SBV Services (Pty) Limited v Motor Transport Workers' Union of South Africa and Others (J2717/07) [2008] ZALC 71; (2008) 29 ILJ 3059 (LC) (20 May 2008)

Page 44 of 40 CASE NO. J2717/07

Page 44 of 40

CASE NO. J2717/07

IN THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

In the matter between:-

SBV SERVICES (PTY) LIMITED Applicant

and

MOTOR TRANSPORT WORKERS' UNION

OF SOUTH AFRICA First Respondent

EMPLOYEES LISTED IN ANNEXURE "A" Second and

Further Respondents

JUDGMENT

AC BASSON, J

NATURE OF THE APPLICATION

The Applicant, SBV Services (Pty) Ltd, seeks the confirmation of the rule issued on 29 November 2007 in terms of which the Respondents are interdicted from proceeding with a strike. More in particular the Applicant seeks confirmation of paragraphs 2.1, 2.2 and 2.3 of the amended Notice of Motion. These prayers seek orders as follows:

"2.1 Declaring that the First and Second to Further­ Respondents' conduct in inciting, orchestrating and calling upon the Second to Further Respondents to engage in industrial action in support of the demands listed in annexure “B” is unlawful.

2.2 Interdicting and restraining the First and Second to Further Respondents from promoting, encouraging, supporting or participating in any unprotected strike action as aforesaid in pursuit of the disputes referred to in paragraph 2.1 above.

2.3 Ordering the Second to Further Respondents to work normally.

The demand underlying the strike which the Applicant seeks to have declared unlawful and interdicted (as referred to in prayers 2.1 and 2.2 quoted above) is contained in a letter from the First Respondent union dated 28 November 2007 (hereinafter referred to as “the November strike notice” to distinguish it from an earlier strike notice which will be referred to as “the August strike notice”). The demand in the November strike notice is articulated as follows:

"The workers want to have a meal interval in a safe environment where there are rest facilities and security and they are not expected to perform any work of any nature including guarding of cash, equipment and valuables.”

PARTIES

The First Respondent is the Motor Transport Workers Union (MTWU), a registered trade union. The Second to Further Respondents are all employees of the Applicant and are employed as cash in transit protection officers. These individuals are listed in Annexure “A” attached to the Notice of Motion.

BRIEF BACKGROUND FACTS

The Applicant operates a cash in transit division in the main provinces of South Africa, excluding Kwa-Zulu Natal. It transports approximately 95% of the wholesale cash between the South African Reserve Bank and various commercial banks. It replenishes and services approximately 50% of the automatic teller machines (ATM's) in the country. It also transports cash between certain cash centres. The employees are employed as security guards involved in the transportation of cash (CIT) between the Reserve Bank and various commercial banks and also in the replenishment of automatic teller machines (ATMs) maintained by commercial banks.

The Applicant’s employees operate in an extremely dangerous environment and utilise specialised vehicles and highly trained employees for the purpose of transporting cash. The equipment includes specialised vehicles, firearms and bullet-proof vests.

The First Respondent represents a minority of the Applicant's employees. The Applicant estimates its membership at 20%. It has secured no collective bargaining rights. Most- though not all - of Applicant's employees who are members of the MTWU were employed after March 2004. A small number (approximately 20) were employed before that date. The difference is significant, according to the Respondents: Employees with company numbers starting with the digits “200” refer to employees appointed after March 2004. Those employed before that date have company numbers which commence with the digits “100”. From the list of 596 employees, the first nineteen employees have company numbers commencing with the digits 100 which indicates that they were appointed before March 2004. As already pointed out, the majority of the employees (party to this application) were appointed after that date. The significance of that date of appointment, according to the Respondent, lies in the fact that the longer serving employees recruited prior to that stage have different contractual terms in comparison with employees appointed thereafter. The significance of the contractual terms will be discussed hereinbelow. Suffice to point out at this stage that, at the very least, the settlement agreement to which reference will be made hereinbelow cannot apply to those employees employed prior to March 2004 and, at the very least, the settlement agreement cannot preclude these employees from participating in a strike. Both categories of employees are, however, members of the MTWU and are therefore affected by the present application. The Respondents also confirm the fact that the proposed strike action would involve both categories of employees.

Both parties referred in their argument to the employees’ contracts of employment. It was already pointed out that amongst the present Respondents, there are two different categories of employees: Those employed before March 2004 (19 employees) and those employed after March 2004 (the remainder of the employees). Clause 8.3 of the contracts of employment of those employees who were employed after March 2004 reads as follows:

"Employees are granted an unpaid meal interval of one (1) hour after five continuous hours of work. Meal intervals are in addition to the required 45 normal working hours per week and are not included when the 45 hours are calculated. If the company's operational requirements necessitate that the employee continue working during a meal interval, or that the employee be available for work during a meal interval, the employee will qualify for an hour's additional payment calculated at ordinary time. "

It is clear from the contact of employment that employees are entitled to take a meal break. Clause 8.4 of the same contract deals with the issue of overtime pay:

''…Work performed during meal interval is in addition to the 45 normal working hours per week and is not taken into account when employees' overtime entitlement is calculated."

