National Union of Mine Workers v Hernic Exploration (Pty) Ltd (JA13/01) [2003] ZALAC 1; (2003) 24 ILJ 787 (LAC); [2003] 4 BLLR 319 (LAC) (6 March 2003)

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[2003] ZALAC 1
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National Union of Mine Workers v Hernic Exploration (Pty) Ltd (JA13/01) [2003] ZALAC 1; (2003) 24 ILJ 787 (LAC); [2003] 4 BLLR 319 (LAC) (6 March 2003)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
Case
no: JA13/01
In
the appeal between:-
NATIONAL
UNION OF MINE WORKERS APPELLANT
and
HERNIC
EXPLORATION (PTY)Ltd RESPONDENT
________________________________________________________________
JUDGEMENT
________________________________________________________________
ZONDO
JP
Introduction
[1] The
Labour Court gave a judgement upholding a point in limine taken by
the respondent that the appellant, being a trade union,
had no right
to refer a dismissal dispute to the Commission for Conciliation,
Mediation and Arbitration, (
“the
CCMA”
)
or the Labour Court unless it cited the dismissed employees as its
co-applicants in such referral or proceedings. There was another
point in limine that the Labour Court dealt with. That point in
limine was this: The CCMA is required by statute to attempt to
conciliate
a dismissal dispute within 30 days from the date on which
the dispute was referred to it unless that period has been extended
by
agreement between the parties. If the dispute remains unresolved,
the dispute must be referred the Labour Court, if it is a dispute
falling within the jurisdiction of the Labour Court, within 90 days
for adjudication failing which the Labour Court will have no
jurisdiction. In this matter, so went the point in limine, the Labour
Court had no jurisdiction because the dispute was referred
to the
Labour Court after the expiry of 90 days from the expiry of the 30
day period. The Labour Court dismissed this point in limine.
The
Labour Court refused leave to appeal against its judgement. The
appellant later successfully petitioned this Court for leave
to
appeal. The appellant then noted an appeal against the judgement of
the Labour Court. The respondent noted a cross-appeal against
the
dismissal of the point in limine referred to above. The appeal and
cross-appeal now come before us.
Brief
background
[2] On
1 December 1998 the respondent gave all its employees notices of
retrenchment with effect from the 31
st
December 1998. Some of the employees were members of the appellant
which is a registered trade union. A dispute then arose about
the
dismissal of the employees. On or about the 16
th
December 1998 the appellant referred the dispute to the CCMA for
conciliation. No names of employees or members of the appellant
were
given in the referral form. In par 3 of the referral form it was
stated that the dispute was about
“unfair
retrenchments”.
It
was also stated
:
“The
retrenchment will be effective as from 31-12-98.”
In
par 5 it was stated that the dispute had arisen on the 30
th
November 1998. The desired results of conciliation were said to be
that:
“all
workers should be recall(sic) and company to follow retrenchment
procedure as per signed agreement.”
[3] The
respondent did not attend the conciliation meeting on the date
scheduled for it. The statutory 30 day period within which
the CCMA
was required to conciliate the dispute expired on the 15
th
January 1999. By the expiry of that period, the certificate of
outcome had not been signed or issued. On the 18
th
February 1999 the commissioner of the CCMA who was assigned to
conciliate the dispute signed and issued a certificate of outcome
to
the effect that the dispute remained unresolved. In the certificate
the commissioner reflected the dispute as being between the
appellant, as the employee party, and, the respondent, as the
employer party. The commissioner referred to the dispute in the
certificate
as one “
concerning
alleged unfair dismissals.”
Proceedings
in the Labour Court
[4] On
the 28
th
April 1999 the dispute was referred to the Labour Court by way of a
statement of claim. In its heading the statement of claim reflected
the appellant and the respondent as the applicant and respondent
respectively. Paragraph 1 thereof is important. It read as follows:.
“
1 The
applicant is the National Union of Mine Workers (“the union”), a
trade union registered in terms of the Labour Relations
Act, 66 of
1995 (“the Act”), with its head office situated at 7 Rissik
Street, Johannesburg. The union acts on its own behalf
and on behalf
of its members dismissed by the respondent on 31 December 1998.”
[5] In
par 3 of the statement of claim more was said about the dispute. Par
3 read:
“
The
dispute arising out of the dismissal of union members was referred to
the Commission for Conciliation, Mediation and Arbitration
(“the
CCMA”)
on 23
December 1998. On 18 February 1999 the CCMA
issued a
certificate of outcome confirming that the dispute remains
unresolved. The dispute is hereby referred to the above court
for
adjudication.”
[6] In
due course the respondent delivered a response to the statement of
claim and later an amendment to the response. The respondent
took
three points in limine. The first one was to the effect that the
dispute had not been referred to the CCMA for conciliation
and, that,
for that reason, the Labour Court lacked jurisdiction to adjudicate
the dispute. In due course the Labour Court dismissed
this point. The
second objection in limine was taken in paragraphs 2.3 -2.7 of the
respondent’s response. Those paragraphs read
thus:.
