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[2019] ZALCJHB 74
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Comair Ltd v National Union of Metal Workers of South Africa and Others (J891/19) [2019] ZALCJHB 74; [2019] 8 BLLR 812 (LC) ; (2019) 40 ILJ 2076 (LC) (25 April 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
c
ase
no
: J 891/19
COMAIR
LTD
Applicant
And
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH AFRICA
First
Respondent
EMPLOYEES
LISTED IN ANNEXURE “A”
Second
to further Respondents
Heard
:
18 April
2019
Delivered
:
25 April
2019
JUDGMENT
PRINSLOO,
J
Introduction:
[1]
The Applicant
approached this Court on an urgent basis seeking an order declaring
the strike action by the Respondents unprotected
and further
interdicting and restraining them from instigating or participating
in such strike action.
[2]
The
Respondents filed an answering affidavit, to which the Applicant
filed a reply. The answering and replying affidavits were handed
up
in Court when the matter was heard and as I had no prior sight of
these affidavits or any opportunity to peruse them, judgment
in the
matter was reserved. As all the papers are before me, the matter will
be finally determined.
[3]
The
Respondents took issue with urgency. I do not intend to deal with the
issue in any detail as this Court has a discretion and
in exercising
my discretion I am inclined to deal with the matter notwithstanding
the objections regarding urgency. Not only am
I of the view that the
matter is urgent, it is also in the interest of the parties that the
issues raised be decided without delay.
Brief history
[4]
The
Applicant has established an ‘Employment Equity Forum’
(EEF) in accordance with the provisions of the Employment
Equity
Act
[1]
(EEA) to deal with
inter
alia,
issues
relating to allegations of discrimination in the workplace. In
September 2018 the First Respondent (NUMSA) raised an equal
pay
grievance with the EEF, claiming pay differentiation on the basis of
race or ethnicity. NUMSA demanded that the Applicant eliminates
the
alleged unfair differentiation.
[5]
In October
2018, NUMSA referred
inter
alia,
the
wage parity dispute raised in September 2018, to the Commission for
Conciliation, Mediation and Arbitration (CCMA). On 20 December
2018
and at the CCMA, the parties entered into a settlement agreement and
in respect of the salary discrepancies issue, the parties
agreed to
set up a working committee to deal with it. They agreed to identify
the group of affected employees, to do an investigation
and classify
where necessary according to job description. The parties further
agreed that the Applicant would provide all the
relevant salary
information to include race, gender, date of employment, basic salary
and other variable earnings. The working
committee agreed to meet on
8 and 9 January 2019.
[6]
At the meeting
of the working committee on 8 and 9 January 2019, the Applicant
tabled several proposals as a means of dealing with
the equal
pay/discrimination dispute, but NUMSA rejected the proposals. NUMSA
demanded that the wages of the majority of employees
be increased to
those of the highest paid employees.
[7]
NUMSA had two
disputes with the Applicant; namely a wage dispute relating to wage
increases and a dispute on wage discrepancies.
[8]
On 23 January
2019, the parties concluded a wage agreement that settled NUMSA’s
wage demands for a two-year period. In terms
of the agreement, wage
increases and other benefits, are to be implemented over a period of
two years.
[9]
On 25 January
2019, NUMSA referred a dispute on wage discrepancy as a dispute of
mutual interest to the CCMA. Conciliation took
place on 14 February
2019 and on 26 March 2019, a certificate of non-resolution was
issued, following unsuccessful conciliation
of the dispute.
[10]
On 16 April
2019, NUMSA served a notice of intention to strike on the Applicant,
which strike action was to commence at 13:00 on
18 April 2019.
The Applicant’s
case
[11]
The
Applicant’s case is that the Respondent’s industrial
action is unprotected for three following reasons.
11.1
Firstly,
the true nature of the dispute is an equal pay/discrimination dispute
which is to be resolved in terms of the provisions
of section 10(6)
of the EEA by way of referral to the Labour Court for adjudication or
arbitration. The dispute is not a dispute
in respect of which
industrial action is permissible as strike action is excluded by the
provisions of section 65(1)(c) of the
Labour Relations Act
[2]
(the
LRA).
