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[2019] ZALCJHB 262
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Air Chefs (SOC) Ltd v National Union of Metal Workers of South Africa and Others (J1958/19) [2019] ZALCJHB 262; (2020) 41 ILJ 428 (LC) (7 October 2019)
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IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J 1958/19
In the matter between:
AIR CHEFS (SOC)
LTD
Applicant
And
NATIONAL UNION OF
METAL WORKERS
OF SOUTH
AFRICA
First Respondent
THE INDIVIDUAL
RESPONDENTS WHOSE
NAMES APPEAR ON
ANNEXURE ‘A’ OF
THE FOUNDING AFFIDAVIT
Second to Further Respondents
Heard: 6 October 2019
Delivered: 7 October 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
With this
urgent application, the applicant, Air Chefs (Soc) Ltd, (Air Chefs),
seeks an interim order declaring the intended strike
of the Second to
Further Respondents which was due to commence on 7 October 2019
at 06h00 as unprotected in terms of
section 65(1) read together with
section 65(3) of the Labour Relations Act (the LRA)
[1]
;
interdicting and restraining the second to further respondents from
participating in any unprotected strike action at the premises
or in
any conduct in pursuance of the unprotected strike; or from
encouraging, participating in, or promoting the unprotected strike.
[2]
In the
alternative, and should the Court be of the view that the intended
strike action is not unprotected, Air Chefs seeks an order
that the
strike may not commence, until such time as the first respondent has
conducted a secret ballot, as required in accordance
with the new
amendments to the Labour Relations Act.
[2]
[3]
The urgent application was opposed on Air Chefs’ papers.
Following
the hearing of the application, judgment was reserved, with
a further order issued interdicting the respondents from embarking on
any strike action pending the delivery of judgment and order.
The
background:
[4]
Air Chefs is a state owned company with staff deployed at most major
airports
in South Africa,
viz
, Cape Town International, King
Shaka, East London and Port Elizabeth. Air Chefs is in the business
of catering for a number of
outbound airline operators both
domestically and internationally, as well as catering for various
business lounges and clients
at these airports, collectively referred
to as ‘The Premises’. Central to Air Chefs’
business is the preparation
of meals and beverages in accordance with
the demands of clients and passengers that utilise airline services
of its customers.
It services a variety of customers and airlines
such as SAA, Swiss Air, British Airways, SA Express, by preparing on
a daily basis,
fresh meals which are in turn provided to daily
flights on domestic, regional and international routes.
[5]
Air Chefs and the first respondent (NUMSA) have in place a
recognition
agreement. Air Chefs seeks the order on the basis that
the issue in dispute, which is in relation to the continued payment
of an
anniversary payment, and which was provided for in the ‘Old
Main Agreement’ and subsequently deleted and substituted
in its
entirety in the current Main Agreement, is an issue that is regulated
in the Main Agreement as a ‘substantive issue’
relating
to wages, benefits and other conditions of employment between the
parties.
[6]
The initial dispute raised by the respondents in the submissions made
by Ms Naidoo on their behalf that Air Chefs was not in any event a
party to the Main Agreement dissipated when Mr Boda made reference
to
the extension of that agreement to non-parties as promulgated in a
Government Notice issued on 27 July 2019 by the
Minister of
Labour in terms of section 32(2) read with section 32(5) and 32(8) of
the LRA. I was further satisfied that Air Chefs
is indeed a member of
CATRA, an employers’ association which was party to the Main
Agreement upon a production of a certificate
of membership in that
regard.
[7] The
brief background to this dispute is as follows;
7.1
Air Chefs and NUMSA operate under the auspices of the Bargaining
Council for
the Restaurant, Catering and Allied Trades. The current
Main Agreement (Published in the Government Gazette on 27 July 2018)
which is applicable to the parties was concluded at the Bargaining
Council in January 2018, and governs all substantive issues
related to wages, benefits and conditions of employment.
7.2
As with all similar agreements, the parties are bound by its
provisions and
are prohibited from engaging in any strike or conduct
in furtherance of a strike in respect of any matters governed in
terms of
the Agreement for its duration. Furthermore, the Bargaining
Council is the forum for negotiations and conclusion of substantive
agreements on wages, benefits and conditions of employment. There is
no room made for plant bargaining in the agreement.