“
2.3 The
respondent states that in terms of the provisions of
Section 191(1)
of the
Labour Relations Act, only
the dismissed employees may refer
the dispute to conciliation in terms of the Act. It is submitted that
such referral contemplates
that the referral must be brought in the
name of the dismissed employees with the dismissed employees actually
being parties to the
dispute. In addition, the referral has to
reflect the full name, address and particulars of each of the
dismissed employees who are
parties to the dispute, and the referral
must be signed by such employees. Legal argument in this regard will
be addressed to the
above Honourable Court at the hearing of this
matter;
2.4 In
this instance, as appears from the referral document in the
respondent’s possession, the dispute was referred in the name
of
“National Union of Mineworkers”, and does not reflect the names,
addresses or particulars of any of the individual employees
who were
dismissed by the respondent. The document has also not been signed by
any of the said employees concerned. In no way whatsoever
are any of
the said employees identified or is it indicated which of such
employees mandated or authorised the referral of the dispute,
or are
in fact a party to the dispute;
2.5 Of
even greater concern is the fact that a list of employees have been
identified in the referral of this dispute to the above
Honourable
Court as being parties to the dispute without such employees in any
way being identified as being a party of the referral
of the dispute,
initially, to conciliation. The respondent is accordingly unable to
ascertain or establish that such employees were
indeed a party to the
referral of the dispute for conciliation and mandated and authorised
the referral of the dispute to conciliation
by the National Union of
Mineworkers;
2.6 As
a result, the referral of this dispute to the CCMA for conciliation
in terms of Section 191(1) of the Act, is defective, incompetent,
and
null and void in the circumstances. As a result, there exists no
valid referral of this dispute for conciliation in terms of
Section
191(1) of the Act. Accordingly, the CCMA had no jurisdiction to
conciliate this matter in the first instance, there being
no valid
referral of the dispute before the CCMA for conciliation;
2.7 As
a result, it is submitted that the above Honourable Court has no
jurisdiction to entertain this matter, this matter not having
been
properly and validly referred for conciliation and conciliated in
terms of the Act. It is accordingly prayed that the applicant’s
application be dismissed with costs, on this basis alone.”
In
due course the Labour Court upheld this point. The third objection in
limine was the one that has been explained in the first paragraph
of
this judgement. As already stated above, the Labour Court dismissed
that objection in limine. On the basis of the point in limine
that it
upheld, the Labour Court dismissed the referral of the dispute with
costs.
[7] As
already stated above the Labour Court upheld the point in limine
that a trade union could not be a party to a referral of
a dismissal
dispute to the CCMA for conciliation or to the Labour Court for
adjudication unless its dismissed members were also cited
as
co-applicants in such referral or proceedings. For this conclusion it
relied, inter alia, on the provisions of sec 200(2) of the
Act as
well as the judgement of Tip AJ in
Librapac
CC v Moletsane NO and others (1998) 19 ILJ 1159 (LC)
especially
par 43 of that judgement.
[8] In
par 39 of his judgement the learned Judge in the Court a quo referred
to the certificate of outcome and remarked that:.
(a) the
certificate
“was
only issued between two parties being the respondent and the
applicant union.”
(b) “none
of the individual employees are even referred to or identified in
such certificate.”
(c) (w)hen
the matter was referred to [the Labour Court], it was also only
referred with the trade union being the only applicant
party, and
none of the individual employees being cited, described or joined
as
parties to the dispute
. There was not even a list of individual applicants accompanying the
applicant’s statement of case, nor were any individual applicants
even referred to or identified in such statement of case.”
He
went on to say at the end of par 39 of the judgement:.
“In
par 1 of the statement of claim the applicant is cited as the
“National Union of Mineworkers, as duly registered trade union,
which acts on its own behalf and on behalf of its members dismissed
by the respondent on 31 December 1998.”
[9]
In
par 41 of his judgement the learned Judge said
:
“ In this instance [none] of the members of the applicant were
cited, identified or joined as parties to the proceedings, both
before the CCMA and before [the Labour Court]. Therefore, although
the trade union may represent its members and be a party to any
such
proceedings in terms of section 200 of the Act, it may only do so if
its members are a party to the proceedings. The applicant
union does
not have locus standi to bring these proceedings, as none of its
members have been a party to the proceedings.”
[10] The
Court a quo was of the view that, if a trade union instituted such
proceedings without the employees also being cited, the
proceedings
would be defective. In par 41 of its judgment the Court a quo
regarded this as meaning that a trade union had no locus
standi. I do
not think that, on a proper analysis of the matter, this is a
question of locus standi. It is a question of non-joinder.
If it was
a question of locus standi, the contention would not entail that the
union can also be an applicant when employees are
also applicants in
such proceedings.
