J4285/01-mc
Sneller Verbatim/mc
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J4285/01
2001-10-03
In the matter between
PROFAL Applicant
and
Respondent
________________________________________________________________
J U D G M E N T
Delivered on 4 October 2001
________________________________________________________________
REVELAS J:
1.The applicant has approached this court for an urgent interdict prohibiting
a strike. The applicant contends that the strike is unprotected as the
issue in dispute is one that is not capable of being the subject matter
of a strike.
2.The first respondent, (or “the Union”), referred a further dispute to the
bargaining council about "a refusal to bargain". This type of dispute
may form the subject matter of a strike, as the applicant has indeed
refused to bargain with the Union in respect of its demands pertaining
to wage increases, severance pay, long service pay and certain other
terms and conditions of employment.
3.The applicant contended that it is not obliged to consult and bargain with
the Union because the applicant is a member of a registered employers’
organisation, namely the Light Engineering Industries Association of
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South Africa which is affiliated to the Steel and Engineering Industries
Federation of South Africa (SEIFSA). The employers' organisation is
also a party to the Metal and Engineering Industries Bargaining Council,
(the “MEIBC”). SEIFSA generally deals with substantive negotiations with
other connecting bargaining agents in the metal and engineering industry
of the applicant.
4.As a member of the employers organisation, the applicant says it is bound
as a party to the provisions of the collective main agreement of the
MEIBC.
5.The first respondent is not a member of any employees' or trade union
organisation which are a party to the collective main agreement of
MEIBC. Therefore, the applicant argues it is required to give effect to
the provisions of the main agreement of the MEIBC by virtue of its
membership thereof. The applicant is bound by the provisions of the
agreement and so are its employees, (the second and further respondents,
insofar as the agreement relates to wages and substantive conditions of
employment).
6.The applicant argues that whereas the first respondent is not a party to
the main agreement, the main agreement is extended by the Minister of
Labour from time to time. The main agreement governs the issues upon
which the Union seeks to engage the strike action today.
7.According to the founding affidavit the main agreement was extended by the
Minister to all nonparties in terms of notice no 941 published in
Government Gazette no 20330 on 6 August 1999 for the period 16 August to
30 June 2001 which is the period in respect of the dispute between the
parties. That agreement has lapsed.
8.A further agreement was concluded, again under the auspices of MEIBC for
the period 1 July 2001 to 30 June 2002 in respect of wages and in
the period 1 July 2001 to 30 June 2002 in respect of wages and in
respect of all other issues governed by the agreement. The agreement
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was concluded and signed on 1 August 2001.
9.Previous disputes were referred by the Union, other interdicts were sought,
further demands were made.
10.The applicant pointed out to the Union that in terms of section 37 of the
Main Agreement, the Bargaining Council was the sole forum for
negotiating matters contained in the main agreement. For example wages,
severance pay and other conditions of employment.
11.The Union argues that the applicant generalises too much. The union was
interested in specific demands to met. I was referred to many examples
in the Main Agreement, which the applicant argues, demonstrated were
issues to strike over.
12.On 17 November 2000 the Union referred the dispute about the applicant’s
refusal to bargain on issues listed in a letter from the Union to the
applicant, stating its demands. The dispute was conciliated under the
auspices of the MEIBC on 13 February 2001. At this meeting the
applicant continued with its stance that it was not obliged to bargain
about demands made by the Union as both issues related to wages and
substantive conditions of employment which were governed by the main
agreement. The dispute remained unresolved. An advisory award was
obtained. The certificate of outcome of dispute stated:
"I certify that the dispute between NEWU on behalf of members and Profal (Pty)
Limited, which was referred for conciliation on 17 November 2000, concerning the
applicants' refusal to bargain on matters of interest, remains unresolved at
13 February 2001.
Comments: Alleged refusal to bargain."
13.The Union then brought urgent interdict proceedings in this court against
the MEIBC, the concilliator, the applicant and SEIFSA.
14.The application was dismissed due to a lack of urgency. The parties filed
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papers in the ordinary cause and the matter became before GERING AJ who
handed down a judgment on 29 August 2001. The MEIBC was directed to
appoint a concilliator, (other than the concilliator that presided over
the previous proceedings), to furnish an advisory award within 14 days
after the conclusion of the proceedings.
15.In its founding affidavit the applicant directed me to a passage in the
judgment of GERING AJ at paragraph 26:
"There is in my view another dispute in addition to the dispute that was referred
to conciliation between the Union and the employer, namely in regard to the
proper interpretation of the collective agreement. The Union contends that the
correct agreement does not cover bargaining on the matter set out in the letter of
15 November, whereas the employers' contention is that under section 37 of the
agreement the bargaining council is the sole forum for negotiating matters
contained in the main agreement, that is wages, severance pay and other
conditions of employment."
And then in paragraph 31:
"Whether the Union is correct or whether the employer is correct in regard to their
respective contentions, involves the dispute as to the interpretation of the
collective agreement and in my view it should be resolved in accordance with the
process envisaged by section 24 of the Act. That, however, is not the dispute that
has been referred in terms the dispute resolution agreement which is binding on
the parties. If one of the parties wishes to refer the dispute as to the
interpretation of the collective agreement, that party must take the necessary
steps as set out in the collective agreement. It is not a matter on which it would
be proper for this court to give a decision or express a view."
15. The time spent during Mr. Maluleke’s argument to demonstrate, why the Main
Agreement covered the demands of the Union illustrated that the decision in
Agreement covered the demands of the Union illustrated that the decision in
respect thereof was not capable of being made without reference to the Main
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Agreement.
16.The dispute has been referred to the relevant Council and before that
dispute is resolved, the applicants may not strike over those demands.
The issue relates to the interpretation of the Main Agreement and
therefore the matter must take its normal course in terms of section 24
of the Act.
17.The applicant has established that the matter is urgent and that it will
suffer irreparable harm if this court does not come to its assistance.
It has already, as demonstrated above, shown that it has a clear right.
18.Therefore, in the circumstances I make the following order:
1. The respondents are interdicted from calling for, engaging or
participating in industrial action, pending the determination of the
dispute between the applicant and the first respondent concerning the
interpretation and application on the main agreement of the Metal and
Engineering Industries Bargaining Council, the MEIBC, whether the first
respondent can negotiate or bargain on matters at plant level which are
governed by the main agreement of the MEIBC.
2. The first respondent is directed to take all steps necessary to restrain
its members from creating or participating in any industrial action,
pending the determination of the dispute referred to in the above
paragraph.
3. The respondents are to pay the costs of the application jointly and
severally. In this regard I may mention that I heard no argument on the
question of costs and the applicant had asked for a cost order on a
scale as between attorney and client.
19.In the circumstances the parties are entering into a process at the CCMA
regarding a dispute between them and may have an ongoing relationship.
I do not deem it appropriate to grant the cost order on a punitive
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scale.
________________
E. Revelas