The union’s in­volve­ment in a health and safety com­pli­ance dis­pute has been found by the labour court to be ir­re­spon­si­ble and un­rea­son­able

Financial Mail - - IN GOOD FAITH - @carmel­rickard

How is an em­ployer to re­spond when work­ers ef­fec­tively hold a mine to ran­som? In the case of PMG Min­ing’s Bishop Mine op­er­a­tions near Post­mas­burg, about 16 truck driv­ers’ re­fusal to take a test man­dated un­der the Mine Health & Safety Act could have re­sulted in the en­tire min­ing en­ter­prise be­ing closed down.

When all but two stead­fastly ig­nored man­age­ment’s in­struc­tion to com­ply with the law, they ap­peared be­fore a dis­ci­plinary in­quiry and were later dis­missed for gross in­sub­or­di­na­tion and fail­ing to obey a “rea­son­able and law­ful in­struc­tion”.

The sacked work­ers then took their case to the Com­mis­sion for Con­cil­i­a­tion, Me­di­a­tion & Ar­bi­tra­tion.

When the ar­bi­tra­tor up­held their dis­missals, the Na­tional Union of Minework­ers (NUM), act­ing on be­half of the sacked truck driv­ers, asked the labour court to re­view the de­ci­sion.

That judg­ment was handed down at the end of last year.

The “Dover test” — com­pul­sory for all op­er­a­tors of track­less mo­bile ma­chin­ery — checks fac­tors such as sound and foot co-or­di­na­tion, as well as op­er­a­tors’ con­cen­tra­tion and at­ten­tion.

But the mine’s truck driv­ers, in­formed of the planned test­ing at a meet­ing on April 6 2016, de­manded a guar­an­tee that their jobs — in­clud­ing salaries and ben­e­fits — would be safe, re­gard­less of whether they passed the Dover test. Only then would they agree to be tested.

Man­age­ment re­fused the guarmin­eral an­tee, say­ing the de­part­ment of min­eral re­sources had in­structed that driv­ers must com­ply with the leg­is­la­tion or not be de­clared com­pe­tent to op­er­ate new trucks, which man­age­ment had brought in to en­sure le­gal com­pli­ance. The staff were told they should all pass, as they were ex­pe­ri­enced driv­ers, and that if any­one did not, “there would be con­sul­ta­tion” with the hu­man re­sources de­part­ment on a way for­ward. This was not ac­cept­able to the driv­ers, who broke up the meet­ing and re­fused to sign ac­knowl­edge­ment of re­ceipt of the writ­ten in­struc­tion to take the test on the stip­u­lated days.

The ar­bi­tra­tor found that while a law­ful and valid in­struc­tion had been given to the driv­ers so the mine could com­ply with safety leg­is­la­tion, all but two re­fused to obey this in­struc­tion.

He also found that “the em­ploy­ees held the em­ployer to ran­som” by their re­fusal, jeop­ar­dis­ing not only their own jobs, but also the jobs of all the work­ers at the mine.

This was be­cause their re­fusal could have led the de­part­ment of re­sources to close the mine “due to non­com­pli­ance with safety reg­u­la­tions”.

Driv­ing the point home

At the labour court, judge Con­nie Prinsloo con­sid­ered the grounds for re­view put for­ward by the union and found they had no merit.

Her fi­nal com­ments on the case were par­tic­u­larly sig­nif­i­cant. She said the mine op­er­ated un­der the Mine Health & Safety Act and was su­per­vised by the de­part­ment, which had is­sued a no­tice to halt min­ing op­er­a­tions be­cause the trucks in use did not com­ply with the law. When the mine bought a new fleet of trucks to be com­pli­ant, all the op­er­a­tors had to be de­clared com­pe­tent, and the first step was to pass the Dover test, which the driv­ers re­fused to take.

The “worst part” of it, said the judge, was that the union be­came in­volved in the mat­ter and backed the driv­ers’ in­sis­tence on man­age­ment guar­an­tee­ing job se­cu­rity.

The union’s con­duct was ir­re­spon­si­ble and un­rea­son­able, as it never dis­puted that the em­ployer had to com­ply with the safety leg­is­la­tion.

“In my view the union has a lot to an­swer [for] as the dis­missal could have been avoided had [it] acted … rea­son­ably and with the in­ter­ests of the work­ers in mind,” the judge said. In­stead, the union’s at­ti­tude put the em­ployer at risk and jeop­ar­dised the work­ers’ fu­ture em­ploy­ment.

The re­sult­ing dis­missal of the driv­ers was “a sad and un­for­tu­nate state of af­fairs, for which the union and the em­ploy­ees are to be blamed”, Prinsloo said.

The union never dis­puted that the em­ployer had to com­ply with the safety leg­is­la­tion

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