The
appeal
[11] For
some time during argument on appeal there was uncertainty about what
the point in limine was that Mr Snyman, who appeared
for the
respondent, had argued in the Court a quo which was upheld and what
the point was that he meant to argue on appeal in defence
of the
judgement of the Court a quo. In answer to a question from the Bench,
Mr Snyman stated that his contention was that the appellant
had no
right to refer a dismissal dispute - which this one is - to the CCMA
or the Labour Court on its own without citing or joining
the
dismissed employees as co- applicants in the referral or in the
proceedings. This makes this contention a complaint of non-joinder.
He also submitted that this meant that there had never been a
referral in respect of the dismissed employees.
[12] Apart
from
relying
on sec 200(2) of the Act in support of its finding, the Court a quo
also relied on Rule 6(1)(b) of the Rules of the Labour
Court and the
Librapark decision referred to earlier. Let me quickly dispose of the
reliance on Rule 6(1)(b). Rule 6(1)(b) deals
with what should be
contained in a statement of claim. This includes the names, addresses
and descriptions of parties. It has nothing
to do with the question
of who has a right to institute proceedings in the Labour Court. In
this case the union as appellant gave
its name, described itself as a
registered trade union and gave its address. It did not give the
names and other particulars of the
employees but its failure to do so
cannot deprive it of a right it otherwise has, if it has such a
right, to initiate
or
institute court proceedings in regard to a matter. I shall deal with
the Librapac decision later herein.
[13] The
respondent has conceded in its heads of argument that the referral of
the dismissal dispute to the CCMA for conciliation
was valid. That
has not always been the respondent’s attitude. Its attitude in the
Court a quo was that the referral of the dispute
to the CCMA was
defective, invalid, and null and void and, because of that, the Court
a quo lacked jurisdiction to adjudicate the
dispute. In fact the
second objection in limine was precisely about the validity of the
referral of the dispute to the CCMA for
conciliation.
[14] As
I have already indicated above, the Court a quo relied on sec 200(2)
of the Act to support its finding that a trade union
cannot refer,
or, institute proceedings in, a dismissal dispute unless its
dismissed members are also party to such proceedings or
to such
referral. The respondent also relies on those provisions to defend
the decision of the Court a quo. Neither the Court a quo
nor the
respondent appears to have given proper attention to the question
whether the provisions of sec 200(1) are not an answer
to the
respondent’s objection. It is necessary to quote sec 200 in full.
It reads thus:
“
Representation
of employees or employers-
(1) A
registered trade union or registered employers’ organisation may
act in any one or more of the following capacities in any
dispute to
which any of its members is a party:
(a) in
its own interests;
(b) on
behalf of any of its members;
(c) in
the interest of any of its members.
(2) A
registered trade union or a registered employers’ organisation is
entitled to be a party to any proceedings in terms of this
Act if one
or more of its members is a party to those proceedings.”
[15] Although
the Court a quo referred to both subsections (1) and (2) of sec 200
in its judgement, its focus was on ss (2) and it
failed to analyse
the two subsections in order to understand their relationship to each
other and the different situations to which
each one applies. In par
33 of its judgement the Court a quo said:
“
In
terms of section 200(1) of the Act, a registered trade union may act
in any dispute to which any of its members are a party, in
its own
interests, [or] on behalf of its members.”
Thus
far, that was right. However, it said in the following sentence:-
“However,
in terms of section 200(2), a registered trade union is
only
entitled to be a party to any proceedings in terms of this Act if one
or more of its members are a party to those proceedings.”
The Court a quo introduced the word “
only
”
just before the word “
entitled
”in
sec 200(2) when sec 200(2) does not have that word. Furthermore it
introduced that word in a manner that suggested that sec
200(2) is
prohibitory when in fact it is permissive. In par 35 of its judgement
the Court a quo said:
“Section
200(2) does not assist the applicant in the predicament that it finds
itself in. The subsection permits the applicant union
to be a party
to the proceedings if one or [more of] its members are a party to
those proceedings. It is patently clear from paragraph
1 of the
statement of claim, that the only parties to the proceedings are the
applicant trade union and the respondent. None of its
members have
either been cited or joined as parties to these proceedings.”
[16] It
is not clear why the Court a quo only focussed on sec 200(2) in
considering the appellant’s answer to the respondent’s
contention
because there is no indication in its judgement that the appellant
had relied only on subsection (2) and not on subsection
(1) as well.
On the contrary, the Court a quo, itself, had stated earlier on in
par 32 of its judgement that Mr Khumalo, who had
appeared on behalf
of the appellant in that Court, had relied on sec 200 of the Act. He
had not confined his reliance on subsection
(2).
[17] The
provisions of sec 200(2) could not be relied upon as an answer to the
respondent’s objection because they relate to a case
where the
union’s members are party to the proceedings and it is sought to
join the union in the proceedings. In this case the
union’s members
were not party to the referral of the dispute to the CCMA. Could sec
200(1) be relied upon as an answer to the
respondent’s objection? I
think so, provided that the union’s members were party to the
dispute. They had to be party to the
dispute because that is the
condition that ss(1) prescribes should exist in order for a trade
union to be able to act in one or more
of the capacities therein set
out. Accordingly it becomes necessary to establish whether the
appellant’s members were party to
the dispute. This raises the
question of how one determines when it can be said that union members
are party to a dispute especially
when the capacity in which their
union is acting in initiating the statutory dispute resolution
machinery in regard to such dispute
has not been articulated.
