Aramex South Africa (Pty) Ltd v SATAWU and Others (J 2265/13) [2013] ZALCJHB 289 (31 October 2013)

7

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

CASE NO J2265/13

In the matter between:

ARAMEX SOUTH AFRICA (PTY) LTD .............................................................APPLICANT

and

SATAWU ...........................................................................................FIRST RESPONDENT

INDIVIDUAL RESPONDENTS ..........................SECOND TO FURTHER RESPONDENTS

Heard: 8 October 2013

Judgment delivered: 8 October 2013

Judgment edited: 31 October 2013

EX-TEMPORE JUDGMENT

­­­­­­­­­­­­VAN NIEKERK J

This is matter J2265/13. It is an urgent application brought yesterday in which the applicant seeks a rule nisi, declaring amongst other things that a strike undertaken by the individual respondents at the applicant’s plant to be unprotected, and declaring that:

“The respondent’s reliance on a certificate of outcome, dated 13 November 2012, is unreasonable given the extensive delay and exercising the right to strike, and interdicting and restraining the individual respondents from participating in any conduct in contemplation or furtherance of the strike action.”

When the matter was called yesterday, the parties agreed to an interim order, in terms of which the matter would be postponed until this afternoon to allow for the filing of answering and replying Affidavits. It was also agreed that pending a ruling in this application, the second to further respondents would be interdicted and restrained from committing any acts of violence or other misconduct, particularly those referred to in paragraphs 2.9 to 2.9.3 of the Notice of Motion. They were directed for that purpose to remain in a demarcated area in which they would be entitled to exercise the right to picket.

The respondents have filed an answering affidavit; the applicant has filed a reply. The crisp issue that has emerged from these papers and from the argument submitted by the parties’ respective representatives is quite simply whether the strike has been called in respect of a dispute concerning the proposed introduction of a new shift commencement time for in-house staff, or whether the strike has been called in support of demands that were referred to conciliation last year and that are a subject of a certificate of outcome, dated 13 November 2012.

Very briefly, the parties were in dispute during the course of last year over the issues of polygraph testing, what has been referred to as the “transport issue”, and the issue of whether overtime would be compulsory. After a conciliation meeting, those matters remained unresolved and it is common cause, as I have indicated, that a certificate to that effect was issued by the Commissioner.

It is not disputed on the papers before me that after the issuing of the certificate in the middle of November last year, almost exactly 11 months ago, the issues of the polygraph testing, transport and overtime has not been pursued by the union.

It is not necessary for me in these proceedings to decide whether or not the union’s demands in respect of these issues have either been abandoned or whether the union has waived its right to strike in regard to those matters. It seems to me that the question to be decided in the present proceedings is a factual question. And that is, what is the issue that gives rise to the current strike, or put another way, what is the true issue in dispute?

The high watermark in the case or the case presented by the respondents in this matter is an averment to reflect that at a meeting held between the parties on 26 September, the union representatives stated that the union had been placed in receipt of a certificate of outcome, which effectively entitled it to issue a notice to commence a strike.

The minutes of the meeting, dated 26 September, which are not contested, record that central to the discussion was the proposed introduction of the new shift commencement system. It is only at the end of that meeting that one Frederick, a union official, is recorded as saying:

“Are we aware of the outstanding disputes and the certificate?”

It is common cause that the dispute regarding the proposed introduction of the new shift commencement time for in-house staff has not been referred to the CCMA for conciliation. And that as a consequence, if that is the true issue in dispute and the matter which gives rise to the strike, well then, the strike by definition is unprotected.

This condition is supported by the fact of there being no steps taken by the union to prosecute its interests in relation to the dispute that is the subject of the certificate, and the fact that the meeting called on 26 September shortly before the issuing of the strike notice in this matter clearly was called for the express purpose of discussing the proposed change in the shift system.

And also, the photographic evidence contained in annexure CSR12 to the Replying Affidavit, which depicts a union member at the entrance to the applicant’s premises with a poster which shall we say in fairly graphic terms exhorts the applicant to:

“Leave our hard-earned salary alone. Stay the fuck away from our In-House Department.”

To the extent that the poster is indicative of the issue giving rise to the dispute, which it clearly must be, well, that is consistent with the minutes of the meeting of the 26th.

In those circumstances, it seems to me and given the test to be applied to the determination of factual disputes in motion procedures, (and here I should mention that what is termed the respondent’s Opposing Affidavit comprises to a large extent in respect of the material issues a series of bare denials), I find that as a fact the strike that is the subject of these proceedings has been called in respect of a dispute concerning the proposed introduction of the new shift commencement time for in-house staff.

