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[2018] ZALCJHB 221
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RCL Foods Consumer (Pty) Ltd v National Union of Food Beverage Wine Spirits and Allied Workers (NUFBWSAW) and Others (J1549/18) [2018] ZALCJHB 221; (2018) 39 ILJ 2318 (LC) (22 May 2018)
Of
interest to other Judges
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no: J 1549/18
In
the matter between:
RCL
FOODS CONSUMER (PTY) LTD
Applicant
and
NATIONAL
UNION OF FOOD BEVERAGE WINE SPIRITS & ALLIED WORKERS
(NUFBWSAW)
First
Respondent
PAUL
MADELA AND OTHERS
Second
and further Respondent
Heard
:
22 May 2018
Delivered
:
4 July 2018
Summary:
(Interim strike interdict- non-compliance with s 68(3) of LRA cured –
demand for disciplinary action against perpetrators
of victimisation
not equivalent to claim under s 5 of LRA – demand to determine
selection of investigators and chairpersons
of disciplinary enquiries
tantamount to demand to vary or amend code albeit only in certain
cases – dispute over whether
procedure for consultation or
negotiation followed not a refusal to bargain dispute –
striking without referring issue to
a consultative forum as required
by a collective agreement amounts to conduct in breach of collective
agreement rendering strike
unprotected, even if dispute mechanism is
same as statutory dispute mechanism - costs for non-compliance with s
68(3)))
JUDGMENT
LAGRANGE
J
Background
[1]
The applicant, RCL Foods Consumer (Pty) Ltd (‘RCL’),
launched an urgent application on 9 May 2018 to interdict a
planned
strike by NUFBWSAW (‘the union’), which it set down for
11 May. When the matter came to court on 11 May, the
application was
postponed by agreement until 22 May, with answering and replying
affidavits to be filed by 15 and 17 May respectively.
[2]
In summary, RCL seeks the following relief:
2.1 Condonation for failing to give 48
hours’ notice in terms of section 68 (2).
2.2 An order interdicting the alleged
unprotected strike.
Narrative:
[3]
Sometime in the last quarter of 2017, the union referred a dispute of
mutual interest to the CCMA. The copy of the referral
form in the
court file is completely illegible, and the applicant did not take
the trouble to rectify this omission even after
it was pointed out to
the applicant’s representative. In any event, fortunately for
the applicant, there is no dispute about
the contents of that form.
The dispute was described in a letter attached to the CCMA referral,
which read:
Wide
Spread Perception
There is a wide spread perception
amongst members of the Nufbwsaw that there exists a systemic abuse
and sidelining of employees
belonging to Nufbwsaw and there shop
stewards. The practice is so entrenched and widespread
that it is
impossible to deal with the following normal disciplinary procedures
.
There is also a perception that about 90% of managers and supervisors
are supporters and sympathisers of the rivalry [sic] union
in the
plant, hence we say that this is deeply entrenched in the system. We
also take note that it is extremely difficult to prove
these
widespread perceptions.
The members of Nufbwsaw
demand
the following
1. Allegations of unfair treatment and
victimisation of Nufbwsaw members must be investigated by an
independent investigator who
does not work for the company.
2. The
disciplinary hearings
concerning unfair treatment and victimisation of Nufbwsaw members
must be chaired by an independent chairperson who does not work
for the company
.
3. The independent investigator and
the independent chairperson in clauses (1) and (2) above
must be
agreed upon
by both parties.
4. The company
must bear the costs
of both the independent investigator and independent chairperson.
5.
All disciplinary actions
against Nufbwsaw shop stewards must be handled by independent
investigator and independent chairperson.
6.
The case
of an employee
(John Tiro) who assaulted our member (Johannes Mphahlele) must be
rescheduled and
must be handled by an independent investigator and
independent chairperson
.
(Emphasis
added)
[4]
A previous version of the demands had expressly required the
disciplinary code and procedures to be amended to include the demands
in paragraphs 1 to 5 of the letter above. However, this demand was
expressly abandoned on 12 October 2017.
[5]
The dispute was conciliated on 30 November 2017 and on 12 December
2017 the commissioner issued a ruling on an
in limine
point
raised by RCL. The objection concerned two of the issues raised by
RCL in this application, namely that the appointment of
chairpersons
in disciplinary matters is regulated by a collective agreement and
the CCMA had no jurisdiction to entertain
the dispute.
