWU replied in writing on 21 June 2017, and disputed the
SAPO’s numbers.
It further stated that there was a pending
dispute before the CCMA in respect of an alleged unilateral amendment
to the recognition
agreement by the post office. The letter
inter
alia
reads as follows:
“…
2.
Not only
does our client vehemently deny that your aforesaid contention
are
correct, but you are well aware that there is currently still a
pending dispute at the CCMA pertaining to inter alia the unilateral
amendment by you to the recognition agreement and the stop order
verification process.
3.
As such,
your contentions pertaining to our client’s representativeness
is seriously questioned and disputed.
4.
In the circumstance, you are requested to in writing withdraw
your
aforementioned letter within 7 days, failing which our client will
approach the Labour Court for the relevant relief and seek
a punitive
cost order against you.
…”
9.8.
On 18 October 2017, a letter titled “
Termination
of Recognition Agreement”
was addressed to SAPWU, wherein
SAPO reminded it that it had been served with an intention to
terminate the recognition agreement
on 9 June 2017, and had
failed to utilise the notice period of 90 days to establish its
representativeness. The notice
period accordingly expired on
17 October 2017. SAPO therefore undertook to determine the
SAPWU’ representativeness
in the bargaining unit, and to
thereafter communicate the numbers to it.
9.9.
On 24 October 2017, SAPWU’s attorneys of record sent
a letter to SAPO,
wherein it was disputed that it did not meet the
35% plus one (1) threshold within the bargaining unit. Moreover, it
was contended
that on a proper reading of the letter dated
18 October 2017, SAPO did not terminate the recognition
agreement, but had
simply proceeded with the reconciliation of the
membership numbers.
9.10. SAPWU in the
same letter purported to declare a dispute in terms of the provisions
of clause 14 of the agreement
in respect of the membership numbers,
the method of computing the numbers and the transparency of the
verification process. It
further requested an undertaking from SAPO,
that it would retain its rights in terms of the recognition agreement
pending the final
determination of the dispute at the CCMA or this
Court.
9.11. In a letter
dated 31 October 2017 from SAPO titled “
Confirmation
of Membership and Termination of Recognition Agreement”
,
the termination of the recognition agreement concluded with SAPWU was
confirmed. The letter
inter alia
stated that:
“…
We
can now confirm as at 17 October 2017, your membership
stood at 24% (3720 members) you therefore do not meet the required
threshold of 35% + 1 (thirty five percent plus one) as per notice and
as such your Recognition agreement with SA Post Office terminates
as
per notice period.”
The
submissions:
[10]
Obviously aggrieved by the termination agreement, SAPWU approached
this Court on urgent basis on 3 November 2017,
setting down
the matter for a hearing on 16 November 2017. It contends
that it has met the minimum required representative
status of 35% +1,
and that SAPO had to date, not been able to substantiate its
allegations regarding its numbers.
[11]
SAPWU bases its claim of a
prima facie
right or alternatively
a clear right on the recognition agreement, which it contends allows
it to raise any dispute arising from
that agreement. It further
contends that a well-grounded apprehension of irreparable harm exists
in the event that relief is not
granted in that it would not be able
to exercise any rights conferred on it despite it being the majority
union in the bargaining
unit, and thus be prevented from representing
or assisting its members within the respondent. SAPWU further claims
that it has
no suitable remedy, and that the balance of convenience
favoured it in view of the prejudice and/irreparable harm it stands
to
suffer should relief not be granted.
Evaluation:
[12]
SAPO opposed the application on
a number of grounds, chief of which was that there was no basis to
treat the application as urgent.
The principles applicable to urgent
applications are trite. The provisions of Rule 8 in terms of which
SAPWU approached the court
for its urgent intervention have been
interpreted to mean that
a
party seeking urgent relief must adequately and in detail, set out in
the founding affidavit, the reasons for the urgency, the
circumstances which render the matter urgent, and the reasons why
substantial redress cannot be obtained at a hearing in due cause.
