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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 Respon




JUDGMENT



AC BASSON, J




 NATURE OF THE APPLICATION



 [ 1]           The Applicant, SBV Services (Pty) Ltd, seeks the confirmation
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       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 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:
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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.”




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 Kwa-Zulu 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

          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.
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[ 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 bullet-proof 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 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
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       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:




              "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
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                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 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
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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:



           ”   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:
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                  "CIT-AND 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

          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
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         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.




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 -
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                                                                CASE NO. J2717/07




                " ...   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

        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)."
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 [ 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).




Letter of 4 September 2007

 [ 17]    The letter dated 4 September 2007 from the First Respondents

           effectively kick-started 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
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           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

            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
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                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

                       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.”
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 [ 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

           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.

          On behalf of the Respondents it was further argued that the guards

          are, as a result of these restrictions precluded from, for example,
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        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

        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
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                                                          CASE NO. J2717/07




        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 so-called 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

        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
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           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.”



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
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                          ("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

            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,
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                                                              CASE NO. J2717/07




        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

        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 work-related

        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
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                                                             CASE NO. J2717/07




        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

        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
                                                                   Page of 40
                                                             CASE NO. J2717/07




                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

        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
                                                                 Page of 40
                                                           CASE NO. J2717/07




        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

        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
                                                                  Page of 40
                                                            CASE NO. J2717/07




        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

        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
                                                                        Page of 40
                                                                  CASE NO. J2717/07




            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,

            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.




 1st 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
                                                                                                      Page of 40
                                                                                                CASE NO. J2717/07




           (hereinafter referred to the “Council”).




[ 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.




2nd 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
                                                                         Page of 40
                                                                   CASE NO. J2717/07




                   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.




3rd 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 payment of meal intervals in the CIT industry.”
                                                                         Page of 40
                                                                   CASE NO. J2717/07




[ 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 WORKERS WHO DO NOT TAKE MEAL

                       BREAKS.




[ 41]   TO   SUMMARIZE:   W HAT     IS CLEAR FROM THE FIRST AND THE SECOND

        REFERRAL IS THAT ALTHOUGH THEY ORIGINATE FROM THE MEAL
                                                                          Page of 40
                                                                    CASE NO. J2717/07




         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

         RESPONDENTS WISH TO EMBARK ON STRIKE ACTION IN PURSUANCE OF THE

         DEMAND AS ARTICULATED IN THE AFOREMENTIONED STRIKE NOTICE.
                                                                                              Page of 40
                                                                                        CASE NO. J2717/07




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

                             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

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.”
                                                                   Page of 40
                                                             CASE NO. J2717/07




                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

                wage-work 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

                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:
                                                                          Page of 40
                                                                    CASE NO. J2717/07




                   “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 decision-making in

                          the workplace; and

                          (iv)    the effective resolution of labour disputes.”



 [ 46]      THE CONSTITUTIONAL COURT       IN THE   BADER BOP-CASE     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
                                                                   Page of 40
                                                             CASE NO. J2717/07




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 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
                                                                       Page of 40
                                                                 CASE NO. J2717/07




                  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   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.
                                                                            Page of 40
                                                                      CASE NO. J2717/07




 [ 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 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
                                                                 Page of 40
                                                           CASE NO. J2717/07




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 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
                                                               Page of 40
                                                         CASE NO. J2717/07




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    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
                                                                                  Page of 40
                                                                            CASE NO. J2717/07




              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.



    [ 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




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
                                                                       Page of 40
                                                                 CASE NO. J2717/07




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

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.




            THE ISSUE IN DISPUTE ...”
                                                                            Page of 40
                                                                      CASE NO. J2717/07




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 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
                                                                        Page of 40
                                                                  CASE NO. J2717/07




                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

                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
                                           Page of 40
                                     CASE NO. J2717/07




INSTRUCTED BY: MOODIE & ROBERTSON
DATE OF PROCEEDINGS: 27 MARCH 2008

DATE OF JUDGMENT: 20 MAY 2008

				
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