About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2018
>>
[2018] ZALCPE 31
|
|
Borbet SA (Pty) Ltd v National Union of Metalworkers of South Africa and Others (P162/17) [2018] ZALCPE 31; (2018) 39 ILJ 1585 (LC); [2018] 4 BLLR 348 (LC) (16 January 2018)
THE LABOUR COURT OF SOUTH
AFRICA, PORT ELIZABETH
Not
Reportable
Case
no: P162/17
In
the matter between:
BORBET
SOUTH AFRICA (PTY) LTD Applicant
and
NATIONAL
UNION OF METAL WORKERS First Respondent
OF
SOUTH AFRICA (NUMSA)
THE
PERSONS LISTED IN Second
and Further Respondents
ANNEXURE
"BOR
1" TO THE FOUNDING
AFFIDAVIT
Heard:
08 September 2017
Delivered:
16 January 2018
JUDGMENT
MAMOSEBO AJ
Introduction
[1]
On 28 June
2017 Lallie J issued out of this Court, a
Rule
Nisi
in
terms of s 68 (1)(a) of the Labour Relations Act
[1]
(LRA) calling upon the respondents to show cause on 08 September 2017
why the following order should not be made:
1.1
declaring the strike contemplated to commence on Thursday
morning unprotected;
1.2
interdicting and restraining the respondents from
participating in any strike arising from the following demands or any
other demands
motivated by or relating to applicant's participation
in the demarcation proceedings currently underway in terms of s 62 of
the
LRA:
(a).
A housing subsidy of R3500.00 for C1.1rrent and future employees;
(b).
A transport allowance of R1000.00 for current and future employees;
(c).
Two full time shop stewards for as long as NUMSA is the majority
trade union;
(d).
A production bonus for current and future employees at R1800.00 per
month on achieving 60% targets of production;
(e).
A total of 30 days per annum per person for training of each NUMSA
member with fun payment by the employer;
(f).
A 100% employer contribution to both medical and provident fund
schemes for all NUMSA members;
(g).
Full BBBEE compliance within the next 12 months;
(h).
A service allowance as follows per annum:
(i)
1- 3 years= R500.00
(ii)
4 - 6 years= R1000.00
(iii)
6- 10 years= R2000.00
(i).
Staff discount of 90% per product per annum.
(j).
That service of this order shall be effected by:
(i).
The applicant's representative hand delivering
a
copy of the order to the office of the first respondent
(NUMSA)
in Port
Elizabeth;
(ii).
Placing a copy thereof on at least one notice board of the
applicant's workplace;
2.
Paragraph 1.2 operates as an interim order pending the return
date.
3.
The applicant is granted leave to supplement its papers to
extent deemed necessary.
4.
Costs are reserved."
[2]
The application, originally granted by consent, served before me on
the return date and is opposed. The applicant is seeking
confirmation
of the rule
nisi
but concedes that the respondents have
complied with the procedural provisions of the LRA and as a result
acquired the right to
strike. It nevertheless urges me to consider
the submission favourably that the respondents may be harbouring some
form of retaliation
against it for its involvement in the demarcation
dispute which is pending and opposed by NUMSA.
The
parties
[3]
The applicant is Borbet South Africa (Pty) Ltd, a company with
limited liability, operating in Port Elizabeth. The first respondent
is the National Union of Metal Workers of South Africa (NUMSA), a
trade Union registered in terms of the LRA. The second and. further
respondents are those persons whose names appear on Annex "BOR
1" and are employed by the applicant.
The
issue
[4]
The issue that falls for determination is whether the mere compliance
by the union with the procedural requirements contemplated
in s 64 of
the LRA entitles it to strike without being limited by s 65 of the
LRA. Can or should the Court disregard the contention
by the
applicant that the action by NUMSA abuses the right to strike and is
a retaliation against the applicant for taking part
in the
demarcation process?
Background
facts
[5]
Counsel for the applicant, Mr John Grogan, conceded that it is trite
that the courts will be slow to interfere with collective
bargaining
between parties but pleaded that these circumstances be regarded as
exceptional. Counsel's motivation for the exceptional
nature of the
case arises as follows: The applicant and 13 other employers are
involved in a demarcation dispute and NUMSA is opposing
that process.
