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[2020] ZALCJHB 47
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Tiger Brands Ltd t/a Albany Bakeries v Food and Allied Workers Union obo Members (FAWU) and Others (J2395/18) [2020] ZALCJHB 47 (14 February 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: J 2395/18
TIGER BRANDS LTD t/a
ALBANY
BAKERIES
Applicant
And
FOOD AND ALLIED
WORKERS UNION OBO
MEMBERS
(FAWU)
First
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
S
DADABHAI
N.O
Third Respondent
Heard:
31 January 2019
Order:
31 January 2019
Date
of Reasons: 14 February 2020
JUDGMENT
- REASONS FOR ORDER
MAHOSI.
J
Introduction
[1] This
matter first served before Lagrange, J on 13 September 2018 as an
urgent application
in terms of which an order was sought in the
following terms:
‘
1.
The non-compliance with the Rules of this Court in respect of times
is condoned and
the matter is heard as one of urgency;
2.
The Commission for Conciliation Mediation and Arbitration lacked the
necessary
jurisdiction to conciliate the dispute referred to it by
the First Respondent under case number HO 2530-18;
3.
The dispute referred to the CCMA in terms of case number HO 2530-18
is a dispute
involving the interpretation and application of a
collective agreement between the Applicant and is not a mutual
interest dispute;
4.
The First Respondent and its members employed by the Applicant are
interdicted
and restrained with (or further participating in) any
proposed strike action or other form of collective industrial action
as contemplated
(and actually embarked on) by the First Respondent
and its members employed by the Applicant, at the Applicant’s
various
premises throughout the Republic of South Africa;
5.
Any strike action or other form of collective industrial action based
on the
referral made by the First Respondent on its own behalf and on
behalf of its members to the CCMA under case number HO 2530-18 as
against the Applicant are declared to be unprotected industrial
action;
6.
Its members be ordered to pay the Applicant’s costs of the
application,
on the scale as between attorney-and-own client, the one
paying the others to be absolved;
7.
The First Respondent trade union and their officials and office
bearers are ordered
and directed to ensure that their members are
informed of the contents and effect of this Order and further to
ensure their member’s
compliance with the terms of this Order;
8.
Service of this Court Order on the Respondents will be effected by;
8.1
Serving the Order on the First Respondent Union by telefax and
e-mail;
8.2
Affixing copies of the Order to the main entrances to the Applicant’s
premises; and
8.3
Handing copies of the Order to the Shop Stewards of the First
Respondent trade union and
to a spokesperson of non-unionised
employees.
[2]
On the return date, 09 November 2018, Baloyi AJ by agreement between
the
parties, extended the
rule nisi
until 31 January 2019 to
enable the applicant to file a replying affidavit and the costs were
reserved.
[3]
On 31 January 2019, the matter served before this Court and after
having
read the papers and having heard argument, this Court granted
the Order confirming the
rule nisi
issued by Lagrange J and
further Ordered the First Respondent union (FAWU) to pay the costs of
the application.
[4]
Subsequent thereto, on 13 October 2019, almost ten months to the day
of
the order, the Respondents requested reasons for this Court’s
Order that are provided hereunder.
Background
facts
[5]
The applicant is a national food producing and supply conglomerate
with
a number of divisions including Albany Bread which produces
bread and other bread products. It has its head office in Bryanston,
Sandton and has divisions nationwide in areas such as Germiston,
Sasolburg, Randfontein, Pretoria, Pietermaritzburg, Margate and
Cape
Town.
[6]
The
applicant and FAWU entered into a recognition agreement on 20 May
1999 which provided
inter
alia
for
organizational rights and centralized bargaining for FAWU in the
defined bargaining units which FAWU enjoyed majority. These
were
identified as Bushbuckridge, Umzinto, Margate, Pretoria, Queenstown,
Sasolburg, Bellville, Maitland, Germiston, Manna, Pietermaritzburg,
Estcourt, Klerksdorp, Kimberly, Louis Trichardt, Phalaborwa, Piet
Retief, Ermelo, Secunda and East London
[1]
.
