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[2017] ZALCJHB 496
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Unitrans Supply Chain Solutions (Pty) Ltd v Association of Mineworkers and Construction Union and Others (J651/17) [2017] ZALCJHB 496 (19 December 2017)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
Case no: J 651/17
In
the matter between:
UNITRANS
SUPPLY CHAIN
SOLUTIONS
(PTY) LTD
Applicant
and
ASSOCIATION
OF MINEWORKERS
AND
CONSTRUCTION UNION
First Respondent
INDIVIDUAL RESPONDENTS
Second to
Further Respondents
Heard
:
3 November 2017
Delivered
:
19 December 2017
Summary:
(Strike interdict – confirmation of the rule)
REASONS
FOR JUDGMENT
LAGRANGE
J
Introduction
[1]
This application concerns the return day of a strike interdict. A
rule nisi interdicting strike action had initially been issued
on 22
March 2017 and thereafter extended twice on 11 May 2017 and on 3
November 2017.
[2]
On 19 December 2017, I found that the refusal of the applicant’s
drivers performing delivery duties for Pick n Pay to
assist Pick n
Pay staff with the offloading of goods at Pick n Pay stores
constitutes unprotected strike action and confirmed the
rule. No
order was made as to costs. Below are my reasons for my findings.
Narrative
[3]
On 20 March 2017, the first respondent (‘ AMCU’) sent the
following letter to the applicant (‘Unitrans’):
“
SUBJECT: WITHDRAWAL OF
ADDITIONAL DUTIES (LOADING AND OFFLOADING)
Dear Sirs
1. Kindly take note that just come to
the union that its members employed as drivers at your workplace
performing duties beyond
the Road Freight [Main] Collective Agreement
and the recent SOP prescribed for drivers.
2. During a recent consultation with
the drivers’ representatives at the AMCU Regional offices in
Carltonville, it was revealed
that the drivers of forced or
required to offload goods at the stores
.
3. Kindly be advised that
this
practice is inconsistent with both the Main Collective Agreement
which describes the duties of a driver and those of a general
worker
.
4. Take further notice that the SOP
further prescribes the administrative duties of the driver in as far
as securing stock is concerned,
therefore, the union does not have a
problem with such administrative duties, save where they are not
prescribed by the Main Collective
Agreement.
5.
In light of the SOP, the duties
of the drivers are crisp, and do not include loading and offloading
.
6.
Take note that SOP is considered
a collective agreement between the employer and employees, therefore
binding on the parties
.
7. The
employer cannot arbitrarily
or unilaterally change or introduce, policies and regulations without
consultati
on.
8.
Section 64 (4) of the Act makes
it clear that a dispute about a unilateral change to terms conditions
of employment can give rise
to an employee’s right to strike in
terms of section 64 (1) (h) of the Act
.
9. In Monyela & others v Bruce
Jacobs t/a LV Construction (1998) 19 ILJ 75 (LC), Zondo J (as he then
was) stated the following
at 82J-83A: “It is clear that
employees are given the right to strike over a dispute about a
unilateral change of terms and
conditions of employment despite it
being a rights dispute”.
10. Kindly note that
AMCU hereby
tenders its 48 hour notice to Unitrans to restore the main collective
agreement and the SOP status quo, failure to comply
with this notice
result in the drivers continuing with the duties of driving and the
duties as per SOP, except the duties of offloading
in this case, this
will not constitute withdrawal of duties or strike
.
11. Take further notice that
should
the above conduct be found to be a strike, it will be a strike in
terms of S 64 (4)(1)(a) and S 64(4)
of the LRA.
…”
(Emphasis added)
At
this juncture, it should be noted that in terms of paragraphs 6 and
10 of the letter, although the union referred to the main
collective
agreement, it was clearly of the view that drivers were obliged to
comply with the applicable SOP and its demand related
to restoration
of what it believed was the applicable SOP.
