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[2017] ZALCPE 34
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National Tertiary Education Fund and Another v Nelson Mandela University (PS 74/17) [2017] ZALCPE 34; [2018] 4 BLLR 392 (LC) (19 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
Reportable
CASE
NO: PS 74/17
In
the matter between
THE
NATIONAL TERTIARY EDUCATION UNION
First Applicant
NATIONAL
EDUCATION, HEALTH AND
ALLIED
WORKERS UNION
Second Applicant
and
NELSON
MANDELA UNIVERSITY
Respondent
Heard:
15 December 2017
Delivered:
19 December 2017
Summary:
All the circumstances of a case have to be considered in determining
reasonable notice for the termination of a collective
agreement of an
indefinite duration and an employer may not rely on its delay to
justify short notice for the cancellation of a
collective agreement.
JUDGMENT
Lallie,
J
Introduction
[1]
The applicant brought this urgent application for an order
mainly on the following terms:
"2
Declaring that:
2.1
the notice of termination of the Conditions of Service and Benefits
Collective Agreement ("the Agreement") given by
the
respondent on 27 November 2017 is in breach the requirements of
section 23 (4) of the Labour Relations Act 66 of the 1995 ("LRA")
and accordingly unlawful and of no force and effect;
2.2
the Agreement and all the Applicant's rights flowing therefrom endure
unless and until the Respondent terminates the agreement
after giving
such notice as the Honourable Court deems reasonable;
2.3
unless and until the Agreement is cancelled after the giving of the
notice stipulated in Prayer 2.2 above, it remains of full
force and
effect.
3.
Directing the Respondent to withdraw the notice purporting to
terminate the Agreement with effect from 31 December 2017.
(a)
Directing that the orders sought in players 2and 3 above to be final
in effect".
[2]
The application is opposed by the respondent which challenged
both the non joinder of the National Education Health and Allied
Workers Union (NEHAWU), a trade union which is also a party to the
Conditions of Service and Benefits Collective Agreement ("the
COS/ collective agreement") and the urgency of this application.
The former objection was withdrawn after NEHAWU applied to
join as a
party on the basis that it is equally affected by the notice of the
termination of the COS. The COS is a tripartite collective
agreement
whose parties are the respondent (NMU), as the employer and the
applicant and NEHAWU, the trade unions which represent
organised
labour at NMU.
[3]
The respondent challenged the urgency of this application on
the grounds that the urgency is self created. The respondent
submitted
that the applicant received the notice of the termination
of the COS on 27 November 2017. In terms of the notice the COS would
be terminated effect from 31 December 2017. The applicant served the
application on the respondent on 11 December 2017 and gave
the
respondent until 17h00 on 13 December 2017 to file opposing papers.
The time frames set by the applicant prejudiced the respondent
by
affording an unreasonably short period within which to file the
answering affidavit. By not filing the application earlier,
the
applicant created the urgency it sought to rely on justifying the
dismissal of the application. In the founding affidavit the
applicant
denied the respondent's assertion and submitted that the cancellation
of the COS would terminate the 2016/17 negotiating
cycle summarily
while a number of issues pertaining to wages, salaries and conditions
of service are still on the table.
[4]
The applicant amplified its grounds of urgency in the replying
affidavit. The respondent objected to the introduction of the
amplified
grounds on the basis that the applicant should have stated
all the grounds for urgency in the founding affidavit. I have
considered
the arguments on behalf of both parties on the issue of
urgency. On 27 November 2017 the respondent gave the applicant notice
of
the termination of the COS with effect from 31 December 2017. The
notice period is 26 court days. The respondent therefore afforded
the
applicant 26 court days within which to launch this application. On 6
December 2017 the applicant's attorney addressed a letter
to the
respondent in which the withdrawal of the termination notice was
demanded by the following day failing which this application
would be
brought. On the same day the respondent's legal adviser phoned the
applicants attorney and the issue was discussed. On
7 December 2017
the respondent intimated its refusal to withdraw the notice and on 11
December 2017 this application was served
on the respondent. The 26
days the applicant had to launch this application coupled with the
attempts to resolve the dispute between
the parties before this court
was approached rendered the period the applicant gave the respondent
to file the answering affidavit
reasonable. The conclusion that the
applicant created the urgency is untenable. The applicant instead
reacted to the urgency that
was created by the respondent. The
averments made by the applicant in the founding affidavit have
sufficiently proved the urgency
of this application.