11.2
Secondly, the parties had entered into a collective agreement on 23
January 2019 in terms
of which the terms and conditions of employment
had been agreed to for a period of two years, save for the issues
expressly reserved
for further discussion in May 2019. The said wage
agreement regulates all issues relating to wages and terms and
conditions of
employment, including the current issue. NUMSA accepted
the sign-on bonus and it is therefore obliged to accept that all
issues
relating to wages and terms and conditions of employment have
been resolved. The wage parity issue must be deferred for
consideration
after the conclusion of the wage agreement. The issue
is therefore regulated by a collective agreement and strike action on
the
issue is prohibited in terms of section 65(3)(c) of the LRA.
11.3
Thirdly, absent a secret ballot as required by section 19 of the
Labour Relations Amendment Act
[3]
,
NUMSA’s members may not engage in strike action.
The Respondents’
case
[12]
The
Respondents’ case is that for many years, salary discrepancies
have existed within the Applicant as a number of employees
performing
the same job do not receive the same remuneration. This is a
long-standing problem and the Applicant’s management
has made
little or no effort to resolve the issue.
[13]
Initially,
NUMSA believed that the pay discrepancies were based on race or
ethnicity but after the Applicant disclosed information
to the union,
it is satisfied that the salary discrepancies are not based on race
or ethnicity.
[14]
NUMSA’s
demand is that all employees performing the same work must receive
the same remuneration. A dispute in respect of
salary discrepancies
was declared and on 20 December 2018, a settlement agreement was
concluded at the CCMA. The settlement agreement
established a working
committee to deal with the salary discrepancies and after the
discrepancies were not resolved at the meetings
of 8 and 9 January
2019, the parties remain in dispute concerning the salary
discrepancies.
[15]
The true
nature of the dispute is salary discrepancies, but it does not fall
within the scope of section 10 of the EEA as NUMSA’s
case is
not that the discrepancies arise from any of the grounds set out in
section 6 of the EEA. NUMSA has moved away from referring
to the
salary discrepancy dispute as an equal pay / discrimination dispute.
The salary discrepancies are unrelated to race and
ethnicity.
[16]
The dispute is
a matter of mutual interest as the issue in dispute is related to the
terms and conditions of employment. The dispute
concerning salary
discrepancies is not regulated by any wage agreement and at the time
the wage agreement was concluded, the Applicant
was aware of the
existence of the dispute about salary discrepancies and the fact that
NUMSA did not seek to address the said issue
in the wage agreement
concluded in January 2019.
The
wage agreement that the parties entered into, does not relate to
salary discrepancies and the agreement does not regulate the
issue at
all. NUMSA’s case is that the Applicant was fully aware that
when it concluded the wage agreement, it did not settle
the salary
discrepancies dispute.
[17]
NUMSA made it
clear that it refused to classify the dispute as an equal
pay/discrimination dispute and instead classified the dispute
as a
wage gap dispute. NUMSA’s position is that it is entitled to
strike on the issue in dispute.
Analysis: The dispute
[18]
It is evident
that the nature of the dispute is a contentious issue on which the
parties do not agree. The starting point therefore
is to determine
the true nature of the dispute and to consider whether NUMSA has to
refer the dispute for adjudication or arbitration
or whether it could
embark on industrial action.
[19]
In
National
Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd
[4]
it
was held that:
‘
It
is the duty of a court to ascertain the true nature of the dispute
between the parties. In ascertaining the real dispute a court
must
look at the substance of the dispute and not at the form in
which it is presented. The label given to a dispute by a
party is not
necessarily conclusive. The true nature of the dispute must be
distilled from the history of the dispute, as
reflected in the
communications between the parties and between the parties and the
Commission for Conciliation, Mediation
& Arbitration (CCMA),
before and after referral of such dispute. These would include
referral documents, the certificate of
outcome and all relevant
communications. It is also important to bear in mind that parties may
modify their demands in the course
of discussing the dispute or
during the conciliation process. All of this must be taken into
consideration in ascertaining
the true nature of the dispute.’
