Colefax Trading (Pty) Ltd v Justice for All Workers of South Africa and Others (J853/21) [2022] ZALCJHB 39 (7 March 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J853/21

In the matter between:

COLEFAX TRADING (PTY) LTD

Applicant

and

JUSTICE FOR ALL WORKERS OF SOUTH AFRICA First

Respondent

KGAKANTSHO BOSHIELO

Second Respondent

THE EMPLOYEES OF COLEFAX TRADING (PTY) LTD

Third Respondent

Heard:

8 February 2022

Order:

9 February 2022

Reasons /Judgment: This judgment was handed down electronically by circulation to the parties' legal representatives by email. The date and time for hand-down are deemed to be 07 March 2022

JUDGMENT

MAKHURA, AJ

[1] The applicant approached this Court on an urgent basis seeking the following order:

‘2. That the Respondents be interdicted, restrained, and prevented from arranging or participating in any strike action with the employees of the Applicant, against the Applicant, until such time that the relevant Bargaining Council or the CCMA, in terms of the provisions of Section 64 of the Labour Relations Act, has authorized such.

3. Alternatively to prayed 1 above, that the Court issue a rule nisi with a return date to be determined by the Court, that:

3.1 The Respondents be interdicted, restrained, and prevented from arranging or participating in any strike action with the employees of the Applicant, against the Applicant, on which return date the Respondents shall be called on to provide grounds why the order and interdict should not be made a final order.

3.2 That the First and Second Respondents be interdicted, restrained and prevented from entering, restricting, blocking and/or obstructing access of the Applicant’s employees, the Applicant’s clients or any other person from entering or exiting the Applicant’s various business premises and/or doing business with the Applicant at its outlets or premises as mentioned in paragraphs 1.1 – 1.29 of annexure “CT1” to the founding affidavit which accompanies this notice.

3.3 That the First and Second Respondents, or any other person of their/its instruction, be interdicted, restrained, and prevented from intimidating, threatening the lives of, assaulting or attempting to assault and/or causing harm to any of the Applicant’s suppliers, the Applicant’s employees, the Applicant’s client or any other person at or near the Applicant’s premises, in any manner whatsoever.

3.4 That the First and Second Respondents be interdicted and restrained from approaching any of the employees of the Applicant at or on the premises of the Applicant to procure membership, prior to the First Respondent being registered as a trade union with Registrar of Labour Relations...’

[2] In terms of prayer 4, the Applicant sought an order that the South African Police Service (SAPS) be ordered and instructed to remove the First and Second Respondent or any person who, on the instruction of any of them, restricts, blocks, and/or obstructs access to the Applicant’s premises and/or intimidates, threatens and/or assaults and/or attempts to assault any of the Applicant’s

employees, the Applicant’s clients or any other person at or near the Applicant’s premises, in any manner whatsoever, during the period in which the interdict and order apply.

[3] Prayer 5 was for an order that the SAPS be ordered to serve “any order made in this application upon the First and Second Respondents”.

[4] After hearing the parties on 8 February 2022, I indicated that I would hand down the order at 10h00 on 9 February 2022 and that the order would be emailed to the parties’ legal representatives. On 9 February 2022, the order was emailed to the parties in terms of which I dismissed the application with no order as to costs. The Applicant has now requested the reasons for the order, which I do below.

[5] The material facts of the matter appear from the Applicant’s founding papers. On 21 January 2021, the Applicant and Respondents

concluded an agreement, inter alia that (1) the employees would be granted two days off per month with effect from 1 February 2021, (2) upon curfew hours being amended, the employees would be granted two consecutive days per week, two times per month and (3) once Covid-19 lockdown ceases, the employees would be granted two consecutive days off per week, subject to the Applicant’s operational needs.

[6] There are events that took place during 2021 that led to the Applicant launching an application under the above case number on the normal course, which are, for the purpose of this application, irrelevant and immaterial.

