NOT REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
CASE NO D597/2001
DATE 2001/05/31
REVISED
In the matter between:
STAFF ASSOCIATION FOR THE MANUFACTURING
AND RELATED INDUSTRIES (SAMRI) Applicant
and
JOY DLAMINI First Respondent
SIBA MANAGEMENT CC Second Respondent
SIBA FAST FOODS CC Third Respondent
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JUDGMENT DELIVERED BY THE HONOURABLE
JUDGE PILLAY ON 31st MAY 2001
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TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
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J U D G M E N T
PILLAY J
This is an application for a final order interdicting the respondents from
implementing proposed reductions in salary and changes in conditions of
employment in respect of certain employees. Initially, relief was claimed in
respect of unnamed employees. The applicant has since identified these
employees although I now gather that the locus standi of these identified
employees to participate in these proceedings remains challenged.
The first point raised in limine is that there has not been proper compliance with
section 64(4) and (5) of the Labour Relations Act, which provide:
“(4) Any employee who, or any trade union that refers a dispute about a unilateral
change to terms and conditions of employment to a council or the Commission in
terms of subsection 1(a) may, in the referral and for the period referred to in
subsection 1(a)-
(a) require the employer not to implement unilaterally the change to terms and
conditions of employment; or
(b) if the employer has already implemented the change
unilaterally, require the employer to restore the terms and conditions of
employment that applied before the change.
(5) The employer must comply with the requirement in terms of subsection (4) within 48
hours of service of the referral on the employer."
On the conciliation referral form the applicant stated that:
"I/We require that the employer party (to) restore the terms and conditions of
employment that applied before the change."
instead of including in the referral form that,
"the employer party to implement unilaterally the proposed changes that led to
the dispute for 30 days."
It was common cause that the respondents did not implement changes in respect
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of all employees. In so far as the conciliation form was not properly completed,
the Court refuses to take an overly technical view and bar the applicant on that
ground. Furthermore, the fact that the employees were not identified at the
conciliation stage was not material to the conciliation since the employer
representatives attended the conciliation without a mandate and no conciliation in
fact occurred. In other words, there was also no engagement about the identity of
the applicants.
Furthermore, it was conceded that conciliation was not a prerequisite for an
urgent interdict. Unlike in the case of Mukwevho and Others v Entertainment
Catering Commercial and Allied Workers Union 1999(20) ILJ 1078LC, the
applicants did require in the conciliation referral that the employer,
"return to employer's undertaking with staff and re-instate all benefits."
The Mukwevho decision before GROGAN AJ was refused, inter alia, because it had
been agreed between the parties' representatives that the applicants had not
expressly required the respondent to restore the status quo in the referral form.
That is at page 1080 at paragraph 9 of the judgment.
However, the application is being brought for a final order that the respondents
"are interdicted and restrained in terms of section 64(4)(a) of the Labour Relations
Act". Ms Lange for the applicant submitted that the applicant did not wish to
strike but may proceed to arbitration. There is no provision in the LRA for
compulsory arbitration after conciliation in terms of section 64. If conciliation fails
industrial action is the next step. Ms Lange relies on the applicants having a right
to their conditions of service as a result of various undertakings by or on behalf of
the employer. If there is such a right then the applicant should not have brought
the application in terms of section 64(4).
Furthermore, the rights that the applicants seek, that is to retain their conditions
Furthermore, the rights that the applicants seek, that is to retain their conditions
of service, is not an immutable one. Terms and conditions of service may be
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varied by collective bargaining. What the applicants seek to secure is a
permanent right for its members' existing terms and conditions of service without
the pain of collective bargaining. That the Court cannot grant. If the applicant
sought an interim order on some basis such as the willingness to renegotiate
changes to the terms and conditions of employment, the Court might have been
favourably disposed to granting such relief pending further collective bargaining.
Ms Lange relied on the judgment of REVELAS J in Staff
Association for the Motor and Related Industries (SAMRI) v Toyota South Africa
Motors (Pty) Ltd 1998(6) BLLR 616(LC) to support her submissions. However,
whether the point was pertinently raised in that matter as it was in this matter is
not altogether clear. In any event this Court prefers the approach of GROGAN AJ
in the Mukwevho matter.
[10] In the circumstances the application is dismissed.
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ADDRESSING RE COSTS
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PILLAY J
[11] In considering the question of costs the Court has taken
into account that the changes to the conditions of
employment could be traumatic and dramatic for the
applicant's members, that they have endeavoured to pursue proper channels to seek
redress instead of taking the law into their own hands. They were mistaken in
good faith about the remedy that may be available through this application. The
fact that the application was unsuccessful does not mean that their cause is
unjust. Nor am I saying that the respondents' cause has no merit. The Court has
not entered that terrain at all.
[12] The proper order in this case, the matter having been
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disposed of on a point in limine is that there should be no order as to costs.
________________________________________________________
FOR THE APPLICANT: NATALIE LANGE
FOR THE RESPONDENT: ADVOCATE SISHI
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