According to the applicant, this relationship lasted for two years as
most of the bakeries ceased to exist as part of a consolidated
effect
by the applicant over the years and some were converted into depots.
[7] A
dispute arose when on 30 May 2018, FAWU sent a letter to the
applicant with the following
demands:
‘
1.
We demand total conversion of all labour brokers employed into
permanent employment.
2.
We demand closure of wage gap (outstanding issue from previous
negotiations).
3.
We demand that all those acting in vacant positions longer than three
months
be absorbed automatically.
4.
We demand full compliance to the labour laws for code 14 drivers in
terms of
conditions of employment (benefits, allowances, overtime,
Sunday work and public holiday work)
5.
We demand full compliance and implementation of National Substantive
Agreement
in terms of Heat & Heavy duty allowance and Sunday
work.
6.
We demand 12% wage increase across the board effective from 01 July
2018.
7.
We demand a night shift allowance of R 300.
8.
We demand a sales commission of ten cents per item sold.
9.
We demand production bonus.
NB.
The demands and agreement therefore represents all Albany bakeries in
the Republic of South Africa where FAWU enjoys majority
(50+1)
representation as prescribed in the Recognition Agreement of 04 June
1999.
’
[8]
On 13 June 2018, the applicant responded to the letter and stated
inter alia
that:
8.1 In
terms of the 1999 recognition agreement, only certain bakeries were
party to the recognition agreement
and the agreement did not compose
all bakeries.
8.2 The
applicant was of the view that the recognition agreement is stale and
is no longer relevant to the current
collective bargaining
circumstances at the company.
8.3 At
the time that the agreement was concluded, FAWU
de facto
represented the majority of the employees in the bargaining unit of
the listed bakeries which excluded Randfontein and it made
practical
sense to negotiate terms and conditions for their listed bakeries
centrally.
8.4
FAWU’s membership has vacillated over the years, and has been
superseded from time to time by the representation
maintained by
other trade unions such as ITU, NTM and SACCAWU to an extent that
FAWU has not represented the majority of the employees
in the
bargaining unit at the company, and more particularly for the listed
bakeries.
8.5
FAWU does not represent a majority of the employees in the bargaining
unit in Germiston. FAWU no longer enjoys
majority at the Germiston
bakery. The applicant takes the view that the recognition agreement
has lapsed for Germiston bakery
8.6
Circumstances that existed at the time of the conclusion of the
recognition agreement for the listed bakeries
no longer exists, and
by corollary, the validity of the recognition agreement is placed in
question.
8.7
Each bakery is a business unit operating independently of the other
units.
8.8 The
Randfontein bakery cannot be bound to an agreement that it was never
party to.
8.10 The proper
interpretation of the recognition agreement is that once FAWU
membership falls below 50% plus one at a listed
bakery, the
recognition agreement lapses entirely for that bakery and cannot then
be revived should FAWU increase its representation
subsequently.
8.11 The circumstances no
longer support the agreement and therefore the applicant was giving
FAWU three months’ notice of
cancellation of the recognition
agreement for any of the bakeries where FAWU maintains that the
agreement is still current in terms
of clause 19.2 of the agreement.
8.12 Furthermore the
applicant advised that it would not attend the national collective
bargaining meeting scheduled for Cape Town
as Cape Town was never
covered by the recognition agreement.
8.13 Finally the
applicant stated that “
in the event that you seek to declare
a national dispute in respect of the bakeries that do not participate
in the “national
collective bargaining meeting”-for the
reasons we have set out in our letter, such declaration will be
unlawful, and any
employee who responds to such declaration by
withholding labour in any manner, the company will regard as acting
unlawfully, and
will subject that employee to the disciplinary
process.”
[9]
Following the obvious impasse, FAWU referred a dispute to the CCMA
under
case number GAJB 1206-18 (the first referral) and classified
the dispute as “a dispute regarding interpretation/ or
Application
of a collective Agreement”. The parties met for
conciliation on 06 June 2018. When conciliation failed, the CCMA
issued a
certificate of outcome stating that the dispute remains
unresolved and that the matter could proceed to arbitration.
