IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: JA 1/03
In the matter between:
TAO YING METAL INDUSTRY(PTY)LTD Appellant
and
MAY POOE N.O 1ST Respondent
Commission for Conciliation, 2ND Respondent
Mediation and Arbitration
HOTELLICA 3RD Respondent
CUSA 4TH Respondent
THE METAL AND ENGINEERING
INDUSTRIES BARGAINING COUNCIL 5TH Respondent
JUDGMENT
Zondo JP
Introduction
[1] The appellant is a registered company and operates a certain
manufacturing business in the metal industry in the Free State
Province. The third and fourth respondents are the Hotel Liquor,
1
Commercial and Allied Workers’ Union of South Africa which, for
short, is known as HOTELLICA. The fourth respondent is the
Commercial Workers Union of South Africa which, for short, is
known as “CUSA”. The third and fourth respondents are both trade
unions which at some or other stage relevant to this matter had as
its members some of the employees that were in the appellant’s
employ. The fifth respondent is the Metal and Engineering
Industries Bargaining Council.
[2] The appellant fell within the jurisdiction of the Metal and
Engineering Industries Bargaining Council (“the bargaining
council”). For some time the bargaining council had granted the
appellant exemption from complying with obligations imposed by
the main agreement of the council on employers falling under its
jurisdiction. The obligations from which the appellant had been
exempted related to benefits that it otherwise would have been
obliged in terms of the main agreement to provide to its employees
or at least to certain categories of its employees. The period of
operation of the main agreement that had been applicable during
1997 or most of that year expired at some stage during 1998. a new
agreement was concluded among the parties in the bargaining
council.
[3] A dispute arose between the appellant, on the one hand, and its
employees represented by the third respondent on the other on
whether the appellant was exempted from complying with
obligations imposed by the new main agreement in respect of the
2
provision of certain benefits to certain of its employees. The third
respondent contended that the appellant was obliged to comply
with the new main agreement whereas the appellant maintained
that it was not. The appellant’s basis for its contention that it was
not was that the exemption that it had been granted under the
previous main agreement still applied to, and, was operational
under, the new main agreement. It would seem that this stance had
as its foundation the fact that the exemption document had, among
other things, the following words written on it, namely, “as
amended and/or extended and/or replaced from time to time by
any succeeding agreement and / or any amendments and/ or
extensions thereof .” The third respondent took the view that the
exemption which the appellant had had during the operation of the
main agreement which applied during most of 1997 had lapsed
when that agreement lapsed and had no application during the life
of the new main agreement.
[4] In November 1998 the third respondent referred the dispute to the
Commission for Conciliation, Mediation and Arbitration (“the
CCMA”), which is the second respondent in this matter, for
initially conciliation and, later, arbitration. The dispute was
classified as a dispute about the application of a collective
agreement. The bargaining council was also cited as a party to the
referral of the dispute to the CCMA. The appellant raised certain
objections to the jurisdiction of the CCMA. On each occasion the
CCMA commissioner who is the first respondent in the matter
dismissed the appellant’s objections.
3
[5] The CCMA commissioner then proceeded to arbitrate the dispute
on the merits and issued an award. The award on the merits
effectively ordered the appellant to comply with the new main
agreement of the bargaining council but added the following:
“unless exemptions were granted to the [appellant] under the
New Collective Agreement concluded in terms of the Labour
Relations Act, 1995 ”. He made no order as to costs. The first
respondent’s ruling on the first objection by the appellant to the
jurisdiction of the CCMA was issued on the 23 rd July 1999. The
award on the merits of the dispute was issued on the 23 rd July
1999 but was only received by the appellant on the 30 th March
2000.
[6] On or about the 11th October 2000 the appellant launched an
application in the Labour Court for an order reviewing and setting
aside both the first respondent’s ruling on the first objection to the
CCMA’s jurisdiction as well as the first respondent’s award on the
merits. The review application was opposed – not by the third
respondent but by the fourth respondent. For present purposes it
is not necessary to go into the reasons for this.