[6]
The Commissioner was of the view that the appointment of chairpersons
and initiators of disciplinary enquiries was a matter
of management
prerogative and that, in any event, the employees appearing in such
enquiries were entitled to object to the appointment
of any
particular chairperson if they feared they were biased, and had a
right of appeal against any decision made in any event.
Further, if
the dismissal was unfair for that reason they could dispute the
procedural fairness thereof. Accordingly, the Commissioner
decided
that issue concerned a dispute of right and the CCMA lacked
jurisdiction. He also decided that the issues had to be handled
in
terms of the collective agreement concluded by the parties.
[7]
Nothing further transpired until 28 April 2018, when the union issued
a strike notice in respect of RCL’s Rustenburg processing
plant. The strike notice read:
Notice of Strike at RCL Foods
Rustenburg Processing Plant
We hereby notify the company that the
workers at RCL Foods Processing Plant have taken the resolution to
embark on strike.
This relates to the dispute that remained
unresolved even after an attempt at conciliation on 30 November 2017
at CCMA Rustenbu
rg (NWRB4046-17).
The strike will commence on 14 May
2018 at 06H00.
However, we are still committed to
negotiations with the aim of resolving the dispute.
(emphasis added)
[8]
In response, the applicant asserted in an email of 2 May 2018 that,
as far as it was concerned, that the matter had been resolved
by the
arbitrator’s jurisdictional ruling of 12 December 2017, in
which he had found, amongst other things that the dispute
was a
dispute of right and not one of interest. Accordingly, the union
could not resort to strike action to resolve a rights dispute.
RCL
warned that any strike action taken by the union and its members
would consequently be unprotected and could attract disciplinary
action. The company reserved its rights and called on the union to
withdraw the strike notice by 4 May 2018 failing which it would
instruct its lawyers to deal with the matter and the union would be
“sued for costs”. The only response of the union
to this
was to advise RCL which email addresses their lawyers should use in
any communications to the union.
[9]
A few days later on 9 May 2018, RCL launched the application.
Urgency
and s 68(3) of the LRA
[10]
The union did not dispute that the application was urgent but
objected to the application on the basis that RCL had not complied
with section 68(3) of the Labour Relations Act 66 of 1995 (‘the
LRA’). The relevant provisions of the LRA state:
(2) The Labour Court may not grant any
order in terms of subsection (1)(a)
unless 48 hours' notice of the
application has been given
to the respondent: However, the Court
may permit a shorter period of notice if-
(a) the applicant has given written
notice to the respondent of the applicant's intention to apply for
the granting of an order;
(b) the respondent has been given a
reasonable opportunity to be heard before a decision concerning that
application is taken; and
(c) the applicant has shown good cause
why a period shorter than 48 hours should be permitted.
(3)
Despite subsection (2)
, if
written notice of the commencement of the proposed strike or lock-out
was given to the applicant at least 10 days before the
commencement
of the proposed strike or lock-out, t
he applicant must give at
least five days' notice to the respondent of an application for an
order in terms of subsection (1)(a)
.
[11]
The union is quite correct that
RCL did not comply with section 68 (3). It should have given clear
notice of the application to
the union on 4 May 2018. It seems RCL or
its legal representatives were ignorant of the provision, because it
only applied for
condonation in terms of section 68 (2), which is
inapplicable. In
Automobile
Manufacturers Employers’ Organisation v NUMSA
[1]
,
Landman J (as he then was) held that the notice mentioned in s 68(3)
is not merely notice of an intention to bring an urgent application
but requires service of “(a) notice of motion together with
supporting affidavits”.
[2]
RCL’s email of 2 May could hardly be sent to meet that
requirement, even though it clearly hinted at some kind of legal
action if the strike notice was not withdrawn. It was only when it
served its application on 9 May that it fulfilled these requirements,
but then it ought to have given the union five days’ notice.
[12]
However, as things turned out, the union did not oppose the matter on
grounds of urgency and the application was postponed
in any event.
Consequently, the union ultimately had the same opportunity to deal
with the requisite notice of the application
and five court days to
file its answering affidavit, though the date of the strike’s
commencement, if it proceeded, was postponed.
