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[2018] ZALCJHB 424
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Johannesburg City Parks & Zoo SOC Limited v South African Municipal Workers Union (SAMWU) and Others (J3519/2018) [2018] ZALCJHB 424 (20 December 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: J 3519/2018
In the matter between:
JOHANNESBURG CITY
PARKS & ZOO SOC
LIMITED Applicant
and
SOUTH AFRICAN
MUNICIPAL WORKERS UNION
(SAMWU) First
Respondent
APPLICANTS LISTED IN
ANNEXURE ‘X’
TO THE NOTICE OF
APPLICATION Second
Respondent
Heard: 12 December 2018
Delivered: 20 December 2018
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
and background:
[1]
On 11 October 2018, an interim order was issued by
Nkutha-Nkontwana J in the following terms;
“…
1.
A rule
nisi
is issued calling
upon the respondents to show cause on 13 December 2018 at
10h00 or so soon thereafter as the matter
may be heard, why should an
order not be made in the following terms;
1.1
Declaring the strike
threatened by the respondents in the first respondent’s notice
of 3 October 2018 (‘the
strike’) to be
unprotected.
1.2
Interdicting and
restraining the first respondent from calling, promoting,
encouraging, supporting or otherwise furthering the strike.
1.3
Interdicting and
restraining the second and further respondents from promoting,
encouraging, supporting, participating or otherwise
furthering the
strike.
1.4
Ordering the respondents,
jointly and severally, to pay the costs of this application.
1.5
Granting the applicant
further and/or alternative relief
2.
The order set out in
paragraphs 1.2 and 1.3 operate with immediate effect as interim
orders pending the final determination of this
matter on the return
day of the rule
nisi
3.
Costs of the hearing on
11 October 2018 are reserved.”
[2]
On the return day, the applicant sought confirmation of the above
interim order, whilst the respondents opposed the application
and
sought that the rule
nisi
be discharged.
[3]
The applicant [Municipal Owned Entity (MOE)] is a state-owned and
municipal entity in Johannesburg. It is wholly owned by the
City of
Johannesburg Metropolitan Municipality (the City), and is a service
provider responsible for
inter alia
, the provision and upkeep
of the Municipal Zoo and Parks throughout the city of Johannesburg.
[4]
The dispute that triggered the notice of intention of industrial
action issued by SAMWU dates back to 2013 after the Johannesburg
City
Parks merged with the Johannesburg Zoo. As a result of the merger, a
grading of positions and benchmarking exercise was embarked
upon,
resulting in changes to job titles and posts in the entities.
[5]
Flowing from various disputes related to the above exercise that
arose in other Municipal Owned Entities in regards to job grading
and
applicable remuneration in grades, SAMWU in March 2016 referred
a dispute against the City and all of the MOEs, related
to the
failure to implement benchmarking and inconsistent application of
remuneration policy (the general dispute referral). At
the time that
the referral was made, employees in another MOE (Pikitup SoC
Limited), had already embarked on industrial action.
The strike also
related to job gradings and pay disparities at Pikitup.
[6]
With the intervention of the CCMA, the Municipality, Pikitup and
SAMWU settled the Pikitup strike on 16 April 2016
in terms
of a settlement agreement
(‘CCMA Mediated Collective
Settlement Agreement’
) (also known as (‘Political
Facilitation Agreement’ (PFA)). The agreement settled the
Pikitup strike, and all the disputes
and issues between the City and
SAMWU related to grading methodologies, benchmarking of posts and pay
disparities in all of the
MOEs. (SAMWU however as shall be dealt with
in this judgment, disputes that the settlement agreement covered all
the MOEs). Processes
were subsequently embarked upon by the City to
roll out the benchmarking and pay parity exercises as contemplated in
the collective
agreement.
[7]
Members of SAMWU in the applicant’s Finance Department (As
listed in Annexure ‘X’ to the Notice of Application)
despite the rolling out of the exercises were nonetheless still
aggrieved, contending that their positions had still not been graded
correctly since 2013 and were thus not being remunerated correctly.
[8]
An alleged unfair labour practice dispute was then referred to the
CCMA in July 2017. The CCMA declined to assume jurisdiction
over
the matter, and it was then referred to the SALGBC. The SALGBC
however ruled that the dispute, properly formulated, should
be
characterised as one pertaining to matters of mutual interest. The
dispute having been re-referred on 23 June 2018,
it was
then set down for conciliation on 23 July 2018.
