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[2018] ZALCPE 18
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South African Municipal Workers Union v Amathole District Municipality (P272/18) [2018] ZALCPE 18; 2018] 12 BLLR 1224 (LC) (17 July 2018)
Of
interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT PORT ELIZABETH
C
ase no: P 272/18
In the
matter between:
SOUTH AFRICAN MUNICIPAL WORKERS
UNION
Applicant
and
AMATHOLE
DISTRICT MUNICIPALITY
Respondent
Heard
:
12 & 13 July 2018
Delivered
:
17 July 2018
Summary:
(urgent interdict –
pendente lite
– implementation
of restructuring in accordance with newly adopted organogram –
struck off for lack of urgency)
JUDGMENT
LAGRANGE
J
Introduction
[1] This
is an application for urgent interim relief launched on 3 July 2018.
SAMWU, the applicant union, seeks the following
substantial
relief, apart from bringing the application as a matter of urgency:
1.1
that the intended restructuring by the respondent municipality,
Amathole District municipality
(‘the municipality’) in
accordance with its newly adopted organic be stayed;
1.2
interdicting it from implementing restructuring in accordance with
the organic and adopted by
it on 29 June 2018;
1.3
that the relief above operate as an interim order pending the
finalisation of disputes already
referred to the bargaining Council
and the CCMA, and a review of the Council’s adoption of the
organogram, which has yet
to be launched.
[2] At
the hearing of the matter on 12 July 2018, the respondent had raised
a host of preliminary objections to the application
and the
application was postponed until the following day to allow the
applicant to address those objections, which it chose to
do by way of
making submissions. The parties argued the
in limine
issues
the following day and the filing of a replying affidavit by the
applicant was postponed pending the outcome of the court’s
ruling on the
in limine
issues.
Background
[3] The
municipality first invited SAMWU and IMATU union representatives on
the Local Labour Forum (‘LLF’) to attend
a meeting of the
Forum on 23 April 2018 at which a report on institutional
arrangements, the proposed new structure of the municipality
were
items on the agenda.
[4] Prior
to that, there had been a policy workshop, which had not taken place
under the auspices of the LLF and the union had declined
to make any
inputs at that workshop because it was supposed to be only an
information sharing session, and it reserved its right
to deal with
it in the LLF.
[5] At
the LLF meeting, the municipality representatives pointed out the
obligations of the Council to adopt an integrated development
plan
under section 25 Of the Local Government: Municipal Systems Act (‘the
MSA’) which included aligning the resources
and capacity of the
municipality with the implementation of the plan. Neither of the
unions were willing to engage with the municipality
in discussions on
the new proposed structure for a number of reasons, including a
complaint that they should have been consulted
earlier and had not
had sight of a report, which was mentioned in the Report on
Institutional Arrangements tabled by the municipality
at the meeting.
[6] It is
clear from the extract of the minute of the LLF meeting of 23 April
2018, included in the union’s founding affidavit,
that both
SAMWU and IMATU were both in dispute with the municipality whether
any consultation prior to that meeting had taken place.
The
municipality was clearly of the view that they had already engaged in
consultation with the unions and the union’s maintained
that
there had not been consultations as such about the new structure.
[7] SAMWU
wanted the consultation process to start afresh. The discussion on
the point ended on the basis that IMATU complained
that the proposed
structure was incomplete because it lacked certain details and SAMWU
demanded the diagnostic report before they
would engage further. It
was agreed that the labour representatives would submit their
proposals in writing and the employer would
call a special LLF
meeting to discuss them.
[8]
Following the LLF meeting, a written request was made by SAMWU on 4
May 2018 to be provided with the diagnostic report and that
the
author of the report make a presentation to the LLF. On 28 May at a
meeting with the municipal management and SAMWU, it was
agreed that
the municipality would hold a workshop on policies and the proposed
organogram for shop stewards from both unions.
[9] The
municipal manager sent out the invitation on 29 May. It invited 10
SAMWU and 7 IMATU delegates to attend “a Workshop
on
presentation, discussion and input, on the organic and the policies
as resolved in the bilateral with SAMWU on Monday, 28 May
2018”.
The workshop was scheduled for 1 June 2018. SAMWU raised concerns
about the invitation because it suggested that there
would be
discussion and inputs, when SAMWU contended that they had only agreed
a workshop would be held to capacitate the unions.
