IN THE HIGH COURT OF NAMIBIA
REPORTABLE
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK
JUDGMENT
Case no: LC 61/2013
In the matter between:
and
|
NAMIBIA
FOOD AND ALLIED WORKERS UNION
|
1st
RESPONDENT
|
|
AND
19 OTHERS
|
2nd
TO 20th RESPONDENTS
|
Neutral citation: Meatco v
Namibia Food and Allied Worker Union & Others (LC 61/2013) [2013]
NALCMD 14 (19 April 2013)
Coram: Smuts, J
Heard: 17 April 2013
Delivered: 19 April 2013
Flynote: Urgent application to
interdict overtime ban as unprocedural industrial action –
requirements of s79 of Act 11 of 2007 discussed – jurisdiction
of the Labour Court to grant urgent interdicts raised and found to be
confined to pending disputes referred under Chapter 8 of Act 11 of
2007
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ORDER
The application is dismissed, no order
as to costs.
JUDGMENT
SMUTS, J
The applicant is a statutory body
corporate, established by s 2 of Ordinance 2 of 1986 and continuing
to exist under Act 1 of 2001. The applicant’s statutory
objects include serving, promoting and coordinating the interests of
livestock producers in Namibia and to strive for the stabilisation
of the Namibian meat industry in the national interest. Its objects
also include marketing products in Namibia or elsewhere to the best
advantage of Namibian livestock producers.
The first respondent is a registered
trade union and the recognised exclusive bargaining agent for the
bargaining unit of the applicant’s employees (the union). The
other respondents are union shop stewards and its employees within
the bargaining unit at its Windhoek and Okahandja abattoirs.
This application relates to the
refusal on the part of employees within the bargaining unit to work
overtime. This refusal is in concert and is confirmed in a letter by
the union representing those employees. That letter dated 11 March
2013 was addressed by the union to the applicant, confirming that
the workers within the bargaining unit would no longer work overtime
at the Windhoek and Okahandja abattoirs as from 18 March 2013.
The applicant takes issue with this
refusal. It contends that it constitutes industrial action as
defined in the recognition agreement between the parties as well as
a strike as defined in s 1, the definitions section of the Labour
Act, 11 of 2007 (“the Act”). That definition includes
the disruption or retardation of work by employees when it is done
to compel the employer to accept, modify or abandon any demand that
may form the subject matter of a dispute of interest. The applicant
points out that this refusal has been engaged in at the time of the
annual wage negotiations and is thus unprocedural industrial action
and constitutes a strike in conflict with both the Act and the
recognition agreement. The applicant points out that this action is
unprocedural as the respondents have not followed the dispute
mechanisms contained in the recognition agreement and the Act. The
applicant also contends that the respondents are also engaged in a
“go-slow” which also constitutes strike action. It
submits that the overtime ban and go slow are in contravention of
the contracts of employment of the workers as well as being in
conflict with the recognition agreement and s 74 of the Act.
The applicant accordingly approached
this court on an urgent basis for an order declaring this industrial
action as being in contravention with the employment agreements, the
recognition agreement and the Act. The applicant also applied for an
interdict to restrain the respondents from continuing with this
overtime ban. It also sought further interdicts to restrain the
respondents from interfering with or obstructing its operations and
from intimidating or harassing or interfering or preventing other
employees from entering or initing the applicant’s Windhoek
and Okahandja abattoirs and/or encouraging or exciting other persons
to commit any of the acts specified in the interdicts. The applicant
also seeks costs against the first respondent.
The applicant points out that the
refusal to work overtime on the part of these workers comes at a
particular difficult time for both the applicant and livestock
producers in Namibia. It points out that Namibia is in the grip of
one of the most severe droughts in the past 14 years. As a
consequence, the organisations representing the agricultural
industry in Namibia had called upon their members to destock as a
matter of some urgency. By doing so, producers would protect what
was left of grazing and should attempt to sell their livestock
whilst it is still in a reasonable condition. This call by the
representative organisations in the agricultural industry has been
supported by the Government of Namibia which has likewise urged
farmers to slaughter their livestock in order to reduce numbers and
in the best interests of the industry and of the national economy.