Conciliation was then extended by agreement to 31 August 2018
in the light of the on-going exercise and attempts at addressing the
employees’ concerns.
[9]
Employees referred to as Accounts Payable Clerks in the applicant
also entered the fray, contending that their positions had
not been
correctly graded. Effectively the affected employees demanded
immediate re-grading and payment of back-pay. Any attempts
at
conciliation failed and a certificate of outcome was issued by the
SALGBC on 31 August 2018.
[10]
A notice of intention to commence industrial action on 17 September
2018 was issued by SAMWU on 13 September 2018.
The
applicant approached this Court on an urgent basis under case number
J3340/18 to interdict the strike on account of it
inter alia
not being in compliance with the provisions of section 64(1)(d) of
the LRA.
[11]
On 17 September 2018 when the urgent application was to be
heard, the respondents agreed to call off the strike.
The strike
notice and the urgent application were subsequently withdrawn. This
was made an order of Court before Van Niekerk J.
[12]
On 3 October 2018, a fresh notice to commence with the
industrial action on 15 October 2018 was issued
by SAMWU.
The applicant’s contention was that the threatened strike was
unprotected on the grounds that;
12.1 The strike was prohibited in
terms of sections 65(1)(a) and 65(3)(a) of the LRA as the issues in
dispute were settled in accordance
with the Collective Agreement of
April 2016;
12.2 The agreement regulated all
disputes and prohibited strike action, and further recorded that it
was in full and final settlement
of not only the dispute with
Pikitup, but also the disputes referred to the SALGBC related to the
issues as affecting all the MOEs.
12.3 The agreement was binding on both
SAMWU and its members, as it was recorded that all current disputes
and those that originated
from 2013 related to salary discrepancies
throughout the Municipality and its entities were settled.
12.4 To the extent that there may have
been any disputes arising the interpretation or application of the
agreement, a mandatory
mediation or arbitration process was envisaged
to resolve those disputes.
[13]
In seeking that the
Rule Nisi
be discharged, the respondents;
13.1 Conceded that the dispute has its
origin in the benchmarking or grading exercise which the applicant
commenced in 2013 when
City Parks and Johannesburg Zoo were merged,
but that it pertained in particular to employees in the Finance
Department, who insisted
that despite their job titles having been
altered, their respective posts had not been graded and had therefore
not been accurately
remunerated.
13.2 Flowing from various attempts to
resolve the matter as far back as November 2013, the employees
were then issued with
letters confirming their placement on the new
structures. However, due to the ongoing dissatisfaction with their
grading and titles,
the employees had declined to sign their letters
in that regard.
13.3 The Settlement Agreement relied
upon by the applicant was specifically entered into with Pikitup, and
the respondents were
not party to the dispute between Pikitup and the
applicant, as in accordance with the ‘Local Labour Forum, it
had been stated
that anything to do with Pikitup had nothing to do
with City Parks’. In essence, it was denied that the agreement
covered
all the MOEs, and further contended that it only resolved the
Pikitup strike.
13.4 Meetings held with the Managing
Director of the applicant had resulted in undertakings being made in
regards to the implementation
of position grading, but nothing had
materialised;
13.5 The applicant only raised the
issue of the settlement agreement in the face of the intended strike,
and since a certificate
of outcome declared the dispute as
unresolved, and further since the applicants were party to the
conciliation proceedings, the
strike would be protected.
Evaluation:
[14]
To the extent that reliance is
placed on the Collective Agreement in contending that the intended
strike action is prohibited, the
starting point is that Section
23(2)(c) of the Constitution of the Republic enshrines the
fundamental right to strike, which right
is given effect to by the
provisions of sections 64 to 68 of the LRA, which in turn provide the
substantive limitations and procedural
pre-conditions for the
exercise of the right to strike and the employer’s recourse to
lock-out
[1]
.
[15]
Aligned to the limitations in
the strike provisions is that in accordance with the provisions of
section 23 of the LRA, a collective
agreement has a binding effect on
the parties
to that agreement
,
each
party to that agreement
,
and the members of every other party to that agreement, in so far as
the provisions are applicable between them
[2]
.
[16]
That the
sanctity and primacy of collective agreements is to be preserved for
the sake of the maintenance of peace in the workplace
was long
emphasised in
CUSA v
Tao Ying Metal Industries and Others
[3]
,
where the Constitutional
Court held that:
“
[55]
The right of every trade union and every employers’
organisation and employer to engage in collective bargaining is
entrenched in section 23(5) of the Constitution. The concomitant of
the right to engage in collective bargaining is the right to
insist
on compliance with the provisions of the collective agreement which
is the product of the collective bargaining process.
