About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 377
|
|
Teti Traffic (Pty) Ltd v National Union of Metalworkers of South Africa and Others (J558/19) [2019] ZALCJHB 377 (14 May 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: J558/19
In
the matter between:
TETI
TRAFFIC
(PTY)LTD
Applicant
and
NATIONAL
UNION OF METALWORKERS
First Respondent
OF
SOUTH AFRICA
ENOCK
MANYONI
Second Respondent
HOSEA
WALENG
Third Respondent
SIZAKELE
KUBEKA
Fourth Respondent
EPHRAIM
BEREDA
Fifth Respondent
PERSONS
WHOSE NAMES ARE LISTED
IN
ANNEXURE "An ATTACHED HERETO
Sixth to Further Respondents
Heard:
10 May 2019
Judgment
delivered: 14 May 2019
JUDGMENT
VAN
NIEKERK J
[1]
This is the return date of a rule
nisi
issued on 13 March
2019. The terms of the rule provide for an. interim .interdict,
amongst other things, declaring a strike on which
the respondents
intended to embark unprotected, and restraining them from
participation in strike-related misconduct.
[2]
Neither party opposes the confirmation of the rule
nisi.
The
only issue to be determined is that of costs.
[3]
The factual background is not disputed. The applicant's principal
business is to provide services to SANRAL in terms of a contract
that
expires in December 2019. The applicant and the first respondent (the
union) concluded a recognition agreement on 3 October
2017. After the
agreement was concluded, the parties engaged in a process of
collective bargaining in respect of a number of demands
tabled by the
union by way of a letter signed by the second respondent (Manyoni),
on16 August 2017. The demands included the establishment
of a
provident fund (with a 50% contribution by the applicant), the
implementation of a medical scheme (with a 40% contribution
by the
applicant), and payment of an annual bonus.
[4]
The parties held a number of meetings between November 2017 and April
2018 and agreed ultimately in April 2018 to request the
CCMA to
appoint a senior commissioner to facilitate a resolution of the
dispute. A facilitation meeting took place on 25 May 2018,
but the
dispute could not be resolved. The union referred the dispute to
conciliation in June 2018, after which the dispute was
referred to
arbitration, by agreement, in July 2018. On 24 August 2018, before
the commencement of the arbitration hearing, the
deadlock was broken
and the parties reached an in-principle agreement. On 28 August 2018,
Manyoni addressed a letter to the applicant
stating that the
proposals presented to the members had been accepted.
[5]
On 3 September 2018, the parties concluded a substantive agreement,
which operates for the period 1 January 2018 to 31 December
2019.
Clause 9 of the substantive agreement provides for the establishment
of a task team to determine the feasibility of implementing
a
provident fund or retirement savings vehicle and a medical aid fund
for the union's members. On the issue of the annual bonus,
the
parties agreed in clause 6 to meet on a monthly basis to track the
applicant's financial performance and that the applicant
would
discuss the issue and make a final determination in relation to the
payment of the bonus by the end of November 2018.
[6]
Of significance for present purposes is clause 8 of the agreement,
which reflects the union's agreement to withdraw the dispute
referred
to the CCMA and agreement that the substantive agreement constituted
a full and final settlement of claims by the union
against the
applicant and clause 7, which records that neither party would for
the remainder of the applicant's contract with SANRAL
engage in any
collective bargaining regarding the amendment or improvement of any
substantive terms and conditions of employment
of the union's
members. The union subsequently withdrew the dispute by way of a
letter addressed to the CCMA, by Manyoni, on 3
October 2018.
[7]
A task team was duly established in terms of the agreement. On 5
December 2018, the applicant informed the union that on account
of
its financial position it was unable to implement a provident fund or
a medical aid scheme, and that this issue should be postponed
to June
2019. The applicant also indicated that it was unable to afford an
annual bonus but that the task team should similarly
revisit this
issue in June 2019.
[8]
At the conclusion of the meeting, Manyoni stated that he would refer
a dispute to the CCMA regarding the implementation of a
provident
fund, medical aid and the payment of a bonus.
[9]
On 18 January 2019, the union referred a dispute to the CCMA. The
referral form indicates that the result required is that the
employer
party agree to a provident fund, medical aid and annual bonus.
[10]
A conciliation meeting was convened in February 2019, when the
conciliating commissioner directed the parties to file papers
on a
jurisdictional issue that the applicant had raised. On 15 February
2019, the applicant filed a formal application objecting
to the
CCMA's jurisdiction, on the basis that there was no live dispute
between the parties, the issues of the provident find,
medical scheme
and bonus having been resolved on the terms reflected in the
substantive agreement. The point was argued on 27 February
2019, when
the commissioner reserved judgment.
[11]
On 6 March 2019, prior to any jurisdictional ruling, the union issued
a strike notice in terms of s 64(1) of the LRA. On the
same day, the
applicant's attorney addressed a letter to the union contending that
the union's demands were regulated by the substantive
agreement and
that any strike would be a material breach of the agreement and thus
unprotected. The letter specifically advised
that should the strike
notice not be withdrawn, the applicant would approach this court for
an urgent interdict, with an order
for costs.
[12]
On 13 March 2019, the rule nisi was issued, with an interim
interdict. The costs of the application were reserved. On the same
day, a copy of the interim order was furnished to the union's
attorneys and served in accordance. with the terms of the order.
The
threatened strike did not materialise on 14 March 2019.
[13]
On 28 March 2019, the CCMA issued a jurisdictional ruling in which
the commissioner ruled that the CCMA had jurisdiction to
conciliate
the dispute referred by the union. A notice of set down for the
conciliation was issued. On 8 April 2018, the applicant's
attorneys
advised the union of the interim order declaring the strike
unprotected. On 12 April 2019, Manyoni attended at the CCMA
and urged
the commissioner to issue a certificate of outcome. The conciliating
commissioner refused to issue a certificate on the
basis that an
interim order had been granted declaring the strike unprotected.
