Bargaining councils are renowned for engaging in various strategies to protect their turf, as it were.  The stakes are high.  Employers falling within the scope contribute large amounts of money.  A controversy is still brewing over the right to extend collective agreements to non-parties.  So pending the outcome of any demarcation dispute the councils, and their agents, cannot behave unlawfully.  The labour interdicted and prohibited a council and its agents from engaging in various unlawful tactics.

Cape Global Construction And Engineering Training Center (Pty) Ltd v Building Industry Bargaining Council (Cape of Good Hope) (C 408/16) [2016] ZALCCT 19 (15 July 2016) per A van Niekerk J.

Effect of court order:

Pending the final determination of the demarcation dispute between the respondent and the applicant before the CCMA under case number WECT 19390- 15 the respondent and/or its agents, in carrying out site inspection at NMC sites upon which the applicant’s employees work, are interdicted and restrained from:

  • victimising and/or singling out the applicant’s employees by inter alia calling them together as a group separated from all other employees employed or engaged at the NMC site in question;
  • informing the applicant’s employees that they cannot be registered with the MEIBC;
  • informing the applicant’s employees that they are obliged and/or required to register with the respondent;
  • purporting to require and/or advise the applicant’s employees to register with the respondent;
  • furnishing the applicant’s employees with application forms for registration with the respondent;
  • informing the applicant’s employees that they are not permitted to work or be present at the NMC sites until such time as they are registered with the respondent;
  • making any representation to the applicant’s employees regarding their current entitlement to employment benefits, including but not limited to:
    • statements to the effect that the applicant’s employees are not entitled to benefits, and
    • statements to the effect that the applicant is “stealing” or “robbing them” of their benefits; and
  • in any manner unlawfully disrupting the applicant’s employees’ activities on NMC sites and/or inciting or intimidating them in any way.

Excerpts

[1]        The applicant seeks an interim order, pending the final determination of a demarcation dispute, preventing the respondent and its agents from what it contends are unlawful acts during the course of site inspections carried out at the sites of one of the applicant’s clients, NMC (Pty) Ltd (NMC).  These are my brief reasons for the order that is recorded below.

[2]        It is not in dispute that the applicant and its employees are currently registered with the bargaining council established for the metal and engineering industries (MEIBC), and that the terms and conditions of employment of the applicant’s employees are regulated by the agreements concluded in the MEIBC.  There is currently a demarcation dispute pending between the parties.  The issue to be determined in that dispute is whether the applicant’s employee engaged at NMC sites fall under the jurisdiction of the respondent or the MEIBC.  The demarcation hearing has been postponed to mid-October 2016.  The respondent contends that the applicant’s employees on NMC sites are subject to its jurisdiction, that they are required to be registered with the respondent, and that its collective agreements apply to them.

[3]        The applicant contends that the respondent’s agents conducting inspections at NMC sites have informed the applicant’s employees that they cannot be registered with the MEIBC, that they are obliged to be registered with the respondent if they want to work on NMC sites, that they are currently not entitled to benefits and that in order to qualify for benefits, they must register with the respondent.  It is not disputed that the respondent’s agents have required the applicant’s employees to complete what is referred to as a ‘provisional registration’ form.  The applicant contends that the sole purpose of the respondent requiring its employees to complete the form is to procure the registration with the respondent and that this, in itself, is subversive and undermining of the pending demarcation process.  It warrants mention that the registration form informs employees that the registration application can be completed only once a copy of the relevant employee’s identity document is received and all other information required to submitted and that to this end, employees are required to bring the form and their identity documents to the respondents office ‘to receive your December leave pay’.

. . . . .

[5]        I am satisfied having regard to the ongoing nature of the harm that is alleged and the unequivocal refusal by the respondent during the last week of June to provide the undertaking sought by the applicant, that this is not a matter where it can be said that urgency has been self-created.  Clearly, the applicant would not be able to obtain substantial redress at any hearing in due course and in my view, this warrants the matter being treated as urgent.  The fact that the applicant did not seek an expedited hearing as contemplated by the practice manual is not fatal.  The present application was filed in circumstances where the court was in recess for some four weeks, and it is doubtful whether even an expedited hearing could be arranged before the recommencement of the demarcation hearing.

[6]        The parties are in agreement that since the present application is one in which the applicant seeks interim relief, the principles set out in Webster v Mitchell 1948 (1) SA 1186 (W) are applicable.  In essence, this requires that where a genuine dispute of fact arises on the papers, the applicant’s version must be preferred.

. . . . .

[9]        At the outset, it should be emphasised that the applicant does not seek to prevent the respondent from lawfully carrying out its obligations in terms of the Labour Relations Act and in particular, does not seek an order preventing the respondent from carrying out any site inspections at NMC sites or even issuing compliance orders against the applicant.  . . . . .

[10]      Put bluntly, unless and until there has been a demarcation in the respondent’s favour, the respondent’s agents have no business conducting themselves in the manner contemplated in paragraph 2 of the notice of motion.  Of course, they are entitled (indeed obliged) to exercise their duties under the LRA and that they are entitled to carry out site inspections.  What they are not entitled to do is to act unlawfully.  The prohibitory interdict sought by the applicant does no more than require the respondent’s agents to act within the proper and lawful course and scope of their statutory duties.  For the above reasons, in my view, the applicant is entitled to the relief it seeks.