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[2018] ZALCPE 13
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Volkswagen of South Africa (Pty) Ltd v National Union of Metalworkers of South Africa (NUMSA) and Others (P205/17) [2018] ZALCPE 13 (11 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT-ELIZABETH
Not
Reportable
C
ase
no: P 205/17
In
the matter between
VOLKSWAGEN
OF SOUTH AFRICA (PTY)
LTD
Applicant
and
NATIONAL
UNION OF METALWORKERS
OF
SOUTH AFRICA
(“NUMSA”)
First Respondent
THE
PERSONS REFERRED TO IN SCHEDULE “1”
TO
THE NOTICE OF
APPLICATION
Further Respondents
Heard:
07 November
2017
Delivered:
11 April 2018
JUDGMENT
MAHOSI.
J
Introduction
[1] This is an
application to confirm a
rule nisi
that was granted by this
Honorable Court on 1 September 2017, calling the First Respondent
(NUMSA) and Further Respondents to show
cause, if any, before this
Court on 13 October 2017 at 10:00, why an order should not be granted
in the following terms:
‘
1.1
Interdicting and restraining the First and Further Respondents from
initiating, taking part in
and supporting any strike action in
pursuance of their demand that the Applicant refrain from the
implementation of a split shift
working arrangement as from Monday, 4
September 2017.
1.2
Directing that the First Respondent do all things necessary and
reasonably possible to ensure
that its members (the Further
Respondents) do not initiate and/or participate in strike action such
as that referred to paragraph
1.1 above, and instead, comply with
their obligations in terms of their contracts of employment and
tender their services to the
Applicant in a lawful manner.
1.3
Alternatively to the above, directing and/or declaring that the
Further Respondents are
obliged to work the split shift arrangement
pattern implemented by the Applicant.’
[2]
On 13 October 2017, the matter was postponed by agreement between the
parties to 7 November 2017 on which date it was finally
argued.
[3]
The main issue for determination is whether the proposed strike is
lawful. If it is not lawful, the
rule
should be confirmed. If it is lawful, the
rule
should be discharged.
Background
[4]
The Applicant (VWSA) manufactures motor vehicles for the export and
local market and the vehicle that is currently manufactured
is the
Polo model.
[5]
VWSA is currently one of the two predominant manufacturers in the
world of right-hand drive Polo vehicles, and the export market
primarily supplied by VWSA is that which predominantly exists in
Japan, New Zealand and the United Kingdom. The Pamplona plant
in
Spain is the other facility that predominantly produces right-hand
drive Volkswagen.
[6]
The new build allocations are made by VWSA’s parent company,
VWAG, which allocations are based on meeting phased production
target
commitments and are subject to termination at the instance of VWAG if
the facility receiving the build allocation fails
to meet the
required production targets.
[7]
The Polo is currently approaching the end of its life production
schedule that was scheduled to take place during the course
of 2017.
VWSA managed to secure the build Program from VWAG for the new
generation Polo (VW270) as a replacement for the Polo.
The VW270 was
scheduled to commence with the ramp up phase of production in
September 2017 until March 2018.
[8]
Prior to September 2017 the further respondents were working a
back-to-back shift pattern. VWSA implemented a split shift pattern
at
its workplace with effect from September 2017. The difference between
the back-to-back shifts previously worked, and the split
shift
pattern, is that the second shift in a split shift pattern does not
commence work immediately after the first shift, but
a few hours
later.
[9]
VWSA seeks to change the starting time of work of the second shift
worked prior to September 2017 and contends that the employment
contracts of the further respondents entitles it to do so. Clause 4
of the employment contracts of the further respondents provides
as
follows:
‘
HOURS
OF WORK
4.1 The maximum normal hours
(excluding breaks) during which the EMPLOYEE will be required to
render services to VW shall comprise
8 (eight) hour per day from
Monday to Friday inclusive, and shall be subject to such shift
patterns as may be required from time
to time by VWSA, including a 3
(three) shift pattern of 8 (eight) hour shift.
4.2 The
commencement times:
of the EMPLOYEE’s
normal hours of work; and
Ÿ
of any lunch or
other breaks which may be afforded to the EMPLOYEE; shall be fixed
from time to time by the VWSA.
4.3
It is recorded that the operational requirements as determined by
VWSA may necessitate a change to the commencement times of
an
EMPLOYEE’s duties, as also to the hours of work provided for in
4.1 above.’
