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[2021] ZALAC 15
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Association of Mineworkers and Construction Union v UASA and Others (JA108/2019) [2021] ZALAC 15; (2021) 42 ILJ 1893 (LAC); [2021] 10 BLLR 974 (LAC) (29 June 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA108/2019
In
the matter between:
ASSOCIATION
OF MINEWORKERS AND
Appellant
CONSTRUCTION
UNION (AMCU)
and
UASA
– THE UNION ON BEHALF OF ITS MEMBERS
First Respondent
SOLIDARITY
ON BEHALF OF ITS MEMBERS
Second Respondent
NATIONAL
UNION OF MINEWORKERS (NUM) ON
Third
Respondent
BEHALF
OF ITS MEMBERS
WESTERN
PLATINUM LIMITED
Fourth Respondent
EASTERN
PLATINUM LIMITED
Fifth Respondent
REGISTRAR
OF LABOUR RELATIONS
Sixth Respondent
Heard:
25 May
2021
Delivered:
29
June 2021
Coram:
Waglay JP, Savage and Molefe AJJA
JUDGMENT
SAVAGE
AJA
Introduction
[1]
This appeal, with the leave of this
Court, is against the judgment and orders of the Labour Court
(Whitcher J) delivered on 24 June
2019 which declared invalid and
unenforceable the agency shop agreement (‘the agreement’)
concluded on 24 April 2019
between the appellant, the Association of
Mineworkers and Construction Union (‘AMCU’), and the
fourth and fifth respondents,
Western Platinum Limited and Eastern
Platinum Limited (‘the employer’). The Labour Court
ordered that the employer
be interdicted from deducting any agency
fee in terms of the agreement in favour of AMCU from the wages of the
members of the first,
second and third union respondents, UASA,
Solidarity and the National Union of Mineworkers (referred to
collectively as “the
union respondents”), and to refund
all deductions made.
[2]
At the outset of the hearing, the appeal
was reinstated and the late filing of the notice of appeal was
condoned. T
his
followed the appeal having been deemed to have been withdrawn in that
the record was not filed within the 60-day period provided
in Rule
5(8) of the Rules of this Court, with no extension having been
granted in terms of Rule 5(17).
The
respondents did not oppose either application.
The
appellant’s attorney explained that the
delay
in filing the notice of appeal and the record arose in that the order
of this Court granting leave to appeal on 27 February
2020 was not
received. Following its receipt, the necessary steps were taken to
file both the notice of appeal and the record,
as required, although
this was more than five months late.
Background
[3]
Section 25(3)
of
the Labour Relations Act 66 of 1995 (‘the LRA’)
provides
that:
‘
An
agency shop agreement is binding only if it provides that –
(a)
employees
who are not members of the representative trade union are not
compelled to become members of that trade union;...”
[4]
AMCU,
the majority union in the bargaining unit at the employer’s
Marikana Operations (“the bargaining unit”),
concluded
the agency shop agreement (‘the agreement’) with the
employer on 24 April 2019. In terms of the agreement,
the employer
would deduct an agency fee from the wages of all employees within the
bargaining unit.
Clause 7.1 of
the agreement provided that:
The
parties agree that employees who are not members of any trade union
shall not be compelled to be a member of AMCU. ‘
[5]
It is this clause which is the subject
of the dispute between AMCU and the union respondents. The union
respondents sought on an
urgent basis that the Labour Court declare
the agreement invalid and unenforceable and that all agency fee
deductions in favour
of AMCU be refunded. This relief was sought on
the basis that the agreement contained no provision that employees
who are not members
of AMCU but members of another trade union are
not compelled to become members of AMCU. Instead, it only referred to
employees
who are not members of any trade union.
[6]
The Labour Court agreed and granted the
relief sought. The Court took the view that it was not barred by
section 24(2) of the LRA
from considering the validity of the
agreement in that the dispute was not concerned with the
interpretation and application of
the agreement but with the validity
of the agreement having regard to the strict requirements of section
25.
On
appeal
[7]
In
issue on appeal is whether the Labour Court had the requisite
jurisdiction to consider the dispute having regard to section 24(2)
of the LRA; and whether the agency shop agreement between AMCU and
the employer complied with the provisions of section 25(3) or
not. It
was contended for AMCU that clause 7 of the agreement
substantially
complied with section 25, with the result that the agreement is
binding. Furthermore, that since section 24(2) requires
that disputes
concerned with the interpretation and application of a collective
agreement be arbitrated by the Commission for Conciliation
Mediation
and Arbitration (‘the CCMA’) and the dispute concerned
the interpretation and application of the agreement,
the Labour Court
lacked the requisite jurisdiction to determine the matter.
[8]
The respondent unions opposed the appeal
on the basis that the Labour Court held the necessary jurisdiction to
consider the validity
of the agreement, which was a matter distinct
from one concerned with the interpretation or application of an
agreement. Furthermore,
the agreement was invalid and enforceable in
that there had not been compliance with the mandatory requirement of
section 25(3).
Evaluation
[9]
Section 24(2) states that:
‘
If
there is a dispute about the interpretation or application
of a collective agreement, any party to the dispute may
refer the dispute in writing to the Commission if -
(a)
the collective agreement does
not provide for a procedure as required by
subsection
(1)
;
(b)
the procedure provided for in
the collective agreement is not operative; or
(c)
any party to the collective
agreement has frustrated the resolution of the dispute in
terms of the collective agreement.’
[10]
This
Court in
National
Union of Metal Workers of SA & others v Highveld Steel and
Vanadium Corporation Ltd
[1]
found that where the issue in dispute concerns whether there exists
an agreement or not, section 24 does not apply. This was so
in that
section 24 pertains to the interpretation and application of an
agreement, in circumstances in which the validity and enforceability
of that agreement is not disputed. In the current matter, a dispute
exists as to whether the agreement complies with the mandatory
requirements of section 25(3)(a). As such it is the validity of the
agreement that is in issue. The matter does not concern an
interpretation or application of the issues detailed in section
24(2)
(a)
to
(
c).
As such, the Labour Court was correct in finding that it held the
requisite jurisdiction to determine the application before it.
[11]
Turning to
section 25(3), from the language of the provision, it is apparent
that a
n agency shop agreement is
binding only if it provides that employees who are not members of the
representative trade union are
not compelled to become members of
that trade union. This is a mandatory provision. The agreement
entered into between AMCU and
the employer indicated only “
that
employees who are not members of any trade union shall not be
compelled to be a member of AMCU
”.
The clause made provision only for employees who are not union
members. It made no provision for employees who are members
of other
unions and failed to provide that such employees were not compelled
to become members of AMCU. It followed that the agreement
did not
comply with the mandatory requirements of section 25(3).
Consequently, the Labour Court did not err in declaring the agreement
invalid and unenforceable given its non-compliance with section
25(3), in interdicting the deduction of agency shop fees from the
union respondents’ members and in ordering the return of fees
deducted.
[12]
For these reasons,
the
appeal cannot succeed.
There is
no reason in law or fairness why an order of costs should not follow
the result in this matter.
Order
[13]
For these reasons, the following order
is made:
1.
The appeal is dismissed with costs.
SAVAGE
AJA
Waglay
JP and Molefe AJA agree.
APPEARANCES
:
FOR
APPELLANTS: A. Cook
Instructed
by LDA Incorporated Attorneys
FOR
FIRST TO THIRD
RESPONDENTS:
R. Grundlingh
Instructed
by Bester & Rhoodie Attorneys
Instructed
by Serfontein Viljoen & Swart Attorneys
[1]
[2001] ZALAC 11
; 2002 23 ILJ 895 (LAC) at para 20.