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[2013] ZALAC 7
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Greef v Consol Glass (Pty) Ltd (C A02/12) [2013] ZALAC 7; (2013) 34 ILJ 2385 (LAC) (21 May 2013)

Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, CAPE TOWN
Case no: CA02/12
In the matter between:
MARYKA GREEF
............................................................................................
Appellant
and
CONSOL GLASS (PTY) LTD
.....................................................................
Respondent
Heard: 12 March 2013
Delivered: 21 May 2013
Summary:Interpretation
of s
158(1)(c) of the LRA - Labour Court dismissing an
application to make a settlement agreement an order of court because
no prior
dispute relating to the settlement had been referred to the
Labour Court for adjudication. Held on appeal that S158(1)(c) must be

interpreted in conjunction with s158(1A). There is no requirement in
s158(1)(c), read with s158(1A), that the dispute must be referred
for
adjudication to the Labour Court before the Labour Court may make the
settlement of that dispute an order of court– the
requirement
in s158(1A) that a party must have a right to refer the dispute to
arbitration or the Labour Court does not refer to
a legal right in
the strict sense capable of immediate exercise- the court should
satisfy itself whether the settlement agreement
which is to be made
an order of Court has met the criteria stated in s158(1A) – if
the agreement does not meet the criteria
the Labour Court has no
discretion to make it an order of court. However, if the agreement
meets the criteria, the court, should
consider all the relevant facts
and circumstances and exercise its discretion whether to make such an
agreement an order of court.-
Appeal succeeds- Matter remitted to the
Labour for a rehearing.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
COPPIN AJA
[1] This is an appeal, with the
necessary leave, against the order ofSteenkamp J in the Labour Court
dismissing an application,
brought by the appellant,to make an
agreement, in respect of her retrenchment, which she concluded with
her former employer, the
respondent, an order of court.
[2] The appellant relied on s158(1)
(c)
of the Labour Relations Act
66 of 1995 (“the LRA”), which provides that the Labour
Court maymake any arbitration award
or any settlement agreement an
order of the court.
[3] With reference to the judgment of
the Labour Court in
Molabaand
others v Emfuleni Local Municipality,
1
the
court
aquo
preferred the interpretation of
s158(1)(c) of the LRApropounded in that case,which is to the effect
that the settlement agreements
referred to in that section were to be
limited to those agreements that were concluded after thedispute had
been referred to the
Labour Court for adjudication. The court
a
quo
held that the
appellant’s case was not one in which ‘the court should
exercise its discretion in favour of making the
settlement agreement
an order of court in circumstances where no dispute has been referred
to the court for adjudication’,
accordingly dismissed the
application and made no order regarding the costs.
[4] The appellant, in essence,
submits, that the court
a
quo
erred in adopting the
narrow interpretation of s158(1)
(
c)appliedby
the court in
Molaba
and contends that the wider meaning
given to that section by the court in
Bramley
v John Wilde t /aEllis Alan Engineering and another
2
was
more preferable and correct. Theappellant, accordingly, submits that
the agreement thatshe relied on, was indeed one of the
kind envisaged
in s158(1)(c)and that the Court
a
quo
ought to have exercised
its discretion in favour of making it a court order ‘especially
in circumstances where the Respondent
has failed to take any action
whatsoever’to have the settlement agreement set aside by an
appropriate forum or court.
[5] The facts leading to the appellant
bringing the application were, briefly, the following. The appellant
was employed by the
respondent as an account manager in about 2010.
Subsequently the respondent embarked on a retrenchment process in
terms of s189
of the LRA. In the course of that process, the
respondent consulted with itsstaff, including the appellant,
regarding the restructuring
of its sale and marketing department.
[6] It is apparent from a letter dated
08 October 2010, written by the respondent to the appellant, which is
attached to the appellant’s
founding affidavit and which
embodies the terms of the agreement, that the appellant had indicated
to the respondent that she wished
to accept the severance package
proposed by the respondent and that she was agreeable to the
termination of her services with the
respondent on certain terms.
[7] The terms of the agreement cover,
inter alia
, the retrenchment package that was to be paid, the
pension, provident fund and the employer’s group risk benefit
scheme issues,
the finality of the settlement, the issue of the IRP5
certificate, and includes the following terms, which I quote here for
ease
of reference, namely:
‘
1
the effective date of termination of your contract of employment will
be 30 November 2010.
2
Subject to you being able to conclude the handover- duties assigned
to you during this period, you may not be required to work
the
contractual one month’s notice period during the month of
November and your last day at the office will be 31 October

2010.Should you however not be able to finalise these duties as
required, you may be required to work part of or the entirety of
your
notice period.’
[8] This letter is signed, on behalf
of the respondent, by its business manager, Peter Masson(“Masson”),
and has the
following as a last paragraph, ‘IMarykaGreef
confirm that I understand and accept the terms and conditions as set
out above
as reflecting full and final settlement of all benefits
arising from my employment with Consol Glass (Pty) Ltd’
.
The
appellant signed the letter on 12 October 2010.
[9] It is common cause that on 18
October 2010, Masson handed to the appellant another letter addressed
to her, the material part
of which reads as follows:
‘
Acceptance
of your Resignation
During
our discussion on Tuesday, 12 October 2010 you indicated to me that
you had accepted an offer of employment with another
employer and
that your commencement date in terms of such employment is Monday, 18
October 2010.
You
further handed to me Consol property in your possession including the
petrol card and cellular phone and pointed out that you
will not be
returning to work and that you are tendering your resignation with
immediate effect. Please be advised as follows:
I
referred you to point 2 of your letter dated 8 October 2010 titled
Retrenchment: letter of termination
, which letter you have
signed and accepted and which reads ‘subject to you being able
to conclude the hand over duties
assigned to you during this period,
you may not be required to work the contractual one month’s
notice period during the
month of November and your last day at the
office will be 31 October 2010. Should you however not be able to
finalise these duties
as required, you may be required to work part
of or the entirety of your notice period’;
The
letter referred to in 1 above specifically indicates that your
contract of employment with the Company terminates on 30 November

