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[2018] ZALCJHB 75
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Vector Logistics (Pty) Ltd v National Transport Movement (NTM) and Others (J2876/17) [2018] ZALCJHB 75; (2018) 39 ILJ 1653 (LC) (6 March 2018)
Reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase No: J 2876/17
In
the matter between:
VECTOR
LOGISTICS (PTY) LTD
Applicant
and
NATIONAL
TRANSPORT MOVEMENT
(‘NTM’)
First Respondent
M L KGAABI AND OTHERS
Second
and Further Respondent
(Those
persons mentioned in
Annexure “A”
to the founding affidavit)
Heard
:
03 March 2018
Delivered
:
06 March 2018
Summary:
(Strike interdict – return day – strike unprotected by
virtue of provision in relationship
collective agreement –
strike also unprotected because complying with the demand would be in
breach of s 14(1) of the BCEA
and/or alternatively is a dispute
capable of adjudication - interpretation of s 14(1) of BCEA)
JUDGMENT
LAGRANGE
J
Background
[1]
An interim order was issued on 3 November 2017 and subsequently
extended on 13 December 2017. The rule was extended again at
the
hearing of argument on the return day on 2 March 2018 until the date
of today’s judgment.
[2]
On 26 June 2017, NTM referred a mutual interest dispute to the CCMA
in which the facts of the dispute were summarised as: “Employer
refuses to pay the employees than 10 hours that they are work for”
(
sic
). The conciliation of the dispute was unsuccessful.
[3]
The matter was referred to arbitration but the arbitrator issued a
ruling that the CCMA had no jurisdiction to arbitrate the
dispute
which had been described in the certificate of outcome as a matter of
mutual interest.
Grounds
for claiming the strike is unprotected.
[4]
The applicant relies on a number of grounds for its claim the strike
would be unprotected. Most of these relate to the effect
of two
collective agreements, one allegedly concluded with the majority
union and the other relating to the lawfulness of the demand
and a
related question of whether the dispute is one that can be referred
to adjudication or arbitration.
The
collective agreements
[5]
In September 2015, the applicant company (‘Vector’) and
another union NUFBWSAWU had concluded a wage agreement for
three
years which terminates on 30 June 2018 (‘the substantive
agreement’). In terms of that agreement ordinary hours
of work
were 45 hours per week with an additional unpaid lunch break of one
hour, which is excluded from the calculation of wages.
This is in
conformity with the provisions of sections 9 and 14 of the Basic
Conditions of Employment Act, 75 of 1997 (‘the
BCEA’)
dealing with working hours and meal intervals respectively.
[6]
The scope of the substantive agreement described in clause 2.1 “…
covers permanent, hourly rate, warehouse and
transport interest group
employees in top grades A 1 to B 3 Vector Logistics National…””
and clause 2.2 states
it would also apply on a pro rata basis to
permanent employees. The final provision of the agreement reads:
“
SETTLEMENT
This is the whole agreement on wages
and substantive conditions of employment for permanent employees in
the bargaining unit for
the period 01 July 2 015-30 June 2018. No
amendments will be made unless agreed to in recorded in writing by
both parties. Representatives
of parties of signatories to this
agreement confirm that there are mandated to find their principles in
terms of the agreement.
The agreement entered into in full and final
settlement for the demands and proposals relating to this agreement
on the annual
wage increases and substantive as well as in full and
final settlement on any other additional issues raised during
negotiation
process.”
[7]
Vector contends that the employees who are members of NTM are
identified in this agreement and are expressly bound by it because
the union which concluded the agreement was the majority union in the
workplace in conformity with the provisions of s 23(1)(d)
of the
Labour Relations Act, 66 of 1995 (‘the LRA’). S 23
states:
23 (1)
A collective agreement binds-
(a)
the parties to the collective agreement;
(b)
each party to the collective agreement and the members of
every other
I party to the collective agreement, in so far as the provisions are
applicable between them;
(c)
the members of a registered trade union and the employers
who are
members of a registered employers' organisation that are party to the
collective agreement if the collective agreement
regulates-
(i)
terms and conditions of employment; or
(ii)
the conduct of the employers in relation to their employees or the
conduct of the
employees in relation to their employers;
(d)
employees who are not members of the registered trade union or trade
unions party to the agreement if-
(i)
the employees are identified in the agreement;
(ii)
the agreement expressly binds the employees; and
(iii)
that trade union or those trade unions have as their members the
majority of employees
employed by the employer in the workplace.