However, as will be seen below, this is not a new question in the
history of our labour law. Our courts
have had occasions to deal with
this question within the context of previous Acts dealing with labour
relations. I deal below with
some of the cases in which the question
was considered.
[18] In
Town
Council of Benoni v Minister of Labour 1930(1) TPD 324
the dispute was about salaries and conditions of employment of
certain employees of the Town Council of Benoni. It is not apparent
from that decision whether it was the Association of Municipal
Employees which applied for the appointment of a conciliation board.
It is stated in the decision that there was no information in the
papers before the Court indicating whether the Association of
Municipal
Employees was a trade union or not. What does appear,
however, is that the Association of Municipal Employees had written
to the
Divisional Inspector of the Department of Labour suggesting a
conference to consider the salaries and conditions of various
employees
of the Town Council of Benoni. A conference was held and an
agreement was reached on many of the issues. However, no agreement
was
reached on the salary and conditions of employment of certain
employees.
[19] The
dispute was about the salary and conditions of employment of those
employees then referred to arbitration to be conducted
by an
arbitrator appointed by the Minster of Labour. It was argued in
subsequent court proceedings that the dispute was between the
Association of Municipal Employees and the Town Council of Benoni and
not between the employees of the Council and the Council. Tindall
J,
who heard the matter, rejected this argument. He said at 327:
“
In the first place I do not think it correct to say that the dispute
is between the association and the local authority. The employees
are
represented by the Association but the
“parties
concerned”,
to use the language found in sec 4(2), are the employees themselves
and the local authority.”
[20] In
O.K
Bazaars (1929) Ltd v Madeley N.O and Another
1943 TPD 392
a trade union called the National Union of Distributive Workers had
concluded a closed shop agreement with O.K Bazaars (1929) Ltd
and
certain companies associated with O.K Bazaars. Subsequently a dispute
arose whether the company continued to be bound by the
closed shop
agreement.
In
correspondence between the union and the company the union referred
to the dispute as being between itself and the company. The
union
also stated in its correspondence that it would avail itself of sec
64(1) of the Industrial Conciliation Act, 1937 and apply
for the
appointment of a conciliation board to try and resolve the dispute.
Sec 64(1) of the Act applied to disputes between a trade
union and a
local authority employer. It did not apply to cases where the dispute
was between employees and their local authority
employer. The
conciliation board application form - whether the application was
made under sec 35 or 64 - required to be “
suitably
modified”
according
to the circumstances when individual employers or employees are the
applicants.
[21] The
trade union applied for the establishment of a conciliation board.
The application form was not “
suitably
modified
”.
The completed application form reflected the union as the applicant.
It was stated in the form that five persons, who were described
as
“employees
of the respondent company, being members of the N.U.D.W and also of
the shop committee in the Eloff Street store of the
said company”,
were
joined with the union. There was said to be a dispute in the
commercial distributive trade between those applicants and O.K
Bazaars
(1929) Ltd and associated companies. Paragraph 6 of the
application form called for certain information and was required to
be completed
“only
when applicant is a trade union.”
In that case paragraph 6 of the form was completed by showing that
the number of employees who were members of the union was over
10 000
and that the number of the classes of employees catered for
“by
the union and involved in the dispute was about 3000 all of whom were
members of the union.”
[22] In
its concise statement of the dispute the union referred to the
dispute as being one between itself and O.K Bazaar (1929) and
associated companies. The Minister appointed the conciliation board
under sec 64. He gave the board terms of reference to the effect
that
the dispute was between the union and O.K Bazaar and associated
companies. He did not make any reference to the employees who
were
said to have been joined as applicants as well.
[23] In
dealing with a subsequent application by O.K. Bazaars (1929) Ltd to
set aside the appointment of the conciliation board, Millin
J found
that there was nothing in the documents from which it could be
inferred that the union had made the application for a conciliation
board otherwise than as principal. He also said that the joinder of
the employees in the application for a conciliation board was
wholly
inconsistent with the idea that the union represented, for the
purposes of the application to the Minister, all the company’s
employees who were its members. Millin J held that, on the evidence
before him, he had no hesitation in holding that the union had
applied as a principal and, therefore, not as an agent to the
Minister for the appointment of a conciliation board. He noted, too,
that the union had referred to the dispute in correspondence as being
between itself and the employer. He held that the union’s
resort
to sec 64(1) as opposed to sec 35 when applying for a conciliation
board had been deliberate. He concluded that the dispute
was one
between the trade union and the employer.
[24] Another
case is that of
Durban
City Council v Minister of Labour and Another 1948(1) SA 220 (N)
.
