International Ferro Metals (SA) (Pty) Ltd v National Union of Metalworkers of South Africa and Others (J2649/14) [2014] ZALCJHB 482 (5 December 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case no: J2649/14

In the matter between:

INTERNATIONAL FERRO METALS (SA) (PTY) LTD.....................................................Applicant

And

NATIONAL UNION OF METALWORKERS OF

SOUTH AFRICA..........................................................................................................First Respondent

EMPLOYEES LISTED IN

ANNEXURE ‘A’......................................................................................Second–Further Respondents

Heard: 7 November 2014

Delivered on: 5 December 2014

TLHOTLHALEMAJE AJ

Introduction:

[1] On 30 October 2014, the Honourable Molahlehi J had issued an interim order in terms of which inter alia, the strike action engaged in by the First to Further Respondent at the time was declared as unprotected. The Respondents were interdicted and restrained from continuing with the unlawful and unprotected strike, pending the extension of the rule nisi and/or final order on 31 October 2014. On 31 October 2014, the rule was extended to 7 November 2014, with the individual employees being ordered to return to work by 14h00 on 31 October 2014. The Respondents were ordered to deliver the answering affidavit, if any by 3 November 2014, with the applicant being afforded an opportunity to deliver its replying affidavit by 5 November 2014.

[2] As on the return date being 7 November 2014, the Respondents had not filed an answering affidavit, and had merely advised the Court that the strike notice had been withdrawn. At the commencement of the proceedings, Mr. Cartwright had further advised the Court that in view of the strike notice having been withdrawn, there was nothing before the court to confirm, as the basis of the dispute no longer exists. The Applicant’s contention however in view of the nature of the dispute that led to the urgent application contended that the rule nisi issued on 30 October 2014 ought to be confirmed, and further sought an order of costs.

Brief background:

[3] NUMSA and the applicant have a recognition agreement entered into since June 2013. Part of that agreement was that should NUMSA no longer hold 50% membership of the applicant’s workforce, it could no longer demand the bargaining rights afforded to it in terms of that agreement. At as the time of the dispute, NUMSA no longer held 50% membership. It had nevertheless forwarded a list of 27 demands comprising of wages and other substantive issues to the applicant on 25 April 2014, flowing from which several meetings were held. The negotiations collapsed and on 2 September 2014, despite a dispute resolution procedure provided in the recognition agreement, NUMSA had referred a dispute to the CCMA.

[4] A conciliation meeting was held on 2 and 23 October 2014. The focus point in the conciliation process appeared to be the issue surrounding the harmonisation of salaries, which the conciliating commissioner had indicated pertained to a rights dispute that needed to be referred for adjudication. The Commissioner had also advised the parties to engage in a facilitation process to improve on their relationship. According to the applicant, the parties had agreed with the Commissioner’s proposals. Notwithstanding agreement, NUMSA nevertheless demanded a certificate of on-resolution from the Commissioner, insisting that negotiations should be on-going in respect of the issue surrounding the harmonisation of salaries.

[5] The Commissioner had issued the certificate of outcome, and NUMSA had on the Applicant’s version, issued a defective strike notice on 28 October 2014, which notice was further premature as the parties had agreed to a facilitation process. Furthermore, the notice did not set out the demands and the time at which the strike would commence. The process of facilitation had been scheduled to take place under the auspices of the CCMA on dates it had proposed. On 30 October 2014, despite demands to NUMSA to reconsider the notice issued, the latter had insisted that the strike would be proceedings as scheduled.

[6] The Applicant’s contention is that the dispute surrounded the demand in respect of the harmonisation of salaries, and that the true reason for the strike was in relation to the so-called wage disparities and not actual wage demands. In this regard, it was contended that NUMSA attempted to use the referral of a wage dispute as a disguise to force the Applicant to further negotiate in relation to the harmonisation demand.