Accordingly, the object
of sufficient notice in section 68 (3) was fulfilled and accordingly,
it is not necessary to condone the
original non-compliance, if indeed
it can be condoned. Nevertheless, the union was unnecessarily brought
to court prematurely,
which is a consideration when it comes to the
matter of costs.
Has
the applicant established a
prima facie
right
based on the legal status of the strike?
[13]
RCL raised four grounds on which it sought to establish a
prima
facie
right to interdict the planned strike on the basis that it
was unprotected. These are dealt with below, but not in the order in
which they were raised.
First
ground: allegedly defective strike notice
[14]
In essence, this claim is that, the strike notice merely referred to
the unresolved conciliation of 30 November 2017 but did
not set out
the demands, which were being pursued and if met by RCL would avert
the strike. It is well established that in order
for a strike to be
protected, the employer must be able to ascertain what demands it is
expected to meet when the strike notice
is issued. In,
National
Union of Food Beverage Wine Spirits & Allied Workers & others
v Universal Product Network (Pty) Ltd: In re Universal
Product
Network (Pty) Ltd v National Union of Food Beverage Wine Spirits &
Allied Workers & others
, the jurisprudence on this
question was usefully summarised:
[25] The legal principles that apply
to the minimum content of a notice of intention to strike are
fairly well-established.
In the present instance, what is disputed is
the sufficiency of the content of the notice in relation to the
demands made by the
union. In SA Airways (Pty) Ltd v SA Transport &
Allied Workers Union (2010) 31 ILJ 1219 (LC);
[2010] 3 BLLR 321
(LC),
this court said the following at para 27:
'The same purposive approach adopted
by the Labour Appeal Court requires that a strike notice should
sufficiently clearly articulate
the union's demands so as to place
the employer in a position where it can take an informed decision to
resist or accede to those
demands. In other words, the employer must
be in a position to know with some degree of precision which demands
a union I and its
members intend pursuing through strike action, and
what is required of it to meet those demands. Some of the issues
giving rise
to the intended strike, as they are articulated in the
strike notice, are clear. The issue of the disciplinary action
demanded
in respect of Venter, as well as the demand in relation to
retention bonuses, are relatively clearly expressed, and to require
more would be to adopt an unnecessarily and unjustifiably technical
approach. The same cannot be said however in respect of the
reference
to "demands for which certificate of non-resolution was issued
on 21 September 2009". This is particularly
so in a case such as
the present, where the referral to conciliation was made, it would
seem, in respect of unspecified and various
grievances and petitions
lodged over a period of months preceding the notice. Any employer
faced with a strike notice issued in
such imprecise terms would A be
hard pressed to know which element of what grievance and petition it
was being asked to resist
or concede.'
[26] Mr Orr, who appeared on behalf of
the respondents, submitted that the Constitutional Court's judgment
in SA Transport &
Allied Workers B Union & others v Moloto NO
& another
2012 (6) SA 249
(CC); (2012) 33 ILJ 2549 (CC);
[2012]
12 BLLR 1193
(CC) (SATAWU) suggested that no more was required by the
LRA than that the strike notice state the date on which the intended
strike
would commence. The SATAWU case concerned a strike notice
issued by a majority union at a workplace and, specifically, whether
it was necessary for non-union members employed in the bargaining
unit for which the union was the recognised representative were
required to issue their own notices. Put another way, the issue
before the court was whether every employee who intends to embark
on
a strike must notify the employer that intention personally, or
through a representative (for example, a trade union), for a
strike
to be protected. In the course of its judgment, the court emphasised
that the right to strike is protected in the Constitution
as a
fundamental right without express limitation and that constitutional
rights conferred without express limitation should
not be cut
down by reading implicit limitations into them (see para 53 of the
judgment). The court observed that the provisions
ofs 64(1)(b) of the
LRA do not extend the requirements of the content of a notice beyond
the simple and express requirement of
when the strike will start, to
an interpretation that requires fuller disclosure. The crisp issue
was which interpretation of s
64(1)(b) was better aligned with the
spirit, purpose and objects of the Bill of Rights — an
interpretation that required
only one notice rather than separate
notices by on behalf of each employee intending to strike. At para 74
of the judgment, the
court said the following:
'In our view there is really no
contest. Interpreting the section to mean what it expressly says is
less intrusive of the right
to strike; creates greater certainty than
an interpretation that requires more information in the notice;
serves the purpose of
the Act — specifically that of orderly
collective bargaining — better; and gives proper expression to
the underlying
rationale of the right to strike, namely, the
balancing of social and economic power.'