It appears from the aforegoing that work performed during meal intervals would not be remunerated at overtime rate (which is at a rate of one and a half times the ordinary rate) but at the ordinary rate.

On 11 January 2007 the employer and another trade union - SASBO - reached an agreement concerning wages and terms and conditions of employment. SASBO is the largest representative union and represents approximately one third of the applicant's employees. In terms of the SASBO agreement the Applicant agreed to reduce the number of hours of ordinary working time to 45 hours in total, including a meal interval. Thereafter, the employee earned overtime. The affect of the agreement was to reduce the amount of working time for an employee working through his meal interval from 50 hours of ordinary working time per week to 45 hours per week. Under the previous arrangement if an employee only worked 50 hours in the week all the time worked would be at the ordinary working time rate; under the SASBO agreement, 45 hours would be at the ordinary rate and 5 hours at the overtime rate. This is, according to the Applicant, clearly an improvement to the terms and conditions of employment as set out in the contract of employment referred to above. The relevant clause of the agreement (with SASBO) provides that:

” as operational demands require of most CIT and ATM staff to work during their meal interval. Work performed during the meal interval is part and parcel of the ordinary working time CIT and ATM staff. No additional payment will therefore be made to CIT and ATM staff who are required to perform work during their meal interval.”

This agreement further provides for overtime in the following terms:

"CIT-and ATM Staff

Overtime will be paid for all work performed in excess of 45 ordinary hours per week, meal intervals included. Work performed during the meal interval does not attract additional payment and is therefore included when the 45 ordinary hours per week is determined.”

This agreement concluded with SASBO was extended to all employees including members of the First Respondent.

The August 2007 strike notice

On 2 April 2007 the First Respondent referred a dispute to the Bargaining Council which has jurisdiction over the CIT industry (the National Bargaining Council for the Road Freight Industry (“the NBCRFI” or “the Council”)). The dispute was termed a unilateral change to the terms and conditions of employment.

On 31 July 2007 the Bargaining Council issued a certificate of non-resolution of the dispute. Nearly a month later (on 28 August 2007), the First Respondent issued a strike notice notifying the Applicant that it intended to commence with industrial action on 30 August 2007 (hereinafter referred to as “the August strike notice”). The First Respondent identified the 5 hours per week which constituted the meal interval and stated that the demand was that these 5 hours be paid at the overtime rate of one and a half times the ordinary rate and be shown separately on salary advice slips as a meal allowance. In respect of this strike notice, the Respondents argued (and I will return to this argument in more detail hereinbelow) that it is important to note that it concerned only with the issue of how workers were to be remunerated when they worked during what should have been their lunch breaks. The Respondents are adamant that this strike notice did not concern the issue whether workers would be allowed to take lunch breaks (rather than working through their lunch breaks and being paid for such work), or, if they were to take a lunch break, under what conditions this should take place. The strike threatened in August was, according to the Respondents, in respect of remuneration issues only.

The settlement agreement

On 29 August 2007 (merely a day after the August 2007 strike notice) the Applicant and the First Respondent reached a settlement agreement. It is important to note that this agreement was reached immediately prior to the commencement of the intended strike referred in respect of the August strike notice and to which reference is made in the preceding paragraphs. In terms of the settlement agreement it was agreed that the Applicant with immediate effect -

" ... undertakes to maintain the status quo [for meal intervals for all CIT staff (who are members of MTWU)] until a new agreement is reached with the MTWU or until an award or ruling is made by a competent body that relates to the payment of meal intervals in the CIT industry.

Status quo in this context means the meal interval arrangements of staff that applied until 31 January 2007, as reflected in staffs contracts of employment." (sic)

(The meaning and effect of this agreement forms the crux of the present application and will be analysed in more detail hereinbelow.)

On 3 and 4 September 2007 the company and the Union met to discuss the meal interval arrangements for their members. In a letter from the Applicant dated 4 September 2007, the Applicant stated that First Respondent’s members would be paid for working through what should be their meal intervals "at normal rates and that overtime would be paid once the ordinary working hours have been worked and after meal intervals have been allocated, i.e after 50 hours at work for the week (45 ordinary working hours plus 5 meal intervals)."

According to the Applicant no new agreement was concluded between the parties which effectively meant that the settlement agreement of 29 August 2007 remained in force. According to the Applicant this further meant that the MTWU employees were worse off than their SASBO counterparts. If each employee worked 50 hours a week, including meal intervals, the SASBO member earned, according to the Applicant, overtime for 5 of those hours, while the First Respondent’s members earned only the ordinary wage (which is in accordance with the contract of employment – see paragraph [8] supra).

