Lesedi Local Municipality v South African Municipal Workers Union obo Members (JR 435/08) [2008] ZALC 205; (2008) 29 ILJ 2780 (LC) (11 March 2008)

IN THE LABOUR COURT OF SOUTHN

AFRICA

HELD AT JOHANNESBURG

In the matter between: Case no JR 435/08

LESEDI LOCAL MUNICIPALITY APPLICANT

And

SOUTH AFRICAN MUNICIPAL RESPONDENT

WORKERS UNION OBO

MEMBERS

JUDGEMENT

_

Molahlehi J

Introduction

[1] The applicant Lesedi Local Municipality seeks an interim order interdicting the proposed strike by the respondents which was intended to commence on 11 March 2008. The application was opposed by the respondent on the basis of the papers filed by the applicant.

[2] The applicant in challenging the planned strike relied on two grounds. The first ground concerns the variation of the certification of outcome of the conciliation by the conciliating Commissioner. The second ground concerns the provisions of the collective bargaining agreement which according to the applicant’s founding affidavit provides that disputes relating to salary adjustment and salary increases are matters that cannot be dealt with at the divisional level.

[3] The applicant abandoned the second point during argument.

Background facts

[4] It is common cause that the respondent referred a salary adjustment and salary dispute to the South African Local Government Bargaining Council (SALGBC) during June 2007. This dispute was a mutual interest dispute and concerned as stated earlier, the adjustment of the salaries of certain employees and an increase for the rest.

[5] The dispute was conciliated on 29 November 2007, and the certificate of outcome was issued promptly. The commissioner indicated in the certificate that the dispute ought to be referred to arbitration.

[6] During February 2008, the respondent addressed a letter to SALGBC wherein it stated the following:

“1. SAMWU obo its members employed by Lesedi Municipality referred a dispute of mutual interest to the Bargaining Council on 18 June 207 and a certificate issued that the dispute remains unresolved.

The commissioner however made a mistake when indicating where the dispute should be referred to instead of ticking a strike/lockout, she ticked the Arbitration column. It is common cause that a dispute of this nature must refer for Strike/ Lockout as the union has requested in both the referral and conciliation.

We were not able to notice the error as the certificate to was issued to after conciliation meeting when the parties where already on their way out. Our members intend to serve the employer with the 48 hours notice of commencement of the strike action.

We therefore request a Bargaining Council to issue a corrected certificate and allow members to proceed with their protected strike action as a matter of urgency. Although the error is negligible given the precise nature of the dispute, we prefer the error to be corrected”

[7] The Commissioner who conciliated the dispute issued another certificate (the second certificate) and indicated that the dispute can be referred to strike or lockout.

[8] The applicant contended that the second certificate was a nullity because the Commissioner varied the first certificate without following due process. The applicant equated the second certificate to a variation or a ruling or an award and in this regard argued that the application for the variation of the certificate was defective as it was not accompanied by a supporting affidavit. The applicant further contended that the commissioner varied the certificate without considering its objection to the variation.

[9] The applicant in its affidavit supporting the objection to the variation contended that the letter of the respondents requesting for the variation did not comply with the provisions of section 144 of the Labour Relations Act 66 of 1995 (LRA) and also rule 31 of the CCMA rules which requires that an application be brought on notice.

[10] The applicant argued that because of failure to comply with the provisions of rule 31, the second certificate was null and void. The other point raised by the applicant is that, it was not afforded a hearing despite having filed its objection with the CCMA.

[11] Having received the second certificate the respondent issued a notice of intention to commence its strike action on the 11 March 2008. The notice reads as follows:

“Attached hereto please find a certificate of outcome clearly indicating that the dispute remains unresolved. We have on 22nd February, 2008 requested the Bargaining Council to correct one, common mistake on it’s although it is not a determining factor in terms of Labour Relations Act.

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