Ekurhuleni Metropolitan Municipality v South African Municipality Workers Union (JA12/13) [2014] ZALAC 61 (23 October 2014)

Principle:

  • The true nature of the dispute is to be determined from an analysis of the facts and not from the parties' characterisation of the dispute.

  • If the main issue in dispute is about the interpretation and application of a collective agreement, then it must, in terms of section 24 of the LRA, be resolved, firstly, by conciliation, failing that, by arbitration.

  • The exercise of their functions as full-time shop stewards is conditional on a normal working environment, and they are entitled to be remunerated for as long as the normal work duties they are excused from performing, are capable of being performed. It would be manifestly unfair and irrational to treat them differently than other striking employees.

Facts:

3 employees were elected as full-time shopstewards in terms of a collective agreement between the parties. The agreement provided that they would be remunerated on the basis of the post they held at the time of their election and that they would receive all increases applicable to such posts. They would not be prejudiced in their employment prospects by being elected as full-time shopstewards, and they would be 'deemed' to retain their jobs during their terms of office.

The agreement further provided that they would -

  • report to a designated member of the employer "for administrative purposes";
  • report and be accountable to the union for the satisfactory performance of their duties, and
  • the union shall ensure they carry out their duties efficiently and effectively.

A dispute arose between the union and the employer over the suspension of certain people relating to the awarding of tenders. This dispute was unresolved and led to the union giving notice of its intention to commence protected strike action in February 2011. The strike persisted until April / May 2012. The employer applied the 'no work no pay' principle to all striking employees and the full-time shopstewards during the strike. The union denied that its full-time shopstewards were on strike and contended that they were on duty representing the interests of their members. They apparently signed in everyday and reported for work as full-time shopstewards, monitoring the strike and attending meetings and hearings. At no stage did they refuse to render services. As such, they felt they had a right to be paid as normal during the strike.

The LC agreed with the union. In looking at the collective agreement under which the full-time shop stewards were appointed, the LC said that it is clear that a full-time shop steward no longer renders work to the employer for the benefit of the employer. The task of the full-time shop steward is to act for the benefit of the union and its members on a full time basis, and in doing so will usually liaise with the employer whenever necessary. The anomaly of the position of the full-time shop steward is the fact that although he/she remains employed by the employer and as such is subject to the same conditions of service as other employees, the full-time shop steward will not render a service to, or work for the employer for the benefit of that employer: The full-time shop steward works for the union and for the benefit of the union.

The further anomaly of this position as full-time shop steward is the fact that the shop steward, by virtue of his/her position, will often engage in conflict with the employer over union related matters. As such, full-time shop stewards and employers are 'natural adversaries'. It is true that shop stewards must report to a designated member of the employer for 'administrative' purposes, but the full-time shop steward is accountable to the trade union for the satisfactory performance of shop steward duties.

'No-work-no-pay' arises from the principle that an employee is to tender services to the employer in return for payment of a salary. If an employee does not tender services during a strike, the employee will not be entitled to be paid. But as long as the full-time shop steward tenders and/or engages in the duties and obligations of a full-time shop steward, he/she is therefore entitled to the payment of his/her salary.

The court held that this principle extends to full-time shop stewards who participate in a strike, in the sense that they fulfill their union obligations whilst the strike is continuing. The principle of 'no-work-no-pay' therefore does not apply to a full-time shop steward during the course of a strike, provided that the full-time shop steward engages in trade union activities to the satisfaction of the union and reports to the union structures during the strike.

When the matter came before the LAC, it was questioned whether or not the LC had jurisdiction to deal with the matter at all. At the heart of the dispute was the interpretation and application of the collective agreement between the parties, and section 24 of the LRA provides that such disputes should be determined firstly by conciliation, failing which arbitration.

In a majority judgment, the LAC found as a result of section 24 that the LC should not have heard the matter at all. The nub of the real dispute between the parties was the interpretation and application of their collective agreement, despite the union attempting to portray the dispute as relating to the employees' rights under their contracts of employment, in terms of which the LC was empowered to deal with the matter under section 77(3) of the BCEA. The true nature of the dispute, the LAC said, "is to be determined from an analysis of the facts and not from the parties' characterisation of the dispute". On the basis of the jurisdictional point alone, the LAC's majority judgment overturned the LC decision and didn't even get to deal with the merits of the full-time shop stewards' rights to pay during the strike.