The
degree to which the ordinary applicable rules should be relaxed is
dependent on the degree of urgency, and applicant is not
entitled to
rely on urgency that is self-created when seeking deviation from the
rules
[3]
.
[13]
A fundamental requirement in
urgent applications is that an applicant seeking urgent relief must
approach the court with the necessary
haste, or as soon as the cause
of discontentment arises. This is so in that a determination of
whether a matter is urgent is linked
to the haste with which the
Court was approached for relief. Thus, if a party is hesitant, the
urgency equally dissipates. As it
was stated in
University
of the Western Cape Academic Staff & others v University of the
Western Cape
[4]
,
the more immediate the
reaction by the litigant to remedy the situation by way of
instituting litigation, the better it is for establishing
urgency.
[14]
Applying the above principles to the facts of this
case, and to the extent that it can be established that SAPWU has not
set out
in its founding affidavit the grounds upon which this
application should be treated as urgent, or has not acted with the
necessary
haste in approaching the court, it follows that the matter
ought to be struck off the roll.
[15]
In the founding affidavit, SAPWU stated that the matter is urgent on
the basis that the situation it found itself in justified
the
urgency, and that it had taken steps immediately following the
failure of SAPO to respond to disputes raised and/or the final
termination letter of 31 October 2017. It further claimed that its
existence was at stake, and that urgency was of the essence
since it
cannot obtain substantial redress in the normal course.
[16]
It was common cause that SAPWU was made aware of the intention to
terminate the recognition agreement as far back as 9 June 2017,
when a notice was sent to it in that regard. In terms of that notice,
and in accordance with the provisions of clause 4.2 of the
agreement,
SAPWU was afforded 90 days within which to establish that it has a
representative status of 35%+1 within the bargaining
unit.
[17]
In its replying affidavit, SAPWU nonetheless claimed that the urgency
arose once it followed through on the letter of 9 June 2017,
whilst the actual process of termination commenced only on
18 October 2017. It had further contended that SAPO did not
mention the fact that it had on at least three separate occasions
since October 2015, invoked the provisions of clause 4.2 of the
recognition agreement by alleging that it (SAPWU) did not meet the
threshold. In every such instance, the correctness of the computation
and the numbers was disputed, and SAPO had abandoned its stance and/
or failed to take further steps to give effect to the notice(s).
[18]
It further contended that considering that SAPO had a history of
invoking the provisions of clause 4.2 and the failing to act
upon its
previous notice(s), it had once again on 21 June 2017 disputed the
correctness of the allegations based on its own numbers
and lack of
transparency and the failure to substantiate the allegations that it
no longer met the threshold. SAPWU accordingly
in the light of this
history had expected that the SAPO would once again reconsider its
allegations, conclude that its numbers
were incorrect, and abandon
the notice following the dispute raised in the letter dated
21 June 2017. According to SAPWU,
it would have been
premature for it to approach the Court immediately after 18 October
2017, as it had disputed SAPO’s numbers.
[19]
There are inherent difficulties with SAPWU’s case on urgency,
and it is my view that it has not demonstrated to the Court
why the
application should not be struck off the roll. My conclusions in this
regard are fortified by the following;
23.1
Once SAPWU had accepted that the urgency arose on 9 June 2017, it was
expected
of it to take the necessary means to refute the allegations
that it no longer met the threshold for continued recognition. It
instead
merely denied the contentions that it was no longer
representative through its attorneys of record, demanding that SAPO
should
cease with the intended cancellation, failing which an urgent
application would be brought. This response was some 11 days later
since the letter of 9 June 2017.
23.2
SAPWU’s view was that since SAPO had in the past made similar
threats
and not followed them through, there was no reason to believe
that it would carry out the threat. Any Union concerned about its
very existence would take such threats seriously, irrespective of
whether they were carried out in the past or not. As correctly
submitted on behalf of SAPO, the notice issued on 9 June 2017 was a
fresh notice, and it was not for SAPWU to not bother to take
steps to
prove that SAPO had its numbers wrong, or to hold the view that the
threats would not be carried out.
