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[2018] ZALCJHB 131
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Transnet SOC Ltd v National Transport Movement and Others (J727/18) [2018] ZALCJHB 131 (28 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: J727/18
In the matter between:
TRANSNET
SOC LTD
Applicant
and
NATIONAL TRANSPORT
MOVEMENT
First Respondent
THE PERSONS LISTED IN
“ANNEXURE A”
Second Respondent
Heard:
15 March 2018
Delivered:
28 March 2018
JUDGMENT
MAHOSI
J
Introduction
[1]
This is an urgent application brought in terms of section 68
of the Labour Relations
Act
[1]
(LRA) to
interdict
a strike by the members of the first respondent (NTM). The matter was
initially set down for 09 March 2018 on which date
the matter was, by
agreement, postponed to 15 March 2018 to enable the parties to
exchange pleadings.
Material facts
[2] On 2 October 2017,
NTM’s dispute was referred to the Commission for Conciliation,
Mediation and Arbitration (CCMA). In
its referral, the dispute was
summarised as follows:
‘
We are
demanding permanent positions for all contract workers and
adjustments of salaries for all workers working on higher positions
whilst being paid lower salary scale.’
[3] The dispute was
conciliated unsuccessfully on 6 November 2017 and a certificate of
non-resolution, which indicated that NTM
may embark on a strike, was
issued. On 20 November 2017, NTM handed a list of demands to the
applicant in terms of which the applicant
had 14 days to respond
positively. In the absence of a response and on the strength of the
certificate of non-resolution, NTM issued
a strike notice dated 6
March 2018.
[4] Attached to the
strike notice was a certificate of non-resolution of a dispute that
was referred to the CCMA on 2 October 2017.
The strike notice further
refers to a list of demands that were handed to the applicant on 20
November 2017 when NTM had organised
a march by its members to the
applicant’s premises. The demands were as follows:
‘
1.
We demand permanent employment for all employees of Transnet
engineering SOC Ltd who
are not permanent as of 1 January 2018.
2.
We demand direct employment of all Mjayeli Security and Dyron
Cleaning employees
to be insourced and appointed permanently as of 1
January 2018.
3.
We further demand a precautionary suspension of Miss Esther Maifadi a
human resource
manager for manipulation of policies and procedures
for her own personal gain.
4.
We demand that all workers working on higher position who are paid
lower salaries
be remunerated according to the current position/fair
and just promotions.
5.
We demand equalisation of gain sharing monies to all employees for
Transnet Engineering
SOC Limited.
6.
We further demand the introduction of 40 hours working hours per
week.
7.
We further demands the complete eradication of racial remuneration
system.
8.
We further demands that overtime must be paid on 1.5 rates per hour.
9.
We further demand that immediate investigation be conducted
surrounding favouritism
involving Ms D Matlou or submitted fraudulent
qualifications and curriculum vitae and still in the employ of the
company even though
this was brought to the company's attention
timeously.
10.
We again demand that immediate investigation be conducted regarding
nepotism of the family
of Baloyi whose family members are preferred
over other people wherein more than five (5) members were given
full-time status from
2012 until 2014 whereas the company is dishing
out only contracts job to other candidates.
11.
We again demand that an immediate investigation be conducted
concerning the awarding of
the “kiosk” machines that are
malfunction and continue to be paid around R100 000.00 (hundred
thousand rands) each
month for idling in plants.
12.
We further demand an immediate investigation into the disappearance
of more than R22 000
000.00 (twenty two million rand), electric
cables and roof cables estimated value of more than R5 000 000.00
(Five million rand)
which resulted in two unproductive weeks, amazing
enough nobody was held accountable. This incident happened at around
August/September
2017 at Bay 44, CSR Logistics Warehouse.
13.
With further demand immediate investigation on the awarding of
tenders to the Gupta family
and its associates and the millions of
rand that were paid out on a monthly basis.
We consequently demand a positive
response within fourteen days by making an undertaking in writing
confirming that all non-permanent
employees including those of
contracted companies that they will be employed permanently as of the
1 January 2018.
We further demand that within 14 days
of the above you give a detailed progress report on the allegations
raised in relation to
corruption, favouritism, nepotism and theft
that occurred under your executive position.’
[5] On 15 December 2017,
the first respondent referred a second mutual interest dispute to the
CCMA under case number GATW78-18.
The dispute was related to the
NTM’s demand for the applicant to employ the employees of
Mjayeli and Dyron permanently. The
matter was conciliated
unsuccessfully and the CCMA issued a certificate of non-resolution.
The CCMA further issued a jurisdictional
ruling in terms of which it
found that the dispute must be arbitrated as it relates to section
198B of the LRA. NTM then conceded
that on the second referral dated
15 December 2017 the jurisdictional ruling which was issued was not
taken on review.
