Employment law update – Striking a balance between working hours and meal intervals

May 1st, 2018

Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

Vector Logistics (Pty) Ltd v National Transport Movement and Others (LC) (unreported case no J2876/17, 6-3-2018) (Lagrange J)

On 26 June 2017 the first respondent union (NTM), acting in behalf of its members, referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) demanding that its members be paid ten hours per day. As appears from the facts of the judgment, the employees worked a nine-hour day and had an additional one-hour unpaid lunch break a day. NTM alleged that its members worked through their lunch break and, therefore, should be paid an extra hour every day.

Parties could not settle their dispute at conciliation whereafter the matter was referred to arbitration. The arbitrator ruled that the dispute was in fact an interest dispute, which could not be resolved by means of arbitration.

The applicant employer approached the court on an urgent basis for an order declaring any strike action pursuant to the demand, unprotected – interim relief was granted.

On the return date the employer argued that the rule should be confirmed for the following reasons –

  • there was a collective agreement governing the issue in dispute, which prevented NTM from embarking on strike action;
  • the demand itself was unlawful; and
  • the nature of the dispute was one that could be referred for adjudication or arbitration which in turn, prevented NTM from strike action.

Court’s findings – collective agreement

In 2015 the employer and another trade union, the National Union of Food Beverage Wine Spirits and Allied Workers (NUFBWSAWU) concluded a three-year wage agreement ending 30 June 2018 (the substantive agreement). In terms of this agreement, certain categories of employees would work a 45-hour week and take a one-hour unpaid lunch break daily.

The employer contended that the substantive agreement was, in terms of s 24(1)(d) of the Labour Relations Act 66 of 1995 (LRA), extended to NTM’s members and hence they were bound by the substantive agreement.

The court was, however, not persuaded by this argument. A collective agreement can only be extended to employees who are not a party to the collective agreement if the agreement –

  • was concluded with a majority union;
  • identifies those employees who are not members of the signatory union; and
  • expressly stated that such employees were bound by the collective agreement.

On a reading of the substantive agreement, the court was not satisfied that these requirements had been met.

The employer further referred the court to a collective agreement it concluded with NTM in May 2017 termed the ‘Relationship Agreement’.

As set out in the Relationship Agreement, NTM and the employer agreed that for purposes of negotiating wages and other terms and conditions of employment, the employer would only recognise the majority union in its workplace as a bargaining agent, which at the time was not NTM. The Relationship Agreement further stated that NTM will not, during the duration of a valid collective agreement, strike over any issue which forms the subject matter of that collective agreement.

The court found that NTM was bound by its own agreement with the employer. By entering into the Relationship Agreement, NTM accepted that it is not the majority union and hence could not be recognised for purposes of bargaining and furthermore, agreed not to strike over matters, which were governed by a collective agreement – in this instance the issue of working hours and meal intervals were addressed in the collective agreement the employer entered into with NUFBWSAWU, which remained valid and binding at the time. Therefore, the Relationship Agreement prevented NTM from striking over the issue in dispute.

Lawfulness of the demand

Notwithstanding the fact that this finding alone would have been sufficient reason to confirm the rule, Lagrange J nevertheless assessed the nature of NTM’s demand. NTM’s contention was that its members have their meals while driving or while working and, therefore, should be paid for the work performed during their lunch breaks. While the employer disputes these allegations, the court reasoned that if the employer was to accede to such a demand, the parties would be in breach of the Basic Conditions of Employment Act 75 of 1997 (BCEA) and hence any intended strike action would be underpinned by an unlawful demand.

Section 14 of the BCEA states:

‘14 Meal intervals

(1) An employer must give an employee who works continuously for more than five hours a meal interval of at least one continuous hour.

(2) During a meal interval the employee may be required or permitted to perform only duties that cannot be left unattended and cannot be performed by another employee.

(3) An employee must be remunerated –

(a) for a meal interval in which the employee is required to work or is required to be available for work; and

(b) …

(4) For the purposes of subsection (1), work is continuous unless it is interrupted by an interval of at least 60 minutes.’

Evaluating the nature of NTM’s demand in relation to s 14 of the BCEA, the court held:

‘The effect of these provisions is that it is only in circumstances where the work performed by an employee cannot be left unattended and nobody else can perform those duties that an employer is entitled to require the employee to remain available for work or to perform the duties, in which case the employee must be paid for those duties. …

To the extent that NTM’s demand is a demand that the affected workers must simply be paid for the lunch hours they claim they do not take because they work without a break, then if Vector accedes to this demand it would be acceding to a 9 hour working day without a lunch break in circumstances where the exceptional circumstances in sub-sections 14(2) and (3) do not apply. This would amount to a breach of s 14(1) of the BCEA and would be unlawful. Protected strike action cannot be undertaken in pursuit of an unlawful demand.’

Adjudication of dispute

In addition, if the employer was in breach of s 14 of the BCEA, NTM’s recourse would either be to utilise the enforcement mechanisms set out in the BCEA, which includes adjudication at the Labour Court, alternatively refer a contractual dispute to the Labour Court. The cause of action in respect of the alternative remedy rests on the fact that a basic condition of employment is incorporated as a term into an employment contract (unless replaced with a more favourable term), following which an alleged breach of an employment contract can be dealt with as a contractual dispute by way of s 77(3) of the BCEA.

The upshot of both remedies prevents NTM from calling out its members to strike as the amended s 65(1)(c) of the LRA reads;

‘No person may take part in a strike or a lock-out or in any conduct in contemplation or furtherance of a strike or a lock-out if –

(c) 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’.

For reasons advanced, the court confirmed the rule with no order as to costs.

This article was first published in De Rebus in 2018 (May) DR 42.