Barloworld South Africa (Pty) Ltd v NUMSA and Others (J 1913/2013) [2013] ZALCJHB 257 (26 August 2013)

11

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Reportable

Case no: J 1913 / 2013

In the matter between:

BARLOWORLD SOUTH AFRICA (PTY) LTD .................................................Applicant

and

NUMSA ................................................................................................First Respondent

MABILETSE, WINKIE & OTHERS ..........................Second and Further Respondents

Heard: 26 August 2013

Delivered: 26 August 2013

SNYMAN, AJ

Introduction

[1] This matter came before me as an urgent application brought by the applicant in terms of which the applicant sought to have a proposed strike of the respondents declared to be unprotected and sought to interdict the respondent from embarking upon such strike action. From the outset, it must be recorded that Ms Edmonds, who represented the respondents, stated that she would persist in arguing the matter on the basis of the applicant’s founding affidavit and annexures as it stood.

This judgment is now handed down pursuant to the above order granted.

Background facts

[2] As the respondents did not file any answering affidavit, the background facts in this matter are established by the applicant’s founding affidavit as it stands, on an undisputed basis.

[3] The applicant has an existing collective bargaining relationship with the first respondent. The first respondent is also a majority union in the bargaining unit, having some 56% of the employees as its members.

[4] On 14 November 2011, the applicant and the first respondent concluded a wage agreement. Part of this agreement was that he applicant would enquire into alleged wage discrepancies that the first respondent contended existing in respect of some employees, and would rectify the discrepancies when it was reasonable and practicable. A deadline date of 1 March 2012 was imposed for this.

[5] It would appear that this issue of the wage discrepancies remained unresolved. As a result, the first respondent referred a dispute to the CCMA on 7 May 2012, and this dispute was specifically described as a disclosure of information dispute in which the first respondent sought information about the wage discrepancies. It is specifically recorded that this information related to the wage agreement of 14 November 2011 referred to above and further that the information was needed to enable the first respondent to “deal with” these wage discrepancies.

[6] This dispute was settled at the CCMA, and a written settlement agreement was concluded on 30 July 2012. Specifically in terms of this settlement agreement, it is recorded that the applicant has provided the first respondent with certain information attached to the settlement agreement, and based on this information the first respondent undertook the first respondent undertook to identify the discrepancies and submit a report on these discrepancies to the applicant by 13 August 2012. The applicant then undertook to deal with the discrepancies identified in this report on an individual case by case basis by 30 September 2012. The only further information the applicant had to provide in terms of this settlement agreement was to give the first respondent “feedback”

on “max grade levels” for those grades that did not have a max grade in terms of the information provided to the first

respondent as part of the settlement agreement.

[7] Whatever the reason may have been, it appears that an impasse then again arose as to whether or not the applicant duly complied with this settlement agreement. It is clear form correspondence dated 21 June 2013 attached to the applicant’s founding affidavit that information was exchanged with the first respondent, but there was no a dispute as to whether this information was sufficient. The applicant contended that it had in fact complied with the settlement agreement whilst the first respondent contended it had not.

[8] A further dimension added to the issue was that the applicant contended that some of the information the first respondent wanted was in any event confidential and the applicant would not disclose this information. This information related to hard copies of the paylines and individual salaries of employees.

[9] The applicant further contended that it could only identify three employees that were paid below the minimum rate and the applicant undertook to resolve this by moving these employees to the minimum pay. The applicant also provided an explanation as to why there were certain pay variations, being years of service and job descriptions.

[10] Significantly, there is no evidence before me that the first respondent ever provided a report as contemplated by the settlement agreement of 30 July 2012, by 13 August 2012, which very report was a pre-requisite for the applicant needing to take further action by 30 September 2012.

[11] As it was clear that there was an impasse about whether there was compliance with the settlement agreement or not, the applicant took the initiative and referred a dispute to the CCMA about the interpretation and application of this settlement agreement on or about 20 June 2013.

[12] The first respondent reciprocated by now referring a mutual interest dispute to the CCMA on 20 June 2013. This dispute remained unresolved and a certificate of failure to settle was issued on 25 July 2013, recording that a dispute about a matter of mutual interest remained unresolved and the matter was to proceed to strike action.