[7] The appellant sought condonation for the late launch of the review
application. In so far as the review application related to the setting
aside of the award on the merits, the appellant was required by sec
145 of the Labour Relations Act, 1995 (Act 66 of 1995)(“the Act”)
4
to have launched the review application within six (6) weeks from
the date when the award was served on it. In so far as the review
application related to the setting aside of the ruling on the
jurisdictional objection, it was required to be launched within a
reasonable time from the date of the delivery of the ruling. As the
appellant received the award on the 30th March 2000, the period of
six weeks expired about mid May 2000. In due course the review
application was set down for hearing and was heard by Francis J in
the Labour Court. Francis J dismissed the appellant’s application
for condonation with costs without considering the merits of the
review application. He later dismissed the appellant’s application
for leave to appeal. Thereafter the appellant petitioned the Judge
President for leave to appeal. This Court then granted the petition
and gave the appellant leave to appeal to this Court against the
judgment of the Labour Court.
The appeal
[8] Before us Counsel for the appellant indicated that the appellant was
abandoning the application to review and set aside the first
respondent’s first ruling on the jurisdiction of the CCMA to
arbitrate the dispute. He indicated that the appellant was pursuing
the application to review and set aside the first respondent’s award
on the merits. In order to properly assess the merits of the
appellant’s appeal against the Court a quo’s decision on the
condonation application, it is necessary to set out the sequence of
the steps that the appellant took between the time when the
5
appellant received the award on the merits – which was on the 30 th
March 2000 – and the date when the review application was
launched which was on the 11 th October 2000. These are set out
below:
The sequence of events preceding the launch of the review
application.
[9] 30 March 2000:
On the 30 th March 2000 the appellant received the award. The
appellant states that the third respondent “withdrew from the
dispute” but it does not give any date when this occurred nor does
it give details to support this; it does not say that it was told this by
an official of the third respondent nor does it give any source for
this information; the appellant says that, because of this and the
fact that it had a bona fide belief that its exemptions were valid, it
thought that it was unnecessary to bring a review application to set
the award aside.
[10] 6 April 2000:
On this date the appellant’s Mr Henderson addressed a letter to a
Mr Bill Coetzee who appears to have been the secretary of the
bargaining council. In that letter the appellant informed the council
of receipt of the award from the CCMA and the terms of the award.
The appellant’s Mr Henderson then said: “ Based on the above we
would like to obtain clarification as to whether our exemptions
which were granted on 7 April 1997 were still valid and
6
enforceable during the period 1 April 1998 to date.”
[11] 11 April 2000:
On this date the manager of the bargaining council, Mr Coetzee,
addressed a letter to the appellant for the attention of Mr
Henderson in reply to the latter’s letter of the 6 th April 2000. In
that letter Mr Coetzee informed the appellant that he had
undertaken further research and could not find any withdrawal of
the appellant’s exemptions by either the bargaining council or the
Minister of Labour. Mr Coetzee went on to say that, although a
new agreement had been published on the 31 st March 1998, there
was no indication therein that the appellant’s exemptions had been
withdrawn or declared null and void by either the bargaining
council, the Minister or by the Independent Exemption and
Arbitration Board. He concluded the letter thus: “I can therefore
see no reason why your current exemptions which do not
reflect a specific date of withdrawal should not be considered
valid.”
[12] It appears from Mr Coetzee’s letter that the appellant was being
advised to in effect run its affairs on the basis that the exemptions
were still valid. The significance hereof is that, if the exemptions
were still valid, then they would constitute a valid defence to any
attempt to enforce the award because the award was framed in
terms that ensured that it could not be enforced if there were valid
exemptions. What was then happening is that a statutory body
7
whose function it was to enforce the agreement that that the union
sought to enforce was officially advising the appellant that its
exemptions were valid. This was another way of saying that that
body would not enforce the agreement against the appellant
because it viewed its exemptions as valid.
[13] 12 April 2000:
On this date the appellant’s Mr Henderson responded to Mr
Coetzee’s letter of the 11 th April 2000. In part Mr Henderson had
this to say in his letter to Mr Coetzee:
“I appreciate the correspondence and your explanations therein,
but I am afraid that if I am confronted by the members of
Hotellica, claiming back pay, that they will not be able to
understand your correspondence. It would therefore be
appreciated if you could issue us with a License of Exemption
for the period in question. If this is not possible, please suggest
something more literate which can now finally close this
matter.”
