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[2018] ZALCJHB 304
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SBV Services Proprietary Limited v SASBO The Finance Union obo Members and Others (J3280/18) [2018] ZALCJHB 304 (28 September 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J
3280/18
In the matter
between:
SBV SERVICES
PROPRIETARY
LIMITED
Applicant
and
SASBO THE
FINANCE UNION OBO MEMBERS
First
Respondent
THE EMPLOYEES
LISTED IN ANNEXURE
“
A”
TO THE NOTICE OF MOTION, BEING
MEMBERS OF
THE FIRST RESPONDENT
EMPLOYED AT
THE
APPLICANT
Second
Respondent
Heard: 18
September 2018
Delivered: 28
September 2018
JUDGMENT
MAHOSI J
Introduction
[1] On 10
September 2018, the first respondent (SASBO) on behalf of the
employees gave the applicant (SBV) a strike notice which
was later
withdrawn. On 11 September 2018, SASBO issued a new strike notice in
terms of which it demanded the following:
‘
RE:
48 HOURS’ NOTICE OF PROPOSED INDUSTRIAL ACTION
Demand
1
3.1
SBV entered into a collective agreement on salary increases with
SASBO on 1 September 2017.
3.2
From the outset it was the understanding that any agreement with any
other union will not be on more favourable terms as agreed
to between
SBV and SASBO.
3.3
Subsequently, SBV entered into an agreement with another union on
terms more favourable than the terms recorded in the agreement
with
SASBO.
3.4
This resulted in severe prejudice suffered by SASBO in the loss of
membership.
3.5
SASBO demands parity in treatment as a recognized union within SBV.
Demand
2
3.6
The performance-based distribution of salary increases has not been
resolved.’
[2] Subsequent
to the SBV’s filing of this application, the parties legal
representatives, entered into an agreement, terms
of which are as
follows:
‘
1.
The applicant shall approach this Honourable Court for a declarator
order, effectively seeking a declaration as to whether the
strike
notice dated 11 September 2018 would be protected or not.
2.
The said application would be heard at 10H00 on Friday, 14 September
2018.
3.
The First Respondent undertook not to commence with strike action
until such time that the Honourable Court has pronounced on
the said
application’.
[3] On 14
September 2018, the matter was postponed to 18 September 2018 to
afford the applicant an opportunity to file its replying
affidavit.
[4] Prior to
considering the issues that gave rise to the dispute, it is necessary
to summarise the facts that form relevant background
to the dispute
between the parties.
Material
Background
[5] SBV
currently employs 6043 permanent employees. Of these employees, 1549
are SASBO members and 3098 are members of Motor Transport
Workers
Union (MTWU). SASBO enjoys both organisational rights and recognition
at SBV in terms of a Recognition and Procedural Agreement
concluded
on 22 May 1991 (the Recognistion Agreement).
[6] On 1
September 2017, SBV and SASBO, signed a Collective Agreement –
2017 and 2018 Salary Increases (the Wage Agreement)
regulating,
amongst others terms and conditions of employment, including wages
for a period between 1 July 2017 to 30 June 2019.
[7] On 28
September 2017, SBV and MTWU concluded a one-year collective
agreement (the MTWU agreement) effective from 1 October to
30
September 2018.
[8] On 26 May
2018, SASBO addressed a letter to SBV declaring a dispute in terms of
the provisions of the Recognition Agreement.
SBV responded to SASBO
in a letter dated 1 June 2018 disputing the declaration. It proposed
that a meeting between the parties
be held on 8 June 2018.
[9] SBV and
SASBO convened a meeting of the Standing Joint Committee as required
by the Recognition Agreement on 8 June 2018. The
parties were unable
to resolve the dispute. On 8 June 2018, SASBO referred an alleged
dispute of mutual interest to the Commission
for Conciliation,
Mediation and Arbitration (CCMA) under case number HO250-18.
[10] The
conciliation was set down for hearing on 5 July 2018 and at the
conciliation SBV raised a preliminary point to the effect
that the
dispute referred by SASBO about wages, salary and overtime had been
fully and finally settled by way of the Wage Agreement.