[13] A strike notice was issued on 19 August 2013, in terms of which a strike was to start on 22 August 2013. The primary issue in dispute as recorded in this notice was that the union had on “numerous occasions” tried to address the issue of wage discrepancies with the applicant, without success. The demand made in terms of the notice was that the applicant provide the minimum, medium and maximum salaries of each grade from grade 3 to 9, and of some importance, “in line” with the settlement agreement of 30 July 2012.

[14] The strike then started on 22 August 2013 giving rise to this application.

[15] It appears that the applicant’s application was served on the first respondent on the afternoon of 22 August 2013 and filed in Court on 23 August 2013. Considering the application of normal calendar days, this would be in excess of the 48 hours’ notice as prescribed by Section 68(2) of the LRA.1

[16] The LRA does not prescribe in what form the prior written notice must be given. Also attached to the applicant’s founding affidavit is a letter dated 19 August 2013, in which the applicant records its view that the strike is unprotected and in which is it specifically recorded that the letter served as written notice of an application for an interdict to be brought on 26 August 2013. This would also qualify as the pre-requisite prior notice which is clearly far beyond the prescribed time limit.2

[17] I am satisfied that the applicant indeed gave prior written notice to the respondents (through the first respondent) of its intention to apply for an interdict and this matter is properly before me.

The merits of the application

[18] The applicant seeks a final interdict but considering the request by Ms Edmonds for an interim order in case an answering affidavit needs to be filed and am inclined to determine this matter, on the basis of considerations of fairness and to still give the respondents another opportunity to place a version before the Court, to consider this matter on the basis of an interim interdict. In order to obtain this relief, the applicant must show, as was said in National Council of SPCA v Openshaw3: ‘(a) A prima facie right. What is required is proof of facts that establish the existence of a right in terms of substantive law; (b) A well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted; (c) The balance of convenience favours the granting of an interim interdict; (d) The applicant has no other satisfactory remedy.'

[19] I deal firstly with the issue of the prima facie right. In this regard, the factual matrix is simple. At the heart of the matter lies a dispute about wage discrepancies. This means, simply put, that the first respondent is contending that its members are not being paid what they are supposed to be paid. The parties have in fact agreed to resolve this issue by way of a process, and if such discrepancies are found to exist on a case by case basis, the applicant will resolve them. This, in my view, is a clear issue of right, and not one of mutual interest. It is a question of fact to be resolved – does a wage discrepancy exist and if so, what is needed to rectify it. In any event, and as a matter of logic, for a wage discrepancy to exist there must actually be a right to the wage in the first place. A discrepancy can only exist as against an entitlement. The applicant and the union have negotiated wages and conditions of employment for employees in the applicant, which is not at issue here. The issue here is whether, in the light of the agreements concluded between the applicant and the first respondent in this regard, whether the members of the first respondent are getting that which they are entitled to in terms of such agreements. If this is not a rights dispute, then I simply do not know what will be.

[21] The first respondent contends that the applicant has not complied with the settlement agreement, and as such, it cannot rely on it. The first respondent contends that it is entitled to now again refer the issue as one of mutual interest to the CCMA and pursue strike action to resolve it. Ms Edmonds in effect stated that the applicant cannot hide behind its own failure and in essence, the issue of wage discrepancies is a new dispute started afresh as one of mutual interest.

[22] The critical question is thus to consider is thus the issue in dispute between the parties. In TSI Holdings (Pty) Ltd and Others v National Union of Metalworkers of SA and Others4 the Court said the following:

‘….To refer to the purpose of a strike or to a strike in support of a demand is inaccurate in our law. This is because in terms of the definition of a strike in s 213 of the Act a strike is not a refusal to work or an obstruction or retardation of work only but it is such refusal, obstruction or retardation when it is concerted and is resorted to for a purpose contained in the definition of the word 'strike' or, when regard is had to the definition of 'issue in dispute' in s 213, it can also be said that it is such conduct when it is in support of a demand. …. The demand is linked up with the purpose - not of a strike - but of a concerted refusal to work, or the retardation or obstruction of work contemplated in the definition of the word 'strike'.

…. The reference to a demand, a grievance or a dispute in relation to a strike or lock-out in the definition of the phrase 'issue in dispute' confirms the existence of three categories of strikes, namely, those which have a demand, those where there is no demand but there is a grievance and those in which there is a dispute. There can be no doubt that, where there is a concerted refusal to work or a concerted retardation or obstruction of work which is accompanied by a demand, such a demand is the issue in dispute. It is necessary at this stage to determine whether the purpose of the concerted refusal to work in this case ….’