[5]
The factual background to this dispute is that after the
January 2005 merger of the Port Elizabeth Technicon, Vista University
and
the University of Port Elizabeth to form the Nelson Mandela
Metropolitan University which was renamed the NMU, the respondent as
the employer entered into a recognition agreement with the respondent
on 5 May 2006. The respondent, applicant and NEHAWU entered
into the
COS on 16 April 2012 with a view to finalise conditions of service in
respect of conditions of service negotiations in
2011/2012. The COS
is binding on all permanent employees of the NMU in grades 5 to 18
including those employed after the COS had
been signed. The
conditions of employment provided for in the COS include acting
allowances, relocation allowances, secondment
policies, housing
benefits, retirement benefits, medical aid benefits, study benefit,
long service awards personal protective equipment,
inter campus
transport, research leave, sabbatical leave, maternity leave, sick
leave, study leave, and family responsibility.
They are incorporated
in the contracts of employment of employees in grades 5 to18.
[6]
Clause 1 of the COS records its duration as follows:
"
DURATION
1.1
This Agreement will remain valid from the date of approval by Council
with no predefined expiry date.
1.2
The review of this Agreement must be conducted and finalised as part
of salary negotiations and in terms of the NEGOTIATING
FORUM
AGREEMENT; this applies equally to single-and multi-year salary
agreements.
1.3
This Agreement constitutes a living document to be reviewed as part
of salary negotiations and will serve as such until, by
mutual
agreement and as part of a negotiated settlement between unions and
Management, any change is approved by Council".
[7]
In implementing of the COS and in line with the recognition
agreement, the parties would raise issue before the commencement of
annual salary negotiations. Those issues would form the subject
matter of further negotiations and review. The applicant submitted
that the respondent reneged on its undertakings in terms of the COS
and agreements which formed part of the review process. The
conduct
led the applicant to refer 2 disputes to the NMU Ombud who on both
occasions found the NMU wanting. The applicant further
referred
disputes against the respondent to the CCMA. Those disputes have not
yet been resolved. The respondent denied having breached
the COS and
submitted that disputes that were referred to the Ombud pertained to
the proper interpretation of the calculation of
the wages formula on
the COS. Both the Ombud and the CCMA, so argued respondent, are
alternative remedies available to the applicant.
[8]
The applicant submitted that after the 2 disputes were
resolved by the Ombud, it came to its attention on 23 June 2016 that
the
respondent had breached the COS by introducing a Category D
pension classification in the packages of the newly appointed
employees.
The change had the effect of depriving them of the
respondent's contribution to their pension benefit. Aggrieved by the
respondent's
conduct applicant filed a dispute and threatened to
approach this court for relief. The dispute was, however, resolved
between
the parties and the respondent agreed, in a meeting held on
21 November 2017, to withdraw the Category D pension membership with
immediate effect. The applicant's joy was short lived in that on 27
November 2017 the respondent issued the notice to terminate
the COS
with effect from 31 December 2017.
[9]
Section
23 (4) of the LRA requires a party to a collective agreement which
has been concluded for an indefinite period to give reasonable
notice
in writing to the other parties when terminating the agreement. It is
common cause that reasonable notice as envisaged in
section 23 (4) of
the LRA is correctly interpreted in
SA
Federation of Civil Engineering Contractors
&
another
v National Union of Metalworkers of SA
&
other
s
1
[1]
where it was held that reasonable notice depends on the nature of the
collective agreement and the facts and circumstances of each
case.
The applicant seek a final interdict and has to prove that it has a
clear right, reasonable apprehension of harm or actual
harm that has
been committed and the absence of any other satisfactory remedy.
[10]
The respondent submitted that the applicant has no clear right to the
relief it is seeking as the applicant did not make out
a case in its
papers to establish that the notice given by the respondent was
insufficient as required in section 23
(4)
to afford the parties a reasonable period to attempt to negotiate for
purposes of sustaining the collective agreement. The applicant
failed
to illustrate why it needs a longer period and how a long period
would yield a different outcome in the current negotiations
between
the parties. This argument is not factually correct because the
applicant has submitted in the founding affidavit that
a month's
notice to cancel a collective agreement which has been operating for
about 12 years and is still operating is not reasonable.
The
collective agreement has in fact been operating for about 5 years.
The applicant added that several disputes concerning the
COS are
pending before the CCMA and the cancellation of the COS will
extinguish the respondent's need to defend itself against
those
claims. The period for which the collective agreement has been in
existence is material. I have considered the respondent's
argument
that the termination of the COS will not affect the disputes pending
before the CCMA. I disagree and accept the applicant's
argument that
after the termination of the COS the CCMA may refuse to entertain the
pending disputes because their outcome would
be academic. Even if the
CCMA may consider those disputes and issue awards it will not be
possible to implement the awards. The
applicant has a right to the
resolution of the disputes which are pending before the CCMA and that
right has to be protected from
being violated by the termination of
the COS. A further reason given by the applicant is that the
termination on the COS on 31
December 2017 will terminate the
2016/2017 negotiating cycle while a number of important issues are
still on the table.
