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[2018] ZALCJHB 286
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Sun International Ltd and Others v South African Commercial Catering and Allied Workers Union (SACCAWU) and Others (J1408/18) [2018] ZALCJHB 286 (11 September 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
J1408/18
In
the matter between:
SUN
INTERNATIONAL LTD
AND
15
OTHERS.
Applicants
and
SOUTH
AFRICAN COMMERCIAL CATERING AND
ALLIED
WORKERS UNION (‘SACCAWU’) TOGETHER
WITH
INDIVIDUAL RESPONDENTS LISTED IN ANNEXURES
‘
A’
TO
‘O’
Respondents
Heard
:
31 August 2018
Delivered
:
11 September 2018
Summary:
Return day – Final order sought to interdict a strike action.
Where the demand is an issue regulated by a collective
agreement and
or the provisions of the LRA – employees prohibited to strike.
Duty of the court to determine what the true
dispute is – if
the dispute as determined falls within those upon which employees may
not strike terms of a collective agreement
– strike is
unprotected. Held: (1) The
Rule nisi
is discharged Held: (2)
Each party to pay its own costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
Today is
the return day for a
rule
nisi
issued by this Court on 26 April 2018. On this day, the applicants
sought confirmation of the rule, whereas the respondent sought
a
discharge of the rule. The crisp issue to be determined by this court
is whether the demand by the respondents is one that the
respondents
are prohibited to strike over in terms of the Labour Relations Act
[1]
(LRA) or a collective agreement. There is no dispute between the
parties that procedurally, the intended strike action is protected.
In this judgment, I shall not direct my attention to issues
pertaining to procedural compliance. I shall devote my attention to
the question whether the true demand is prohibited substantively or
not.
Background
facts
[2]
Given the crisp issue before me, I shall
not consider historical facts which are not directed at the question
– what is the
true issue in dispute? On 26 January 2017 a
dispute arose between the applicants and the respondents. In the
referral form, which
was made to the Commission for Conciliation
Mediation and Arbitration (CCMA) on 15 February 2017, the referring
party described
the dispute thus:
“
The
union is in dispute with the company over the inability by the
company to reach an agreement
over the
inclusion
of slots technicians, grips,
auditors and all positions as per attached list (annexure C)”
[3]
In the same form, the referring party
described the nature of the dispute as one of mutual interest. On 12
April 2017, the parties
attempted to resolve the dispute through a
conciliation process. The CCMA commissioner characterized the dispute
as one of mutual
interest. After failing to resolve the dispute, the
CCMA, through commissioner Kekana, certified that the referred
dispute remained
unresolved. On 13 October 2017, another conciliation
meeting took place. Following that, on 23 October 2017, commissioner
Kekana
issued an advisory award within the contemplation of section
135 (3) (c) of the LRA. The advice given was that the applicants
before
me must reconsider their position. On or about 31 October
2017, a memorandum was issued to all the employees. In that
memorandum,
the applicants advised the employees about an advanced
scheduling. On 9 February 2018, the respondent union formally
declared a
dispute in accordance with the relationship agreement.
Three issues were identified, namely, company must stop the planned
implementation
of advanced scheduling; company must revert back to
the normal way of doing the roster whereby departmental managers are
responsible
for scheduling of employees and company must convert PPT
employees to PFT. The respondent union suggested a meeting within
seven
days of the formal declaration of the dispute.
[4]
On 26 February 2018, the respondents
referred the dispute declared on 9 February 2018 to the CCMA for
resolution. On 14 March 2018,
commissioner Williams certified that
the dispute remained unresolved. On or about 27 and 28 March 2018,
the Central Forum held
a meeting. The meeting dealt with amongst
others the issues raised on 9 February 2018 and to be discussed in
the next meeting was
various issues inclusive of the extension of
negotiated benefits to employees in annexure C. Allegedly, it was
rumoured that the
respondents were planning a strike action. On 19
April 2018, the applicants addressed correspondence to the respondent
union, seeking
confirmation of the rumor that was circulating. It is
important at this stage to describe the rumor heard by the
applicants:
“
It
has also come to our attention that the strike will be
to
convince Sun International to amend the current bargaining unit and
include all job titles as listed in Annexure C
[AA1]
.”
