Automated Summary
Key Facts
The Labour Court of South Africa ruled on 26 July 2013 that a proposed strike by SAMWU members at Pikitup (SOC) Ltd, concerning the implementation of alcohol/substance abuse testing and a biometric access control system, was declared an unprotected strike. The court determined these issues fell within matters of mutual interest between employer and employees, making the strike actionable. The judgment was delivered on 13 August 2013, with the applicant ordered to pay the respondents' costs.
Issues
- Whether the implementation of the new alcohol/substance abuse testing system constitutes a matter of mutual interest between employer and employees, thereby allowing employees to strike, or if it falls under operational management issues that cannot be resolved through collective bargaining.
- Whether the introduction of the biometric access control and timekeeping system is a matter of mutual interest for collective bargaining, or an operational management decision that cannot be contested through strike action.
Holdings
- The court found that the applicant's tender to resolve the dispute regarding the biometric access control system for RCR employees (allowing them to clock out remotely) satisfied the respondents' concerns. This effectively ended the dispute on that issue, rendering the associated strike action unprotected. However, the court noted that the tender only addressed the specific concern of RCR employees returning to the depot, leaving broader objections to the biometric system unaddressed.
- The court determined that the demand to cease breathalyser testing did not constitute a matter of mutual interest, as it fell under operational management. Consequently, the strike action based on this demand was declared unprotected. The court emphasized that the implementation of safety measures, including breathalyser tests, is within the employer's managerial prerogative and not subject to collective bargaining unless it directly impacts wages, terms, or conditions of employment.
Remedies
- The rule nisi is discharged, and the applicant is ordered to pay the costs of the respondents.
- The first respondent is ordered to take all reasonable steps necessary to ensure the second to further respondents do not commence strike action on 29 July 2013, including active communication and consultation.
- The second to further respondents are interdicted and restrained from embarking upon any strike action or conduct in contemplation of strike action in respect of the declared unprotected strike.
- The strike which the second to further respondents intended to embark upon on 29 July 2013 is declared to be an unprotected strike as contemplated by Section 68(1) of the Labour Relations Act.
- The first respondent is ordered to immediately call upon the second and further respondents not to commence strike action in respect of the strike declared to be unprotected.
- This application is heard as one of urgency in terms of Rule 8 and the time limits imposed by Rule 7 are hereby dispensed with.
- The issue of costs is reserved for argument on 12 September 2013.
- A Rule nisi is issued calling upon the respondents to show cause on 12 September 2013 at 10h00 why a final order should not be made declaring the strike as unprotected and restraining strike action.
- The order shall be served by telefax to regional offices and head office, displayed on notice boards, read to employees present at the premises, sent via SMS to cellular numbers, and provided upon request.
- Condonation is granted for the applicant's failure to comply with the time limits as contemplated by Sections 68(2) and (3) of the Labour Relations Act 66 of 1995.
Legal Principles
The court applied the principle of 'substance over form' to determine the true nature of the dispute regarding the legality of the proposed strike. It emphasized that the court must look beyond the formal labels given by the parties and focus on the actual substance of the dispute to assess whether it constitutes a protected strike under the Labour Relations Act. This included evaluating whether the demands related to matters of mutual interest between the employer and employees.
Precedent Name
- Greater Johannesburg Transitional Metropolitan Council v Independent Municipal & Allied Workers Trade Union
- National Union of Metal Workers v Bader Bop (Pty) Ltd
- TSI Holdings v National Union of Metalworkers of SA
- City of Johannesburg v SA Municipal Workers Union
- Entertainment Commercial & Allied Workers Union v Southern Sun Hotel Interest (Pty) Ltd
- Room Hire Co. v Jeppe Street Mansions (Pty) Ltd
- Durban City Council v Minister of Labour
- SA Scooter & Transport Allied Workers Union v Karras t/a Floraline
Cited Statute
- Labour Relations Act 66 of 1995
- Local Government: Municipal Systems Act 32 of 2000
- Constitution of the Republic of South Africa 108 of 1996
- Occupational Health and Safety Act 85 of 1993
Judge Name
Hulley, AJ
Passage Text
- [84.1] First, one of the central reasons for introducing the system was to provide a safe working environment for the employees. In my view, the method used to do so must necessarily be a matter in respect of which the employees have an interest. [84.2] Secondly, in the replying affidavit Nair explained that if the result of the breathalyser test was positive and the employee disputed it, he or she could request a further test and if still positive could demand that a blood test be administered. The fact that the employer proposed administering a blood test (irrespective of whether it was upon demand by the employee) as part of the new system, raises serious concerns. These are matters in respect of which the employees have a legitimate interest. They are, in my opinion, matters of mutual interest to both employer and employee.
- [99.1] The rule nisi is discharged. [99.2] The applicant is ordered to pay the costs of the respondents.
- [97] The question I have to determine is whether the tender satisfied the concerns raised by the respondents with regard to the RCR employees and, if so, whether it put an end to that dispute. In my view, it did.