[56]
Compliance with a collective bargaining agreement is crucial not only
to the right to bargain collectively through the forum
constituted by
the bargaining council, but it is also crucial to the sanctity of
collective bargaining agreements. The right to
engage in collective
bargaining and to enforce the provisions of a collective agreement is
an especially important right for the
workers who are generally
powerless to bargain individually over wages and conditions of
employment. The enforcement of collective
agreements is vital to
industrial peace and it is indeed crucial to the achievement of fair
labour practices which is constitutionally
entrenched. The
enforcement of these agreements is indeed crucial to a society which,
like ours, is founded on the rule of law.”
[17]
This Court has restated that in
the scheme of the LRA and section 23 of the Constitution, the right
to strike is by its nature not
absolute and may justifiably be
limited in certain situations. This must be so because a strike is
not an end in itself. Rather,
a strike is primarily a means to the
end of an effective collective bargaining system in which workers are
able ultimately to exercise
power in order to influence the terms and
conditions of employment
[4]
.
[18]
To the extent that the applicant sought to rely on
the collective/settlement
agreement, which it contend had
effectively resolved the issues and the dispute which precipitated
the notice of intention to strike,
the relevant provisions of section
65 of the LRA (
Limitations
on right to strike or recourse to lock-out
)
provides that;
(1)
No
person may take part in a
strike
or a
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
.
(b)
that
person is bound by an agreement that requires the
issue
in dispute
to be referred to arbitration;
(c)
the
issue
in dispute
is one that a party has the right to refer to arbitration or to the
Labour Court in terms of
this
Act
or
any other employment law;
(d)
(i) …
(ii)
…
(2)
…
(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
(ii)
…
[19]
The applicant contended that the intended strike action is prohibited
by virtue of the provisions of section 65(1)(a); (b)
and (c) of the
LRA in the light of the settlement agreement. The
settlement/collective agreement is extensive and substantive in
nature. For the sake of completeness, the relevant clauses relied
upon by the applicant are summarised below (with emphasis placed
on
the underlining);
19.1 Under the introduction
clause(1.2), it is agreed that on 14 March 2016, SAMWU and
its members referred a dispute
to the CCMA regarding
benchmarking
and alleged failure to implement remuneration policy by the
Municipality or any of its Municipal Entities (cited in
that referral
namely, Pikitup Johannesburg Soc Limited, Johannesburg Water Soc
Limited, City Power Johannesburg Soc Limited, Johannesburg
Metrobus
Soc Limited, Johannesburg Roads Agency Soc Limited and Johannesburg
City Park and Zoo)
19.2 Clause 1.3 stipulates that the
parties agreed to settle, in
full and final settlement
, the
dispute and all claims between them.
19.3 Under clause 1.4, the parties
agreed
to resolve in its entirety all disputes between the parties
in relation to benchmarking and/or the application of remuneration
policies
and practise of the City of Johannesburg and all its
municipal entities (and not limited to those entities cited in the
benchmarking
dispute referral)
19.4 Under clause 2 (Scope of
Agreement), the parties agreed that the
agreement binds members of
SAMWU, both individually and collectively employed by the City or any
of the entities as at the time
of its conclusion
and
ratification by the respective affected entities, including all of
those employees who may join SAMWU subsequent to the conclusion
of
that agreement; and binds SAMWU and the City or all of its entities
;
19.5 Under clause 3, it was agreed
that the City would implement a common job grading system in all its
entities
19.6 The agreement then makes
provision for the adoption of TASK as the common job grading system;
for external benchmarking; for
equal pay for work of equal value etc.
19.7 Clause 12 provides that the
agreement, its contents and annexures are in
full and final
settlement of all and every claim of any nature whatsoever arising,
which SAMWU or any of its members has or may
have against the City,
Pikitup or any of the entities, arising out of or pertaining to, or
in connection with the dispute pertaining
to benchmarking or alleged
failure to implement the remuneration policy
.
19.8 Clause 13 makes provision for
breach and dispute resolution procedure, and at 13.2, it is
specifically provided that in the
event of a dispute related to the
interpretation or application of any provision of the agreement or
any claims arising thereform,
the parties shall endeavour to
resolve the dispute internally; where they are unable to amicably
resolve the dispute, it shall be
referred for conciliation by
following normal dispute resolution procedures. If mediation failed,
the dispute may be referred for
arbitration following the normal
procedures as provided in the LRA.
