1 Leave to appeal is granted and the appeal is upheld.
2 The orders of the Supreme Court of Appeal, the Labour Appeal Court and the Labour Court are set aside and replaced with paragraphs 3 and 4 of this order.
3 It is declared that the cancellation of the agreement between South African Airways (Pty) Ltd and LGM South Africa Facility Managers and Engineers (Pty) Ltd entered into in March 2000 obliges LGM South Africa Facility Managers and Engineers (Pty) Ltd to transfer a business as a going concern within the meaning of section 197(1) and 197(2) of the Labour Relations Act 66 of 1995.
4 South African Airways (Pty) Ltd is ordered to pay the costs of:
(a) the Aviation Union of South Africa, including the costs of two counsel whenever two counsel were employed in the Labour Court, the Labour Appeal Court, the Supreme Court of Appeal and in this Court; and
(b) the South African Transport and Allied Workers’ Union in this Court.
Further extracts from judgment of the majority of the Court
“[124] In the circumstances, the cancellation clause of the agreement contemplated a transfer of the business as a going concern. The only debate was about whether the business as a going concern was to be transferred to SAA or to an interim service provider. As long as there is a transferor, the identity of that entity or person is of no material significance. The agreement contemplates transfer by LGM to SAA or to the interim service provider. It requires a transfer by a transferor, the old employer, to the transferee, the new employer.
[125] The cancellation is thus hit by section 197”.
Darcy Du Toit
on November 24, 2011 at 3:48 pm
Good! This will do for second-generation outsourcing what NEHAWU v UCT did for first-generation outsourcing. And, again, an amendment to s 197 is in the offing.
Aviation Union of South Africa v South African Airways (Pty) Ltd
Case No: CCT 08/11 -judgment delivered on 24 November 2011
Leave to appeal was granted and the appeal allowed.
Further details will be provided shortly.
Order
[128] I therefore make the following order:
1 Leave to appeal is granted and the appeal is upheld.
2 The orders of the Supreme Court of Appeal, the Labour Appeal Court and the Labour Court are set aside and replaced with paragraphs 3 and 4 of this order.
3 It is declared that the cancellation of the agreement between South African Airways (Pty) Ltd and LGM South Africa Facility Managers and Engineers (Pty) Ltd entered into in March 2000 obliges LGM South Africa Facility Managers and Engineers (Pty) Ltd to transfer a business as a going concern within the meaning of section 197(1) and 197(2) of the Labour Relations Act 66 of 1995.
4 South African Airways (Pty) Ltd is ordered to pay the costs of:
(a) the Aviation Union of South Africa, including the costs of two counsel whenever two counsel were employed in the Labour Court, the Labour Appeal Court, the Supreme Court of Appeal and in this Court; and
(b) the South African Transport and Allied Workers’ Union in this Court.
Further extracts from judgment of the majority of the Court
“[124] In the circumstances, the cancellation clause of the agreement contemplated a transfer of the business as a going concern. The only debate was about whether the business as a going concern was to be transferred to SAA or to an interim service provider. As long as there is a transferor, the identity of that entity or person is of no material significance. The agreement contemplates transfer by LGM to SAA or to the interim service provider. It requires a transfer by a transferor, the old employer, to the transferee, the new employer.
[125] The cancellation is thus hit by section 197”.
Good! This will do for second-generation outsourcing what NEHAWU v UCT did for first-generation outsourcing. And, again, an amendment to s 197 is in the offing.