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[2024] ZALCJHB 95
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Bliss Brands (Pty) Ltd v NASA - Workers (JR391/22) [2024] ZALCJHB 95; [2024] 5 BLLR 484 (LC); (2024) 45 ILJ 1250 (LC) (4 March 2024)
THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
Reportable
Case no:
JR391/22
In
the matter between:
BLISS
BRANDS (PTY) LTD
Applicant
and
NASA
– THE WORKERS
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION (CCMA)
Second
Respondent
COMMISSIONER
FREDDIE MATSHABA
N.O.
Third Respondent
ENTIRWENI
MANAGEMENT SERVICES (PTY) LTD
Fourth
Respondent
SENIOR
COMMISSIONER NEMUSHUNGWA
N.O.
Fifth
Respondent
Date
heard:
28 February 2024
Date
delivered:
4 March 2024
Summary:
Application to review conduct of the CCMA in relation to
withdrawal of organisational rights dispute by the first
respondent.
JUDGMENT
DANIELS
J
Introduction
[1]
This judgment relates to an unopposed application, brought to review
and set aside a ruling (hereafter “the withdrawal ruling”)
issued by the third respondent (hereafter “the commissioner”)
on 21 February 2022. In the ruling, the commissioner
acknowledged the
first respondent’s entitlement to withdraw its dispute, during
an arbitration convened in terms of section
21 of the Labour
Relations Act 66 of 1995 (hereafter “the LRA”).
[2]
For ease of reference, the applicant is referred to as “the
deemed employer” or “the applicant” and the
first
respondent is referred to as “the Union”.
Material
facts
[3]
The Union
recruited many employees of the deemed employer
[1]
and thereafter sent a notice to it in terms of section 21(1) of the
LRA.
[4]
In its notice, the Union sought the organisational rights
contemplated in sections 12, 13, 14, 15 and 16 of the LRA. The Union
and the deemed employer were unable to reach agreement (hereafter
“the dispute”). Accordingly, the Union referred the
dispute to the CCMA in terms of section 21(4) of the LRA. The dispute
could not be resolved at conciliation.
[5]
The Union requested that the dispute be arbitrated in accordance with
section 21(7) of the LRA. In the request, Entirweni Management
Services (Pty) Ltd, a Temporary Employment Service which supplied
labour to the deemed employer, was cited as the second respondent.
[6]
On 8 September 2021, the deemed employer referred its own dispute to
the CCMA, described in the following terms: “
The dispute is
brought in terms of Section 22. The deemed employer alleges that the
Union acts unlawfully in relation to its dealings
with the employer.
Its modus operandi is one of illegality and unlawfulness and thus
there is a dispute regarding organisational
rights and recognition
.”
The desired outcome was that the Union be denied organisational and
bargaining rights. This dispute is, in my view, ill-conceived
and
will receive no further attention in this judgment.
[7]
On or about
15 October 2021, a CCMA commissioner
[2]
issued a ruling (the “earlier ruling”). In it, the
commissioner stated that the Union could not engage in protected
industrial action in relation to the organisational rights
dispute.
[3]
This ruling, which
is not attached to the founding papers but is included in the record,
is mentioned purely for the sake of completeness.
The earlier ruling,
which in my view is misguided, is irrelevant to this judgment, and is
mentioned solely for the sake of completeness.
[8]
The section 21 arbitration was convened on 10 November 2021 and 20
January 2022. On these occasions, evidence was presented by
the
parties. By 20 January 2022, the Union had closed its case, but not
the applicant. On 26 January 2022, before the next set
down date, the
Union filed a notice of withdrawal. In the notice, the Union stated:
“
Be pleased to take notice that the applicant hereby
withdraws the matter case number GAJB11893-21
”.
[9]
The deemed employer, aggrieved by the sudden withdrawal of the
section 21 dispute, asked the commissioner to determine the effect
of
the withdrawal. The commissioner issued his ruling, the subject of
this review. In the ruling, the commissioner stated that
the
withdrawal should be treated as an absolution from the instance. In
addition, said the commissioner, because of the withdrawal,
there was
no live dispute. The applicant now seeks an order setting aside the
ruling and declaring that the notice of withdrawal
is invalid. The
applicant also seeks an order directing the CCMA to reconvene the
arbitration before a commissioner other than
the third respondent.
Legal
analysis
[10]
In its papers, the
applicant contends that the withdrawal ruling falls to be reviewed on
the following basis:
10.1
The dispute
could not be unilaterally withdrawn. Equity requires that the dispute
may only be withdrawn with the prior consent of
the deemed employer
and any other respondent.
[4]
10.2
The LRA grants the
Union an election as to whether to strike (for organisational rights)
or to proceed to arbitration under section
21, and, once that
election is made, the Union is bound by its election.
10.3
The
commissioner’s recognition of the withdrawal is inimical to
orderly collective bargaining.
[5]
10.4
The
commissioner has a statutory duty to arbitrate the dispute to
finality.
[6]
10.5
The commissioner’s
recognition of the withdrawal is unfair to the employer because it
ignores the inconvenience and cost
to it.
