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[2019] ZALCD 12
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Tiger Brands Limited v African Meat Industry & Allied Trade Union (AMITU) and Others (D1267/19) [2019] ZALCD 12 (25 October 2019)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICAN, DURBAN
JUDGMENT
Not
Reportable
Case
no: D1267/19
In
the matter between
:
TIGER
BRANDS
LIMITED Applicant
and
AFRICAN
MEAT INDUSTRY & ALLIED
TRADE
UNION (AMITU)
First
Respondent
THOSE
PERSONS MENTIONED IN
ANNEXURE
“A” TO THE FOUNDING AFFIDAVIT Second
Respondents
Heard:
25
October 2019
Order:
25
October 2019
Reasons:
Summary:
A collective decision by members of a
trade union to stop working voluntary overtime after they had made a
demand which was not
acceded to by the employer constitutes an
unprotected strike if the procedural steps prescribed in s 64 of the
LRA were not followed.
Even if the actual notice to stop working
overtime does not contain a demand, the surrounding circumstances and
the context may
determine whether the requirement for a demand or
grievance has been met. In this case, on the facts, it was found that
a demand
was indeed made, and the strike (overtime ban) was
interdicted.
JUDGMENT
MGAGA
AJ
Introduction
[1]
The applicant in this matter is Tiger Brands Limited, a listed
company that carries
on business of manufacturing snacks and treats
at its factories in Mobeni and Jacobs, Durban.
[2]
The first respondent is African Meat Industry & Allied Trade
Union (AMITU), which
is a registered trade union recognized by the
applicant. The second to further respondents are employees of the
applicant and members
of the first respondent whose names are listed
in annexure A to the founding affidavit. Collectively, the first,
second and further
respondents will be referred to as respondents.
[3]
At the instance of the applicant, on 27 September 2019 Rabkin-Naicker
J issued a
rule nisi
returnable on 25 October 2019. The
material terms of the
rule nisi
are as follows:
“
1.1
Declaring that the combined acts of the First Respondent and the
Second and Further Respondents as listed
in annexure “A”
in refusing or failing to work normal overtime with the intention of
compelling the Applicant to accede
to their demands constitutes an
unlawful strike in terms of
s 64
of the
Labour Relations Act 66 of
1995
;
1.2
That the First Respondent and Second & Further Respondents …are
hereby interdicted
and restrained from participating in and
continuing with the conduct set out in para 1.1 above without first
complying with the
provisions of
s 64
of the Act.
1.3
That the Second & Further Respondents … are directed to
work the normal overtime
worked by them prior to the imposition of
the overtime ban.
1.4
That the First Respondent and/or Second & Further Respondents…are
hereby interdicted
and restrained from continuing to instigate or
instigating the strike referred to in para 1.1 above or any related
work stoppage
or inciting any of Applicant’s employees to take
part in or continue such a strike or work stoppage until the
provisions
of
s 64
have been complied with.”
[4]
Paras 1.2; 1.3 1.4 of the
rule
were ordered to operate with
immediate effect pending the final determination of the urgent
application on the return date.
[5]
On the return date the matter came before me for final determination.
The granting
of the final relief is opposed by the respondents.
Salient facts
[6]
The following facts are either common cause or not seriously disputed
on the papers.
[7]
Approximately a year ago, in response to the applicant’s
obligations in compliance
with the
Occupational Health and Safety Act
85 of 1993
, the applicant implemented its Drug and Alcohol policy
(“DAP”) which entailed that all persons entering the
premises
of the applicant were to be subjected to an alcohol
breathalyzer test.
[8]
The implementation of the DAP resulted in an increase in misconduct
dismissals related
to the abuse of alcohol. In the main, members of
the first respondent were at the receiving end of the implementation
of the DAP.
The first respondent and its members repeatedly expressed
their disapproval of the use of the breathalyzer as it was resulting
in so many dismissals.
[9]
At a union-management meeting held on the 16
th
September 2019 the first respondent recorded that employees were
proposing to ban overtime until the breathalyzer test was removed
or
stopped
[1]
. The applicant
responded by stating that any such conduct would be perceived as an
unlawful strike. However, the applicant undertook
to consult with its
central group risk team around the application of the breathalyzer
and revert to the first respondent by 23
September 2019.
[10]
At the second union-management meeting held on 23 September 2019 the
applicant informed the first
respondent that the implementation of
the DAP would proceed as it was the duty of the employer to provide
and maintain a working
environment that is safe and without risk to
the health of its employees.
[11]
On 25 September 2019 the first respondent emailed correspondence
signed by its General Secretary
to the applicant worded as
follows
[2]
:
“
RE:
Notice of Stopping Overtime – Snacks Treats & Beverages
We
refer to the (sic) and in particular with the decision taken by the
members at the feedback meeting held at
Mobeni
today 25 September 2019
.
Please be advised that
our members have decided to stop working overtime with immediate
effect tomorrow
26 September 2019
.
This is the mandate given
to the union AMITU by the members.”
