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2024
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[2024] ZALCJHB 192
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DSV Road Logistics (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR1023/23) [2024] ZALCJHB 192 (6 May 2024)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
No:
JR1023/23
In
the matter between:
DSV
ROAD LOGISTICS (PTY)
LTD
Applicant
and
NATIONAL
BARGAINING COUNCIL FOR THE ROAD
First
Respondent
FREIGHT
AND LOGISTICS INDUSTRY
KEKANA
PRINCE
N.O.
Second Respondent
PRIMESERV
STAFF LOGISTICS (PTY) LTD
Third
Respondent
MODUPI
SAMUEL MSIYA AND OTHERS
Fourth
to further
Respondents
Heard
:
17 April
2024
Delivered
:
6 May 2024
(This judgment was handed down electronically by
emailing a copy to the parties. The 6
th
of May 2024 is
deemed to be the date of delivery of this judgment).
Summary:
On review, DSV, client of the temporary employment
service (third respondent) contending that it was entitled to be
joined in the
dispute between the first and third respondents
regarding compliance with collective agreements of the Bargaining
Council re. conditions
of employment. Section 198(4)(a) and
198(4A)(c) of the LRA is applicable. Application for condonation
dismissed.
JUDGMENT
DANIELS J
Introduction
[1]
In this matter, the court was required to determine a review
application brought by the client of a
temporary employment
service
who takes issue with an enforcement award issued by the
first and second respondents (hereafter the “Bargaining
Council”)
against the
temporary employment service
.
[2]
In addition, the review application was delivered late, and
condonation is sought. The review application need only be
considered
if condonation is granted.
[3]
For ease of reference, the third respondent, is hereafter referred to
as the “
temporary employment service
” or the
“labour broker”. The applicant is hereafter referred to
as “DSV” or “the client”.
Material
facts
[4]
The labour broker supplies employees to DSV. In respect of such
employees, the labour broker failed to comply with the
Main
Collective Agreement (“MCA”) of the Bargaining Council.
[5]
A designated agent of the Bargaining Council issued a compliance
order to the
temporary employment service
, but it failed to
comply. Accordingly, an arbitration was convened in terms of section
33A of the Labour Relations Act No. 66 of
1995 (hereafter “the
LRA”).
[6]
The second respondent issued an enforcement award on 9 September
2022. The second respondent found that the
temporary employment
service
was in breach of the MCA insofar as it related to terms
and conditions of employment, and other issues. In fact, this was
common
cause during the proceedings.
[7]
Following the issue of the enforcement award, DSV and the labour
broker launched a joint application for rescission of
the enforcement
award. In the rescission application:
7.1
DSV contended that the enforcement award was erroneously
granted in its absence, and it is therefore not required to
show good
cause for the rescission.
7.2
DSV stated that the employees supplied to it are deemed to be
its employees, in accordance with section 198A(3)(b) of
the LRA.
7.3
DSV states that it has reasonable prospects of success in the
review and the rescission because the amounts claimed were
not due
and payable. Unfortunately, DSV provides no detail, or explanation as
to what this means. DSV does not explain how it could
possibly have
reasonable prospects of success when the
temporary employment
service
conceded that it had not complied with the collective
agreement of the Bargaining Council.
[8]
The Bargaining Council opposed the rescission application.
[9]
The second respondent issued his ruling on 23 November 2022, in which
he dismissed the rescission application. The second
respondent noted
there was no joinder application brought under the Bargaining
Council’s Rules. The second respondent held
that DSV and the
temporary employment service
had failed to show good cause for
the rescission.
[10]
The rescission ruling came to the applicant’s attention on 20
March 2023.
[11]
The review application was due on 2 May 2023 but served on the
parties on 7 June and filed on 12 June 2023.
[12]
In the
review, DSV contends that it had a direct and substantial interest in
the compliance dispute and it should therefore have
been joined.
[1]
DSV states that the employees supplied to it, by the
temporary
employment service
,
worked at DSV for periods more than 3 months and are therefore deemed
to be its employees.
