IN THE LABOUR COURT OF SOUTH AFRICA REPORTABLE
(HELD AT CAPE TOWN)
CASE NO: C552/2000
DATE: 382000
In the matter between:
N U C C A W U Applicant
and
TRANSNET LIMITED t/a PORTNET Respondent
J U D G M E N T
WAGLAY, J:
1. The applicant in this matter, a trade union, has come to this Court as a
matter of urgency to interdict the respondent from continuing with what
it alleges is a lockout of its members, all of whom are listed in an
Annexure to applicant's papers, on the grounds that the said lockout is
unlawful.
2. The background to this matter, as evidenced by the papers filed of
record, is the following:
1. The applicant's members referred to in this matter on or about 1993 or
1994 signed an agreement with the respondent headed "casual employment
agreement" in terms whereof the said members were offered employment on
a casual basis.
2. The terms of the agreement were, inter alia , that:
(a) the duration of employment will run on a daytoday basis as required by
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the employer at a maximum of three days per week;
(b) the members shall not be entitled to any
of the privileges of a permanent
employee of the employer as described by Regulations;
(c) the agreement may be terminated by the employer without any notice or
any payment in lieu of notice in the case of gross misconduct or
dishonesty on the part of the employee.
3. The agreement also set out normal hours that the members were required
to keep on the day on which they were required to work as well as the
amount he or she would be paid for the day and the rate of pay for
overtime work, as also how the overtime would be calculated.
4. These members, with others who also signed similar contracts as referred
to above, first formed a pool of workforce from which respondent would,
on a daily basis, select persons to render services, depending on
respondent's needs for that particular day.
5. Although the pool consisted of some 2 000 workers, respondent, on
average, employed between 50 to 70 from amongst them, and none for a
period in excess of three days per week.
6. The procedure that applied was that the members would report to a
particular office known as "the TIS office", which office is advised by
the various of respondent's business units, as to the number of
employees it requires for that particular day. The
office would then engage the requisite number from amongst those in
the pool who would report to that office for work for that particular
day.
7. There is no obligation upon the members to report to the TIS office
everyday, or at all. Likewise there is no obligation upon the
respondent to give a particular person in the pool preference or to
offer to a particular person in the pool employment for a particular
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day.
8. The persons in the pool are further not paid a salary at the end of the
day on which they were employed, but at the end of any given week and
from such pay the statutory deductions that is PAYE and UIF are
deducted.
9. The respondent also employs a permanent workforce numbering about 2 000.
10. Although the applicant members referred to herein, together with other
persons formed a pool, the respondent is free to employ on a casual
basis persons who are not part of the pool.
11. Some time during April or May of this year the respondent drew a new
memorandum of agreement which it intended concluding with the
applicant's members, as also those casual employees who formed part of
the pool referred to above.
12. The applicant objected to this agreement, alleging that if agreed to it
would change
the present status of the members viz áviz the respondent.
13. Unlike the previous agreement headed "casual employment agreement" which
consisted of some three pages, the new contract comprised 12 pages.
The contract was vastly different from the previous agreement in that
while the basis of employment remained the same, the previous agreement
was not limited in terms of time, whereas the new contract offered to
engage the services of the applicant's members only for a period of
three months. The new contract also no longer limited the number of
days in a week to be worked to three, but that members would be employed
for the full week "Mondays to Sundays", if needed. Furthermore, the
hours of work as set out in the previous agreement would no longer apply
and the respondent was free to determine on an ad hoc basis what the
hours of work would be.
14.Since applicant objected to the new agreement, the respondent on 17 July
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2000, issued the following memorandum to its TIS office:
"The Port of Cape Town has recently updated the contract which
casuals/temps signed to be employed at Portnet. This update was
necessitated by the need for these contracts to be brought in line with
the Basic Conditions of Employment Act, No. 75 of 1997. I am led to
believe that some temps have refused to sign this new contract which is
surprising as it contains terms and conditions which are more
favourable than the previous contract. Portnet is hereby serving
notice that temps who have not signed the new contract by 21 July 2000
will not be eligible for employment at Portnet in any capacity."
The date of 21 July was extended to 24 July 2000.
15. On 24 July 2000 when applicant's members reported to the TIS
office to be allocated work, if such work was available, they were
advised that unless they signed the new agreement they would not be
considered for any employment with the respondent. Applicant's members
refused to sign the new agreement and were consequently not considered
for and continue not to be considered for any employment,
notwithstanding employment being available on a daytoday basis.
3.Based on the above the applicant contends that the action of the respondent
in not considering its members for employment, as it had done in the
past, constitutes a lockout and since respondent has failed to comply
with the provisions of section 64 of the Labour Relations Act
(hereinafter "the Act') such lockout is unlawful.
4. The Act defines "lockout' as:
"The exclusion by an employer of employees from the employer's workplace
for the purposes of compelling the employees to accept a demand in
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respect of any matter of mutual interest between the employer and
employee, whether or not the employer breaches those employees contracts
of employment in the course, or for the purposes of that exclusion."
5. The first issue that needs to be decided, however, is are the
applicant's members employees as contemplated by the Act? The Act
defines "employee" to mean:
"Any person, excluding an independent contractor, who works for another
person or for the State and who receives, or is entitled to receive, any
remuneration; and any other person who in any manner assists in the
carrying on or conducting the business of an employer."
The same definition is accorded to the employee in the Basic Conditions
of Employment Act, No. 75 of 1997.
