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[2017] ZALCD 18
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Unitrans Passenger (Pty) Ltd t/a Greyhound Couchlines v NUMSA and Others (D1025/17) [2017] ZALCD 18 (21 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Not
Reportable
Case no: D1025-17
In
the matter between:
UNITRANS
PASSENGER (PTY) LTD t/a
GREYHOUND
COUCHLINES
Applicant
and
NUMSA
and Members
First Respondent
SARPBAC
Second Respondent
R
MAHARAJ N.O.
Third Respondent
Heard:
16 August 2017
Delivered:
21 August 2017
JUDGMENT
WHITCHER
J
[1]
In this matter the applicant seeks confirmation of a rule
nisi
in
terms of which the first respondent’s members were interdicted
and restrained from striking over a dispute concerning an
alleged
unilateral change to their terms and conditions of employment pending
the final determination of the rule. The applicant
contends that the
change in issue constitutes a change to a work practice and
accordingly the workers are not entitled to strike
over the change.
[2]
The applicant operates a long-distance bus transport service for
commuters which consists of various routes. The applicant employs
bus
drivers for purposes of operating these routes.
[3]
One such route has been running from Durban to Bloemfontein for a
considerable time. For such a long distance route [a rota
line] two
drivers are scheduled, which, according to the applicant, is nothing
other than a form of shift rostering.
[4]
The bus leaves Durban at 19h00 and arrives in Bloemfontein at
approximately 05h30 the following morning. On arrival at Bloemfontein
the drivers would hand over the service of the route to different
drivers to drive the bus to Johannesburg via Kimberly. The drivers
who drove from Durban to Bloemfontein would rest for the day and
clock in again at about 18h30 in the evening, and at 20h00 commence
to drive a bus from Bloemfontein to Durban.
[5]
In May 2017 the applicant gave notice and discussed with the union
that, with effect from 29 May 2017, the Durban to Bloemfontein
route
will be extended to Johannesburg. For the two drivers from Durban
this means that there is no longer a rest period in Bloemfontein;
on
arrival in Bloemfontein they have to offload and pick up new
passengers; they have to continue to drive the bus to Johannesburg
via Kimberley; the trip is extended by about 6 hours and they will be
on the road for at least 18 hours straight.
[6]
The drivers have taken issue with these changes. In this regard, the
union referred a dispute concerning alleged unilateral
changes to
terms and conditions of employment to the second respondent on 27 May
2017. The referral summarised the facts of the
dispute as the
employer “having extended hours of work” and stated the
result required as “worker must revert
to the route and hours
as per the known norm”.
[7]
The applicant contends that the rest period in Bloemfontein was a
work practice and not a term and condition of employment.
Moreover,
the extension of the trip by about 6 hours merely means that the
average weekly working hours has increased from 39.75
to 42.75. This
does not constitute a change to conditions of employment because it
is common cause that the drivers have always
been contractually
obliged to work 45 hours per week and are paid for 45 hours per week.
Furthermore, the fact that the trip takes
at least 18 hours does not
affect their hours of work or rest periods because there are two
drivers - while one drives, the other
one can sleep in a private
sleeping compartment on the bus. Finally, the latest main agreement
includes a R400 per month allowance
for drivers due to spread-overs
and the nature of hours and shifts worked by long distance bus
drivers.
[8]
It is common cause that the terms and conditions of employment of the
drivers are regulated by an Industry Main Agreement. The
relevant
terms of the Agreement provide as follows:
(a)
Ordinary
hours of work includes all periods during which the employee is
obliged to remain at his post in readiness to commence
or proceed
with his work and all time spent by a bus driver on work connected
with the bus or the passengers, but does not include
any meal
intervals, sleep-over period or
any
time for which a subsistence allowance is payable to an employee
,
if during such period, the employee does no work other than remaining
in charge of the vehicle.