[7] Following the order of Molahlehi J as above and its extension, NUMSA had on 4 November 2014, advised the Court and the applicant that it had withdrawn the strike notice. The Applicant has since filed a supplementary affidavit indicating inter alia, that it not only seeks confirmation of the rule, but also an order of costs.

[8] The basis of seeking the confirmation of the rule is that as matters stand, the urgent application remains unopposed. Its assertions

leading to the rule being obtained, including oral evidence given before Molahlehi J, and the subsequent events after the rule was obtained calls for the rule to be confirmed, in order to ensure that the Respondent do not embark on a similar ill-fated process in the future. Since further the real nature of the Respondents’ dispute constituted a rights issue and not one of mutual interest, there was no basis for a strike action, and the applicant is concerned that if the rule is not confirmed, the Respondents might issue a similar notice in respect of the same dispute.

Evaluation in respect of confirmation of the rule and issue of costs:

[9] As it was correctly pointed out, the application before the court remains unopposed. The fact that the strike notice was

withdrawn is little comfort for the applicant in view of the issues that led to the strike notice being issued in the first place. On the uncontested version of the Applicant, the issue leading to the strike notice being remains unresolved, and worst still, is not an issue pertaining to mutual interest over which the Respondents can embark on strike action. It therefore follows that nothing prevents the Respondents from issuing a similar notice in the future, moreso in view of the fact that it remains in possession of a certificate of outcome, which remains its bargaining chip. In the circumstances, I am satisfied that the Applicants have made out a case why the rule issued on 30 October 2014 should be confirmed.

The legal principles surrounding costs:

[10] The court has discretion when considering an order of costs. In awarding costs, the court finds guidance from the provisions of section 162 of the Labour Relations Act, which provides that:

“(1) The Labour Court may make an order for the payment of costs, according to the requirements of the law and fairness.”

[11] The aspect of requirement of the law has been interpreted by the courts to imply that costs would ordinarily follow the results. In other words, a successful party would be entitled to costs[1]. The aspect of consideration of fairness on the other hand implies that in the Labour Court, it being a court of equity, costs would not automatically follow an adverse decision[2].

[12] The issue of the exercise of a discretion taking into account considerations of law and fairness involves a consideration of the conduct of the parties during the dispute and in the conduct of litigation. Ultimately, if there were special or exceptional

circumstances justifying a costs order, such as mala fides, unreasonableness and frivolousness then such an order would be justifiable.

[13] In this case, and on the uncontested version of the Applicant, the individual employees ignored a court order to return to work after 30 October 2014 until 2 November 2014. Furthermore, despite being aware of the return date, and the court’s specific order to the Respondents to file a replying affidavit by 3 November 2014, only on 5 November 2014 (when the withdrawal was filed), some two days before the return date was the strike notice withdrawn. In the interim between when the order of 30/31 October 2014 was obtained and the return date, the Applicant not only had to deal with employees who refused to comply with a court order, but also had also to file supplementary affidavits at great costs. Such conduct on the part of the Respondent is clearly mala fide and unreasonable, and the Applicant could have been saved further costs had NUMSA acted sensibly on 31 October 2014 and withdrawn the strike notice then. In these circumstances, and taking into account NUMSA’s conduct as a whole, the Applicant is entitled to a cost order.

Order:

i. The rule nisi issued on 30 October 2014, and further extended on 31 October 2014 is confirmed.

ii. The First Respondent is ordered to pay the costs of this application.

Tlhotlhalemaje AJ

Acting Judge of the Labour Court of South Africa.

___________________________________________________________________

Appearances:

For the Applicant: Adv. L Halgryn SC

Instructed by: Hogan Lovells (South Africa) incorporated as Routledge Modise Inc

For the Respondents: Mr. D Cartwright of David Cartwright Attorneys

[1] See City of Cape Town v SAMWU (2008) 7 BLLR 618 (LC).

[2] See Apollo Tyres (Pty) Ltd (formally Dunlop Tyres Internal (Ladysmith (Pty) Ltd) v NUMSA & Others 2009 JOL 24326 (LC)