Mr Coetzee responded to Mr Henderson’s letter of the same date
and agreed to issue a licence of exemption which he said should be
read with the appellant’s other licences of exemptions. Mr Coetzee
issued a licence of exemption in favour of the appellant. The
licence of exemption exempted the appellant from “ the provisions
of Part (11) of WAGES/or EARNINGS of the new agreement
published under Government Notice R1329 dated 27 June 1990
R404 dated 31 March 1998 as amended, extended or replaced
from time to time”. The licence of exemption also had a
paragraph that read thus: “ Maintain the then existing status quo
8
and the national percentage increase negotiated annually be
enforced on the company with the inception of the 1998/1999
main agreement. The aforementioned exemptions is (sic) to be
read in conjunction with this exemption.”
Just before Mr Coetzee’s signature and the date thereof which was
given as the 12th April 2000, the following appeared:
“Period from: 19 March 1997 To: expiry of agreement
(30 June 2001)
_________ _______________________
Date REGIONAL MANAGER
Please Note: This exemption may be varied or withdrawn at
any time at the discretion of the Metal and Engineering
Industries Bargaining Council.”
The fact that the bargaining council had issued these new licences
of exemption meant that the appellant would have felt more
protected against the enforcement of the arbitration award than
they might have felt before.
[14] 21 June 2000
It appears from a letter dated 5 July 2000 from Mr Coetzee to Mr
Holiday, an industrial relations consultant representing the
9
appellant, that a committee had been appointed by the bargaining
council to inquire into the validity of the appellant’s exemptions.
This was done after some trade union had made an inquiry in this
regard. It appears from Mr Coetzee’s aforesaid letter of 5 July 2000
that on this day that comittee held a meeting and concluded that the
appellant’s exemptions remained in force “ until the expiry of the
Agreement or until such time as it is withdrawn by the
Minister or the Council.”
[15] 28 June 2000
It would appear from a letter dated 5 July 2000 addressed by Mr
Coetzee to Mr M.L Holliday that the latter had written a letter to
Mr Coetzee on this day with regard to the exemptions. However,
there is no copy of that letter in the record.
[16] 29 June 2000
The notice of motion of the fourth respondent’s application to
make the award an order of court bears this date as the date when it
was signed but what is strange is that the date on which the
founding affidavit for that application appears to have been attested
to is the 10 th July 2000. No explanation is proffered as to why it
took about 11 to 12 days after the signing of the notice of motion to
get the founding was attested to.
[17] 10 July 2000
It appears that it was on this day that the founding affidavit in
support of the fourth respondent’s application to make the award
10
an order of court was attested to.
[18] 25 July 2000
It would seem that on this day the fourth respondent’s attorney
transmitted by fax to Mr Holiday a Notice of Motion intended for
an application to the Labour Court in terms of sec 158 of the Act to
make the award an order of court. This transpires from Mr
Holiday’s letter of the 26th July 2000 addressed to Messrs Lovius –
Block Attorneys representing the fourth respondent. No
explanation is proffered as to why it took the fourth respondent’s
attorneys 15 days after the founding affidavit had been signed to
serve the sec 158 application.
[19] 26 July 2000
On this day Mr Holiday addressed a letter to Lovius – Block
Attorneys. From that letter it seems that Mr Holiday and the fourth
respondent’s attorney had had a telephone conversation concerning
the fourth respondent’s application to the Labour Court to make the
award an order of Court. In summary Mr Holiday informed Lovius
– Block Attorneys in the letter that:
a) the fourth respondent’s application to the Labour
Court to make the award an order of court was
frivolous and vexatious and warned them that, if they
proceeded with it, the appellant would seek a cost
order against the attorneys de boniis propriis as well
as against Mr Makara personally. (Mr Makara had
been employed by the third respondent and had dealt
11
with the dispute while there but, it seems that, he had
in the meantime resigned from the third respondent
and had become employed by the fourth respondent
and sought to continue with this dispute even when he
was employed by the latter union);
b) the fourth respondent had no locus standi in the
matter;
c) Mr Makara had no authority from the individual
employees to pursue the matter;
d) the appellant had valid exemptions from compliance
with the agreements; the relevance of Mr Holiday’s
advice to LoviusBlock Attorneys that the appellant
had valid exemptions is that the award they sought to
have made an order of court was to the effect that the
appellant had to comply with the obligations provided
for in the agreement only if the appellant did not have
exemptions; accordingly, if the appellant had valid
exemptions, the award could not be made an order of
court;
e) “(T)o expose us to unnecessary litigation in this
regard and the harassment which our client
receives from Makara through his frivolous and
vexatious continuation of hampering, letter writing
and aggressive attacks on the Company to satisfy
his hidden agenda, will no longer be tolerated.”
