South African Transport & Allied Workers Union v Servest Security (Pty) Ltd - A Division of Servest Group and Another (J 806/21) [2021] ZALCJHB 235; [2021] 12 BLLR 1252 (LC); (2022) 43 ILJ 426 (LC) (17 August 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: J 806/21

In the matter between:

SOUTH AFRICAN TRANSPORT & ALLIED

WORKERS UNION Applicant

and

SERVEST SECURITY (PTY) LTD – a division of

SERVEST GROUP First

Respondent

KUNGWINI AMALGAMATED WORKERS

UNION (KAWU) Second

Respondent

Heard: 29 July 2021 (Virtually)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 17 August 2021 at 11:30

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] The applicant, SATAWU is a founding party to the National Bargaining Council for Private Security Sector (NBCPSS). It is also the majority trade union within the private security industry. SATAWU is however a minority union at the first respondent (Servest), where the second respondent (KAWU), enjoys majority representation. Despite all the three parties being parties to the NBCPSS, Servest has since August 2020, concluded a closed shop agreement with KAWU.

[2] As a consequence of the conclusion of the closed shop agreement, SATAWU’s members, who were previously members of KAWU, find themselves in an unenviable position, where they have to pay double subscriptions to both unions. It is as a result of Servest insisting on compliance with the closed shop agreement, that SATAWU has approached this Court on an urgent basis, seeking an order to interdict and restrain Servest from unilaterally making further double deductions from the wages of its members, pending the final determination of Part B of this application. In Part B, which shall be enrolled in the ordinary course, SATAWU seeks an order declaring the closed-shop agreement entered into between Servest and KAWU invalid ab initio. Only Servest has opposed the application before the Court.

Background:

[3] The background to this application is hardly contested, and may be summarised as follows;

3.1 Servest provides private security services and is a division of the Servest Group. Between May 2020 and August 2020, SATAWU recruited a number of employees at the workplace and a significant number had resigned from KAWU. On 21 August 2020 SATAWU had sent a notice in terms of section 21(1) of the Labour Relations Act[1] (LRA) requesting that it be afforded recognition and organisational rights, and sought a meeting in that regard;

3.2 Following another request by SATAWU on 28 September 2020, Servest agreed to a meeting scheduled for 7 October 2020. At that meeting, Servest had placed it on record that it had a closed-shop agreement in place between itself and KAWU since 25 August 2020. A copy of the agreement was furnished to SATAWU on 26 October 2020. SATAWU contends that until then, it was not aware of the existence of this agreement.

3.3 On 9 October 2020, SATAWU referred a dispute in terms of section 21 of the LRA to the Commission for Conciliation Mediation and Arbitration (CCMA). When attempts at conciliation failed, a certificate of non-resolution was issued on 2 November 2020, and the dispute was referred to arbitration;

3.4 At the arbitration proceedings held on 25 January 2021, the appointed Commissioner had directed the parties to hold a pre-arbitration conference and to further undertake a verification exercise in respect of trade union membership figures. Following a verification exercise, it was recorded that Servest had a workforce of approximately of 6 342 employees, of which 310 were members of SATAWU.

3.5 At subsequent arbitration proceedings held on 19 March 2021, Servest challenged the jurisdiction of the CCMA on the grounds of the existing closed-shop agreement with KAWU. The Commissioner in a ruling issued on 29 March 2021 dismissed the preliminary point, and after hearing the merits of the dispute on 20 April 2021, had issued an award on 7 May 2021, and upheld SATAWU’s rights in terms of section 12 and 13 of the LRA;

3.6 On 31 May 2021, SATAWU sent correspondence to Servest to demand that all monies deducted in favour of KAWU from its members ought to be refunded, and moreover that all future double deductions ought to cease with immediate effect;

3.7 On 1 June 2021, SEESA, an employer’s organisation acting on behalf of Servest responded to SATAWU’s letter of demand and essentially refused to accede on the grounds that;

3.7.1 In accordance with the closed shop agreement, all employees including SATAWU members are required to be members of KAWU and thus, union subscription fees were payable to it. In this regard, the resignations from KAWU submitted by SATAWU members would not affect that position.