[2]
Condonation
application: applicable legal principles
[13]
The
decision in
Melane
v Santam Insurance Co (Pty) Ltd
[3]
is
generally regarded as the
locus
classicus
on condonation. Holmes JA held as follows:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that
the
court has a discretion, to be exercised judicially upon a
consideration of all the facts, and in essence it is a matter of
fairness to both sides
.
Among the facts usually relevant are the degree of lateness, the
explanation therefore, the prospects of success, and the importance
of the case.
Ordinarily
these facts are interrelated: they are not individually decisive for
that would be a piecemeal approach incompatible
with a true
discretion
.”
[4]
(Own emphasis)
[14]
Accordingly, the test for condonation involves a weighing up of all
the relevant facts, so that, for example, a good
explanation for the
delay may compensate for weaker prospects of success.
[15]
Our courts
have repeatedly endorsed the principle that without a reasonable and
acceptable explanation for the delay, the prospects
of success are
immaterial. In addition, without any prospects of success, the
explanation for the delay is immaterial
.
[5]
[16]
In
Grootboom
v National Prosecuting Authority and another
[6]
the
Constitutional Court held that the primary criterion is the
“interests of justice” which was explained as follows:
“…
the
standard for considering an application for condonation is the
interests of justice. However, the concept “interests of
justice” is so elastic that it is not capable of precise
definition. As the two cases demonstrate, it includes:
the
nature of the relief sought; the
extent and cause of the
delay
; the effect of the delay on the administration of
justice and other litigants;
the reasonableness of the
explanation for the delay;
the importance of the issue to
be raised in the intended appeal;
and the prospects of
success. It is crucial to reiterate that both Brummer and Van Wyk
emphasise that the ultimate determination
of what is in the interests
of justice must reflect due regard to all the relevant factors but it
is not necessarily limited to
those mentioned above. The particular
circumstances of each case will determine which of these factors are
relevant
.” (Own emphasis)
[17]
At para 36 of
Grootboom
, the Constitutional Court stated:
“
Although not decisive, the existence of prospects of
success is an important component of the interests-of-justice
analysis
.”
Explanation
for the delay
[18]
The review application was delivered 39 days late, a lengthy period.
Unfortunately, the applicant does not offer a detailed
explanation
for the delay. In this regard:
18.1 The deponent
explains that the rescission ruling came to its attention on 20 March
2023. The deponent explains that
the first draft of the review papers
was completed on 12 April 2023 and sent to counsel to settle. The
attorneys were aware of
the deadline to file the review and advised
counsel of this as well.
18.2 Thereafter,
between 12 April 2023 and 7 June 2023 the explanation is that there
was miscommunication between the director
handling the matter and the
attorney he was working with.
18.3 The
miscommunication between the applicant’s attorneys only gets it
so far. The attorneys explain that counsel
was provided with the
draft review application on 12 April and he was informed of the due
date to file the review. Regrettably,
counsel provides no explanation
at all at why he could not settle the papers in 2 weeks. This is
unacceptable particularly where
counsel was informed of the deadline
by his instructing attorney.
18.4 In the
circumstances, I consider the explanation to be weak and lacking in
transparency. Condonation is not merely for
the asking.
Prospects
of success
[19]
The applicant’s case is premised on its allegation that it has
a direct and substantial interest in the subject
matter of the
enforcement proceedings. It provides no explanation as to why the
third respondent brought no application to join
it, nor was this
explained in the rescission application where the
temporary
employment service
was a co-applicant. DSV does not explain how
it allegedly had no knowledge of the enforcement proceedings though
its
temporary employment service
was intimately involved.
[20]
While the applicant is correct that, in general, where a party has a
direct and substantial interest in a dispute, that
would entitle it
to be joined. However, this fails to consider the legislative
provisions applicable to this dispute. These are
discussed below:
20.1 Section
198(4) of the LRA states that the labour broker and the client are
jointly and severally liable if the
temporary employment service
contravenes a collective agreement of a Bargaining Council which
regulates terms and conditions of employment in the industry.
20.2 Section
198(4A)(c) of the LRA provides for two scenarios. The provision
states that where:
20.2.1
The client
and the
temporary
employment service
are jointly and severally liable in terms of section 198(4), then any
order or award made
[7]
against
the
temporary
employment service
or the client may be enforced against the other,
20.2.2
The client is deemed to be the employer in terms of section
198A(3)(b) any order or award against a
temporary employment
service
or the client may be enforced against the other.