(Footnotes omitted)
[20]
In
National
Union of Metalworkers of SA and Others v Edelweiss Glass and
Aluminium(Pty) Ltd
[5]
it
was confirmed that it is the duty of a court to ascertain the true
nature of the dispute between the parties and in doing so,
the court
must look at the substance of the dispute. It was held that:
‘
[60]
The true nature of the dispute may be discerned from the history of
the dispute, as reflected
in the communications between the parties
themselves and between the parties and the CCMA, before and after
referral of the dispute.
Relevant documents for this purpose may
include the referral form, the certificate of outcome, any relevant
correspondence, negotiations
between the parties, and affidavits
filed in court proceedings in which the issue must be determined.
[61]
Although as a general proposition it may be said that the issue in
dispute over which a strike
may be called must be the issue in
dispute that was referred to conciliation, this is not a rule 'to be
applied in a literal sense'.
This would unduly restrict the
process of collective bargaining. Parties may readily modify or
develop their demands in the course
of a collective bargaining
dispute, whether during or after the conciliation process. But
this does not mean that a trade union
may call a strike
ostensibly in support of one demand when the true demand is one over
which no strike is permissible. One of the
considerations which the
court will take into account is whether the nominal issue in dispute
is the true dispute’.
[21]
In
ascertaining the true nature of the dispute, I am guided by the
aforesaid principles and the first issue to be considered is
the
history of the dispute, as reflected in relevant documents. NUMSA’s
version is that for many years, salary discrepancies
existed in that
a number of employees performing the same job do not receive the same
remuneration. This is a long-standing problem
and NUMSA’s
members are frustrated that the discrepancies have continued for such
a lengthy period with the Applicant’s
management making little
or no effort to resolve the issue.
[22]
NUMSA held
meetings with the Applicant in July and August 2018, where after it
declared a dispute in respect of the ongoing salary
discrepancies. On
5 October 2018, NUMSA issued a ‘notice of dispute’ in
accordance with the recognition agreement and
in the said notice,
NUMSA recorded
inter
alia,
that
the ‘salary discrepancies’ was an unresolved issue. The
solution proposed was that all employees who are doing
the same job
in the same department should earn the same salary and that the
salary gap be closed with immediate effect.
[23]
Subsequently
and on 11 October 2018, NUMSA referred a dispute to the CCMA and the
dispute was described as being that ‘
the
employer refuses to resolve the issue that was raised by the union’
and the
result required was for the Applicant to resolve all the issues that
were raised. This included the salary discrepancies
issue.
[24]
In respect of
the referral, a settlement agreement was concluded on 20 December
2018 at the CCMA. A working committee was established
to deal with
the salary discrepancies and to meet on 8 and 9 January 2019. The
dispute concerning the salary discrepancies was
not resolved.
[25]
On 25 January
2019, NUMSA referred a second dispute regarding salary discrepancies
to the CCMA. In the referral, the dispute is
recorded as ‘
the
employer is refusing to close the gap between employees who are
earning more than the others.’
The
result required was left open on the referral form.
[26]
It is evident
from the dispute notice as well as the referral forms that the
dispute relates to salary discrepancies.
[27]
The Applicant
placed reliance on the way NUMSA has aired the issue in dispute. To
this extent, NUMSA’s spokesperson, Ms Phakamile
Hlubi-Majola,
stated in a live interview on eNCA radio that “…
at
Comair, there continues to be this system where the majority of white
workers earn more than black workers, even those who fulfil
the same
tasks. That’s apartheid. That’s modern day apartheid.”
On 20
December 2018 the Citizen Newspaper published an article quoting Ms
Hlubi-Majola as saying that the Applicant “
is
a racist company which refuses to pay workers equal pay for work of
equal value. There is a significant gap between the salaries
of white
workers and African workers who do the same work.”