[12]
On the same day (25 September 2019) the applicant replied to the
first respondent, pointing out,
inter
alia
,
that if the respondents were to proceed with the threatened overtime
ban the applicant would immediately approach this court to
interdict
such conduct. The applicant further urged the first respondent to
carefully consider the wisdom of its actions
[3]
.
[13]
On the 26
th
September 2019 the first respondent replied to the applicant’s
letter of 25 September 2019
[4]
.
In this letter the focus shifted completely from dissatisfaction with
application of a breathalyzer test to dissatisfaction with
the
Ministerial Determination the applicant had applied for an obtained
from Department of Labour which allowed the applicant’s
employees to exceed the weekly overtime limitation of 10 hours by not
more than 10 hours per week. The first respondent complained
that
this Ministerial Determination was applied for clandestinely, without
consulting the first respondent; the applicant failed
to display the
Ministerial Determination and give a copy thereof to the first
respondent; and the employees were not remunerated
at the rate of
1.75 per hour as prescribed in the Ministerial Determination. In this
letter the first respondent also emphasized
that it was voluntary to
work overtime as there was no agreement compelling employees to do
so.
The law
[14]
The stalemate between the applicant and the respondents prompted the
applicant to approach this
court on urgent basis to interdict the
imminent overtime ban on the basis that it constituted an unprotected
strike as the procedural
steps set out in
s 64
of the LRA had not
been followed by the respondents. It is common cause that such
procedural steps were not followed by the respondents
prior to
issuing the notice to stop working overtime.
[15]
In opposing the final relief sought by the applicant on the return
date the respondents submitted
that the threatened overtime ban does
not constitute a strike as defined in
s 213
of the LRA because the
employees of the applicant are not compelled to work overtime and the
first respondent did not make any
demand to the applicant when it
issued a notice to stop working overtime. Relying on cases such as
Simba
(Pty) Ltd v FAWU & oth
ers
[5]
;
FAWU
& others v Rainbow Chickens
[6]
and
Stuttafords
Department Stores v SACTWU
[7]
,
Mr
Sisilane
,
who appeared for the respondents, submitted that without a demand
that the applicant had to accede to, the conduct of the first
respondent’s members does not constitute a strike.
[16]
Mr
Titus
, who appeared for the applicant, submitted that even
if the employees were working overtime on a voluntary basis, their
collective
conduct of banning overtime constitutes a strike because
in the definition of a strike reference to ‘work’ covers
overtime
work whether it is voluntary or compulsory. With regard to
the respondent’s submission that there was no demand made, Mr
Titus
submitted that on the facts of this case a demand was
made by the first respondent. According to the applicant the demand
made was
that the applicant had to stop the implementation of the
DAP, in particular, the application of the breathalyzer test which
had
led to the dismissal of many employees.
[17]
In
s 213
of the LRA strike is defined as follows:
“…
the
partial or complete concerted refusal to work, or the retardation or
obstruction of work, by persons who are or have been employed
by the
same employer or by different employers,
for
the purpose of remedying a grievance or resolving a dispute in
respect of any matter of mutual interest between employer and
employee
, and
every
reference to ‘work’ in this definition includes overtime
work, whether it is voluntary or compulsory
”
(emphasis is mine)
[18]
Based on the contested terrain as set out above, the issues to be
decided in this matter are
(1) whether the fact that the employees of
the applicant were not compelled to work overtime entitles them to
stop working overtime
without falling foul of embarking on an
unprotected strike, and (2) whether on the facts of this case a
demand was made by the
first respondent. Put differently, does the
conduct of the employees meet the definition of a strike?
Analysis/evaluation
[19]
I now turn to deal with the contested issues.
[20]
On the first issue of voluntary versus compulsory overtime, it
appears to me that even if the
employees of the applicant were
working overtime on a voluntary basis it does not absolve them from
falling foul of embarking on
an unprotected strike if they
collectively decide to stop working overtime without observing the
procedural steps prescribed in
s 64
of the LRA. Obviously, this will
also depend on whether a demand was made, an issue I will turn to
later in this judgment.
[21]
From the definition of the strike it is clear that voluntary overtime
work is also included.
Therefore, the respondents’ submission
in this regard cannot be sustained.
[22]
In any event, it appears that it is a condition of employment for the
employees of the applicant
to work overtime. I say so because a
sample of an employment contract attached to the first respondent’s
supplementary affidavit
marked ‘AA1’ contains the
following clause
[8]
:
“
HOURS
OF WORK
…
It
is a condition of your employment that you agree to work occasional
overtime as may be reasonably required by the company, provided
that
in such event reasonable notice is given to you.”
[9]
[23]
The second issue is now considered, i.e. whether on the facts of this
case, a demand was made
by the first respondent?
[24]
It is correct that in the notice to stop working overtime referred at
para 11 above there is
no recordal of a demand or a grievance that
the applicant was expected to accede to or resolve. The first
respondent simply informed
the applicant that its members would stop
working overtime from 26 September 2019. However, this is not the end
of the inquiry.