3.7.2 Should the resignation of SATAWU members be valid, which was denied, then an agency fee equal to union subscription would be applicable.

The submissions and evaluation:

[4] The basis upon which SATAWU seeks the relief under Part A is inter alia that flowing from the arbitration award, Servest has started the double deductions, with one portion being in favour of KAWU. It

contends that the closed Shop Agreement concluded on 25 August 2020 did not require non-union members to pay trade union subscriptions to KAWU, and that Servest had no right under section 26 of the LRA and/or the Closed Shop Agreement, to make double deductions, save for an agreed agency fee from the wages of employees as referred to in section 26(7) of the LRA.

[5] SATAWU contends that urgency is claimed based on the exchange of correspondence between the parties starting from 31 May 2021, when it sent a letter of demand to Servest for the latter to cease the double deductions, and to further refund the deductions made. This exchange continued into 12 July 2021 when an impasse was reached, and this application was launched on 19 July 2021.

[6] Upon the application being delivered, Servest’s attorneys of record had on 20 July 2021, sent correspondence to SATAWU through its attorneys’ of record, in which the following undertakings were made;

6.1 That it will cease forthwith to deduct union subscriptions for KAWU from SATAWU’s employees identified in Annexure ‘A’ to the correspondence, which included 125 employees who had submitted valid resignations from KAWU.

6.2 Servest reserved its right to dismiss such employees in accordance with the closed shop agreement with KAWU, and the provisions of the respective employees’ contracts of employment.

6.3 Part A of the relief sought by SATAWU should be removed from the roll and that the question of costs be reserved for adjudication with the main application.

[7] Following the correspondence as above, SATAWU filed an amendment to its Notice of Motion, to further seek in its Part A, an order interdicting and restraining Servest from dismissing its members by relying on the closed shop agreement, whilst the validity thereof was to be adjudicated upon under Part B.

[8] In these proceedings, Servest further maintains that it cannot undertake to cease to deduct subscriptions for KAWU from the wages of employees merely because they are members of SATAWU. In contends that a number of employees have submitted union deductions forms in respect of both unions, and that it will honour those instructions for as long as they remained valid, and will only honour resignations from KAWU once they were received.

[9] Servest further contended that the matter in respect of the relief sought under Part A was not urgent since any irreparable harm to SATAWU in respect of the alleged unlawful deductions has been adequately addressed in the letter of 20 July 2021. It was further contended that to the extent that relief was sought to interdict Servest from dismissing employees in reliance on the closed shop agreement, no details were proffered in regard to the alleged irreparable harm, and that in any event, a normal referral of a dismissal dispute would afford SATAWU adequate redress in due course. In this regard, it was submitted that the closed shop agreement required persons employed by Servest to ‘become a member of the Union (KAWU)’, and that should Servest attempt to dismiss persons in violation of sub-section 26(7)(a) of the LRA, SATAWU could challenge the dismissals in due course.

[10] The principles applicable to urgent applications are well established. In accordance with the provisions of Rule 8 of the Rules for the Conduct of Proceedings in this Court[2], the applicant is required to establish the basis upon which urgent relief is sought, and why the normal rules of Court should be abridged. Aligned to these requirements is whether the applicant has stated reasons why it is claimed substantial redress at hearing in due course cannot be obtained. The applicant further needs to demonstrate whether it had acted with the necessary haste and diligence. In the end, if it is established that the urgency claimed is self-created, then the Court must strike the matter off the roll[3].

[11] It should be accepted that in the light of the exchange of correspondence between the parties as summarised elsewhere in this judgment, that at most, an impasse occurred on 12 July 2021. To the extent that this application was launched about a week thereafter, it cannot be said as SATAWU has contended, that it has been dilatory in bringing the application.

