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[2024] ZALAC 54
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Innovative Staffing Solutions (Pty) Ltd and Others v National Bargaining Council for Road Freight and Logistics Industry and Others (JA128/2023) [2024] ZALAC 54; [2025] 2 BLLR 144 (LAC); (2025) 46 ILJ 336 (LAC) (12 November 2024)

FLYNOTES:
LABOUR – Bargaining council
–
Enforcement
proceedings –
Alleged failure to comply with
council’s main agreement – Non-party to council
objecting to appointment of arbitrator
appointed by council –
CCMA then appoints an arbitrator – Also member of panel of
accredited arbitrators appointed
by council – Does not
necessarily gives rise to institutional bias – Other
remedies available such as review
or to seek the recusal of the
arbitrator –
Labour Relations Act 66 of 1995
,
s 33A(4)(b).
THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
No:
JA
128/2023
In
the matter between:
INNOVATIVE
STAFFING SOLUTIONS (PTY) LTD
First
Appellant
ISIDINGO
LOGISTICS CC
Second
Appellant
SNB
FREIGHT CC
Third
Appellant
and
THE
NATIONAL BARGAINING COUNCIL FOR THE
ROAD
FREIGHT AND LOGISTICS INDUSTRY
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Second
Respondent
CAMERON
MORAJANE
N.O.
Third
Respondent
Heard
:
5 November 2024
Delivered
:
12 November 2024
Coram: Molahlehi JP,
Savage ADJP
et
Van Niekerk JA
JUDGMENT
VAN NIEKERK, JA
Introduction
[1]
This
is an appeal, with the leave of this Court, against the whole of a
judgment delivered by the Labour Court on 2 June 2023. The
appeal
turns on the interpretation of
s 33A
(4) of the
Labour Relations
Act
[1]
(LRA). That section
concerns the enforcement of bargaining council agreements and
provides:
‘
(a)
The council may refer any unresolved dispute concerning compliance
with any provision of a collective
agreement to arbitration by an
arbitrator appointed by the council.
(b)  If a party to
an arbitration in terms of this section, that is not a party to the
council, objects to the appointment
of an arbitrator in terms of
paragraph (a), the Commission, on request by the council, must
appoint an arbitrator.
(c)  If an
arbitrator is appointed in terms of subparagraph (b) –
(i)
the Council remains liable for the payment of the
arbitrator’s fee; and
(ii)
the arbitration is not conducted under the
auspices of the Commission.’
[2]
The appeal raises a crisp question – if in
any enforcement proceedings, a non-party to a bargaining council
objects to the
appointment of an arbitrator appointed by the council
and the CCMA then appoints an arbitrator in terms of
s 33A
(4)(b),
can the CCMA appoint an arbitrator who is also a member of a panel of
accredited arbitrators appointed by the council to
arbitrate disputes
that arise within its jurisdiction?
Factual background
[3]
The first respondent (council) is a bargaining
council registered for the road freight and logistics industry. The
first appellant
describes itself as an operational outsourcing and
consulting business; the second and third appellants are two of the
first appellant’s
clients. The business model adopted and
applied by the first appellant is one in which the first appellant
takes transfer of its
clients’ employees in terms of
s 197
of
the LRA, thus becoming the employer of those employees. In the course
of providing services to its clients, the first appellant
places the
services of the transferred employees at the disposal of the client.
The first appellant contends that in these circumstances,
where the
business of the client (as is the case with the second and third
appellants) resorts under the scope and jurisdiction
of the council,
its business does not. On this basis, the first appellant submits
that despite the extension of the council’s
agreements in terms
of
s 32
of the LRA to non-parties who fall within the council’s
registered scope, the agreements are not binding on it.
[4]
This state of affairs led to a dispute in which
the CCMA issued a demarcation award in terms of
s 62
of the LRA. The
presiding commissioner held that the first appellant, as a temporary
employment service providing employees to
clients who fell under the
scope and jurisdiction of the council, itself fell under the
council’s scope and jurisdiction
and was thus bound by those of
the council’s collective agreements extended by the minister in
terms of
s 32
of the LRA to bind non-parties to the council. The
demarcation award remains the subject of a pending application for
review.
[5]
The first appellant sought to stay enforcement
proceedings against it and its clients. In a judgment delivered on 24
November 2021,
the application was dismissed, but a
counter-application seeking an order that the first appellant comply
with the main agreement
was granted. The first appellant was further
interdicted from representing to its clients that it and its clients
were not obliged
to comply with the council’s main agreement.
Appeals against that judgment, both to this Court and the
Constitutional Court,
were dismissed.
[6]
The council then initiated enforcement proceedings
against the first appellant and its clients. All of the proceedings
concerned
an alleged failure by the appellants to comply with the
council’s main agreement. The first appellant filed a notice of
objection
against the arbitrator appointed by the council. The first
appellant, through its attorneys, ultimately sought an undertaking
from
the council that the matter be referred to the CCMA and further,
that the appointed arbitrator have no affiliation with the council

