United National Transport Union v Transnet SOC Limited and Another (J997/2021) [2022] ZALCJHB 157 (3 June 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: J 997/2021

In the matter between:

UNITED NATIONAL TRANSPORT UNION

APPLICANT

And

TRANSNET SOC LIMITED

FIRST RESPONDENT

TRADING AS TRANSNET FREIGHT RAIL AND

TRANSNET ENGINEERING

SECOND

RESPONDENT

Heard: 20 May 2022

Delivered: 3 June 2022

(In view of the measures implemented as a result of the Covid 19 pandemic, this judgement was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 3 June 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant has referred a dispute to this court, acting in its own interest and on behalf of its members, who are part of a contingent

of 1198 employees who during July 2012 were employed in in-service maintenance in the respondent’s engineering division to the freight rail division on account of operational exigencies that existed at the time.

[2] It is not disputed that at the time, the affected employees received a 10.2% increase to the basic remuneration in consideration for working an additional four hours per week, bringing the total working hours to 44 hours per week. On 1 April 2016, the affected employees were transferred back to the engineering division on account of further changes in operational requirements.

[3] At the same time, the parties conclude a collective agreement regulating the conditions of service upon reintegration into the engineering

division. The applicant contends that the respondent is in breach of the collective agreement. Further discussions in pursuit but without any resolution of the dispute occasioned by what the applicant contends the failure by the respondent to continue to pay the employees the agreed 10.2% increase in remuneration despite the fact that they continue to work 44 hours per week. The applicant states that it is not in possession of information regarding the identity of the transferred employees, the pay grade, the remuneration, whether any transferred employee received any increment and if so, in what amount. The applicant states that it is thus unable properly and accurately to quantify the income differential to which the transferred employees would be entitled in terms of the collective agreement.

[4] The referral was made in terms of section 77 (3) of the Basic Conditions of Employment Act in that while the source of the rights for which the applicant contends rest in a series of collective agreements, the applicant contends that in terms of section 23 of the LRA, the collective agreements pined parties to the agreement but also means the terms and conditions of individual contracts of employment. The relief sought by the applicant is an order to the effect that the respondent provide a full account to the applicant, including a full reconciliation calculation of the shortfall in remuneration arising from the transfers referred to, and to account to the applicant in respect of the transferred employees, specifically indicating the income differential between the current earnings of the transferred employees and the amounts that they would have earned had the respondent complied fully with the agreement further, the applicant seeks an order that the respondent engaged in an abatement exercise with the applicant, with a view to reaching agreement on any monies owing to the transferred employees and that the respondent make payment of any amounts found to be due to them in terms of their contracts of employment.

[5] The respondent has filed a reply to the applicant’s statement of case, raising a number of preliminary points. The first is that the applicant has no locus standi, given that the claim referred to the court is in the nature of the contractual dispute and the absence of any personal contractual

relationship between the applicant and the respondent. In the alternative, the respondent contends that the applicant does not have a general standing and right to institute a claim based on an individual employment contract in the absence of any specific

instruction by the employee concerned. Secondly, the respondent contends that the statement of claim does not identify any individual

person as a claimant and that the statement of case is defective in that it fails to join any of the affected employees on whose behalf the applicant claims to act. Thirdly, the respondent claims prescription and in particular, contends that on the facts needed by the applicant, any claim to payment based on a salary increased employees who were transferred in 2012 and transferred again in 2016, as prescribed. Fourthly, the respondent pleads that in June 2020, a collective agreement was concluded, to which the applicant is a party, regulating terms and conditions of employment and superseding those regulated by any prior collective agreements. The respondent contends that in terms of the variation agreement, any claim that the applicant and its members may have arising from the agreements on which they rely have been compromised and settled. Finally, the respondent excepts to the statement of claim on the basis that it lacks the necessary averments to sustain a cause of action based on an alleged breach of contract. In particular, the applicant avers that the applicant has failed to set out the precise terms of the contracts that it avers have been breached, failed to identify the employees whose contracts are alleged to have been breached, failed to set out the nature of the breach alleged and to state the amounts claimed consequent on the breach.

[6] I deal first with the issue of locus standi. Section 200 of the LRA provides that a registered trade union may act in any dispute to which any of its members as a party either in its own interest, on behalf of its members who in the interest of any of its members. In Manyele & others v Maizecor (Pty) Ltd & another (2002) 23 ILJ 1578 (LC), this court said the following:

[15] The meaning of this section has been considered by the Labour Appeal Court in Mzeku & others v Volkswagen SA (Pty) Ltd & others (2001) 22 ILJ 1575 (LAC). At 159 558. There the court held that:

“It is therefore clear also that s 200 (1) gives a registered union the right to act on behalf of its members when there is a dispute

involving any one or more of its members and that s 202 (1) takes this further and provides that, once a registered trade union acts, as it is entitled to, in behalf of its members, the employer has a right not to serve the documents on the individual members

themselves, but to save them on the union. It provides that such service on the union is as good as service on the members of the

union themselves. If this is so, the position must be that even with regard to the giving of an opportunity to be heard, the employer is entitled to deal with the union. …

[17] What is noteworthy from this passage from the judgement of the Labour Appeal Court, is the clear intention that once the union is involved in representing its members in a dispute, an obligation is cast on the employer party to acknowledge that fact and to deal directly with the union.

[7] Manyele also made clear that other than asserting its representative capacity, union need not cite any of its members as such in proceedings before this court. A union’s right to represent its members is a statutory right that exists independently of any mandated by the members concerned and does not require a specific mandate each time the union decides to act on behalf of its members. It follows that the applicant, as a matter of law, is entitled to litigate to enforce its members’ rights, in its own interest and as representative of the affected members, where it acts in their place and stead. This is so even when the claim instituted

by the union concerns individual contracts of employment. This conclusion extends to the respondent’s point of non-joinder – given the capacity in which the applicant acts, it is not necessary for each affected employee to be joined to the proceedings.

[8] The points relating to prescription and compromise are best dealt with by the trial court. In relation to prescription, the nature of the claim is one of a month to month payment, and the quantum of any successful claim is best determined at trial. Similarly, the issue of compromise is best dealt with after evidence is heard. There is no evidentiary basis made on the papers before me to determine the effect, if any, of the variation agreement on the collective agreements that are the subject of the present claim.

[9] In so far as the respondent contends that the statement of claim fails to make out a cause of action, the cause of action pleaded is one of the enforcement of contractual rights, based on an agreed increase, which the applicant contends the respondent has failed to pay. The test an exception is one that requires the court to assume the correctness of the averments in the statement of claim and to determine whether no cause of action is made out on any interpretation of the claim. This test must be applied in a context where the rules of this court not require an elaborate exposition of all the facts and with the statement of claim need ‘simply give the architecture’, the detail in the structure of the factual dispute provided for at the trial (see Harmse v City of Cape Town (2003) 24 ILJ 1130 (LC)). In essence, the union seeks on behalf of its members to enforce contractual rights, as a term of their individual contracts of employment, to what it contends to be an agreed increase, in exchange agreement to work additional hours. The union contends that the members have not received the full amount of the agreed increase and seeks an order requiring the respondent to account for any shortfall in payments and to pay these amounts to the members concerned. This constitutes a valid cause of action and the

exception stands to be dismissed.

[10] For the purposes of section 162 of the LRA, the requirements of the law and fairness are best served by each party bearing its own costs.

I make the following order:

1. The exception and special pleas are dismissed.

______________________________

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

G Fourie SC

Instructed by:

Fluxmans

For the respondents: M Mbuyisa, Maserumule Attorneys1