[6]
There was a further referral of a mutual interest dispute on the 15
December 2017. In its referral form, the dispute was summarised
as
the applicant’s failure to respond to its demands. The demands
were the same as stated above. The respondent’s submission
was
that in light of the fact that the CCMA failed to set this matter
down for conciliation and due to the fact that 30 days have
elapsed,
it is entitled to issue a strike notice on the basis of this
referral. It is unnecessary at this point to consider this
submission
as it was not in dispute that a memorandum dated 7 March 2018 was
served on NTM in response to its demands dated 20
November 2017. In
addition, NTM’s legal representative conceded in the
proceedings that these demands were met. Consequently,
the
respondent’s attorney abandoned the submissions made in
relation to the demands dated 20 November 2017.
The urgent application
[7] The applicant’s
approached the Court on an urgent basis and submitted that NTM’s
intended strike action would be
unprotected because it would be in
contravention of sections 64 and 65 of the LRA.
[8] In relation to the
dispute relating to the status of the fixed-term contract employees,
the applicant contends that such dispute
must be conciliated and
arbitrated by the CCMA. In addition, the applicant contends that a
collective agreement was concluded with
its recognised trade unions
which permitted the employment of employees on fixed-term contracts
as contemplated by section 198B.
The said collective agreement was
extended to non-parties and is binding on NTM and its members. NTM
had challenged the collective
agreement at the Transnet Bargaining
Council and an arbitration award dated 24 July 2017 was issued in
terms of which it was found
that the collective agreement was binding
on NTM and its members.
[9] On the dispute
relating to payment of an acting allowance, the applicant contends
that acting allowances are paid in terms of
a collective agreement
concluded between South African Transport and Allied Workers Union
and United National Transport Union which
agreement has been extended
to non-parties including NTM and its members. The applicant contends
that the strike in respect of
these demands is unprotected as it is
prohibited by section 65 of the LRA.
[10]
NTM submitted that the dispute it seeks to strike on relates to two
issues which it argues are of mutual interest. The first
issue
relates to the demand for permanent positions for workers employed on
a fixed-term contract. The second issue relates to
equal remuneration
for fixed-term employees on the same level as permanent workers. The
issue is whether NTM’s strike is
prohibited in terms of the
LRA.
Applicable law and
analysis
[11]
It is trite that the workers must comply with the procedural
requirement set out in section 64 of the LRA to engage in a protected
strike. Section
65
of the LRA provides for the substantive limitations on the right to
strike or recourse to lock-out, and it states as follows:
‘
(1)
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 -
(a)
that person is bound by a collective agreement that prohibits a
strike or lock-out in respect
of the issue in dispute.
(b)
that person is bound by an agreement that requires the issue in
dispute to be referred to
arbitration;
(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;
(d)
that person is engaged in -
(i)
an essential service; or
(ii)
a maintenance service.13
(2)
(a) Despite section 65(1)(c), a person may take part in a
strike or a lock-out or
in any conduct in contemplation or in
furtherance of a strike or lock-out if the issue in dispute is about
any matter dealt with
in sections 12 to 15.14
(b)
If the registered trade union has given notice of the proposed strike
in terms of section 64(1)
in respect of an issue in dispute referred
to in paragraph (a), it may not exercise the right to refer the
dispute to arbitration
in terms of section 21 for a period of 12
months from the date of the notice.
(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;
or
(ii)
any determination made in terms of section 44 by the Minister that
regulates the
issue in dispute; or
(b)
any determination made in terms of Chapter Eight of the Basic
Conditions of Employment
Act and that regulates the issue in dispute,
during the first year of that determination.’
[12]
The applicant contends that the issue relating to a demand for
permanent positions for workers employed on a fixed-term contract
is
regulated by section 198B of the LRA and further that there is a
collective agreement that permits the employment of fixed-term
contracts as contemplated by section 198B which agreement was
extended to non-parties.
This
is a collective agreement that was challenged by NTM at the
bargaining council. An arbitration award was then issued by
commissioner
Le Roux in terms of which the following was found:
‘
36.
The agreement of the Transnet Bargaining Council regarding Fixed Term
Contract Employees is binding
on the applicants.
37.
The provisions of s189B(2)(c) of the LRA apply to the applicants.
Consequently, subsection
198B(3) and (5) do not apply, as their
application is removed by section 198(2)(c).
38. The
matter is dismissed.’
[13] The first respondent
conceded that the above ruling is binding on them. However, they
submitted that the reason the jurisdictional
ruling was not reviewed
was that it would culminate into a moot issue as the fixed-term
contracts of employees in the application
would have been terminated
by the submitted that although the dispute may be referred to
arbitration, the first respondent may
still elect to refer a dispute
of mutual interest to the CCMA in circumstances where they intend to
advance their socio-economic
interest. There is no merit to the first
respondent’s submission. Section 65(1)(c) of the LRA clearly
precludes a strike
if the issue in dispute is one that a party may
refer to arbitration or to Labour Court in terms of the LRA or any
other employment
law.