Similar
comments were made by NUMSA’s general secretary, Mr Irvin Jim.
[28]
On 18 January
2019, Fin24 published an article where NUMSA was quoted saying that
it could not allow a situation where the principle
of equal pay for
work of equal value is violated and that the wage discrepancies
should be corrected.
[29]
As recent as
16 April 2019, and after the strike notice was issued to the
Applicant, Ms Hlubi-Majola stated in a Radio 702 interview
that NUMSA
was calling for equal pay for all employees performing the same
duties and that the strike was called after the Applicant
had failed
to agree on a timeframe to implement the union’s proposal to
resolve pay discrepancies.
[30]
NUMSA admitted
that the statements were made but indicated that they no longer
reflect its views as at the present time, as it has
shifted its
position and no longer contended that the salary discrepancies were
related to race or ethnicity. NUMSA submitted that
as the employees
no longer contend that the pay discrepancies constitute unfair
discrimination, their only remedy is to resolve
the dispute through
industrial action.
[31]
The
Applicant’s response to NUMSA’s shifted position is that
the issue raised by NUMSA is an equal pay claim and that
remained
NUMSA’s public position until today. NUMSA has provided a
confirmatory affidavit by Ms Hlubi-Majola, confirming
the allegations
in the answering affidavit as far as they relate to her. NUMSA has
however not amended its public statements on
the claim of racially
motivated pay discrimination. Similar statements were made by Mr Jim,
with no indication in the answering
affidavit that he got it wrong or
that he was misinformed or misquoted or that he no longer believes
the issue to be what he indicated
it to be. The Applicant’s
case is that NUMSA cannot put forward one version to their members
and the public, in the hope
of raising support, and in the same
breath create a different set of facts to get around the legal
difficulties they face in proceeding
with the industrial action.
[32]
NUMSA made
public statements calling the employer ‘
a
racist company’
and labelling pay discrepancies as ‘
modern
day apartheid’
without hesitation and made it clear that the strike was to resolve
the pay discrepancies. NUMSA has not publicly distanced itself
from
or withdrew the statements that were made and in the papers before
this Court, the first attempt is made to state that the
views
publicly expressed, no longer represent its position.
[33]
NUMSA has
since moved away from its position that the salary discrepancies were
related to race or ethnicity and its case is that
the dispute is no
more than a wage gap dispute. According to NUMSA, the dispute is no
longer an equal pay dispute.
[34]
The true
nature of the dispute is to be determined from all the relevant
facts. This Court must have regard to the substance and
not the form
of the demand and the Court is not bound by the CCMA’s
characterisation of a dispute.
[35]
An assessment
of NUMSA’s case shows that it demanded that there should be
parity of wages for all employees performing the
same work in the
bargaining unit. Initially it was based on discrimination on the
grounds of race or ethnicity, which, according
to the answering
affidavit, is no longer NUMSA’s case. The current demand is
essentially that employees doing the same work,
should receive the
same pay and according to NUMSA, the issue in dispute is related to
the terms and conditions of employment.
[36]
The
Applicant’s case is that the demand remained the same –
from the outset NUMSA demanded that there should be parity
of wages
for all employees performing the same work in the bargaining unit.
Initially it was based on discrimination and the current
demand is
essentially the same in that NUMSA still demands that employees doing
the same work, should receive the same pay. The
essence of the demand
did not change, save for the move away from the assertion that the
motive for the pay difference was based
on discrimination.
[37]
It is evident
that NUMSA’s demand is that there should be a parity of wages
for all employees performing the same work in
the bargaining unit. In
my view, the essence of the dispute is equal pay for equal work.
[38]
Notwithstanding
the fact that NUMSA stated in the papers before this Court that it
does not assert that the salary discrepancies
were based, directly or
indirectly, on any of the grounds identified in section 6 of the EEA
and that the dispute is about salary
discrepancies but does not fall
within the scope of section 10 of the EEA, the facts before me
establish a classic case provided
for in the EEA.