[12] There is further no basis for a conclusion to be reached that the urgency claimed in this case is self-created in the light of the history of the matter. The question of the double deductions had been on-going since 7 May 2021 after the arbitration award of the CCMA, and Servest had until 22 July 2021, insisted that there was nothing in the LRA that precluded it from making double deductions. Furthermore, Servest in its correspondence of 22 July 2021, has confirmed that it reserved its rights to dismiss SATAWU members in accordance with the provisions of the impugned closed shop agreement. That threat on its own is in my view sufficient for the matter to be treated as urgent, in that what is at stake are SATAWU’s

members’ constitutional rights to fair labour practices. Even though redress may be available to SATAWU, it is trite that the purpose of seeking urgent relief is to prevent harm, and this is exactly what SATAWU seeks to with this application.

[13] It further needs to be mentioned that but for the urgent application, there is no indication that Servest would have made the undertakings on 22 July 2021, given its stance throughout until 12 July 2021. At that level of engagement and the undertakings, it is difficult to appreciate how it can be said that SATAWU was not entitled to bring this application on an urgent basis. The mere fact that certain undertakings have been made in respect of double deductions, does not necessarily in my view, make the matter lose its urgency, more specifically in the light of the other factors raised in the undertakings.

Have the requirements of interim relief been satisfied?

[14] The requirements for an interim interdict are trite. The applicant seeking such relief must demonstrate a prima facie right even though open to some doubt; a well-grounded apprehension of irreparable harm if the interim relief is not granted; that the balance of convenience favours the granting of an interim interdict; and the lack of another satisfactory or adequate remedy in the circumstances[4].

[15] In respect of the undertakings of 20 July 2021, SATAWU holds the view that these fell short in that they were partial and not genuine, especially in the light of the ‘unreasonable’ conditions were attached to them. It further contends that unless urgent relief is granted, it and its members would continue to suffer ongoing harm of unlawful double deductions and remittances in favour of KAWU; harm to their constitutional right to freedom of association, and freedom not to be subjected to unlawful security arrangements.

[16] SATAWU further contends that the double deductions were in direct contravention of sections 13 and 26 of the LRA, and section 34 of the Basic Conditions of Employment Act (BCEA)[5]. In regards to the threatened dismissal of its members in accordance with the close shop agreement, SATAWU contends that these threats have far-reaching negative consequences on it and its members.

[17] The validity of the closed shop agreement between Servest and KAWU is an issue to be fully ventilated in the due course under Part B. It is therefore not for this Court at this stage to concern itself with the full merits thereof in that regard other than to point out various areas of concern. The first is that it is inexplicable that SATAWU could not have been aware of the existence of the closed shop agreement until 7 October 2020 after it had referred a dispute to the CCMA. This is despite its contentions that the double deductions had been effected since September 2020. Second, the agreement was signed on 25 August 2020[6], and at its clause 22.5, it is provided that it would be implemented with effect from 18 July 2020. Other than the retrospective implementation, of particular concern, and unless the Court may be mistaken, a copy of the standard contract of employment, in terms of which under its clause 30[7] new employees are advised of the existence of a closed shop agreement, it is provided that the agreement has been in existence since 28 August 2014. Clearly something is remiss if the dates upon which the agreement came into being are not the same in both documents that have a legal standing. Third, other than the concerns pointed out, SATAWU has also contended that the closed shop agreement is invalid for want of compliance with the provisions of section 26 of the LRA; that it is a pre-entry closed shop that stipulates that Servest may not employ job-seekers in the bargaining unit unless they become members of KAWU; and that it does not make provision for an agreed agency fee.

[18] For the purposes of Part A however, it is my view that this matter ought to be disposed of first, on the basis of the undertakings made by Servest on 22 July 2021, and secondly, on the interpretation of the provisions of section 26 and in particular, its sub-sections (6), (7)(a) and (8) of the LRA, to the extent that Servest has reserved its rights to dismiss SATAWU’s members based on the provisions of the impugned closed shop agreement.

[19] In regards to the undertakings and the issue of double deductions, and bearing in mind that the validity of the closed shop agreement remains in dispute, the starting point is section 13 of the LRA which provides that;

1. “Any employee who is a member of a representative trade union may authorise the employer in writing to deduct subscriptions or levies payable to that trade union from the employee’s wages.