[8]
On 3 May 2017, Vector and NTM concluded a collective agreement termed
a “Relationship agreement””. Clause
3.2 of the
relationship agreement states:
“
The parties agree that Vector
is entitled to establish a representivity threshold for (i)
participation in the national bargaining
forum and (ii) for purposes
of granting organisational rights. It is recorded that the
representivity threshold for participation
in the national bargaining
forum is 50% +1 in the Vector Workplace (that is, on a national
basis). Consequently, the company recognises
the majority union as
the sole bargaining representative in the Bargaining Unit on matters
concerning terms and conditions of employment
(including benefits)
and/or wages and/4 remuneration of employee. (
sic
).”
Accordingly,
it is contended that NTM accepts that unless it is a member of the
bargaining forum by virtue of being a majority union,
it cannot
pursue collective bargaining demands.
[9]
Clause 11.2 of the relationship agreement also committed NTM and its
members not to engage in any industrial action concerning
a matter
which is “the subject matter of
a
collective agreement”
(emphasis added) during the period of such collective agreement. This
provision does not state that
the collective agreement is one
concluded with a majority union. Vector claims that clause 11.2 on
its own bars NTM from striking,
irrespective of the binding force of
the substantive agreement with NUFBWSAWU, because the issue of lunch
intervals, ordinary hours
and remuneration are part of the subject
matter of that agreement.
The
lawfulness of the demand
[10]
Another reason Vector contends that the demand for payment of 10
hours per day could not be the lawful basis for a strike is
that, it
would entail the company working ordinary hours in excess of section
9 (1)(a) and (b) of the BCEA which limits weekly
working hours to 45
hours and daily ordinary hours to 9 hours per day and
requires employees to receive a lunch break
of no less than one hour.
Indeed, it appears to be part of the respondents’ claim that in
fact their members do not enjoy
lunch breaks and work during their
lunch breaks and this is what prompted them to demand payment for the
hour which was supposed
to be lunch break. However, whether or not
they actually take break or are practically unable to as a matter
that is not resolvable
on the papers.
Evaluation
Effect
of collective agreements
[11]
I am not persuaded that the
terms of the substantive agreement alone are sufficient to bind the
members of NTM. In
Concor
Projects (Pty) Ltd t/a Concor Opencast Mining v Commission for
Conciliation, Mediation and Arbitration and others
[1]
, the LAC held that the agreement must expressly bind non-members,
viz:
“
Members of AMCU are not
identified in the agreement. The agreement does not state that it
binds employees who are not members of
the trade unions that are
signatories to the agreement. The reliance on section 23(1)(d) is,
therefore, misplaced.”
[2]
[12]
I am also not persuaded on the papers that Vector established that
NUFBWSAWU was in fact a majority union. Accordingly, it
cannot be
said in this application that the substantive agreement was one that
could lawfully be extended to non-members in terms
of section
23(1)(d).
[13]
A more difficult question is the effect of the relationship agreement
concluded with NTM. It is arguable that clause 11.2 of
that agreement
precludes NTM and its members from embarking on industrial action in
respect of any issue which is the subject matter
of an existing
collective agreement, even if that agreement itself had not been
extended to non-members. Whether that is the case
or not, by signing
the relationship agreement NTM also agreed in terms of clause 3.2 of
the agreement that collective bargaining
would take place in the
national collective bargaining forum. It was further bound by the
applicable threshold for admission to
the bargaining forum which
currently is union membership comprising of 50 % +1 of the workforce.
Although NUFBWSAWU’s majority
union status is in dispute,
consequently its right to sit in that bargaining forum may be
questionable, it was never contended
that NTM itself is entitled to
sit in that forum because it meets the majority threshold
requirement. Having accepted the threshold
for attaining bargaining
rights, and thereby curtailing its right to bargain collectively
until it is a majority union it is difficult
to see how NTM can
insist on negotiating a term and condition of employment, or pursue
such demands by means of strike action,
which is incidental to its
bargaining status. As such, NTM is bound by its own the relationship
agreement which curtails its rights
to bargain and a strike in
pursuit of a demand would breach that agreement to curtail its
bargaining rights under s65(3)(a)(i)
of the LRA.
The
lawfulness of the demand and the nature of the demand
[14]
It appears that the demand emanates from a dispute about whether
drivers and crews actually do take the unpaid one hour meal
interval.
The fact that it is provided for in the collective agreement with
NUFBWSAWU does not mean that it is actually complied
with. NTM argues
that it is a failure to resolve this issue with Vector which led
workers to demand to be paid for that hour if
they were not able to
actually take their lunch breaks.
[15]
S14 of the BCEA states:
“
14 Meal intervals
(1) An employer must give an employee
who works continuously for more than five hours a meal interval of
at least one continuous hour
.
