The LC granted an interim interdict to prevent an unprotected strike over a non-interest dispute.  The collective agreement defined the new remuneration philosophy as:

‘the new remuneration philosophy is based on the principle (and supporting framework) of common job grading, external benchmarking, common salary key scaling with a common key scale adjusted / notched for tenure with progression based on performance, subject to affordability and sustainability’.

City of Johannesburg Metropolitan Municipality v Samwu (J1746/16) [2016] ZALCJHB 310 (19 August 2016) per Snyman AJ.

LC summary:          

Strike – whether unprotected – true nature of issue in dispute determined – real issue about case of improper / incorrect application of grading – constitutes a rights dispute – strike unprotected

Strike – whether unprotected – issue of grading determined by collective agreement – issue in dispute thus regulated by collective agreement – strike unprotected

Essential services – cancellation of minimum service agreement – requirements for cancellation – agreement not validly cancelled and still in force – employees consequently not engaged in essential service

Strike – application for interdict – requirements of Section 68 – grounds for condonation – non compliance condoned

Interdict – principles stated – prima facie right shown and other requirements satisfied – interdict granted

Excerpts

Introduction

[1]     This matter came before me on 16 August 2016 as an opposed application by the applicant to interdict contemplated strike action by the respondents.  The application was brought in terms of Section 68 of the LRA.[1]  After considering the affidavits filed by both parties, and hearing submissions in Court, I issued the following order on 16 August 2016:

‘1. The provisions of the Rules relating to the time and manner of service are dispensed with and this matter is heard as one of urgency in terms of Rule 8.

  1. The failure to comply with section 68 of the Labour Relations Act, 66 of 1995 (“the Act”) as to prior notice of the application is condoned.
  1. A rule nisi is issued calling on the Respondents to show cause on 11 November 2016 at 10h00 or so soon thereafter as the matter may be heard, why a final order not be granted in the following terms:

3.1    The strike threatened by the Respondents in the First Respondent’s letter of 5 August 2016 (“the strike”) is declared to be unprotected and unlawful;

3.2    The First Respondent is interdicted and restrained from calling, promoting, encouraging, supporting, participating in or otherwise furthering the strike;

3.3    The Second to Further Respondents are interdicted and restrained from calling, promoting, encouraging, supporting, participating in or otherwise furthering the strike;

  1. The orders in paragraphs 3.2 and 3.3 above shall operate with immediate effect as an interim interdict pending the final determination of this matter on the return date hereof.
  1. Costs are reserved for argument on the return date.
  1. Written reasons for this order will be handed down on Friday 19 August 2016.’

[5]     This case has as its core a dispute about the grading of the individual respondents.  The respondents contend that the individual respondents have not been properly graded by the applicant, and seek the consequential outcome that the individual respondents be graded at the level of superintendent and be remunerated accordingly.

. . . . .

[58]     I am therefore satisfied that the real dispute of the respondents constitutes a rights dispute.  The dispute, at its core, is one of promotion.  The respondents’ case is that the individual respondents have been upgraded, and as such, are entitled to the implementation of such upgrade and to be paid increased salaries accordingly.  The fact that the demand is coupled with an increase in salary matters not.   The increase in salary flows from the right sought to be asserted by the respondents, which rights accrued pursuant to the 2014 ICT grading.   It equally does not matter if the assertion of right is coupled with labelling describing it as unfair.

The failure by an employer to implement a regrading and commensurate increase in salary that employees are of right entitled to would be unfair, per se.  This kind of dispute must be subjected to arbitration pursuant to the unfair labour practice provisions in Section 186(2)(a) of the LRA.

In simple terms, and as said in Mathibeli, if the respondents prove the facts that their posts were in fact regraded at superintendent level with commensurate pay increase, they would be entitled to the relief they now demand in the proceedings before me.  If not, they get nothing.

[59]     Accordingly, and because the issue in dispute in this instance is subject to resolution by way of arbitration under the LRA, strike action would be prohibited by way of the application of Section 65(1)(c) of the LRA, which reads:

‘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 or any other employment law‘.

The respondents’ proposed strike would therefore be unprotected, and in this respect, the applicant has thus established a prima facie right to the relief sought.