The applicant points out that the
conditions of employment of its permanent employees within the
bargaining unit include an express obligation to work overtime if
and when required by operational requirements. It is explained in
the applicant’s founding affidavits that the express agreement
on the part of its workforce is required for the performance of
overtime because of the seasonal and operational requirements which
occur within the industry. Those employees working overtime would be
compensated in accordance with the Act for their overtime work. The
applicant refers to other terms in the conditions of employment
which also refer to the operational requirements of the industry
with regard to its unpredictable nature with reference to available
volumes, selling capacity and hygienic and health requirements in
the context of the perishable nature of the products.
The applicant points out that the
contracts of employment of temporary employees also includes an
acceptance of unavoidable seasonal and periodical fluctuations
requiring overtime work. But the applicant points out that the
contracts of temporary employees expired at the end of 2012 and that
it is presently negotiating new contracts for such employees.
The respondents in their answering
affidavit took the position that a proper interpretation of their
conditions of employment would require that employees would still
need to be approached for an agreement to work overtime on any
particular day when operational requirements dictate the need to do
so. This despite the express terms of the agreement. This approach
was however correctly jettisoned in argument by counsel representing
the respondents, Mr TJ Frank SC, assisted by Mr S Namandje. Once the
conditions of employment included an obligation to work overtime
when required, it would follow that the refusal in concert to do so
during wage negotiations would in my view constitute industrial
action on the part of those employees.
Mr Frank however argued that the
position of temporary employees however was different. He contended
that there would only be a tacit relocation of the essential terms
of the contract of employment pending agreement on all the terms and
conditions. This approach, he submitted, was in accordance with
common law principles. Mr Corbett, who represented the applicant
countered by submitting that the obligation to perform overtime work
was one of the essentials the employment with the applicant. In view
of the conclusion I reach with reference to certain other related
provisions of the Act, it would not be necessary to express my own
view on this issue. I can however indicate that it would seem to me
in the context of the applicant’s business that it would be a
material term of the employment of employees – whether
temporary or permanent – that they would need to work overtime
if operational requirements would dictate that.
In addition to opposing the
application on its merits, the respondents took certain preliminary
points in opposition to the application in the answering affidavit
and supplemented in argument. I deal with them in the sequence they
are raised.
Declaratory relief
In the first instance, the
respondents took the point that it would not be open to the
applicant to seek the declaratory relief contained in the notice of
motion by virtue of the provisions of s 117(1)(d) of the Act. This
subsection confers upon this court its jurisdiction to grant
declaratory relief. But it contains a proviso that this jurisdiction
can only be exercised if the declaratory relief is the only relief
sought. This anomolous provision was dealt with in an earlier
unreported judgment by this court
where the following was said:
‘[26]
This overall approach and underlying intention would appear to have
inspired the provisions of s 117(1)(d). Both sets of counsel
questioned the wisdom behind it. They correctly contended that the
proviso may well give rise to anomalies. But this does not translate
itself into manifestly absurd results. In the absence of the latter,
I am obliged to give effect to the unambiguous terms of proviso. It
means that this court can only grant a declaratory order if it is the
only relief sought.
[27]
In this application the declaratory relief sought in paragraph 2 was
not the only relief sought in the application. The applicants also
sought interdictory relief in paragraphs 3 and 4 of the notice of
motion. The fact that it became the only relief sought when the
matter was ultimately argued before me would not in the face of the
clear wording of s 117(1)(d) avail the applicant.
[28]
It follows that s 117(1)(d) obliges me to decline the declaratory
relief sought in paragraph 2 of the notice of motion on
jurisdictional grounds. . . . ‘
After being alerted to this
authority, Mr Corbett accepted that the applicant would no longer
seek the declaratory order in the notice of motion but would confine
itself to applying for the interdicts against the respondents which
he further confined and sought to amend in the respects I set out
below.
Notice under s79
A further point taken by the
respondents was that the applicant had not complied with the express
requirements of s 79 of the Act. This section provides under the
heading “urgent interdicts”:
‘(1)
The Labour Court must not grant an urgent order interdicting a
strike, picket or lockout that is not in compliance with this
Chapter, unless-
(a)
the applicant has given to the respondent written notice of its
intention to apply for an interdict, and copies of all relevant
documents;
(b)
the applicant has served a copy of the notice and the application on
the Labour Commissioner; and
(c)
the respondent has been given a reasonable opportunity to be heard
before a decision is made.’