Letter of 4 September 2007

The letter dated 4 September 2007 from the First Respondents effectively kick-started the present dispute. In terms of this letter, the First Respondent informed the Applicant that:

“… our members will be taking one hour lunch break every day after completion of 5 hours work in terms of the law.”

From this letter is thus appears that whereas the First Respondent’s members were previously willing to work during their lunch hours instead of taking a lunch break, they were no longer prepared to do so. Effectively members of the First Respondent elected to insist on taking a lunch break without remuneration.

Letter of 5 September: Conditions in respect of lunch breaks

In a letter dated 5 September 2007, the Applicant advised the First Respondent that it would allow the First Respondent’s members to avail themselves of a meal interval (albeit on an unpaid basis) if they wished to do so. However, certain conditions were imposed upon employees who avail themselves of the (unpaid) meal interval which are, according to the Applicant, necessary in order to avoid compromising the safety of the crew, vehicle and contents. This gist of this letter reads as follows:

"2 However, it must be noted that the safety of the crew in the vehicle cannot be compromised when meal intervals are taken. Therefore, all security and protection measures that were put in place by the company to protect your life must be adhered to at all times.

3 In this regard, it is important that you continue to protect your life and the life of your crew when you avail of [sic] your meal interval by:

●remaining armed;

●wearing your bullet resistant jacket; and

●being vigilant and observant

4 Your management will provide you with specific places where you may stop to take your meal interval. It is important that you avail of [sic] your meal interval at these places as the Tactical Support Units can support you at these places for your protection. Do not under any circumstances deviate from the prescribed routes to avail of [sic] a meal interval. A return to base, if base is not a designated place for your run to take a meal interval, will be regarded as an unauthorised deviation from the prescribed route.

5. In the event where you compromise your safety or the

safety of your crew by not complying with the above requirement, or any of the normal security and protection measures that are there to protect your life ·and the life of your crew, disciplinary action, up to and including dismissal, will be taken against you."

The letter was also accompanied by a set of "Parked off Lunch Hour: Policy and Procedures". This document includes requirements such as the following:

"Only one team member may exit the vehicle at any given time during the parked off lunch hour for biological reasons.”

On 6 September 2007 the Union wrote to the applicant stating that the Union expected the company to assist the employees to exercise their "right" to take their meal intervals and that the company must make the necessary arrangements for the employees to be able to disembark from their vehicles and take their break away from it if they chose to do so.

After these policies or instructions were issued certain employees failed to comply with the procedures. This set in motion a disciplinary process which culminated in a number of employees being dismissed.

The November strike notice

On 25 September 2007 the Union referred a dispute to conciliation. This dispute was described as being about an issue of mutual interest:

" ... the respondent refuses to agree to the manner in which meal intervals are to be taken."

When this dispute was unresolved, the Union issued a strike notice on 28 November 2007 indicating that strike action would begin on 30 November (the November strike notice). The issue in dispute was described as follows:

"The workers want to have a meal interval in a safe environment where there are rest facilities and security and they are not expected to perform any work of any nature including guarding of cash, equipment and valuables."

In short, the demand was that the employees did not have to comply with the company's policies and arrangements concerning meal intervals.

Respondents submission

In brief it was argued on behalf of the Respondents that it is this instruction by the Applicant regulating the places and manner in which a meal interval can be taken and particularly prescribing that throughout their meal intervals, security guards must remain armed and wear their bullet proof jackets and guard the vehicles and their contents, that gave rise to the present dispute. Effectively, so it is argued, these requirements mean that throughout their "meal interval" the guards will have to remain on duty at specific places which are designated and confined to SPV security centres and police stations. By requiring employees to remain inside their vehicles, armed and wearing bullet resistant jackets, it means that employees must continue to guard the vehicles and their contents. On behalf of the Respondents it was further argued that the guards are, as a result of these restrictions precluded from, for example, visiting the shops to buy food or doing their own personal banking and other personal chores. More importantly, this restriction prevents the guards fro) SBV Services (Pty) Limited v Motor Transport Workers' Union of South Africa and Others (J2717/07 ) [2008] ZALC 71; m relaxing in a manner that one would normally associate with, and expect of a proper meal interval particularly in light of the fact that the guards cannot shed their bullet resistant jackets or their fire arms and leave the vehicle. Guards must remain guarding the vehicle and its contents at all times and be exposed to the high levels of danger and the requirement of extreme vigilance expected of a security guard. Furthermore, the fact that guards are instructed that when they take a meal interval, the vehicle should be parked in a secured location, with appropriate arrangements being made for the cash to be guarded in secure lock up facilities or by alternative staff who should be allocated to this task, workers are prevented from taking a true meal interval.

It appears from the papers that what the Respondents are demanding is that they be entitled to take a meal interval and that during the meal interval the vehicle should be parked in a secure location with appropriate arrangements being made for the cash to be guarded in secure lock up facilities so to enable the guards to leave the vehicle and its contents in a secure location. This arrangement would allow the workers to take a proper meal interval and would allow them to leave their vehicles and the contents thereof without them having to provide security on an ongoing basis throughout their lunch interval.