[7] On 31 January 2022, the Second Respondent, who was involved in the negotiation and conclusion of the agreement referred to above,

addressed an email to the Applicant stating, amongst others, that the Applicant has unilaterally changed the terms and conditions of the employees’ contract and committed unfair discrimination in that it only decided to grant two days off to employees who were previously transferred from another company and not the employees in these proceedings. The Second Respondent informed the Applicant that it would receive a CCMA referral compelling it to restore the terms and conditions of the employees’ contracts and to give all employees two days off per week. The Applicant was requested to provide an undertaking by 10h00 on 1 February 2022 to restore the terms and conditions of the employment contracts.

[8] The Applicant did not comply with the demand and the Respondents referred a unilateral change to terms and conditions of employment to the Commission for Conciliation, Mediation and Arbitration (CCMA) on 1 February 2022. The referral states that the Applicant provides the employees one day off per month. The Applicant was then informed that the employees would embark on strike action on Friday, 4 February 2022. In its founding affidavit, the Applicant launches no challenge to CCMA referral.

[9] I must state that, as it is apparent from the relief sought by the Applicant as set out above, this Court was not specifically asked to declare the strike unprotected or unlawful. I raised this with the Applicant’s counsel and his argument was that this Court should grant such relief under “further and/or alternative relief”. However, for the Court to do so, this should have been pleaded in the founding affidavit. The Applicant’s counsel referred to some parts of the founding affidavit which he submitted proves that the Applicant pleaded that case. I do not agree. The Applicant’s counsel referred this Court to paragraph 40 of the founding affidavit, which, respectfully, does not assist the Applicant’s case. This paragraph was with reference to an argument developed by the Applicant that the employees could not strike if the issue in dispute is regulated by a Collective Agreement. Nowhere is it pleaded that the time off work issue was regulated by the Collective Agreement. The argument is in any event self-contradictory because if the issue was regulated by the Collective Agreement, why did the parties reach their own agreement separate from the Collective Agreement.

[10] Throughout the affidavit, the Applicant has not asked this Court to declare the strike to be unlawful. Equally, the alternative relief in the form of the rule nisi does not ask the Court to declare the strike to be unlawful. What the notice of motion in fact does is to ask this Court to interdict and restrain the employees from participating in a strike that has not been declared unlawful. That order, if granted, would be untenable as the Court could be preventing employees from participating in a strike that is in fact legal.

[11] To the extent that paragraph 2 of the notice of motion asked for such relief, which was in the form of a final interdict, I find that the Applicant failed to make out a case for such relief, even on an interim basis. The Applicant asked that the Respondents be interdicted, restrained, and prevented from arranging or participating in any strike action “with the employees of the Applicant,” until such time that the relevant bargaining council or the CCMA, in terms of the provisions of Section 64 of the Labour Relations Act[1](LRA) has authorised such. On the formulation of this relief, it suggests that other employees are on strike and that only the Respondents should not participate in it. Further, the CCMA and bargaining council have no powers to authorise strike action. It is common cause that the Respondents have referred a dispute in terms of section 64(4) of the LRA[2] to the CCMA and that the 48-hour period had lapsed by the time the Respondents embarked on a strike action. For the above reasons, the application was bound to fail.

[12] On the other orders, 3.2 to 3.4 and 4 and 5, the Applicant simply failed to make any averments to sustain such relief. There is nothing in the affidavit that suggest prima facie that there were acts of misconduct perpetrated by the Respondents. Based on the above, the application had to fail. The relief sought in terms of these paragraphs is simply far-fetched and in certain instances, intended to limit and encroach on the Second Respondent’s fundamental right to freedom of movement and association without any basis being laid for such an encroachment. Further, every trade union, registered or unregistered, has the right to recruit employees to be their members. To grant an order preventing the First Respondent from recruiting the Applicant’s employees will again be limiting the rights of employees to belong to a trade union of their choice. For the Court to interdict misconduct, a case must be made out in the founding affidavit. No case was pleaded why the SAPS resources should be diverted to removing certain individuals from the private property of the Applicant and serving “any order” in this application. The Applicant’s failure to make the necessary averments to sustain the relief it sought was therefore fatal to its case.