Accordingly,
there was no wage dispute capable of being adjudicated for the
duration of the Wage Agreement.
[11] Pursuant to
the representations made by the parties, commissioner Mduduzi Khumalo
issued a ruling dated 17 July 2018 (the Ruling)
in terms of which,
inter alia
, he ruled that the CCMA had jurisdiction to deal
with the matter, SASBO’s dispute existed and fell within a
category of mutual
interest and the matter should be enrolled for
further conciliation.
[12] On 26 July
2018, SBV addressed a letter to SASBO in terms of which it stated,
inter alia
, that:
‘
2.
[SBV has] taken advice on the Ruling and intend[s] on taking it on
review to the Labour Court. [SBV is] of the view that this
dispute
has been settled by the Collective Agreement dated 1 September 2017
(“
Collective
Agreement”)
and
therefore the CCMA does not have jurisdiction to conciliate the
matter. To be clear, SBV will not participate in any further
conciliation meetings on matters which are governed by the provisions
of the Collective Agreement.
3.
Furthermore, and [SBV] wish to place on record that, since this
dispute has been settled by the Collective Agreement, [SASBO]
and its
members are prohibited under
section 65(3)(a)(i)
of the
Labour
Relations Act, 66 of 1995
, from engaging on a strike in support of
this demand. Any employees who participate in unlawful strike action
will be subject to
disciplinary action’.
[13] On 13
August 2018, SBV instituted a review application in respect of the
Ruling under Labour Court case number JR 1595/18 on
the basis that,
inter alia
, the commissioner committed an error of law in
finding that the CCMA had jurisdiction to adjudicate the dispute.
[14] A
conciliation meeting in respect of SASBO’s dispute was set down
again on 14 August 2018. SBV did not attend the conciliation
meeting
on 14 August 2018 on the basis that SASBO’s dispute had already
been settled by the Wage Agreement. Instead SBV sent
Ms Jessica
Braum, an attorney working at the offices of its attorneys of record,
Webber Wentzel, to ensure that the commissioner
was aware of the
institution of the review application and to collect any certificate
of outcome. The commissioner issued a certificate
of non-resolution
indicating that SASBO may refer the matter to a strike. It is on the
basis of this certificate that SASBO seeks
to embark on a strike.
[16]
It is common cause that SASBO and its members seek to embark upon a
strike in pursuit of two demands as recorded in the second
strike
notice. These two demands are central to the determination of whether
the strike would be protected or whether it would
be in contravention
of the provisions of
section 65
of the
Labour Relations Act
>
[1]
(LRA).
[17] SBV’s
contention is that the two demands recorded in the second strike
notice were not referred to the CCMA for conciliation
and further
that
section 65(3)(a)(i)
prohibits SASBO and its members from
engaging in a strike in respect of their dispute as wages, salary and
overtime for the period
1 July to 30 June 2019 have been fully
settled and are regulated by the Wage Agreement. SASBO contends the
opposite.
Applicable
law and analysis
[18]
Section
64(1)
provides as follows:
‘
64.
Right to strike and recourse to lock-out
(1)
Every employee has the right to strike and every employer has
recourse to lock-out if -
(a)
the issue in dispute has been referred to a council or to the
Commission as required by this Act, and
(i)
a certificate stating that the dispute remains unresolved has been
issued; or
(ii)
a period of 30 days, or any extension of that period agreed to
between the parties to the dispute, has elapsed since the referral
was received by the council or the Commission; and after that -
(b)
in the case of a proposed strike, at least 48 hours ‘notice of
the commencement of the strike, in writing, has been given
to the
employer, unless -
(i)
the issue in dispute relates to a collective agreement to be
concluded in a council , in which case, notice must have
been given
to that council ; or
(ii)
the employer is a member of an employers’ organisation that is
a party to the dispute , in which case, notice must have
been given
to that employers’ organisation ; or
(c)
in the case of a proposed lock-out, at least 48 hours ‘notice
of the commencement of the lock out, in writing, has been
given to
any trade union that is a party to the dispute , or, if there
is no such trade union, to the employees,
unless the
issue in dispute relates to a collective agreement to be
concluded in a council , in which case, notice must have
been given
to that council; or
(d)
in the case of a proposed strike or lock-out where the State is
the employer, at least seven days‘ notice of the
commencement
of the strike or lock-out has been given to the parties
contemplated in paragraphs (b) and (c).’