f) “We therefore request from yourself, as a legal person, to
properly investigate this matter and to advise Makara and his
12
union accordingly … we request clarification from your
intentions (sic) by no later than 28 July 2000 at close of
business whether you are going to proceed or not, failing of
which (sic), we will accept that you are going to proceed with
this matter and will then continue with the preparation of our
defence.”
[20] 28 July 2000
It would appear from Mr Holiday’s letter of the 2 nd August 2000
that LoviusBlock wrote a letter to Mr Holiday on this day in
response to his letter of the 26 th July 2000. Unfortunately that
letter appears not to be in the record.
[21] 29 July 2000
On this day the fourth respondent launched its application to make
the award an order of the Labour Court. Although on the papers
there are statements suggesting that the application was launched in
June 2000, Counsel for the appellant as well as the fourth
respondent’s attorney who appeared before us were agreed that the
correct date is the 29 th July 2000. Although there does not on the
record appear to be a letter from LoviusBlock Attorneys
responding to Mr Holiday’s letter of the 26th July 2000, their
launching of the sec 158 application constituted an answer that
made the fourth respondent’s intentions clear, namely, that they
were pursuing the dispute despite what Mr Holiday had said in his
letter.
13
[22] 2 August 2000
On this day Mr Holiday addressed a letter to LoviusBlock
Attorneys as a reply to their letter to him of the 28 th July 2000. Mr
Holiday’s letter was a long letter. It appears from the letter that the
parties had decided to enter into discussions aimed at a possible
settlement of the dispute and that, pending the outcome of such
discussions, the sec 158 application was to be held in abeyance.
The first three paragraphs of the letter read thus:
“We refer to your correspondence dated 28 July 2000,
and wish to advise as follows:
1. We accept, unless otherwise indicated by yourself,
that we will not continue with the statement of our
defence until such time that you have taken
instructions from your client. Upon receipt of your
instructions we will then commence with the drafting
of our defence in terms of your application.
2. We also accept that you condone the time periods
until such time that you advise us regarding your
continuation with the matter.
3. In order to avoid unnecessary litigation and costs in
this regard we will accept that the parties to this
matter will not continue with litigation until such time
that a deadlock has been reached, and that the
condonation of the peremptory time periods are
agreed to by the three parties in this matter. We,
however, serve ex abundante cautela a notice of
14
defence in the spirit of this letter.”
Mr Holiday then went on to say in the second paragraph of the
second page of the letter:
“We do not believe to flout (sic) the Labour Court with unnecessary
litigation and wish to advise that this is a mere attempt from the
[appellant] to avoid litigation and costs in resolving this matter”.
In the second page of the letter Mr Holiday also wrote thus:
“In view of the above we reiterate the following:
1. We await your final decision to litigate against our
client, Toa Ying Metals, and that we will, with effect
from your final decision to litigate against Tao Ying
Metals, count the 10 days for our reply and that you
agree to any preventative measures which the
respondent, being Tao Ying Metals, wish to employ to
avoid unnecessary litigation.
2. You will also not if any further litigation occurs,
employ or use time periods as any strategy, intent, or
purpose to raise any points in limine against the
respondent, Tao Ying Metals.
3. In the event of no agreement of settlement being
reached between the three parties, inclusive of the
Bargaining Council, the respondent reserves its right
to defend itself without any prejudice to time periods
and/or submissions submitted in terms of your
application to the Labour Court.”