[10]
NUMSA conceded that the provisions of the contracts of employment
permits VWSA to set the commencement times of hours of work
and
determine shift configurations in respect of the further respondents,
however it contended that the introduction of the split-shift
arrangement constitutes a unilateral change to the conditions of
employment applicable to the further respondents, as the individual
contracts of employment had been superseded by the “
Agreement
between NUMSA and VWSA on the A4 Golf Export Project and General
Transformation at VWSA” (the A4 Agreement).
[11]
It is common cause that on 26 September 2017, five days after the
interim order was handed down, NUMSA’s representative
signed a
pro forma
notice withdrawing the referral in which the demand
that VWSA revert to a back-to-back shift system was contained.
[12]
NUMSA conceded that the withdrawal of the matter deprives the section
64(4) of the Labour Relations Act
[1]
(LRA)
referral and the demand coupled with it of the jurisdictional
foundation. On the basis of its withdrawal of the dispute, NUMSA
accepted that it could not embark on a strike on the strength of the
referral under case number ECPE 5816-17.
[13]
NUMSA submitted that it was unnecessary for this Court to determine
the merits of the underlying dispute between the parties.
It further
submitted that the proposed strike may be declared unprotected and
the respondents interdicted against involvement in
it on the basis of
the withdrawal alone as there is no longer a dispute to strike over.
[14]
In the light of the concession, NUMSA relied on its alternative
submission that the interim order should not be confirmed in
its
present form. Accordingly, NUMSA submitted that VWSA is entitled to
an order in the following terms:
‘
1.
The First and the Second Respondents are interdicted and restrained
from initiating,
taking part in and supporting any strike action in
pursuance of their demand that the applicant refrain from
implementation of
the split shift working arrangement as from Monday,
4 September 2017 to 30 March 2018
unless
and until the First Respondent has complied with the requirement of
section 64(1)
of the
Labour Relations Act 66 of 1995
.
2.
The First Respondent is directed to do all things necessary and
reasonably possible
to ensure that its members (the Further
Respondents) do not initiate and/or participate in strike action such
as that referred
to paragraph 1 above, as qualified by the underlined
proviso
.
3.
It is declared that the Further Respondents are obliged to work the
split shift
system arrangement pattern implemented by the applicant
between 4 September 2017 and 30 March 2018, unless they engage in
strike
which enjoys protection under the
Labour Relations Act 66 of
1995
.’
[15]
NUMSA is of the view that the interim order is too broad because it
has no end date and that it would preclude the respondents
from
striking during the ramp up phase even though they have abandoned
their reliance on
section 64(3)(e)
of the LRA. NUMSA further
submitted that the interim order goes beyond the basis on which the
proposed strike would be unprotected,
that is the withdrawal of the
referral.
[16]
By
seeking an altered order, NUMSA is attempting to obtain, via an order
of this Court,
a
permission to embark on a strike over the introduction of a
particular shift pattern upon compliance with the procedural
requirement
of
section 64(1)
of the LRA.
This
is clearly inconsistent with the purposes of the Act.
Applicable
law and analysis
[17] It is trite that the
workers must comply with the procedural requirement set out in
section 64
of the LRA to engage in a protected strike.
Section 64(1)
provides as follows:
‘
(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’ organization.’
[18]
While
section 64(1)
requires a referral of a dispute to the council
or commission and a certificate of outcome to be issued or the
lapse of
30 days after the referral of the dispute
to
a council or to the commission,
section 64(3)(e)
provides that
the requirements of subsection (1) do not apply to a strike or a
lock-out if the employer fails
to comply with the
requirements of subsections (4) and (5).
[2]
[19]
The LRA, therefore, exempts the employees or a trade union from
complying with statutory conciliation and notice requirements
if the
dispute relates to a unilateral change to terms and conditions of
employment and the employer fails to restore the
status
quo
within 48 hours. However, the employees or the trade union must
require the employer, in the referral, not to unilaterally implement
the change to terms and conditions of employment or to restore the
terms and conditions of employment that applied before the change.
[20]
Therefore, NUMSA’s withdrawal of its referral amounts to
failure to comply with the procedural requirement
as
contemplated in
section 64(4)
of the LRA. As aforesaid,
NUMSA conceded that the proposed strike should be declared
unprotected on the basis of the
withdrawal alone as there is no
longer a dispute to strike over. VWSA’s application to confirm
a
rule
nisi
should be granted on this basis alone. For the sake of completeness,
I will consider whether the proposed strike relates
to a
permissible demand and not subject to limitations contained in
section 65
of the LRA.