The Respondents further insist that the dispute which gave rise to the proposed strike concerns whether employees are entitled to take off a meal break and what conditions, if any should apply to the manner in which they take their meal breaks. Management (the Applicant) has, according to the Respondents, sought to unilaterally impose conditions which require that the employees, who are supposedly allowed a lunch break must throughout that period remain armed, wear their bullet resistant jackets and effectively continue to guard their vehicles and the cash which they contain. The Respondents submit that these restrictions effectively mean that during their so-called lunch breaks employees are in reality continuing to work as armed security guards. As already pointed out, they are not permitted to relax, take off their weapons and bullet resistant jackets, buy food and attend to other personal matters. They are instead required to be confined to their vehicles and to continue to guard them and the contents thereof. The First Respondent has made various proposals for operational changes to ensure that vehicles and their contents are safeguarded in appropriate premises and by other staff where necessary in order to allow its members to take a proper meal break away from the duties and the dangers of their work. In a letter dated 27 November 2007, the Respondents' attorney responded to this a letter from management in an attempt to record the Respondent’s position:

"3.4 ….. The principle is quite simply that if our client's members are to have a meal interval, they must be released from all duties during such interval. The conditions which you time and again wish to impose upon our client's members' meal intervals are simply an attempt to impose working duties on them in a different form. To expect our client's members to hold the keys/or the vehicles and be responsible for any losses to cash held on the vehicles means they are being required to perform a guarding duty during their meal interval. It is this principle to which our client objects .... It is disquieting that you threaten our client's members with disciplinary action when our client's members are simply seeking to exercise their rights to time of work for meals.”

The Applicant’s submission

The Applicant challenges the lawfulness of the proposed strike on two grounds, namely that:

Firstly, meal interval arrangements are regulated by a collective agreement and in terms of section 65(3)(a)(i) of the Labour Relations Act 66 of 1995 ("the LRA"), the Respondents are precluded from participating in a strike;

meal interval arrangements include payments to be made and this is subject to an agreement that requires the dispute to be referred to arbitration in terms of section 65(1)(b) of the LRA. Accordingly strike action is precluded in terms of this section.

What is the status quo?

The Applicant argued that it is easy to determine what the status quo was until 31 January 2007 if regard is had to the employment agreement between the applicant and its employees (at least in respect of employees employed after March 2004). On behalf of the Applicant it was submitted that regard should be had to the accepted principle in our law that states that, while the terms and conditions of a contract of employment are the subject of negotiation between employer and employer (and their respective representatives), the manner in which an employee will perform his or her work is usually an issue which falls within the discretion of the employer or is part of the managerial prerogative of the employer. This argument was advanced with reference to the following extract by Malcolm Wallace SC in Wallace: Labour and Employment Law, at page 7/22, paragraph 45:

"Once the terms of a particular contract of employment have been ascertained it will be possible to identify those situations which involve a variation of contractual rights and distinguish them from situations falling within the scope of managerial prerogative. The former will require all the elements of a contract while the latter are exercises of discretion supported and sustained by the employee's duty of obedience to lawful orders."

In principle I agree with the sentiments expressed by Wallis. It is trite that an employer has the managerial prerogative to issue reasonable instructions to an employee in respect of the manner in which he or she must perform the work for which he or she was employed. Matters such as working conditions, wages and other work-related issues all fall within the managerial prerogative. However, it is also trite that an employer’s managerial prerogative in respect of matter of mutual interest may, subject to the provisions of the LRA, and more particularly within the confines section 64 and 65 of the LRA, be challenged and limited by resorting to strike action in respect of a matter of mutual interest which has been subjected to a process of orderly collective bargaining. The contract of employment, even though parties are bound by the terms thereof, is not cast in stone and may be amended by an agreement resulting from successful collective bargaining.

In the present case the contract of employment (as it applied at 31 January 2007 in respect of those employees employed after 1 March 2007) provides for an employee's working hours. The contract further provides that the first 45 working hours of each week will be regarded as normal time. Employees are granted an unpaid meal interval of 1 hour after 5 continuous hours of work, but if the company's operational requirements necessitate that the employee continue working during a meal interval then the employee will work that time and be entitled to an additional hour's pay at ordinary rate. Employees who work beyond the ordinary hours are entitled to overtime. I have already referred to these provisions.