2. An employer who receives authorisation in terms of subsection (1) must begin making the authorised deduction as soon as possible and must remit the amount deducted to the representative trade union by not later than the 15th day of the month first following the date each deduction was made.

3. An employee may revoke an authorisation given in terms of subsection (1) by giving the employer and the representative trade union one month’s written notice or, if the employee works in the public service, three months’ written notice.

4. An employer who receives a notice in terms of subsection (3) must continue to make the authorised deduction until the notice period has expired and then must stop making the deduction.

[20] Flowing from the above provisions, it is apparent that in regards to SATAWU members who have since resigned from KAWU or sought to do so, Servest cannot simply stop those employees’ subscriptions to KAWU, unless it can be demonstrated that the provisions of section 13 (3) and (4) of the LRA have been complied with. Thus, those employees who have since joined SATAWU, must demonstrate that they have revoked authorisation given in terms of section 13 (1) by giving Servest and KAWU one month’s written notice. In my view, this is the valid form of resignation sought from the employees for the deductions to KAWU to cease. Furthermore, the process would be in acknowledgement of an agreement between KAWU and those of its members who now seek to join SATAWU[8].

[21] In this case, Servest in its correspondence of 22 July 2021 has made an undertaking to cease the payments to KAWU upon receipt of valid resignations from KAWU. There is nothing unreasonable about this condition, to the extent that the employees in whose interests SATAWU approached the Court, were or are members of KAWU, who have not complied with the provisions of section 13(3) the LRA.

[22] A list of those employees who had submitted their resignation forms was attached to the correspondence of 22 July 2021. If SATAWU is not satisfied that the list is a true and correct reflection of the numbers of employees who have resigned from KAWU and have since joined it, it is not for this Court in motion proceedings, let alone in the urgent roll, to engage itself in those disputed facts. The conditions as already indicated, are merely for the purposes of compliance with the provisions of section 13(3) and (4) of the LRA, and it would be remiss of SATAWU to seek to read anything more into them. It therefore follows the relief sought in the original Part A of the Notice of Motion can only be granted in limited parts, to the extent that Servest has identified the individuals affected and made undertakings in that regard.

[23] Insofar as the second part of the relief sought under Part A of the Amended Notice of Motion related to the threat of a dismissal based on the provisions of the closed shop agreement is concerned, the provisions of section 26(6), (7) and (8) of the LRA[9] find application. The overall purpose of these provisions is to subject the operation of the closed shop arrangements to controls

designed to ensure that in their operation, their encroachment on employees’ guaranteed rights under section 23(1) of the

Constitution of the Republic, read together with section 185 of the LRA, is minimised. In this regard, and for the purposes of these proceedings, section 26(7)(a) and (b) of the LRA provides protection in that the employees who at the time a closed shop agreement takes effect, may not be dismissed for refusing to join a trade union party to the agreement, nor may they be dismissed on grounds of conscientious objection.

[24] Although Servest has in its letter of 22 July 2021 reserved its rights to dismiss employees in accordance with the provisions of the closed shop agreement, a reading of that agreement however does not reveal the source of that right. The proviso however, to the extent that Servest insists on carrying out its threats, would obviously be a dismissal of those employees who are not protected from dismissal in accordance with the provisions of section 26(7)(a) of the LRA. In this category, it will be those employees who resigned from KAWU, but do not take up membership of SATAWU.

[25] It is appreciated that SATAWU has not furnished particulars in respect of those employees who would ordinarily be protected under the provisions of section 26(7)(a) of the LRA. Notwithstanding this omission, it is my view that given the concerns raised in respect of the closed shop agreement and the nature of the order to be granted below and the issues to be ventilated under Part B, the Court considers it equitable to grant relief in respect of the threatened dismissals.

[26] The provisions of section 26(8) of the LRA require those employees insulated from a dismissal under section 26)7) of the LRA to pay an agreed agency fee. It is accepted that close shop agreements are inherently the strongest form of union security arrangements designed to address the problem of ‘free riders’ from unduly benefiting from the efforts put into collective bargaining by a trade union which is party to the closed shop agreement. The issue that arises however in this case is whether the employees who were previously members of KAWU and who have joined SATAWU can be classified as ‘free riders’.