In that case a dispute arose regarding a library that the City
Council of Durban had built on the recommendation of a conciliation
board appointed by the Minister of Labour. The library was to be used
by the residents of the Magazine Barracks situated in Magazine
Road,
Durban. The residents of the Barracks were mostly, if not
exclusively, Indian and most were employees’ of the Durban City
Council and members of the Durban Indian Municipal Employees’
Society, which was a trade union. There was also a dispute about
relating to a Provident Fund. The City Council wanted the trade union
to assume responsibility for conducting the affairs of the
library
and was willing to help financially to a limited extent and in other
ways. The trade union wanted the Council to conduct
the affairs of
the library and to employ a librarian and was willing to do this
itself if the Council was prepared to give it a certain
grant per
year.
[25] The
trade union made an application for the appointment of a conciliation
board in terms of sec 35 of the Industrial Conciliation
Act, 1937 to
determine the dispute relating to the library and the Provident
Fund. The Minister appointed a conciliation board.
Later he appointed
an arbitrator to arbitrate the two disputes. The Durban City Council
subsequently brought an application to the
Natal Provincial Division
of the then Supreme Court to set aside the appointment of the
arbitrator. In regard to the dispute relating
to the Provident Fund,
the Court, through Hathorn JP (with BroomeJ concurring) held that the
compulsory arbitration provisions of
sec 64(1) were only applicable
to disputes between an employer who was a local authority and its
employees engaged in any of its
essential services and not to a
dispute between a trade union and a local authority employer. The
Court held that, on a reading of
the correspondence between the union
and the Durban City Council as well as the conciliation board
application itself, the dispute
was between the trade union and the
City Council and was not between the City Council and its employees.
[26] In
Amalgamated
Engineering Union v Minister of Labour
1948 (4) SA 876(N)
a
dispute had arisen in the Transport Department of the Durban City
Council whether the employees in that department should have a
five
day working week or not. The Amalgamated Engineering
Union
made an application to the Minister of Labour for the appointment of
a conciliation board for the consideration of what it called
“a
dispute existing in the Transport Department of the Durban City
Council”
.
The Amalgamated Engineering Union alleged in the application for the
establishment of a conciliation board that
“the
number of employees of the class catered for by the union involved in
the dispute is 270 of whom 225 are members”.
The union did not cite its members as co-applicants in the
conciliation board application. The union’s application for the
appointment
of a conciliation board was in the form contemplated by
sec 35 of Act 36 of 1937 which preceded Act 28 of 1956. In the
conciliation
board application the union referred to the dispute as
“a
dispute which exists in the Transport Department------- between the
applicant [which was the union] and the Durban City Council
in
respect of its failure to grant the engineering artisans, members of
the A.E.U (the applicant) employed in the Transport Department
a
5-day working week.”
[27] The
Minister of Labour approved the appointment of a conciliation board.
In due course the conciliation board reported that it
had failed to
settle the dispute and agreed that the dispute be referred to a
single arbitrator for a decision. The Minister appointed
an
arbitrator to arbitrate the dispute but subsequently withdrew that
appointment on the basis that the compulsory arbitration provisions
of the relevant Act under which he had purported to appoint the
arbitrator were only applicable if the dispute was between a local
authority and its employees and not if it was between a local
authority and a trade union. In this regard the Minister took the
view
that the dispute in respect of which the union had applied for
the appointment of a conciliation board was between a local
authority,
(the Durban City Council), and, the Amalgamated
Engineering Union, a trade union. This view was based on the
judgement of the Natal
Provincial Division in
Durban City Council v Minister of Labour and Another 1948(1) SA
220(N),
already
referred to above.
[28] The
union then brought an application to the Natal Provincial Division of
the then Supreme Court for an order declaring that
the appointment of
the arbitrator to arbitrate the dispute had been valid or
alternatively directing the Minister to appoint an arbitrator
to
arbitrate the dispute. That application came before Broome and De
Wet JJ. They held that they were bound by the decision of that
Division that had been given earlier by Hathorn JP (with Broome J
concurring). The Court was urged to find that the matter was
distinguishable
from the one decided by Hathorn JP and Broome J
earlier. The basis for the distinction contended for was that the
dispute was in
substance between the Durban City Council, on the one
hand, and, on the other, the individual members of the applicant
union who
were employees of the Council engaged upon essential
services. The suggestion was that the union had been acting
throughout as the
agent of the employees who were its members and not
as principal.
[29] Broome
J stated that he did not regard the fact that it was the union that
had applied for the establishment of a conciliation
board and that
had instituted the court proceedings as establishing conclusively
that the dispute in question was one between the
union and the Durban
City Council and not one between the employees and the Durban City
Council. He expressed an inclination towards
the view that the
dispute was one between the union and the Durban City Council but
held that there were not enough facts before
him to make a definite
conclusion. The union’s application was dismissed.
[30] An
appeal was then noted to the Appellate Division. The decision of the
Appellate Division is reported as
Amalgamated
Engineering Union v Minister of Labour 1949(4)SA908(A).