In addition to a reference to payment for work performed during lunch hour, the contract also provides for the following in paragraph 18.1:

"The employee undertakes that he/she will at all times:

implement and comply with the company's policies, procedures, rules, regulations as well as the company's disciplinary code, grievance procedure and code of good practice;

carry out and obey all such lawful instructions and tasks as may conform to his/her duties under the agreement and be given or assigned by the company;”

I am in agreement with the Respondent that this is the status quo to which the parties have reverted in terms of the settlement agreement. I am also in agreement with the submission on behalf of the Applicant that the contractual relationship to which the parties have reverted to in terms of the settlement agreement (namely the status quo which existed before 31 January 2007) was that employees undertook to comply with the company's policies, procedures and rules and that they therefore undertook to carry out and obey lawful instructions concerning their work. If regard is had to clause 18.1 of the contract of employment the Applicant is therefore entitled to prescribe to the employees (the individual Respondents) the manner in which they must do their work and that the Applicant can instruct an employee how to do his work and can, for example, instruct an employee how to collect cash, how it must be stored in a vehicle, when cash must be collected and what the employee must wear while executing his duties. Similarly the employer is entitled to set a policy in respect of meal intervals and can dictate, for example, at what time meal intervals were to be taken, where they were to be taken and how employees were to dress during the course of meal intervals. The employer could even determine that no meal intervals at all should be taken and, that operational requirements dictated that employees work during their meal interval. The position as summarized here is not foreign to the principle of managerial prerogative as set out in the aforegoing paragraphs.

It must also be emphasised at the outset that the Applicant accepts the generally principle that employees are entirely at liberty to negotiate changes to their contracts of employment and, if their negotiations are unsuccessful, to strike in support of demands to change their contracts of employment. The Applicant thus accepts that, except in those circumstances where employees are prohibited from striking (as provided for in section 65 of the LRA), employees are thus at liberty to strike in respect of any dispute relating to a matter of mutual interest between employer and employee (see also section 213 of the LRA). What the Applicant in this matter is arguing is that in the present case the employees who are members of the First Respondent have bound themselves (in terms of the settlement agreement) to comply with the contracts of employment as they existed prior to 31 January 2007 and that they are bound by the terms of this contract for a limited duration which is until a new arrangement regarding meal intervals is negotiated or where there is a ruling in this respect. Because the employees are bound by their contracts for the time period contemplated by the settlement agreement, the individual Respondents are consequently also bound to adhere to the clause 18.1 of their contract of employment (quoted in paragraph [3.1] supra) which expressly states that employees (members of the First Respondent who are bound by the settlement agreement) are bound to comply with the policies, procedures and instructions which are issued by their employer in respect of all working arrangements. As this is the effect of the provisions of clause 18.1 of the contract of employment (and the settlement agreement), the individual Respondents are, according to the Applicant, also bound by the meal arrangements as set up by the Applicant (including the policy issued in respect of the meal arrangements and the conditions under which a meal arrangement may be taken). Put simply, this policy (issued by the Applicant and to which the individual Respondents are bound in terms of their contracts of employment – clause 18.1) will remain in force in terms of the settlement agreement until amended as contemplated by the settlement agreement.

In essence it is the Applicant’s contention that the individual Respondents have given up any right to strike until such a time as the provisions of clause 18.1 of the contract are altered either through negotiation or after strike action which they may do in the normal course. However, because there is an existing binding settlement agreement in place, the individual Respondents are precluded to effect or to insist on any changes to clause 18 and the terms of the contract of employment until such time the collective agreement (the settlement agreement) has been terminated in accordance with the provisions of the settlement agreement which, according to the Applicant, expressly states that this will occur either when a new agreement has been reached or when a ruling in regard to meal arrangements has been made. On this basis (namely the fact that there is an existing collective agreement which has not yet been terminated by agreement or by a ruling), any strike in support of the demands put foreward by the Respondents would therefore be unlawful as it would be in breach of section 65(3)(a) of the LRA. In the alternative, it is submitted on behalf of the Applicant that it is clear that the present dispute arises out of and is directly connected to the earlier dispute which was resolved through the conclusion of the settlement agreement.

EVALUATION OF THE MERITS

There are various facts and principles that must be considered in coming to a conclusion in the present matter.

1st Referral to the National Bargaining Council for the Road Freight Industry

There were three referrals relevant to these proceedings to the National Bargaining Council for the Road Freight Industry (hereinafter referred to the “Council”).

The first was submitted on or about 2 April 2007 by the First Respondent when it had referred a dispute in respect of an alleged unilateral change to terms of conditions of employment to the Bargaining Council. It was in respect of this dispute that the August 2007 strike notice was issued. Prior to the commencement of the strike the issue (which the Respondent alleges merely relates to payment) was settled in terms of the settlement agreement.

2nd Referral to the National Bargaining Council for the Road Freight Industry

The second referral was submitted by the First Respondent on 25 September 2007. In terms of this referral a dispute about an issue of mutual interest was referred to the Council. This referral clearly states that the dispute is about the following:

"The respondent [the current applicant] refuses to agree to the manner in which meal intervals are to be taken.”

The result of the conciliation required by the MTWU is stated to be that:

"The company to adhere to the workers' requirements in order for them to take their meal breaks.”

Conciliation was unsuccessful and the commissioner issued a certificate of outcome on 12 November 2007 which certifies that the dispute concerning "matters of mutual interest" remained unresolved as at 12 November 2007. The certificate further certifies that the dispute can now be referred to strike action. The First Respondent issued the November 2007 strike notice pursuant to this certificate.