Mr Frank submitted that the court
would have no discretion in condoning any non-compliance with the
express requirements set out in this section. Mr Frank pointed out
that the section posited a prior notice of an intention to apply for
an interdict being given to a respondent and to the Labour
Commissioner in addition to the court application itself.
Mr Corbett however contended that the
mischief which the section sought to address was not to permit
applicants approaching the court on an ex parte basis without
giving any notice to respondents. He submitted that the service of
the notice of motion constituted written notice of the intention to
apply for an interdict in compliance with s 79(1)(a). He pointed out
that s 79(1)(b) required service of both the notice and application
on the Labour Commissioner but there was no such requirement in
respect of respondents as set out in s 79(1)(a). I do not agree with
this approach. The respondent would be entitled to service of the
application. This would not need to be spelt out in s 79(1)(a). It
is however necessary to do so with reference to the Labour
Commissioner seeing that the Labour Commissioner would not
necessarily be a party to the proceedings. The Labour Commissioner
may thus not otherwise be entitled to service of an application in
the absence of s79. It was thus necessary for the legislature to
specifically provide for both the notice to and service of the
application upon the Labour Commissioner.
It would seem to me that the
legislature specifically contemplates not only service of an
application upon a respondent (and the Labour Commissioner) but also
that notice of an intention to bring that application in advance of
that application being given. Whilst Mr Corbett may be correct in
his submission that the primary mischief sought to be addressed
would be to exclude applications without prior notice, the
legislature decided to go much further than merely exclude ex parte
applications. Not only is service of the application required but a
notice of an intention to bring it beforehand is also mandatory. The
advantages of this approach are self evident. Service of a notice of
this kind on the Labour Commissioner would enable that office to
take any steps, if appropriate, to avoid the need for the
application itself, given the wide ranging powers and functions
vested in the Labour Commissioner. Prior notice also places a
respondent on terms that its conduct will be the subject matter of
an interdict. It also in fairness affords the respondent the
opportunity to prepare for such an application and to marshall its
resources in doing so. The provision is thus underpinned by
compelling considerations of procedural fairness as well as having
the advantage of notifying the Labour Commissioner’s office of
an impending court application in view of the centrality of that
office to the resolution of labour disputes. But importantly for
this court, the section is clothed in peremptory language,
precluding this court from granting any urgent interdict in the
absence of compliance with each of the three requirements contained
in it.
Mr Corbett initially referred to the
minutes of the final meeting between the applicant and the union
before the application was launched. That meeting was held on 4
April 2013. At that meeting, it was recorded in the minutes that the
applicant had informed the union it follow the “legal route”
as a consequence of its stance. This in my view would not constitute
compliance with s 79(1)(a). The subsection specifically requires a
written notice of an intention to apply for an interdict. There was
thus not only the absence of a written notice but it was also not
specifically stated that there would be an intention to seek an
interdict.
Mr Corbett referred to a
supplementary affidavit of his instructing legal practitioner in
which it was stated that a copy of the application was provided by
that attorney to the union in advance of service of the application
by the Deputy Sheriff. It would seem to me in the circumstances that
this would constitute substantial compliance with s 79(1)(a). Mr
Frank pointed out however that, even if this were to constitute
compliance, a copy of that notice had not been forwarded to the
Labour Commissioner as is required. Mr Corbett contended that there
could have been no prejudice whatsoever upon either the respondents
or the Labour Commissioner, given the fact that the application was
postponed at the request of the respondents when it was initially
set down for the purpose of filing answering affidavits. Prejudice
is not however relevant to this enquiry as condonation is not
possible in the event of non-compliance.
In the circumstances of this specific
matter the postponement of the applicant to the date of hearing
would however seem to me to constitute substantial compliance with s
79(1)(b) as the Labour Commissioner would then have received notice
in advance of the hearing of this application for the urgent
interdict which was then postponed and heard on a subsequent date.
If this point had been raised at the initial hearing, one remedy in
addressing non-compliance would be to postpone it so that notice
could be given to the Commissioner of the hearing so that any
intervention on his part could proceed before the actual hearing of
the application. That purpose would then have been served by that
postponement, as had occurred.
Jurisdiction
The respondents also take the point
that this court would only have jurisdiction to grant a temporary
interdict if a dispute in terms of Chapter 8 of the Act has been
registered. The respondents point out that it is clear from the
applicant’s papers that no such dispute had been registered
prior to the seeking of the interdict.