6.As stated earlier in the instant matter do applicants qualify to be
employees as defined? The right that applicant's members have in terms
of the agreement they concluded with the respondent is that they be
considered for work that may be available on a daytoday basis. The
fact that they would be considered for daytoday employment is as a
result of them being part of a pool of people, a pool created by the
respondent, and being part of the pool they were thus entitled to be
considered for the daytoday employment. In effect what we have is
that applicant's members constituted a special class of employees; a
class of employees who were not guaranteed that they would be employed
but had the right to be considered for employment on a daytoday basis,
if respondent had a need for them. The fact that the respondent
records in its affidavit that when there is a need to employ extra staff
for its daytoday requirements, it would employ from the pool it
for its daytoday requirements, it would employ from the pool it
created, satisfies me that the applicant's members do fall within the
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definition of employee as provided for in the Act. I come to the
conclusion because I believe that the definition of "employee" in the
Act is wide enough to include persons who are retained on the books of
an employer to render services, albeit on an ad hoc basis.
7. The respondent, however, relying on the arbitration award handed down by
the Commission for Conciliation, Mediation and Arbitration (CCMA) in the
matter of Mavata v Afrox Home Help Care 1998 19 ILJ 931 CCMA, argued
that applicant's members were in a position no different to the
applicant in that matter and as such, applicant's members were in fact
casual employees. The label of "casual", however, does not detract
from the fact that the person remains an employee. Furthermore, I am
not satisfied that simply because one is a casual worker, which is
defined by the Chambers 20th Century Dictionary to mean "employed for a
short time or without fixed employment" does not mean that such employee
is not afforded any protection by the Act. In the matter of Mavata, the
Commissioner was faced with a dismissal dispute and, quite correctly,
the Commissioner found that the applicant, because of her status of
casual employee, had no employment or future employment beyond the date
currently worked by her, this did not mean that she was not an employee
for purposes of the Act.
8. Moving then to the issue of whether or not the refusal by the respondent
to consider applicant's members for employment that may arise constitute
a lockout. In this respect, respondent argued that a lockout
presupposes that an employee has a right to be at work and the employer
an obligation to afford such employee work and remuneration. Firstly,
there is no dispute that applicant's members were excluded from being
there is no dispute that applicant's members were excluded from being
considered for any daytoday employment until such time as they signed
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the new contract drawn by the respondent. Further, as I have said, the
applicant's
members constitute a special class of employees in that they had no
guarantee that they would be employed for at least three days in a week,
or occasionally or at all. Their right was limited to be considered
for the daytoday employment. As such, if there was no work available
or had one employee been chosen in preference to another from within the
pool of employees, such excluded employee had no right to either demand
employment or challenge the respondent's right to choose any other
employee from amongst its pool of employees. However, the denial of
this right to be considered for employment on a daytoday basis on the
grounds that applicant's members comply with the demand made by the
respondent that they sign the new terms and conditions of employment is,
I believe, sufficient to satisfy the definition as provided for by the
Act as constituting a lockout.
89. Respondent's submission as recorded earlier, although of some merit, is
rather narrow. I do not see why the lockout should only presuppose
that an employee has a right to work and an employer an obligation to
afford such employee work and remuneration. I believe that the
definition of a lockout is also sufficiently wide to include the denial
of a right that an employee may have to be considered for employment.
10. Respondent's further submission that since it was not obliged to offer
any employment to any specific person from the pool of employees, and
because it was entitled to engage other casual employees on terms wholly
different from those applying to existing casual employees and to give
work to such other employees to the exclusion of those in the pool, it
had the right only to engage those persons who assented to the terms and
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conditions contained in the new agreement. This argument I have
difficulty in accepting. While respondent could quite correctly require
those who have not entered into any agreement with it to agree to the
terms and conditions it proposes before it can offer them employment,
where there already is an agreement in place, it is not open to
respondent to unilaterally change such agreement. The fact that
applicant's members were not entitled to employment beyond the day
employed does not mean that there is no employment relationship between
the parties. This relationship exists by virtue of the agreement
concluded between the parties. To suggest, as respondent does, that it
is entitled to impose such conditions as it deems expedient,
notwithstanding an agreement, is clearly not correct.
11. In the circumstances I am satisfied that the action of respondent
constituted a lockout and since there is no dispute about the fact that
the procedure as set out in section 64 was not followed, the lockout
is, at the very least, unprocedural and therefore liable to be
interdicted.
12. The respondent's further argument is that this matter is not urgent and
because the applicant has failed to refer the matter to conciliation
before petitioning this Court, the relief prayed for should be declined.
While it is correct that the applicant has not specifically stated why
this matter is urgent, it is obvious that the matter is an urgent one.
The applicant's members suffer prejudice which cannot be addressed
adequately, or at all, when the matter is heard in due course. This is
so because by not being considered for employment, the members who may
have obtained daytoday employment, are not being so employed. They
have obtained daytoday employment, are not being so employed. They
cannot come to this Court at some future date and allege that they would
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have been employed, because it did not have such a right. Nor can they
allege that they, with any certainty, would have been employed, having
regard to the fact that the pool from which respondent selected
employees to work on a particular day comprised persons in addition to
applicant's members and thus there is no guarantee that they would have
been selected for employment.
13. With regard to applicant's failure to refer the matter to conciliation,
while this Court will not entertain a matter which is not referred to
conciliation, when it comes to matters such as the present this Court
has a discretion as there is nothing in the Act with regard to disputes
of this nature that require that the matter first be referred to
conciliation before it can be referred to this Court.
14. Due to the fact that I am satisfied that this is an urgent matter I am
not prepared to refuse relief simply because the matter was not referred
to conciliation.
15. With regard to costs I am satisfied that this is a matter in which costs
should follow the result. In the circumstances I make the following
order:
1. Respondent is interdicted from locking out the applicant's members
referred to in Annexure JD1 to its founding papers.
2. Respondent is ordered to pay the costs of this application.
WAGLAY, J
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