(b)
Spread-over
means the period in any day from the time an employee commences work
until he ceases work for that day, and, in the
case of bus drivers,
the
ordinary hours of work,
including the meal intervals where applicable and all overtime, shall
on
any
day
be
completed within a spread-over of 14 hours.
[9]
Three important factors emerge from the above. The ordinary hours of
work does not exclude the time a driver may spend resting
in “the
private compartment” while the other one drives. This makes
sense since the drivers cannot be said to be off
duty during these
periods – they are still technically at work “
in
readiness to commence or proceed with [their] work” or assist
the other driver if necessary. Secondly, the ‘spread-over’
may not exceed 14 hours. Thirdly, no proper evidence of an applicable
subsistence allowance was adduced in this application.
[10]
To my mind, the changes effected by the applicant constitute a
contravention of the Main Agreement in that the spread-over
now
exceeds the 14 hour limit, and therefore the dispute concerns a
compliance issue rather than a change to terms and conditions
of
employment
as
set out in the Main Agreement.
The
drivers’ terms and conditions of employment are regulated by
the Main Agreement and thus remain unchanged.
[11]
In any event, even if my conclusions are wrong, the issue about
whether the applicant’s conduct constitutes a change
to the
drivers’ terms and conditions of employment is academic and the
workers will acquire the right to strike after they
have given the
applicant 48 hours’ notice of the commencement of the strike. I
say this because the
union
has
not
relied on section 64 (4) only in order to assert its right to go on
strike.
[12]
The union referred a dispute concerning alleged unilateral changes to
terms and conditions of employment to the second respondent
on 27 May
2017. The referral summarised the facts of the dispute as the
employer “having extended hours of work” and
stated the
result required as “worker must revert to the route and hours
as per the known norm”.
[13]
A conciliation meeting took place before the third respondent on 27
June 2017 and a certificate of outcome was issued on the
day
indicating that the matter remained unresolved.
[14]
There is a collective agreement between the parties which provides
that at least 48 hours written notice of commencement of
a strike may
be given once a certificate has been issued and a cooling off period
of 30 days from the date of such certificate
has expired. This
application was triggered by the union informing the applicant that
it intends to issue a strike notice in terms
of this provision once
the cooling off period has expired. The strike notice has not been
issued as yet. The union is waiting for
the finalisation of this
application.
[15]
The important point I make is that the union has followed and intends
to continue to follow the pre-strike procedures set out
in section
64(1) of the LRA; not section 64(4).
[16]
Steenkamp J set out the position regarding strikes in terms of
section 64(4) and 64(1) in
Intercape
Ferreira Mainliner (Pty) Ltd v NUMSA and others
[1]
as
follows:
[12]
This court dealt with the provisions of s 64(4) in
Johannesburg
Metropolitan Bus Services (Pty) Ltd v SAMWU
.
[2]
It found that the changes implemented by the bus company in that case
comprised no more than a change in work practices. It did
not amount
to a unilateral change in the bus drivers‟ terms and conditions
of employment. Therefore, it held, the trade unions
representing the
drivers did not have the right to strike over a unilateral change to
terms and conditions of employment in terms
of section 64 (4).
[13]
Discussing that judgment, Grogan
[3]
commented:
“
The
finding that the shift change merely amounted to a change of work
practice seems correct. But the court’s conclusion that
the
strike was accordingly unprotected is debatable. Section 64 (4)
merely confers on unions the right to demand that employers
restored
changed terms and conditions of employment for 30 days. Nothing in
the LRA suggests that employees may not strike over
a change in work
practice, even if it does not amount to a change in terms and
conditions of employment.”
[14]
Shortly thereafter, on 29 January 2011, Van Niekerk J held in
Ram
Transport (Pty) Ltd v SATAWU
[4]
that,
in that case, there was no unilateral change to terms and conditions
of employment. “For this reason, the strike called
by the union
is unprotected.” With reference to the comments by Grogan,
though, he noted that this is not an uncontested
position.
[15]
Some two weeks later, Van Niekerk J again dealt with Metrobus and
SAMWU.