7.3
Air Chefs’ contention is that all disputes pertaining to wages,
whether
it be the calculation, quantum or make up thereof, are
substantive in nature and not strikable under the provisions of
section
65(1) read with section 65(3) of the LRA.
7.4
Since 2009, the old main Collective Agreement made provision for a
payment known
as ‘anniversary payment’, which was payable
to employees after two years of employment with any employer. This
equated
to a one week payment of the anniversary of each employee’s
employment after the first two years.
7.5
Air Chefs’ contention is that following the conclusion of the
Main Agreement
in November 2014, which was to last until
May 2018, the anniversary payment and its abolition and
replacement with an
annual bonus was the subject matter of
substantive negotiations, and it was agreed under clause 5 of that
Agreement to delete the
anniversary payment clauses, and to
effectively replace it with an annual bonus payable during December.
The payment in this regard
would
inter alia
be one weeks wages
for one year completed service; two weeks wages for two years
completed service; As from January 2015,
three weeks wages for
three and four years completed service; and four weeks for five or
more years of completed service.
7.6
The effect of the above according to Air Chefs is that there was a
deliberate
and negotiated novation of the anniversary payment, to be
replaced with a bonus payment.
7.7
Despite the alleged novation, Air Chefs nonetheless continued to pay
the anniversary
payment until the end of December 2018.
Effectively, payments were stopped in April 2018. Thereafter,
the respondents
demanded the payments together with that of the bonus
under the Main Agreement be made.
7.8
An email sent to Air Chefs by a NUMSA shop steward, Mr. Samuel Malema
in which
he complained about the non-payment of the anniversary
payment triggered subsequent events, which included a meeting on
17 May 2018
between NUMSA and a designated agent of the
Bargaining Council (Mr Abbey Mohono), who it is alleged had explained
to the parties
that Air Chefs was not obliged to pay the anniversary
payment any longer as it was abolished and replaced with a bonus
payment.
7.9
According to Air Chefs, after Mohono’s explanation, Malema had
then requested
that the anniversary payment be continued with until
the end of 2018 so that none of the employees lost out on
their
expectations for the year. The request was acceded to. In
January 2019, Air Chefs then stopped all anniversary payments
and
made the bonus payments.
7.10
NUMSA’s position since February 2019 however was the
stopping of the payments constituted
a unilateral changes to terms
and conditions of employment as there was no agreement in that
regard. Meetings between the parties
were held in February 2019,
and on 21 February 2019, NUMSA then referred an unfair
labour practice dispute to the
Bargaining Council. That dispute was
withdrawn on 8 May 2019 before it could be arbitrated.
7.11
NUMSA referred another dispute on 7 April 2019 related to
unilateral changes to terms
and conditions of employment. The dispute
was set down for conciliation on 7 May 2019 and extended to
14 May 2019.
On 28 May 2019, the Bargaining
Council referred the matter to the Commission for Conciliation
Mediation and Arbitration
(CCMA) for picketing rules, which were then
issued on 19 August 2019.
7.12
Air Chefs, which held the view that the dispute did not concern
mutual interest dispute or one
of unilateral change to terms and
conditions of employment, referred a dispute to the Bargaining
Council on 13 September 2019
regarding the interpretation
and application of the Main Agreement, particularly in relation to
the non-payment of the anniversary
bonuses. The dispute related to
the interpretation and application of the collective agreement is set
down for conciliation on
8 October 2019.
7.13
On 13 September 2019, NUMSA requested that a ballot be
conducted at the workplace failing
which it would issue a strike
notice. On 16 September 2019, NUMSA gave a formal notice of
its intention to conduct a
ballot. Air Chefs granted the permission
for ballots to be conducted on 17 September 2019 at its
premises.
7.14
Air Chefs’ contention is that in conducting the ballot, NUMSA
failed to ensure that such
a ballot was held in secret and instead,
had compelled those of the individual respondents that were present,
to complete the ballot
forms in open and alongside one another, and
to return the forms to it. It is alleged that NUMSA watched the votes
being cast,
closely observing each member’s election thereon.
Its ER Manager, Mr Tebogo Moloto, who had closely observed the
conduct
of the ballot had raised concerns about how it was done, and
was chased away by certain of the individual respondents, who also
chased away Air Chefs’ security personnel, who were similarly
avoiding the balloting process. Moloto deposed to a confirmatory
affidavit in that regard. Air Chefs through Moloto formally raised
its concerns with NUMSA in an email dated 17 September
2019.
