in the labour court of south africa (held at johannesburg ... · various commercial banks and also...

of 40

CASE NO. J2717/07

IN THE LABOUR COURT OF SOUTH AFRICA

(HELD AT JOHANNESBURG)

CASE NO. J2717/07

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

of 40

CASE NO. J2717/07

[1] 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.

[2] 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

of 40

CASE NO. J2717/07

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[3] 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[4] The Applicant operates a cash in transit division in the main

provinces of South Africa, excluding KwaZulu 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

of 40

CASE NO. J2717/07

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.

[5] 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 bulletproof vests.

[6] 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

of 40

CASE NO. J2717/07

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.

[7] 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:

of 40

CASE NO. J2717/07

"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. "

[8] 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."

[9] It appears from the aforegoing that work performed during meal

intervals would not be remunerated at overtime rate (which is at a

of 40

CASE NO. J2717/07

rate of one and a half times the ordinary rate) but at the ordinary

rate.

[10] 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:

of 40

CASE NO. J2717/07

” 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:

"CITand 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.”

[11] This agreement concluded with SASBO was extended to all

employees including members of the First Respondent.

The August 2007 strike notice

[12] 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

of 40

CASE NO. J2717/07

NBCRFI” or “the Council”)). The dispute was termed a unilateral

change to the terms and conditions of employment.

[13] 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.

of 40

CASE NO. J2717/07

The settlement agreement

[14] 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

of 40

CASE NO. J2717/07

present application and will be analysed in more detail

hereinbelow.)

[15] 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)."

[16] 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).

of 40

CASE NO. J2717/07

Letter of 4 September 2007

[17] The letter dated 4 September 2007 from the First Respondents

effectively kickstarted 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

[18] 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

of 40

CASE NO. J2717/07

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

of 40

CASE NO. J2717/07

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."

[19] 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.”

[20] 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

of 40

CASE NO. J2717/07

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.

[21] 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

[22] 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."

[23] 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:

of 40

CASE NO. J2717/07

"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

[24] 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.

of 40

CASE NO. J2717/07

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.

[25] 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

of 40

CASE NO. J2717/07

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.

[26] 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 socalled 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

of 40

CASE NO. J2717/07

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.”

of 40

CASE NO. J2717/07

The Applicant’s submission

[27] The Applicant challenges the lawfulness of the proposed strike on

two grounds, namely that:

(i) 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;

and

(ii) 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?

[28] 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

of 40

CASE NO. J2717/07

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."

[29] In principle I agree with the sentiments expressed by Wallis. It is trite

that an employer has the managerial prerogative to issue reasonable

of 40

CASE NO. J2717/07

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 workrelated

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.

[30] 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

of 40

CASE NO. J2717/07

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.

[31] 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;”

[32] 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

of 40

CASE NO. J2717/07

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.

[33] It must also be emphasised at the outset that the Applicant accepts

of 40

CASE NO. J2717/07

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

of 40

CASE NO. J2717/07

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.

[34] 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,

of 40

CASE NO. J2717/07

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

[35] There are various facts and principles that must be considered in

coming to a conclusion in the present matter.

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

Industry

[36] There were three referrals relevant to these proceedings to the

National Bargaining Council for the Road Freight Industry

(hereinafter referred to the “Council”).

of 40

CASE NO. J2717/07

[37] 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.

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

Industry

[38] 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

of 40

CASE NO. J2717/07

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.

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

Industry

[39] 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

of 40

CASE NO. J2717/07

payment of meal intervals in the CIT industry.”

[40] 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.)

(i) The first referral by the First Respondent concerns

the issue of payment in respect of meal intervals.

(ii) The second referral by the First Respondent

concerns the conditions under which meal intervals

are to be taken.

(iii) 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

of 40

CASE NO. J2717/07

workers who do not take meal breaks.

[41] 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

[42] 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

of 40

CASE NO. J2717/07

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

[43] 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.

[44] 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

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.”

of 40

CASE NO. J2717/07

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

wagework 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

of 40

CASE NO. J2717/07

conditions change.”

[45] 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 decisionmaking in

the workplace; and

(iv) the effective resolution of labour disputes.”

of 40

CASE NO. J2717/07

[46] The Constitutional Court in the Bader Bopcase 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

of 40

CASE NO. J2717/07

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.”

[47] 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

of 40

CASE NO. J2717/07

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.

[48] 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

[49] What is the effect of the settlement agreement dated 29 August

of 40

CASE NO. J2717/07

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.

[50] 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

of 40

CASE NO. J2717/07

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

of 40

CASE NO. J2717/07

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.

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 ...”

of 40

CASE NO. J2717/07

[51] 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

of 40

CASE NO. J2717/07

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

[52] 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

of 40

CASE NO. J2717/07

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.

[53] 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

[54] 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.

[55] In the event the application is dismissed with costs, including the

of 40

CASE NO. J2717/07

costs relating to the urgent application when the interim order was

granted.

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

in the labour court of south africa (held at johannesburg ... · various commercial banks and also...

Documents