[2]
[5]
The
union respondent refused to respond to a rumour and referred to the
48 hours’ notice should a strike action be contemplated.
Following that, the union sought to resort to the Regulations of
Gatherings Act
[3]
(RGA) to deal
with its demands. The purpose of the gatherings was to voice their
unhappiness about exclusion of certain positions
in the bargaining
unit and the refusal to convert part time employees into full time
employees. There is no indication on the papers
whether the gathering
took place as planned. On 23 April 2018, the applicants warned the
respondents of the illegality of their
planned action. In response,
the respondent union disputed the allegations of illegality.
[6]
On 23 April 2018, the respondents issued a
notice in terms of section 64 of the LRA. In terms of the notice, the
strike was to commence
on 27 April 2018 and end on 30 April 2018. The
notice describes the dispute thus:
“
Kindly
take note that since the parties are in dispute in respect of
extension
of Bargaining Unit to include
supervisors, table inspectors… and all other positions listed
on Annexure C
[AA2]
”
[4]
[7]
On 24 April 2018, the applicants launched
the present application to be heard on 26 April 2018. As pointed out
above, a
rule nisi
was issued returnable on 31 August 2018.
Why
should the intended strike be declared unprotected and accordingly
curtailable?
[8]
The
basis upon which the applicants contend that the strike action is to
be limited is that section 65(1)(a)
[5]
read with section 65 (3)(1)
[6]
of the LRA finds application.
Evaluation
[9]
In matters of this nature, the starting
point is, as always, the Constitution of the Republic of South
Africa. Section 23(2)(c)
of the Constitution, provides that ‘
every
worker has the right to strike’
.
The right to strike is an individual right guaranteed in the supreme
law of this country. Like many other rights guaranteed in
the Bill of
Rights, the right to strike is subject to limitations in terms of the
law of general application. The law that seeks
to limit the right to
strike in this instance is the LRA.
Does
section 65 (1) (a) find application?
[10]
As
far as the applicants are concerned, there is a collective agreement
that prohibits a strike action in respect of the issue in
dispute. On
the other hand, the respondents contend that the section does not
find application. The LRA defines an
issue
in dispute
in a strike situation as the demand, the grievance or the dispute
that forms the subject matter of the strike. The task of the
court in
this regard is to consider and determine what the true dispute is. In
Brinant
Security Services (Pty) Ltd v UPSWU and 115 others
[7]
,
my
sister Basson J, sitting in the Labour Court said:
[12]
…Secondly, in order to determine what the true or actual issue
in dispute is, the Court will have regard to the referral
form (LRA7:
11) as well as facts placed before it… The most effective way
of determining the real issue in dispute is to
ask the following
questions:
What must the employer do in order to avoid the
commencement of the strike? Where the strike has already begun the
question would
be: what must the employer do in order to bring an end
to the strike? ...”
[11]
I
am in agreement with this approach. The approach is informed by what
the LAC has already said.
[8]
Regard being had to the referral form; the strike notice and the
admitted facts, if the applicants had extended the Bargaining
Unit to
include certain employees in the positions as set out in annexure C,
the strike would not have commenced. Therefore, that
is the issue in
dispute. Is the issue of the extension of the Bargaining Unit
prohibited in a collective agreement? The Relationship
Agreement (RA)
concluded in 1999 does not make reference to the inclusion in and or
extension of the Bargaining Unit. It simply
regulates the
relationship between the applicants and the Union. With regard to the
Bargaining Unit, all it does is to define the
phrase in so far as it
is employed in the agreement. It seeks to aid the interpretation of
the phrase whenever employed in the
agreement. The peace obligation
specifically prohibits strike action on any issue which is the
subject matter of an agreement.