At 910 Centlivers JA, inter alia, observed :
“
Neither
in the case of [Durban City Council v Minister of Labour and Another
1948(1)SA 220(N)] nor in the present case did the Trade
Union seek
to obtain any benefit for itself: it sought to obtain a benefit for
employees who were its members. A dispute may arise
between a trade
union and employers: for instance, there may be a dispute in regard
to the question whether employers should observe
the “closed shop”
principle and whether they should deduct from the wages of their
employees subscriptions due to the trade union
and pay those
subscriptions to the union direct. Such a dispute would, in my view,
be properly regarded as a dispute between a trade
union and
employers, for it affects the interests of the union directly. This
is the position even although the dispute is at the
same time one
between employees and employers, for the application or the
non-application of the “closed shop” principle would
also affect
the contract of employment entered into by employer and employee. But
where the dispute is in regard to the wages, hours
and other
conditions of employment it is in essence a dispute between employers
and employees. The mere fact that the trade union
of which the
employees concerned are members is a separate legal entity and sets
the statutory machinery in motion to settle the
dispute cannot mean
that the dispute is not one between employers and employees.”
[31] Then
from the last paragraph of 911 to about the end of the first half of
912 the learned Judge of Appeal continued thus:
“
I
have already expressed the view that the fact that there existed a
dispute in the Transport Department shows that there was a dispute
between the employer and employees: to describe that dispute, as the
application for the appointment of a Conciliation Board did,
as being
a dispute in the Transport Department between the trade union of
which the employees are members and the employer does not
mean that
the dispute is not a dispute between employer and employees. In a
matter such as this regard should be had to substance
rather than
form. A reasonable construction to be placed upon the application
read in the light of sec. 35 which I shall deal with
presently is
that there existed a dispute between the employer and employees and
that the trade union of which the employees are
members makes the
application on behalf of such of its members as are employed by the
employer between whom and them there is a dispute
as to the hours of
employment.”
[32] The
Appellate Division concluded that in substance the dispute was
between the employees concerned who were members of the union
and the
Durban City Council and not between the union and the Durban City
Council. It held that the union was acting as the spokesman
of the
employees who were its members. The result of this conclusion was
that the compulsory arbitration provisions of the relevant
Act were
applicable and the appeal succeeded and the Minister was ordered to
appoint an arbitrator to arbitrate the dispute.
[33] In
Marievale
Consolidated Mines v President, Industrial Court 1986(2) SA 485 (W)
one
of the contentions that was raised was that a trade union had no
locus standi to bring an application under sec 43 of the Labour
Relations Act, 1956 (Act No 28 of 1956)(
“the
old Act”
)
if the relief sought was that of the reinstatement of its members.
The Court, through GoldstoneJ, rejected this argument. At 493J-494A
Goldstone J rejected the submission and, inter alia, said that
“if
indeed the applicant’s employees or some of them were “bussed out
of
the Republic or even to their homes in the Republic, to demand of
each one that he personally apply to the industrial court for
such
relief would be tantamount to a denial thereof.”
[34] In
General
Industries Workers Union of SA & others v LC van Aardt (TVL)
(Pty)Ltd (1991) 12 ILJ 122 (LAC)
a dismissal dispute was the subject of an application that was
brought by the General Industries Workers Union in its own name and
on behalf of the dismissed employees whose names were listed in an
annexure to the statement of case. One of the issues on appeal
related to an application to join the dismissed employees in the
application in terms of sec 46(9) of the old Act. At 123 Goldstein
J
expressed the view that it was appropriate for the union itself to
litigate for the benefit of its members - the individual workers
-
subject to the relief being qualified in the manner suggested in
Consolidated
Mines Ltd v President of the Industrial Court & others
1986 (2)
SA 485
(W) at 493 H-I.
The qualification proposed in that case was that the reinstatement
order could apply only to those employees who tendered their services
within a certain period of time after the granting of the order. He
held that there had been no real need for the application for
the
joinder of the union members in the proceedings. The respondent’s
contention in this matter is clearly in conflict with that
decision.
Although that decision was under the old Act, this makes no
difference because the new Act has not placed unions and employers’
organisations in a worse position than they were under the old Act.
In fact it has sought to improve their position.
[35] The
views expressed by Goldstone J in the Marievale case and by Goldstein
J in the General Industries Workers Union of SA case
referred to
above are in line with what Centlivres JA, writing for a unanimous
Appellate Division, said at 912 in the Amalgamated
Engineering Union
case. There the learned Judge of Appeal said:.
“
The
whole idea underlying the trade union system, which system is
recognised by the Industrial Conciliation Act, is that the trade
union concerned should act as the spokesman of its members whenever a
dispute arises between employers and employees. The Act encourages
collective bargaining: hence the provisions for the registration not
only of trade unions but also of employers’ organisations.
To
insist that whenever a dispute arises between employers and
employees, an individual employer or employee should set the
statutory
machinery in motion for the purpose of settling the
dispute, would tend to defeat the object which the legislature had in
mind, viz.
to facilitate the settlement of disputes, for it is
obvious that what the legislature had in mind was that employees
should use the
services of the trade union of which they are members
and that employers should use the services of the employers’
organisations
to which they belong.”
