Mukwevho and Others v ECCAWUSA (J3946/98) [1998] ZALC 148 (17 December 1998)

IN

THE LABOUR COURT OF SOUTH AFRICA

HELD

AT JOHANNESBURG

CASE NO. J3946/98

In the matter between:

THOMAS

MUKWEVHO

FIRST APPLICANT

SEBIDIWO

MOLEKANE

SECOND APPLICANT

SIPHO

BUSAKWE

THIRD APPLICANT

WONGA

DADA

FOURTH APPLICANT

PHAHLA

MATLALA

FIFTH APPLICANT

and

ECCAWUSA

RESPONDENT

________________

REASONS FOR

ORDER

[1] On 15 December 1998 the applicants brought an urgent application for the following relief:

"2. Declaring the implementation and unilateral changes of the terms and conditions of employment by the Respondent null and void.

3. Compelling the Respondent to re-emplement the conditions and terms of employment that provides that Applicants shall receive a basic salary, UIF, RAF, PF.

4. Compelling Respondent to pay all Applicants their basic salaries as per original agreement, starting from the month of October 1998 up until the matter (sic) has been dealt with by the CCMA.

5. Prohibiting Respondent from expelling any of the Applicants."

[2] I dismissed the application with costs, and undertook to provide reasons later. These are the reasons.

[3] It is common cause that on 16 November 1998, the applicants referred a dispute concerning a unilateral amendment to their terms and conditions of employment to the CCMA in terms of section 64(4) of the Labour Relations Act 66 of 1995 ("the Act"). The respondent acknowledges that it has indeed changed applicant's terms and conditions of employment, although whether it had done so unilaterally appears to be in dispute. The CCMA has not yet set a date for conciliating the dispute.

[4] The purpose of the present application is to compel the respondent to restore the terms and conditions of employment of the applicants to what they were prior to the alteration. The manner in which the relief sought is cast, and the fact that it is final in form, would mean that, if the orders sought were granted, the status quo ante would be restored in perpetuity.

[5] It was argued on behalf of the respondent that relief should not be granted because no case had been made out for dispensing with the rules of this Court relating to service and process. While I agree that this is so, there are two more fundamental reasons why the relief should be declined.

[6] The applicants are seeking to compel the respondent to restore terms and conditions of employment that, so they allege, had been unilaterally changed. Specific provision is made in the Act for obtaining such relief. It is to be found in section 64(4), which provides:

"Any employee who or any trade union that refers a dispute about a unilateral change to terms and conditions of employment to a council or the Commission in terms of subsection (1)(a) may, in the referral, and for the period referred to in subsection (1)(a) -

(a) require the employer not to implement unilaterally the change to terms and conditions of employment; or

(b) if the employer has already implemented the change unilaterally, require the employer to restore the terms and conditions of employment that applied before the change."

[7] Two requirements must be satisfied before a referring party can rely upon this section. The first is that the employer must be “required” not to implement the change or to restore the changed conditions of employment. This clearly indicates that an express demand to this effect must be communicated to the employer in the document on which the referral is lodged. The second requirement is that the employer cannot be called upon not to implement the change, or to restore the changed terms and conditions, for a period of more than 30 days, unless the parties have agreed to a longer period (see section 64(1)(a)(ii)).

[8] The implications of these provisions is that, if such a demand is made, the employer's obligation to desist from implementing, or to restore, the changed conditions, lapses after the expiry of the period aforementioned. Thereafter, the parties must exercise their right to strike or lock-out.

[9] In the present matter, it was agreed by the parties' representatives that the applicants had not expressly required the respondent to restore the status quo ante in the referral form. I cannot accept that they can remedy this omission by approaching this Court under section 158(1).

[10] Even if they had "required" the respondent to restore their original terms and conditions of employment, however, the fact remains they could only have done so for a period of 30 days after the referral, unless the respondent had agreed to an extension of this period, which it has not. The 30-day period expired on the day after this application was heard. If the orders sought were to be granted, the applicants would be granted relief in excess of that to which they are entitled to under the Act. It clearly not consistent with the objects of the Act that a party should via section 158(1) obtain relief more extensive that provided for in the substantive provisions of the Act.

[11] Finally, by seeking a final order restoring their terms and conditions of employment, the applicants are attempting to obtain via an order of this Court what the Act permits them to achieve only by way of strike action. This, too, is clearly inconsistent with the purposes of the Act.

[12] For the above reasons, the application was dismissed with costs.

_____

GROGAN

A J

ACTING

JUDGE OF THE LABOUR COURT

For the applicant:

For the respondent:

Date of hearing: 15 December 1998

Date of reasons: 17 December 1998