[4]
The pertinent provisions of section 64 of the Labour Relations Act,
66 of 1995 (‘ the LRA’) read:
64. Right to strike and recourse to
lock out
(1)
Every employee has the right to strike and every employer
has
recourse to lock out if-
(a)
the issue in dispute has been referred to a council or to
the
Commission as required by this Act, and-
(i) a certificate stating that the
dispute remains unresolved has been issued; or
(ii)
a period of 30 days, or any
extension of that period agreed to between the parties to the
dispute, has elapsed since the referral
was received by the council
or the Commission
; and after that-
(b)
in the case of a proposed strike, at least 48 hours' notice
of the
commencement of the strike, in writing, has been given to the
employer, unless-
(i) the issue in dispute relates
to a collective agreement to be concluded in a council, in which
case, notice must have been
given to that council; or
(ii) the employer is a member of an
employers' organisation that is a party to the dispute, in which
case, notice must have been
given to that employers' organisation; or
(c)
in the case of a proposed lock-out, at least 48 hours' notice
of the
commencement of the lock-out, in writing, has been given to any trade
union that is a party to the dispute, or, if there
is no such trade
union, to the employees, unless the issue in dispute relates to a
collective agreement to be concluded in a council,
in which case,
notice must have been given to that council; or
(d)
the case of a proposed strike or lock-out where the State
is the
employer, at least seven days' notice of the commencement of the
strike or lock-out has been given to the parties contemplated
in
paragraphs (b) and (c).
…
(3)
The requirements of subsection
(1) do not apply to a strike
or a lock-out if-
(a)
the parties to the dispute are members of a council, and the
dispute
has been dealt with by that council in accordance with its
constitution;
(b)
the strike or lock-out conforms with the procedures in a collective
agreement;
(c)
the employees strike in response to a lock-out by their employer
that
does not comply with the provisions of this Chapter;
(d)
the employer locks out its employees in response to their
taking part
in a strike that does not conform with the provisions of this
Chapter; or
(e)
the employer fails to comply with the requirements of subsections
(4) and (5).
(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.”
(Emphasis added)
[5]
It is not in dispute that, despite the union specifically couching
the proposed withdrawal of offloading work by Unitrans’s
drivers as being in compliance with the SOP and the Main Agreement,
it did not refer the dispute to the CCMA or a bargaining council
and
therefore did not comply with the requirements of section 64 (4) even
though it gave the employer 48 hours’ notice to
reinstate what
it alleged the lawful duties of drivers were. Accordingly, Unitrans
contends that the union could not rely on that
provision even if it
was correct that drivers were being required to do tasks outside of
the scope of their terms and conditions
of employment (which it
maintains they were not).
[6]
Secondly, Unitrans contends that because drivers were not been asked
to perform tasks outside their conditions of employment
as described
in the SOP and the Main Agreement the planned action by AMCU’s
members could not constitute the type of
status quo
action
contemplated by section 64 (4) and would amount to strike action,
which was unprotected.
[7]
In relation to the applicable SOP, it appears to be common cause that
Unitrans’s SOP forms part of Unitrans’s drivers’
terms and conditions of employment. Where the parties differ is on
the applicable SOP. Prior to December 2016 the relevant portion
of
the SOP titled “Unitrans Foods PnP – Perishables Driver
SOP” under the subheading “When you arrive at
the store
you are ready to adhere to the following” read:
“
7.
Once the receiving (
sic
) are ready to receive you,
you are
responsible to move all the pallets or Roll tainers onto the tail
lift of the vehicle
, at which point the receiving will take
responsibility for the stock and move it into the store.”
(Original
emphasis)
[8]
In December 2016 a new procedure was introduced which required
drivers to check a freight list confirming that stock offloaded
was
the stock recorded on the invoice. A data analyst was given
permission to include this change in SOP. However in addition he
added the following provision:
“
Delivery of products
1 …
2. Drivers are to ensure that the
receiving manager verifies and breaks the steel on the vehicle, and
there after the driver opens
the doors. The store staff then climbs
into the vehicle and moves the HUs
[1]
onto the tail lift, and the driver then lowers the tail lift ground
level.”
