Road Accident Fund v SATAWU [2010] ZALC SA 54 (LC) per Molahlehi J

The Road Accident Fund [“RAF”] planned to introduce a New Operating Model (“NOM”), being a system for processing payment of claims of victims of road accidents.   The need to introduce the NOM system arose because of changes introduced by statute.  After a failed attempt to involve a CCMA facilitator [LRA s 150] the trade union demanded the RAF make a commitment in a form of a signed agreement that there would be no change in the conditions of employment and referred an interest dispute to the CCMA [LRA s 64(1)].   A task team was established and the consultation process proceeded and there was agreement on a number of issues.

In Road Accident Fund v SATAWU [2010] ZALC SA 54 (LC) Molahlehi J refused to interdict the proposed strike action.   The RAF contended inter alia that a certificate of outcome recording that the dispute was unresolved was null and void because the trade union had suspended the dispute when it was ‘put on ice’ in a letter dated 25 January 2010.   The Labour Court [“LC”] held that the effect of that letter was simply to suspend and not withdraw the dispute or the demands.

The LC also held that even if it could be suggested that the CCMA had not handled the conciliation process properly it did not prevent the trade union from acquiring the right to strike after the lapse of 30 days [LRA s 64(1)(a)(ii)].

The RAF also complained that the commissioner nominated by the CCMA to deal with the dispute had been substituted at the last moment and that this invalidated the process.

The LC held in para [16]:

“There is nothing in s 135(5) of the LRA that the conciliating commissioner must be the one whose name appears in the notice of set down.   If this was the case or such interpretation was to be given to the provisions of s 135(5) of the LRA it would make the function of the CCMA impracticable if not impossible.   Thus in my view the commissioner referred to in s 135(5) is any commissioner properly appointed by the governing body of the CCMA, which for that matter, may occur long before even a particular dispute that that commissioner is called upon to conciliate is referred to the CCMA.   In other words commissioners in the CCMA are appointed to generally perform the dispute resolution function of the CCMA not necessarily to perform that function in relation to a specific dispute.   The status of the commissioner who issued the certificate of outcome in the present instance, it seem fair and reasonable to assume that he is a commissioner appointed by the government and probably before this dispute arose.   The commissioner was thus competent to perform conciliation functions as envisaged in terms of s 135 of the LRA”.

The LC also held in para [24]:

“I am in agreement with the view expressed in the above case that the wording of s 135(5) of the LRA contemplates that if the 30 days have elapsed from the date from which the CCMA received the referral of the dispute the dispute may be referred to arbitration or adjudication by the court.   In the context of mutual interest dispute, the elapse of the 30 days period from the date of the referral to the CCMA, removes the procedural constrain that had been placed on the right to strike or imposed a lock out by any of the parties as the case may be”.

With regard to the RAF’s submission that SATAWU had changed its demands the LC had the following to say in para [27]:

“In my view, the demand in the notice of intention to embark on the strike action by the first respondent [SATAWU] is not different to the one in the referral form.   The essence of the demand in the notice of the intended strike is that the applicant [RAF] should not implement the NOM without giving an undertaking that it would not change the terms and conditions of employment of the first respondent’s members.   The demand in the notice has to be understood in the context of the summary of the dispute in the referral form which is recorded therein as follows: ‘The parties are involved in an attempt to secure conditions of employment and other substantive issues for the new RAF’”.