The majority of the court went on to
find that the union, which had represented non-members in the
bargaining unit in the course
of wage negotiations and in the
referral for conciliation, was entitled to give a single notice of
intention to strike.
[27] In para 90 of the judgment, the
Constitutional Court went on to say the following:
'Provided that the strike notice
sets out to the issues over which the employees will go on strike
with reasonable clarity
, the cases show that orderly collective
bargaining and the right to strike, in its proper sense as a
counter-balance to the greater
social and economic power of
employers, has been considered to be well served by the acceptance of
a single strike notice.' (Emphasis
added.)
[28] In short, the approach adopted by
this court in relation to the content A of a strike notice and, in
particular, the requirement
that the union articulate the issue over
which employees will go on strike, does not offend an interpretation
of s 64(1)(b) that
is aligned to the spirit, purport and objects of
the Bill of Rights. However, this court must be cautious when reading
in requirements
to s 64(1)(b)that are not expressly stated — an
interpretation less intrusive of the right to strike must be
preferred.
[3]
[15]
In the
Universal Product Network
case, the strike notice read:
'
Following the negotiations held on
24 August and 18 September 2015 B between the union and company and
their failure to reach an
agreement
, the union members hereby
seek to exercise their rights to embark on a protected strike in
terms of s 64(1)(a)(ii).
As the employer, you are therefore
given notice of the union's members at your Midrand Distribution
Centre that will be embarking
a protected strike. …
The union remains committed for the
resolution of same
provided management would bring their revised
position meaningfully
(sic).
In
that matter too, the union had set out it is wage demands in a letter
to the company and subsequently referred a dispute to the
CCMA
stating that the dispute was about wages and the desired outcome was
for the employer to meet the union's demand in respect
of wage
negotiations.
[16]
In this instance, the demands were clearly set out in the letter
attached to the CCMA referral, which in themselves are
self-explanatory.
Moreover, it is apparent from the arbitrator’s
ruling and RCL’s own response to the strike notice that it was
not mystified
about the nature of the dispute, but merely that it did
not regard it as an issue the union was entitled to embark on a
protected
strike over. I agree with the submission by
Mr Kennedy,
who appeared for the union, that it is a question of whether the
substance of the demands are known and not whether they are expressly
detailed in the strike notice. Where a notice of a strike genuinely
surprises an employer because the demands underlying the strike
have
never been clearly articulated in the course of other documents or
minutes, an objection to the strike notice may carry more
weight and
if the employer could not reasonably be expected to know what demands
it was expected to meet, it would be incumbent
on the union to
provide clarity on being requested to do so, before it could be said
that proper notice of the strike had been
given.
[17]
However, that is not the case here, where the demands were set out
with sufficient clarity in the letter quoted in paragraph
[3] above,
which was attached to the CCMA referral, and read with the strike
notice which unambiguously referred to that dispute.
Consequently,
there could be no doubt in RCL’s mind, in my view, which
dispute the union was referring to and what demands
it had made in
that respect. Accordingly, RCL has failed to establish even on a
prima facie
basis that the strike notice was defective.
Second
ground: failure to obtain an advisory arbitration award
[18]
Section 64 (2) provides that a strike notice may not be issued if the
dispute concerns a refusal to bargain, unless an advisory
award has
first been issued. RCL argues that there is a dispute about whether
to negotiate about amendments to the disciplinary
procedures. The
union’s contention is that, it is not demanding the amendment
of the disciplinary procedures, but has tabled
specific demands
relating to the establishment of an independent investigation and the
use of independent investigators and chairpersons.
It argues that
merely because the employer does not agree to this demand does not
make the dispute one about a refusal to bargain.
The union simply
does not admit that its demands require any alteration of the
disciplinary code after it dropped that as an explicit
demand.
[19]
Even though I am inclined to accept that the union’s demand,
effectively does mean this, the applicant itself does not
refuse to
bargain over it as such but simply says this must be done through the
mechanism of the National Working Committee. I
fail to understand how
these facts can support a conclusion that the dispute is one about a
refusal to bargain as defined in s
64(2).