[19]
Section 65
(3)(a)(i) provides as follows:
‘
(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.’
[20] The crisp
question for determination is whether SASBO and its members are
prohibited from striking in respect of the demands
as recorded in the
second strike notice. This issue thus requires a careful engagement
with the two demands. The first question
is whether both demands were
referred to conciliation.
Were the
demands conciliated?
[21]
SASBO submitted that a
bona
fide
and real dispute of fact exists on the papers in relation to the
question whether its demands as recorded in the second strike
notice
were conciliated. It referred the Court to the decision of
Kwa-Zulu
Natal Tourism Authority and Others v Wasa
[2]
in
support of its submission that the factual dispute ought to be
determined by reference to its version, as opposed to the
applicant’s.
The basis of SASBO’s submission is that it
unambiguously pleaded that both issues formed part of the dispute
placed before
and communicated to the commissioner during the
conciliation proceedings. SASBO further submitted that the general
probabilities
emanating from the pleadings supports the conclusion
that both demands were in fact conciliated.
[22] The dispute
resolution procedure as embodied in the Recognition Agreement appears
on clause 7 thereof and it states as follows:
‘
Disputes
Procedure
7.1
For the purposes of this agreement a dispute shall have arisen when
the appropriate Company procedure or negotiating procedure
has been
exhausted and a dispute has been declared.
7.2
in the case of a dispute the following procedure shall apply:
7.2.1
Declaration
of dispute
The
aggrieved party shall declare a dispute in writing and shall furnish
full particulars of the dispute to the other party (the
answering
party). Such notice shall set out the nature of the dispute and the
proposed terms of settlement required.
7.2.2
Answering
Statement
Within
7 (seven) days of receipt of the declaration of dispute, the
answering party shall serve on the aggrieved party an answering
statement in which it shall respond in detail to the allegations in
the statement of dispute and shall further set out a statement
of the
party’s position in regard to the solution required.
7.2.3
Meeting
of the parties
If
the dispute remains unresolved, the aggrieved party shall convene a
meeting of the Standing Joint Committee within 14 (fourteen)
days of
receipt of the answering statement. In the event of the
meeting failing to resolve the dispute the meeting may determine
whether to refer the dispute to mediation or arbitration and if so
the procedure to be followed in respect of such referral.
7.3
By mutual agreement the party’s may agree to reduce or extend
any time period or omit any stage referred to in Clause
7.
7.4
In the event of any dispute not being resolved in accordance with the
provisions referred to above, then either party shall
be entitled to
exercise their rights at law.’
[23] In its
notice of declaration of a dispute dated 26 May 2018, SASBO recorded
as follows:
‘
Our
meeting of 20 April 2018 and 4 May 2018 refers.
We
hereby declare a dispute in terms of clause 7 of the Recognition
Agreement between the parties, this is relation to the Salary
Negotiations of the review period 2018-2019 and following failed
attempts made by the parties to try and reach an agreement on
the
aforementioned matter.
We
place on record that we remain open to negotiations and the union
will seek external remedy as a last resort.
We
await SBV’s response, together with the proposed meeting date/s
and time/s for the holding of the dispute meeting/s.’
[24] SBV’s
response recorded as follows:
‘
1
SASBO’s dispute declaration of 26 May 2018 refers.
2.
We confirm that the 2018 salary increases are regulated by the
collective agreement that SBV and SASBO concluded on 1 September
2017. Paragraph 5.2.1 of the agreement provides for the salary
increases to be equal to the CPI for March 2018 + 3.0%, with a
minimum increases of 8.5% and a maximum increase of 8.75%. The CPI
for the March 2018 was 3.8%. The salary increases for 2018 is
therefore 8.5% as per 1 September agreement. Only the distribution of
the 8.5% salary increases per performance appraisal rating
is left to
be determined in 2018.
