Autopax (Pty) Ltd v South African Transport And Allied Workers Union and Others (J2297/14) [2014] ZALCJHB 374 (2 October 2014)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

J2297/14

In the matter between:

AUTOPAX (PTY) LTD

Applicant

and

SOUTH AFRICAN TRANSPORT AND

ALLIED WORKERS UNION

First Respondent

THE PERSONS LISTED IN ANNXURE A Second to Further Respondents

Date heard: 18 September and 26 September 2014

Delivered: 2 October 2014

Summary: Urgent application in terms of section 64(1)(b) of the LRA

Rabkin-Naicker J

[1] On 18 September 2014, the applicant brought an urgent application before my brother Steenkamp J seeking to obtain interim relief

interdicting an alleged unprotected strike by members of the first respondent. On that day an order by consent was handed down that the application be postponed until 26 September 2014, and that the union and its members agreed and undertook not to embark on a strike until the outcome of this application. Answering and replying papers were filed by 25 September 2014. Given that the parties argued on a full set of papers before me, the matter stands to be decided on the basis that a final interdict is sought.

[2] The application was brought following the referral of a dispute by the union on 16 September 2014 to the South African Road Passenger Bargaining Council (the bargaining council) in respect of an alleged unilateral change to terms and conditions of employment, requiring the applicant to restore the status quo ante. The union issued a strike notice on the 16 September 2014 stating that the non-restoration of terms and conditions of employment would result in its members embarking on strike action. Although the applicant took issue with the referral form to the bargaining council, claiming it was not filled in correctly, this was not pursued in argument. In any event the referral was in substantial compliance with requirements.

[3] The applicant operates a passenger bus service to various destinations in all the nine provinces. It employs approximately 1100

employees, including bus stewards on its luxury fleet. The dispute in question relates to bus stewards who number approximately 76 and all of whom fall within the bargaining unit of the Main Collective Agreement to which the applicant and first respondent are parties.

[4] The applicant alleges that it is in a loss-making situation, and one of the expensive areas identified by it, is its cost structure,

including the cost of employment. Of particular import is the cost of overtime payments to employees. As a result, the applicant is seeking to implement measures to reduce costs, including labour costs. It avers that one of its challenges is the unproductive use of scheduled time by employees such as the bus stewards. This it submits is because they were previously scheduled for long shifts, even though they actually only worked for short periods during such shifts. As a result of being paid on the basis of scheduled hours, and not hours necessarily worked, such employees quickly reached the 195 hours threshold contained in the Main Collective Agreement, resulting in the accumulation of overtime.

[5] Until September 2014, the bus stewards worked as follows:

5.1 They were scheduled to work the full hours that the trip would take and paid for such hours. A trip from Cape Town to Pretoria, for example takes 23 hours and the bus stewards would be scheduled for the full 23 hours;

5.2 For payment purposes, the total hours worked for the month would be added up, and the steward would be paid overtime for hours in excess of 195 averaged hours per month. The stewards were granted rest periods after each trip;

5.3 The new "shift roster”, now introduced would work as follows for the trip from Cape Town to Pretoria:

5.3.1 Bus stewards would book on at 14h 40 at the Cape Town depot, which allows for a 30 min pre-trip inspection, travel time from the depot to the bus station of 30 min and the loading time of 20 min. The bus departs Cape Town at 16h00 and the bus stewards would be booked on until 17h00, just after Paarl, at which point they would be booked off until 18h30. They would then be booked on at 18h30 just before Touws River and booked off again at 20h00, just after Laingsburg. They would book on again at 22h00, just before Beaufort West and book off at 23h30 just before the Three Sisters. They then book on at 1.30 just before Colesburg and both off at 3:00, just before Bloemfontein and book on at 4.00 and book off at 5.10, with a scheduled arrival time in Pretoria of 10h45.

[6] The overall effect of the above "shift arrangement" according to the applicant is that each bus steward would be on duty for an effective 7 hours and 30 minutes of “ordinary working hours”. The stewards are responsible for looking after the comfort and safety of passengers while en route to their destinations; making announcements during the trip and rendering such assistance as passengers may require. Along with the new arrangements that led to the strike declaration are that certain duties the stewards used to have, are now done by the bus drivers.

[7] It is the applicant's case that the changes in the "scheduling and rostering system" have not changed any term or condition of employment for bus stewards in that they are and remain rotational shift workers; are paid their guaranteed monthly cash salary of R8213-00 (entry-level) per month, excluding benefits. They remain entitled to payment of overtime for hours worked in excess of 195 per month. The removal of certain ancillary duties has not changed their conditions of service as they remain responsible for passenger comfort and safety, which is their core function and responsibility. The ancillary duties involved functions performed before the departure of the bus en route i.e. to issue tickets and collect fares and to collect trip documents such as permits prior to departure and collect and complete passenger lists. Formerly the stewards were also required to collect meal packs or serve meals which are no longer offered.