whatsoever. In the absence of the undertaking sought, the appellants
filed an urgent application in the Labour Court.
[7]
By the time that the urgent application was
argued, any disagreement or confusion about whether the CCMA would
appoint an arbitrator
at the request of the appellant was resolved,
and the only relief pursued was an order to the effect that on
receipt of any notice
of objection from a non-party (including the
appellants), the CCMA “
appoint
different arbitrators who are not appointed on any panel of the first
respondent
[the council]
,
or affiliated whether as an employee or independent contractor with
the first respondent”
to preside
over enforcement disputes between the bargaining council on the one
hand, and the appellant and its clients on the other.
In effect, the
appellants sought an order declaring that in the face of an objection
by a non-party, the CCMA was limited in its
choice of arbitrators,
and specifically not permitted to appoint any arbitrators who may
serve on any panel appointed by the council
to preside over
enforcement arbitrations.
The Labour Court
[8]
In its analysis, the Labour Court noted that in
terms of
s 33A
, a bargaining council enforces its own agreements,
through the vehicle of agents empowered to grant compliance orders,
and ultimately
by way of the appointment by the council of an
arbitrator to determine any dispute regarding the enforcement of
binding collective
agreements concluded by the council. The Court
described
s 33A(4)(b)
as a ‘balance’, applicable only to
non-parties to a bargaining council where the appointment of the
arbitrator in enforcement
proceedings is taken out of the hands of
the council and placed in the hands of the CCMA. The Court came to
the following conclusion:
‘
[39]
The point that emerges from the above is clear. The only obligation
on the bargaining council in the context
of receiving an objection to
its appointment of an arbitrator, in terms of
section 33A(4)(b)
, is
to request the CCMA to appoint an arbitrator. The actual appointment
of the arbitrator lies entirely in the hands of the CCMA.
That being
so, it is simply not for ISS [the first appellant], the NBCRFLI [the
council] itself, or even this court, to prescribe
to the CCMA how
this appointment must be made. That would constitute undue
interference in a task specifically dedicated to the
CCMA.’
[9]
The Labour Court went on to note that it should be
accepted that arbitrators appointed to act under the auspices of the
council
will demonstrate the necessary independence in deciding a
matter. What the appellant sought to do was impose conditions on the
CCMA when it decided to make appointments of arbitrators in the case
of disputes involving the appellant and its clients that concern
the
enforcement of the council’s collective agreements. The Court
found that
s 33A
(4) did not make provision for any requirement that
arbitrators appointed by the CCMA must be entirely independent from
the bargaining
council itself. All that is required is that the CCMA
“
exercise oversight of the
appointment, and then deciding what would be an appropriate
appointment, even if that appointment comes
from the core of
arbitrators that may be affiliated with the NBCRFLI”
.
It could not be assumed that an arbitrator appointed by the CCMA to
preside over any enforcement proceedings in which the appellant
and
its clients are involved would necessarily be biased simply because
the arbitrator is affiliated with the council in the form
of
membership of a panel of arbitrators appointed by the council to
discharge dispute resolution functions for which the council
was
accredited.
[10]
In regard to costs, the Labour Court noted that it
had wide discretion when it came to the issue of costs and that in
the circumstances,
an order for costs against the appellant was
appropriate and justified. In the result, the Labour Court dismissed
the application,
with costs.
Analysis
[11]
Prior
to August 2002, the LRA was silent on the powers of a bargaining
council to enforce collective agreements. Parties to collective

agreements concluded under the auspices of a bargaining council
typically determined, by means of a collective agreement, the rules