[27] The above question is posed given the peculiar nature of the facts of this case. The parties in dispute are all party to the NBCPSS, where negotiations on any material and substantive terms and conditions of employment in the industry are ordinarily and exclusively conducted and concluded under the auspices of the Bargaining Council Forum[10]. Thus, to the extent that employees at Servest are members of either union, who are in turn party to the NBCPSS where centralised

bargaining takes place in regards to substantive issues, it cannot be said that those employees are ‘free riders’. Whether that label would still be appropriate to the extent that KAWU negotiates other issues at workplace level with Servest is a separate matter that can be ventilated under Part B of the Notice of Motion. Further to the extent that the impugned closed shop agreement does not make any provision for the payment of an agency fee, any such payments, to the extent that Servest for whatever reason seeks to pursue them, are to be by agreement as envisaged in section 26(8) of the LRA.

[28] Having had regard to the circumstances of this case and the conclusions reached in this judgment, I am satisfied that sufficient and satisfactory grounds have been shown by SATAWU for this Court to exercise its judicial discretion and to abridge the times prescribed by the Rules of Court. The prejudice that SATAWU and its members might suffer should interim relief not be granted far outweigh any prejudice that Servest may allege. In fact, in the absence of an opposition by KAWU which has a far more substantial interest in the matter, it is not even clear what possible prejudice Servest may complain of.

[29] In the light of the above considerations, it ought to therefore be concluded that SATAWU has to a large extent, given the legal issues and concerns it has raised in regards to the validity of the closed shop agreement in question, established a prima facie right to the relief it seeks.

[30] It has been held that a prima facie right that a claimant must establish, is not merely the right to approach a court, but a right to which, if not protected by an

interdict, irreparable harm would ensue, and that an interdict is ordinarily meant to prevent future conduct and not decisions already made[11]. In this case, other than the concerns raised in regards to the validity of the closed shop agreement, of particular concern in this case is that other than making undertakings in respect of those of SATAWU members who have validly resigned from KAWU, there remains an open threat that because of the purported provisions of the impugned closed shop agreement, these employees may be dismissed.

[31] It cannot therefore be expected of these employees to face a dismissal and thereafter be told that they can exercise their rights under section 191 of the LRA, when the very source upon which they may lose their livelihood is under contestation. The consequences of a dismissal, even if redress may be obtained in due course, are indeed dire for affected employees. Thus, to the extent that relief of the nature sought in this case is to prevent harm, the balance of convenience, especially in the absence of any discernible prejudice to Servest, dictates that relief against possible dismissal be granted. Furthermore, it cannot be said that in the light of Servest’s threats and intentions, SATAWU has a satisfactory or adequate remedy.

[32] In the light of the above conclusions and the remedy to be granted below, it is further my view that the upon a consideration of the requirements of law and fairness, any costs order should be reserved for determination of the issues under Part B in due course.

[33] Accordingly, the following order is made;

Order:

1. The forms of service and time frames prescribed in the Rules of this Court are dispensed with, and the matter is treated as one of urgency.

2. Pending the final determination of the application in Part B of the Notice of Motion under the present case number;

2.1 The First Respondent is interdicted and restrained from unilaterally making any further deductions from the wages of the Applicant’s (SATAWU) members as identified in Annexure ‘A’ of the First Respondent’s correspondence to the Applicant’s attorneys of record dated 20 July 2021;

2.2 The First Respondent is to cease forthwith, all deductions of union subscriptions in favour of the Second Respondent from SATAWU members, who have complied with the provisions of section 13(3) of the Labour Relations Act.

3. Pending the final determination of the application in Part B of the Notice of Motion read together with the Amended Notice of Motion, the First Respondent is interdicted and restrained, from dismissing SATAWU members by relying on the provisions of the closed shop agreement concluded with the Second Respondent.