[13] Turning to the main relief sought in terms of prayers 2 and 3.1 of the notice of motion, even if I accept that the Applicant sought a declaratory order that the strike is unlawful and therefore that the Respondents should not participate in it, the application will still fail on the basis that I find that the strike was protected and legal.

[14] The Applicant’s case in these proceedings is that:

14.1 the two days per week was subject to its operational needs and consultation with the employees and therefore the strike would be premature as it was in the process of considering its operational needs and would thereafter consult the employees; and

14.2 the dispute that was referred to the CCMA has not been conciliated and no certificate and/or award has been issued and a period of 30 days has not lapsed.

[15] The first argument above was made in an attempt to interdict and restrain the employees from participating in strike action until such time that the relevant bargaining council or CCMA has “authorized such a strike”. The Applicant’s argument is flawed.

[16] Firstly, the bargaining council and CCMA have no powers to authorise a strike action. They can only certify a dispute to be unresolved in terms of a certificate of outcome. It is trite that a certificate of non-resolution is not binding[3]. Secondly, for a dispute in terms of section 64(4) of the LRA, that is, a dispute about unilateral change to terms and conditions of employment, the employees acquire the right to strike after a referral of that dispute and a failure by the employer to comply with the demand in the referral within 48 hours. Therefore, after the 48-hour period has lapsed, the employees are legally entitled to strike.

[17] In this case, it is not in dispute that the referral to the CCMA was made on 1 February 2022. It is also not in dispute that the Applicant failed to restore the terms and conditions of employment as demanded. The strike commenced on 4 February 2022, which was after a period of 48 hours. Accordingly, the Respondents in this case complied with the procedural steps to embark on a protected strike.

[18] The Applicant did not challenge the referral and the demand. Its only argument was that the two days off per week was subject to its operational need. The referral was clear. The complaint was that the Applicant had changed the terms and conditions of employment relating to the two consecutive days that they received and that this has been changed to one day off. Put differently, the Respondents’ issue was that the employees were no longer getting the two consecutive days off as per the agreement which was implemented until January 2022. As this was not seriously challenged in the papers, I asked the parties during the hearing if the employees get only one day off per month, as stated in the referral. The Applicant disputed this, but the Respondents remained resolute that that was the case.

[19] The issue relating to the Applicant’s operational need is only applicable during the third phase of the agreement, which is when lockdown ceases. On the facts before me, the allegation as contained in the referral that the employees get one day off per month is not challenged or disputed. Even if the employees were given one day off per week and not per month, which was not the case pleaded, that would still fall foul of the agreement reached in January 2021, which is that employees should get two consecutive days off twice per month and then during the third phase, every week.

[20] Based on the above, the application had to fail. About the dispute relating to the refusal to bargain, I do not believe that the Respondents were entitled to strike on this issue. However, since I already found that the Respondents were entitled to strike in respect of the section 64(4) dispute, the refusal to bargain issue is, for the purpose of this application, academic.

[21] In the premises, I made the following order:

Order

1. The application is dismissed.

2. There is no order as to costs.

__________________________

M. Makhura

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Adv. RC Jansen van Vuuren

Instructed by

Barnard Inc.

For the Respondents:

Mr. M Marweshe of Marweshe Attorneys

[1] Act no. 66 of 1995, as amended.

[2] See: section 64(1), (3) and (4), where employees referred a dispute in terms of section 64(4), they do not need to wait for the certificate of outcome or for 30 days to lapse before they embark on a protected strike action. If the employer fails to restore the terms and conditions within 48 of the referral of the dispute, the employees may legally embark on a strike action.

[3] See: Bombadier Transportation (Pty) Ltd v Mtiya and Others (2010) 31 ILJ 2065 (LC)