It is important to explore the context in which the
notice to ban overtime was made. Otherwise a trade union may easily
circumvent
the definition of a strike by not including a demand or
grievance in a notice to stop working issued immediately after a
deadlock
has been reached with the employer on issues of mutual
interest.
[25]
It is not in dispute that at a union-management meeting held on 16
September 2019 wherein the
DAP was first on the agenda, the first
respondent proposed “
to ban overtime until the Breathalyzer
is removed
” (my emphasis). Clearly, this constitutes a
demand that the applicant had to accede to or face overtime ban.
Management undertook
to revert to the first respondent on the 23
rd
September 2019 after consulting with its central group risk team on
the application of the breathalyzer.
[26]
On the 23
rd
September 2019 the applicant informed the
first respondent that the implementation of the DAP would proceed. In
other words, the
applicant did not accede to the demand made by the
first respondent at the meeting of 16 September 2019.
[27]
Two days later, the first respondent informed the applicant in
writing that its members would
stop working overtime from 26
September 2019. Although there is no demand made in the notice to
stop working overtime, the proximity
of the overtime ban to the
applicant’s refusal to accede to the first respondent’s
demand to stop using the breathalyzer
test, and the absence of any
other reason to stop working overtime in the first respondent’s
notice make it plain that the
overtime ban was as a result of the
applicant’s refusal to stop using the breathalyzer test. The
purpose of the overtime
ban was to cajole the applicant to accede to
the first respondent’s demand.
[28]
The above finding is buttressed by paragraph 27 of the first
respondent’s answering affidavit
wherein the following is
stated by the deponent, Mr F.G. Mkhwanazi, who was also present at
the union-management meetings of 16
and 23 September 2019:
“
Than
(sic) the First Respondent suggested that the Applicant must not be
so harsh on them instead they must send those being found
smelling
alcohol back home with no work no pay, instead the Applicant said no
(sic) the employee’s proposal.
That
is when they decide (sic) to ban overtime
.”
(emphasis is mine)
[29]
As correctly submitted by Mr
Titus
in
his heads of argument, in
National
Union of Metalworkers of South Africa & others v MacSteel (Pty)
Ltd
[10]
the following was stated by the then appellate court:
“
Any employee was
thus always free to refuse to work voluntary overtime. That freedom
was not infringed by the terms of the order
of the court a quo. That
order does no more than declare that an 'overtime ban' introduced,
instigated and persisted in by NUMSA
in the circumstances which
prevailed in August/September 1988 constituted an unfair labour
practice. It did not entitle Macsteel
at any time thereafter to
require or permit an employee to work overtime otherwise than in
terms of an agreement concluded by it
with the employee. Where an
employee prior to the order could refuse to work overtime so could he
refuse to do so after the order
was made.
What he could not fairly
do was to become a party to concerted action with other employees to
withdraw voluntary overtime usually
worked in the circumstances in
which that occurred in August/September 1988, ie inter alia, without
notice to Macsteel and in order
to bring pressure to bear on it in
the context of current wage negotiations
.” (my emphasis)
Conclusion
[30]
The conduct of the second and further respondents in deciding to stop
working overtime meets
all the essential requirements of a strike as
defined in
s 213
of the LRA. Since it is common cause that the
procedural steps prescribed in
s 64
of the LRA were not complied with
by the respondents, it follows that the strike would have been an
unprotected one. In the circumstances,
I am satisfied the three
requirements for a final relief have been met, i.e. (a) clear right;
(b) an injury actually committed
or reasonably apprehended and (c)
absence of any other satisfactory remedy
[11]
.
Therefore, the applicant is entitled to a final relief interdicting
the unprotected strike.
Costs
[31]
What remains for determination is the issue of costs. In argument Mr
Titus
did not vigorously pursue a costs order against the
respondents. I am also of the view that it is not in accordance with
requirements
of law and fairness to order the respondents to pay
costs. There is an ongoing relationship between the applicant and the
respondents
that needs to be nurtured.
[32]
In the result, and for the reasons set out above, on 25 October 2019
I made an order in the following
terms:
1.
The
rule nisi
(as set out in para 3 above) is confirmed.
2.
There is no order as to costs.
____________________________________
S.B. Mgaga AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For the applicant:
Mr M.
Titus
Instructed
by: Macgregor
Erasmus Attorneys
For the
respondents: Mr
X. Sisilane
Union
official
[1]
See
minutes
of union management meeting held on 16 and 23 September 2019 –
Pleadings, p66 item 1.
[2]
Pleadings, page 70
[3]
Pleadings, pages 71-72
[4]
Pleadings, pages 93-94
[5]
[1998] 9 BLLR (LC)
[6]
(2000) 21 ILJ 615 (LC)
[7]
[2001] 1 BLLR 47 (LAC)
[8]
Pleadings, pages 128-131
[9]
Pleadings, page 130
[10]
(1992) 13 ILJ 826 (A)
[11]
Setlogelo
v Setlogelo
1914 AD 221
at 227