and procedures for enforcing compliance with agreements concluded by
parties to the council. Where bargaining council agreements
were
extended by the minister in terms of
s 32
of the LRA, non-parties
were bound both by those agreements and the enforcement procedures
agreed by parties to the council. An
objection to this state of
affairs came before this Court in
Kem-Lin
Fashions CC v Brunton & another
[2]
(Kem-Lin)
where
a non-party to a council to whom a collective agreement had been
extended contended that the bargaining council had acted

unconstitutionally in seeking to enforce the agreement, as it was a
judge in its own cause. The Court dismissed that contention,
and
viewed the dispute in the context of the legislative purpose
underpinning the extension of bargaining council agreements, the

elimination of unfair competition on the basis of wages and
conditions of employment within a sector and the primary objects of

the LRA, which include both the promotion of orderly collective
bargaining and the promotion of bargaining at sectoral level. The

Court concluded that at least for so long as the extension of the
collective agreement remained in place, non-parties were bound
by the
terms of the council’s collective agreements as if they were
parties, and should be treated in the same manner. This
had the
consequence that the same enforcement process applied to both parties
and non-parties to a bargaining council.
[12]
In
2002, the
Labour Relations Amendment Act 12 of 2002
inserted
s 33A
into the Act. The Explanatory Memorandum
[3]
explains the purpose of the amendment as follows:
‘
8.2
Disputes
concerning bargaining council agreements – Insertion of new
section 33A
(a)
In terms of the 1956
Labour Relations Act, the
failure to comply with industrial council agreements was a criminal
offence. The 1995 Act decriminalised enforcement of collective

agreements. Disputes concerning compliance with bargaining council
agreements that cannot be resolved by conciliation are now referred

to arbitration.
(b)
The Act does not deal expressly with those
disputes in which a bargaining council is a party (whether to claim
payments on behalf
of an employee or payments such as levies that are
due to the council or contributions to funds established by
councils).
(c)
Many councils have provided for these arbitrations
by collective agreement in the Labour Court has recently confirmed
their validity.
Nevertheless the status of these arbitrations
requires clarification.
(d)
A new section 33A is included to provide an
explicit statutory basis for arbitrations dealing with the
enforcement of bargaining
council collective agreements. It is
proposed that these arbitrations should be conducted by arbitrators
appointed by the CCMA
so as to ensure the independence of the
arbitration process. The powers of arbitrators are modelled on those
of the Labour Court
in dealing with violations of the BCEA.’
[13]
In the present instance, the appellants do not
call into question the decision of this Court in
Kem-Lin
,
nor do they seek to challenge the constitutionality of s 33A (4) The
appellants also do not impugn the integrity of individual
arbitrators
accredited by the CCMA, and who may serve on a panel established by a
bargaining council for the purpose of conducting
enforcement
arbitrations. Their claim is one of institutional bias or put another
way, a lack of institutional independence on
the part of bargaining
councils seeking to enforce collective agreements as against
non-parties by way of arbitration proceedings.
[14]
Counsel for the appellants submitted that in any
enforcement proceedings, s 33A(4)(b) introduces a right of
unqualified objection
to the appointment of an arbitrator by the
council. The ambit of this right, so it was submitted, extends to a
limitation on the
choice of arbitrator by the CCMA, one that serves
to exclude any arbitrator who has any affiliation with the council.
To interpret
s 33A(4)(b) otherwise, so counsel submitted, would
frustrate the purpose of the amendment introduced in 2002, the
objectives of
the section read as a whole, and undermine the
integrity of the enforcement process.
[15]
There is no merit in these submissions. First,
there is no textual support for the construction for which the
appellants contend.
The wording of the section, in the context of the
whole of s 33A (4) and the reasons for its introduction, is clear –
a non-party
may object to the council appointing the arbitrator in
enforcement proceedings. The CCMA must then appoint the arbitrator.
There
is nothing in the wording that suggests that the CCMA’s
choice of arbitrator is limited or constrained, or that the CCMA is

obliged to appoint an arbitrator who has no links to the council.
There is also nothing in the section read as a whole, or the