23.3
When SAPO did not respond to SAPWU’s attorneys’ letter,
the message
according to the submissions made on behalf of SAPO was
that there was clearly no intention to comply with the demand to
cease
and desist from the intention to terminate the agreement. How
SAPWU could have construed SAPO’s silence after its attorneys
of record letter of 21 June 2017 that the termination would not be
carried out is beyond comprehension.
23.4
Other than the SAPWU’s attorneys of record’s response on
21 June
2017, in which it had also threatened to approach the court
on an urgent basis, SAPWU only realised on 18 October 2017, and after
the 90-days period that the SAPO’s threats to terminate the
agreement were real. In its letter confirming termination of
the
agreement, SAPO also advised SAPWU that it was in the process of
reconciling its closing member account and that the recognition
agreement was to be terminated.
23.5
Even then, SAPWU through its attorneys only reacted on 24 October
2017, raising
a variety of issues including that SAPO’s letter
of 18 October 2017 could not have been confirmation of the
termination,
and was merely viewed as a reconciliation of the Union’s
membership. SAPWU again disputed the numbers relied upon by SAPO
in
wishing to terminate the agreement, without providing its own numbers
to refute the allegations.
23.6
It was only in the letter of 24 October 2017 that SAPWU declared a
dispute
in terms of the provisions of clause 14 of the agreement, and
further demanded written confirmation and/or undertaking that SAPWU
continued to enjoy recognition, pending the finalisation of the
dispute declared, and further processes at the CCMA or this Court.
SAPU was given until 27 October 2017 to respond. In that letter,
again a threat was made that SAPWU would approach the court on
an
urgent basis should the required confirmation or undertaking not be
forthcoming.
23.7
SAPO only approached the court with this application on 3 November
2017, some
nine days after its second threat to do so. I agree with
the submissions made on behalf of SAPO that the urgency claimed in
this
case is clearly self-created. If SAPWU was serious about
disputing the numbers that SAPO relied upon, it had 90 days within
which
to challenge those numbers and had instead simply made a bare
denial and continued as if there was no threat to its very existence.
No urgency was shown on its part in dealing with this threat between
9 June 2017 and 3 November 2017.
23.8
All that SAPWU needed to do to the extent that it disputed SAPO’s
figures
from 9 June 2017, was to produce its own figures, and where
there was still a dispute, to declare a dispute in accordance with
the provisions of clause 14 of the then existing agreement. Where the
dispute could not be resolved, SAPWU still had an option to
refer it
in terms of clause 14.5 to private mediation/arbitration, or to the
CCMA. As correctly submitted on behalf of SAPO, SAPWU
seeks the
assistance of the Court in circumstances where it had adopted a
passive approach to the available internal dispute resolution
mechanisms available in terms of the agreement.
23.9
It was correctly submitted on behalf of SAPWU that it is not for the
court
to determine whether it remained representative or not. This
was after it was raised with it that it had even failed in its
application
to demonstrate that it at least met the threshold. The
difficulty with SAPWU’s case is that to the extent that it had
contended
that its clear or
prima facie
right was grounded in
the agreement, that right cannot by all accounts be established by a
mere denial, and thus a basis for that
right ought to have been laid
in its founding papers, by showing that indeed the threshold was
made,
albeit
on a
prima facie
basis.
23.10
Furthermore, by virtue of the provisions of clause 4.3 of the
recognition agreement, once it
is terminated in accordance with the
provisions of clause 4.2, and once the union has not established that
it met the threshold
within the 90-day period, it cannot exercise any
rights conferred in terms of the agreement. In this case, and as
already indicated,
SAPWU failed to take any steps between 9 June and
18 October 2017 to demonstrate that it met the threshold. It cannot
therefore
claim urgency on a right that no longer exists in view of
its belated declaration of a dispute on 24 October 2017. To the
extent
that it was submitted on behalf of SAPWU that the
prima
facie
right was grounded in the provisions of section 24 of the
LRA, that is an issue that can be dealt with within the context of
the
alternative remedy available to it at the CCMA.
