Sneller Verbatim/mc
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J4683/01
2001-10-31
In the matter between
NATIONAL UNION OF MINE WORKERS Applicant
and
IMPALA PLATINUM LIMITED Respondent
________________________________________________________________
J U D G M E N T
________________________________________________________________
REVELAS J:
1.The applicant approached this court for urgent relief interdicting the
respondent from implementing its restructuring strategy of its hostels
and accommodation, pending the referral of a dispute about the
restructuring and the determination of the dispute by the Commission for
Conciliation Mediation and Arbitration ( ΑThe CCMA ≅). The matter has not
yet been referred to the CCMA.
2.The respondent and the applicant had a seminar during September 1998
regarding the restructuring strategy of the hostel and accommodation
services of the respondent. A constitution was drawn up for a hostel
executive committee and a management committee to discuss the issue.
3.On 7 August 2001 a meeting was held where the respondent announced its
intention to restructure the hostels. Another meeting was held on 28
September 2001 where the respondent advised that the restructuring
process would be implemented on 1 October 2001. These are the meetings
that the applicant refers to in its founding affidavit.
4.The applicant then declared a dispute with the respondent about what it
says was the unilateral implementation of the restructuring of the
hostel services. Several meetings were held thereafter about the
implementation which the applicants sought to delay.
5.The applicant also contends that :
the respondent should comply with an agreement which was reached between
the parties on 17 July 1997 regarding the restructuring process.
6.The agreement provides that:
"The parties enter into negotiations on the issue of restructuring prior to the
implementation thereof.
The various branches and/or shaft committees will refer any contemplated
restructuring to the Central Negotiating Forum."
7.The respondents failed to refer the issue of restructuring or the
implementation thereof to the Central Negotiating Forum.
8.No consensus was reached with any of the committees or management and that
any such consent was of no value since those committees did not have the
necessary authority to reach agreements.
9.The first time it heard about the implementation date of the policy, namely
26 October 2001, was when it served its application on the respondent on
24 September 2001. And that is the application in question.
10.During 1999, 200 employees of the respondent were paid severance packages
and transferred to a company to whom the catering function had been out
sourced. A meeting was also held on February 2000 where the respondent
says it reported back on the completion of phase 1 of the restructuring
and gave notice that it intended to move onto the next phase of the
restructuring process.
11.The hostel superintendent gave a presentation at this meeting explaining
what was contemplated. The applicant's representative at the meeting
adopted the position that the respondent was not entitled to proceed
with the restructuring without the consent of the CMC which stance the
respondents did not accept.
12.The respondent in its answering papers contend that on a regular basis
from 1998 until the present time, the respondent had engaged in
continuous discussions with the hostel executive in respect of the
proposed restructuring and the various phases thereof.
13.It had also repeatedly, according to the respondent, discussed the
restructuring with the Services Branch of the applicant and the
applicant's Services Selection Utility Committee.
14.In the respondent's answering affidavit reference was made to a further
meeting held on 22 June 2001 where consensus was reached between the
respondent and the Hostel Executive Committee on proceeding with the
next phase of the restructuring, including the outsourcing of the
maintenance ownership.
15.All that remained to be finalised at the time was agreement on "scope of
works" and that is apparently what the exact nature of the service
provider's obligations were to be.
16.The remaining question had to be referred to the applicant's Services
Branch for further discussion which took place.
17.A meeting was also held on 7 August 2001 with the Services Branch, the
Services Utility Committee and the CMC on implementing the next phase.
At this meeting a further presentation of what was contemplated was also
given. The applicant held the view at the meeting, according to the
minutes, that it regarded the presentation as "information sharing only
minutes, that it regarded the presentation as "information sharing only
as management is well aware of the relevant structure to deal with these
matters". This was not further qualified.
18.According to the respondent the meeting of 7 August was with the Services
Branch Committee. The respondent contends that it discussed the
proposed restructuring both with the relevant committees as well as with
the CMC.
19.The respondent also refers to a further meeting held on 4 September 2001
where the applicant was represented. Notice was given that 43
engineering positions would be affected.
20.On 26 September 2001 the respondent discussed the restructuring with the
Utility Sectional Committee. A further presentation was given and the
applicant was represented and previously on 20 September 2001 the
applicant requested that the meeting of 26 September 2001 be convened,
specifically to discuss the next phase.
21.The next meeting then took place on 28 September 2001 where it is common
cause between the parties that the respondents indicated that the
proposed implementation date was 1 October 2001.
22.According to the respondent, from 7 August onward at all the meetings the
respondent made clear that the proposed restructuring would not give
rise to any compulsory redundancies.
23.On the papers before me there is a dispute of fact as to what was
discussed at the meetings and discussions that were held. I am unable
to accept that the first time the applicant heard of an implementation
date for the restructuring, was on the day the papers had been served on
the respondent. The application would not have been brought if this
were the case. In any event if appears from the applicant's replying
affidavit, paragraph 20.7 that 1 October 2001 was the implementation
date. On its own version there were several discussions thereafter.
24.On the facts of the case it appears that several meetings were indeed held
and that restructuring of hostels had commenced. If I grant an
interdict it would have the effect of suspending that process and
interdict it would have the effect of suspending that process and
restoring the status quo ante, which is not the relief the applicant
seeks in its notice of motion.
25.The applicant argued that the relief it seeks is interim relief in the
sense that it would be granted pending the outcome of the dispute which
intends to refer to the CCMA. This is in fact final relief. In order to
obtain the relief sought by the applicant the applicant must show a
clear right case, even if open to some doubt. A wellgrounded
apprehension of irreparable harm, that the balance of convenience
favours it, and that there is no other satisfactory alternative remedy.
26.Insofar as a clear right is concerned, there is no clear right to refer a
dispute to the CCMA or to compel an employer to negotiate restructuring
according to a particular pattern.
27.No positions were declared redundant. In the founding affidavit no
irreparable harm was demonstrated to warrant the interference with the
implementation process.
28.In my view the balance of convenience does not favour the applicant
either. The CCMA could determine this dispute, but this could take a
very long time as the dispute has not even yet been referred to the
CCMA. The restructuring process of the hostels had begun a relatively
long time ago.
29.The CCMA could very well make a determination even in the respondents'
favour and the respondents would then be in an unenviable position vis
àvis its contractors.
30.There is also no merit in the submission that there is no other
alternative remedy. Section 64(4) of the Labour Relations Act ( ΑThe
Act≅) provides one. The applicant could have argued that this was the
case if no negotiations or meetings were held and that the restructuring
and implementation date thereof was introduced at very short notice.
Factually that has not occurred.
31.It appears that the applicant is under the impression that the respondent
needs the consent of the CMC before it can embark on a process which had
been negotiated for some time. The respondent =s consent is not a
prerequisite to the process. If the parties are not satisfied with the
manner in which the restructuring was implemented, it can refer a
dispute to the CCMA which it has not done at this stage. Such a dispute
could have been referred as far back as February 2000 when the meetings
first began or on 22 June 2001 when the respondent says consensus was
reached between itself and the Hostel Executive Committee. It is
improbable that the respondent would spend time consulting with the
committees if they did not have the necessary authority to reach final
agreements and they actively participated in the process.
32.In my view this application was a last attempt at delaying that process.
Therefore the application must fail.
33.I considered the question of costs and this might be a matter where costs
perhaps should follow the result. But in my view, since the services of
the applicant's members had been outsourced and that in respect of
these employees there is still a process ahead it would not be advisable
to grant costs against the applicant.
34.Therefore I make the following order:
1.The application is dismissed.
________________
E. Revelas