That being so, as I have indicated, in the absence of any referral of a dispute concerning that issue to the CCMA, the strike by definition is unprotected and the applicant is entitled to an order to that effect.

In relation to the question of violence, it was averred in the founding papers filed yesterday that certain of the individual respondents were blockading the entrance to the applicant’s Johannesburg premises while wielding cricket bats, hockey sticks and sjamboks, that certain of the individual respondents were preventing the applicant and its contractors from existing the Johannesburg premises of the applicant, and that there was a real threat that the drivers of vehicles would be assaulted.

Again, this is denied in bare terms by the respondents who have annexed photographs to the replying affidavit which it is averred were taken during the course of today. They show the gate unobstructed by the individual respondents or any other party. The Replying Affidavit, on the other hand, contains as annexures, photographs, which again are averred to be taken during the course of today, which clearly show the obstruction of the entrance to the applicant’s premises, presumably by certain of the individual respondents.

It is not the function of this Court today to make any decisions in relation to the contempt or of this Court, and particularly the order granted yesterday, that may be exhibited by the conduct reflected in the photographs, and I express refrained from making any such decision.

However, it is an issue that can appropriately be taken into account in relation to the question of costs. Ordinarily this Court does not follow the rule applied in the civil courts and order almost automatically that costs should follow the result. Section 162 of the Labour Relations Act confers a broad discretion on this Court to make orders for costs according to the requirements of law and fairness. That was interpreted by the old Appellate Division of the Supreme Court of Appeal and more recently by the Labour Appeal Court to require a consideration of all of the relevant facts and circumstances before making any order for costs.

In the present instance, I take into account the following factors. The first is what would appear to me to be mendacious conduct on the part of the union officials. It is clear that having reached a deadlock in respect of the issue of the shift commencement change, the shop stewards decided that they would seek to bypass the statutory dispute resolution procedure and simply rely on a certificate of outcome issued in respect of different disputes some 11 months ago.

That is conduct inconsistent with the fundamental purpose underlying the Labour Relations Act, and that is the promotion of collective bargaining, and particularly the promotion of collective bargaining in good faith. The Labour Relations Act establishes in very clear terms the right to strike, that is a constitutional right recognised by section 23 of the Constitution, but it places limitations on that right consistent with the obligation to bargain in good faith. And that requires at least that any prospect of conciliation be reasonably canvassed and exhausted by the time that the strike weapon is used.

What the respondents have done in the present instance is to undermine that statutory purpose, as I have indicated, in a very serious sense. The whole system of collective bargaining and the exercise of power, which is the subject of a very delicate balance effected by the Labour Relations Act, is undermined. There is nothing to preclude the union from referring any dispute it has regarding the implementation of a different shift commencement time for in-house staff through the statutory process; that is the union’s right. But instead, it chose, as I have said, to take a shortcut and to rely on issues none of which are the subject of any present deadlock between the parties.

The second issue I must necessarily take into account and I have already alluded to this is the acts of the individual respondents, and in particular what seems to be an undisputed act of preventing access to or egress from the applicant’s premises. I have already noted that this is the subject of an order granted yesterday, which appears on the face of it to have been flouted. But the scourge of violence on picket lines and violence during the course of strike action is one that must necessarily be addressed terms by this Court.

Again, it is conduct that is not conducive to proper collective bargaining. It is conduct on the contrary that is destructive of the institution of collective bargaining, and amounts in many circumstances to nothing less than collective thuggery. This Court being the primary institution to uphold the Labour Relations Act and the purposes and principles that underlie that Act must necessarily take a firm view in relation to these matters.

This Court will always protect the right to strike, this Court will always protect the right to picket, provided those rights are exercised peacefully. There is no room in our industrial relations system for the carrying of weapons, for the blockading of premises and for the acts of intimidation which are the subject of averments in these papers.

For those reasons then I make the following order:

It is declared that the strike action by the individual respondent constitutes an unprotected strike.

The individual respondents, that is, the second to further respondents, are interdicted and restrained from participating in any conduct in contemplation or in furtherance of the strike action that is currently underway. And in particular, they are interdicted and restrained from:

Blockading the entrance to the applicant’s premises.

Intimidating any of the applicant’s employees, contractors and members of the public from entering or exiting the applicant’s premises.

Wielding any weapons or traditional weapons.

The respondents are to pay the costs of these proceedings, jointly and severally the one paying the other to be absolved.

ANDRE VAN NIEKERK

JUDGE OF THE LABOUR COURT