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[2019] ZALCJHB 297
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Johannesburg Metropolitan Bus Services (SOC) Ltd v Democratic Municipal and Allied Workers Union and Another (J1799/19) [2019] ZALCJHB 297; [2019] 12 BLLR 1335 (LC) (30 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA,
(HELD
AT JOHANNESBURG)
case
No: J 1799/19
Of
interest to other judges
In
the matter between:
JOHANNESBURG
METROPOLITAN BUS SERVICES (SOC) LTD
Applicant
and
DEMOCRATIC
MUNICIPAL AND ALLIED WORKERS UNION
First
Respondent
MEMBERS
LISTED IN ANNEXURE “A”
Second
Respondent
Heard
:
29 August 2019
Delivered
:
30 August 2019
Summary:
(Urgent application – strike interdict – effect of
non-compliance with s19 of Labour Relations
Amendment Act –
whether demands part of settlement agreement regulating issues –
partial relief granted)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an urgent application for a final interdict of a strike
called by the first respondent
[’ DEMAWUSA’] due to
commence on 2 September 2019. The applicant [’JMB’]
raises a number of grounds on
which it contests the strike would be
unprotected. Most of the grounds relied on by JMB concerned whether
or not the demands set
out in the strike notice concern matters which
have been settled in previous disputes. The other ground JMB relies
on is that the
union has not held a secret ballot of members before
engaging in the strike, contrary to section 19 of the Labour
Relations Amendment
Act, 8 of 2018 [’ the Amendment Act’].
The effect of the
transitional provision in section 19 of the Amendment Act
[2]
Section 19 of the amending act introduced the following provision:
Transitional provisions
19.
(1) The
registrar
must, within 180 days of the commencement of
this
Act,
in respect of registered
trade unions
and
employers’
organisations
that do not provide for a recorded and secret
ballot in their constitutions—
(a)
consult with
the national office bearers of those unions or
employers’
organisations
on
the most appropriate means to amend the constitution to
comply with section 95;
and
(b)
issue a
directive to those unions and
employers’ organisations
as
to the period within which the amendment to their constitution is to
be effected, in
compliance with the
procedures set out in the amended constitution.
(2)
Until
a
registered
trade union
or employers’ organisation
complies with the directive made in terms of subsection (1)
(b)
and
the requirements of section 95(5)
(p)
and
(q)
of the
Act, the
trade union
or employer organisation,
before
engaging
in a
strike in
or
lockout
,
must conduct
a secret ballot of members.
[Emphasis added]
[3]
In terms of
section 67
of the
Labour Relations Act 66 of 1995
[’
the LRA’], a strike is protected if it complies with the
provisions of Chapter IV of the LRA. In the main, the positive
prerequisites which must be fulfilled for a strike to be protected
under this chapter are those set out in
section 64
of the LRA.
Section 65
of the LRA, correspondingly describes those circumstances
in which a strike is nonetheless prohibited, irrespective of whether
or not the requirements of
section 64
have been complied with.
[4]
Interestingly, the transitional provisions in section 19 of the
Amending Act are not part
of Chapter IV. On a literal reading of the
transitional provisions of this section read with section 67 of the
LRA, the failure
of a union to conduct a secret ballot of members
when that is required in terms of section 19 would not render a
subsequent strike
unprotected, because that failure would not
constitute non-compliance with a provision of Chapter IV of the LRA.
[5]
Nonetheless, a failure to comply with section 19 of the Amending Act
in the circumstances
described in that section would be a breach of a
provision of the LRA. Accordingly, a party with a legal interest in
the prerequisites
for a union engaging in a strike being met, could
approach the Labour Court to exercise its power to order compliance
with any
provision of the LRA, set out in section 158 [1] [b] of the
LRA, by granting an order requiring the union to comply with the
balloting
requirement in section 19. Unlike an order declaring a
strike unprotected, an order requiring a union to conduct a secret
ballot,
would merely prohibit it from engaging in the planned strike,
until such time as it had conducted a secret ballot. As such, this
relief might only provide a temporary limitation on strike action.