7.15
On 20 September 2019, Air Chef addressed a letter to NUMSA stating
that the latter would be entitled
to conduct fresh ballots, but that
the ballot would in any event remain superfluous since the strike
would remain unprotected.
It also sought an undertaking by 23
September 2019 that the respondents would not embark on any strike
action pending the final
determination of the interpretation
application dispute. NUMSA failed to make such an undertaking as it
intended to proceed with
balloting and to issue a strike notice.
Further correspondence followed to NUMSA in accordance with section
68(2) of the LRA, in
which it was advised that this Court would
be approached on an urgent basis upon receipt of the strike notice.
7.16
The strike notice was issued by NUMSA on 4 October 2019 at about
17h11, with NUMSA giving 24
hours for the strike to commence at 06h00
on 7 October 2019. In response, Air Chefs sent an additional Notice
in terms of section
68 (2) of the LRA.
[8]
Given the timeline of the events as described above, it cannot be
doubted
that Air Chefs has complied with the provisions of section
68(2) of the LRA, and also
acted with the
necessary haste in approaching the Court for the relief that it
seeks. Accordingly, the urgency of the matter can
also not be
doubted.
The
legal position and evaluation
[9]
Other than
the issue of balloting, it can be accepted in this case that NUMSA
has complied with the procedural requirements outlined
in the
provisions of section 64 of the LRA
[3]
.
That compliance however does not necessarily equate to the strike
being protected, as the question remains whether the issue in
dispute
that led to the demand and the intention to strike is one over which
the union can go on strike.
[10]
I further accept that the fact NUMSA had initially referred the
dispute to the Bargaining
Council as an issue related to unfair
labour practice is of no consequence, as that referral was
subsequently withdrawn. Even if
it can be read into that initial
referral that NUMSA had referred the dispute as a rights dispute,
this does not imply that it
was bound to that characterisation for
all intents and purposes.
[11]
Central to
the dispute, and in further reference to the basis upon which Air
Chefs claims a
prima
facie
right, is the question whether the strike would be unprotected on the
grounds that the demand,
i.e.,
the reinstatement or continued payment of the anniversary bonus, is
an issue regulated in the current Main Agreement, precluding
NUMSA
and its members from striking under the provisions of section 65 (1)
read together with section 65(3) of the LRA
[4]
.
[12]
In opposing
the application, Ms Naidoo for the respondents correctly pointed out
that the starting point would obviously be an examination
of the
provisions of the Main Agreement in order to determine whether indeed
the issue in dispute is regulated by that Agreement.
As to the
meaning of ‘
regulates
the issue in dispute’
within the meaning of section 65(3)(a), of the LRA, this was
explained in
Fidelity
Guards v PTWU and Others
[5]
to
include controlling or dealing with an issue, activity or process,
which also includes creating a procedure for resolving the
issue.
[13]
As
to whether the issue in dispute relates to those under section 64(4)
of the LRA or any other provision is for the Court to determine,
irrespective of the findings made by the Bargaining Council’s
Commissioner in a ruling dated 20 May 2019, or the
certificate of outcome issued by the CCMA on 19 August 2019
[6]
.
[14]
In
establishing the true nature of the dispute, this Court must look at
the substance of the dispute and not the form in which it
is
presented, as the characterization of a dispute by a party is not
necessarily conclusive. Furthermore, the Court must examine
the
conduct of the parties leading to the dispute; the nature of the
referral and the outcome sought; the contents of the strike
notice,
the
demands made by the union, the negotiations between the parties,
the
preceding state of facts and negotiations; and the pleadings.
[7]
[15]
It is common cause that Air Chefs has made
payments of the anniversary payments to the second to further
respondents for over a
period of ten years. Air Chefs however relies
on the amendments made to the old Main Agreement emanating from a
meeting held
on 18 November 2014 between Labour and CATRA,
and which preceded the new Main Agreement, wherein it was recorded
that
the issue of anniversary payment be deleted and substituted in
its entirety with a 13
th
cheque/bonus clause.
[16]
Emanating
from that meeting and agreement reached, it was recorded in a signed
outcome of the substantive negotiation in clause
5 (In Annexure ‘B’)
that sub-clause 5(8) and 5(8)(a) of the Collective Agreement (the
old), be substituted with an
annual bonus payment. In effect, as Air
Chefs submitted, this constituted a deliberate and negotiated
novation of the anniversary
payment, to be replaced with the annual
bonus clause. Thus,
according
to Air Chefs, there was a replacement of an existing obligation by a
new one, with the existing obligation being discharged
by the new
obligation
[8]
.