[9]
This amendment was issued to training officers and shop stewards on
the site without being verified by contract managers. Within
24
hours, the erroneous addition was removed. However, drivers and AMCU
maintain that the amendment is applicable and the drivers
offloading
duties are restricted to what is set out in paragraph 2 quoted above.
It was argued that the erroneous amendment was
never withdrawn but
that argument is at odds with the undisputed evidence that a meeting
was called with shop stewards advising
them of the error, and that
the amendment was retracted and a correct version reissued. I am
satisfied that, on the papers, the
applicable SOP is the one quoted
in paragraph 7 above and accordingly to the extent that there might
temporarily have been a variation
in the drivers duties in terms of
the erroneous notice, that variation was no longer applicable when
the union issued its letter
of demand and accordingly could not lay
the basis for action under section 64 (4), because they would not be
complying with their
contractual obligations by insisting on
performing their duties in accordance with erroneously issued notice
which was promptly
withdrawn.
[10]
As such, performing in accordance with the duties described in the
erroneously issued December notice would entail partial
non-compliance with the terms and conditions of employment to compel
the employer to adhere to the terms of the withdrawn SOP.
This would
amount to a partial refusal to work to compel Unitrans give effect to
the withdrawn SOP provision and would constitute
strike action. For
this reason also the action would be unprotected strike action
because there was no referral of an interest
dispute under section 64
(1). For that reason alone, the strike could not be protected even if
there was no other procedural bar
to union making the demand, such as
the existence of provisions in the main agreement regulating
negotiations in the sector.
[11]
In relation to the last mentioned aspect, Unitrans further contends
that as a dispute of interest, it is affected by clause
57 of the
main agreement, which stipulates that the bargaining Council is the
exclusive forum negotiating substantive issues. Unitrans
argues that
the issue in dispute is a substantive one, because if it were to
concede to the demand it would have to make alternative
arrangements
for offloading vehicles. Matters affecting costs or wage packets are
defined as substantive matters in the main agreement.
Consequently,
the union cannot insist that this issue falls within the ambit of
non-substantive negotiations on operating procedures,
on which
parties are entitled to negotiate outside the bargaining Council in
terms of clause 57 (2) of the main agreement.
[12]
In my view, any demand to reduce the scope of an employee’s
duties would ordinarily necessarily entail that the work
must be done
by another person or device which must be paid for and consequently
would have cost implications. As such, the issue
is one that ought to
be negotiated at the bargaining Council and an attempt to compel
negotiations on the issue outside that forum
to strike action, would
be in breach of that provision and therefore would be unprotected in
terms of section 65 (3) (a) (i) of
the LRA which provides:
“
(3)
Subject to a collective agreement, no person may take part in a
strike
or a lock-out or in any conduct in contemplation or
furtherance of a strike or lock-out-
(a)
if that person is bound by-
(i) any arbitration award or
collective agreement that regulates the issue in dispute;…”
[13]
Lastly, insofar as there is any conflict between the duties performed
by drivers and the main agreement, Unitrans submits that
this is a
matter which constitutes a dispute about the interpretation of the
main agreement and accordingly, it is not for the
court to determine
whether the duties it’s drivers are required to perform fall
within the terms and conditions of a driver
under the main agreement.
Rather, that is a dispute which must be determined by arbitration
under the provisions of s 24(1) of
the LRA. To that end, it had
referred such a dispute to the bargaining Council towards the latter
part of 2017. I agree that
the court cannot usurp that
function, which it would be doing if it made a determination on that
issue at this stage of granting
final relief. In any event, as no
referral was made under s 64(4) the union is not entitled to embark
on corrective action on that
basis either.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant
A Franklin, SC assisted by G Fourie instructed by Cliff Dekker Inc.
For
the Respondent:
V Masinga of AMCU
[1]
At the hearing, it was common cause that this is an acronym for a
motorised unit for moving pallets