3.
We repeat our advice of 4 May 2018 that SBV will not exceed to
SASBO’s demand to renegotiate the 2018 salary increases.
SBV
regards the collective agreement of 1 September 2017 as binding on
both parties. We therefore implore SASBO to consider the
distribution
of the 8.5% salary increases in terms of employees’ performance
appraisal ratings and to provide us with a distribution
proposal as
soon as possible.
4.
SBV proposes that a dispute meeting envisaged in the recognition
agreement takes place on either Friday 8 June or Tuesday 12
June 2018
at 10:30 at SBV’s House.’
[25] In its
referral to the CCMA, SASBO describes the dispute at paragraph 3 of
its referral form as follows:
‘
The
parties are engaged in Annual Remuneration Negotiations and have not
been able to reach an agreement. The Union declared a dispute
as per
the Recognition Agreement between the parties. An internal dispute
meeting was held in accordance with the Recognition Agreement,
to no
avail. In line with the dispute resolution procedures stipulated in
the Recognition Agreement, the Union has accordingly
decided to refer
the matter to the CCMA for conciliation/mediation as per
section 64
of the LRA’.
[26] As
aforesaid, the applicant raised a preliminary point challenging the
CCMA’s jurisdiction. In his ruling, the commissioner
summarised
the background to the dispute as follows:
‘
BACKGROUND
[5]
SBV is in financial services and in the main provides cash
transportation and security to its clients who conduct business in
the banking industry. The respondent is a Trade Union registered in
term of the
Labour Relations Act 66 of 1995
.
[6]
In September 2017, the parties entered into a two year substantive
collective agreement on terms and conditions of employment.
The
collective agreement was to remain in force until 30 June 2019.
[7]
In terms of the collective agreement SASBO was the only Trade Union
organized at the employer. However, during the wage talks
a new
player had entered the fray which reduced the level of representation
of the respondent. The applicant decided to engage
the two trade
unions individually for purposes of wage negotiations. SASBO
concluded its wage talks first, whereas MTWUSA concluded
its wage
negotiations around October 2017. (MTWUSA collective agreement was
not presented to me).
[8]
The parties agreed that the other labour formation agreement was more
favourable with regards to minimum wage and this prompted
the
applicant to seek the review of certain terms of its collective
agreement. SASBO submitted demands to SBV, which the employer
presented to its principals who was not keen to entertain the
demands. This communicated to the union (SASBO), that led to the
mutual interest dispute being filed with the Commission.’
[27]
The commissioner further summarised arguments on behalf of SABO as
follows:
‘
[12]
SASBO gave extensive background to the matter, largely restating what
is contained in the collective agreement. He confirmed
that the Trade
Union was fully mandated to conclude same by the members and that
this was done relying on available information.
He sought to blame
the information obtained from the employer and that it resulted in
the union accepting lower offer from the
SBV. To illustrate this
point, he referred me to clause 6 of the collective agreement, which
refers to job protection.
[13]
He argued that a month after conclusion of their collective
agreement, SBV entered into a collective agreement with the other
Labour formation which was significantly greater than the collective
agreement entered into with their trade union. He insisted
that this
had an adverse effect on their agreement as the amounts achieved by
the other labour formation were significantly as
they amounted to a
difference of about R700. This resulted in loss of membership to the
trade union. Further that the increase
in cost of living has affected
the achievements made by the Trade Union in the last round of
collective bargaining.’
[28] From the
reading of the commissioner’s ruling and the evaluation of the
pleadings and correspondences between the parties,
it appears that
both demands at all relevant times formed part of the dispute between
parties. Consequently, these issued formed
part of the unresolved
dispute between the parties that was ultimately referred to the CCMA.
SVB’s contention that the intended
strike in relation to the
first demand falls foul of procedural agreement and
section 64(1)
of
the LRA is baseless.
Is the strike
protected in terms of
section 65(3)(a)?