10.6
The employer is
entitled to certainty, and the ruling means it could be forced to
deal a new recognition dispute at any time.
10.7
The ruling
exposes the applicant to industrial action, which is likely to be
unprotected.
[7]
10.8
The
commissioner deprived the applicant of an opportunity to address him
in relation to the section 22 dispute.
[8]
[11]
The applicant brings the review application under section 158(1)(g)
of the LRA, which permits the review of the performance or
purported
performance of any function provided for in the LRA on any grounds
permissible in law.
[12]
As is immediately noticeable, the applicant threw everything but the
kitchen sink at the withdrawal ruling. I don’t intend
to
address all the points raised and will direct my attention only to
those seriously pursued in argument. In my view, none of
the points
raised have merit.
Effect
of a withdrawal
[13]
Neither the LRA, nor the CCMA Rules, deal with the withdrawal of
disputes.
[14]
However,
this court considered the effect of a withdrawal of a dispute in
Ncaphayi v CCMA
& others
[9]
where
it held as follows:
[25]
The commissioner then concluded that, unless the notice of withdrawal
in respect of the previous referral is set aside by the
Labour Court,
the re-referral of that dispute could not be considered by the CCMA.
[26]
Implicit in the commissioner’s reasoning is an assumption
that the submission of a notice of withdrawal by a referring party
constitutes action which this court can review.
However, the
withdrawal of a referral to the CCMA is not an act of any
functionary, but the action of an employee party to a dispute.
The
commissioner plays no role in that decision
. This is the first
difficulty with the commissioner’s reasoning in arriving at his
conclusion that he had no jurisdiction
to entertain the matter.
[27]
The second reason relates to the effect of a withdrawal of a referral
to conciliation.
The LRA does not deal with the withdrawal of
matters referred to the CCMA and neither do the Rules of the CCMA.
Rule 13 of the Labour
Court Rules merely deals with the procedure to
be followed if a party wishes to withdraw proceedings. It is
instructive to note
how the High Court has considered the effect of a
withdrawal of a matter. It has been held that the withdrawal of a
matter by a
party is akin to an order of absolution from the
instance. Ordinarily, an order of absolution from the instance does
not prevent
a party from reinstituting proceedings
and the
defendant absolved in the first proceeding will not be able to raise
the exception rei judicatae if sued again on the same
cause of
action.
[28]
If the withdrawal of the matter in the High Court at a stage when it
is ripe for hearing does not necessarily prevent the institution
of
fresh proceedings, it would be anomalous if the withdrawal of a
matter at the conciliation stage of dispute resolution under
the LRA
when no decision on the merits of the dispute is even possible
precluded a party from making a fresh referral.
Obviously, if the
withdrawal under consideration is part and parcel of a final
settlement of the dispute the situation would be
quite different.
However, in this case, the withdrawal was at the applicant’s
own instance and not an intrinsic part of a
settlement agreement
.
It should also be mentioned that the commissioner presiding at the
first conciliation did not issue a certificate of outcome so
the
question of whether or not that would have to be set aside before the
matter could be reconsidered does not arise in this case.
[29]
In the circumstances, I believe the commissioner misconstrued his
powers to conciliate the dispute by concluding that the applicant’s
withdrawal of the dispute needed to be set aside by this court before
he could entertain it.
” (Own emphasis)
[15]
Absolution
from the instance may be understood as a ruling or judgment where the
court finds that the applicant or plaintiff has
not established a
cause of action but, for reasons of justice or convenience, it does
not wish to finally pronounce on the merits.
[10]
A court may grant absolution even where evidence has been presented.
Given that the court does not finally pronounce on the merits,
the
plaintiff is not barred from instituting further proceedings on the
same cause of action.
[16]
In
this matter, the withdrawal did not emanate from a settlement. The
withdrawal was voluntary and implemented at the instance of
the
Union. It is trite that a court is bound, not only by decisions of a
higher court, but also by its own decisions unless the
earlier
decisions are clearly wrong.
[11]
The applicant sought to distinguish
Ncaphayi
on
the basis that the court, in that matter, dealt with a “rights
dispute” whereas, in this matter, the dispute relates
to an
“interest dispute”. For the reasons set out below, I
believe this is a false dichotomy.
Ncaphayi
is neither distinguishable nor is it clearly wrong.
Doctrine of Election
[17]
The
applicant argues that the Union having made an election to seek
organizational rights through the medium of section 21, is bound
by
its
election
and
cannot engage in protected strike action thereafter. Of course, this
argument is better made when the applicant is faced with
strike
action. Presently, the applicant, as employer, faces no threat of
strike action. In any event, I believe this argument is
incorrect. It
mistakes the structure of the LRA, and it attempts to
compartmentalize disputes into “interest disputes”
and
“rights disputes”.
The
Constitutional Court, in
Department
of Home Affairs & another v Public Servants
Association
&
others
[12]
begins by stating: “[1]
Some
might have harboured the hope that this judgment would clarify the
distinction between so-called ‘rights disputes’
and
‘interest disputes’ in labour law and under the
Labour
Relations Act (LRA/Act
), and whether and to what extent the right to
strike as embodied in that statute depends on the distinction
…..”.