[17]
In
National
Health Laboratory Service v Mariana Lloyd-Jansen van Vuuren
[9]
,
it was held that;
‘
[15] …There
is a presumption against novation because it involves a waiver of
existing rights. When parties novate they intend
to replace a valid
contract with another valid contract. In determining whether novation
has occurred, the intention to novate
is never presumed. In Acacia
Mines Ltd v Boshoff, the court held that novation is essentially a
question of intention.’
[16]
In Proflour (Pty) Ltd & another v Grindrod Trading (Pty) Ltd t/a
Atlas Trading and Shipping & another5 the court, when
determining
whether the agreement resulted in a novation, referred to the
decision of Electric Process Engraving and Stereo Co
v Irwin
1940 AD
220
at 226- 227 where the court said:
‘
The
law on the subject was clearly enunciated as far back as 1880 in the
well-known case of Ewers v The Resident Magistrate of Oudtshoorn
and
Another, (Foord) 32, where DE VILLIERS, C.J, said: “The result
of the authorities is that the question is one of intention
and that,
in the absence of any express declaration of the parties, the
intention to effect a novation cannot be held to exist
except by way
of necessary inference from all the circumstances of the case.”’
It
follows that in order to establish whether novation has occurred, the
court is entitled to have regard to the conduct of the
parties,
including any evidence relating to their intention.’
[18]
NUMSA denies that any agreement was reached
to phase out anniversary payment and contend that Air Chefs simply
made a decision to
stop the anniversary payment, thus constituting a
unilateral change to terms and conditions of employment. That denial
was without
the answering affidavit, based on Air Chefs’ own
concession in the founding affidavit that this was indeed NUMSA’s
stance.
In order to determine whether by
concluding the subsequent agreement, there was a novation, it is
necessary, to consider i
nter alia
,
whether such contract obliterated the rights and obligations that
were created by the original agreement.
[19]
In this case, it can be accepted that
notwithstanding the Air Chefs’ contentions as to the reason the
payment of the anniversary
payment had to be stopped, it had
continued to make such payment at least until April 2019. There
is nothing to gainsay its
contentions that it did so either as a
result of an error on its part, or as a result of negotiations with
NUMSA to continue the
payments.
[20]
NUMSA however is faced with several
difficulties in its contentions that the demand in regard to the
anniversary payment is not
regulated by the New Main Agreement as it
relates to actual wages as opposed to minimum wages, or that novation
did not take place
for the following reasons;
20.1
The first is that it entered into a
Recognition Agreement with Air Chefs after the old Main Agreement was
entered into, and was
further not a party
to
the 18 November 2014 negotiations between Labour and CATRA,
which negotiations concluded issues on wages and substantive
issues
up to 13 May 2018, nor was it a party to the negotiations
leading to the new Main Agreement concluded in
January 2018.
Effectively, it cannot contribute much to what the intentions of the
parties were in concluding those agreements.
20.2
The
second difficulty is that it is correct as NUMSA has pointed out,
that Air Chefs failed to produce a copy of the old Main Agreement
it
relied on as containing the clause related to anniversary payment to
demonstrate the alleged novation. In similar vein however,
NUMSA
relies
inter
alia
,
on a practice of payment of the anniversary payment, without
demonstrating the basis upon which that payment came to be in place.
Even if there was merit in the contention that the anniversary
payment came about as a result of practice, and was accordingly
an
existing term and condition of employment,
in
the absence of a contractual right or collective bargaining right to
the anniversary payment, that payment would in any event
constitute a
work practice that fell within management’s prerogative. At
most, the term and condition relied upon has since
been eroded by its
novation. The facts of this case are therefore clearly
distinguishable from those in Transport and Allied Workers
Union of
South Africa obo Ngedle and Others v Unitrans Fuel and Chemical (Pty)
Ltd Limited
[10]
,
which the respondents sought to rely on.