Section 117(1)(c) vests this court
with exclusive jurisdiction:
‘To grant
urgent relief including an urgent interdict pending resolution of a
dispute in terms of Chapter 8.’
Mr Frank referred to s 73 of the Act
which requires in peremptory terms that collective agreements must
provide for a dispute resolution procedure including an arbitration
procedure to resolve any dispute about the interpretation,
application or enforcement of the agreement. In the respondents’
answering affidavits, there is specific reference to the provisions
of the recognition agreement which provide for a dispute procedure.
Chapter 8 of the Act deals with the prevention and resolution of
disputes. Part B of that Chapter specifically deals with the
conciliation of disputes and the role of the Labour Commissioner in
designating conciliators to try to resolve disputes referred to the
Labour Commissioner by means of conciliation. Part C of Chapter 8
then refers to resolving disputes by way of arbitration through the
office of the Labour Commissioner. Mr Frank referred to s 86 which
vests an arbitrator with the power to grant an interdict in any
award made by him or her. He submitted that it was thus incumbent
upon the applicant to first seek to resolve the dispute pursuant to
its recognition agreement and then to proceed to resolve it under
Chapter 8 before any urgent interdict could be sought from this
court.
Mr Frank referred to a recent
unreported decision of this court in Titus Haimbili and Another v
TransNamib Holdings Ltd and Others
where this court held:
‘[12]
The proper approach to the interpretation of Section 117(i)(e) is to
give effect to the ordinary grammatical and literal meaning of the
provision not in isolation but in the context of the Act as a whole
and more specifically in the context of the dispute resolution
mechanisms provided for in the Act itself.
[13]
In Namdeb Diamond Corporation (Pty) Ltd v Mineworkers Union of
Namibia and All its members currently on strike in the Bongelfels
Dispute Case No LC103/2011 (unreported) Smuts J. had occasion to
deal with Section 117(i)(d) of the Act and its interpretation which
relates to the granting of declaratory orders. In dealing with the
resolution of disputes and the jurisdiction of this court he states
the following:
“But
the Act did away with district labour courts. It placed greater
emphasis on conciliation and, of importance in this context, it
brought about a new regime of arbitration of disputes by specialised
arbitration tribunals operating under the auspices of the Labour
Commissioner. The provisions dealing with these tribunals in Part C
of the Act place emphasis upon expediting the finalisation of
disputes and upon the informality of those proceedings. The
restriction of participation of legal practitioners and the range of
time limits for bringing and completing proceedings demonstrate this.
Arbitrators are enjoined to determine matters fairly and quickly and
deal with the substantial merits of disputes with a minimum of legal
formalities.
The
overriding intention of the legislature concerning the resolution of
disputes is that this should be achieved with a minimum of legal
formality and with due speed. This is not only laudable but
particularly appropriate to labour issues. I stress that it is within
this context that the Act places greater emphasis on alternative
dispute resolution and confines the issues to adjudicated upon by
this court s 117.”
[14]
I respectfully agree with that approach. In applying those principles
I conclude that this Court’s jurisdiction to grant urgent
relief is confined to those instances where a dispute was lodged in
terms of Chapter 8 and is awaiting resolution. The interpretation
contended for by the applicants is not in harmony with the provisions
of the Labour Act relating to the resolution of a dispute relating to
whether a dismissal is unlawful. That is in the first instance a
matter to be resolved by a process of conciliation and arbitration by
the Labour Commissioner.’
This court thus concluded in the
Haimbili matter that this court’s jurisdiction to grant
urgent relief would be confined to instances where a dispute had
been lodged in terms of Chapter 8 in that it would be pending the
resolution of that dispute. I am bound by that approach unless I am
persuaded that it is clearly wrong. Having carefully considered both
Mr Frank’s submissions and those of Mr Corbett, it is clear to
me that the approach in the Haimbili matter is not clearly
wrong but is in fact very sound. I in fact respectfully agree with
it. This approach also accords with the ordinary grammatical meaning
to be given to s 117(1)(e). Effect must be given to the ordinary
grammatical and literal meaning of this provision unless it would
lead to a manifest absurdity inconsistency, hardship or result
contrary to the intention of the legislature.