[10]
Whilst that
matter was still pending, FAWU referred another dispute under case
number HO2530-18 (the second referral), the dispute
was classified as
relating to “mutual interest”. It is clear from the
papers that this dispute is similar to the dispute
previously
referred by FAWU under case number GAJB 166442-17 in which it sought
the applicant to extend the current agreement to
the Randfontein
bakery and all other bakeries where FAWU enjoyed 50% plus 1
representation. It further sought the applicant to
bargain centrally.
The arbitration award in that matter found that FAWU in fact enjoyed
28% representivity at the Germiston bakery
and was only entitled to
Section 12 and 13 rights as provided for in the Labour Relations
Act
[2]
(LRA).
[11]
Upon receipt of the second referral, the applicant informed FAWU that
the referral was
incorrect and that in fact the dispute remains one
of interpretation of a collective agreement. FAWU disagreed and
maintained its
contention that the dispute was one of mutual
interest.
[12]
FAWU advised the applicant that should it fail to meet its demands,
and at the lapse of
the 30-day period, it would weigh its options
within the prescripts of the law, whether to embark on a strike or to
follow any
other path depending on the mandate they received from its
members.
[13]
Viewing this as a threat of industrial action, the applicant
approached this Court and
sought orders
inter alia
,
interdicting the threatened strike.
The
applicant’s case
[14]
The applicant’s case was that the true nature of the dispute
between the parties
pertains to an interpretation of the recognition
agreement. It contended that FAWU was seeking to revive the
recognition agreement
of 1999.
[15]
The applicant further contended that to the extent that the dispute
relates to interpretation
or application of a recognition agreement,
the CCMA lacks jurisdiction in respect of case number HO2530-18 for
the reason that
the first referral is pending before the CCMA and
that same has not been arbitrated which following the failed
conciliation. It
argued that FAWU was relying on a collective
agreement of 1999 and sought to invoke provisions of that agreement
on bakeries in
which it enjoys no majority and further wants the
applicant to bargain with it centrally. The applicant argued that the
second
referral is a carbon copy of the first referral and contains
the same allegations and the same issue for determination or
resolution.
[16]
The applicant’s apprehension appears from correspondence from
FAWU indicating
inter alia
, that “
the strike will
teach management to respect the laws of the country”
[17]
In the applicant’s view, the dispute is pending and FAWU should
have withdrawn the
second referral so that parties could proceed to
have the dispute on the interpretation and application of a
collective agreement
arbitrated. It was further clear to the
applicant that FAWU was intent on embarking on strike action, hence
it sought an order
that the strike be interdicted pending arbitration
of the first referral.
FAWU’s
case.
[18]
FAWU contended that the referrals are distinctly dissimilar. Its case
was that the dispute
in the second referral is one of mutual
interest. Its case was that there is no matter that is pending before
the CCMA. Further
that, to the extent that a dispute in the first
referral was pending, it had not received a notice of set down of the
arbitration
from the CCMA.
[19]
FAWU further argued that the application before the Court was
premature as it had not issued
a strike notice which makes the
intended strike non-existent. FAWU further argued that there is no
strike therefore no dispute
pending about the interpretation and/or
application of a collective agreement calling for an interdict.
[20]
According to FAWU, the applicant should have waited for the lapse of
the 90-day period
and if the eventuality was that FAWU issued a
strike notice, then the applicant could approach this Court. In its
view, the applicant
had, by launching this application created a
frenzy.
[21]
Furthermore, FAWU contended that the applicant should have exhausted
the CCMA‘s processes
before approaching this Court. To this, Mr
Mbana argued that the applicant should have after the 90-day period,
requested the CCMA
to set down the referral for arbitration.
Analysis
[22]
The issue that this Court had to determine was whether there is a
live dispute pending
between the parties.
[23]
A simple look at the two referrals at the CCMA, evince the fact that
the dispute between
the parties is one of interpretation and/or
application of a collective agreement.