20.3
In the absence of evidence to demonstrate
that the anniversary payments were not made consequent upon the
provisions of the old
agreement despite a copy not having been
produced, the Court has no reason not to be satisfied that indeed
such an agreement existed,
and was amended by the provisions of the
concluded wage negotiation and substantive issues on
18 November 2014.
20.4
In a nutshell,
the
practice of making payment of the anniversary payment was based on
the old Main Agreement, which was subsequently amended, and
for such
payments to be converted into annual bonuses as per clause 5 of
18 November 2014 agreement.
Consequently,
the decision to discontinue the anniversary payment did
not
constitute a change to their terms and conditions of employment in
the light of that novation. In any event, when Air Chefs
took a
decision to stop the payment, on its uncontested version, Malema of
NUMSA had then requested that the anniversary payment
be continued
with until the end of 2018 so that none of the employees lost
out on their expectations for the year.
That request was
acceded to, and the invariable conclusion to be reached is that at
best, NUMSA was aware of the basis upon which
the payments were
discontinued.
20.5
It was further submitted on behalf of the
respondents that
a consideration of the main Agreement only
regulated minimum wages, and not actual wages, and that their case
was that their demand
related to actual wages as opposed to minimum
wages. This was particularly so since clause 5 of the new main
Agreement referred
to minimum wages and not actual wages. The
argument went further that since Air Chefs did not plead that every
single employee
was earning the minimum wage, and in line with the
definition of the term ‘regulates’, it cannot be said
that the Main
Agreement either substantively or authoritatively
regulated the issue of actual wages, for the purposes of a
prohibition in the
main agreement over actual wages.
20.6
It is my view that the above argument lacks merit. It is
correct as stated by NUMSA that the clause 5 of the Main Agreement
refers
to ‘wages’ and minimum prescribes rates, and no
mention is made of actual wages. Even then, the issue is whether a
payment of anniversary payment is or was a component of actual wages
which NUMSA was entitled to insist on as a demand, even if
a new one.
This issue however has not been raised at any bargaining level, and
to the extent that plant level bargaining is impermissible,
the issue
remains one regulated by the Main Agreement resulting from the
novation as already alluded to.
20.7
I agree with the submissions made on behalf of the respondents
that a limitation on the right to strike should not be lightly
inferred
as the Court ought to adopt an interpretation of the
provisions of the LRA which gives full effect to that right. I
further agree
that if orders such as sought by Air Chefs are easily
granted, it would imply that employees’ right to strike will be
rendered
nugatory, thus eroding the principle of powerplay in the
workplace. The difficulty however is that the right to strike is not
unfettered
in the light of the limitations imposed
under section 65(3) of the LRA, and that right can only be exercised
were permissible.
20.8
The
issues or the demand leading to the dispute, or the
true
issue in dispute forming the subject matter of the proposed strike,
if crystalized down to its bare essentials, is that NUMSA
seeks the
retention of the anniversary payment in circumstances where there is
clearly no legal basis for it, as it has since been
done away in
accordance with clause 5 of the agreement (‘Annexure B’)
concluded on 18 November 2014, and replaced with
an annual bonus. It
is not correct as it was submitted on behalf of the respondents, that
they are not seeking to negotiate the
retention of the anniversary
payment. In the end, NUMSA’s demand is thus unsustainable in
the light of the prohibition of
plant level bargaining and the
overall binding effect of the Main Agreement. The fact that NUMSA’s
own recognition agreement
with Air Chefs provides for negotiations on
mutual interests issues
[11]
,
does not derogate from the fact that ultimately, the provisions of
the standing Main Collective Agreement in respect of substantive
issues remain intact, and cannot be simply altered by any other
agreement that may be reached between the two parties without
consequences for the other parties to that Agreement
[12]
.
[21]
The issue
of the intended strike being prohibited on account of irregular
balloting procedures is of equal importance. A strike
will be
unprotected until such time that a union has conducted a secret
ballot before engaging in strike action, as this was required
by the
transitional provisions set out in section 19 of the LRA Amendment
Act. The
transitional
requirements apply to those unions whose constitutions do not provide
for a ‘recorded and secret ballot’
and that in the
interim, prior to complying with the requirements relating to a
secret ballot, they “must conduct a secret
ballot of members”
before engaging in a strike.
These
are
peremptory
provisions and until the respondents complied with them, they may not
engage in a strike.
