Unions appeal industrial court ruling

CHANDAPIWA BAPUTAKI
Staff Writer | Monday May 9, 2011 00:00

 

When delivering his judgement on Friday, Justice Tebogo Maruping said the considered opinion of the court is that the strike as it relates to the essential service is unlawful and unprotected because it was in breach of the provisions of Section 42(1)(b)(iii) of the Trade Dispute Act (TDA) as read with Section 9(1)(b) in that on failure to reach an agreement at mediation the Commissioner of Labour lumped together all the employees and did not take account of the special provisions relating to essential service employees.

The unions are seeking the Court of Appeal to dismiss the judgement on the basis that the court erred in fact and in law in that they ought to have found that it is permissible in terms of Section 45 of the TDA for the essential service employees to take part in the industrial action.

The appeal also states that the court erred in that it ought to have found that the parties had concluded a binding agreement in terms of which the Directorate of Public Service Management (DPSM) agreed to have 70 percent of the workers participating in the strike. According to Attorney Mbakiso Chilisa, for the unions, the court ought to have found that the strike agreement superceded any provisions in the union's recognition agreement governing the provision of minimum service and that the there was no merit in the contention that the industrial action, as it relates to the essential service cadre, does not comply with an agreed procedure.

Chilisa said in his grounds of appeal that the court ought to have found that the relevant provision which governs participation of the essential service cadre is Section 45 of the TDA and not Section 9 as read with Section 42 of the TDA.

He said the court should have found in their judgement that the subject matter of the industrial action is a wage demand, which was not regulated by any collective labour agreement. Justice Maruping said on that basis as well the strike by essential services stands to be interdicted and the court is satisfied that the Director of DPSM (Festina Bakwena) is entitled to confirmation of the rule nisi granted on April 26.

On the issue of strike rules, Maruping said both parties had invested a great deal into efforts to come up with strike rules but regrettably the issue remains unresolved and the parties cannot identify common ground with respect to the rules. He stated that the rules are important as they were aimed at the orderly conduct of the strike especially as they touch on the provision of minimum service during strike for non-essential services. Maruping said the court has determined that as far as strike rules were concerned, as well as the provision of a minimum services the parties were not ad idem.

'At the very least one or both of the parties were prepared to approbate and reprobate or blow hot and cold quite happily with little regard to the consequences of such course of conduct,' he said.  He revealed that the court was not surprised that of the documents presented to it relating to strike rules the main document contains no signatures whatsoever. The only documents containing the signatures, he said were the determination of disputed matters by mediator Sam Leero. 'In other words, the parties were more prepared to sign for non-agreed than for agreed items with respect to strike rules,' he said.

The judge further indicated that there are also disputes on record relating to the interpretation of either the 20 percent or the 30 percent minimum service level and the inclusion of grounds men in the list of essential service employees.

He stated that all the issues pertaining to strike rules should have been negotiated, settled and agreed by the parties in terms of the collective labour agreements signed as well as in terms of Section 40 of the TDA. He, however, said as far as non-essential service employees are concerned the strike is lawful and protected notwithstanding failure to agree the strike rules at least within the initial 14-day period in terms of Section 40(3) of the TDA.

Maruping also confirmed an interim order that DPSM could not replace labour within the first 14 days of the strike, which ends this Wednesday.