NOT REPORTABLE
REPUBLIC OF NAMIBIA
LABOUR
COURT OF NAMIBIA, MAIN DIVISION,
WINDHOEK
JUDGMENT
Case no: LC 19/2005
In the matter between:
THE NAMIBIAN PUBLIC
WORKERS UNION ............................................APPLICANT
and
THE NAMIBIAN
BROADCASTING CORPORATION ............................RESPONDENT
Neutral citation:
NAPWU v NBC (LC 19/2005) [2013] NALCMD 35 (30 October
2013)
Coram: VAN NIEKERK,
P
Heard: 19 January
2006
Delivered: 30
October 2013
___________________________________________________________________
ORDER
___________________________________________________________________
The result is as follows:
The respondent’s
first point in limine is upheld.
The application is
dismissed.
There shall be no order
as to costs.
______________________________________________________________________
JUDGMENT
_____________________________________________________________________
VAN NIEKERK, P:
[1] This is an
application brought by the Namibian Public Workers Union (hereafter
‘the applicant’) as a registered trade union and the
recognised as the exclusive bargaining agent of a certain group of
the respondent’s employees.
[2] The applicant seeks
an order directing the respondent to effect a salary increment of 9%
(nine percent) in respect of all its employees in the peromnes levels
08 to 18 as required in terms of a wage agreement signed between the
parties on 17th December 2004, plus costs.
[3] On 3 February 1995
the applicant and respondent entered into a recognition agreement and
the applicant was recognised as the exclusive bargaining agent as
contemplated by section 57 of the Labour Act, 1992 (Act 6 of 1992),
(hereafter ‘the Labour Act’).
[4] Prior to December
2004 the applicant and respondent were involved in negotiations
pertaining to the substantive wage agreement for the year 2004/2005.
Agreement on increments was reached and signed. In terms of clause
4.2 of the agreement the parties agreed to a 16% increment to take
place by payment of a 7% increment on 1 October 2004 and then a
further 9% increment on 1 April 2005, in terms of clause 4.2 thereof
which states:
[5] The wage agreement
was made part of the employees’ employment contracts by virtue
of the provisions of clause 6 of the agreement, which states:
‘6.3 Upon the date of signature
of this agreement, the provisions of the agreement shall become part
of the employment contracts and conditions of employment of members,
whether those contracts of employment are written or verbal or both
written and verbal.’
[6] The respondent gave
effect to the increment of 7% in terms of the wage agreement.
[7] The increment of 9%
that had to take effect on 1 April 2005 did not take place and the
respondent consequently breached clause 4.2 of the wage agreement.
The reason advanced by the respondent for its failure to implement
the second increment is that it did not receive its expected budget
allocation from Government.
[8] On 1 April 2005 the
respondent forwarded a letter to the applicant wherein the following
is stated:
‘This serves to request for a
consultative meeting in terms of Section 5.2.4 of the 2004
Substantive Wage Agreement.
Kindly be informed that in terms of
the above quoted clause, Management would like to consult with the
shop stewards at a meeting scheduled for the 12th April
2005 at 15H00 in the Boardroom.’
[9] Clause 5.2.4 of the
wage agreement states:
‘5.2 No substantive issue may be
negotiated during this period except:
5.2.4 Where the parties agree mutually
to negotiate an issue, although it is recorded expressly that this
clause is intended to provide only for unforeseen, urgent or
compelling circumstances of a very serious nature;’
[10] On 12 April 2005 the
meeting was held and attended inter alia by representatives of
management, the labour relations department and the applicant. At the
meeting the financial position of the respondent as well as the
implications thereof, to wit that the 9% increment would probably not
be implemented, was discussed.
[11] On 11 May 2005
another meeting was held and attended inter alia by
representatives of management, the labour relations department and
the applicant. At the meeting the financial position of the
respondent as well as the way forward was discussed and a budgeting
committee was formed. The applicant nominated four members to sit on
the budgeting committee. The purpose of the committee was to jointly
draw up a revised budget based on the reduced allocation of funds. In
principle it was agreed that if the revised budget could accommodate
the 9% increase, same would be effective from 1 April 2005. This
committee met on 12, 14, 19 and 24 May 2005.