4. The costs of this application shall be in the cause.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Adv. M.D. Maluleke, instructed by M.M Baloyi Attorneys

For the Respondents: Adv. R. Beaton SC, instructed by De Villiers & Du Plessis Attorneys

[1] Act 66 of 1995, as amended

“(1) A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2), 7(3) and, if applicable, 7(7). (2) The affidavit in support of the application must also contain- (a) the reasons for urgency and why urgent relief is necessary; (b) the reasons why the requirements of the rules were not complied with, if that is the case; and (c) if a party brings an application in a shorter period than that provided for in terms of section 68(2) of the Act, the party must provide reasons why a shorter period of notice should be permitted”.

“(1) A party that applies for urgent relief must file an application that complies with the requirements of rules 7(1), 7(2), 7(3) and, if applicable, 7(7).

(2) The affidavit in support of the application must also contain-

(a) the reasons for urgency and why urgent relief is necessary;

(b) the reasons why the requirements of the rules were not complied with, if that is the case; and

(c) if a party brings an application in a shorter period than that provided for in terms of section 68(2) of the Act, the party must provide reasons why a shorter period of notice should be permitted”.

[3] See East Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd and Others (11/33767) [2011] ZAGPJHC 196 (23 September 2011); Jiba v Minister: Department of Justice and Constitutional Development and Others (2010) 31 ILJ 112 (LC) at para 18; Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W); University of the Western Cape Academic Staff Union and Others v University of the Western Cape (1999) 20 ILJ 1300 (LC) at para 15

[4] See National Council of SPCA v Open Shore [2008] ZASCA 78; 2008 (5) SA 339 SCA; National Treasury and Others v Opposition to Urban Tolling Alliance and Others (CCT 38/12) [2012] ZACC 18; 2012 (6) SA 223 (CC); 2012 (11) BCLR 1148 (CC) (OUTA) at paras 41 and 45

[5] Act 75 of 1997, as amended

[6] Annexure ‘PB1’ to the Founding Affidavit at page 64

[7] Annexure ‘C’ to the Answering Affidavit at page 187

[8] See Municipal and Allied Trade Union of South Africa (MATUSA) v Central Karoo District Municipality and Others (CA6/2019) [2020] ZALAC 20; (2020) 41 (ILJ) 1918 (LAC)[2008] ZALC 69; ; [2020] 9 BLLR 896 (LAC), at para 22

[9] Section 26 of the LRA provides; ‘Closed shop agreements “…. (6) It is not unfair to dismiss an employee- (a) for refusing to join a trade union party to a closed shop agreement; (b) who is refused membership of a trade union party to a closed shop agreement if the refusal is in accordance with the provisions of subsection (5); or (c) who is expelled from a trade union party to a closed shop agreement if the expulsion is in accordance with the provisions of subsection (5). (7) Despite subsection (6)- (a) the employees at the time a closed shop agreement takes effect may not be dismissed for refusing to join a trade union party to the agreement; and (b) employees may not be dismissed for refusing to join a trade union party to the agreement on grounds of conscientious objection. (8) The employees referred to in subsection (7) may be required by the closed shop agreement to pay an agreed agency fee, in which case the provisions of section 253(b), (c) and (d) and (4) to (7) apply.

[9] Section 26 of the LRA provides;

‘Closed shop agreements

“….

(6) It is not unfair to dismiss an employee-

(a) for refusing to join a trade union party to a closed shop agreement;

(b) who is refused membership of a trade union party to a closed shop agreement if the refusal is in accordance with the provisions of subsection (5); or

(c) who is expelled from a trade union party to a closed shop agreement if the expulsion is in accordance with the provisions of subsection (5).

(7) Despite subsection (6)-

(a) the employees at the time a closed shop agreement takes effect may not be dismissed for refusing to join a trade union party to the agreement; and

(b) employees may not be dismissed for refusing to join a trade union party to the agreement on grounds of conscientious objection.

(8) The employees referred to in subsection (7) may be required by the closed shop agreement to pay an agreed agency fee, in which case the provisions of section 253(b), (c) and (d) and (4) to (7) apply.

[10] See the National Negotiation Protocol Agreement for the NBCPSS concluded on 19 July 2019

[11] Outa at para at para 50