19.9 Under clause 13.3, it was
agreed
that no party or any person bound by the terms and provisions of the
agreement shall be entitled to call for, encourage,
or participate in
any strike action in respect of any issue or demand dealt with or
resolved in terms of the agreement whilst it
remained in force.
19.10 Under the General provisions,
the parties agreed that the provisions of the agreement by way of
stipulatio alteri
constituted a contract of employment for the
benefit of any entity which was not party to the agreement
[20]
In
North
East Cape Forests v SA Agricultural Plantation and Allied Workers
Union and Others
[5]
,
it was stated that a collective agreement is unlike other ordinary
contracts and that the primary objects of the Act are better
served
by an approach that is practical to the interpretation and
application of such agreements. It is further trite that when
it
comes to interpretation of collective agreement or similar covenants,
the Court must give effect to the grammatical and ordinary
meaning of
the words used therein. Furthermore, in ascertaining the meaning, the
Court must give the words their plain, ordinary
and popular meaning,
unless it appears clearly from the contract that both the parties
intend them to bear a different meaning
[6]
.
[21]
I find it perplexing given the plain grammatical and ordinary meaning
of the terms used in the agreement, that the respondents
and SAMWU in
particular, would strenuously argued that they are not bound by the
provisions of that agreement, or that the agreement
does not cover
all the MOEs. Even more worrisome is that SAMWU seeks to disavow its
own agreement in justification for its members
to yet again go on
strike, in circumstances where the very collective agreement
disavowed, is a product of protracted negotiations
between itself,
the City and Pikitup, in the face of a protracted strike that brought
the City of Johannesburg to a complete standstill
in regards to
service delivery in late 2015 and early 2016.
[22]
Having had regard to the provisions of the agreement as summarised
above, the provisions, even from their linguistic constituent
as
argued on behalf of the respondents, are clearly binding, as its
scope not only covers Pikitup as a sole entity, but all the
other
entities that falls under the City. The respondents were
hard-pressed to convince the court otherwise.
[23]
If ever there was any doubt,
the respondents’ arguments that the strike is permissible are
equally unsustainable on the further
reasoning of Snyman AJ in
City
of Johannesburg Metropolitan Municipality v South African Municipal
Workers Union and Others
[7]
.
That matter involved the same issues related to the grading of posts
and pay disparities in another MOE, the JMPD (Training Academy).
The
intended strike action in that case was interdicted on the same if
not similar grounds, flowing from exactly the same arguments.
I did
not understand the respondents’ case to be that Snyman AJ’s
judgment was taken on appeal, and I see no reason
why I should hold a
contrary view to that decision.
[24]
It follows from the above that the intended strike action is clearly
prohibited under the provisions of sections 65(1)(a)-(b)
and 65(3) of
the LRA. SAMWU and its members are
bound by a
collective agreement
that prohibits the
strike
in respect of the
issue in dispute
.
To the extent that SAMWU and its members are aggrieved with the
manner with which the provisions of the collective agreement were
applied, and in particular, as related to benchmarking, grading of
posts or pay parities, they are bound to either refer a dispute
for mediation and/or arbitration. They are prohibited from embarking
on any strike action in respect of the same issues referred
for
conciliation leading to the certificate of outcome, as those issues
are regulated by that agreement. The intended strike action
would
therefore be unprotected and unlawful
.
[25]
It therefore follows from the above that the
applicant in this case has demonstrated
the
necessary right to the final relief it seeks, and it follows that
issues of prejudice and of an alternative remedy become moot.
The
requirements for final relief have been met, and the
rule
nisi
ought to be confirmed.
Costs:
[26]
In the face of the clear provisions of the agreement, which had
determinatively disposed of all disputes related to benchmarking,
post grading and pay disparities in the City and its entities, and
further in the face of Snyman AJ’s judgment, the rhetorical
question to be asked is why would SAMWU and its members ignore the
peace clause in the agreement and insist that they are entitled
to
embark on a strike?
[27]
The applicant surmised that since many employees have already been
graded and benchmarked in terms of an objective exercise,
SAMWU
and its members in the Finance Department merely seek to circumvent
the exercise by demanding a favourable grading without
any proper
assessment of their positions.
