South African Transport and Allied Workers Union v South African Airways SOC Ltd and Others (J2048/14) [2014] ZALCJHB 338 (5 September 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case No: J2048/14

In the matter between:

SOUTH AFRICAN TRANSPORT AND

ALLIED WORKERS UNION

Applicant

and

SOUTH AFRICAN AIRWAYS SOC LTD

First Respondent

NATIONAL TRANSPORT MOVEMENT

Second Respondent

SOUTH AFRICAN CABIN CREW ASSOCIATION

Third Respondent

UNITED ASSOCIATION OF SOUTH AFRICA

Fourth Respondent

Heard: 2 September 2014

Delivered: 5 September 2014

Summary: Interdict of wage negotiations—disputes about representation; failure to show requirements for an urgent interdict

MOOKI, AJ

[1] The applicant approached the court for relief on an urgent basis. I set out the relief sought in the notice of motion in the light of the view that I take on this application. The applicant sought an order:

‘1 Dispensing with the forms of service provided for in the Rules of this Honourable Court and disposing of this matter, in terms of Rule 8, on an urgent basis.

2 Declaring unlawful and setting aside:

(a) The respondent's decision, on 20 August 2014, to give notice of termination of its recognition agreement with the applicant concluded on 1 August 2011;

(b) The respondent's decision to grant temporary organisational and collective bargaining rights to the National Transport Movement and the South African Cabin Crew Union acting collectively.

3. In the alternative to prayer 2, interdicting the first respondent from terminating or acting contrary to the provisions (sic) the recognition agreement concluded with the applicant on 1 August 2011, and the coalition agreement concluded between the applicant and the fourth respondent on 23 January 2014, pending the outcome of the interpretation dispute referred by the applicant to the Commission for Conciliation, Mediation and Arbitration (MR3 to the founding affidavit)

4. Interdicting the first, second and third respondents from conducting wage negotiations, pending the outcome of the interpretation dispute referred by the applicant to the Commission for Conciliation, Mediation and Arbitration, and the conducting of a verification exercise to determine the levels of representivity (sic) of SATAWU, UASA, NTM and SACCA.

5. Directing that the orders in paragraphs 3 and 4 above shall operate with immediate effect.’

[2] A draft order was handed to the court on behalf of the applicant when the matter was called. The draft order provides as follows:

‘Having heard counsel and having read the papers filed on record, the following Order is granted:

1. The first respondent is interdicted from engaging in collective bargaining on salaries and other substantive issues with the second or third respondents.

2. The order in paragraph 1 shall be operative until such time as the Recognition Amendment Agreement concluded between the applicant and the first respondent on 1 August 2011 is validly cancelled.

3. In the alternative to prayer 2, prayer 1 shall operate pending the finalisation of the dispute referred by the applicant to the CCMA on 21 August 2014, regarding interpretation and application of collective agreements.

4. The first respondent is ordered to pay the cost of this application, including the costs of two counsel, where two counsel were used.’

[3] Mr Fourie and Ms Tulk appeared on behalf of the applicant. Mr Fourie submitted that the proposed order was not an amendment of the relief sought by the applicant, but that it clarified that relief in the light of the fact that the first respondent had not cancelled the recognition agreement. It appears to the court that the applicant has, in fact, changed the basis for its relief when the matter came to be argued. This much is clear from the confirmation by Mr Fourie that the applicant does not persist with relief sought in paragraph 2(a) of the notice of motion.

[4] The thrust of the applicant’s case is that the first respondent unlawfully cancelled the recognition agreement between the first respondent and the applicant; and that the first respondent is not entitled to constitute an interim forum for wage negotiations in which the second and third respondents could participate consequent to that cancellation.

[5] The "cancellation" of the recognition agreement looms large over the case for the applicant. The following appears in its founding affidavit:

‘5.1 The recognition agreement, contends the first respondent was terminated as part of the transition into the new dispensation, and the cancellation itself effected in accordance with clause 15 of the agreement…

5.2 I wish to place on record lastly that the recognition agreement was also improperly cancelled… no termination notice was served on the applicant…’

[6] The applicant relies on the following in support of the right that underpins the relief that the applicant seeks:

‘6.1 The applicant rejects as unlawful the cancellation of its recognition agreement and the subsequent implementation of the transitional bargaining arrangement. The applicant's right to the continued enforcement of its recognition agreement stems from the fact that it was not properly cancelled. The agreement can be cancelled only in terms of the process set out in clause 15. This process has not been followed, and in addition a dispute has been referred to the CCMA on the terms of the agreement itself.