[39]
NUMSA stated
that how the salary discrepancies arose is not known, but that such
discrepancies are not related to race or ethnicity
or any other
grounds identified in section 6 of the EEA. The phrase ‘or on
any other arbitrary ground’ was added to
section 6(1) and
section 6(4) was added to the EEA by way of the 2013 amendments to
the EEA, which came into operation on 1 August
2014.
[40]
Section 6(4)
of the EEA provides that:
‘
A
difference in terms and conditions of employment between employees of
the same employer performing the same or substantially the
same work
or work of equal value that is directly or indirectly based on any
one or more of the grounds listed in subsection (1),
is unfair
discrimination’.
[41]
Section 6(1)
of the EEA provides that:
‘
No
person may unfairly discriminate, directly or indirectly, against an
employee, in any employment policy or practice, on one or
more
grounds, including race, gender, sex, pregnancy, marital status,
family responsibility, ethnic or social origin, colour, sexual
orientation, age, disability, religion, HIV status, conscience,
belief, political opinion, culture, language, birth
or
on any other arbitrary ground.’
(Own
emphasis)
[42]
The essence of
the demand made by NUMSA remains one that employees who perform the
same work should receive the same pay. Although
the difference in
remuneration is no longer alleged to be based on race or ethnicity,
what NUMSA asserts is that there is no substantively
good reason or
justification for the difference; in other words, that the difference
is arbitrary, or that it's members are being
less favourably treated
on an arbitrary ground. This is precisely what section 6 of the EEA
prohibits, and what this Court is empowered
to remedy where the
employer is unable to proffer some rational justification for the
difference in the form of a difference in
levels of skill,
experience, qualification and the like. That being so, the dispute
giving rise to the strike is one that is capable
of determination by
this Court and therefore may not be the subject of industrial action.
[43]
The amendments
to the EEA, as alluded to
supra,
intended to put differentiation in terms and conditions of employment
without an obvious basis (any other arbitrary ground) to
the test and
the appropriate forum to test any alleged differentiation, is the
CCMA or the Labour Court. The dispute has to be
resolved in terms of
section 10 of the EEA. In the event that the dispute is pursued,
NUMSA has to make out a case on an arbitrary
ground.
[44]
The real
dispute indeed triggered the limitation on the right to strike as
provided for in section 65(1)(c) of the LRA where it
is provided that
no person may take part in a strike if the issue in dispute is one
that a party has the right to refer to arbitration
or to the Labour
Court in terms of the LRA or any other employment law.
[45]
In view of my
findings on the true nature of the dispute, it is not necessary to
deal with the other grounds on why the strike is
unprotected, as
raised by the Applicant.
Costs
[46]
In awarding
costs this Court has a wide discretion. In my view the interest of
justice will be best served by making no order as
to costs, having
regard to the ongoing collective bargaining relationship between the
parties and the prospect of prejudice to
the relationship and the
successful resolution of the current dispute, should an order for
costs be made.
[47]
In the
premises, I make the following order:
Order
1.
The strike
action by the Respondents is declared unprotected in terms of the
provisions of section 65(1)(c) of the Labour Relations
Act;
2.
The
Respondents are interdicted and restrained from participating in
strike action pursuant to the certificate of outcome issued
under
case number H0257-19;
3.
There is no
order as to costs.
_______________________
Connie
Prinsloo
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant: Advocate
A Cook
Instructed
by: Baker
Mckenzie Attorneys
For
Respondents: Advocate
I de Vos
Instructed
by: Cheadle
Thomson & Haysom Attorneys
[1]
Act
55 of 1998, as amended.
[2]
Act
66 of 1995 as amended.
[3]
Labour
Relations Amendment Act 8 of 2018.
[4]
[2002] ZACC 30
;
2003
(3) SA 513
(CC), (2003) 24 ILJ 305 (CC) at para 52.
[5]
(2010)
31 ILJ 139 (LC).