[14]
It
is well established and settled in our law that minority unions may
be bound by collective agreements
entered into with majority unions on matters of
mutual interest and minority unions
need not be consulted in those
instances. This is so despite the fact that
the subject matter of the collective
agreements
affects individual employees and their unions.
In
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of South Africa and Others
,
[2]
the
Labour Appeal Court stated as follows:
‘
Section
23(1)(d) of the LRA is
but
one instance in the LRA where the
legislature had chosen to apply the principle of majoritarianism.
There is nothing unconstitutional about the principle itself. It is a
useful and essential principle applied in all modern democracies,
including the Republic of South Africa. It has been recognised as an
essential and reasonable policy choice for the achievement
of orderly
collective bargaining and for democratisation of the workplace and
the different sectors.’
[15]
In
Association
of Mineworkers and Construction Union (AMCU) and Others Bafokeng
Rasimone Management Services (Pty) Ltd and Others
[3]
observed
that the subject matter of the collective
agreement is irrelevant to its extension
to non-parties:
‘
In
my view there is merit in this submission and it matters not
what the
subject matter of the collective agreement is. If a collective
agreement had been concluded, the effect
and consequences should be
the same, irrespective of the subject matter of the agreement and it
would
be inappropriate to treat some matters
of mutual interest different from others.’
[16]
The
Constitutional
Court (CC) recently
dealt
with the validity of the extension of a collective agreement to
members of a union who are not a party to the collective agreement
in
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of South Africa and Others
[4]
where
held as follows:
‘…
The decision by private
parties to invoke the power of section 23(1)(d) affords them to
extend their collective agreement to parties
entirely alien to it has
a coercive effect: it binds nonparties to the agreement willy-nilly.
And, as AMCU rightly points out here,
the statutes empower
contracting parties to do this with just about industry wide effects.
The extension of the agreement also
has extensive implications for
members of the public. For its duration, non-members employees are
bound. Even more, they forfeit
the right to strike if the collective
agreement regulates the issue in dispute.’
[5]
[17] Therefore, in
circumstances where the majority unions had concluded a collective
agreement with the employer which prohibited
strike action over the
issue in dispute (as it is in this case), the strike by the minority
union would be unprotected. There is
no reason to depart from the
CC’s decision as it binds this Court.
[18]
In this case, the issue relating to a demand for permanent positions
for workers employed on a fixed-term contract is not only
regulated
by the Agreement of the Transnet Bargaining Council Regarding Fixed
Term Contract Employees, it was arbitrated and an
award was issued in
relation thereto. Although NTM was not a party to the collective
agreement, it is bound by it because it had
been extended to all the
employees of the applicant. As such, NTM is precluded by section
65(3)(a)(i) from striking in support
of this demand because it is
bound by
the
arbitration award and the collective agreement that regulates the
issue in dispute.
[19]
On the dispute relating to the demand that the fixed-term employees
working on higher positions be remunerated on the same
level as
permanent workers, the applicant’s contention was that the
dispute was already referred for arbitration. The first
respondent
conceded that the award thereof is the subject of the review
application under case number JR2049/15. However, the first
respondent submitted that it was not aware of the outcome of the
review application.
[6]
Section
65(1)(c) precludes any party from striking in support of the demand
where the
issue
in dispute
is
one that a party has the right to refer to arbitration or to the
Labour Court in terms of LRA or any other employment law. This
dispute was arbitrated and the outcome was in favour of NTM. It is
not clear why NTM would want to embark on a strike in relation
to a
dispute that was arbitrated. More so, where the outcome was in its
favour. The fact that there is still no outcome in the
review
application cannot be a basis for a strike action. As such, NTM is
precluded from striking on an issue that was already
arbitrated and
which is still pending in this Court.
[20]
With
regard to costs, taking into account the requirements of law and
equity, I believe this is a matter in which there should be
no order
as to costs.
[21] In the premises, I
make the following order:
Order
1.
The
intended strike action is declared unlawful, unprotected and
prohibited as contemplated by section 65 of the LRA.
2.
The
first respondent is interdicted and restrained from encouraging its
members employed by the applicant to participate in the
intended
strike action.
3.
The
first and the second respondents are interdicted and restrained from
participating in the intended strike.
4.
The
first and the second respondents are interdicted and restrained from,
in any manner, interfering with the running of the applicant’s
business operations.
5.
There
is no order as to costs.
_____________
D.
Mahosi
Judge
of the Labour Court
APPEARANCES
:
FOR THE
APPLICANT:
Mr. Maserumule
of Maserumule Attorneys
FOR
THE RESPONDENTS: Mr.
Anton Swart of Aton Swart Attorneys
[1]
Act 66 of 1995 as
amended.
[2]
[2016]
9 BLLR 872 (LAC) at para 105
[3]
(2017) 38 ILJ 931 (LC)
at para 133
[4]
2017
(6) BCLR 700 (CC).
[5]
At
para 78.
[6]
Page
152 para 7 of Index to the application.