[13]
[22]
I have no reason to differ with the above authority, as there is a
reason behind these
provisions, which is to ensure
inter alia
,
that the decision to embark on a strike, is preceded by a democratic
process that protects employees to freely exercise or not
to exercise
their rights to strike. These added ‘limitations’ are
purely procedural requirements that do not erode
employees’
right to strike in circumstances that would ordinarily be
permissible. They merely suspend the exercise of that
right until the
peremptory prerequisites are met. It is appreciated that a strike is
by its very nature a collective effort. The
collective however cannot
be separate from the individual employee and his or her concomitant
right to make choices. The argument
that the ‘union’s
position is supreme’ is a debate for another day.
[23]
In line with the above, and to the extent that Moloto’s
contentions in regards to
the irregularities accompanying the ballot
process followed by NUMSA remain unchallenged, it ought to be
concluded that indeed
the balloting process was flawed and not
legitimate for the purposes of compliance with the requirements set
out section 95(9)
of the LRA.
[24]
In summary, I am satisfied that Air Chefs has made out a case why
this matter should be
accorded urgency. But for the ‘interim
order’ granted by the Court at the hearing of this matter, the
strike was due
to commence at 06h00 on 7 October 2019,
following upon the strike notice issued on 4 October 2019.
Furthermore,
I am satisfied that Air Chefs has demonstrated a
prima
facie
right to the relief that it seeks, and has demonstrated
that the issue in dispute is one that the respondents can pursue by
way
of industrial action. Air Chefs has further demonstrated that it
stands to suffer irreparable harm should the relief not be granted.
Furthermore, there is no doubt that Air Chefs has no other
alternative remedy available to it, and that given the circumstances
of the demands leading to the dispute and the conclusions made in
that regard, the balance of convenience clearly favours Air Chefs.
In
the circumstances, the following order is made;
Order:
1.
A rule
nisi
is hereby issued calling upon the respondents to
show cause on 27 November 2019 at 10:00, why a final order
should not
be granted on the same terms as those set out in paragraph
3 below; and
2.
Pending the return date, paragraphs 3.1 to 3.5 below,
shall
operate as an interim order with immediate effect.
3.
Non-compliance with the requirements of Rule 7 of the Rules
of this
Court is condoned and dispensed with and this matter is heard as one
of urgency in terms of Rule 8 of the Rules of this
Court:
3.1
Declaring the intended strike of the second to further respondents
due to commence
on 7 October 2019 at 6:00 as unprotected in
terms of section 65(1) read with
section 65(3)
of the
Labour
Relations Act 66 of 1995
.
3.2
Interdicting and restraining the second respondents from
participating in any
unprotected strike.
3.3
Interdicting the first and second to further respondents from
participating
in any conduct in pursuance of the unprotected strike.
3.4
Interdicting the first and second to further respondents from
encouraging, participating
in, or promoting the unprotected strike.
3.5
Ordering the first respondent to publicly call upon the second to
further respondents,
not to participate in any unprotected strike or
any conduct in furtherance of such unprotected strike.
4.
Any party affected hereby, may anticipate the return date on
48
hours’ notice to all other parties.
5.
The first and second respondent must by no later than 10h00
on 8
October 2019 serve and file an affidavit demonstrating compliance in
terms of this interim order.
6.
The service of this order shall be effected:
6.1
By telefax
on the first respondent’s head offices by way of fax to
011 6[…] as well to the relevant union official,
namely
Mr Robert Seroka per email to
Roberts@nu[...a
]
in terms of
Rule 4
of the Rules of this Court.
6.2
By communicating the provisions of the order to the second to further
respondents
at such premises they find themselves by issuing copies
of the order and to be placed on the notice boards which the second
to
further respondents have access to.
6.3
The first respondent is ordered to publicly call upon the second to
further
respondents, in the manner prescribed hereunder, not to
participate in any unprotected strike or any conduct in furtherance
of
such unprotected strike.
6.4
The first respondent is ordered to give effect to paragraph 2.11.3
above by
means of –
6.4.1
Public announcement
via
loud hailer to those members of the
first respondent who are present at the time, in such languages which
are commonly used for
communication at the premises.
6.4.2
Distribution of any form or written communication, be it trade union
leaflets, SMS’s, emails or WhatsApp,
which reads:
‘
On 7 October 2019,
the Labour Court issued an order declaring the planned strike to be
unprotected and unlawful. We urge
you not to embark on any strike and
to continue working. Should you require further explanation of the
court order, please approach
your union management.’