[6]
In the circumstances of this application, can JMB obtain an order
compelling DEMAWUSA to
conduct a secret ballot before it engages in
the planned strike action, assuming there are no other limitations on
it engaging
in protected strike action?
[7]
In the
matter of
Mahle
Behr SA (Pty) Ltd v Numsa and Others ; Foskor (Pty) Ltd v NUMSA and
Others
[1]
, the labour court made precisely such an order in relation to a
registered union which had not complied with the requirements
of
section 95 [5] [p] or [q] of the LRA. The court also noted that the
balloting provisions to be included in a registered union’s
constitution under these last mentioned sections, have been a
prescribed requirement for the constitutions of registered unions
since the inception of the LRA.
[8]
In that matter it was contended amongst other things by the union
that the transitional
provisions amounted to an infringement of the
union’s constitutional right to strike. Further, it was argued
that the requirement
to conduct a secret ballot could only be imposed
if the registrar had issued a directive to the union under s 19(1)(b)
as to the
period within which the amendments to the union’s
constitution must be effected.
[9]
In
Mahle Behr
the court rejected the suggestion that the
transitional provision infringed the right to strike, because it did
not prevent a union
from engaging in strike action provided it
conducts a ballot, which is merely giving effect to the missing
clauses which are supposed
to be in its constitution in terms of
section 95 of the LRA, requiring it to ballot members in respect of
whom it intends to call
the strike. In that matter the court also
rejected the second argument that the requirement of conducting a
secret ballot only
arose once the registrar had issued the directive.
[10]
I am inclined to concur that an obligation on a registered union to
conduct a secret ballot of its members
before engaging in strike
action in conformity with a provision which it ought to have included
in its constitution in any event
does not impose a limitation on the
right to strike. It remains entirely within the union’s power
to remedy the situation
by amending its constitution. In relation to
the second argument, the court held that on a plain reading of the
provision a union
which had not included the obligatory provisions in
its constitution had to conduct a secret ballot of members before
engaging
in a strike. If one has regard to the context in which
section 19(2) applies it is principally aimed at compelling a
registered
union which has failed to include in its constitution the
provisions required by section 95 [5] [p] and [q] of the LRA to do
so.
It could never have been the intention of the legislators that if
the union did make the necessary amendments, even though the
registrar had not yet issued the directive under section 19 [1](b),
that it would still be compelled to hold a ballot, simply because
the
registrar had not issued the directive. The object of the section
would have been achieved once the amendments were effected.
Are any of the demands in
the strike notice of 14 August 2019, issues that have previously been
settled or otherwise cannot be the
subject of a protected strike?
[11]
Without repeating the strike notice verbatim, the three demands may
be summarized as:
11.1
Withdrawing the 2018 disciplinary code and using the 2008
disciplinary code.
11.2 Acceding
to the principle of salary progression based on an employee’s
number of years of service in the
employment of the JMB with
employees being grouped in cohorts of three years’ service
beginning at 0 to 3 years and ending
at 24 to 27 years.
11.3
Allocating offices and office equipment and materials to the union at
all three depots of JMB.
[12]
JMB claims that all these demands were the subject of settlement
agreements on 15 June 2018 and 30 January
2019 and as such may not be
the subject matter of protected strike action in terms of section 65
[3] (a)(i) of the LRA.
The withdrawal of the
2018 disciplinary code
[13]
DEMAWUSA argued that the demand to revert to the 2008 disciplinary
code is not the same as the demand it
previously tabled which was to
review the 2008 disciplinary code. That had been the demand tabled
together with others in the strike
notice of 26 October 2018.
However, JMB contends that this is just a reformulation of the demand
to review the code and is the
same as a demand that a circular MD 1
of 2017 be withdrawn because it replaced the previous disciplinary
code. DEMAWUSA is adamant
that a demand to implement the 2008
disciplinary code is completely distinguishable from a review. It
contends that JMB should
have tabled both disciplinary codes and not
just the circular. However, DEMAWUSA does not make the slightest
attempt to explain,
apart from the use of different words, what is
the substantive distinction between the demand to review the
disciplinary code and
the demand to revert to the 2008 disciplinary
code. As the author of the demands it is best placed to clarify why
the demands are
not the same. This is particularly necessary where a
demand is expressed in vague terms such as in this instance “a
review”.
