Crossroads Distribution (Pty) Ltd v South African Transport and Allied Workers Union and Others (P41/2023) [2023] ZALCPE 17 (10 August 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

Case Number: P41/2023

In the matter between:

CROSSROADS DISTRIBUTION (PTY) LTD Applicant and SOUTH AFRICAN TRANSPORT AND ALLIED WORKERS UNION (SATAWU) First Respondent EMPLOYEES LISTED IN ANNEXURE “A” ATTACHED TO THE NOTICE OF MOTION Second and Further Respondents

Heard: 26 July 2023

Delivered: This judgment was handed down electronically by circulation to the applicant’s and the respondent’s legal representatives by email, publication on the Labour Court website and release to SAFLII. The date for handing down is deemed to be on 10 August 2023

JUDGMENT

MSIZI, AJ

[1] This is a return day of the rule nisi issued on 28 April 2023, interdicting a strike planned by the employees of the applicant, referred to herein as respondents.

[2] The strike resulted from what the applicant refers to as the rectification of the payment system, it had inadvertently been applied incorrectly over time and was discovered in the second half of 2022.

[3] In terms of clause 6 of the employment agreement between the applicant and the respondents, the working hours are 45 hours per week. In order to work such hours, from time to time, the applicant may determine the shifts and weekend hours for which the respondents will be paid overtime rates, where applicable. This clause is consistent with clause 3(1)(2) of the Main Collective Agreement (Main Agreement) of the National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI) which was concluded between the National Employers’ Association of South Africa (NEASA); South African Transport and Allied Workers Union of South Africa (SATAWU) and the Motor Transport Workers Union (MTWU). The applicant and respondents are affiliated to this NBCRFLI.

[4] On discovering its error, the applicant consulted different trade unions of the affected respondents to explain the oversight and sought a directive from the NBCRFLI to confirm that its corrective measures were in line with the Main Agreement. After a meeting with the NBCRFLI; the unions and the applicant, the former issued a report in which it concluded that:

‘(i) an employer can change the commencement day of the week - thus Saturday being considered an ordinary day is not prohibited by the MCA;

(ii) 72-hour notice must be given to employees for change of commencement day; and

(iii) employees cannot work less than 45 hours or have basic wages reduced by being granted an off day in the week by the employer. Employees cannot get a day off during the week and still be told not to work on Saturday.’

[5] Subsequent to this, the respondents referred a dispute to the NBCRFLI for conciliation, characterising it as one of mutual interest, in that the applicant had unilaterally changed the terms and conditions of employment of the respondents. This culminated in the commissioner’s finding that the respondents had referred a dispute which could be considered a unilateral change in the terms and conditions of employment and thus falls under section 64(4) of the Labour Relations Act[1] (LRA). The commissioner then issued a certificate in terms of section 64(1) of the LRA, as the matter remained unresolved and then directed the first respondent to deliver picketing rules which the commissioner ruled on after the parties could not reach a mutual agreement thereon.

[6] On 23 April 2023, the first respondent issued a strike notice which triggered the urgent application and resulted in the granting of the rule nisi.

[7] The requisites for the granting of a final interdict are that there must be a clear right; actual harm suffered or apprehended and the absence of an alternative remedy[2]

[8] Addressing itself to the requirement of a clear right, the applicant argued that the contemplated strike action is unlawful and thus unprotected for the following reasons:

‘(i) the issue the respondents seek to strike on ought to be dealt with in terms of the dispute resolution process of the NBCRFLI as it ought to be dealt with as an enforcement issue;

(ii) the respondents demand that they be paid overtime for hours worked on a Saturday, a demand that carries a cost. Therefore, it should be adjudicated upon in terms of clause 57 of the Main Agreement and not a strike;

(iii) the NBCRFLI is the exclusive forum for the negotiation and conclusion of the agreement on substance issues between the employers and employer organisations and trade unions;

(iv) there has been no change to the terms and conditions of the employment contract between the applicant and its employees. There is no existing right to be paid overtime on Saturdays.

[9] Given the aforegoing reasons, Ms Andrews for the applicant thus argued that the applicant has established a clear right to the relief sought.

[10] Addressing herself to irreparable harm, if the strike is allowed to proceed, Ms Andrews highlighted, inter alia, the following:

‘(i) the applicant will lose on revenue with a fixed cost at R34 000 per day;

(ii) this loss may in turn result the applicant losing some of its significant clients and possible closure of one of the plants of the applicant in East London. This will adversely reduce the revenue generated by the applicant;

(iii) staff at the applicant’s depot; drivers and about ten of its offices will be impacted negatively;

(iv) the customers in the applicant’s service station network across the Eastern Cape will also be prejudiced and

(v) fuel transport is a specialized business in which one cannot replace one transport with another at short notice thus it will take a long time for the service stations to get their operations running again.’

[11] As for an alternative remedy, the applicant stressed that it made endeavours to resolve the dispute by engaging the respondents,

including having a section 68(2) of the LRA, letter dispatched to the respondent, all in vain.

[12] The parties are not in agreement on the nature of the dispute. The applicant contends that it is a dispute on a matter of mutual interest whereas the respondents contend that it is a dispute regarding a unilateral change in the terms and conditions of employment. They are also in disagreement regarding the purport of the certificate that was issued by the commissioner. The applicant argues that the certificate confirmed that the NBCRFLI had jurisdiction over the dispute whereas the respondents posit that the certificate was to clear the way to the strike.

[13] Clause 57 of the Main Agreement provides for the resolution of disputes relating to the interpretation or application of the Main Agreement. Part 2 of the Agreement in turn deals with the regulation of working hours; pay, including overtime. Clause 57(4) further prohibits calling a strike on any substantive issue whether it is for negotiation or conclusion.

[14] In addition to the above, in terms of section 65(1)(a) and (b) of the LRA, no person may take part in a strike or any conduct in contemplation or furtherance, therefore, if that person is bound by an agreement that requires the issue in dispute to be referred to arbitration. Section 65(3) further provides that subject to a collective agreement, no person may take part in a strike if that collective agreement regulates that dispute.

[15] A perusal of the contract of employment between the applicant and the respondents, confirms that the weekly working hours are 45 hours and that overtime is payable for work that is done in excess of the 45 hours. This is consistent with the terms of the Main Agreement. Therefore, the applicant has no alternative relief.

[16] From the aforegoing, I am satisfied that the applicant has made out a case for the confirmation of the rule nisi. The respondents should pursue the recourse available to them in terms of the Main Agreement and the LRA.

[17] Accordingly, I make an order in the following terms:

Order

17.1 The rule nisi issued on 23 April 2023, is confirmed.

N Msizi

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant:

Ms M Andrews

Instructed by:

Messrs Cliffe Dekker Hofmeyer Inc

For the Respondents:

Ms N Nonkelela

SATAWU

[1] Act 66 of 1995, as amended.

[2] Setlogelo Appellant v Setlogelo Respondent 1914 AD 221 at para 227.