3rd Referral to the National Bargaining Council for the Road Freight Industry

On 27 November 2007 another dispute was referred to the Council by the Applicant in this matter in terms of which the nature of the dispute is described as one relating to the “interpretation/application of collective agreement. The Applicant (also the Applicant in that referral) requests the Council to determine the payment to be made to employees who are required to work during their meal interval:

“The NBCRFI is accordingly called upon to interpret the Bargaining Council meal interval provisions in conjunction with the provisions of the Basic Conditions of Employment Act, Section 14 regarding the payment of meal intervals in the CIT industry.”

From these referrals it would appear that there were three separate issues that have been the subject of referrals. All three referrals originate from the same issue namely the meal interval. However, although the first two referrals clearly originate from the meal interval issue, the two demands in respect of the meal interval and the desired outcome in respect of the two separate referrals are, in my view, different. (I will refer to the effect of the settlement agreement on possible strike action later in this judgment.)

The first referral by the First Respondent concerns the issue of payment in respect of meal intervals.

The second referral by the First Respondent concerns the conditions under which meal intervals are to be taken.

The third referral by the Applicant in this matter concerns the concerns a further dispute ­namely that of payments to be made by way of

remuneration for workers who do not take meal breaks.

To summarize: What is clear from the first and the second referral is that although they originate from the meal interval issue, the issues in dispute in respect of the first two referrals are different. I will return to this point. Suffice to further point out that this conclusion is supported by the August 2007 and November 2007 strike notices respectively which clearly, in my view, articulate two different disputes in respect of the meal interval.

The strike notices

If regard is had to the strike notice issued on 28 November 2007 it is, in my view, clear that it gave notice of industrial action to commence on 30 November 2007 in respect of the manner in which the individual Respondents may take their unpaid meal interval and that it is a different dispute from the one in respect of which the August 2007 strike notice was issued. It is this intended strike action that the

Applicant in the present matter successfully interdicted after it had brought an urgent application in this court and obtained a rule nisi with interim effect. It is this rule that the Respondents now seek to be discharged. On behalf of the Respondents it was submitted that because this issue (regarding the manner in which a meal interval may be taken) remains in dispute and unresolved, the individual Respondents wish to embark on strike action in pursuance of the demand as articulated in the aforementioned strike notice.

The effect of the settlement agreement on the right to strike

This brings me to the crucial and, in my view, determinative question and that is whether the settlement agreement prohibits strike action in support of a demand (contained in the November 2007 strike notice) in respect of the manner in which the individual Respondents may take their (unpaid) meal interval.

The right to strike is a constitutionally guaranteed fundamental right (see section 23(2)(c)1 of the Constitution of the Republic of South Africa, 1996 (hereinafter “the Constitution”). That the right to strike is of singular importance to all workers in South Africa is accepted. In National Union of Metalworkers of South Africa and Others v Bader Bop (Pty) Ltd and The Minister of Labour 2003 (24) ILJ 305 (CC) the Constitutional Court at paragraph [13] held as follows:

“In s 23, the Constitution recognizes the importance of ensuring fair labour relations. The entrenchment of the right of workers to form and join trade unions and to engage in strike action, as well as the right of trade unions, employers and employer organizations to engage in collective bargaining, illustrates that the Constitution contemplates that collective bargaining between employers and workers is key to a fair industrial relations environment. This case concerns the right to strike. That right is both of historical and contemporaneous significance. In the first place, it is of importance for the dignity of workers who in our constitutional order may not be treated as coerced employees. Secondly, it is through industrial action that workers are able to assert bargaining power in industrial relations. The right to strike is an important component of a successful collective bargaining system. In interpreting the rights in s 23, therefore, the importance of those rights in promoting a fair working environment must be understood. It is also important to comprehend the dynamic nature of the wage-work bargain and the context within which it takes place. Care must be taken to avoid setting in constitutional concrete, principles governing that bargain which may become obsolete or inappropriate as social and economic conditions change.”

The LRA gives effect to the entrenched right to strike in accordance with its stated purpose as it appears from section 1 of the LRA:

“The purpose of this Act is to advance economic development, social justice, labour peace and the democratisation of the workplace by fulfilling the primary objects of this Act, which are -

(a) to give effect to and regulate the fundamental rights conferred by section 27 of the Constitution;

(b) to give effect to obligations incurred by the Republic as a member state of the International Labour Organisation;

(c) to provide a framework within which employees and their trade unions, employers and employers' organisations can

(i) collectively bargain to determine wages, terms and conditions of employment and other matters of mutual interest; and

(ii) formulate industrial policy; and

d) to promote -

(i) orderly collective bargaining;

(ii) collective bargaining at sectoral level;

(iii) employee participation in decision-making in the workplace; and

(iv) the effective resolution of labour disputes.”