6.2 Until such time as the recognition agreement is properly cancelled it remains in force and the applicant is entitled to the organisational and collective bargaining rights afforded to it by the agreement.

6.3 The applicant is further entitled to the proper cancellation of the recognition agreement. The first respondent has breached the recognition agreement by cancelling it without proper notice.’

[7] The alleged unlawful termination of the recognition agreement underpins the irreparable harm contended for by the applicant. It is alleged on behalf of the applicant that ‘the applicant will face ongoing and irreparable harm if the negotiations are not interdicted. First, the implementation of the transitional arrangement will sanction the unlawful cancellation of the recognition agreement’.

[8] It is also alleged on behalf of the applicant that ‘the applicant simply cannot take part in the transitional arrangement. It will be seen to be sanctioning the cancellation of the recognition agreement and will be concluding agreements in an improperly constituted forum’.

[9] I enquired from Mr Fourie whether the non-cancellation of the recognition agreement did not undermine the bases for the relief sought by the applicant, including approaching the court on an urgent basis. He submitted that the applicant was still entitled to approach the court to vindicate its rights as set out in the recognition agreement; more so because the first respondent had confirmed that the agreement was not cancelled.

[10] Mr Boda appeared for the first respondent. He submitted that the case made for the applicant in argument differed from the applicant’s pleaded case; which is founded on an alleged unlawful termination of the recognition agreement. He pointed out that the applicant rushed to court on a misconception that the recognition agreement had been cancelled, having misconstrued the notice given to it as notice of termination of the agreement. Mr Boda emphasised that it is not open to the applicant to seek to make a different case in argument; contrary to its case in the founding papers.

[11] I agree with Mr Boda. The fact that the recognition agreement has not been cancelled undermines the basis for the prima facie right as pleaded by the applicant. That right was asserted on the premise of an unlawful termination of the recognition agreement.

[12] Mr Fourie submitted that the fact that the agreement has not been cancelled does not change the calculus of the situation. He submitted, in this regard, that the applicant ultimately seeks to protect its rights in terms of the recognition agreement. This may well be the case. However, the court will have regard to the case as pleaded by the applicant. It must go without saying that the applicant would have pleaded differently if the applicant did not rely on the cancellation of the recognition agreement. Indeed, even the complaint regarding the transitional arrangement is premised on the supposed unlawful cancellation of the recognition agreement.

[13] It is sufficient to dismiss the application on the finding that the applicant has not demonstrated the prima facie right in its pleaded case that would entitle the applicant to interim relief.

[14] I am not satisfied that the applicant has met the other requirements for interim relief. The first respondent has set out the harm that it would suffer should the applicant be granted relief. This is set out in 25 paragraphs. The applicant deals with these concerns in passing; essentially recording that the allegations about the potential industrial action are irrelevant. The court is duty-bound to consider the balance of convenience in determining whether to grant the relief sought by the applicant.

[15] The first respondent alleges that there is a real risk that members of the second and third respondent may resort to industrial action should the second and third respondents be prohibited from participating in wage negotiations. The second and third respondents have a certificate of non-resolution that entitles them to embark on strike action related to wage negotiations. The first respondent has set out in detail what may befall it should such a strike action come to pass. This includes disruption of international and domestic flights, the absence of sufficient cabin crew staff, disruption of travel plans by passengers all around the world, loss of goodwill, loss of trade connections; and impact on the first respondent’s contractual undertakings.

[16] The applicant, in response to the allegations referred to above, says merely that these considerations are irrelevant for purposes of the relief that it seeks. I do not see how the concerns mentioned by the first respondent could be irrelevant. They are certainly material for purposes of the court weighing of the likely prejudice to the parties.

[17] I consider that the harm that may befall the first respondent outweighs granting relief to the applicant. The applicant is ultimately complaining about who may participate in wage negotiations for the 2014/2015 financial year. There is no collective bargaining forum for conducting wage negotiations. There is a dispute about the representation of the various unions at the workplace. The interim measure put in place by the applicant is intended to allow unions with a presence at the first respondent to participate in the wage negotiations.