When the strike notice was issued the arbitrator's award was still
pending. The demarcation process involves a decision
whether the
applicant and other employers should remain in the Metal and
Engineering Industry Bargaining Council (MEIBC) or be
demarcated to
fall under the Motor Industry Bargaining Council (MIBCO). The
employers support the demarcation. When this application
was made the
employers were already involved in national wage negotiations. In as
far as in-house development was concerned, the
applicant had
introduced a four-shift system negotiated at plant level and yet
NUMSA added it as a demand to the applicant.
[6]
Mr Franscois le Roux, arguing for the respondents, submitted that:
The respondents view the demarcation of the applicant from
MEIBC to
MIBCO as having the potential to detrimentally affect their terms and
conditions of employment as well as their interests.
These, counsel
contended, are the reasons why NUMSA on behalf of the respondents,
resists the demarcation. There seems to be a
dispute of fact around
whether or not Mr Twani, NUMSA's Regional Secretary, demanded the
applicant's withdrawal from the demarcation
process in a meeting held
on 30 March 2017. It is further common cause that the parties
approached the Commission for Conciliation,
Mediation and Arbitration
(CCMA) for conciliation but NUMSA subsequently requested the
certificate of non-resolution having realised
that there were no
prospects of a resolution. After several meetings and correspondence
between the parties a strike notice was
issued by NUMSA on 27 June
2017 which is the subject of the matter for determination before me.
[7]
Mr Roux sought to convince me that the applicant is not correct in
alleging a connection between the demarcation dispute and
the demands
sent to it by Mr Twani of NUMSA on 07 April 2017. He reckons that
those demands were merely an act of attempting to
secure economic
survival for the second and further respondents. It thus becomes
necessary to interrogate the letter dated 07 April
2017 addressed to
Borbet Management by NUMSA.
"The
National Union of Metal Workers of SA after careful consideration of
the dynamics at play in both the industry as a whole
and Bargaining
Council in particular we have concluded that there is economic war at
play between parties. This has been evidenced
by your part-taking in
the campaign to seek to demarcate from the MEIBC to MIBCO for no
other reason other than the economic rational
of future profit
fortunes derived at the back of super exploitation of our current and
future membership.
On
the basis of the above, we have thoroughly examined, analysed and
consulted on both the objective realities that faced us and
subjective conditions that we find ourselves under and concluded that
a counter campaign from our side will suffice to guarantee
our
current and future survival to protect us and our future as
necessary. Hence our demands are as follows to you to give effect
to
the decision ...”
[8]
The submission by the respondent's counsel can therefore not be
correct that there is no link between the demarcation process
and
these demands. I agree with the applicant's counsel that the demands
made in the letter dated 07 April 2017 were part of a
counter
campaign to counteract the applicant's participation in the
demarcation process. The letter clearly makes reference to
it in the
following phrase:
'This has been evidence by your part-taking in
the campaign to seek to demarcate from MEIBC to MIBCO...'
[9] This counter-campaign
is also illustrated in issues pertaining to the four-shift
arrangement by the applicant as captured in
minutes of the Special
Meeting between NUMSA and Management dated 30 March 2017 compiled by
Mr Glen Zamisa, the applicant's Human
Resources Manager. It is
important to note that the contents of these minutes were not
disputed by NUMSA. The item of demarcation
was not on the agenda but
was introduced by Mr M Twani who said the following:
"He
[Mr Twani] reported to the company that Numsa NEC has taken strong
resolution to engage all the 18 companies that are party
to the
application for demarcation which has been in arbitration since 2016
and is about to be finalised. The secretary made a
wide range of
scathing allegations as to the motive of the company in joining the
action including but not limited to varying down
employment
conditions, reducing the wage bill, destroying the current MEIBC
council and destabilising collective bargaining. He
informed the
company that as Numsa they will ask for demands from the workers in
order to protect members from the effect of the
demarcation process.
He
asked
that the company should
consider withdrawing from the demarcation process or risk the
consequences of instability and actions that
Numsa will be embarking
upon in defence of its members.
The regional secretary made it
clear that Numsa has taken a tough stand on this issue
notwithstanding the fact that they will also
pursue the companies
through the legal process. The company was asked to respond if it
wants to but was also given the option to
respond later in writing. B
van Vuuren attempted to make a response but was interrupted by the
regional secretary. The meeting
was thereby terminated."