(2)
During a meal interval the
employee may be required or permitted to perform only duties that
cannot be left unattended and cannot
be performed by another
employee
.
(3)
An employee must be
remunerated-
(a)
for a meal interval in which the employee is required to work or is
required to be available for work
; and
(b)
for any portion of a meal interval that is in excess of 75 minutes,
unless the employee lives on the premises at
which the workplace is
situated.
(4)
For the purposes of subsection
(1), work is continuous unless it is interrupted by an interval of at
least 60 minutes
.
(5) An agreement in writing may-
(a)
reduce the meal interval to not less than 30 minutes;
(b)
dispense with a meal interval for an employee who works fewer than
six hours on a day.”
(emphasis added)
[16]
The effect of these provisions is that it is only in circumstances
where the work performed by an employee cannot be left unattended
and
nobody else can perform those duties that an employer is entitled to
require the employee to remain available for work or to
perform the
duties, in which case the employee must be paid for those duties. An
example which springs to mind would be a medical
specialist in a
clinic who is the only person qualified to perform certain
procedures. However, where such exceptional circumstances
do not
apply, then the lunch break is peremptory and is unpaid. The demand
for payment of the lunch break by the respondents is
based on a claim
that they do not get the opportunity to take the break, which they
expressed as follows: “…the second
to further
respondents have their respective meals, whilst driving the trucks
and/or whilst they are working.” Vector disputes
this and
claims they do take the lunch breaks.
[17]
To the extent that NTM’s
demand is a demand that the affected workers must simply be paid for
the lunch hours they claim they
do not take because they work without
a break, then if Vector accedes to this demand it would be acceding
to a 9 hour working day
without a lunch break in circumstances where
the exceptional circumstances in sub-sections 14(2) and (3) do not
apply. This would
amount to a breach of s 14(1) of the BCEA and would
be unlawful. Protected strike action cannot be undertaken in pursuit
of an
unlawful demand.
[3]
[18]
Further, there is another difficulty the demand presents for the
legal status of the strike. The aggrieved workers have a remedy
under
the BCEA. If they are compelled to forego lunch breaks in
circumstances where sub-sections 14(2) and (3) are not applicable,
then Vector is obliged by law to allow them to take the unpaid one
hour lunch break and if it makes it practically impossible for
them
to do so, it is in breach of the s 14(1) and it is a dispute of right
which may be resolved by using the enforcement mechanisms
available
under the BCEA including adjudication by the Labour Court. Vector
would also be in breach of the provisions of 9 (1)(a)
and (b) of the
BCEA which limit ordinary working hours. The amended provision of
65(1)(c ) of the LRA now states:
“
No person may take part in a
strike or a lock-out or in © any conduct in contemplation or
furtherance of a strike or a lock-out
if-
…
(c)
the issue in dispute is one that a party has the right to refer
to
arbitration or to the Labour Court in terms of this Act
or any
other employment law
; …”
In terms of s 4(1) of the BCEA a basic
condition of employment constitutes a term of any contract of
employment except to the extent
that it has been varied in terms of
the BCEA or replaced by more favourable terms in a contract. The
aggrieved employees’
entitlements to lunch breaks are part of
their contracts of employment. Under s 77(3) of the BCEA, the Labour
Court has concurrent
jurisdiction with the civil courts concerning
contracts of employment. The employees would consequently be able to
refer their
dispute over the non-compliance with the provisions of s
14(1) to the Labour Court for adjudication as a breach of a condition
of employment, quite apart from being entitled to report the matter
to the Department of Labour for enforcement as the simpler
alternative. For present purposes, what matter is that the dispute is
one that may be referred to the Labour Court for adjudication
and
accordingly, the issue in dispute falls within the ambit of the
protected strike prohibition contained in s 65(1)(c). For this
reason
too, the strike would be unprotected.
Costs
[19]
Even though the strike may be unprotected for the reasons above, I
accept that there appears to be a genuine underlying problem
with the
lunch intervals of drivers which needs to be addressed and the union
was not unreasonable in believing it was an issue
over which a
protected strike might be called. In the circumstances, an award of
costs would not be in accordance with the principles
of law and
fairness.
Order
[1]
The rule issued on 3 November 2017, and subsequently extended, is
confirmed
[2]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
P
Govender of Macgregor
Erasmus
Attorneys
RESPONDENT:
M
Gumede of NTM
[1]
[2014] 6 BLLR 534 (LAC)
[2]
At 540.
[3]
See
TSI Holdings (Pty) Ltd
& others v NUMSA & others
[2006] 7 BLLR 631
(LAC) at 646, para [48].