[18] The applicant alleges in its founding affidavit that it did not wish to participate in the wage negotiations because that would lend credence to the unlawful termination of the recognition agreement. The applicant now admits that that agreement has not been terminated.

[19] The thrust of the applicant’s complaint is that only the applicant and the fourth respondent may participate in wage negotiations with the first respondent. This is premised on the applicant and the fourth respondent enjoying majority status because of their coalition agreement. I should pause to indicate that the fourth respondent has not participated in this application. In addition, the fourth respondent has not confirmed the allegations made about it. It bears pointing out that the coalition agreement stipulates that an application such as this one must be in the name of both the applicant and the fourth respondent. The fact that the

applicant is acting on its own may well be explained by the applicant’s statement that the coalition agreement was not implemented. This is, however, immaterial to the outcome of this application.

[20] Allowing the second and third respondents to participate in wage negotiations would, according to the applicant, be in breach of the recognition agreement. The first respondent, supported by the second and third respondents, make the point that nothing prevents the applicant joining forces with the fourth respondent to seek to impose their will in the pending wage negotiations.

[21] The complaint by the applicant that it cannot participate in wage negotiations together with the second and third respondents is not earnest. The second and third respondents point out that the parties in this hearing attended the first session of wage negotiations on 22 August 2014. They further point out that the parties agreed, on 22 August, that the wage negotiations will continue on 2, 4, 9, and 10 September 2014. The applicant does not dispute that the first session of the wage negotiations occurred on 22 August 2014. The applicant does not, in addition, dispute that it attended the first session of wage negotiations together with all the other parties; including the second and third respondents.

[22] Even if the court were to accept that only the applicant, the first respondent and the fourth respondent could participate in wage negotiations (I do not express a view in this regard), and taking into account the referral by the applicant to the CCMA, the court is not satisfied that the balance of convenience favours the applicant. It remains open to the applicant, notwithstanding its protestation and without the applicant having to concede anything about the eligibility of the second and third respondents, to participate in the wage negotiations, either on its own or in concert with the fourth respondent. All this remains open to the applicant pending the outcome of its referral to the CCMA.

[23] The harm that could befall the applicant if the second and third respondents were to participate in wage negotiations is outweighed by the harm that can befall the first respondent; should the second and third respondents be excluded from such wage negotiations. The applicant has not shown the irreparable harm that would merit the court granting the interdict.

[24] The harm, according to the applicant’s pleaded case, stems from the unlawful cancellation of the recognition agreement. The applicant now admits that the agreement has not been cancelled. In addition and as stated above, the applicant can still participate in wage negotiations whilst awaiting the outcome of its referral to the CCMA. Its pleaded case is that the applicant objected to participating in wage negotiations to avoid giving legitimacy to what it considered an unlawful cancellation of the recognition agreement. This reservation has no support.

[25] The applicant approached the court for relief for an urgent interdict, pending the outcome of its referral to the CCMA. I pause to indicate that the referral to the CCMA is the type of alternative relief that is contemplated in the requirements for the grant of an urgent interdict.

[26] An interim interdict is not to be granted lightly. This is confirmed by the Constitutional Court in National Treasury and Others v Opposition to Urban Tolling Alliance and Others.[1] It was submitted on behalf of the applicant that sound labour relations would be served by granting the relief sought by the applicant. It seems to me, at least on the facts of this case, that sound labour relations would best be served by refusing such relief. The temporary measure put in place by the first respondent for purposes of wage negotiations strikes me as sound in the circumstances; more so because there is no bargaining forum for wage negotiations. Excluding the second and third respondents from participating in wage negotiations, especially in the light of disputes about the level of representation of the various unions in the workplace, will not enhance sound labour relations.

[27] I am not satisfied that the applicant has made out a case for the relief that it seeks. I make the following order:

26.1 The application is dismissed.

26.2 The applicant is ordered to pay costs.

___________

O Mooki

Judge of the Labour Court (Acting)

Appearances:

For the Applicant: G Fourie with R Tulk

Instructed by:

Cheadle Thompson & Haysom Attorneys

For the First Respondent: F Boda

Instructed by:

Norton Rose South Africa

For the Second Respondent: Mr Mphahlele, Union Official of National Transport Movement

For the Third Respondent: Mr Shabangu, Union Official of South African Cabin Crew Association

[1] 2012 (6) SA 223 (CC) at paras 83-85.