[28]
The other summation, which in my view is not far-fetched, could be
that industrial action and its concomitant effects at the
City is
regarded by SAMWU and its members as some form of self-indulgence or
a pastime, to gain some leverage in the face of any
demand made,
irrespective of the merits of the demand and the consequences of the
strike action. The intended strike action in
this case had it been
sanctioned, would have involved the employees in the Finance
Department of the applicant, who are responsible
for
inter alia
taking funeral bookings. The impact of the strike would have been
immense on attempts at service delivery, especially on the
long-suffering
members of the public, who would have sought to make
funeral arrangements for their lost loved ones.
[29]
SAMWU’s contention that the intended strike action is protected
as it had obtained a certificate of outcome, and that
the applicants
had not objected to the referral of the dispute nor raised the issue
of a settlement agreement until in this application
is clearly
hogwash. These excuses are indeed lame and ought to be rejected
out-rightly. If SAMWU cannot be trusted to read and
familiarise
itself with its own collective agreements, it cannot blame the SALGBC
for erroneously accepting a referral and issuing
the certificate of
outcome. In any event, a certificate of outcome is not a license to
go on strike if that strike falls foul of
the provisions of section
65 of the LRA. Thus, even if the applicants had not objected to the
conciliation processes before the
SALGBC leading to the certificate
of outcome, or had not raised the issue of the settlement agreement,
that in itself did not entitle
SAMWU and its members in this case to
go on strike, as it is more the provisions of sections 64 to 65 of
the LRA that determined
whether the strike was permissible or not.
[30]
If ever there was any doubt that SAMWU’s approach was
ill-conceived, it was warned in the previous urgent application
under
J3340/18 that the intended strike was prohibited under the provisions
of section 65 of the LRA because of the same settlement
agreement.
The Snyman AJ’s judgment pronounced on the matter in any event,
and SAMWU for its own reasons elected to ignore
the applicant’s
warning and that judgment.
[31]
In
Plastic
Converters Association of South Africa on behalf of Members v
National Union of Metalworkers of SA
[8]
,
the Labour Appeal Court held, that;
“
[t]he
scale of attorney and client is an extra-ordinary one which should be
reserved for cases where it can be found that a litigant
conducted
itself in a clear and indubitably vexatious and reprehensible
conduct. Such an award is exceptional and is intended to
be very
punitive and indicative of extreme opprobrium.”
[32]
I have no doubt that in this case, given the conclusions reached in
this judgment, and further in the light of Snyman AJ’s
judgment
and the applicant’s warnings which went unheeded, the
respondents by seeking to disavow their own agreement in order
to
embark on a strike which would have been unprotected, conducted
themselves in
a clear and indubitably vexatious
manner. This Court having pronounced on the same or similar issues,
it cannot be burdened with
a determination of exactly the same issues
repeatedly without consequences. I
n the circumstances, I see
no reason why upon a consideration of the requirements of law and
fairness, they respondents should not
be burdened with a punitive
cost order, inclusive of the costs of 11 October 2018.
[33]
Accordingly, the following order is made;
Order:
1. The
Rule Nisi
issued by
Nkutha-Nkontwana J on 11 October 2018 is confirmed
2. Paragraph 1.4 of the
Rule Nisi
is amended to read that;
The first and second respondents are
ordered jointly and severally, the one paying the other to be
absolved, to pay the applicant’s
costs, on a scale as between
attorney and client, inclusive of the costs of 11 October 2018.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants: W. Hutchinson
Instructed
by: Moodie & Robertson
For
the 1
st
and 2
nd
Respondents: T Manda
Instructed
by: Maenetja Attorneys
[1]
South African Transport and
Allied Workers Union (SATAWU) and Others v Moloto NO and Another
2012 (6) SA 249
(CC);
2012 (11) BCLR 1177
(CC);
[2012] 12 BLLR 1193
(CC); (2012) 33 ILJ 2549 (CC) at para 14
[2]
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 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
.
(3)
Where applicable, a
collective agreement
varies any
contract or employment between an
employee
and employer who
are both bound by the
collective agreement
.
(4)
Unless the
collective agreement
provides otherwise,
any party to a
collective agreement
that is concluded for an
indefinite period may terminate the agreement by giving reasonable
notice in writing to the other parties.
