South African National Accreditation Systems (SANAS) v National Educational, Health and Allied Workers Union (NEHAWU) and Others (J1369/2018) [2021] ZALCJHB 5 (17 February 2021)

IN THE LABOUR COURT OF SOUTH AFRICA

Held at Johannesburg

Case No: J 1369/2018

Of Interest to Other Judges

In the matter between-

SOUTH AFRICAN NATIONAL

ACCREDITATION SYSTEMS (SANAS)

Applicant

and

NATIONAL EDUCATIONAL, HEALTH & ALLIED

WORKERS UNION (NEHAWU)

First Respondent

IVY BALATSE & 36 OTHERS

Second to further Respondents

Date of hearing: 16 February 2021

Judgment delivered: 17 February 2021. This judgment was handed down electronically by circulation to the parties’ representatives

by email.

JUDGMENT

VAN NIEKERK J

[1] The applicant seeks a declaratory order to the effect that consequent on strike action embarked upon by the second to further respondents from 31 July to 8 August 2017, they are not entitled to be paid their normal remuneration for that period. Further, the applicant seeks an order that the second to further respondents be ordered to make payment to the applicant of the remuneration paid to them for that period and that it be permitted, in terms of section 34 (1) (b) of the Basic Conditions of Employment Act (BCEA), to deduct the amounts concerned from the remuneration of each of the second to further

respondents.

[2] These proceedings have their roots in strike action called by the first respondent (the union) from 31 July to 8 August 2017. On the latter date, after negotiation, the union decided to suspend the strike without the underlying dispute having been resolved. The parties concluded a collective agreement, recording the suspension of the strike on a number of conditions. Included in these was an agreement to submit to a mediation process to address, amongst other things, the application of the principle of no work, no pay. An independent mediator was duly appointed and on 24 November 2017, an agreement was reached between the parties. The relevant clauses of the agreement read as follows:

1. The Employer will reimburse the Unions (sic) members an amount equivalent to the deduction made on the employees (sic) salary for the 7 days (sic) strike period, by no later than 11 December 2017….

2. The Parties will enter into a negotiation during the continuation of the facilitation process, in an attempt to settle the terms of the unlawful deduction for the 7-day period that the employees were on strike.

[3] The applicant understood its obligation in terms of clause 1 of the agreement to refund the second to further respondents’ amounts deducted from their remuneration in respect of the period of the strike, in the application of the no work, no pay principle. It is not in dispute that the second to further respondents were paid for the period. It is also not in dispute that the negotiation referred to in clause 2 of the agreement has not yet been concluded; indeed, the union avers that negotiations have not yet commenced. In the applicant’s mind, the ‘terms’ that would be negotiated related to the repayment of the monies reimbursed in terms of clause 1, possibly on a staggered basis, spread over an agreed period.

[5] In these proceedings, the applicant contends that the parties, having been unable to resolve the terms on which a deduction from remuneration would be made, must now revert to the status quo and that it is thus entitled to deduct the full amount of the amounts reimbursed from the remuneration of the second to further

respondents.

[6] The respondents dispute that the applicant is entitled to the relief that it seeks, primarily on the basis that the negotiation process referred to has not been concluded, that the applicant is wrong in stating that the parties have been unable to resolve the terms of the deduction and that the full deduction accordingly stands to be made.

In essence, the contention is that the application is premature and that the parties ought properly to finalise the negotiations

contemplated by the collective agreement before the court is seized of the matter.

[7] When the application was heard, I raised with the parties’ representatives the issue of jurisdiction. It seemed to me that the dispute between the parties is one relating to the application and interpretation of the collective agreement, a dispute that in terms of the provisions of section 24 (5) of the Labour Relations Act (LRA), is required to be resolved through arbitration. While it is correct that ordinarily a matter should stand or fall on its merits and that the court should be reluctant to categorise a dispute in terms different to those in which the dispute is cast in the papers,

in the present instance, the specific relief sought (respectively that the respondents make payment to the applicant of remuneration

paid to them and the applicant be permitted to deduct the amounts concerned), is entirely dependent on the determination sought by the applicant in prayer 1 of the notice of motion. In that prayer, as I have indicated, the applicant seeks a declaratory order that consequent on the strike action referred to, the second to further respondents are not entitled to be paid their normal remuneration for the period concerned. That determination (i.e. whether the second to further respondents are in law required to reimburse the applicant in the event of no agreement being reached in the contemplated negotiation), is not possible without an interpretation of the collective agreement. Mr Snyman, who appeared for the applicant, correctly conceded that the terms of the agreement were silent on the consequences of any failure either to commence negotiations or to conclude any agreement. Further, to the extent that the applicant contends that it is entitled to make the deductions concerned (an entitlement contested by the union), that is manifestly a dispute about the application of the agreement. In short, the nature of the dispute between the parties relates to the interpretation and application of the collective agreement, a matter over which this court has no jurisdiction. The application thus stands to be dismissed.

[8] Insofar as costs are concerned, this court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of the law and fairness. Ordinarily, the court does not make orders for costs in circumstances where collective bargaining partners are engaged in a dispute and where the order may have the potential for prejudicing the relationship between them. This is one of those cases. The parties remain in dispute, and in the circumstances, interests of the law and fairness are best served by each party bearing its own costs.

I make the following order:

1. The application is dismissed.

André van Niekerk

Judge of the Labour Court of South Africa

APPEARANCES

For the applicant: Mr S Snyman, Snyman Attorneys

For the respondents: Mr T Finck, Finck Attorneys