It was also
unhappy with the fact that the notice suggested that the unions had
already held meetings with their members on the
issues whereas it had
been agreed that they needed time to consult with their
constituencies
after
the workshop. Moreover, contrary to
SAMWU’s understanding, all shop stewards were supposed to be
invited to the workshop.
[10]
According to SAMWU, management did not respond to this request.
Consequently, on 4 June 2018, SAMWU referred a mutual interest
dispute to the municipality demanding, as it expressed it in the
founding affidavit, “the reversal of the reorganisation
of the
workplace.” The dispute referral form is attached to the
founding affidavit, but without the annexure providing details
of the
dispute that was attached to the referral form. The following day a
further dispute was referred to the CCMA concerning
the alleged
failure of the municipality to supply SAMWU with information. Once
again, the referral form, without the annexure describing
the dispute
in more detail, was attached to the founding affidavit.
[11] On
26 June 2018, the LLF convened and again the policies and organogram
were on the agenda. By its own admission, the union
representatives
refused to discuss the items because of the pending dispute because
they felt the municipality was intent on “steam
rolling”
the organogram through despite allegedly acknowledging that it had
failed to engage with the unions on the issue.
[12]
Subsequently, a special Mayoral committee approved the organogram on
27 June 2018 and two days later it was adopted by the
Municipal
Council. This application was launched a couple of days later.
[13]
In setting out the sequence above, I have relied exclusively on
SAMWU’s own account of events.
Urgency
[14] The
municipality raised a number of
in limine
objections as
mentioned. However for the reasons which follow, it is only necessary
to deal with the question of urgency.
[15] It
is apparent that by 23 April 2018 SAMWU was already of the view that
any consultations over the adoption of a new organogram
consultation
had to commence afresh. Further, it declared a dispute on this very
issue on 4 June 2018. Having referred the dispute
it was clearly of
the view that no further meeting of the LLF could serve any purpose
until that dispute was resolved. Accordingly,
it did not have to wait
a month before launching an application for interim relief pending
the outcome of that dispute and the
dispute over the alleged failure
to disclose information.
[16]
Furthermore, though it was not made very explicit in the founding
affidavit, it was argued by SAMWU that, depending on the
outcome of
those two disputes, it would then decide sometime in the future
whether it was necessary to review the adoption of the
organogram at
the Council meeting on 29 June. It also seeks interdictory relief to
prevent the municipality giving effect to that
decision pending such
a review which might be brought. The apparent ground of review being
contemplated in that regard is that,
the organogram was allegedly
adopted without giving SAMWU and its affected members an opportunity
to be heard, in breach of the
principle of
audi alterem partem.
[17]
SAMWU gave the municipality two working days to respond, but in the
event the municipality only filed its answering affidavit
on the
morning the matter was set down for hearing. The two day period was
patently inadequate given the subject matter of the
application and
it is highly improbable that it took SAMWU only two days to draft the
application. Be that as it may, in the end,
the municipality answered
the founding affidavit within a reasonable time,
albeit
that
it then left SAMWU with no time to file a replying affidavit, which
prompted it to ask for a postponement to do so. Even
if I
accept that the municipality could have answered more promptly, there
is a bigger question about the urgency of the application
apart from
the time given to the respondent to oppose the application: that goes
to the more fundamental question of whether the
timing of the
application was unduly delayed to warrant it being treated as urgent.
[18]
Whether or not there was adequate consultation over the proposed
organogram is inextricably linked with SAMWU’s potential
claim
that its members were not afforded
audi
before the decision
was taken. The adoption of the organogram without an adequate
opportunity to make inputs, on SAMWU’s version,
was foreseeable
at the time it referred the first dispute on 4 June, and that was
already more than a month after it had demanded
the consultation
process start from scratch. It adopted an implacable stance that it
would not engage with the municipality on
the issue after the dispute
was declared and that no consultation could occur while the dispute
was pending. Instead of acting
promptly to halt any further
developments at the time it felt the municipality had failed to
follow a proper consultation process
or, at the very least, at the
time of declaring the dispute, it did nothing for more than a month.
It did not even call on the
municipality to halt the process once it
had declared the dispute.
[19] In
the circumstances, I am satisfied the application was not launched
with sufficient urgency.
Order
[1]
The application is struck of the roll for lack of urgency
[2]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Z
Feni instructed by Qhali Attorneys
RESPONDENT:
J
Grogan instructed by Lionel Trichardt
&
Associates