IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C770/2000
DATE: 20-10-2000
In the matter between:
S R V MILL SERVICES (PTY) LTD Applicant
and
NUMSA & OTHERS First and Further Respondents
____________________________________________________________
J U D G M E N T
WAGLAY, J:
1. The applicant in this matter sought to interdict the trade union and not its
members from participating in promoting or inciting any strike action at
the applicant's plant in Saldanha, Western Cape. The application was
opposed by the respondent.
2. After hearing argument from the parties late yesterday afternoon, I gave
an order that the application was dismissed with costs, without giving
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reasons for such an order. The reasons now follow. The applicant
provides specialist materials handling services in the metal industry,
serving in the main Saldanha Steel, a steel manufacturing enterprise.
Without the services of the applicant the entire Saldanha Steel operation
would be compromised and forced to a standstill, causing it substantial
damage.
3. Although the applicant does not have a recognition agreement with the
respondent, both parties belong to the National Bargaining Council for
the iron and Steel engineering and metal engineering industries
(hereafter "Council") and are bound to the main agreement concluded at
the council.
4. The background to the present interdict can be summarised as follows:
1. The applicant conducted its operation on a three shift system on a 24
hour basis. Because of the volume of work and the three shift system,
applicant's employees were required to work a considerable period of
overtime.
2. The employees, all of whom appear to be members of the respondent,
complained that their family life was compromised and they were
exhausted and were generally unhappy with the hours they had to work.
3. As a result of the above complaints in the course of this year, respondent
and its members demanded that the three shift system change to a four
shift system. Applicant attempted to dissuade the respondent and its
members from pursuing the four shift system for various reasons.
4. Respondent and its members remained unmoved and persisted that
applicant change to a four shift system, and in and during May applicant
indicated its willingness to seriously investigate the possibility of a
change to a four shift system. On 18 August 2000, applicant by letter to
the respondent, advised the respondent that it had decided to implement
the four shift system as and from Monday 21 August 2000, as was
requested by respondent's members.
5. The respondent members immediately complained about the change to
the four shift system and demanded that applicant revert to the three
shift system because the system as implemented by the respondent was
done so unilaterally.
6. Meetings held between the parties failed to resolve the dispute, with
applicant being of the view that the implementation of the four shift
system was not unilateral in that it was implemented after a number of
meetings and consequent upon a demand made by the respondent's
members.
7. Having regard to the letter forwarded by respondent's members'
representative to the applicant, it appears that the respondent's
members at least considered the implementation of the four shift system
to be unilateral changes to the terms and conditions of employment
because applicant had refused to inform, consult, discuss with the
respondent members of how the four shift system would be effected,
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address the financial losses that the members would suffer as a
consequence of the change, and other issues.
8. On 6 September 2000, respondent referred the dispute to the Council
describing the dispute in effect as one concerning the unilateral change
to terms and conditions of employment and a certificate to the effect that
the dispute remain unresolved concerning an alleged unilateral change in
terms and conditions of employment as provided for in section 64(4), was
issued by the Council on 10 October 2000.
9. On 17 October, the respondent gave notice to the applicant of its
members' intention to commence with a strike action on 20 October
2000.
5. The applicant's submission is that this Court is empowered to interdict
the strike on various grounds, the first being that it did not unilaterally
change the terms and conditions of employment because, in essence, it
conceded to the demand made by the respondent and therefore
respondent cannot lay claim that the change was unilateral. According
to the applicant there was a valid agreement between the parties based
on an offer and acceptance. This argument is rather simplistic. While it
is correct that the respondent did demand a change from a three shift to
a four shift system, to resist this demand by raising the problems that
may attach to meeting such a demand and then to say it would consider
such a demand and thereafter simply on a Friday to advise the
respondent that it was meeting respondent's demand and will be
implementing the four shift system as from Monday does not, to my
mind, imply that an agreement has been concluded. Even if that was so
that the applicant conceded to the respondent's demand, at least the
implementation thereof had to be discussed with the respondent. This
the applicant failed to do.
6. In any event where a party alleges that there is a dispute about the
unilateral change in terms and conditions of employment, it is not for this
Court in proceedings such as the present, to determine whether or not
the dispute is a valid one in the sense that the Court must enquire into
whether or not there has been a unilateral change to the terms and
conditions of employment, as the Act defines a dispute to include "an
alleged dispute"
7. In the circumstances the enquiry that this Court is required to make is to
establish whether the alleged dispute which a party claims to have is one
in respect of an issue over which it is entitled to embark on a strike, and
if so, did the party alleging the dispute comply with the procedures set
out in section 64. In this case the dispute is one over which respondent
is entitled to embark upon a strike and respondent has complied with the
statutory procedure.
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8. In the circumstances I see no reason why I should interdict the proposed
strike.
9. Applicant's further argument is that the dispute over which respondent
seeks to strike is a rights dispute as it relates to whether or not the
agreement was concluded or not, and therefore this Court should
intervene and interdict the strike as a rights dispute should properly be
referred to this Court or to arbitration for determination. I agree with the
applicant that the dispute between the parties is essentially a rights
dispute, however, the Act specifically provides for such a dispute to be
resolved by resorting to power play and it is not for this Court to override
the clear provisions of the Act.
10. Applicant's further argument is that this Court is empowered in terms of
section 158(1)(a)(iii) which provides that a Court may make any
appropriate order, including an order directing the performance of any
particular Act which order, when implemented, will remedy a wrong and
give effect to the primary objects of the Act, arguing that where an
agreement is concluded between the parties, it should not be open to a
party to declare a dispute and then, as in the present case, be allowed to
embark on a strike as such action will compound a wrong. This
argument, although not without merit, is premised on the belief that the
parties herein concluded a valid agreement. I am not satisfied that this
is the case here and therefore do not need to decide thereon.
11. Furthermore, and in any event, before an application such as the present
can be entertained by this Court, applicant is required to comply with
section 68(2) of the Act which obliges an applicant to give at least 48
hours notice of the application to the respondent. Where shorter notice is
given, as in the present, the Act requires that:
"(a) The applicant has given written notice to the respondent of the
applicant's intention to apply for the granting of an order.
(b) The respondent has been given a reasonable opportunity to be heard
before a decision concerning that application is taken, and
(c) The applicant has shown good cause why a period shorter than 48 hours
should be permitted."
12. In this matter I am satisfied, based on the evidence presented, that good
cause was shown for the shorter period of notice than the required 48
hours, as well as reasonable opportunity for respondent to be heard. I
am not satisfied that applicant has complied with the notice requirement
as
set out in section 68(2)(a) above. In fact, there is nothing before me to
indicate compliance with section 68(2)(a). If I accept the statement
made from the Bar by counsel for the applicant that the notice of motion
was faxed to the respondent hours before the application was served, it
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does not mean compliance with the above section. A notice of motion
does not constitute a notice as required by the section, what is required
is that the respondent must be given an opportunity to either give an
undertaking or agree not to proceed with the intended strike within such
time as is appropriate, failing which applicant will petition this Court for
the specified relief at a certain date and time. This section could not
have intended a notice of motion to serve such purpose because a notice
of motion, either by itself or as part of the application, is no more than a
notice to the respondent of applicant's decision to proceed and not an
intention to do so.
13. Applicant has thus failed to comply with section 68(2)(a) of the Act and
this reason alone is sufficient for me to have dismissed the application.
With regard to costs I see no reason in law or equity why costs should not
follow the result.
14. In the circumstances I reiterate the order I granted. The application is
dismissed with costs.
WAGLAY, J