Sneller Verbatim/MB
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J921/01
2001-04-23
In the matter between
MOCOM PLASTICS MANUFACTURERING (PTY) LTD Applicant
and
S A C W U 1ST Respondent
2ND to 157th Respondent
EMPLOYEES LISTED IN ANNEXURE “B” 158th to Further Respondents
________________________________________________________________
J U D G M E N T
________________________________________________________________
REVELAS J:
1.This is the return day of a rule nisi granted on 29 March 2001 on an urgent
basis. The applicant now seeks confirmation of the relief granted which
was a decelerator to the effect that the conduct of the second and
further applicants constituted an unprotected strike. An interdict
prohibiting the strike and certain ancillary relief was also granted.
The applicant now seeks costs on the scale as between party and party.
Previously it had sought costs on an attorney and client scale.
2.The application concerns an alleged strike in the context of change in
shift times relating to the night work. The change was introduced after
the introduction of the new provisions relating to such work, in the
Basic Conditions of Employment Act 57 of 1997. (“The BCEA or Basic
Conditions of Employment Act”).
3.Previously, a threeshift system was worked by the applicants' employees.
After the introduction of the BCEA, the hours worked in terms of the
threeshift system would constitute a violation of the Basic Conditions
of Employment Act and in particular section 17 thereof. Section 17 of
the BCEA provides as follows:
"Night work -
1. In this section night work means work performed after 18h00 and before 06h00 the
next day.
2. An employer may only require or permit an employee to perform night work if so
agreed and if -
(a) the employee is compensated by the payment of an allowance which may be a shift
allowance or by reduction of working hours, and
(b) transportation is available between the employee's place of residence and the
workplace at the commencement and conclusion of the employee's shift."
4.It is common cause that the first respondent, the Union, and the applicant
concluded a collective agreement in respect of the new shift system. Of
particular significance to this application, is clause 7 of the
agreement which appears on page 39 of the papers. It reads as follows:
"7. A R2 per shift travelling allowance will be paid to all afternoon and night shift
employees on a weekly basis, together with the normal wages. This allowance will
increase annually by the same percentage as the general increase in that year.
The company agrees to deduct the transport fees from employees using the
transport service and paying it directly to the service provider."
5.It is common cause that there is a service provider by the name of Mkhize
Transport (run by a Mr Mkhize), would take employees (the individual
respondents), to and from home to work. It was in other words a doorto
door service.
6.The application is brought on the basis that the individual employees did
not want to work in terms of the new fourshift system as required by
the collective agreement.
7.The respondents believe that they are not bound by the agreement as the
question of transport costs remained unresolved.
8.It appears from the papers that the implementation of the agreement was
extended to 19 March 2001. The union requested an extension of the
implementation of the collective agreement until 26 March 2001 which
request was declined by the applicant.
9.The applicant’s case is that there has always been night time work. The
change only related to the shifts and that the second and further
respondents' refusal to comply with the agreement and work in these
shifts, constituted an unprotected strike for want of compliance with
the provisions of the Labour Relations Act 66 of 1995.
10.The respondents' case is that since there was no agreement to the actual
implementation of the agreement, the agreement was unenforceable and
therefore any failure to work in terms of the new shift system, (the new
fourshift system), would not constitute a strike.
11.It was argued on behalf of the respondents that certain questions still
remained outstanding and that such issues had to be resolved before the
implementation of the agreement could be agreed upon by the first
respondent.
12.The outstanding issues referred to was the question of the shift allowance
of R2,00. The union argues that it would be inequitable if night shift
workers were to pay more than day shift workers for special taxis. It
appears that the difference between the night shift and the day shift
according to Mr Mkize's intended rates, would be R4,00 of which in terms
of the agreement, the applicant would pay R2,00.
13.The respondents’ argument is without merit. It is common cause between the
parties that an agreement was reached. An implementation date was
parties that an agreement was reached. An implementation date was
agreed upon. The fact that an extension thereof was not agreed to does
not mean that the agreement could not be implemented.
14.There also appears that a pattern was followed by the respondents to
frustrate the implementation of the agreement with one or other demand
relating to the provision of transport for employees.
15.An employer is not obliged to provide transport other than in the terms
set out in section 72 of the Basic Conditions of Employment Act.
16.In these circumstances the respondents are obliged to comply with the
agreement and any failure to work in terms of the fourshift system as
set out in the affidavit would constitute a strike. The strike is
unprotected because it does not comply with the provisions of the Labour
Relations Act and consequently the applicant had a clear right to
approach this court and obtain the relief it had sought.
17.There is no reason why costs should not follow the result even though
there has been some acknowledgement that the shift should be worked.
This does not appear from the answering affidavit of the respondents and
the supplementary affidavit of the applicant would show that there was
still certain conditions, that the working of the fourshift system was
still subject to certain conditions that had to be fulfilled. In these
circumstances a cost order is justified.
18.I make the following order:
1.The rule is confirmed.
2.The respondents are to pay the applicants' costs, jointly and severally,
the one paying the other to be absolved.
___________________
E. Revelas.