in the labour court of south africa (held at johannesburg ... · various commercial banks and also...
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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
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[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
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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
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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
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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:
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"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
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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:
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” 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
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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.
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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
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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).
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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
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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
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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
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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:
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"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.
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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
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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
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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.”
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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
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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
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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
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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
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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
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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
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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,
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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”).
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[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
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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
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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
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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
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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.”
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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
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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.”
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[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
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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
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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
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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
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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
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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 ...”
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[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
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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
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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
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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