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[2018] ZALCJHB 364
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National Union of Metalworkers of South Africa and Others v Bumatech Calcium Aluminates (J 303/16) [2018] ZALCJHB 364 (9 November 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no: J 303/16
In
the matter between:
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH AFRICA
First
Applicant
THE
PERSONS WHOSE NAMES ARE LISTED
IN
ANNEXURE “A” OF THE
NOTICE
OF
MOTION
Second Applicant
and
BUMATECH
CALCIUM ALUMINATES
First Respondent
Heard:
16 May 2018
Delivered: 09 November
2018
JUDGMENT
LALLIE. J
Introduction
[1] This is an
application to have a lock-out imposed by the respondent on the
second to further applicants (applicants) declared
unlawful and
illegal. The applicants seek a further order directing the respondent
to allow them access to its premises in order
to resume their duties
and to have the respondent’s utilization of the services of
temporary workers interdicted. The application
is opposed by the
respondent.
[2]
The respondent manufactures slag conditioners and pozzolanic
additives using secondary dross which is high in alumina as a raw
material. The products have a number of advantages including reducing
the melting point of steel. On 5 August 2015 the respondent
served
the first applicant (NUMSA) with a notice in terms of section 189 of
the Labour Relations Act
[1]
(the
LRA) in which it requested a consultation meeting on 12 August 2015.
On 11 August 2015 NUMSA addressed a letter to the respondent
requesting that the consultation be put in abeyance. The respondent
agreed to postpone the consultation meeting but intimated that
it
awaited NUMSA’s urgent reply.
[3] On 18 August 2015 the
respondent, through its director, circulated to employees a
memorandum advising of shift changes with
effect from 25 August 2015
which were put in place as a cost saving initiative. On 19 August
2015 NUMSA circulated a notice of
its meeting with the Steel Industry
CEO’s with a view of dealing with the issue of retrenchments in
the industry. The meeting
was held on 25 August 2015 and NUMSA and
the respondent had an opportunity to consult on the pending shift
changes. NUMSA made
a proposal which would result in employees
working less hours without loss of income. The shift changes were
scheduled to commence
on 31 August 2015.
[4] NUMSA referred a
dispute relating to unilateral change to terms and conditions of
employment for Conciliation, Mediation and
Arbitration (the CCMA)
attempts to resolve it through conciliation were unsuccessful and an
outcome certificate was issued. On
3 November 2015 the respondent
served NUMSA with a lock-out notice and on 5 November 2015 the NUMSA
served the respondent with
a strike notice. The applicants thereafter
embarked on a protected strike.
[5] NUMSA submitted that
the lock-out is unlawful because on 24 and 25 November 2015, NUMSA
addressed a letter to the respondent
in which it requested a meeting
with a view of resolving the dispute between the parties. NUMSA
further expressed its intention
to suspend the strike and have the
applicants return to work on 27 November 2015. When the applicants
reported for work on 27 November
2015 they were denied access because
of the lock-out. In a further attempt NUMSA’s attorneys
addressed a letter to the respondent’s
attorneys requesting a
meeting to resolve the dispute. The respondent through its attorneys
set a condition that the applicants
should give an undertaking to
refrain from violence and intimidatory conduct for the meeting to be
held. NUMSA argued that the
condition rendered the lock-out unlawful
as it illustrates that it is based on disciplinary issues and its
continued implementation
was in response to a strike which had been
called off. The applicants were again denied access to the
respondent’s premises
when they tendered their services on 1
February 2016. NUMSA’s letter of 2 June 2016 advising the
respondent that the applicants
would resume their duties and
requesting a copy of the new shift roster did not yield positive
results.
[6]
The respondent’s basis for opposing this application is that
the lock-out is lawful because the dispute between the parties
exists
and the NUMSA has not abandoned the strike and accepted its demand
for shift changes unconditionally. NUMSA sought to rely
on
Transportation
Motor Spares v NUMSA and Others
[2]
in
attacking the lock-out notice for not disclosing what NUMSA and its
members were required to do to end the dispute. It is true
that the
lock-out notice does not tell NUMSA what to do to resolve the
dispute, however, each case is decided on its merits. Correspondence
between the parties makes the nature of the dispute clear and what
the respondents required NUMSA to do in order to resolve the
dispute.
NUMSA knew that the respondent wanted it to accept changes in shifts.
It even referred a dispute regarding the change
to the CCMA. When it
was not resolved the respondent issued the lock-out notice. At no
stage did NUMSA allege that it did not know
what to do in order to
resolve the dispute.
[7] All the documents
NUMSA sought to rely on in support of its assertion that it accepted
the respondent’s demands unconditionally
did not serve the
purpose. The respondent’s demand in the memorandum of 18 August
2015 (the memorandum) is to have the applicant’s
work different
shifts and reduced hours in order to accommodate the decline in its
business. In the replying affidavit NUMSA admitted
that its response
to the memorandum had neither merit nor financial benefit and
defeated the purpose initiative of the changes
in shifts as it
suggested working less hours without loss of income.
[8] In the letter NUMSA
addressed to the respondent on 24 November 2015 with proposals to
settle the strike it sought the following:
“
(1)
A commitment from the respondent that it would compensate the
striking workers for lost hours due to unilateral implementation
of
hours of work.
(2)
Basing basic salary on R173.33 hours per month as compressed hours.
(3)
Payment of annual bonuses to all employees.
(4)
Payment of leave pay to be effected on the same day as fortnight pay.
(5)
NUMSA members would resume duties on 30 November 2015.
(6)
Signing of a settlement agreement by the parties before 30 November
2015.”
[9] On 25 November 2015
NUMSA informed the respondent in writing that its members would be
advised to report for work on 27 November
2015 and the strike would
be suspended. It is worth noting that NUMSA did not say that the
strike would be abandoned. When a strike
is suspended it has been
stopped temporarily. The letter is also silent on a meeting the
respondent’s demand of working the
new shifts unconditionally.
Even the undertaking made by NUMSA on 15 December 2015 that its
members who were on strike would not
intimidate, threaten or
interfere with non-striking employees is silent on their willingness
to work the new shifts unconditionally.
On all instances on which the
applicants tendered their services but were turned away by the
respondent, they did not express their
willingness to work the new
shifts unconditionally and to abandon the strike.
[10] The applicants did
not prove the unlawfulness of the lock-out. The application can, in
the circumstances not succeed.
[11] In the premises, the
following order is made:
Order:
1.
The
application is dismissed.
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances
For
the applicant:
Advocate Jackson
Instructed
by:
Finger Phukubje Inc Attorneys
For
the respondent:
Advocate L. Pillay
Instructed
by:
Yusuf Nagdee
[1]
66 of 1995, as amended.
[2]
1999
(20) ILJ 690 LC.