[10]
It is clear from the aforementioned minutes of the meeting that the
applicant was pressurised to withdraw from the demarcation
process
failing. which it will face the consequences of what is termed a
counter-campaign by the union.
[11]
If arbitration proceedings were nearing completion it is
incomprehensible why the parties could not await the outcome and only
then
entertain further options. It can only mean one thing; the
demands by NUMSA were indeed contrived as an act of retaliation
against
the applicant for its participation in the demarcation
process. One cannot see it in any other way. I am also of the view
that
NUMSA did not afford the conciliation process an adequate
opportunity to thresh out the issues in an open and conciliatory
manner.
The fact that they asked for the certificate of
non-resolution and thereby pre-empting that there was no prospect of
a settlement
does not portray a picture of a party that intended to
have the issues amicably resolved. What is worse, NUMSA acknowledges
in
its answering affidavit that Mr Twani did not meet with its
members between the period of the meeting of 30 March 2017 and
writing
to the applicant on 07 April 2017. The demands were canvassed
with the members after the fact, that is, after the letter was
communicated
to Management and the members plainly endorsed them
later. I have not discerned from the papers NUMSA's explanation on
how it was
able to arrive at the list of the demands without input
from the general membership. This is a cause for concern. It is the
very
demands that led to the notice to strike. In my view, the
argument by the applicant around this aspect is legitimate.
[12]
The applicant has further submitted that the argument by NUMSA that
their member's demands are "merely an attempt to secure
the
economic survival" should the applicant move from MEIBC to M1BCO
cannot be legitimate. This submission was correctly argued
by the
applicant's counsel as demonstrating the link between the demands and
the awaited possible outcome on the demarcation process.
It is also
inexplicable to me why the applicant was singled out of the 13
employers who are participating in the demarcation process.
I am left
with no doubt in my mind that the demands by NUMSA are nothing but a
measure of
retaliation
against the applicant for participating in the demarcation process.
Having found that the action by the respondents
was to retaliate, the
next question that I need to answer is whether their strike would be
unprotected or not.
[13]
I am not satisfied that the dispute that NUMSA referred to
conciliation was properly referred. I have found the link between
the
demands and the applicant's participation in the demarcation process.
That is the true dispute that was not referred for conciliation.
Because no effort was made to resolve the true dispute, the strike
emanating from the incorrect dispute cannot be protected.
[14]
Sec 7(1)(c)(iv) stipulates:
"7.
Protection of employer's rights.
-
(1)
No person may discriminate against an employer for exercising
any right conferred by this Act.
(2)
Without limiting the general protection conferred by
subsection (1), no person may do, or threaten to do, any of the
following -
(c)
prejudice an employer because of past, present or anticipated -
(iv)
disclosure of information that the employer is lawfully entitled or
required to give another person."
It
is my view that the strike called by NUMSA was for purposes of
compelling the employer to withdraw from the demarcation process.
This is not what the aforementioned provision of the LRA
contemplated. In actual fact, NUMSA's actions calling for a strike
are
in direct contravention of s7 of the LRA.
"
[15]
Mr le Roux argued that the right to strike is a constitutional right.
This is not in dispute. Counsel further submits that
the applicant
has no dispute of right that should be adjudicated by the Labour
Court or arbitrated upon. Sec 65(1)(c) stipulates:
"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
-
(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."
It
remains incomprehensible how the latest demands cannot be
characterized as putting pressure on the applicant not to participate
in the demarcation process. I accept that the demands were solely
raised for that purpose. It can only follow that s 65(1)(c) has
been
contravened by NUMSA. It is my finding that NUMSA is attemptin
g
.
to prevent the applicant from participating in a process well knowing
that they are still entitled to have the matter arbitrated.
As a
matter of fact, arbitration on the demarcation process is pending.
[16]
I am satisfied that the applicant has made out a proper case for the
rule
nisi
to be confirmed. There is also no reason why costs
should not follow the result.
Order
[17]
In the result, the following order is made:
1.
The rule
nisi
is confirmed.
2.
The respondents are ordered to pay the costs of the
application
MC Mamosebo
Acting Judge of the
Labour Court of South Africa
Appearances
For
the applicant: Advocate
John
Grogan
Instructed
by: Joubert
Galpin Searle Attorneys
For
the third respondent: Advocate Francois Le
Roux
Instructed
by: Gray
Moodliar Attorneys
[1]
Act 66 of 1995