[21]
Thus, the rule relating to joinder of parties with a direct and
substantial interest cannot be strictly applied in circumstances
contemplated by section 198(4) and 198(4A). Those sections
contemplate that either the client
or
the
temporary
employment service
would be parties to the proceedings. The
drafters of the LRA acknowledge the intimate nature of the
relationship between the client
and its labour broker. The temporary
employment services profits from the supply of labour while the
client profits from the labour
and the products or services emanating
from such labour.
[22]
Section 198(4) and 198(4A) is specifically designed to protect
vulnerable employees and to avoid technical points by
the
temporary
employment
service or client who may try to avoid their
obligations under collective agreements concluded at sectoral level.
Section 198(4)
and 198(4A) creates an exception to the general rule
that parties with a direct and substantial interest
must
be
joined. The drafters of the LRA took into account that the identity
of the true employer is, in triangular employment relationships,
particularly difficult to discern. The drafters awareness of this
difficulty is apparent from the creation of statutory presumptions
regarding the employment relationship.
[23]
The applicant, in its rescission application, offers no more than a
general statement that it has good prospects of success.
It offers no
detail whatsoever. It does not explain how it could have good
prospects of success when the
temporary employment service
conceded it had not complied with the Main Collective Agreement.
These concessions are recorded in para 15 of the rescission ruling,
and the enforcement award itself.
Other
relevant factors
[24]
Given the weakness of the explanation and the absence of any real
prospects of success it is unnecessary to explore the
other factors
in any detail.
[25]
It suffices to mention that, in my view, these factors (the
importance of the issue, nature of the relief, or administration
of
justice) weigh against the applicant. The review has the effect of
delaying enforcement of an industry collective agreement.
This
hinders two key objectives of the LRA namely effective dispute
resolution and support of collective bargaining at sectoral
level.
The review application has the effect of undermining the Bargaining
Council and its enforcement mechanisms.
[26]
The review application does not advance the administration of justice
in any manner that is apparent. Notably this issue
was not
pertinently addressed in the condonation application. The issue in
dispute is clearly just as important to the individual
employees (if
not more important) when compared to the interests of the client and
the labour broker.
Conclusion
[27]
In the circumstances, I find that the period of the delay is
substantial, the explanation inadequate, and the prospects
of success
virtually non-existent.
[28]
In the exercise of my discretion, having considered all relevant
factors, I do not believe it is in the interests of
justice to grant
condonation for the late filing of the review application. The
application for condonation is dismissed.
RN Daniels
Judge
of the Labour Court of South Africa
Appearances:
For the Applicant:
Adv A Nel
Instructed by:
Darran Ledden Incorporated
[
1]
The deponent to the founding affidavit states: “
Primeserv
had in fact
either
applied or in some form requested that DSV be joined
to the proceeding, yet the second respondent never issued any ruling
in this regard
.”
No confirmatory affidavit, from Primeserv, is referred to in the
founding affidavit.
[2]
The applicant does not allege that the affected employees earned
under the earnings threshold in
section 6(3)
of the
Basic Conditions
of Employment Act, 1997
. Nor does the applicant deal with the
provisions of
section 198A(1)(b)
or (c) of the LRA.
[3]
1962 (4) SA 531
(A) at 532C-D
[4]
At 532C-D. This test has been repeatedly endorsed by the Labour
Court and the Labour Appeal Court.
[5]
NUM v
Council for Mineral Technology
(1998)
3 LCD 448 (LAC);
PPAWU
& others v A F Dreyer & Co (Pty) Ltd
[1997]
9 BLLR 1141
(LAC);
Toyota
Marketing v Schmeizer
[2002]
12 BLLR 1164
(LAC) at para 15;
Miya
v Putco Ltd
(1999)
4 LLD 236 (LAC)
[6]
(2014) 35 ILJ 121 (CC)
[7]
Any order or award made in terms of this subsection. This includes
the scenario we are dealing with in this matter – breach
by
the TES of a collective agreement of a bargaining council.