[8] The founding papers also deal with the situation of technical workers and the applicant avers that the declaration of an intended strike in relation to alleged changes in the terms and conditions of technical workers is imminent. This judgment will not deal with the facts and circumstances of this group as this would clearly be premature, given that on the applicant's own version consultations are still ongoing with this particular group of employees.

[9] The Main Collective Agreement defines "Ordinary Hours of Work" as including:

(a) all periods during which an Employee is obliged to remain at his post in readiness to commence or proceed with his work; (my emphasis) and

(b) all time spent by a bus driver or bus driver – conductor on work connected with the bus all the passengers and all time spent by a driver of a motor vehicle on work connected with the vehicle, or its load, but does not include any meal interval sleep – over period or any time for which a subsistence allowances payable to an employee, if during such period, the employee does no work other than remaining in charge of the vehicle;"

[10] Clause 7 of the collective agreement is headed "Scheduling of Work" and provides as follows:

“7.1 Employers have the right to schedule Employees for all ordinary hours of work in any day and/or week at ordinary rates of pay. (my emphasis)

7.2 Schedules may make provision for waiting/standby periods, to the extent decided by the Employer, which periods may, amongst other duties, include driving, special hires, attendance at training courses or meetings.

7.3 Employers may amend schedules provided that seven days’ notice is given prior to the implementation of such new schedules.”

[11] The applicant relied on its powers in terms of clause 7 to allege that the changes to bus stewards’ work amounted to changing the scheduling and rostering of their duties as provided for in the Main Collective Agreement. It submits that although the employees had indicated their disagreement with the proposed changes, they were consulted with over a lengthy period and as the changes do not affect terms and conditions of employment, the absence of agreement does not entitle the union and its members to strike.

[12] The respondents claim that the motive for the alleged unilateral change to terms and conditions of employment of bus stewards, is to evade paying remuneration to them for their contractual ordinary hours of work, and for doing overtime as provided for in their contracts of employment. Such ordinary hours of work are regulated by the Main Collective Agreement and although the agreement permits the applicant to average ordinary hours of work and overtime of employees in clause 6.2 thereof, this is only permitted where a specific collective agreement is concluded. Such agreement has not been concluded between the parties. The respondents also rely on the contract of employment between bus stewards and the applicant, which provides that their ordinary hours of work are 45 hours per six-day work week, or 180 hours per month for which the bus stewards are contractually entitled to be remunerated, in addition to payment of overtime in the event that they work such overtime.

[13] In its replying papers, applicant submits that: "ordinary working hours by stewards and all other employees within the

bargaining unit are regulated by the terms of the Main Collective Agreement, and not by agreement between the employer and his

employee.” The employment contract between applicant and bus stewards merely prescribes maximum weekly ordinary hours and not scheduling, which are the same as those in the Main Collective Agreement.

Evaluation

[14] Although the argument before me dealt with the question of alleged unilateral changes to terms and conditions of employment, as the Labour Appeal Court has held, it is the court's duty to ascertain the true or real issue in dispute and the characterization of a dispute by a party is not necessarily conclusive.[1] The importance of doing this lies in s 65 of the LRA which provides that no person may take part in a strike if 'the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of this Act . . .'. The phrase 'issue in dispute' is, in relation to a strike, defined as 'the demand, the grievance, or dispute that forms the subject matter of the strike'. [2]

[15] In substance, I find that this dispute is not one that can be characterized as a unilateral change to terms and conditions of employment. Neither is the dispute one that requires the court to consider whether the changes in question are in essence a change in work practice. In my judgment, the substance of the dispute between the parties is the correct interpretation to be given to the definition of ‘normal working hours’ in the Main Collective Agreement. In other words is the phrase to be read to exclude the times when a steward is on the bus, but “booked off”, for specific periods. The said interpretation falls to be dealt with under section 24 of the LRA.

[16] In these circumstances, the union and its members have a right to refer the matter to arbitration and the application to interdict the strike must succeed. In the circumstances, and taking into account the ongoing relationship between the parties, I make the following order:

Order:

i. A strike pursuant to the notice issued by the first respondent on 16 September 2014 in terms of section 64(1)(b) of the LRA is declared to be prohibited and unprotected in terms of the LRA;

ii. There is no order as to costs.

_________________________________

H. Rabkin-Naicker

Judge of the Labour Court of South Africa

Appearances:

Applicant:

Mr P Maserumule of Maserumule Inc

First Respondent: Mr M Baloyi of M.M. Baloyi Attorneys

[1] Ceramic Industries Ltd t/a Betta Sanitaryware v National Construction Building & Allied Workers Union & others (2) (1997) 18 ILJ 671 (LAC); Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union & others (1) (1998) 19 ILJ 260 (LAC);

[2] Coin Security Group (Pty) Ltd v Adams & others (2000) 21 ILJ 924 (LAC) at para 16