15
[23] 10 August 2000
The appellant delivered its opposing affidavit in the sec 158
application. The basis for its opposition to the award being made
an order of court was that it had exemptions from obligations
arising from the new agreement. In its condonation affidavit it says
that, after it had delivered its opposing affidavit, it awaited the
fourth respondent’s reply to clarify its intentions in the light of the
appellant’s defence as contained in such affidavit.
[24] 29 September 2000
The appellant received a letter from the fourth respondent’s
attorneys requesting dates for a pretrial conference. It is not clear
why the fourth respondent’s attorneys sought to have a pretrial
conference in respect of a motion matter because the requirement
of a pretrial conference, as the term itself says, applies to trial
matters.
[25] 9 October 2000
On this day Mr Holiday addressed a letter to the fourth
respondent’s attorney advising that he was still awaiting the fourth
respondent’s attorneys’ replying affidavit. In its affidavit the
appellant states that, given the request by the fourth respondent’s
attorney for a pretrial conference, it assumed that the fourth
respondent intended to pursue the sec 158 application.
[26] 11 October 2000
16
On this day the appellant received a letter from the fourth
respondent’s attorneys advising that they had served the replying
affidavit by fax at Mr Holliday’s offices in Welkom already on the
1st September 2000. The appellant states in the affidavit that Mr
Holliday had been moving offices during this period from Welkom
to Pretoria and spent most of the time in Pretoria and his Welkom
office had failed to bring the replying affidavit to his attention. The
appellant states that, as soon as it had established that the fourth
respondent’s intention was to pursue the sec 158 application, it
decided to launch the review application. On this day the appellant
also launched the review application.
[27] It is clear from the above sequence of events and steps taken by
and on behalf of the appellant that, if there is one thing that the
appellant cannot be accused of, it is, as was contended by Counsel
for the appellant, that it sat back and did not do anything to deal
with the matter. After receiving the award, it wasted no time in
approaching the bargaining council for advice whether the
exemptions it had were still valid. When the bargaining council’s
representative advised that they seemed to be still valid because
they had never been withdrawn either by the council or the
Minister, the appellant thought such advice might not be good
enough and sought a fresh exemption. The bargaining council
furnished it with a fresh licence of exemption whereafter the
appellant then sought to secure an agreement from the fourth
respondent that the matter should not be taken further. The
appellant sought to avoid unnecessary litigation and costs. The
17
appellant even threatened the fourth respondent with costs de
ponies propriis if it pursued the application to make the award an
order of court. When discussions failed, the appellant then
delivered the affidavits to oppose the sec 158 application and
launched the review application. On a conspectus of all the
affidavits, annexures thereto and other documents, I am satisfied
that the appellant furnished an acceptable explanation for the delay
in launching the review application. I am satisfied that even
without considering the merits, good cause had been shown for the
delay. Accordingly, the appellant’s delay in launching the review
application is hereby condoned. What now remains is the
consideration of the appeal with regard to the merits. I now turn to
consider that aspect of the matter.
[28] A number of grounds were relied upon in the appellant’s founding
affidavit to have the ruling and the award set aside but only one
was relied upon before us in this Court. That is that the
commissioner “failed to apply her mind to the provisions of the
exemptions previously granted to the [appellant] during March
1997.” In regard to this ground the appellant went on to say in the
founding affidavit:
“It is the [appellant’s] position that the exemptions
previously granted still enure to its benefit since they
were granted in respect of the wage provisions of the
main agreement published on 27 June 1980:
‘as amended and/or replaced from time to time by any
succeeding agreement …”
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[29] In the next paragraph in the founding affidavit the appellant stated:
“Should [the commissioner] have considered [the exemptions]
properly she would not have given the award she did.” It was
then submitted in the next further paragraph that “ the conduct of
the [first respondent] as outlined above amounts to:
(i) a defect as contemplated in subsection (sic) 145(1)
of the Labour Relations Act, No 66 of 1995;
alternatively;
(ii) a permissible ground in law as provided for in section 158 (1)
(g) of the Act to review and set aside the function and/or act
performed by the first respondent.”
