Ford Motor Company of SA (Pty) Ltd v NUMSA 2008 29 ILJ 667

Principle:

The refusal to work overtime without following dispute resolution procedures constitutes an unprotected strike.

Facts:

Ford had in place a Collective Agreement providing that employees would work overtime when operational requirements required. The court confirmed that this constituted a contractual obligation to work voluntary overtime. The refusal to work overtime without following dispute resolution procedures constituted an unprotected strike.

Extract from the judgment:

[13]     I am not in agreement with the respondents' submission that the individual applicants were not contractually required to work voluntary overtime. I am also not in agreement with the submission that overtime had to be 'negotiated' every time there was a need to work overtime. It is, in my view, clear from clause B3 of the NBF agreement that the parties have agreed that, due to operational requirements, there is a need to work overtime which will generally be of a voluntary nature. What is also clear from this agreement is that parties will work such overtime and that parties will not unreasonably refuse to work overtime. There is thus, in my view, clearly a contractual obligation to work voluntary overtime. The plant level agreement also appears to be consistent with this provision in that it requires that whenever 'essential' overtime is required, a process of consultation will be followed. Neither of these two documents requires that the employer (including the applicant) must 'negotiate' with the shop stewards and agree on whether or not to work overtime. In this regard the applicant contended that, before overtime is worked on a particular weekend, the applicant will consult with the shop stewards in order to schedule and facilitate such overtime and that, in the event an employee is not able to work due to his or her personal circumstances, the employee will be relieved from working such overtime provided that such employee notifies the applicant with 24 hours of his or her inability to work overtime. I am therefore of the view that it is clear that employees must work voluntary overtime if there is an operational requirement and only those employees with a legitimate excuse will be exempted from working such overtime. I have perused the documentation (confirming the overtime arrangements and schedules) referring to 'essential overtime' attached to the answering affidavit and it is clear from the first document dated 29 June 2007 in terms of which overtime was scheduled for Saturday 30 June 2007 and the second document dated 8 August 2007 in terms of which overtime was scheduled from 14 August 2007, that overtime was scheduled after consultation with the union. Both these documents were signed not only by representatives of the applicant but also by a representative of the first respondent. Both these documents are consistent with the applicant's case, namely that the union is consulted with a view to scheduling the overtime but that this does not imply that overtime could only be worked once the parties have reached an agreement to work overtime.

[14]   Having concluded that there exists a contractual term to work voluntary overtime, it will necessarily follow that a refusal to work voluntary overtime will constitute a strike (provided that there is compliance with all the elements required for strike action).
Was there an intention to embark on an overtime ban?

[15]   Having accepted that the individual respondents were compelled to work voluntary overtime in terms of the collective agreement and the plant level agreement, and having accepted that it would constitute a strike if the individual respondents refuse to work voluntary overtime, it now needs to be considered whether the respondents have in fact expressed an intention to embark on a voluntary overtime ban and thus refused to work as contemplated by the definition of a strike. Before turning to this point, I need to point out that it is clear that there is compliance with the requirement that the individual employees must act in a concerted manner and that there must be a demand (see the correspondence referred to above.)