7. The
costs of this application are reserved for determination on the
return date.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: F
Boda SC, instructed by Cliffe Dekker Hofmeyr INC
For
the Respondents: P
Naidoo, instructed
by Cheadle Thompson & Haysom INC
[1]
Act 66 of 1995
[2]
The Labour Relations Amendment Act, No 8 of 2018 (Amendment Act) ,
which sets out transitional provisions in s19 and require
Trade
Unions and Employers’ Organisations to provide for secret
strike ballots in circumstances where their constitutions
do not
provide for such ballots. The transitional provisions require trade
unions and employers’ organisations, which are
in the process
of amending their constitutions to give effect to Section 95(5)(p)
of the LRA, to conduct a secret ballot of members
before engaging in
a strike or lockout.
Section
95(5)(p) of the LRA provides;
‘
95.
Requirements for registration of trade unions or employers’
organisations
(5)
The Constitution of any trade union or employers’ organization
that intends to register must;
(p)
provide that the trade union or employers’ organization before
calling a strike or lockout, must conduct
a ballot of those of its
members in respect of whom it intends to call the strike or
lock-out’
[3]
Section 64.
Right
to strike and recourse to lock-out
(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’ organisation; or
(c)
in the case of a proposed lock-out, at least 48 hours ‘notice
of the commencement of the lockout, in writing, has been given to
any trade union that is a party to the dispute, or, if there
is no
such trade union, to the employees, unless 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
(d)
in the case of a proposed strike or lock-out where the State is the
employer, at least seven days ‘notice of the commencement of
the strike or lock-out has been given to the parties contemplated
in
paragraphs (b) and (c).
(2)
…
(3)
…
(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.
[4]
65.
Limitations on right to strike or recourse to
lock-out
(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
(2)
…
(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
[5]
[1997]
11 BLLR 1425
(LC) at 1433F-H, where it was held;
“…
a
substantive regulation of the issue or a process leading to the
resolution of the issue. Must this regulation be comprehensive?
Or is it sufficient that the issue be regulated generally by
providing for instance, that the issue is settled, at least for
the
present year of bargaining, or is assigned to a specific process or
that an issue is assigned to a particular level of bargaining
or to
a particular forum? I think that the wider sense is meant here.’
See
also
CSS Tactical (Pty) Ltd v Security Officers Civil Rights And
Allied Workers Union (SACRAWU) and Others
(2015) 36 ILJ 2764
(LAC) at para 18
[6]
See
Coin
Security Group (Pty) Ltd v Adams and Others
(2000) 21 ILJ 924 (LAC) at para 15, where it was held that;
‘
It
is the court's duty to ascertain the true or real issue in dispute
(
Ceramic
Industries Ltd t/a Betta Sanitaryware v
National Construction Building Workers Union & others (2)
(1997)18 ILJ 671 (LAC) and
Fidelity Guards Holdings (Pty)
Ltd v Professional Transport Workers' Union & others (1)
(1998)
19 ILJ 260 (LAC)). In conducting that enquiry a court looks at
the substance of the dispute and not the form in which
it is
presented (
Fidelity
at 269G-H;
Ceramic
at
678C). The characterization of a dispute by a party is not
necessarily conclusive (
Ceramic
at 677H-I; 678A-C). ….’
See
also
Pikitup (SOC) Ltd v SA Municipal
Workers Union on behalf of Members and Others
(2014) 35
ILJ 983 (LAC) at para 47
[7]
See
Coin
Security Group (Pty) Ltd v Adams and Others
(2000)
21 ILJ 924 (LAC) at para 15;
TSI
Holdings (Pty) Ltd and Others v National Union of Metalworkers of SA
and Others
(2006)
27 ILJ 1483 (LAC) at paras 29 and 31;
Johannesburg
Metropolitan Municipality v SA Municipal Workers Union and Others
(2009)
30 ILJ 2064 (LC) 2069G-H.
[8]
Tauber
v Von Abo
1984
(4) SA 482
(E) at 485F-486B, where it was held’
“
Novation
can be described as the replacing of an existing obligation by a new
one, the existing obligation being discharged by
the new obligation.