Third
ground: non-compliance with the recognition agreement
[20]
RCL and the union are parties to a National Recognition and
Procedural Agreement (‘the agreement’) together with
another union, FAWU. The Objectives clause, 2.1, inter alia, that
“(t)his agreement regulates the relationship between the
company, the unions and the employees of the company on a national
level.” . Clause 5 of the agreement describes the
bargaining unit as “the sum of all areas in which the company
employs workforces”, and comprises “grades A 1-B1”.
The clause further creates to national structures, a National
Bargaining Forum (NBF) and a National Working Forum (NWF). Clause
6
of the agreement provides that the NBF “… is to bargain
on national issues of mutual interest”, but limited
to wages,
benefits and other terms and conditions which equate to be the
remuneration and/or benefits”. Under the same clause,
issues
listed within the ambit of the NWF are specifically excluded from the
remit of the NBF. Unlike the NBF, the NWF is expressly
established as
a consultative forum in terms of clause 7 of the agreement and the
objective of the forum is described as consulting
“on national
issues that do not fall within the exclusive ambit of the National
Bargaining Forum and
may include
but not limited to:- 7.1.1
any changes or amendments to disciplinary codes and
procedures
;…”(Emphasis added). If consultation fails
to yield consensus then clause 7.1.12 provides that:
The
company and the unions shall, in the National Working Forum, consult
issues and, if no consensus is reached, the parties will
proceed
dispute resolution mechanisms provided by the
Labour Relations Act.
[21
]
RCL contends that the demand for the appointment of independent
investigators, and war alternatively chairpersons of disciplinary
enquiries amounts to an amendment of its current disciplinary
procedures in terms of which it appoints internal investigators and
chairpersons to deal with disciplinary matters. Inexplicably, the
applicant did not attach a copy of its disciplinary procedures
to the
application, but the union does not dispute this characterisation of
the existing disciplinary procedures insofar as they
deal with the
appointment of investigators and chairpersons. RCL argues therefore
that the demand to appoint external chairpersons
amounts to a demand
to amend disciplinary procedure, and since the matter was not
referred to the National working committee for
consultation, the
union could not invoke the dispute resolution mechanisms of the LRA
before that had been done and no consensus
had been reached.
[22]
The point of impasse between the parties is that, RCL still contends
that the demands are tantamount to demanding an amendment
of the
disciplinary code and procedure, whereas the union simply argues that
the demand concerns who is chosen to conduct the particular
investigations and inquiries. As I understand the pleaded
version of the disciplinary code and procedure provision governing
the appointment of such persons, management has a choice as to who it
appoints to fulfil these roles. That does not, in principle,
prevent
it from deciding in a particular case to appoint an external
chairperson or investigator, but that remains a matter for
it to
decide under the code and procedure. The effect of acceding to the
union’s demands in respect of the chairing of any
disciplinary
enquiries would necessitate RCL abandoning its right to appoint
persons in those cases, and would be no different
to varying the
disciplinary procedure, albeit not for all disciplinary matters. That
would appear to be a demand that should be
processed through the NWC.
[23]
The union contends that even if this is so, it has effectively
complied with the dispute resolution procedures in the LRA and
it is
not necessary for it to do so only after proceedings through the NWC
consultative process. In support of this argument the
union relies on
the LAC decision in
County Fair Foods (Pty) Ltd v Food &
Allied Workers Union & others
in which the court held in
that matter:
[15] The main point on which this
matter was argued in the court a quo appears to have been that, even
though the requirements of
the Act had been complied with, the
respondents had not complied with the dispute procedure
provided for in the collective
agreement. Mlambo J rejected this
argument. In doing so he followed Landman J in Columbus Joint Venture
t/a Columbus Stainless
Steel v National Union of Metalworkers of SA
(1998) 19 ILJ 279 (LC). In the appellants' heads of argument this
contention was pursued.
Although it was not pursued in argument, it
was not abandoned. In the light of this it requires to be dealt with
in this judgment.
[16] In my judgment there is an
insurmountable difficulty with the appellant's contention. The Act
sets out specific requirements
which must be met in order for an
employee to acquire the right to strike. Once those requirements have
been complied with, the
Act confers a certain protection and status
on the strike. That is the protection and status of a protected
strikes as defined
in s 67(1). Section 67(1) provides: 'In this
Chapter, "protected strike" means a strike that complies
with the provisions
of this Chapter and "protected lock-out"
means a lock-out that complies with the provisions of this Chapter'
(emphasis
added). From this it will be seen that the only requirement
for a strike to acquire the status of a protected strike is that it
must comply with the provisions of the chapter on strikes and
lock-outs in the Act. Section 64(3)(b) provides in effect that, if
a
strike conforms with the procedures in a collective agreement, the
requirements of s 64(1) of the Act need not be complied with.