[29]
The next question is whether
section 65(3)(a)(i)
prohibits SASBO and
its members from engaging in a strike in respect of their dispute.
Clause 1.1 of the Wage Agreement provides
that:
‘
The
Parties have been engaged in negotiations regarding the review of
salaries and overtime arrangements for the Bargaining Unit
for the
period 1 July 2017 to 30 June 2018.’
[30]
Clause 1.3 of the wage agreement provides that “the parties
have concluded their substantive negotiations for period
1 July 2017
to 30 June 2019, and the parties have reduced their agreement to
writing as set out below”.
[31]
Clause 9 provides as follows:
‘
Full
and Final Settlement
This
Agreement will amend all current existing terms and conditions of
employment of all employees referred to in this Agreement,
and will
constitute a full and final settlement of all demands and proposals
made by the Union on behalf of its members in respect
of the review
of wages for the duration of this Agreement.’
[32]
And clause 13 provides that:
‘
This
Agreement contains all the provisions agreed on by the Parties with
regard to the subject matter of the Agreement and supersedes
and
novates in its entirety any previous understandings or agreements
between the Parties in respect thereof, and the Parties waive
the
right to rely on any alleged provision not expressly contained in
this Agreement.’
The demand of
parity treatment
[33] In relation
to the first demand, SASBO seeks “parity in treatment.”
In this regard, SASBO demands that, to an extent
that SBV entered
into a collective agreement on salary increases with MTWU on terms
more favourable than the terms of the agreement
with it, these terms
must apply to its members as well. SASBO effectively demands for
increased wages for its members. The demand
is made despite the
existence of the parties’ collective agreement that regulates
minimum wages and wage increases.
[34] This seeks
to reopen a matter already regulated by the collective agreement
entered into by the parties during the term thereof.
I agree with SBV
that this demand falls squarely within the substantive prohibition on
strike action as contemplated in
section 65(3)(a)(i)
of the LRA and
further that it is in breach of clause 8.1 of the recognition
agreement which provides that:
‘…
no
industrial action shall take place concerning any issue which is a
subject matter of an agreement during the perid of such agreement…’
[35] It follows
that
section 65(1)(a)
prohibits SASBO’s strike action in
support of the first demand.
The demand
relating to performance-based distribution of salary increases.
[36] From the
reading of the collective agreement, it is apparent that the relevant
salary increases based on performance appraisals
for the year 1 (that
is 1 July 2017 to 30 June 2018) are recorded in the agreement.
However, the salary increases based on performance
appraisals and the
distribution of the increases for the year 2 are regulated by Clause
5.2.1 of the collective agreement, which
records that:
‘
5.2
Year
2 of the Agreement 1 July 2018 to 30 June 2019
5.2.1
Salary
(RFI) increase FOR 2018
·
The 1 July 2018 salary (RFI) increase for
each performance appraisal rating will be agreed by the Parties in
May 2018 once the distribution
of the 2018 performance appraisal
ratings for the Bargaining Unit employees is known.
·
The cost of 1 July 2018 salary increases
for the Bargaining Unit will be equal to CPI + 3.0% (based on the
March 2018 CPI), unless:
o
CPI + 3.0% is higher than 8.75% in which
case the cost of the 2018 salary increases will be capped at 8.75%;
or
o
CPI + 3.0% is lower than 8.5% in which case
the cost of the 2018 salary increases will be capped at 8.5%.
5.2.2
Salary
scale increases and minimum salaries for 2018
·
The minimum and maximum of all salary
scales will increase by CPI + 3.0% (based on March 2018 CPI), unless
CPI + 3.0% is higher
than 8.5% in which case all salary scales will
increase by 8.5%.
·
The minimum Protection Officer (PO) salary
will increase to R11 000.00 per month and the minimum Assistant
Senior Protection Officer
(ASPO) salary will increase to R11 500.00
per month from 1 July 2018.
·
The minimum job grade 5 salary will
increase to R9 400.00 per month from 1 July 2018.