On the papers before me I am inclined to accept that
in the absence of a more detailed explanation why the implementation
of the
2008 disciplinary code is not the same as withdrawing the
circular, that the same dispute was the subject of the settlement
agreement
of 30 January 2019.
[14]
Taking this further, JMB maintains that it was agreed in the
settlement agreement of 30 January 2019 that
the review of the
disciplinary code would be referred to a relationship by objectives
[’RBO’] exercise with numerous
other matters. Nowhere
does it claim that the exercise resolved the issue relating to the
disciplinary code, but contends that
by referring it to the RBO
process this amounts to an agreement to regulate the issue and
accordingly the union may not embark
on a protected strike action as
this would be contrary to section 65(3)(a)(i) of the LRA which
prohibits strike action where the
issue in dispute is regulated by a
collective agreement. It appears that the RBO process faltered but
the mere fact that it may
not have proven efficacious does not mean
demands can simply be re-issued, unless it was clear from the
agreement what would happen
if the RBO process failed to yield
agreement. Having identified a process to address the issues in
dispute, that process should
have been implemented and exhausted. If
it was abandoned or never invoked, that does not detract from the
fact that it was the
mechanism chosen by the parties to deal with the
issue in dispute they remained bound by that.
Pay Progression
[15]
JMB argued that this issue was nothing more than a disguised wage
demand but did not claim that it was therefore
a matter dealt with in
another collective agreement, except in so far as it might have been
equated with salary related items listed
in Annexure 2 of the 2018
settlement agreement which was referred to the RBO exercise. However,
in my view, this is not one of
those cases where there is a
collective agreement which settles wage increases and then employees
wish to pursue a new demand,
the effect of which is to augment those
increases. Further, the issue of pay progression is sufficiently
distinct to even constitute
a separate demand from a long service
bonus.
[16]
In the circumstances I am not satisfied that this is an issue that
was the subject matter of a previous settlement
agreement. Secondly,
insofar as JMB contends that it is too vague for an employer to
accede to in principle, I agree with DEMAWUSA
that simply because the
demand is not one which identifies the value of pay progression
scales, that does not mean that parties
could not agree in principle
that pay progression should be introduced. The precise shape that
might take and when it might be
implemented would have to be the
subject matter of future negotiations.
Union office
facilities
[17]
JMB argued that this issue which had been tabled in a strike notice
in May 2018 was a matter of mutual interest
that was to be referred
to a CCMA facilitation process. However, strike notice of 7 May 2018
simply does not bear out that contention
which makes no mention of
union office facilities is a demand.
[18]
Consequently, I am satisfied that this is not an issue which is
regulated or settled by another agreement.
Conclusion
[19]
In summary, in so far as the three demands are concerned, JMB has
failed to establish that the demands relating to pay progression
and
union office facilities are the subject matter of previous settlement
agreements.
However, the dispute regarding the review of the
disciplinary code was a matter that was agreed would be addressed in
an RBO process
and on the evidence before me it is reasonable to
conclude that casting the demand as one of implementation of the 2008
Disciplinary
agreement did not constitute a distinctly new demand.
[20]
In relation to the effect of not having amended the union’s
constitution to provide for balloting,
the failure to do so might not
render a strike unprotected, but nonetheless the union cannot embark
on the strike without conducting
a ballot in terms of section 19(2)
of the Amending Act.
Order
[1]
The first respondent may not engage in the strike due to commence on
2 September 2019 before
it has conducted a secret ballot of the
members who might be affected by the strike.
[2]
Subject to complying with paragraph 1 above, the respondents may not
embark on a strike
in support of the first demand in the strike
notice dated 14 August 2019 but may embark on a protected strike in
support of the
second and third demand in that notice.
[3]
No order is made as to costs.
_______________________
R
G Lagrange
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANTS:
Adv.
M.J Van As – Instructed by Werksmans Attorneys
RESPONDENT:
Reynaud
Daniels of Cheadle Thompson & Haysom Inc.
[1]
(D448/19;D439/19) [2019] ZALCD 2; (2019) 40 ILJ 1814 (LC) (20 March
2019)