There
are also other provisions which deal with situations which exempt a
party from having to comply with the requirements of
s 64(1) in
certain situations (see 64(3)(a) , (c) , (d) and (e)).
[17] It is clear from the provisions
of s 64(3)(b) that the legislature did consider a situation where a
party complies with procedures
in a collective agreement but not with
the requirements of the Act and decided that, in such a case, such
party should not be required
to comply with another procedure, namely
the statutory pre-strike procedure before a strike could be resorted
to. This was one
of the deficiencies of the strike procedures under
the old Act. Under that Act a party who had complied with a domestic
pre-strike
procedure was required to also comply with the statutory
procedure before it could acquire the right to strike. This was one
of
the reasons why the ILO's Fact-Finding and Conciliation Commission
on Freedom of Association concerning the Republic of South Africa
criticized the South African pre-strike procedures under the old Act
in its report as being inconsistent with freedom of association.
(See
(1992) 13 ILJ 739 at 755-6 para 644.)In that case the employer sought
to rely on section 65 (1) (a) of the LRA, which provides
that no
party may participate in a strike or a lockout if “…
that
person is bound by a collective agreement that prohibits a strike or
a lock-out in respect of the issue in dispute”
.
[4]
[24]
The NWC dispute procedure is simply an
invocation of the statutory dispute procedure for interest disputes.
However, the point made
by the employer is that the union was bound
to have attempted to reach consensus on an amendment to the
disciplinary code using
the NWC mechanism
before
invoking any dispute procedure. This is no different to a provision
requiring parties to negotiate in certain collective bargaining
forum. If the union were correct, it would be entitled to declare a
dispute about amending a disciplinary code without first referring
it
to the tripartite body for consultation despite being bound by
collective agreement to deal with such issues in such a forum.
The
effect would be to undermine the consultative functions of the NWC
which it had been a party to agreeing to. Accordingly, the
union’s
procedural non-compliance which is at issue here is not its
invocation of the statutory procedures for embarking
on a protected
strike, but its failure to raise the issue in the agreed forum before
invoking dispute mechanisms. It is thus distinguishable
from the
issue under consideration in
County
Fair.
[25]
Consequently, notwithstanding the withdrawal of
the formal demand to amend the disciplinary code and procedures, I am
satisfied
that the effect of the remaining demands would be the same,
albeit perhaps to require the variation of the procedures only in
respect
of the particular complaints of the union and its members.
Fourth Ground: The dispute is a
rights dispute for which a remedy exists and therefore cannot be the
subject matter of strike action.
[26]
The contention in this regard is that what the union and its members
are in truth alleging is that, its members and shop stewards
are
being systematically prejudiced by the employer on account of their
union membership. This, RCL submits, is no different from
a claim of
what used to be called ‘victimisation’, and is one that
can be referred to adjudication in terms of s9(4)
read with s 9(2)(c)
of the LRA. Section 9(2)( c)(i),(ii) and (iii) of the LRA protects
employees from any prejudice they might
suffer on account of their
union official affiliation or performing their functions as a shop
steward, thus:
(2) Without limiting the general
protection conferred by subsection (1), no person may do, or threaten
to do, any of the following-
…
(c) prejudice an employee or a person
seeking employment because of past, present or anticipated-
(i) membership of a trade union or
workplace forum;
(ii) participation in forming a trade
union or federation of trade unions or establishing a workplace
forum;
(iii) participation in the lawful
activities of a trade union, federation of trade unions or workplace
forum; ….
[27]
In terms of section 9(4) of the LRA this right can be enforced
through adjudication by the Labour Court. That said, it does
not
follow that a successful prosecution of a claim of victimisation of
this sort would ordinarily result in an order requiring
disciplinary
steps to be taken against individuals responsible for such conduct.
That can conceivably still be the subject matter
of a separate
dispute from an action seeking to provide relief to individuals who
have been victimised on account of their union
affiliation.
