Sneller Verbatim/MB
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J2743/01
2001-07-06
In the matter between
UNITED TRANSPORT AND ALLIED TRADE UNION Applicant
and
METRORAIL Respondent
________________________________________________________________
J U D G M E N T
EX TEMPORE
________________________________________________________________
REVELAS J:
1.The applicants seek the following urgent relief:
1.1. ΑInterdicting and restraining the respondent from distributing to
any of the applicant's members a notice entitled "undertaking not to
participate in UTATO strike particulars whereof are set out in the
annexed founding affidavit hereinafter referred to as "the undertaking";
2.2. Interdicting and restraining the respondent from requiring
applicant's members to sign the undertaking.
2.3. Interdicting and directing the respondent to withdraw the
undertaking from those of the applicant's members who have already
signed;
2.4. Interdicting and restraining the respondent from discriminating
against and/or victimizing the applicant's members. ≅
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JUDGMENT1
The applicants also seek costs against the respondent.
2.The document (or Αundertaking≅), which lies at the heart of the
applicant's complaint, is a standard letter of undertaking to be signed
by all UTATO members who are about to commence on a strike today. The
relevant part of this letter reads as follows:
"Should they sign and avail themselves for work as required by management for
the duration of the strike, they will not be locked out. A lock out notice has been
faxed to all the partners. Contact the department secretary if you have not
received your copies. Please display the notice immediately.
The undertaking form is to be used for those who do not wish to strike. Note: The
individual need not resign from the Union and you may not under any
circumstances encourage people to resign from the Union. Copies of this
undertaking must be kept in a safe place and a copy is to be faxed to the HR
manager's office. Please keep a summary and a check against the list of Utato
members which HR will be providing.
I will be meeting with the strike committee at 14h00 whereafter there will be
further contact."
3.The standard undertaking reads as follows:
"I, ..... employee number ...... hereby commit not to participate in a strike called by
Utato in Metrorail. By giving this undertaking I am aware that I will be making
myself available to work as and when required by the company."
4.The members of the Union are also advised in this letter, that they need
not resign from the union in light of the aforesaid and that it should
not be so construed.
5.The question to be decided is whether these letters constitute a breach of
Sections 4 and 5 of the Labour Relations Act 66 of 1995. In my view
they do not. On the evidence presented by the respondent and on the
papers of the applicant, there is no case made out to demonstrate that
the respondent committed with some unlawful act in handing out these
letters.
6.In my view, it is perfectly legitimate to send such letters. It forms part
of the general power play which takes place during a strike. I am
unpersuaded by the submissions that if these letters are continued to be
given to members the strike will not take place. If the strike does not
proceed, so be it. An employer faced with a protected strike is not
precluded from resorting to measures to prevent the strike from taking
place, provided such action does not constitute, intimidation or a
breach of the provisions of the Act.
7.It is the Union's duty to ensure that a strike called by it continues, and
not that of the courts.
8.In the circumstances the application is dismissed with costs.
_________________
E. Revelas
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JUDGMENT3