[36] In
this matter the appellant did not seek any benefit for itself out of
the conciliation and adjudication of the dispute. Any
relief obtained
through the dispute resolution mechanism of the Act would go to the
dismissed employees and not to the appellant.
There was also no
suggestion that the union had not complied in any way with the
requirements of the referral form that it filled
in to refer the
dispute to the CCMA. At 910 in Amalgamated Engineering Union (above)
the Appellate Division said that
“where
the dispute is in regard to the wages, hours and other conditions of
employment, it is in essence a dispute between employers
and
employees.”
If
that could be said in respect of a dispute about wages, hours and
other conditions of employment, it can also be said that in a
dismissal dispute the dismissed employee or employees will generally
be party to a dispute even if the union is the one processing
the
dispute. This, of course, does not mean that the union cannot also
be a party to such a dispute.
[37] The
conclusion that the dismissed employees were party to the dispute
does not necessarily mean that the appellant was not also
a party to
the dispute. A dismissal dispute can have as parties thereto a trade
union and its members, on the one hand, and, the
employer (who
dismissed the employees) on the other. This is a clear case where
this could happen because from the CCMA referral
form it appears that
the respondent had a collective agreement with the appellant
regulating retrenchments in breach of which, on
the respondent’s
version, the respondent retrenched the appellant’s members.
[38] In
the scenario dealt with in the preceding paragraph the dismissed
employees are party to the dismissal dispute. The union would
not
only be party to the dismissal dispute but would also have a direct
and legal interest in the enforcement of the agreement through
appropriate legal action if it was breached. The dismissal dispute
in such a case would be a dispute in which both the union and
its
dismissed members would be equally interested. In the Amalgamated
Engineering Union case the Appellate Division further said
that
“(t)he
mere fact that the trade union of which the employees concerned are
members is a separate legal entity and sets the statutory
machinery
in motion to settle the dispute cannot mean that the dispute is not
one between the employers and employees.”
[39] In
the light of the above it seems to me that in substance the dispute
in this matter is a dispute between the members of the
union that
were dismissed by the respondent on the 31
st
December 1998 and the respondent. That does not mean that the
appellant was not itself also a party to the dispute but, even if
it
was not a party to the dispute, it could still have been entitled to
initiate and facilitate the dispute resolution mechanism
of the Act
so as to ensure a resolution of the dispute. Once it is accepted that
the dispute was in substance between the appellant’s
dismissed
members and the respondent, sec 200(1) of the Act becomes applicable
because the appellant would, accordingly, be entitled
to act in any
one or more of the three capacities provided for in sec 200(1) in
referring the dispute to the CCMA for conciliation
and in referring
it to the Labour Court for adjudication.
[40] In
fact the respondent’s contention is even weaker in relation to the
appellant’s referral of the dispute to the Labour Court
because in
par 1 of the appellant’s statement of claim, the appellant stated
that it was acting
“on
its own behalf and on behalf of its members dismissed by the
respondent on 31 December 1998.”
The
fact that the appellant did not furnish the names of the dismissed
employees did not affect the jurisdiction either of the CCMA
or the
Labour Court. Of course, the best practice is for the union to give
the names of the employees concerned so that the employer
knows which
employees the proceedings relate to. However, in certain
circumstances it is possible for the employer to know which
employees
are concerned in proceedings or in a referral even though the union
has not furnished the names of the employees.
For
example, where an employer dismissed all its employees on a certain
date, he would know which employees the union was referring
to if it
referred to
“all
employees dismissed”
on that date by the employer. A failure by the union to give the
names of the employees concerned would not affect the jurisdiction
of
the CCMA nor that of the Labour Court but may affect issues such as
relief because, for example, in defending the unfair dismissal
claim
the employer may well wish to put up specific facts relating to
specific individuals which he cannot do if he does not know
who the
dismissed employees are. I conclude in the end that on the basis of
sec 200(1) of the Act a trade union has a right to refer
a dismissal
dispute relating to its members to the CCMA for conciliation and to
the Labour Court for adjudication as the referring
party or as
applicant without citing its dismissed members as co-applicants.
[41] Apart
from sec 200(1) another reason why the respondent’s contention
cannot be sustained lies in the primary function of a
trade union.
The primary function of a trade union is to act as the representative
of its members. Without that capacity it is doubtful
whether a trade
union can survive. The ordinary meaning of the concept of
representing somebody is that you act in that person’s
place and
stead. If that is correct a trade union must be able to act in the
place and stead of its members. Strictly speaking it
cannot act in
the place and stead of its members if its members also occupy the
same place and stead. That must mean that in most
cases it is when
its members are not applicants that a union finds it necessary to act
in their place and stead by being the applicant
in such proceedings
itself. In fact, where union members are cited as applicants, there
is little, if any, need for the union to
be cited as an applicant as
well, especially in dismissal cases because the union does not
usually seek any relief for itself in
such proceedings and there is
also little need, if any, for the union members to be joined as
applicants as well where the union
is already an applicant and is
acting either on behalf of its members or in the interest of its
members. See sec 200(1) of the Act.