[23] In the light of what is set out above, the parties have differing views on the issue in dispute. At the heart of this matter thus lies a determination of what is the true issue in dispute that forms the subject matter of the strike commenced on 22 August 2013. In Coin Security Group (Pty) Ltd v Adams and Others5 the Court said: 'It is the court's duty to ascertain the true or real issue in dispute (Ceramic Industries Ltd t/a Betta Sanitaryware v National Construction Building Workers Union & others (2) (1997) 18 ILJ 671 (LAC) and Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers' Union & others (1) (1998) 19 ILJ 260 (LAC)). In conducting that enquiry a court looks at the substance of the dispute and not the form in which it is presented (Fidelity at 269G-H; Ceramic at 678C). The characterization of a dispute by a party is not necessarily conclusive (Ceramic at 677H-I; 678A-C). There is in my view no difference in the approach of these decisions. In each case the court was concerned to establish the substance of the dispute’.

[24] Also in determining what exactly must be considered when establishing the true or real issue in dispute, the Court in TSI Holdings said:6

‘The purpose of the concerted refusal to work must be determined in the light of all the conduct of the respondents. This includes what the respondents wrote in the referral of the dispute to conciliation and in the strike notice where these can shed light on such purpose. In the form used for the referral of the dispute to conciliation there is a space where the form required the respondents to state what they desired as an outcome of the conciliation process. ….

What is said in the strike notice is particularly important because it will probably reflect the views of the union or the strikers at the time that they were notifying the employer of the commencement of their strike ….’

[25] I also refer to City of Johannesburg Metropolitan Municipality v SA Municipal Workers Union and Others7 where the Court held: ‘The issue in dispute in relation to a strike (in these proceedings, the demands made by the union) is to be ascertained from the relevant facts. These include the referral form, any relevant correspondence, the negotiations between the parties and the affidavits filed in this court’. I finally refer to SATAWU v Coin Reaction8, where the Court held that the real or true dispute should be determined with reference to all the relevant facts 'including the referral form to conciliation, the correspondence immediately before and after conciliation, the negotiations and discussions which took place at the conciliation and the content of the advisory award and affidavits filed with this court'.

[26] In then considering the referral documents, the correspondence between the parties, the strike notice and what is said in the affidavit by the applicant, I am compelled to conclude that the issue in dispute between the parties in respect of which the strike action was commenced is a dispute relating to the correction of what the first respondent perceived to be wage discrepancies that exist in respect of its members employed in the applicant. As I have set out above, this has to contemplate the existence of a right that is not being adhered to in order to exist. It is at its core a dispute about the compliance with a right or not. Despite the contentions by Ms Edmonds to the contrary, the dispute in essence remains the same. This is further evidenced by the specific reference to the settlement agreement in the strike notice.

[27] In addition, the first respondent can hardly complain about compliance with the settlement agreement if the first respondent itself did not first comply with providing the report it was called upon to provide in the first place, in terms of the settlement agreement.

[28] It is also clear that the second core issue is that of compliance or not with the settlement agreement. The applicant contends it complied, and the first respondent contends it did not. This is an arbitrable dispute9 and as such cannot form the subject matter of protected strike action.10

[29] By way of comparison, I refer to what was said in BMW SA (Pty) Ltd v National Union of Metalworkers of SA on behalf of Members11:

‘The first question to be considered is whether the initial demand and the demand as clarified on 14 September 2011 amount to one and the same thing.’

What is clear from the above is it remains one and the same issue in dispute and demand. The issue in dispute has been settled by the settlement agreement of 30 July 2012. Compliance or not with such settlement agreement is a rights issue to be resolved by arbitration, and not strike action.

[30] The Court in SBV Services (Pty) Ltd v Motor Transport Workers Union of SA and Others12 said:13 ’I am also in agreement with the respondent that it is important, apart from the wording of the settlement agreement, also to consider the context within which the settlement agreement was concluded as this assists in clarifying the true dispute in the present matter (and which is the subject of intended strike action pursuant to the November 2007 strike notice) as well as to clarify what dispute the settlement agreement intended to settle. …..’ I am in agreement with the above reasoning as being directly applicable to the current matter. The fact is that considering the context of the settlement agreement concluded, and what followed thereafter, the issue in dispute remained one and the same, being that of the wage discrepancies raised I the original wage agreement of November 2011. This issue in dispute was resolved and determined by the settlement agreement in the CC<MA on 30 July 2012. The only issue that remains is whether there was compliance or not with this agreement.

