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[2018] ZALCJHB 187
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Johannesburg Metropolitan Bus Services Soc Ltd v Democratic Municipal and Allied Workers Union and Others (J1746/18) [2018] ZALCJHB 187 (4 June 2018)
Of
interest to other Judges
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
Case no: J1746/18
In
the matter between:
JOHANNESBURG
METROPOLITAN BUS
SERVICES SOC LTD
Applicant
and
DEMOCRATIC MUNCIPAL
AND ALLIED
WORKERS UNION
First
Respondent
SOUTH AFRICAN
MUNICIPAL WORKERS
UNION
Second
Respondent
INDEPENDENT
MUNICIPAL AND ALLIED
TRADE UNION
Third
Respondent
PERSONS LISTED IN
ANNEXURE “A” TO
THE
NOTICE OF MOTION
Fourth
and further Respondents
Heard
:
24 May 2018
Delivered
:
04 June 2018
Summary:
(s 68(3) of the LRA – curtailment of proceedings by agreement –
salutary cost order nonetheless
appropriate – final strike
interdict – respondents not bound by collective agreements on
grievances or collective bargaining
– council agreement not yet
applicable to applicant – strike demands not rendering strike
unprotected – application
dismissed )
JUDGMENT
LAGRANGE
J
Background
[1]
This is an urgent application for a final interdict to prevent a
strike which was due to commence on 28 May 2017. The applicant,
Metrobus, applies for two alternative forms of relief. It is opposed
by the first respondent, the union DEMAWUSA.
[2]
Firstly, Metrobus seeks to interdict a strike on the basis that the
dispute was prematurely referred to conciliation in breach
of a
grievance procedure forming part of the main agreement of the SALGBC,
which it claims is applicable to the members of DEMAWUSA
who intend
to strike. In the alternative, it seeks a final order preventing them
from embarking on the strike until a dispute regarding
the
application of the Main Agreement and the Salary and Wage Agreement
of the bargaining council has been determined. Ordinarily,
such an
order is sought on an interim basis pending the outcome of the
dispute referred to the bargaining council, but Metrobus
has chosen
to frame it as final relief.
[3]
When
the matter was heard and after it had been fully argued, it became
apparent that the matter might be dismissed on account of
insufficient notice of the interdict being given in terms of section
68 (3) of the Labour Relations Act 66 of 1995 (‘the
LRA’).
The effect of that provision is that where a trade union has given
ten or more days’ notice of its intention
to strike, the
employer must give at least five days’ notice of application to
interdict the strike is an unprotected one,
which had not been done
in this case. The practical effect of dismissing the application on
that basis would have in all probability
led to the court issuing an
order which would have permitted Metrobus to return to court on
sufficient notice as in the case of
Automobile
Manufacturers Employers’ Organisation v NUMSA
[1]
.
The consequence of that would have been that the parties would in all
probability have been back in court again the following week
to argue
the same matter again before another judge, with all the unnecessary
additional legal costs that would have entailed,
apart from two
judges having to read and consider the same matter. In the
circumstances, the parties agreed that the court could
determine the
application on its merits and the commencement of the strike would be
held in abeyance pending judgement being handed
down on the
application on 4 June 2018.
Background
The
origins of the strike lie in a dispute of mutual interest referred to
the SALGBC on 6 April 2018. The strike demands arose from
a grievance
lodged by union members on 26 March 2018, which contained wide
ranging demands relating to collective bargaining, discipline,
staff
movements, suspensions and alleged discrimination against DEMAWUSA
members. The grievance form listed the grievances and
each of the
respective grievances was then set out in the same document in more
detail. The list of grievances was attached to
the referral to the
bargaining council.
[4]
It was only on 20 April 2018, nearly a month after the grievance had
been lodged, and after the union had referred the matter
to the
SALGBC that a written response to the grievance was forthcoming from
Metrobus.
[5]
When the dispute was conciliated on 4 May 2018, Metrobus raised a
preliminary point that the grievance procedure had not been
exhausted
and that accordingly, the referral of a dispute for conciliation to
the bargaining council was premature. This was not
merely a point
about completing internal procedures but arose because the grievance
procedure was part of the main agreement of
the bargaining council
and an unresolved grievance could only be referred to the bargaining
council dispute procedures after step
three of the grievance
procedure had been completed. Clause 13.4.5 of the main agreement
reads:
“
If
a grievance has not been resolved to the satisfaction of the
aggrieved party, that party may refer the grievance to the Council
for adjudication provided that a dispute has been declared and the
party is entitled to declare such a dispute.”