The Constitutional Court in the Bader Bop-case confirmed the important principle that unions (and their members) should have the right to strike to enforce collective bargaining demands which demands are usually aimed at ensuring a better labour dispensation to employees in the workplace be it for better wages or better working conditions. The important role of strike action in the collective bargaining process has also been confirmed by the Labour Appeal Court in Bader Bop (Pty) Ltd v National Union Of Metal & Allied Workers Of SA & Others (2002) 23 ILJ 104 (LAC) as follows:

“Subsection (2) of s 36 of the Constitution provides: 'Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights. In this regard it is appropriate to state that the right to strike is regarded as an integral part of the process of collective bargaining. It is often said that, without the right to strike, collective bargaining would become collective begging.”

See also Seady & Thompson in SA Labour Law vol 1 PAA 1 at 304:

“This Act gives effect to the right to strike as guaranteed in the Constitution and required by its international law obligations. Although the right is announced in bold terms, it is hedged by both procedural and substantive limitations. The right to strike, like any other right is not absolute. It must be regulated in a way that takes account of social and economic costs that flow from its exercise. A ban on strikes may reduce collective bargaining to ''collective begging” by employees, but an unrestricted right to strike may well reduce the country to international investment begging in the global economy order. Compliance with the procedural and substantive provisions of the Act is rewarded by an extensive range of protections for strikers and their unions.... Strikers that do not comply with the provisions of the Act, no longer attract any criminal sanction, but strikers and their unions are exposed to dismissal.”

I am in agreement with the submission advanced on behalf of the Respondent that the Applicant in these proceedings has a heavy onus to discharge. The Applicant seeks to establish a limitation of the Respondents’ Constitutional right to strike. Such a limitation will not lightly be inferred where Respondents seek to exercise their constitutionally guaranteed right to strike. Against this background, it is thus of decisive importance to determine whether the settlement agreement reached between the parties has the effect of precluding the Respondents of embarking on a protected strike in support of a demand which relates to the manner in which they may take their (unpaid) meal interval. This is not a conclusion that this Court will lightly arrive at and will only do so if it is clear from the settlement agreement that it was intended by the contracting parties to exclude the right to strike.

It is evident from the papers that the Applicant and Respondent rely on a different approach in respect of the interpretation of the settlement agreement. To recap, the Applicant allege that meal interval arrangements are regulated by a collective agreement and accordingly section 65(3)(a)(i) of the LRA precludes the strike action. Secondly, it is argued that the dispute giving rise to the strike is regulated by the settlement agreement which requires it to be referred to arbitration and accordingly strike action is precluded by section 65(1)(b) of the LRA.

Section 65(3)(a)(i) of the LRA

What is the effect of the settlement agreement dated 29 August 2007? I have pointed out that I am of the view that it is clear from the referral documents and the strike notices that there exist two different disputes in respect of the meal interval. I am also of the view that the settlement agreement supports this conclusion in that it expressly states that the status quo will be maintained until an award or ruling has been made in respect of the payment of meal intervals.

I am also in agreement with the Respondent that it is important, apart from the wording of the settlement agreement, to also consider the context within which the settlement agreement was concluded as this assists in clarifying the true dispute in the present matter (and which is the subject of intended strike action pursuant to the November 2007 strike notice) as well as to clarify what dispute the settlement agreement intended to settle. The settlement agreement was concluded a day after a strike notice was issued which strike notice was issued on 28 August 2007. A perusal of the August strike notice confirms that the demand put foreward dealt with the issue of remuneration to be paid to employees who worked rather than taking a meal break. The demand clearly states that the “Union members want this 5 hours to be paid at the current 1.5 rate and to be shown separately on their salary advise slips as a meal allowance.” The settlement agreement concluded merely a day after this strike notice expressly states that the status quo (see paragraph [14] supra) will be maintained until an award or ruling is made “that relates to the payment of meal intervals in the C.I.T industry”. This arrangement is the one that applied until 31 January 2007 (see in respect of the terms of this contract paragraph [8] supra) and the arrangement relates to the situation where employees work instead of taking a lunch break. It does not appear from the settlement agreement that it deals with the conditions under which employees may take a lunch break nor with the situation where employees take an actual lunch break at no pay. (I will refer hereunder to the Applicant’s argument to the effect that the Respondents are bound by clause 18.1 of the contracts which allows for the issuing of policies (see paragraph [31 supra)). The letter by the Applicant dated 4 September 2007 and particularly paragraph [3] thereof makes it clear that the settlement agreement dealt with the issue of payment for employees who decide to work during the lunch hour. It was only after the conclusion of the settlement agreement and only after the Applicant had issued the policy in respect of the manner or conditions under which the unpaid meal interval may be taken that a dispute about the manner in which the meal interval may be taken arose. I am thus in agreement with the submission on behalf of the Respondent that the settlement agreement settled the earlier dispute namely what would be paid to workers who worked during the lunch hour instead of taking the lunch hour and not the subsequent dispute. The settlement agreement does not, viewed in its proper context and from a reading of the agreement itself, purport to settle or deal with a dispute regarding the manner or the conditions under which the meal interval may be taken. It was this new dispute – namely the conditions under which workers may take an unpaid lunch break – that gave rise to the November 2007 strike notice. It was accordingly submitted obo the Respondents that the Applicant cannot now rely on the settlement agreement, which settled a previous dispute in support of an argument that the strike in respect of the November strike notice was issued is precluded. I am in agreement with this submission. The issue which is currently in