[14]
The applicant submits that the union's conduct in referring the
dispute, issuing a strike notice and seeking to obtain a certificate
of outcome was aimed at creating discomfort, frustration and
inconvenience for the applicant, and is the antithesis of the system
of harmonious industrial relations contemplated by the LRA. In these
circumstances, the applicant submits that the conduct of the
union
and Manyoni warrant censure by the court in the form of an order for
costs.
[15]
The legal principles to be applied are well established. Section 162
confers a discretion on the court to make orders for costs
according
to the requirements of the law and fairness. In
Zungu v Premier-
of the Province of KwaZulu-Natal and others
(2018) 39
ILJ
523
(CC), the Constitutional Court said the following (footnotes
omitted):
[23] ... The correct approach in
·labour matters in terms of the LRA is that the losing party
is not as a norm ordered to
pay the successful party's costs. Section
162 of the LRA governs the manner in which costs may be awarded in
the Labour Court.
Section H32 provides:
"(1) The Labour Court may make an
order for the payment of costs, according to the requirements of the
law and fairness.
(2) When deciding whether or not to
order the payment of costs, the Labour Court may take into account-
(a) whether the matter referred to the
Court ought to have been referred to arbitration in terms of this Act
and, if so, the extra
costs incurred in referring the matter to the
Court; and
(b) the conduct of the parties-
(i).
in proceeding with or defending the matter before the Court; and
(ii).
during the proceedings before the Court.”
[24] The rule of practice that costs
follow the result does not apply in Labour Court matters. In
Dorkin,
Zondo JP explained the reason for the departure as follows:
“
The rule of practice that costs
follow the result does not govern the making of orders of costs in
this Court. The relevant statutory
provision is to the effect that
orders of costs in this Court are to be made in accordance with the
requirements of the law and
fairness; And the norm ought to be that
costs orders are not made unless the requirements are met. In making
decisions on costs
orders this Court should seek to strike a fair
balance between on the one hand, not unduly discouraging workers,
employers, Unions
and employers' organisations from approaching the
Labour Court and this Court to have their disputes dealt with, and,
on the other,
allowing those parties to bring to the Labour Court and
this Court frivolous cases that should not be brought to Court."
[16]
Although the rule is clearly that costs do not necessarily follow the
result, the outcome of proceedings in respect of which
costs are
sought is a relevant factor to be weighed in the balance, together
with all others. In the present instance, the applicant
succeeded in
obtaining an interim order which the union elected not to oppose, and
the confirmation of the rule
nisi
is similarly not opposed.
The applicant has therefore succeeded in obtaining the substantive
relief it sought against the respondents.
[17]
To the extent that the applicant relies on Manyoni's issuing a strike
notice prior to the CCMA issuing its jurisdictional ruling,
this is
not a relevant factor. On the other hand, the conduct of the union
and Manyoni in particular, leaves much to be desired.
Manyoni was
aware of the terms of the substantive agreement, having negotiated
the agreement on behalf of the union. He was well
aware that the
demands regarding the provident fund, medical scheme and annual bonus
were settled in terms of that agreement. His
declaration of a further
dispute in respect of those issues is nothing less than cavalier and
resulted in the applicant having
to institute these proceedings to
protect its interests. Yet Manyoni persisted with his baseless
demands, to the point of issuing
a strike notice. Further, after the
strike notice was issued, the union was specifically invited to
withdraw it for the reasons
set out by the applicant, the same
reasons, no doubt, that have prompted the union not to oppose the
confirmation of the rule
nisi
but for the issue of costs. The
union elected not to withdraw the notice or provide any substantive
basis on which it considered
that any strike would be protected, thus
compelling the applicant to file an urgent application. On a
consideration of all of the
above factors, the interests of the law
and fairness are best served by an order that will ensure that to
some extent at least,
the applicant will not be out of pocket on
account of Manyoni's egregious conduct.
[18]
I must also take into account that there is a collective bargaining
relationship between the parties, and the continued existence
of that
relationship (see
National Union of Mineworkers v East Rand Gold
and Uranium
Co
ltd
(1991) 12
ILJ
1221 at 1243 (A)).
The respondent's representative urged me to have regard to this
factor and to exercise my discretion in relation
to costs. I have
outlined above Manyoni's campaign to resurrect the demands that had
been settled in the agreement concluded between
the parties in
September 2018, despite the terms of that agreement. Manyoni's
conduct has undermined the collective bargaining
relationship between
the parties, and the present proceedings are a direct consequence of
that conduct. It is not open to the union
now to rely on the
existence of 11n on-going collective bargaining relationship as a
factor militating against a costs order, in
circumstances where its
officials have acted in blatant and flagrant disregard of the terms
of a binding collective agreement.
On the contrary, a refusal to
grant the applicant its costs runs the risk of this court indicating
to the parties (and more broadly)
_that union officials may flout
binding collective agreements and thus subvert the institution of
collective bargaining with impunity.
[19]
No evidentiary basis was laid for an order for costs against any of
the third to further respondents, and I intend therefore
to limit the
order for costs to one in respect of the first and second
respondents.
I
make the following order:
1. The rule
nisi
issued on 13
March 2019 is confirmed, with costs, such costs to be paid jointly
and severally by the first and second respondents,
the one paying the
other to be absolved.
_________________
André
van Niekerk
Judge
REPRESENTATION.
For
the applicant: Adv, H Viljoen instructed by Cowan Harper Madikizela
For
the respondent: MR R Daniels, Cheadle Thompson & Haysom Inc.