The
SALGBC panellist who conciliated the dispute did not make a ruling on
the jurisdictional point at that stage, but only did so
on 11 May
2018. The panellist upheld the preliminary objection of Metrobus and
concluded his jurisdictional ruling as follows:
“
11.
The grievance procedure embodied in the collective agreement
concluded during August 2008 is binding on all of the respondent’s
employees, and that procedure is, consequently, applicable to the
grievance lodged by the applicant on 26 March 2018.
12.
The agreed grievance procedure, being a condition of employment, is
peremptory, and the applicant ought to have complied with
the secrecy
prior to referring and mutual interest dispute to the SALGBC. The
applicant failed to comply with the agreed grievance
procedure before
referring the dispute to the SALGBC.
13.
In the circumstances, it is plain that the applicants mutual interest
and was prematurely referred to the SALGBC, and the SALGBC,
consequently, has no jurisdiction to conciliate the dispute.”
[6]
By then, the union had already given notice of its intention to
strike on 7 May 2018, on the basis that 30 days had elapsed
since the
dispute was referred to the bargaining council. The strike notice
largely reiterated the contents of the list of grievances
in the form
of demands that Metrobus agree:
1.
To pay a salary progression in terms of the number of use of an
employee in the employer of the employer
(a)
0 to 03 years
(b)
…
…
(h)
21 to 24 years
2.
To adjust salaries of all new employees to the Metrobus salary scale.
3.
To pay all employees long service bonus equivalent to one month’s
salary multiplied by the number of years which the employee
was
working for the employer when resigning, retiring or death.
4.
To remove all people who have been acting for more than three months
and positions to be filed within three months.
5.
To allow employees to accumulate annual leave, to the value of 60
days and to allowed to sell them when the need arises.
6.
To withdraw the circular 1/2017 as it replaced the disciplinary code
collective agreement.
7.
To remove all scrap tickets issuing machine and replace them with
cashless machines.
8.
To suspend [and] charge Mr P Lebelo and Mr Z Mheyanwa for
contriving the disciplinary code collective agreement by changing
the
verdict of the presiding officer to dismissal. If they are charged
the presiding officer be appointed by the Johannesburg Bar
Council.
9.
To suspend [and] charge Mr Fani Maluleke and Mr Ndima for failing to
charge a female employee who assaulted a DEMAWUSA member.
10.
To suspend and charge Mr J Gamede for suspending employees in the
terms which were not allowed by the disciplinary code collective
agreement.
12.
To review all cases of DEMAWUSA members , investigate union bashing
by Metrobus managers and executives and investigate ill-treatment
of
DEMAWUSA mem by managers. The investigation to be done by the judge
appointed by the Johannesburg Bar Council.
13.
To release Mr Lebelo to go back to the City of Johannesburg as
the GM human resource has been appointed.“
[7]
Subsequently, there was correspondence between Metrobus and the union
mainly dealing with Metrobus’s contentions that,
for one reason
or another, the strike would be unprotected. On 10 May 2018 the union
sent a letter to Metrobus, qualifying some
of the demands. These
qualifications were:
7.1
In so far as Metrobus was in the process of removing all the scrap
ticket machines and replacing
them with cashless ones, Metrobus
should confirm that all machines would be played replaced and
undertake that that would be done
within 60 days.
7.2
The demand for the suspension of various individuals was modified to
include a prior investigation
to determine if there was sufficient
basis for instituting disciplinary action conducted by an independent
advocate agreed upon
by the parties or selected by the Johannesburg
bar Council, to whom the union could make representations. In the
event that possible
misconduct was by the investigation the
individuals implicated should be charged with misconduct and
pre-suspension hearing was
held, again subject to various procedural
safeguards. At any subsequent disciplinary enquiries these again
should be chaired by
an independent chairperson and the employer
would be required to call witnesses from the union having knowledge
of the misconduct.
Further, Metrobus would have to agree to be bound
by the outcome of the pre-suspension and disciplinary hearings.
7.3
The demand for Mr Lebelo to be sent back to the City of Johannesburg
was modified to a demand
for a detailed explanation relating to his
continued deployment that Metrobus.
[8]
A further point that needs to be mentioned is that, because the union
disputed Metrobus’s claim that the main collective
agreement
and salary and wage agreement were binding on its members, and that
this was a bar to them embarking on a protected strike
in respect of
the various demands, Metrobus referred an interpretation dispute to
the bargaining council on 15 May 2018. This was
[9]
a day before it launched this application. It described the dispute
thus:
“
DEMAWUSA
acting on behalf of the employees in Annexure “A”
contends that the Main Collective Agreement and the Salary
and Wage
Collective Agreement (“the Agreements”) do not apply to
the employees in Annexure “A”. The applicant
contends
that the Agreements apply to the parties and that they are therefore
bound by the provisions of the agreements.”