[30] The commissioner found that the exemptions which had been
issued to the appellant before 31 March 1998 when the new
agreement was published were no longer valid because they fell
away when the new agreement came into operation on the 14 th
April 1998. In this regard it needs to be pointed out that the
commissioner did not in her award refer to the appellant’s
argument that such exemptions continued to apply during the life
of the new agreement because, they had been issued on the basis
that they would continue to operate if the agreement was
“amended and/or extended and or replaced from time to time
by any succeeding agreement and/or any amendments and/or
extensions thereof …”. The quoted portion is taken from about the
middle of the page containing the terms of each one of the licences
of exemption issued by the bargaining council on the 7 th April
19
1997.
[31] The appellant contended in the founding affidavit that, had the
commissioner applied her mind to the appellant’s contention
referred to above, she would not have reached the conclusion that
she reached in her award on the merits of the dispute. Is this
correct? I am not sure. A consideration of this contention requires
that the question that the commissioner had to deal with be
considered.
[32] The question that the commissioner had to consider was whether
the appellant was obliged to comply with the relevant obligations
imposed upon employers by the relevant collective agreement(s).
In considering that question he was required to decide whether or
not the licences of exemption to say that it was not obliged to
comply with the obligations imposed upon employers by the
relevant collective agreement(s).
[33] The difficulty with the exemptions that were issued in April 1997
is that, with regard to the question of how long they would operate,
they contain what appears to be two conflicting provisions. The
one is in the middle of the document containing the terms of the
licence of exemption. This one says that the exemption is granted
from the provisions therein specified of the main agreement “ as
amended and/or extended and/or replaced from time to time by
any succeeding agreement and/or any amendments and/or
extensions thereof …”. These terms of the exemption suggest that
20
the intention was to make sure that the employer so exempted
would not need to make further applications for exemption from
certain provisions of the main agreement each time there was an
amendment, extension or a replacement of such agreement with
another agreement. It seems that it was an exemption for an
indefinite period. It purported to be a permanent exemption.
[34] The other provision dealing with the question of how long the
exemptions would be operational is to be found at the bottom of
the document containing the terms of the exemption. This one
seems to have been specifically designed to be the area in the
document in which the duration of the exemption would be dealt
with. It is reflected thus:
“Period from: to:
Tydperk van: tot: ”
After the relevant information had been was filled in, the provision
read thus:
“Period from: 19 March 1997 to : duration of agreement
Tydperk van: ”
What is clear is that the portion appearing in the middle of the
document containing the exemption purports to give exemption for ever
so that there would be no need for further applications for extensions of
the exemption or for further exemptions whereas the part appearing at the
bottom of the document specifically limits the duration of the exemption
to the life of the agreement which would mean that, if the agreement
expired and another one was concluded, the exemption would not be
operational beyond the expiry of the agreement in respect of which it was
issued. What then is the answer to the question whether or not the
exemptions issued in April 1997 were operational beyond the duration of
the agreement that was operational when they were issued?
21
[35] It seems to me that there is room for the proposition that the terms
contained in the middle of the documents containing the
exemptions were not really intended to deal with the period of
operation of the exemptions. However, I do not think that it is
necessary to go into details thereanent because, even if they did,
they are general provisions of the document and must yield to the
provisions appearing at the bottom of the documents because those
are specific to the issue of the duration of the exemptions. They
deal specifically with the question of when the exemptions would
apply. A specific answer is given as to the duration of the
exemption and it is that the exemptions concerned applied only for
the duration of the agreement. The intention is made very clear.
[36] Furthermore, in determining which of the two provisions of the
licence of exemption should prevail as to the period of the
exemption, regard must also be had to the powers that the
bargaining council had in regard to the determination of the period
of exemption. The position was governed by the law as it was
immediately before the commencement of the Act. That is
immediately before the 11th November 1996.
[37] Section 51 of the Labour Relations Act, 1956 (Act NO 28 of 1956)
(“the old Act” ) dealt with exemptions. Sec 51(1) of the old Act
dealt with applications for exemption from provisions of an
agreement entered into by parties to a conciliation board which was
binding in terms of the old Act. It gave the power to grant
exemptions in such cases to the Minister of Labour in certain
22
circumstances which were spelt out therein. Sec 51(3) dealt with
applications for exemption from provisions of a bargaining council
agreement. In the light of the importance of the provisions of sec
51(3) of the old Act, I propose to quote the provisions in full. They
read thus:
“Application for exemption from all or any of the
provisions of an agreement entered into by parties to an
industrial council which is binding in terms of this Act
may be made to the industrial council concerned, or to
any committee to which the powers of the council under
the section have been delegated in terms of section 25;
and the powers conferred on the Minister by subsection
(1) may mutatis mutandis be exercised by such council or
committee.”