That is why in the General
Industries Workers Union Goldstein J dismissed the appeal in regard
to an application to join the employees,
when their union was already
an applicant in the proceedings and was acting for the benefit of its
members.
[42] Earlier
on in this judgement I alluded to the fact that the Court a quo also
relied on the judgement of the Labour Court in
Librapac
CC v Moletsane (1998)19 ILJ 1159(LC)
for its conclusion. The observation to be made in regard to the Court
a quo’s reliance on that case is that the question that the
Court
had to deal with in Librapac was not whether a trade union had a
right to refer a dismissal dispute to the CCMA for conciliation
or to
the Labour Court for adjudication without citing the dismissed
employees as co-applicants. What the Court was called upon to
consider in Librapac was a contention that not all the 23 employees
in whose favour an arbitrator had made had been properly before
the
arbitrator. There it was not even a trade union that had referred the
dispute to arbitration. There the referring party was reflected
as
having been
“Herbert
Mdladlamba & others”.
A
list of 16 names with addresses of each person was given but only one
of the employees had signed the referral form. These facts
show that
whatever remarks the Court in that case made which the Court a quo
regarded as supporting its conclusion were not part
of the ratio of
the judgement and actually did not relate to the question which has
been raised here. Of course the respondent also
did refer to the
absence of names, addresses and other particulars of the dismissed
employees but, quite clearly, the absence of
names and addresses does
not deprive the court of jurisdiction in respect of a dispute if it
otherwise has jurisdiction.
[43] Accordingly
the appeal must succeed.
The
cross - appeal
[44]
In
this case the CCMA received the referral of the dispute for
conciliation on the 16
th
December 1998. The 30 day period within which the CCMA was required
to conciliate the dispute expired on the 15
th
January 1999. The respondent did not attend the conciliation meeting.
On the 18
th
February 1999 the commissioner certified that the dispute remained
unresolved. No agreement had been reached between the parties
to
extend the period of 30 days. Sec 191(5)(b) makes provision for the
circumstances in which a dismissal dispute is required to
be referred
to the Labour Court for adjudication. Sec 191(11)(a) reads:
“
The
referral, in terms of subsection (5)(b), of the dispute to the Labour
Court for adjudication, must be made within 90 days after
the council
or (as the case may be) the commissioner has certified that the
dispute remains unresolved.”
[45] On
behalf of the respondent it was contended that a commissioner is
required to certify that the dispute remains unresolved on
or before
the 30
th
day (or on or before the last day of the extended period where the 30
day period has been extended) and that he is not entitled to
so
certify once the 30 day period or the extended period (where there
has been an extension) has expired. It was submitted that,
where he
so certifies outside the 30 day period or the extended period, the
statutory 90 days within which the dispute must be referred
to the
Labour Court runs from the expiry of the 30 day period and not from
the date when or after the commissioner certifies or has
certified
that the dispute remains unresolved. I am unable to agree with this
contention. Sec 191(11)(a) is clear in its provision
that the
referral of a dismissal dispute to the Labour Court for adjudication
in terms of sec 191(5)(b) must be made within 90 days
after the
council or the commissioner
“has
certified that the dispute remains unresolved.”
In
any event sec 191 which deals with the referral of dismissal disputes
to conciliation, arbitration and adjudication does not anywhere
provide for such disputes to be referred to the Labour Court for
adjudication within 90 days from the expiry of the 30 day period
or
any extended period.
[46] If
the legal position is that, once the 30 day period or the extended
period, if there has been an extension, has expired, the
commissioner
has no power to certify that the dispute remains unresolved, but a
commissioner certifies after the expiry of that period,
then the
position would be that, until the certificate has been set aside by a
court of competent jurisdiction, it stands and must
be treated as
valid and all concerned can act upon it. (
Fidelity
Guards Holdings (Pty) Ltd v Epstein NO & Others (2000) 21 ILJ
2382 (LAC)).
The provisions of sec 191(11)(a) would apply as soon as the
commissioner has certified that the dispute remains unresolved.
[47] Accordingly,
the cross-appeal must fail.
[48] With
regard to costs both Counsel submitted that costs should follow the
result. I propose to make an order of costs on that
basis.
[49] In
the result I make the following order:-
The
appeal is allowed with costs.
The
order made by the Labour Court upholding the respondent’s
objection in limine that the appellant had no right to refer the
dispute to the CCMA or to the Labour Court without citing the
dismissed employees as co-applicants is hereby set aside and
replaced
with the following order:-
“
(a) the
respondent’s objection in limine is dismissed with costs.”
The
cross-appeal is dismissed with costs.
________________
Zondo
JP
I
agree.
_______________
Nicholson
JA
I
agree.
________________
Mogoeng
JA
Appearance:
For
the Appellant: Adv. T. Bruinders
Instructed
by: Maserumule Inc
For
Respondent: Mr S. Snyman
Instructed
by: Snyman Van Der Heever Heyns
Date
of judgement: 6 March 2003