Therefore, my reading of the RA does
not suggest that striking over the extension of the Bargaining Unit
is prohibited. The Substantive
Agreement (SA) concluded for 2018 to
2021, 2009 to 2010/2011 and 2011 to 2012 do not prohibit a strike
action over the extension
of the Bargaining Unit.
[12]
In the 2011 to 2012 SA, the parties did
recognize that the negotiated benefits will be extended. The parties
undertook to engage
in negotiations aimed at reviewing the structure
and composition of the current Bargaining Unit subject to certain
provisos. I
therefore conclude that striking over the issue of the
extension of the Bargaining Unit is not prohibited in terms of the
section.
The argument by Mr Van Zyl, for the applicants, suggests
that because a criterion has been agreed to for determining the
employees
in the Bargaining Unit, then employees cannot make any
demands to seek an extension. This cannot be correct. The employees
are
simply demanding an extension, which as it is apparent from
clause 10.1 of the 2011 to 2012 SA, was agreed to by the applicants.
In order to avert the strike what was required was to simply extend
the Bargaining Unit.
Does
section 65 (3) (a) (i) find application?
[13]
I
have already found that the issue in dispute is the extension of the
Bargaining Unit. The question relevant herein is whether
there is any
collective agreement that regulates the extension of the Bargaining
Unit. The dictionary meaning of the word regulate
is to control,
govern, or direct by rule or regulations
[9]
.
Other than a promise to extend the benefits in clause 10.1 referred
to above, there is no other clause that seeks to control or
govern
the extension of the Bargaining Unit. The applicants’ case in
the founding affidavit is limited to reference to the
agreed criteria
as to who shall constitute a Bargaining Unit. That, to my mind does
not regulate a demand to extend the Bargaining
Unit. Therefore, in my
view section 65 (3)(1)(a) does not find application.
The
issue is academic
[14]
Section 64 (1)(c) obliges that a 48 hours’
notice be given on the commencement of the strike action. There are
various judgments
of this court to the effect that if the strike
notice is unclear and defective, the strike action would be
unprotected. In terms
of the notice relevant to this matter, the
strike action was to commence after 05h00 on 27 April 2018 and end on
the 30
th
April 2018 at 05h00. Therefore, on the return day, the strike would
have ended. Even if it was unprotected, it was not going to
continue
after 30 April 2018. Issuing a final order would have been academic.
None of the parties before me dealt with this issue.
I do not know
the reason why. This court can refuse to issue an order where there
are no longer live issues. This matter is in
my view moot and should
be dealt with on those bases.
Conclusion
[15]
For all the above reasons, I conclude that
the strike action was going to be protected, however, despite that,
the application is
nonetheless moot.
[16]
In the results I make the following order:
Order
1 The
rule nisi
issued on 26 April 2018 is hereby discharged;
2 Each party to pay its
own costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
.
Appearances
For the
Applicant:
Advocate B Van Zyl.
Instructed
by:
Van Zyl Rudd Inc Attorneys, Port Elizabeth.
For
the Respondents: Advocate B
Ford.
Instructed
by:
Ndumiso Voyi Inc, Midrand.
[1]
66 of 1995, as amended.
[2]
Letter addressed to the respondent union.
[3]
205 of 1993.
[4]
Strike notice.
[5]
65.
Limitations on right to strike or recourse to lock-out
(1) No person may take
part in a strike or 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.
[6]
65 (3) (1) 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…
[7]
Case number J3339/12 delivered on 18 March 2013.
[8]
See Ceramic Industries Ltd t/a Betta Sanitaryware v NCBAWU and
others (2) [1997] 18 ILJ 671 (LAC)
[9]
Shorter Oxford English Dictionary Sixth Edition Volume 2.
[AA1]
Judge
– Kindly insert the reference for this quote
[AA2]
Judge
– Kindly insert the reference for the quotation