Enforce Guarding v National Security (D664/2001) [2001] ZALC 79; [2001] 10 BLLR 1122 (LC); (2001) 22 ILJ 2457 (LC) (30 May 2001)

Enforce Guarding v National Security (D664/2001) [2001] ZALC 79; [2001] 10 BLLR 1122 (LC); (2001) 22 ILJ 2457 (LC) (30 May 2001)

The court found that the demand for a 60 hour week, comprising 50 hours ordinary time and 10 hours overtime, was not a right conferred by the collective agreement or the BCEA. Clause 7 of the agreement only set the maximum permissible overtime, not a guaranteed entitlement. Any overtime less than the maximum is subject to negotiation. The dispute is therefore one of mutual interest and not prohibited by the collective agreement. The constitution of the bargaining council does not prohibit the strike, as the council is not yet established and the employer did not follow the prescribed procedures. The application for an interdict is refused.

Citation
[2001] ZALC 79
Parties
Applicant: Enforce Guarding; Respondent: National Security
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
30 May 2001
Case Number
D664/2001
Procedural Posture
Urgent Application / Application for Confirmation of Interim Interdict
Outcome
Application for interdict refused; no order as to costs.
Judges
Pillay
Legal Topics
Collective Agreements, Strike Prohibition, Overtime Entitlement, Bargaining Council Constitution
Labour Law Civil Procedure Collective Agreements Strike Prohibition Overtime Entitlement Bargaining Council Constitution

Case Brief

Summary, issues, holding and outcome

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Parties

Enforce Guarding

Applicant

National Security

Respondent

Procedural Posture

Urgent Application / Application for Confirmation of Interim Interdict

Legal Issues

  1. 1 Whether the issue in dispute is covered by a collective agreement under section 65(1)(a) and (b) of the Labour Relations Act.
  2. 2 Whether the strike is prohibited by the terms of the collective agreement or the constitution of the bargaining council.
  3. 3 Whether the employer's unilateral change to terms and conditions of employment without consultation is lawful.

Ratio Decidendi

The court found that the demand for a 60 hour week, comprising 50 hours ordinary time and 10 hours overtime, was not a right conferred by the collective agreement or the BCEA. Clause 7 of the agreement only set the maximum permissible overtime, not a guaranteed entitlement. Any overtime less than the maximum is subject to negotiation. The dispute is therefore one of mutual interest and not prohibited by the collective agreement. The constitution of the bargaining council does not prohibit the strike, as the council is not yet established and the employer did not follow the prescribed procedures. The application for an interdict is refused.

Court Disposition

Application for interdict refused; no order as to costs.

Orders

  • The application for an interdict is refused.
  • There is no order as to costs.