A minority judgment by Waglay JP however for various reasons rejected the jurisdictional issue, and did consider whether the full-time shop stewards should be paid during the strike. In this minority judgment, the Court found that the dispute had been framed as a contractual dispute and that the LC did have jurisdiction under section 77(3) of the BCEA. But it then went on to reject the the full-time shop stewards' rights to pay during the strike, stating that the exercise of their functions as full-time shop stewards was conditional on a normal working environment. It also commented that it would be "manifestly unfair and irrational to treat them differently than the other striking employees."

For these reasons the LAC's minority judgment found that the employer had been correct in applying the 'no work no pay' principle to the shop stewards.

Extract from the judgment:

(WAGLAY JP, TLALETSI DJP AND COPPIN AJA)

[20]   It is apparent from an analysis of the papers filed in the court a quo that the main issue is about, and is governed by, the main agreement...........................

[21]   It is trite that the jurisdiction of the Labour Court (and the CCMA or a council) to entertain a matter is determined from the pleadings in the matter. It is also an established principle that in application proceedings, the affidavits constitute the pleadings and the evidence. While the issues between parties generally emerge from the pleadings, it may not be readily possible to determine what the true nature of those issues are, or what the true nature of the dispute is, because of the manner in which the pleadings are drafted. Therefore, the true nature of the dispute is to be determined from an analysis of the facts and not from the parties' characterisation of the dispute.

....................................................

[23]   If the main issue in the "pleadings" is about the interpretation and application of the clauses in the main agreement, including clause 2.5.6 and/or 2.5.7 of the main agreement, then it must, in terms of section 24 of the LRA, be resolved, firstly, by conciliation, failing that, by arbitration, in accordance with the provisions of the main agreement, alternatively, by the CCMA by means of conciliation, failing that, by means of arbitration, as mentioned earlier in this judgment.

...................................................

WAGLAY JP ( minority judgment)

[42]   In my view, this contention is misconceived. The appellant, as I have mentioned, does not pay a full-time shop steward to work for a trade union. What it does is to pay those of its employees who are full-time shop stewards their normal salaries for rendering of services in terms of their substantive positions. However, it excuses the full-time shop stewards from performing the required services. This carries with it an important corollary, i.e. the full-time shop steward is entitled to be remunerated for as long as the duties that he or she is excused from performing are capable of being performed.

[43]   Once the full time shop-stewards gave notice to the appellant (as they did) that all SAMWU members would be embarking on a strike from a particular date and time unless certain of their demands were met and once the strike commenced with all SAMWU members participating therein, it cannot be said that the three full time shop stewards, even fictionally so, could carry out their duties as employees. Once members of SAMWU represented by the full-time shop stewards went out on strike, and for so long as the strike continued, the appellant was entitled to apply the 'no work no pay', principle to the full-time shop stewards. This is so because their duties were no longer capable of being performed by reason of the strike. Furthermore, by issuing the strike notice, the full time shop-stewards were acting on behalf of themselves and on behalf of SAMWU members. They thus, in my view, signalled an intention not to carry out their fictional duties. It would be manifestly unfair and irrational to treat them differently than the other striking employees.

[44]   In any event, the duties carried out by the full time shop-stewards at the time of the strike were functions which would generally be carried out by ordinary (i.e. non-full-time shop stewards) in a strike situation. The non-full-time shop-stewards could not expect to be paid if, while on strike, they assisted fellow colleagues in a disciplinary hearing or negotiated with their employer in respect of the demands relating to the strike or report back to fellow members of the union on offers made or rejected by the employer. In other words, the exercise of their functions as full-time shop stewards was conditional on a normal working environment.

[45]   For these reasons, in my view, the appellant was correct in applying the 'no work, no pay' principle to the shop-stewards and the judgment of the Labour Court stands to be corrected in this regard.