[12] On 13 May 2005 the
applicant sent a letter to the respondent wherein the following is
stated:
‘It is with grave concern to
have learnt that the Agreement reached between the Corporation and
the Union was not fully honoured.
In the substantive wage Agreement
entered into and duly signed by the two parties, clause 4.2
paragraph 3 reads as follows, and a further 9% that will come into
effect on the 1st April 2005 with the commencement of the
2005/2006 financial year.
Therefore we are urging the
Corporation to implement and honour the agreement as agreed.
Against this background you are
reminded that the agreement entered into by the two parties is
legally binding.
Lastly you are requested to explain
to this office as to what had happened in the process.
Be informed that this is likely to be
legally challenged if not fully honoured as agreed.
Hope this will be useful to your
office and we are looking forward to your response on or not later
than 17th May 2005.’
[13] On 17 May 2005 the
respondent replied by way of letter. Therein the following is stated:
‘Management wishes, at the
outset, to confirm sharing your concern with regard to the
impossibility of implementing a 9% wage increase on 1 April 2005.
As indicated to the Union
representatives at the wage negotiations committee meeting held on 11
May this year, the Corporation’s subsidy from Government has
been reduced from N$ 86 000 000-00 to 59 000 000-00. You will agree
that this is a very substantial decrease and one that was not
foreseeable at all.
As far as the legally binding nature
of the Substantive Wage Agreement is concerned, management agrees
that the entire agreement is binding, however does not share your
views that a legal challenge, as per paragraph 6 of your letter, will
be in the interests of any of the parties hereto. Kindly be referred
to Clauses 5 and 7 of the agreement, especially clauses 5.2.2, 5.2.4.
and 7.1. We furthermore refer you to clause 11.4 of the Recognition
Agreement signed on 3 February 1995.
Finally, management wishes to
re-iterate that after the budgeting process is finalized, which
should be within 2-3 weeks, details as to the possibility and
mechanics of the implementation of an increase will be provided.
Should an increase as per the agreement be possible, it shall be
backdated to the initial implementation date.’
[14] The letter refers to
clause 7.1 of the wage agreement which states:
‘7.1 Any dispute arising between
the parties concerning the application or interpretation of this
agreement shall be dealt with in accordance with the Recognition
Agreement between the parties.’
[15] The letter also
refers to clause 11 of the Recognition Agreement, which provides:
’11. DISPUTE PROCEDURE
11.1 In the event of the parties
failing to reach an agreement arising out of negotiations conducted
in terms of this Agreement, or any other issues not resolved through
procedures provided for in this Agreement, a dispute may be declared
by either party.
11.2 Either party may declare a
dispute by giving the other party written notice of the dispute
within seven (7) working days in the event of the parties failing to
reach an Agreement through the negotiation meetings provided for by
clause 10. Such notice to the other party will include the nature and
content of the dispute as well as the settlement or remedy proposed.
11.3 The negotiating committees of the
Union and NBC respectively shall cause a meeting to be held within
five days, or otherwise agreed upon receipt of such notice to try and
resolve the dispute.
11.4 If the dispute is a dispute of
rights, the parties shall refer the dispute to a Conciliation Board
for resolution in terms of the Labour Act of 1992 (Act 6 of 1992). If
the dispute is not resolved within 30 days upon the appointment of
the Conciliation Board, the parties agree that the dispute be
referred to arbitration in terms of the Labour Act of 1992 (Act 6 of
1992) and subject to the provisions of the Arbitration Act of 1965
(Act 42 of 1965). In the event of the parties failing to reach an
Agreement of the appointment of a neutral arbitrator within five
working days, the Union and the Corporation will each appoint an
arbitrator who will jointly appoint a third arbitrator, who will act
as chairman of the Arbitration procedures in terms of the Arbitration
Act of 1965 (Act 42 of 1965).
11.5 Unless the parties agree
otherwise, the liability for the cost of arbitration shall be
determined by the arbitrator concerned.