[38] The provisions of ss(3) contemplate an “ exemption from all or
any of the provisions of an agreement … which is binding in
terms of this Act…”. What does this mean? In my judgement it
means that the agreement from which an exemption can be applied
for or granted is only the agreement which is in existence at the
time of the making of the application for exemption or the
agreement which is in existence when the exemption is granted.
There is no provision in sec 51(3) for an application to be made for
exemption from future agreements that may or may never come
into existence or whose terms and conditions were not known at
the time of the making of the application for exemption or at the
23
time of the granting of the exemption. Accordingly, to the extent
that the contents of the licences of exemptions purports to grant
exemption from provisions of any collective agreement other than
the one that was in existence at the time of the granting of the
exemption, it was ultra vires as the bargaining council had no
power to grant exemption for any period beyond the life of such
agreement. Accordingly, the provision of the licence of exemption
appearing in the middle of the exemptions issued on the 7 th April
which purports to extend the life of the exemptions beyond the
collective agreements operational at the time of the granting
thereof cannot be given a construction the effect of which is that
the bargaining council acted ultra vires. As far as possible it must
be construed in keeping with the powers of the bargaining council.
To interprete that provision so as to mean that the provision in the
middle of the exemption means something that the bargaining
council had no power to do must be avoided as far as possible.
[39] If one adopts the above approach, the result is that the exemptions
in question lasted only for as long as the collective agreement
lasted. In the circumstances I conclude that the period of the
application of the exemption is the period appearing at the bottom
end of each licence of exemption. Accordingly, subject to what I
say below, the appellant did not have any valid exemptions from
any provisions of the collective agreement(s) entered into in the
bargaining council for the relevant period. The appellant also relied
on the exemption issued under the new collective agreement and
made retrospectively applicable. The appellant submitted that it
24
had exemption and was not liable to pay to the employees any
amounts relating to the arbitration award for such period. In my
view, to the extent that such exemption was retrospective beyond
the dates on which the applications for exemption had been made,
such exemptions were, to that extent, ultra vires. To the extent that
they purported to run from the date of such application or thereafter
and were prospective, such exemptions were of force and effect
and operational.
[40] The Commissioner held thus: “In the absence of exemptions
issued under the New Agreement, the Respondent does not
have a valid reason at law not to pay the minimum wages
negotiated in the Bargaining Council after the main agreement
was in operation.” From this it seems abundantly clear that the
commissioner did not apply her mind to the appellant’s argument
referred to above. If she had applied her mind to it, she would, I
have no doubt, have dealt with that contention in her award.
[41] I conclude therefore that the defence raised by the appellant on the
merits cannot be sustained. That being the case the application for
review should have been dismissed by the Court a quo. As to costs,
both parties argued the matter on the basis that costs should follow
the result. The appellant was successful in reversing the decision of
the Court a quo on the issue of its application for condonation. The
respondent(s) who opposed the appeal were successful on the
merits of the matter. In these circumstances what do the
requirements of law and fairness dictate with regard to an award of
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costs? The issue of condonation was not a minor part of this matter.
Argument on it took a substantial part of argument. It seems to me
that the requirements of law and fairness dictate that no order
should be made as to costs. I propose to give effect to this
approach.
[42] In the result I make the following order:
1. The appeal is upheld in part and dismissed in part.
2. No order is made as to the costs of the appeal.
3. The appellant’s appeal on the merits of the review
application is dismissed.
4. The appellant’s appeal against the order of the Labour Court
relating to condonation is upheld and such order is set aside and replaced
with the following one:
“(a) The applicant’s application for condonation
in regard to the launching of the review
application is granted.
b) The applicant’s application for review is hereby
dismissed.
c) There is to be no order as to costs.”
Zondo JP
I agree.
Nkabinde AJA.
I agree.
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R. Pillay AJA
Date of judgment: 28 November 2005
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