Substantive
merits
[10]
In
order to obtain final relief, the applicant must prove that there is
a clear right, which the respondent is unlawfully interfering
with or
which it reasonably apprehends will be interfered with, and that
there is no other satisfactory remedy.
[2]
Existence
of a clear right?
[11]
Metrobus alleges that the strike will be unprotected on a number of
grounds. A dominant consideration in the application is
whether or
not the union’s members are bound by the main agreement of the
bargaining council, both in respect of the grievance
procedure and in
respect of collective bargaining issues. Metrobus further contends
that, since this dispute has been referred
to the bargaining council,
the lawfulness of the impending strike cannot be determined until
that dispute has been decided and
it is not for the court to rule on
that issue.
Are DEMAWUSA’s
members bound by the SALGBC Main Agreement (including the grievance
procedure) and the Wage Agreement and does
the Labour Court have the
power to determine this issue in the context of a strike interdict?
[12]
Metrobus referred the dispute about the binding nature of the
agreements to the bargaining council as an interpretation dispute.
The union contends that essentially that dispute concerns whether or
not a particular category of employees fall under the respective
agreements, which is a dispute that can only be determined in terms
of section 62 (1) (b) of by the LRA, which states:
62.
Disputes about demarcation between sectors and areas
(1)
Any registered trade union, employer, employee, registered
employers'
organisation or council that has a direct or indirect interest in the
application contemplated in this section may apply
to the Commission
in the prescribed form and manner for a determination as to-
(a)
whether any employee, employer, class of employees or class
of
employers, is or was employed or engaged in a sector or area;
(b)
whether any provision
in any arbitration award,
collective
agreement
or wage determination made in terms of the Wage Act
is
or was binding on any employee, employer, class of employees or class
of employers
.
[13]
The reason why a dispute of this nature could not be determined by
the bargaining council probably reflects a concern of the
legislative
drafters that, it is not the kind of arbitration that could that
could be conducted under the auspices of a potentially
interested
party, one of which could be a bargaining council itself. I agree
with the respondents that Metrobus has used the wrong
procedure to
determine the dispute. Accordingly, the determination of the
applicability of the agreements is not pending before
any forum
having jurisdiction to determine it. In consequence of having
referred the matter to the SALGBC instead of the CCMA,
the alleged
dispute cannot be determined by it, and interdicting a strike pending
the finalisation of a dispute by a body without
the power to do so
would be a meaningless order.
[14]
Even if I construe the relief sought in the alternative as
essentially one of the urgent interim relief despite it being cast
in
a final form, the same difficulty confronts the applicant.
Accordingly, there is no basis for granting the alternative relief
contingent on the outcome of the referral of the dispute to the
SALGBC.
[15]
In
terms of 65(3)(a)(i) of the LRA, 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 if that
person is bound
inter
alia
by
a collective agreement that regulates the issue in dispute.
Whether there has been compliance with the provisions of s
64 and s
65 of the LRA is a matter for the court to determine in the exercise
of its power to determine the protected status or
otherwise of a
strike, irrespective that another forum having the power to determine
one of those issues as a primary dispute might
be seized of it.
[3]
If a ruling under s 62(1)(b) had already been made on the issue by
the CCMA under 62(1)(b), the situation would no doubt be different.
Under circumstances, where no referral has been made for such a
determination and no ruling has been made, the applicant must at
least demonstrate that in all probabilities it would be entitled to
such a determination in its favour. In short, in the absence
of a
proper referral to the appropriate body, there is no determination
pending and Metrobus must demonstrate a clear right to
the relief
sought in the absence of being able to rely on a determination.
-
The demarcation dispute settlement
[16]
By early 2014, a settlement agreement was reached between the parties
to a demarcation dispute (‘the settlement agreement’).
That dispute concerned whether or not the Johannesburg municipal
entities, including Metrobus, fell under the scope of the Council.
SAMWU and IMATU were the only union parties to that agreement.
[17]
In terms of clause 3 of the settlement agreement, each municipal
entity was entitled to be represented in its own right in
the
Johannesburg division of the SALGBC subject to the allocation of
representatives in terms of the SALGBC constitution. Clause
4.1 of
the agreement provided that subject to clauses 4.2 and 4.3 the
“Municipal Entities are exempt from the provisions
of all
collective agreements, concluded in the SALGBC …”. This
was subject to certain exceptions which are not relevant
here. Clause
4.2 of the settlement agreement did bind the municipal entities only
to the following sections of the Main agreement:
Organisational
Rights (part C section 2); Agency Shop (Part C section 3); Bargaining
Council Levy (Part C section 6) and Rules
of the Council (Part D).