[24]
There was no basis for FAWU to have referred the second dispute in
respect of case number
HO2530-18 to the CCMA when it was clear that
the dispute has not changed and when they could have persued
arbitration. To seek
to clothe a dispute with a different cloth does
not change the nature thereof. Many concessions were made on the
affidavits and
on the referrals that the matter is one of
interpretation and/or application of a collective agreement. FAWU
blew hot and cold,
one minute submitting that there is no live and
pending dispute and the next passing the responsibility of pursuing
arbitration.
Therefore, it’s submission that the dispute in
respect of case number HO2530-18 is that of mutual interest is
meritless.
[25]
FAWU made no attempts to resolve the dispute. Instead, it launched a
second referral and
sought to bank on the lapse of the 90-day period
to call its members to a nation-wide strike action when it does not
enjoy nation-wide
majority. The correspondence annexed to the papers
clearly show that it sought to teach the management of the applicant
a lesson
and bring the applicant’s operations to its knees.
[26]
FAWU’s submission that there was no strike notice and that the
applicant had to await
same before approaching this Court when its
intentions to embark on a strike were clear is disingenious. The
applicant documented
before this Court the loss that it would suffer
should the strike not be interdicted.
[27]
It is apparent that there is a live dispute pending between the
parties. What is of concern
is that instead of pursuing the
arbitration, much time has been wasted in opposing this application
without merit.
[28]
FAWU could not address the factual concessions made in the papers.
Instead, it sought to
make unwarranted challenges to the applicant’s
representative and make submissions from the bar that really did not
support
its case.
[29]
FAWU’s argument that the applicant should have exhausted the
CCMA‘s processes
before approaching this Court is illogical as
the applicant did not refer the dispute. It was FAWU that referred
the dispute to
the CCMA and the referral is an indication that it
indeed has an interest which it views as deserving of resolution.
Costs
[30]
When the matter first served before Lagrange, J, the issue of costs
was stood to be determined
on the return date. Before Baloyi AJ, FAWU
sought an indulgence to file an answering affidavit.
[31]
Before this Court, both parties argued for costs on a punitive scale
against the other.
The applicant, on the one hand, submitted that
although there is a bargaining relationship between the parties, that
does not apply
nationally and FAWU sought to hold the applicant and
employees hostage with a threat of a strike. FAWU had not tendered to
withdraw
the referral which could have influenced the approach taken
by the applicant.
[32]
FAWU, on the other hand, submitted that the strike was a ‘proposed
strike’
and did not in fact exist and therefore is it for those
reasons that the applicant should be mulcted with a cost order.
[33]
Guided by
the principles of law and fairness, this Court has a discretion in
awarding costs. In
Zungu
v Premier of Kwa Zulu-Natal and Others
[3]
the Constitutional Court confirmed that the rule of practice that
costs follow the result does not apply in labour matters. The
Court
should seek to strike a fair balance between unduly discouraging
parties from approaching the Labour Court to have their
disputes
dealt with and, on the other hand allowing those parties to bring to
this Court or oppose cases that should not have been
brought to Court
or opposed in the first place.
[34]
This is a case where the Court has to strike a balance, considering
the requirements of
law and fairness. This Court is loath to award
costs where there is an existing relationship between the parties,
however this
is one of those matters where costs against FAWU are
warranted as its persistence in opposing this application was
unwarranted
when there is a live dispute in the CCMA covering the
same grounds that it is now trying to advance in threatening to bring
the
proposed industrial action within the ambit of protected
industrial action.
In the premise,
the
requirements of law and equity
prompted
this Court to exercise its discretion in favour of the applicant and
to order FAWU to pay the applicant’s costs.
[35]
It was for the above reasons why this Court could see no reason not
to confirm the rule
nisi issued by Lagrange J as it did.
__________________
D. Mahosi
Judge
of the Labour Court of South Africa
Appearances
For the
Applicant: Advocate W Bekker
Instructed
by: Gildenhuys
Malatji Incorporated
For
the Respondent:Mr M Mbana of FAWU
[1]
Pleadings
bundle at pg 87.
[2]
Act
66 of 1995 as amended.
[3]
(2018)
39 ILJ 523 (CC) at para 24.