And then, just when many began salivating, in earnest anticipation,
the court dropped the bomb by stating: “
Interest
and rights disputes are both matters of mutual interest
.”
[18]
In truth, a dispute over organizational
rights is a “rights dispute” (if the Union elects to
refer a dispute to arbitration
in terms of
section 21)
as well as an
“interest dispute” (if the Union elects to engage in
strike action). This dispute illustrates well why
matters of mutual
interest include both interest and rights disputes.
[19]
It is not a simple matter of saying, as the applicant contends, that
the LRA requires an election as to whether to secure organisational
rights through strike action or arbitration. The LRA does not limit
the right to strike for organisational rights where a union
failed to
secure organisational rights through arbitration. Instead, the LRA
limits the use of arbitration (for a defined period)
to seek
organisational rights where the union has already issued a notice of
strike action seeking organisational rights.
[20]
In any event, the doctrine of election is irrelevant here given that
the Union has not issued a notice of strike action - for
organisational rights. If the Union had done so, the Union would be
unable to seek organisational rights through arbitration for
the next
twelve months.
Relevant
provisions of the LRA
[21]
The underlying premise of the applicant’s
argument, that employers and workers possess equal bargaining power,
is incorrect.
The Constitutional Court explains:
“
Collective
bargaining is based on the recognition of the fact that
employers
enjoy greater social and economic power
than individual workers. Workers therefore need to act in concert to
provide them collectively with sufficient power to bargain
effectively with employers
.”
(Own emphasis)
[22]
The applicant complains firstly of the
costs associated with arbitration, and secondly that there is no
finality on the issue. Leaving
aside the obvious (that certainty can
be achieved by granting the Union organizational rights) the
submission ignores one of the
fundamental premises of the LRA, that
employers wield greater economic and social power. The LRA seeks to
address the power imbalance.
The applicant also ignores the other
stark reality – the Union can, and most likely will, continue
to seek organizational
rights until it is finally satisfied. The LRA
does not permit one to read in limitations on the fundamental rights
to strike or
engage in collective bargaining, particularly where
these limitations are based on a false premise – that employers
require
protection from the Union.
[23]
Nevertheless, regardless of whether it is
strictly necessary, the LRA does afford employers some measure of
protection. The LRA
creates a limitation on the use of arbitration to
secure organizational rights, for a period of 12 months after a
strike notice
has been issued in relation to the same issue. This
limitation, although contained in
section 65
, appears only to limit
the use of arbitration rather than strike action.
[24]
The applicant’s submissions do not fully
appreciate a further tenet of the LRA – the absence of a
justiciable duty to
bargain (despite the existence of a
constitutional right to engage in collective bargaining) was
exchanged for the right to engage
in protected strike action, a
strong collective bargaining framework, and two routes to secure
organizational rights. The respected
authors of
Law
@ Work (Fifth Edition)
explain
the issue as follows: “
The trade-off is immediately apparent
– a voluntarist system of collective bargaining, underpinned by
a strong set of organisational
rights extended to registered trade
unions, coupled with a right to strike over recognition and
bargaining demands
.”
[25]
The applicant’s submissions also failed to consider the
language used in
sections 21(4)
and
21
(7) of the LRA. Those sections
permit the employer to pursue the dispute about organisational
rights. The employer has not taken
these steps, even though they are
available to it.
Conclusion
[26]
The applicant is unable to point to any provision of the LRA to
ground its case. Its argument is premised the equal bargaining
position between the employer and the workers, which is incorrect.
The commissioner committed no error of law, let alone a material
error of law.
[27]
In the circumstances, the application to review and set aside the
withdrawal ruling falls to be dismissed.
R Daniels
Judge of the Labour
Court of South Africa
Appearances:
For the Applicant:
Cliffe Dekker & Hofmeyr
[1]
The
term “deemed employer” is used by the applicant in its
papers. The same terminology is adopted for ease of reference.
The
precise nature of the employment relationship is beyond the scope of
this judgment.
[2]
The commissioner is someone other than the third or fifth
respondents
[3]
Of course, the CCMA does not have the jurisdiction to make such a
ruling. Only the Labour Court may declare a strike to be
unprotected.
[4]
No
authority was given for this proposition.
[5]
This
broad assertion was made, once again, without authority. The
applicant did not explain how orderly collective bargaining
is
undermined.
[6]
During
argument, no specific section of the LRA was referred to.
[7]
The
applicant did not clarify exactly how the absence or presence of an
arbitration award would impact on strike action.
[8]
This
argument was not pursued with any vigor.
[9]
(2011) 32 ILJ 402 (LC)
[10]
SA
Municipal Workers Union on behalf of Members v Mangaung Metropolitan
Municipality
(2023)
44 ILJ 360 (LC) at paras 52 – 53
[11]
United
Transport & Allied Trade Union/SA Railways & Harbours Union
& others v Autopax Passenger Services (SOC) Ltd
& another
(2014) 35 ILJ 1425 (LC) at para 55
[12]
(2017) 38 ILJ 1555 (CC)