As was pointed out in Haimbili, s 117 manifests an intention
on the part of the legislature to achieve the resolution of disputes
by means of alternative dispute resolution mechanisms provided for
in Chapter 8 through the office of the Labour Commissioner, rather
than through the courts.
That is the choice which has been made by the legislature and which
this court is to give effect to.
Mr Corbett however submitted that s
117(1)(e) is to be read with the powers of this court under s 79(1)
of the Act. He submitted that this court under s 79 is authorised to
interdict strike action not in compliance with Chapter 7 of the Act
as opposed to other disputes which have been referred to the Labour
Commissioner in terms of Chapter 8. That is not however how I
understand s 79. That section does not vest this court with powers
with regard to interdicting strikes or lockouts. The jurisdiction
and power to do so arise in terms of s 117(1)(e). The power to grant
urgent interim relief is not limited to strikes which are not in
compliance with Chapter 7. It could also include any other conduct
which is unlawful or not in compliance of obligations under a
recognition agreement or the Act. Section 79 merely places important
procedural requirements where urgent interdicts concern strikes to
ensure procedural fairness in adjudicating that type of urgent
interdict in respect of which this court has discretion under s
117(1)(e). As I have already set out, s79 requires in peremptory
terms that any urgent interdict in respect of strike action must
meet specific requisites with regard to notice and service and
procedural fairness before such an interdict can be granted. It does
not vest this court with any additional power to determine issues
which have not already been vested under s 117(1)(e). It instead
regulates how certain interdicts are to be brought.
It would follow in my view that the
point taken by the respondents that this court does not have
jurisdiction to grant an interdict outside the four corners of s
117(1)(e) is thus sound. That section plainly requires that urgent
relief including an urgent interdict is confined to those of a
temporary nature pending the resolution of a dispute in terms of
Chapter 8 of the Act. It was thus not open to the applicant to apply
for an urgent interdict in the absence of a dispute pending in terms
of Chapter 8. When this application was brought, there was no such
dispute pending. This court thus does not have jurisdiction to hear
this application.
After the filing of the respondents’
answering affidavits, the applicant, in order to meet this point,
applied for an amendment to the terms of its interdicts sought by
adding that they would be pending the final determination of the
matter in terms of a referral of a dispute for resolution in terms
of Chapter 8. In the replying affidavit, it was stated that the
applicant referred a dispute on 16 April 2013, the day before the
extended hearing of the matter. This was after the respondents’
answering affidavits had been filed. Mr Corbett indicated that the
applicant had, without accepting the correctness of the point taken,
referred a dispute in order to meet the point. But this application
was not brought on the basis of being temporary pending the
resolution of a dispute under Chapter 8. The applicant instead
sought a rule nisi with a final interdict to follow on the
return date. The application did not contemplate the referral of any
dispute under Chapter 8 of the Act, except in reply where there is
reference to a referral to the Labour Commissioner insofar as it
would be necessary.
When this application was thus
brought, this court had no jurisdiction to hear it. The approach of
the applicant in bringing the application in the absence of referral
in terms of Chapter 8 was thus flawed. The respondents were entitled
to oppose the application on this basis, given the lack of
jurisdiction of this court. The referral of a dispute is not a mere
formality which can be cured as an afterthought in the manner in
which the applicant has sought to do in reply. The legislature in my
view intended that the primary approach would be for a party to
refer a dispute rather than approach this court for the
determination of it, as the applicant had done. It should have
followed that procedure and only applied for an interdict pending
the resolution of a dispute. In this instance the applicant had
approached the matter and this court on an incorrect basis.
It follows that this court had no
jurisdiction to hear the matter when the application was brought and
on the basis upon which it was brought. I do not accept that the
belated attempt on the day before the extended hearing of the matter
could confer jurisdiction upon this court which it had lacked
beforehand. The respondents’ objection based upon s
117(1)(e)is thus in my view well founded. It would follow that the
application should be dismissed for this reason. In view of the
provisions of s 118, no order is made as to costs.
_______________
DF Smuts
Judge
APPEARANCES
APPLICANT: Mr AW Corbett
Instructed by LorentzAngula Inc.
RESPONDENTS Mr TJ Frank SC with him Mr
S Namandje
Instructed by Sisa Namandje & Co
Inc
Meatco v Namibia Food and Allied Worker Union and Others (LC 61/2013) [2013] NALCMD 14 (19 April 2013);