23.11 It
is further trite that urgent relief will be refused in instances
where the applicant has
suitable alternative remedies. SAPWU’s
declaration of a dispute in its letter of 24 October 2017, and long
after the 90-day
grace period came to an end was clearly belated as
already indicated, and it cannot now claim to be prejudiced when it
is its very
dilatory conduct that clearly contributed to the
conundrum it finds itself in. SAPWU has an alternative remedy in the
form of dispute
resolution mechanisms under the LRA, and there is
therefore no basis for the Court to intervene on an urgent basis.
[20]
In the light of the above conclusions, it follows that the
application ought to be struck off the roll for lack of urgency.
I
have further had regard to the requirements of law and fairness, and
I am not satisfied that a cost order is warranted in this
case.
Order:
[21]
In the premises, the following order is made;
1.
The Applicant’s application is struck-off from the roll
for
lack of urgency;
2.
There is no order as to costs.
____________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Mr. J Nysschens of
Johan Nysschens Attorneys
For
the Respondent:
Adv. M. Sibanda
Instructed
by:
Bowman Gilfillan Incorporated
[1]
Act 66 of 1995, as amended
[2]
Act 75 of 1997, as amended
[3]
Jiba v
Minister: Department of Justice and Constitutional Development and
Others 2010) 31 ILJ 112
at
para 18. See also
Mimmo’s
Franchising CC v
Spiro,
Harry David (JA58/00)
[2002] ZALAC 7
(29 March 2002)
at
para 29 where it was held that;
“
A
party applying for relief on an urgent basis must in the founding
papers set out the reasons for urgency; state why urgent relief
is
necessary; and also set out why the requirements of the rules of
court have not been complied with, if that is the case (sub-rules
8(2)(a) and (b)). The purpose of those sub-rules is self-evident.
Considerations of fairness dictate that litigious matters should
be
heard in more or less the sequence in which they have become ripe
for hearing. If it were to be otherwise, it will bring about
additional delays in the hearing of matters already awaiting their
turn and result in self-evident unfairness and the potential
for
prejudice. Sub-rule 8(2) requires an applicant to place such facts
before the court as would be sufficient to enable it to
exercise a
judicial discretion in regard to whether sufficient and satisfactory
grounds have been shown to exist to justify giving
the particular
matter preference. Urgency usually entails a deviation from the
forms, time-limits and procedures prescribed by
the rules or a
departure from the established sitting times of the court (Cf: Luna
Meubel Vervaardigers (Edms) Bpk v Makin
and Another (t/a Makin’s
Furniture Manufacturers) 1977(4) SA 135 (W) at 136 H). The
factors that are usually taken
into account in the exercise of such
a discretion are a) any prejudice that an applicant might suffer if
the application had
to be dealt with in the ordinary course; b) any
prejudice other parties awaiting the hearing of their matters might
suffer if
the particular application were to be given preference;
and c) any prejudice that the respondent might suffer as a result of
any deviation from the prescribed forms and procedures, the
abridgement of any prescribed time-limits and an accelleration of
the hearing (See: IL & B Marcow Caterers (Pty) Ltd v
Greatermans SA Ltd and Another: Aroma Inn (Pty) Ltd v Hypermarkets
(Pty) Ltd and Another 1981(4) SA 108 (C) at 112 H – 113
A; 114 A – B). The provisions of Rule 8 clearly
apply to all urgent applications, irrespective of whether the relief
claimed is of an interim or final nature”.
[4]
(1999)
20 ILJ 1300 (LC)
at
para 15