[3]
[2009] 1 BLLR 1
(CC) at paras [55] and [56]; See also
Ekurhuleni
Metropolitan Municipality v The SA Municipality Workers’
Union on behalf of workers,
(2015)
36 ILJ 624 (LAC) at paras 25 and 26, where it was held that;
“…
Collective agreements
are to be accorded primacy. In
National Bargaining Council
for the Road Freight Industry and another v Carlbank Mining
Contracts (Pty) Ltd and another
, this Court held that the
purpose of s199 of the LRA, read together with s23(3) of the LRA, is
to advance the primary object
of the LRA, namely the promotion of
collective bargaining at sectoral level and giving primacy to the
collective agreements above
individual contracts of employment…”
[4]
Association of Mineworkers
and Construction Union and Others v Chamber of Mines of South Africa
and Others
(unreported
case no J99/14, 23-6-2014) (Van Niekerk J)
At
para [50]
[5]
(1997) 18 ILJ 971 (LAC) at 980C
[6]
See
Fedqen
Insurance Limited v. Leyds
1995(3) SA
33 (AD) at 38 A-E:
[7]
(J1746/16) [2016] ZALCJHB 310 (19 August 2016), where it was held
that;
“
The
2016 Settlement Agreement
[60] The above being said, and even
accepting that the grading dispute of the respondents constitute an
interest dispute, the
question of the impact of the CCMA conciliated
collective settlement agreement concluded between the parties in
2016 arises (the
collective agreement). The applicant, as stated,
contended that this collective agreement determined the issue in
dispute forming
the subject matter of the proposed strike by the
respondents.
[61] As I have discussed above, the
issue in dispute is about grading, or using the related term
‘benchmarking’, of
the individual respondents. It
is a dispute that arose by virtue of a grading process in 2014.
The 2016 collective
agreement clearly and unambiguously sought to
finally dispose of all grading and benchmarking disputes in all the
municipal entities
of the applicant that existed prior to the
conclusion of the collective agreement. This is confirmed in no
uncertain terms in
the clauses of the collective agreement I have
set out above.
[62] In disposing
of all the earlier grading / benchmarking disputes, the settlement
agreement then implements a new system and
basis of grading to be
applied to all jobs and positions in the applicant. In other
words, no matter what the position
may have been before in the
various municipal entities in the applicant, where it came to the
grading / benchmarking of employees,
this has been replaced with a
new grading dispensation. This constitutes, in effect, a novation of
all the obligations and possible
entitlements relating to grading /
benchmarking in the past. In
Tauber
v Von Abo
the Court aptly
described novation as follows, which in my view is exactly what
happened
in casu
:
'Novation
can be described as the replacing of an existing obligation by a new
one, the existing obligation being discharged by
the new
obligation.'
[63] Accordingly, the 2014 ICT
grading issue which forms the cornerstone of the respondent’s
case is no longer, after the
2016 settlement agreement, a live
dispute. The issue has been compromised, so disposed of, and in the
end novated. In
Wilson Bayly Homes (Pty) Ltd v Maeyane and
Others
, the Court said:
'The
contract in the present case was one of compromise. The nature of
such a contract is that it is concluded because the rights
of the
parties are uncertain, and they choose not to resolve that
uncertainty. By the very nature of such a contract, there can
be
little room for finding that the parties must have intended their
contract to depend upon the existence of one or other of
the factors
relevant to their respective rights. It is precisely to avoid
testing them that they compromise.'
I am satisfied the same
considerations apply
in casu
.
[64] Further, and in any event, the
collective agreement itself, determines the issue in dispute in
another way as well. In the
collective agreement, the respondents
commit themselves to an undertaking not to pursue strike action
where it comes to any issue
determined by the agreement. Where
there may be a dispute about grading of employees in the applicant,
the parties have
further committed themselves to a process of
conciliation, followed by arbitration. This dispute resolution
process makes
sense, for the simple reason that as the parties have
agreed to a grading ideology, methodology and process where it comes
to
grading / benchmarking across the applicant which is to be
applied to all positions, the only remaining issues can be that the
grading was not properly or incorrectly applied, or not applied at
all when it should have been. This would be readily determinable
by
way of arbitration.
[66]
In
casu
, clause 13.3 of the collective
agreement clearly prohibits strike action in respect of any issue or
demand dealt with or resolved
in terms of the agreement whilst it
remains in force. I have no doubt that the dispute pursued by the
respondents in this instance
is such a dispute. Again, at its core,
it is about grading, and grading is fully and finally determined by
the collective agreement
to the specific exclusion of all prior
arising disputes on this issue. Section 65(1)(a) and (b) thus
squarely stands in the way
of the respondents’ proposed strike
action
…”
[8]
[2016] ZALAC 39
; [2016] 37 ILJ 2815 (LAC) at para 46