[31] The first respondent, in my view, has a further difficulty. This difficulty is found in the fact that what the first respondent in fact wants is information so it can properly pursue its case of the alleged wage discrepancies. This is clear from the strike notice itself. Being a majority union, this issue is again an arbitrable dispute in terms of Section 16 of the LRA and thus strike action is prohibited by virtue of the application of Section 65(1)(c).

[32] I am therefore satisfied that the applicant has the necessary right to the relief sought. The issues of prejudice, balance of convenience and an alternative remedy was not in contention and I accept that all these requirements, in the circumstances of this matter, have been met. The applicant is thus entitled to the interdict it sought.

[33] This then only leaves the issue of costs. It is not necessary to determine this question at this stage, especially considering that the relief sought was interim relief and there is still a continuing relationship between the parties. This issue is best determined on the return date.

[34] It is for all the above reasons that I make the following order:

This application is heard as one of urgency in terms of Rule 8 and the time limits imposed by Rule 7 are hereby and herewith dispensed

with.

A Rule nisi is hereby issued calling upon the respondents to show cause on 1 November 2013 at 10h00 why a final order should not be made in the following terms:

2.1. The strike embarked upon by the second to further respondents on 22 August 2013 in terms of the notice in terms of Section 64(1)(b) of the Labour Relations Act given by the first respondent and dated 19 August 2013, is declared to be an unprotected strike as contemplated by Section 68(1) of the Labour Relations Act.

2.2. The second to further respondents are interdicted and restrained from further embarking upon or continuing any strike action or conduct in contemplation of strike action in respect of the strike declared to be unprotected in terms of paragraph 2.1 above.

2.3. The first respondent is ordered to take all reasonable steps necessary to ensure that the second to further respondents end the strike action embarked upon on 22 August 2013.

The provisions of paragraphs 2.1, 2.2, and 2.3 of the rule nisi shall operate as an interim order with immediate effect, pending the return date of 1 November 2013, and the first respondent and second to further respondents shall be required to immediately adhere to the same and give effect to the same.’

Costs are reserved for determination on the return date.

____________________

Snyman AJ

Acting Judge of the Labour Court

APPEARANCES:

APPLICANT: Adv M Van As

Instructed by Fluxmans Inc

RESPONDENT: Ms R Edmonds of Ruth Edmonds Attorneys

‘

1 These Sections read: ‘(2) The Labour Court may not grant any order in terms of subsection (1) (a) unless 48 hours' notice of the application has been given to the respondent: However, the Court may permit a shorter period of notice if- (a) the applicant has given written notice to the respondent of the applicant's intention to apply for the granting of an order; (b) the respondent has been given a reasonable opportunity to be heard before a decision concerning that application is taken; and (c) the applicant has shown good cause why a period shorter than 48 hours should be permitted.

1

These Sections read: ‘(2) The Labour Court may not grant any order in terms of subsection (1) (a) unless 48 hours' notice of the application has been given to the respondent: However, the Court may permit a shorter period of notice if- (a) the applicant has given written notice to the respondent of the applicant's intention to apply for the granting of an order; (b) the respondent has been given a reasonable opportunity to be heard before a decision concerning that application is taken; and (c) the applicant has shown good cause why a period shorter than 48 hours should be permitted.

2See S v R Mill Services (Pty) Ltd v National Union of Metalworkers of SA and Others (2001) 22 ILJ 1408 (LC) para 12

3[2008] ZASCA 78; 2008 (5) SA 339 (SCA) at 354

4(2006) 27 ILJ 1483 (LAC) para 25 and 27

5(2000) 21 ILJ 924 (LAC) at para 15

6Id at para 29 and 31

7(2009) 30 ILJ 2064 (LC) 2069

8 (2005) 26 ILJ 1507 (LC) at 1512D

8

(2005) 26 ILJ 1507 (LC) at 1512D

9See Section 24

10See Section 65(1)(c)

11 (2012) 33 ILJ 140 (LAC) at para 25 – 26

(2012) 33 ILJ 140 (LAC) at para 25 – 26

12(2008) 29 ILJ 3059 (LC)

13 Id at para 50

13

Id at para 50