11.6 If the dispute is a dispute of
interests, the dispute shall, unless the parties agree otherwise, be
referred to a Conciliation Board in terms of the Labour Act, 1992
(Act 6 of 1992). In the event of non-resolution of any dispute which
follows the steps as contemplated above, either party will be free to
take whatever lawful action it deems to be most appropriate in the
circumstances prevailing at that time and subject to the provisions
of the Labour Act, 1992 (Act 6 of 1992).
11.7 Should the parties disagree on
the nature of the dispute (whether the dispute is a dispute of rights
or interests), the disagreement shall be referred to the Labour Court
or by mutual agreement to arbitration for clarification, whereafter
the steps as contemplated in sub-clause 11.4 or 11.6 will apply.’
[16] On 30 May 2005 the
applicant in writing agreed to a three week ‘grace period’
counted from 18 May 2005 to implement the 9% increment with effect
from 1 April 2005.
[17] On 8 June 2005
another meeting was held and attended inter alia by
representatives from management, the labour relations department and
the applicant. The meeting was informed that the respondent is still
not in a financial position to implement the increment, but that the
proposed budget would be presented to representatives of the
applicant as part of a consultative process. They requested to be
provided with the documents well in advance.
[18] On 14 June 2005 and
4 July 2004 the applicant’s lawyers sent letters of demand
requiring the respondent to effect the increment, failing which it
would approach the Labour Court. The respondent’s reply
indicated that it was unable to perform in terms of the wage
agreement on the basis of Government’ severe cut in its budget
allocation, that this constitutes a ‘supervening impossibility
of performance’ and that it is therefore excused from
performance in terms of the agreement.
[19] On 29 July 2005 the
applicant filed its application with this Honourable Court.
Respondent’s first
point in limine
[20] The respondent
raised a point in limine that the applicant has not followed
the dispute resolution procedure provided for in clause 11 of the
Recognition Agreement. Counsel contended that the applicant should
have declared a dispute in terms of clause 11.2 and, regardless of
whether the dispute is a dispute of rights or a dispute of interests,
the dispute should first have been referred to a conciliation board
for resolution in terms of the Labour Act. If the dispute remained
unresolved and if it is a dispute of rights, the matter shall be
referred to arbitration. Alternatively, if the dispute is a dispute
of interests, the further provisions of the Labour Act would apply.
He further submitted that, as the applicant failed to follow these
steps, the application is premature and misconceived at this stage
and should be dismissed.
[21] Counsel for the
applicant countered these submissions by contending that the dispute
resolution procedure provided for in clause 11 is aimed at situations
where the parties have failed to reach agreement through negotiations
which are aimed at arriving at an agreement on wages and conditions
of employment during the annual wage negotiation meetings
contemplated in clause 10 of the Recognition Agreement. He submitted
that clause 11 is not applicable where, as here, the annual wage
agreement has already been reached which creates rights enforceable
by the Labour Court. He submitted that the applicant was entitled to
approach the Court for relief as the parties cannot oust the Court’s
jurisdiction.
[22] In my view this
argument overlooks clause 7 of the wage agreement. I agree with
respondent’s counsel that it applies in the circumstances and
that it requires that the procedure provided for by the Recognition
Agreement be followed. These procedures, in any event, are in harmony
with Part IX of the Labour Act which provides for the procedures to
be followed in case of disputes between employers and registered
trade unions. The respondent’s point is therefore good.
Costs
[23] The respondent’s
counsel requested this Court to grant an order for costs in terms of
section 20 against the applicant based thereon that the applicant (i)
did not disclose certain material facts in its founding papers; and
(ii) failed to abide by the dispute resolution provisions.
[24] I am not persuaded
that the applicant acted frivolously or vexatiously in the manner
that it presented its case. I am satisfied that it approached this
Court in good faith. I therefor decline to make an order of costs.
[25] The result is as
follows:
The respondent’s
first point in limine is upheld.
The application is
dismissed.
There shall be no order
as to costs.
___signed on
original____________________
Van Niekerk, P
APPEARANCE
For the applicant: Mr S
Namandje
of Sisa Namandje &
Co.
For the respondent: Adv R
D Cohrssen
Instr. by Ellis &
Partners
Namibian Public Workers Union v Namibian Broadcasting Corporation (LC 19/2005 ) [2013] NALCMD 35 (30 October 2013);