[5]
Subsequent to this court’s earlier judgment relating to section
64 (4), the union had referred a new dispute to the bargaining
council describing the nature of the dispute as one concerning a
matter of mutual interest. Holding that it could call its members
out
on strike on that basis, Van Niekerk J remarked (referring to Grogan
in a footnote):
“
Steenkamp
J was called on to decide only whether the changes in the shift
system constituted a unilateral change to terms and conditions
of
employment for the purposes of section 64 (4) of the LRA. This much
is apparent from the quote from the judgment in paragraph
[3] above.
Steenkamp J did not decide, nor was he required to decide, whether
the union’s members were entitled to demand
the reinstatement
of the old shift system.”
[16]
And most recently, Gush J pronounced in
Apollo
Tyres
:
[6]
“
[T]he
second and further respondents may not rely on the provisions of
section 64 (4) of the LRA and are required to tender their
services
in accordance with new shift patterns. This does not, however,
preclude the respondents pursuing the dispute regarding
the
imposition of the new shift patterns as a dispute of interest in
accordance with the provisions of section 64 (1) of the LRA.”
[17]
In summary, the position is this: in terms of section 64 (4), the
union may call its members out on strike without further
ado, and
without following the procedures set out in section 64 (1), if the
employer unilaterally changes workers‟ terms
and conditions of
employment. If those changes merely amounted to changes in work
practice, it cannot do so. However, nothing precludes
the union from
declaring a dispute over a matter of mutual interest and calling its
members out on strike after having followed
the prescribed procedures
in section 64 (1) and adhering to the time periods prescribed in that
subsection.
[7]
[18]
In this case, the union relies on section 64 (4) only in order to
assert its right to go on strike immediately. It is therefore
important to decide whether Intercape has indeed unilaterally changed
the drivers’ terms and conditions of employment.
[17] What
Steenkamp J was referring to paragraph 18 of his judgment was the
fact that the union in the matter before him had argued
that it need
not follow the steps set out in section 64(1) in order to embark on a
protected strike, that is, either waiting for
a certificate stating
that the dispute remains unresolved after conciliation, or for a
period of 30 days; and then giving 48 hours’
notice of the
commencement of the strike.
[18] In this
case, the union has followed the prescribed pre-strike procedures set
out in section 64(1) and has adhered to the time
periods prescribed
in that subsection. It has moreover adhered to the procedures set out
in the collective agreement. And it has
indicated to the applicant
that it intends to give the applicant 48 hours’ notice of the
commencement of the strike.
[19]
The union members have thus elected to rely on the pre-strike
procedures set out in section 64(1) to go on strike. Moreover
the
matter does concern a matter of mutual interest.
[20]
By following the procedures prescribed in section 64(1) and the
collective agreement, the union’s members will acquire
the
right to strike if they give the applicant 48 hours’ notice of
the commencement of the strike.
Order
[21]
The rule is discharged with costs.
________________________________
Whitcher
J
Judge of the Labour Court
of South Africa
APPEARANCES:
For
the Applicant: F van der Merwe, instructed by Hana Geldmacher
Attorneys
For
Respondents: Harkoo Brijlal and Reddy
[1]
(C179/15, dated 2 April 2015).
[2]
(2011)
32
ILJ
1107
(LC); [2011] 3 BLLR 231 (LC).
[3]
John
Grogan,
Labour
Law Sibergramme
1/2011
(13 January 2011) at 6.
[4]
(2011)
32
ILJ
1722
(LC).
[5]
City
of Johannesburg Metropolitan Municipality v SAMWU
[2011]
7 BLLR 663
(LC) para 16.
[6]
Apollo
Tyres South Africa (Pty) Ltd v NUMSA
[2012]
6 BLLR 544
(LC) paras 31-32.
[7]
See
also the discussion in
Imperial
Group (Pty) Ltd v SATAWU
(2014)
35
ILJ
3162
(LC) paras 16-21.