Accordingly, although there may be some overlap between the factual
basis for a demand for disciplinary action to
be taken and a claim of
victimisation under section 5 (2) (c), the latter dispute does not
necessarily entail a determination of
whether or not disciplinary
action will be taken against any individuals responsible for such
prejudicial conduct, even if it might
result in a prohibitory order
and other forms of relief. It is also perfectly possible for a claim
to be successfully prosecuted
under the provision, and that arising
from the outcome of that case, demands could be made for
consequential disciplinary action
to be taken against certain
individuals. Consequently, I am not satisfied, on a
prima
facie
view, that the disciplining of those responsible for such
conduct, in and of itself, necessarily falls within the ambit of a
dispute
under section 5(2)(c) and it could be the subject of a
separate demand, provided such disciplinary action should be
procedurally
and substantively fair.
Conclusion
[28]
In light of the discussion above, I am satisfied that RCL has
established at least a
prima facie
claim that the strike would
be unprotected because the issue in dispute ought to have been tabled
in the NWC and that by not doing
so the union and its members would
be striking in breach of a collective agreement regulating the
amendment of the disciplinary
code and procedures, which first
requires the tripartite body to consult on the issue in an attempt to
reach consensus.
Harm
and the balance of convenience
[29]
The dispute is a long-standing one dating back to 2017 and the
additional prejudice the union might suffer by waiting for a
final
determination of the dispute before being able to embark on strike
action at a later date, if a final determination is in
its favour,
does not outweigh the prejudice to RCL of facing substantial
irrecoverable losses, which it would not have to sustain
if it is
vindicated subsequently in a final determination of the application.
Costs
[30]
In relation to the merits of the dispute, which were argued on 22 May
2018, I am satisfied that both parties acted in good
faith in
initiating and opposing the application and no cost order should flow
in that regard.
[31]
However, in relation to appearances of the parties on 11 May 2018, in
view of the fact that the application was launched contrary
to the
provisions of section 68(3) of the LRA, which would have necessitated
a postponement in any event, I am satisfied that the
requirements of
law and fairness require the applicant to pay the wasted costs of the
respondent’s appearance and preparation
for that day. Had the
respondents sought a punitive cost award in this regard I would have
been inclined to grant it.
Order
[1]
The provisions of the Labour Court Rules relating to the time and
manner of service referred to therein are dispensed with,
and the
matter is dealt with as one of urgency terms of Rule 8 thereof.
[2]
A rule
nisi
is issued calling upon the respondents to show
cause on 15 November 2018 why a final order should not be made the
following terms:
2.1 declaring the intended strike by
the second and further respondents (‘the individual
respondents’) to constitute
an unprotected strike as
contemplated in the Labour Relations Act, 66 of 1995 (‘the
LRA’);
2.2 interdicting and restraining the
individual respondents from participating in the intended unprotected
strike related to the
present demands and issues raised by the
respondents arising from the dispute referred to the CCMA under case
number NWRB 4046-17;
2.3 the first respondent is required
to do all such things and take all such steps as are necessary to
ensure that the provisions
of paragraph as set out in paragraph 2.2
above are complied with;
2.4 ordering the first, second and
further respondents, jointly and severally, to pay the costs of this
application, save for the
costs of the hearing on11 May 2018, the one
paying the others to be absolved.
[3]
Paragraphs 2.1 to 2.3 above shall operate with immediate effect as an
interim order pending the final determination of this
application.
[4]
The Applicant must pay the wasted costs of the Respondents’
appearance and preparation for the hearing on 11 May 2018.
[5]
It is directed that service of the order must be affected as follows:
5.1 upon the First Respondent by the
applicant’s attorney sending a copy of the order to the First
Respondent’s facsimile
at 011-8331503 and that the Sheriff
serve a copy at the first respondent’s premises at fourth
floor, Vusa House, New Street
South, Johannesburg;
5.2 upon the Second and Further
Respondents by the Applicant placing a copy of the order on the
noticeboard of the applicant’s
premises and providing copies of
the order to shop stewards of the first respondent that are present.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
C
Nel of Macgregor Erasmus Attorneys
RESPONDENT:
P
Kennedy SC, instructed by Haffagee Roskam Savage Attorneys
[1]
[1998] 11 BLLR 1116 (LC)
[2]
At 1118, para [8].
[3]
(2016) 37
ILJ
476 (LC) at 486-7.
[4]
(2001) 22
ILJ
1103 (LAC) at 1107-8