·
Salaries that remain below the minimum of
the salary scale after increases are awarded will only be adjusted to
the minimum if the
employee achieved a performance appraisal rating
of at least 3.0.
·
Historically the salaries of new processing
employees were adjusted to the job grade 5 salary scale minimum once
they have attained
two years’ service in SBV. It is agreed that
the difference between the minimum salary for “Processing 2
years”
and the job grade 5 scale will be adjusted from 95% to
1005 from 1 July 2018, when the difference in these minimum salaries
will
be abolished.
·
New employees who were employed after 1
December 2017, whose salaries are below the new scale minimum will
move to the new scale
minimum.
·
Employees who were employed before 16
December 2017 will receive a performance based RFI increase on 1 July
2018, as reflected in
clause 5.2.1 above.
·
Salary scales relate to minimum RFI. The
salary scales do therefore not apply to Ex-Absa employees,
Ex-Standard employees and ATM
Consultants who are remunerated on a
Cost to Company basis.
…”
[37] SBV sent a
correspondence to SASBO dated 15 August 2018 stating, amongst others,
that:
‘
The
only outstanding matter to be implemented for 2018 is the
distribution of wage increases in accordance with clause 5.2.1 of
the
Collective Agreement. This distribution has been sent to SASBO for
agreement on 3 May 2018. However, SASBO has not respondent
thereto.
The proposed distribution has been prepared based on principles
agreed in previous wage negotiations and has been attached
to this
letter…’
[38]
SASBO, on 17 August 2018, in its response to the aforesaid letter,
inter alia
,
stated that:
‘
We
advise that we are following the process and are preparing for our
members to embark on legally protected strike action in support
of
the following demands:
1.
That the quantum for 2018 salary increases be 8.75% and not 8.5% -
distribution based on performance to be deliberated on once
the
quantum has been agreed to; and in addition…’
[39] It is
apparent from the pleadings that the distribution of the increases
according to the performance appraisal ratings have
not been agreed
between the parties. SBV contended that SASBO has consistently
refused to engage with it in respect of the calculation
and
implementation of performance based increases. Although the agreement
provides that the issue would be agreed between the parties
in May
2018, it is silent on either party’s respective rights in the
event of failure to reach an agreement.
[40] SASBO
submitted that to the extent that the agreement provides that the
terms thereof are in full and final settlement, the
agreement
contains all the provisions agreed on by the parties and that the
parties waived their rights to rely on any alleged
provision not
expressly contained in the agreement, SBV’s claim to any right
to summarily implement on the issue does not
derive from the
agreement. This is a fair proposal.
[41] I agree
with SASBO that in the absence of such agreement and any express
mechanism to resolve this issue, the only available
mechanism would
be to resort to proverbial power play. As such, the planned strike in
support of the second demand should therefore
be declared protected.
[42]
In the premise, SASBO’s second demand, being the demand
relating to performance-based distribution of salary increases,
is a
demand upon which it is entitled to call upon its members to strike.
SASBO, however, cannot
continue
to persist with both demands that it has made if it decides to
proceed with its intended strike,
the
first demand of parity treatment
must
be severed from its list of demands as it is not entitled to call
upon its members to strike in respect of that issue.
[3]
[43]
Accordingly, I make the following order:
Order
1. The strike
action called by the first respondent in support of its demand
relating to “parity treatment” is declared
unprotected.
2. The strike
action called by the first respondent in support of its second demand
relating to performance-based distribution of
salary increases is
declared protected.
3. There is no
order as to costs.
__________________
D. Mahosi
Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant: Advocate G. Fourie
Instructed
by: Webber Wentzel
For
the First Respondent: Advocate C. Goosen
Instructed
by: BJ Erasmus Pieterse Attorneys
[1]
Act
66 of 1995 as amended.
[2]
[2016]
11 BLLR 1135
(LAC); (2016) 37 ILJ 2581 (LAC).
[3]
See:
Unitrans
Fuel and Chemical (Pty) Ltd v Transport and Allied Workers Union of
South Africa (TAWUSA) and Another
(2010) 31
ILJ
2854
(LAC)