Explanatory Memorandum, that supports the constraint on the CCMA for
which the appellants contend. The section intends to accomplish
no
more in the face of an objection by a non-party than to the remove
the power to appoint the arbitrator from the hands of the
council,
and to place that power in the hands of the CCMA. In short, the right
of unqualified objection for which the appellants
contend does not
extend to the identity of the individual arbitrator.
[16]
Secondly, and to the extent that the appellants
contend that the purpose of s 33A (4) would be defeated if it remains
open for the
CCMA to appoint an arbitrator from the same panel from
which the council would make an appointment in respect of an
enforcement
dispute concerning a party (or in the absence of any
objection by a non-party), it is undoubtedly true, as the appellants
submit,
that the rule against bias is anchored in public confidence.
But it does not necessarily follow that because a particular
arbitrator
may serve as a CCMA commissioner and an arbitrator on one
or more panels of conciliators and arbitrators established by one or
more bargaining councils that as a general proposition, there is a
failure of the right to a fair hearing should such an arbitrator
be
appointed by the CCMA in terms of s 33A(4)(b). The appointment of
arbitrators to the council’s panel and the manner of
their
appointment is described in the answering affidavit in the following
terms:
‘
The
NBCRFLI appoints Arbitrators to preside over enforcement proceedings
from its panel of Arbitrators. All of these Arbitrators
are
Commissioners who have been certified by the CCMA. None of them are
employed by the NBCRFLI but they are rather independent,
professional
Arbitrators. Most of them are in fact also part-time CCMA
Commissioners. None of them act as Arbitrators exclusively
for the
NBCCRFLI.
The Code of Conduct for
such panelists, their continued accreditation by the CCMA and their
professional reputation all require
that they act independently.’
[17]
To the extent that the appellants sought to
introduce evidence of what they allege to be bias on the part of
particular arbitrators
in particular cases, the appellants seek to
elevate the particular to the general. If the appellant harbours
allegations of bias
or other grievances against a particular
arbitrator, it has remedies at its disposal. First, as the Labour
Court observed, a non-party
in any enforcement proceeding is entitled
to seek the recusal of the appointed arbitrator on the grounds of
bias or indeed, any
other legitimate ground for recusal. Further, any
ruling in an application for recusal, as well as the arbitration
award enforcing
a collective agreement concluded under the auspices
of a bargaining council, is subject to review under s 158 (1)(g) and
s 145
of the LRA respectively.
[18]
It thus cannot be said that in these circumstances
every appointment by the CCMA acting in terms of s 33A (4)(b) of an
arbitrator
who happens to be both a CCMA commissioner and a member of
the appellant’s panel of arbitrators necessarily gives rise to

institutional bias.
[19]
Finally, and to the extent that s 33A (4)(c)
provides that despite the appointment of an arbitrator by the CCMA,
the council remains
liable to pay the arbitrator’s fee and to
conduct the arbitration under its own auspices and not those of the
CCMA, the same
considerations apply. There is no suggestion that the
procedure for the arbitration of enforcement disputes under the
auspices
of the council is in any way different to that applicable in
the CCMA, or otherwise unfair or prejudicial to the appellants. As
I
have noted, the integrity of the arbitrators themselves has not been
called into question. The provisions of s 33A (4)(c) accordingly
do
not in themselves serve to constrain the CCMA’s selection of an
arbitrator in terms subparagraph (b).
Costs
[20]
It follows that the Labour Court correctly
dismissed the application and that the appeal must fail. While
counsel sought to persuade
us that the appeal was brought as part of
a campaign to frustrate the enforcement of the council’s
agreements as against
the appellants and that a punitive order for
costs is thus warranted, the point raised by the appellants does not
fall into the
category of the frivolous or vexatious, nor is there
any evidence to suggest that the proceedings before this Court were
initiated
in bad faith. The requirements of the law and fairness are
best satisfied by an order that each party bear its own costs.
[21]
I make the following order:
Order
1.
The appeal is dismissed.
van Niekerk JA
Molahlehi JP
et
Savage
ADJP concur
Appearances:
For
the appellant:
Instructed
by:
Adv
F Boda SC
Cliffe
Dekker Hofmeyr Inc.
For
the first respondent:
Instructed
by:
Adv
G Fourie SC
Tricker
Inc.
[1]
Act
66 of 1995, as amended.
[2]
(2001)
22
ILJ
109
(LAC); [2002] 7 BLLR 597 (LAC).
[3]
See
(2000) 21
ILJ
2195.