Lastly, clause 4.3 did require the municipal entities to provide
conditions of service that ‘on
the whole’ were ‘not
less favourable’ than those prescribed by SALGBC agreements
which applied to City of Johannesburg
employees.
[18]
As far as disputes were concerned, the parties agreed in clause 6
that disputes arising which the LRA required to be referred
to a
bargaining council would be resolved through SALGBC dispute
procedures and if those procedures were established by collective
agreements, those collective agreements would apply.
[19]
It is pertinent to note that the settlement agreement contained no
extension of the agreement to employees who were not members
of IMATU
or SAMWU in terms of s 23(1)(d) of the LRA. The CCMA declined to make
the settlement agreement an arbitration award, so
the demarcation
dispute effectively was withdrawn without a demarcation ruling being
issued.
-
The 2015 Main Agreement
[20]
In any event, the settlement agreement pre-dated the 2015 Main
Agreement, and it is the application of that main agreement
which is
in contention here. Further, the issue of whether or not municipal
entities like Metrobus fell within the scope of the
SALGBC and the
main agreement was resolved by the amendment of the council’s
scope in December 2016, so the relevance of
the settlement agreement
is at best limited only to the fact that in so far as the settlement
agreement can be read to have been
intended to apply to any
successive main agreement while the settlement agreement remained in
force, the grievance procedures and
bargaining arrangements in the
main agreement are still not applicable to Metrobus. In any event, as
discussed below, even if the
settlement agreement is of no current
relevance, the 2015 Main Agreement is still currently inapplicable to
Metrobus.
[21]
The scope of application of the Main Agreement of the SALGBC
concluded on 9 September 2015, but effective from 1 July 2015,
states
that:
The
terms of this agreement shall be observed
in the Local Government
Undertaking
in the Republic of South Africa
by all employers
and by all employees who fall within the scope of the Council
.
(emphasis
added)
It
is common cause that Metrobus and its employees fell within the
registered scope of the SALGBC since December 2016, which is
when the
council’s scope was extended.
[4]
[22]
The central issue is whom, if any, of Metrobus’s employees the
Main Agreement applies to.
[23]
Collective agreements are binding on employees in terms of these
provisions of s 23 of the LRA:
23.
Legal effect of collective agreement
(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.
(2)
A collective agreement
binds for the whole period of the
collective agreement every person bound in terms of subsection (1)(c)
who was a member at the time it became binding, or who becomes a
member after it became binding, whether or not that person continues
to be a member of the registered trade union or registered employers'
organisation for the duration of the collective agreement
.
(emphasis
added)
[24]
The parties to the main agreement were SALGA (the employers’
organisation) and the unions SAMWU and IMATU. In terms of
clause 22.1
the 2015 Main Agreement replaced the previous Main Agreement of 18
August 2007, which presumably would have applied
when the demarcation
settlement was concluded. Clause 3.2 of the agreement states:
This
Agreement shall come into operation in respect of non-parties (which
includes but is not limited to Municipal Entities as defined
in the
Municipal Systems Act, 32 of 2000), on a date to be determined by the
Minister of Labour and shall remain in force until
30 June 202; and
after 30 June 2020 or such further period as determined by the
Minister of Labour as requested by the Parties.
It
is common cause that at the time of this application, the agreement
has not been extended by the Minister to non-parties falling
within
the scope of the agreement. Further, neither Metrobus nor DEMAWUSA
are parties to the main agreement nor any existing wage
agreement.
There was no allegation that Metrobus itself was bound by any
agreement by virtue of being a member of the employer’s
organisation either, even though it and its employees fall within the
scope of agreement since the council’s scope was extended
to
include municipal entities with effect from 29 November 2016. By
virtue of this extension the scope of the main agreement was
also
extended but that did not necessarily make it binding on all who fell
within that scope.
[25]
Consequently, from that date employees of Metrobus fell within the
scope
of the Main Agreement. However, that is not the same as
being bound by it. Metrobus bases its argument that the agreement is
binding
on it and its employees merely by virtue of falling within
the scope of the agreement. However, that is simply insufficient in
the absence of showing that the agreement is binding by virtue of the
provisions of s 23 or 32 of the LRA. No facts were pleaded,
nor was
argument advanced by Metrobus on these grounds.
