Friday, 16 March 2012 15:00
PRESS RELEASE: IMMEDIATE
SACTWU has recently successfully defeated Seardel subsidiary Berg River Textiles in Court. The company challenged the union’s right to cancel an agreement and the validity of a certificate of outcome which may lead to strike action. It is an important judgment. The judgment reinforces the precedent that there is no special significance to certificates of outcome beyond the fact that they certify that an attempt has been made to conciliate by a certain date. It may not be the end of the matter, as the company may decide to appeal further, especially on the issue of whether or not SACTWU would in the end be entitled to strike on this matter. The full judgment is available on the SACTWU website. Below we carry a summary of the case, as prepared by Jason Whyte, the union attorney at Cheadle Thompson & Haysom Inc. (CTH):
Jason’s summary is as follows:
SEARDEL GROUP TRADING (PTY) LTD t/a BERG RIVER TEXTILES v SACTWU & OTHERS (C592/2011, PER STEENKAMP, J)
In this matter, SACTWU gave notice to the company (in terms of section 23(4) of the LRA) cancelling a collective agreement regulating shift patterns and simultaneously referred a dispute to the CCMA with the demand that the company negotiate a new shift system. The dispute was conciliated without success and a certificate of non-resolution was issued.
The company applied for the review of the certificate on the basis that the dispute was actually a dispute of right which should have been referred to the CCMA for arbitration in terms of section 24 of the LRA (interpretation and application of collective agreements). The company argued that to hold otherwise would have left it without any shift system.
The review was opposed, primarily on the basis that the union was entitled to cancel the collective agreement on reasonable notice and that the status quo would prevail until collective bargaining had run its course.
The Labour Court however followed the recent judgment in Bombardier Transportation v Mtiya & others in ruling that a certificate of outcome was not something that could be set aside on review as it was only an indication that the dispute remained unresolved and was not a statement that the union had a right to strike.
The review was thus dismissed.
The judgment reinforces the precedent that there is no special significance to certificates of outcome beyond the fact that they certify that an attempt has been made to conciliate by a certain date.
Jurisdictional determinations must be made by either the arbitrator or the judge ultimately seized with the matter.
<< The Full Judgement can be found here >>