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[2020] ZALCJHB 99
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Skets Projects (Pty) Ltd v South African Transport and Allied Workers Union (J 546/2020) [2020] ZALCJHB 99 (24 June 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA
(Held at johannesburg)
JUDGMENT
Not reportable
CASE NO: J 546/2020
In
the matter between:
SKETS
PROJECTS (PTY) LTD
Applicant
And
SOUTH AFRICAN
TRANSPORT AND ALLIED
WORKERS
UNION
Respondent
Date
enrolled: 23 June 2020 (By agreement, decided in Chambers)
Date
of judgment: 24 June 2020. Judgment distributed by email at 12:00
JUDGMENT
VAN
NIEKERK J
[1]
This is an urgent application in which the applicant seeks to
interdict a strike called
by the respondent. The applicant is engaged
in the security sector and employs security officers country-wide.
The applicant contends
that the respondent has called a strike that
is unprotected, and seeks a final order in terms of which the
respondent and its members
cease engagement and participation in the
strike.
2]
The applicant is a party to a collective agreement with the South
African National Security
and Allied Workers Forum (SANSAWF). That
agreement confers sole bargaining rights on SANSAWF and also
establishes a closed shop,
as contemplated by s 26 of the Labour
Relations Act (LRA).
[3]
The respondent has sought organisational rights at certain of the
respondent’s
premises. The papers before me do not disclose the
extent of the demands, nor the specific organisational rights sought
by the
respondent. That notwithstanding, the applicant resisted the
respondent’s demands and the dispute between the parties was
ultimately referred to the CCMA. On 1 June 2020, the CCMA issued a
certificate of outcome reflecting that as at that date, the
dispute
remained unresolved. The respondent subsequently issued a strike
notice and sought approval from the CCMA for picketing
rules. On a
date that is not disclosed, but it would appear after the strike
notice was issued, the applicant referred the organisational
rights
dispute to arbitration in terms of s 21 of the LRA.
[4]
The applicant raises a number of grounds on which it contends that
the strike is unprotected.
First, the applicant submits that the
strike notice lacks sufficient particularity, and that the strike
should be interdicted on
that basis. Secondly, the applicant appears
to contend that it operates an essential service, certainly in so far
as the National
Disaster Management Act is concerned, and that the
strike is unprotected for that reason. In the respondent’s
unsigned answering
affidavit, the deponent makes mention of a
unilateral change to conditions of employment in respect of certain
bonus payments,
and appears to suggest that a dispute was referred to
the CCMA in relation to this issue, and a certificate issued.
[5]
While it is correct that the strike notice says very little about the
nature of the
demand and the actions that the applicant is required
to take to avert a strike, it is also not correct that the applicant
is an
essential service for the purposes of s 71 of the LRA. An
essential service for the purposes of the National Disaster
Management
Act is not automatically an essential service for the
purposes of the LRA. It is not apparent that security services
generally
speaking or any of the security services offered by the
applicant have been declared essential services in terms of the LRA.
[6]
It would seem to me that the provisions of s 22 of the LRA entitle
any party to a
dispute about organisational rights to refer the
dispute to arbitration. Ordinarily, a dispute that is one in respect
of which
a party has the right to refer to arbitration, may not be
the subject of protected strike action. In the present case, the
respondent
clearly elected to strike in support of its demand, as it
is entitled to do. Whether the applicant was entitled to pre-empt the
exercise of that right by itself referring the dispute to arbitration
is not an issue that was addressed at any length in the papers
or in
the written submission that was filed. For present purposes, I need
make no ruling in this respect.
[7]
There is a more fundamental reason why the strike called by the
respondent may well
be unprotected. It is not in dispute that the
respondent is a member of the newly formed National Bargaining
Council for the Private
Security Sector. It is also not disputed that
the respondent is a party to the baragaining council, and that the
applicant’s
operations fall within the council’s
registered scope. That being so, the provisions of s 19 of the LRA
apply – registered
trade unions that are parties to a
bargaining council automatically have the rights contemplated by
sections 12 and 13 of the LRA
in respect of all workplaces within the
registered scope of the council, regardless of their
representativeness in any particular
workplace. In other words, the
respondent enjoys at least the organisational rights of access and
check off by virtue of its membership
of the bargaining council. It
is not clear to me on the papers whether the respondent’s
demands extended beyond those rights,
and if so, to what extent. In
respect of the rights of access and check-off at least, there is no
reason to demand the establishment
of those rights or strike in
support of their establishment as the respondent has done – the
respondent has those rights
and is entitled to enforce them. For this
reason, there is no real or live dispute between the parties that may
legitimately form
the basis of a strike.
[8]
In so far as the respondent relies on a dispute about a unilateral
change to terms
of employment, this does not appear to be the basis
on which the strike has been called. Certainly the strike notice
issued on
10 June 2020 makes no mention of it.
[9]
I am satisfied on the papers before me that the applicant has
established a
prima
facie
right to the
relief that it claims. I intend therefore to grant an interim order,
and to grant the parties leave to file supplementary
affidavits prior
to the return date.
For
these reasons, I make the following order:
1.
The respondent is called on to show cause on 11
September at 10 am, why an order should not be granted in the
following terms:
a.
the strike called by the respondent in support of
its demand for organisational rights is unprotected;
b.
the respondent and its members are interdicted
and restrained from supporting and/or participating in the strike;
c.
the respondent is to pay the costs of the
application, including the costs of the postponed proceedings on 17
June 2020 when costs
were reserved.
2.
Pending the return date, the provisions of
paragraphs a, b and c above shall operate as an interim interdict.
André
van Niekerk
Judge
of the Labour Court