dispute is not the issue that was settled by way of the settlement agreement. In light of the aforegoing it is concluded that section 65(3)(a)(i)2 of the LRA does not find application in the present dispute: Because the settlement agreement does not settle the current issue in dispute there is no basis upon which to conclude that the settlement agreement prohibits strike action in respect of the manner in which the meal interval may be taken.

Although not strictly necessary to decide for purposes of the present application whether or not the individual Respondents are precluded from striking in respect of the issue of payment of meal intervals (regulated in the settlement agreement), I am nonetheless of the view that the settlement agreement does not even preclude the Respondents from engaging in a process of collective bargaining in respect of the payment of meal interval (and over any other condition imposed on the employees in respect of any other aspect relating to the meal interval) and certainly does not preclude the parties, in the event they are unable to reach an agreement, from embarking on strike action). Put differently: Although it is accepted that the settlement agreement restores the status quo including clause 18.1 of the contract of employment, nothing in the settlement precludes or ousts the Respondents’ right to embark on strike action in respect of any matter of mutual interest. The settlement agreement clearly contemplates that the status quo arrangement in respect of remuneration (and for that matter any of the other provision contained in the employment contract) has temporary effect until such a time the parties reach an agreement. The settlement agreement does not contemplate a limitation or exclusion of strike action in the event the parties cannot reach an agreement. Clearly, in my view, such a limitation will, for the reasons set out in the aforegoing paragraphs only be accepted in very limited circumstances for example where the parties expressly insert a clause prohibiting strike action in respect of the issue in dispute. No such clause can be found in the settlement agreement and I am therefore of the view that the settlement agreement, although it restores the status quo, does not prevent the Respondents from resorting to strike action should they be unable to reach an agreement as contemplated in the settlement agreement.

Section 65(1)(b) of the LRA

The only remaining issue to be decided is whether or not the strike is prohibited in terms of section 65(3)(a)(i) of the LRA. This section precludes a strike where "the issue in dispute is one that a party has the right to refer to arbitration or to the Labour Court in terms of this Act." In the Applicant’s founding affidavit it is submitted that the parties have concluded an agreement (apparently with reference to the settlement agreement) "that requires a dispute to be referred to arbitration". I have perused the settlement agreement and I am in agreement with the Respondent that this agreement does not make any provision for a requirement that the dispute regarding remuneration must be referred to arbitration. As already pointed out, it merely provides that the status quo will be maintained until “the new agreement is reached with the MTWU or until an award or ruling is made by a competent body that relates to the payment of meal intervals in the CIT industry." Nowhere in the agreement is it stated that the dispute over remuneration must be referred to arbitration. It also does not state that strike action is precluded nor that strike action is precluded until that arbitration process is completed.

More importantly is the fact (and I have already referred to this point in the aforegoing discussion) that the settlement agreement deals only with the dispute regarding payment for workers who work through what should be a lunch interval and not with the dispute which arose subsequent to the conclusion of the settlement agreement, namely the dispute about whether workers who elect to take unpaid meal breaks should be subjected to restrictive conditions.

CONCLUSION

For the reasons set out in the aforegoing paragraphs it is concluded that there exists no basis for the Applicant's contention that the intended strike in support of the November strike notice would be unlawful or unprotected.

In the event the application is dismissed with costs, including the costs relating to the urgent application when the interim order was granted.

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AC BASSON, J

For the Applicant

AIS Redding SC

Instructed by: Deneys Reitz

For the Respondent

P Kennedy SC

Instructed by: Moodie & Robertson

Date of proceedings: 27 March 2008

Date of judgment: 20 May 2008

1 '(1) Everyone has the right to fair labour practices. (2) Every worker has the right - (a) to form and join a trade union; (b) to participate in the activities and programmes of a trade union; and (c) to strike.”

1 '(1) Everyone has the right to fair labour practices.

(2) Every worker has the right -

(a) to form and join a trade union;

(b) to participate in the activities and programmes of a trade union; and

(c) to strike.”

2 "(3) Subject to a collective agreement, no person may take part in a strike or a lock out or in any conduct in contemplation or furtherance of a strike or lock out-- (a) if that person is bound by: (i) any arbitration award or collective agreement that regulates the issue in dispute ...”

2 "(3) Subject to a collective agreement, no person may take part in a strike or a lock out or in any conduct in contemplation or furtherance of a strike or lock out--

(a) if that person is bound by:

(i) any arbitration award or collective agreement that regulates the issue in dispute ...”