[21]
Section
65
of the LRA provides for the substantive limitations on the right to
strike or recourse to lockout, and it states as follows:
‘
(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)
that person is engaged in -
(i)
an essential service; or
(ii)
a maintenance service.13
(2) (a)
Despite
section 65(1)(c)
, a person may take part in a strike
or a lock-out or in any conduct in contemplation or in furtherance of
a strike or lock-out
if the issue in dispute is about any matter
dealt with in
sections 12
to
15.14
(b)
If the registered trade union has given notice of the proposed strike
in terms of
section 64(1)
in respect of an issue in dispute referred
to in paragraph (a), it may not exercise the right to refer the
dispute to arbitration
in terms of
section 21
for a period of 12
months from the date of the notice.
(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)
any determination made in terms of
section 44
by the Minister that
regulates the issue in dispute; or
(b)
any determination made in terms of Chapter Eight of the Basic
Conditions of Employment
Act and that regulates the issue in dispute,
during the first year of that determination.’
[22]
On the one hand, VWSA’s submission was that its entitlement to
unilaterally implement the split shift is regulated by
clause 4 of
the employment contracts of the further respondents and reaffirmed or
alternatively restored by the 2013 Collective
Agreement that was
entered into in order to recover the losses in scheduled productions
as a consequence of the strike in the automobile
industry in 2012.
The 2013 Collective Agreement expressly recorded that its provisions
did not constitute waiver of any contractual
rights that VWSA had in
terms of its contracts of employment to change and/or introduce shift
configuration necessary and permissible
in law in order to meet its
operational requirements.
[23]
On the other hand, NUMSA submitted that the introduction of the
split-shift arrangement constitutes a unilateral change to
the
conditions of employment applicable to the further respondents, as
the A4 Agreement had superseded the individual contracts
of
employment
.
According to NUMSA, the further respondents have,
since the introduction of the A4 Agreement, worked back-to-back
shifts during
most export related projects and this practice has
hardened into a condition of service, which VWSA has accepted by
custom. On
the non waiver provision of the 2013 Agreement, on which
VWSA relies, NUMSA is of the view that it merely confirms its
contractual
right to change shift patterns in order to meet its
operational requirements but does not constitute the recognition of
VWSA’s
right to unilaterally alter the shift pattern
established by the A4 Agreement.
[24]
It is common cause that both the A4 Agreement and the 2013 Agreement
are collective agreements. I agree with VWSA that on any
version, the
issue in dispute is one regulated by a collective agreement and may
be referred to arbitration. Alternatively,
it is regulated
contractually and may be referred to the Labour Court for
adjudication.
Section
65(1)(c) of the LRA clearly precludes a strike if the issue in
dispute is one that a party may refer to arbitration or to
the Labour
Court in terms of the LRA or any other employment law. There can be
no strike where
the
dispute is regulated by a contract of employment or a collective
agreement or any other agreement between the parties.
For
the aforesaid reasons, there is no reason why the
rule
nisi
that
was granted by this Honorable Court should not be confirmed.
[25]
With
regard to costs, taking into account the requirements of law and
equity, I believe this is a matter in which there should be
no order
as to costs.
[26]
In the circumstances, I make the following order
Order
1.
The
rule
nisi
that
was granted by this Honorable Court on 1 September 2017 is confirmed.
2.
There is no order as to costs.
_____________
D. Mahosi
Judge of the Labour Court
Appearances
For
the Applicant:
Advocate Franklin SC with J Partington
Instructed
by:
Chris Baker and Associates
For
the Respondent: Advocate JG Grogan
Instructed
by:
Gray Moodliar Attorneys
[1]
Act
66 of 1995 as amended.
[2]
Section
64 (4) Any employee who or any trade union that refers a dispute
about a unilateral change to terms and conditions or
employment to a
council or the Commission in terms of subsection (1)(a) may, in the
referral, and for the period referred to
in subsection (1)(a)
-
(a)
require the employer not to implement unilaterally the change to
terms and conditions
of employment; or
(b)
if the employer has already implemented the change unilaterally,
require the employer
to restore the terms and conditions of
employment that applied before the change.
(5)
The employer must comply with a requirement in terms of subsection
(4) within 48
hours of
service of the referral on the employer.