Ekurhuleni Metropolitan Municipality v Samwu (JA12/13) [2014] ZALAC 61; [2015] 1 BLLR 34; (2015) 36 ILJ 624; [2014] JOL 32440 (LAC)  (23 October 2014) per Coppin AJA (Tlaletsi DJP concurring and Waglay JP also concurring but for diffrent reasons)

LAC summary: Appeal allowed.  Collective agreement providing for shop-stewards to carry out union functions on full time basis but paid by employer and defining the respective duties and obligations of employee shop-stewards and their employers.  Employer deducting shop-stewards salaries during strike based on “no work no pay” principle– employer disputing that shop-stewards were working during protected strike action-Jurisdiction- employer contending dispute about interpretation of collective agreement- Appeal – the dispute was about the interpretation of clauses in the collective agreement relating to duties and obligations of shop-stewards and employers.

Majority held- Labour Court having no jurisdiction since main issue concerns the interpretation and application of clauses in the collective agreement.  Interpretation of collective agreement was not merely peripheral to issues.

Minority finding that shop-stewards not performing duties when all union members on strike.  Employer correct in applying the no work no pay principle.  Appeal upheld with costs.

[1] This is an appeal against the judgment of the Labour Court (A C Basson J) ordering the appellant to pay three of its employees, full-time shop-stewards and members of the South African Municipal Workers Union (“the respondent”) remuneration for the period of a strike and also interdicting the appellant from making deductions from their salary for their ‘participation’ in the strike.  The Labour Court granted the appellant leave to appeal to this Court.

[2] Two issues were raised concerning the court a quo’s judgment, namely,

  • whether the Labour Court had jurisdiction to decide the dispute between the parties and if so,
  • whether full-time shop-stewards are entitled to be paid for the duration of a protected strike, particularly in circumstances where they participate in the strike.