Cf. Caney The Law of Novatoin (supra at 4 and 21); Voet
46.2.2.; Wessels The Law of Contract
in South Africa 2nd ed vol 2
paras 2369, 2375, 2379 and 2395; De Wet and Yeats Kontraktereg en
Handelsreg 4th ed at 239.”See
also Combrink v Maritz
1952 (3) AS 98 (T)
[9]
(20044/2014)
[2015] ZASCA 20
(19
March 2015) at para
[10]
(CCT131/15)
[2016] ZACC 28
;
2016 (11) BCLR 1440
(CC);
[2016] 11 BLLR
1059
(CC); (2016) 37 ILJ 2485 (CC), where it was held;
‘
[30]
The first LAC judgment concluded that the wage cut demand regarding
the former Shell
seven workers was a legitimate demand, as it
related “to the fact that [Unitrans] unilaterally decided to
reduce the wages
of those of its workers who previously serviced the
Shell contract for [Unitrans]”. The LAC understood the
demand
in relation to the Shell seven workers to be a demand that
would undo the employer’s unilateral change and reinstate a
cost that had always been there. It was a demand to restore the
terms and conditions of employment that had applied to them
prior to
the termination of the Shell contract. The LAC therefore
concluded that this demand did not amount to a wage increase
as the
employer would not pay more than what it legally had been paying had
it not cut the Shell seven workers’ wages.
Again, the
first LAC judgment limited the ambit in which the wage cut demand
could be exercised.
[31]
I agree with the reasoning of the LAC. In my view, this demand
cannot
be described as an increase in wages as there was no cost
implication to the employer. Of course the restoration of the
terms and conditions of employment would mean that Unitrans should
also pay the Shell seven workers their back pay from the time
that
Unitrans commenced paying them at reduced rates. That,
however, cannot be regarded as a wage increase nor cost implication
to Unitrans, as it had unilaterally reduced those wages and, over a
period, enjoyed a saving at the expense of the workers who
had to
endure hardships. Therefore, it would have to pay what it
should have paid had it not changed the terms and conditions
of
employment. All that was required from the employer was for it
to restore the
status quo ante
. That demand was
permissible only to the extent that the wage cut demand related to
the Shell seven workers.’
[11]
Clause
19
[12]
See
Wallenius
Wilhelmsen Logistics Vehicle Services v National Union of
Metalworkers of South Africa and Others
(2019) 40 ILJ 1254 (LAC);
[2019] 8 BLLR 795
(LAC)
where
it was held;
‘
[27] Firstly,
the MIBCO constitution is a collective agreement as defined in
section 213 of the LRA
in that it is a written agreement concerned
with matters of mutual interest concluded by registered trade unions
and employer
organisations. The MIBCO constitution remained (and
remains) extant despite the expiry of the 2013 agreement. Clause 11
of the
MIBCO constitution makes it abundantly clear that proposals
and bargaining in respect of the amendment of any existing
agreement,
the introduction of a new agreement
or
any matter of mutual interest
are
to be negotiated at MIBCO level and not at plant level; and clause
12 prohibits strike action unless and until the dispute
about a
matter of mutual interest has been dealt with at central level.
These are substantive prohibitions regulating levels
of bargaining
and go beyond mere process, notice provisions or a prerequisite of
conciliation for industrial action of the kind
required by section
64 of the LRA. The level of collective bargaining impacts
substantively on sectoral wage rates. The prohibition
on plant level
bargaining is directed at uniformity and orderly substantive
outcomes. The attempt by NUMSA to introduce two-tier
bargaining
sought to alter substantive wage rates at plant level in respect of
a single employer. That is a matter of mutual
interest reserved by
the MIBCO Constitution for centralised bargaining.
[28]
It follows that while the immunisation clause in the settlement
agreement permitted NUMSA to
demand an additional R40.00 per day for
its members working at the appellant, and notwithstanding the fact
that the centralised
bargaining clause in the 2013 agreement (which
survived in the 2017 agreement by virtue of the reservation clause)
was not operative
between 1 September 2016 and 14 April 2017, it was
still obliged to raise the demand and negotiate it at central level
in terms
of the MIBCO constitution. NUMSA’s failure to do that
meant that the strike was prohibited in terms of section 65(1)(a) of
the LRA. NUMSA was bound by a collective agreement (the MIBCO
constitution) that prohibited a strike in respect of a demand for
increased wages at plant level. The Labour Court accordingly erred
in not confirming the rule
nisi
.
[13]
Mahle
BEHR SA (Pty) Ltd v NUMSA and Others ; FOSKOR (Pty) Ltd v NUMSA and
Others
(D448/19;D439/19) [2019] ZALCD 2; (2019) 40 ILJ 1814 (LC)