[26]
As the grievance procedure as part of the main agreement is also not
binding, the failure to follow all its steps before a
dispute was
referred to the bargaining council does not mean the referral was
premature.
Do
the strike demands render the strike unprotected ?
-
Collective bargaining demands
[27]
Since the Main Agreement is not applicable, the provisions of clause
10 do of the main agreement not apply to Metrobus and
as far as the
collective bargaining demands mentioned in paragraphs 1, 2, 3 and 5
of the strike demands are concerned, there is
nothing which would
render a strike in respect of these demands by Metrobus employees
unprotected, on the grounds advanced by Metrobus.
-
Suspension and disciplinary action in respect of certain employees.
[28]
Metrobus
relies principally on its contention that these demands cannot be the
subject matter of a protected strike to argue that
the strike will be
unprotected. These demands were set out in paragraphs 8 to 10 of the
strike demands and subsequently replaced
by more compromising ones.
It might have been argued in relation to the original demands in this
respect that they could not have
been met without breaching the
affected employees’ rights to fair labour practices. However,
on reflection DEMAWUSA has been
careful to tailor these demands so
that they do not demand that the employer does anything that could be
construed as procedurally
improper and calls for independent
adjudication throughout any suspension or disciplinary process that
might be initiated. A demand
for a dismissal is not an illegitimate
strike demand provided it does not require the employer to dismiss a
person unfairly.
[5]
The
safeguards provided for in the toned down version of these demands
adequately satisfies this test. Accordingly, these
demands do not
make the strike unprotected.
-
Demands on issues in progress
[29]
In terms of the founding affidavit, no basis was laid out claiming
that these demands could not be the subject matter of a
protected
strike. These issues concern the removal of persons from acting
positions and removal of so-called scrap ticket machines
and their
replacement by cashless ones. Once again, there was some modification
of these demands. The demand regarding ticket machine
replacement was
changed to a demand for an undertaking this would be completed in 60
days. On the face of it, there is nothing
which makes this modified
demand or its predecessor an issue which cannot form the basis of a
protected strike demand. Similarly,
there was considerable
modification of the demand in respect of Mr Lebelo, to the point
where DEMAWUSA is essentially demanding
responses to a series of
questions about his posting at Metrobus. There is nothing inherently
unlawful that Metrobus will be required
to do to satisfy this demand
and it is a matter of mutual interest.
[30]
In relation to other acting arrangements, the demand articulated was
that, acting posts in existence for three months should
be abolished
and open positions filled within the same time frame. Metrobus
responded by saying it was complying with its
policy in respect of
time limits on acting appointments and filling vacancies. Once
again no basis was laid in the founding
papers that these demands
could not, as such underpin protected strike action. Similarly, no
case was laid why the demand to withdraw
a memorandum could not be
legitimate.
[31]
In conclusion, I am not satisfied that Metrobus has demonstrated that
the demands as articulated by the time the application
was heard
could not be legitimate grounds for protected strike action.
Summation
[32]
In summary, I am not satisfied that Metrobus has demonstrated a clear
right to interdict the strike as it has failed to provide
clear
grounds that would render the strike unprotected.
Costs
[33]
As there was no good reason for the applicant to have launched these
proceedings without complying with the provisions of s
68(3), even
though by agreement, the matter was dealt with in a way that would
avoid repetitive and costly proceedings, a salutary
cost award is
appropriate to discourage non-compliance with the section.
Order
[1]
The application is dealt with as one of urgency and the applicant’s
failure to comply
with the Rules of the Labour Court relating to time
periods is condoned.
[2]
The application is dismissed.
[3]
The applicant must pay the respondents costs of opposing the
application.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M
Sibanda instructed by Cliffe,
Dekker
Hofmeyr Inc.
RESPONDENT:
R
Daniels of Cheadle,
Thompson
& Haysom Inc.
[1]
[1998] 11 BLLR 1116 (LC
[2]
See
Setlogelo
v Setlogelo
1914 AD 221
at 227 and
V
& A Waterfront Properties (Pty) Ltd & another v Helicopter &
Marine Services (Pty) Ltd & others
2006 (1) SA 252
(SCA) para [20].
[3]
See Cape Gate (Pty) Ltd v National Union of Metalworkers of SA &
others (2007) 28 ILJ 871 (LC) at 877, para [29].
[4]
Notice No 1525, GG 40480, dd 09/12/16.
[5]
See
National
Union of Public Service & Allied Workers on behalf of Mani &
others v National Lotteries Board
(2014) 35
ILJ
1885 (CC) at 1940-1, para [199].