IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
Case no:C248/02
DATE: 8-3-2002
In the matter between
NUMSA & OTHERS First and Further Applicants
and
ANDRAG MACHINERY (PTY) LTD Respondent
JUDGEMENT
WAGLAY, J :
1. This matter comes before me as one of urgency. The first applicant, a
trade union together with its members, who are the second to further
applicants seek an order that the lock-out with which the respondent
persists be declared unlawful.
2. Briefly, the history of the matter is that the respondent proposed
certain changes to the terms and conditions of employment of the
second to further applicants. The parties after holding discussions
reached a deadlock in respect thereto. In response the second to
further applicants embarked on a strike and the respondent reacted
thereto by implementing a lock-out. The condition of the lock-out was
that the applicants accept the new terms and conditions proposed by
the employer as a condition precedent for the uplifting of the lock-out.
Some time later, or at least by 5 March, the applicants came to the
view that the changes sought by the respondent and therefore the
demand made by it as a condition to withdraw the lock-out was in
breach of the Bargaining Council Agreement (BCA), to which
respondent is a party, and therefore unlawful. Applicant then
approached the respondent and advised that its members no longer
wished to continue with the strike and they were tendering their
services. The tender, however, meant that they were not prepared to
accept the condition precedent of the employer which the respondent
required compliance with before it would uplift the lock-out. The
employer therefore rejected the tender of the end to the strike and
continued with the lock-out.
3. The applicants have referred the respondent's refusal to accept their
tender together with the other issues relevant to the strike and lock-
out to the Bargaining Council for resolution. The resolution of the
dispute would require the determination of whether or not the
changes sought by the respondent are allowed in terms of the BCA as
well as whether the tender by the applicants and the continued lock-
out by the respondent was fair and/or lawful. Notwithstanding the
above referral applicants seek that I declare the lock-out unlawful.
4. This lock-out was in response to a strike which applicant called. The
demands made by it are, if I have to accept the ipse dixit of the
applicants, unlawful. However, they are not unlawful per se, they are
unlawful in terms of the BCA and this is a matter which the Bargaining
Council will decide in due course. I do not see why I should declare the
lock-out unlawful at this time. The prejudice that the employees suffer
if the lock-out continues is that they do not get paid. If, in due course
it is found that the demands made by the respondent were unlawful
and that the tender by the applicants was in fact a tender to perform
duties which was in compliance with the Bargaining Council
Agreement and that the demands of the employer was unlawful, then
obviously it could institute an action to claim those salaries as from
the date on which they withdrew the strike action. At this time,
therefore, I do not see any reason to grant the interdict because the
applicants do have alternative remedy in due course. With regard to
costs there is an ongoing relationship between the parties and this
matter will be proceeding further. Having considered all of the above
I am of the view that this is not a matter in which costs should follow
the result.
5. In the circumstances the application is denied. There is no order as to
costs.
WAGLAY, J