[11]
The respondent further defended the reasonableness of the
notice by arguing that at the time the termination notice was issued
the
applicant was in material breach of the same collective agreement
as it had withdrawn from negotiations. It failed to attend a meeting
on 10 November 2017 and the parties to the collective agreement could
not take decisions in the applicant's absence. The respondent's
termination therefore, so went the argument was acceptance of the
repudiation which brought the agreement to an end. The applicant
denied having withdrawn from negotiations and repudiating the
collective agreement. The respondent's argument is devoid of legal
basis because section 23 (4) of the LRA is prescriptive. It requires
termination of a collective agreement which has been entered
into for
an indefinite period to be in writing. It may not be inferred. None
of the conduct which the respondent sought to rely
on justify the
violation of the applicant's right to a reasonable notice of the
termination of the collective agreement. It is
further impermissible
for the respondent to rely on the delay caused by the referral of
disputes to the Ombud and the CCMA to justify
the months' notice. The
applicant may not be punished for exercising its right enshrined in
the collective agreement to approach
both the Ombud and the CCMA. The
respondent may not decide after 10 months' negotiations that a
stalemate which warrants the termination
of the collective agreement
on a month's notice had been reached.
[12]
The respondent did not refute the applicant's averment that in
implementing the COS the parties would raise issues which would form
the subject matter of further negotiations before the commencement of
annual salary negotiations. The practice is consistent with
the
recognition agreement. The respondent failed to raise the issue of
the termination of the collective agreement before the commencement
of annual salary negotiations thus violating the applicant's right to
prior notice.
[13]
The respondent denied that the notice of termination of the
collective agreement was issued unlawfully and that although it had
been taken by the EXCO it was subsequently ratified by Council on 13
December 2017. I accept the applicant's argument that the collective
agreement is silent on the role of
the
EXCO and has expressly given the power to issue the termination
notice to the Council. When the EXCO purported to give the notice
of
termination, it acted unlawfully and ratification may not be relied
upon to cure unlawful actions.
[14]
The applicant has a reasonable apprehension of harm in that
should the collective agreement be terminated on 31 December 2017,
disputes
pending before the CCMA will be meaningless, rights of the
applicant's members may be negatively affected and the respondent
will
be unlawfully relieved of the responsibility to participate in
the resolution of those disputes. The applicant will further be
denied of the opportunity of persuading the respondent to either
preserve the collective agreement or reach alternative agreements
which may enhance the parties' relationship. The applicant has no
alternative satisfactory remedy as this court has the necessary
jurisdiction to grant the declarator sought by the applicant.
[15]
In exercising the discretion whether to grant interdict I have
taken into account all the circumstances of this case including the
large number of employees who will commence employment at the
respondent in January 2018 and the impact of the respondent's
obligations
in terms of the collective agreement. It is common cause
that the employment terms and conditions prescribed in the collective
agreement will put a strain on the respondent's finances. The
respondent was required to have foreseen the impact of the employment
of these employees earlier and issued the notice of the termination
of the collective agreement. The respondent's delay in issuing
the
notice cannot be visited on the applicant. The indefinite nature of
the collective agreement, the five year period in which
it has been
implemented and the circumstances surrounding the issuing of the
notice of termination rendered the months' notice
unreasonable. For
these reasons, I am satisfied that the applicant has made out a case
for the relief the applicant is seeking.
[16]
The applicant sought a costs order against the respondent. The
parties have a continuing relationship and a costs order will, in
the
circumstances not be appropriate.
[17]
In the premises, the following order is made: Order:
1.
The notice of termination of the Conditions of Service and Benefits
Collective Agreement given by the Respondent on 27 November
2017 is
in breach the requirements of section 23 (4) of the Labour Relations
Act 66 of the 1995 is unlawful and of no force and
effect.
2.
The Conditions of Service and Benefits Collective Agreement and all
the Applicant's rights flowing therefrom endure unless and
until the
Respondent terminates the agreement after giving reasonable notice.
3.
Unless and until the Conditions of Service and Benefits Collective
Agreement is cancelled after the giving of the notice stipulated
in
paragraph 2 above, it is of full force and effect.
4.
The notice purporting to terminate the Conditions of Service and
Benefits Collective Agreement with effect from 31 December 2017
is
unlawful and of no force and effect.
5.
No order is made as to costs.
Z
Lallie
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant: Advocate Dyke SC with Advocate Grogan
Instructed by Brown
Braude & Vlok Inc
For
the Respondent: Advocate Steenkamp
Instructed by Cliff
Dekker Hofmeyr Inc
[1]
(2013) 34 ILJ 2084 (LC)