The effect of cancelling collective agreement’s regulating ancillary duties

October 1st, 2017
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Imperial Cargo Solutions v Satawu and Others (LAC) (unreported case no JA63/2016, 1-8-2017) (Tlatelsi AJP) (Davis JA and Kathree-Setiloane AJA concurring)

By Yashin Bridgemohan

In SA Municipal Workers Union v City of Tshwane and Another (2014) 35 ILJ 241 (LC) at para 18, the court noted that the terms of a collective agreement are not only binding on individual employees, but are incorporated into the employees contract of employment. The terms and conditions set out in a collective agreement remains in force after the lapse of the collective agreement and would remain as such, until another collective agreement is entered into, changing the provisions that had been incorporated into employees contracts.

Facts

The appellant’s relationship with the respondents is within the jurisdiction of the National Bargaining Council for the road freight and logistics industry. Wages of drivers employed by the appellant are regulated in terms of a collective agreement reached in the bargaining council (main collective agreement) and extends across the road freight and logistics industry. The main collective agreement determines, in detail, all aspects of driver’s remuneration.

The drivers that are employed by the appellant are all members of the first respondent, a registered trade union. The transportation of freight cargo by truck requires safety precautions to ensure that cargo does not fall off the trucks. Tarpaulins, straps and ropes – depending on the goods transported – are needed to secure the safety of the cargo.

The appellant previously employed drivers’ assistants who carried out ancillary duties by assisting drivers to load and offload the cargo, and also perform the tarping duties. In 2007, the appellant had done away with the drivers’ assistant’s posts.

As a result a decision had to be taken as to who would perform the duties previously done by the drivers’ assistants. The appellant and first respondent concluded a collective agreement (the Guard Fee Agreement) in 2007. In terms of this collective agreement, the drivers had a choice to either perform the ancillary duties themselves or to appoint assistants. An agreed amount of money was paid to drivers in lieu of the ancillary duties, in addition to their salaries. Drivers were allowed to keep the money for themselves if they personally attended to the ancillary duties or they could pay assistants they employed. The agreed amount was subject to an annual increase.

The first respondent in 2015, tried to negotiate an increased Guard Fee above the agreed annual increase rate. When the appellant refused to comply to the demand, the first respondent informed the appellant that it was cancelling the collective agreement with one month’s notice. The first respondent further informed the appellant that as from 1 February 2015, the drivers would no longer perform the ancillary duties as provided in the collective agreement. The appellant was then advised to ensure that necessary arrangements were made to ensure the ancillary duties be performed by individuals other than the drivers.

The appellant considered the cancellation of the collective agreement and refusal to perform ancillary duties as unprotected strike action. The appellant filed and obtained an urgent interim relief directing the drivers to perform all ancillary duties on the basis that their refusal to do the work amounted to unprotected strike action.

The Labour Court (LC) concluded that refusal to perform the ancillary duties did not constitute strike action as the collective agreement in terms of which it was performed was cancelled and that the duty to perform those duties ended. In addition there was no general refusal to work, but only a refusal to work in compliance with the terms of the cancelled collective agreement.

The LC discharged the rule nisi earlier granted to the appellant. On the appellant’s application, the LC then issued an interim order preserving the rule nisi, pending the appeal to the Labour Appeals Court (LAC).

Issue

The main issue before the LAC was whether the court a quo was correct in finding that the ancillary duties terminated at the cancellation of the collective agreement.

LAC’s judgment

The court noted that from the papers it was evident that there was no written or verbal contract of employment that provided the employees were obliged to perform ancillary duties as their normal duties. The only agreement providing for the performance of the ancillary duties was the collective agreement, which allowed employees to perform the duties on their own or to employ assistants. In both circumstances, the appellant was required to pay for whomever carried out the ancillary functions.

The court noted further in the absence of any other agreement creating a duty on the employees to perform the ancillary functions, and as they were entitled to cancel the collective agreement on notice, the duty ended on cancellation of the agreement. Likewise, the duty of the employer to pay the employees in lieu of ancillary functions as provided for in the collective agreement also ended. It would not be logical to argue that the appellant’s duty to pay for the ancillary functions fell away on cancellation of the agreement by the respondents but that the duty to perform the ancillary functions survived the termination. The facts and circumstances of the SA Municipal Workers Union case was very distinguishable from the matter.

The court held the obligation relating to the drivers ancillary duties was based only on the Guard Fee collective agreement and not the main collective agreement. As such it was not necessary to determine whether the main collective agreement obliged the respondents to carry out the ancillary duties. It was never a practice at the respondent’s workplace that the employees performed the ancillary functions in terms of the main collective agreement.

The LAC accordingly dismissed the appeal.

Conclusion

This judgment is important as it highlights that where an employer enters into a separate collective agreement, solely to remunerate employees for ancillary duties not part of their normal duties and which were previously performed by other employees, lawful termination of the collective agreement results in the termination of obligations on the part of both the employer and employee created in said collective agreement. In these circumstances employers cannot expect employees to continue performing ancillary duties provided for in the cancelled collective agreement and the refusal of employees to perform the ancillary duties cannot be considered unlawful strike action.

Yashin Bridgemohan LLB (UKZN) PG DIP Labour Law (NWU) is an attorney at Yashin Bridgemohan Attorney in Pietermaritzburg.

This article was first published in De Rebus in 2017 (Oct) DR 34.

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