Court name
Labour Court Main Division
Case number
61 of 2013
Title

Meatco v Namibia Food and Allied Worker Union and Others (61 of 2013) [2013] NALCMD 14 (19 April 2013);

Media neutral citation
[2013] NALCMD 14
Coram
Smuts J





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:















MEATCO



APPLICANT




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




















ORDER





The application is dismissed, no order
as to costs.










JUDGMENT










SMUTS, J









  1. 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.










  1. 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.










  1. 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.










  1. 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.










  1. 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.










  1. 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.










  1. 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.










  1. 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.










  1. 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 employees1.










  1. 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.










  1. 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









  1. 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 court2
    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. . . .
3









  1. 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









  1. 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.’









  1. 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.










  1. 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.










  1. 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.










  1. 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.










  1. 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.










  1. 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









  1. 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.










  1. 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.’









  1. 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.










  1. Mr Frank referred to a recent
    unreported decision of this court in Titus Haimbili and Another v
    TransNamib Holdings Ltd and Others
    4
    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.’









  1. 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 legislature5.
    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 courts6.
    That is the choice which has been made by the legislature and which
    this court is to give effect to.










  1. 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.










  1. 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.










  1. 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.










  1. 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.










  1. 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









1See
Numsa and Others v Macsteel (Pty) Ltd
1992(3) SA 809 (A) and also Ford
Motor Co of SA (Pty) Ltd v Numsa and Others
(2008)
29 ILJ 667 (LC).





2Namdeb
Diamond Corporation (Pty) Ltd v Mineworkers Union of Namibia and
Others
LC103/2011, unreported 13 April
2012.





3Supra
par [26]-[28].





4LC22/20102,
unreported.





5Adampol
(Pty) Ltd v Administrator
, Transvaal
1989 (3) SA 800 (A) at 804B-C, followed by this court in
Paxton
v Namib Rand Desert Trails (Pty) Ltd
1996
NR 109 (LC) at 111A-D.





6Namdeb
Diamond Corporation (Pty) Ltd v Mineworkers Union of Namibia and
Others supra
at par [24]-[25].