and that you are required to place your services at the disposal of
the Company until 31 October 2010;
Notwithstanding
1 and 2 above you elected to resign voluntarily from the Company’s
employ with immediate effect;
We
accept you resignation from the Company with immediate effect. Your
salary for the month of October 2010 together with all
the statutory
monies due to you as at 12 October 2010 will be paid out to you on
the last working day on October 2010;
Please
further note as you have voluntarily elected to resign from Consol’s
employ the Company will no longer be paying
you the severance
package illustrated in our letter dated 8 October 2010;
The
payments referred to in point 4 is in full and final settlement of
all or any claims that you might have against the Company,
emanating
either from your employment, or from the termination thereof,
whether such claims are in delict, contract, or by virtue
any
statutory enactment.
We
want to take this opportunity and wish you everything of the best in
all your future endeavours...’
[10] The appellant denies that she
tendered her resignation as alleged by Masson. She states that she
responded to Masson’s
letter by letter dated 19 October 2010,
in which she denied that she ever resigned, or mentioned any
intention to resign. A copy
of this response is attached to the
appellant’s founding affidavit. In this letter, the appellant
relates the events that
preceded the letter of 18 October 2010. She
states,
inter alia
, that Masson had indicated to her,at the
time she received his letter of 8 October 2010, that once he was
happy with the handover
she could leave immediately and that it would
not be necessary for her to work out the notice period; that after
she perused his
letter of 8 October it became clear to her that the
respondent was attempting to use the letter to prevent her from
declaring a
dispute regarding the legality of the retrenchment
process; that to her it was, however, also clear that the company did
not want
her services, but as the package offered was fair in the
circumstances, she decided to sign the letter of 8October.
[11] Regarding the events of 12
October 2010, the appellant in her response of 19 October, states,
inter alia
, that she had indicated to Masson that she had an
interview and might be able to secure employment with another
company, but that
Masson started screaming at her and said that he
would not pay her; that when she told him that she did not understand
his reaction,
because he had a pivotal role in her retrenchment, he
told her, in effect, that she might as well leave immediately. The
appellant
concluded her response to Masson with a question whether
she would be paid her retrenchment benefits before 20 October 2010
and
threatened to take legal steps if she was not paid accordingly.
[12] The respondent, apparently, did
not react favourably to the appellant’s letter of 19 October
2010, as a result of which
the appellant made an application to the
Commission (“the CCMA”) to make the agreement, embodied
in the letter of 8
October 2010, an arbitration award in terms of
s142A of the LRA. The award was made by the CCMA, but the respondent
took the matter
on review to the Labour Court. The same Judge whose
judgment is on appeal before us was the reviewing judge. He set aside
the award
of the CCMA on the basis,
inter alia
, that as a
dispute was not referred to the CCMA that body was not empowered to
make the agreement an arbitration award in terms
of s142A. That
section provides:
‘
(1)
the Commission, may, by agreement between the parties or an
application by a party, make any settlement agreement in respect
of
any dispute that has been referred to the Commission, an arbitration
award.
(2)
For the purposes of subsection (1), the settlement agreement is a
written agreement in settlement of a dispute that a party
has the
right to refer to arbitration or to the Labour Court, excluding a
dispute that a party is entitled to refer to arbitration
in terms of
either section 74(4) or 75(7)’.
[13] In response to the setting aside
of the award of the CCMA, the appellant launched the applicationwhich
is the subject of this
appeal. The appellant relied on s158(1)(c),
because, so the appellant alleges in her founding affidavit, ‘there
is no requirement
in the subsection for a dispute to have been
referred to the CCMA before it could be made an order of the Labour
Court’.
The appellant averred further, in support of her
application to the Court
a
quo
, since the respondent
has not applied to “any appropriate forum” to set aside
the agreement, the Labour Court had the
power to make the agreement
an order of court.
[14] In her founding affidavit, in the
application before the court
a
quo,
the appellant says
that she regarded herself at all times as bound by the settlement
agreement and did not refer a dispute regarding
her unfair
retrenchment, firstly, because the dispute was settled in full and
finally and secondly, because the terms of the settlement
agreement
were agreeable to her.
[15] In its answering affidavit,
deposed to by Masson, the respondent denies the appellant’s
version,
inter alia
,
that Masson screamed at her on 12 October 2010. Masson’s
version is that he was assertive and that he had said to the
appellant
that if she did not comply with the obligations imposed
upon her by the agreement, the respondent would not comply with the
agreement
either.Masson further states that the appellant was the one
who was aggressive and condescending. His version is that the
appellant
stated that she was leaving the respondent’s premises
forthwith and left accordingly. It is the respondent’s case
that
the payment to the appellant, in terms of the agreement, was
conditional upon the appellant rendering her services to the
respondent
until her release by the respondent and that the appellant
had repudiated the agreement by her aforementioned conduct, which
repudiation
the respondent accepted and had, consequently, cancelled
the agreement. The respondent contends that the appellant could not
in
those circumstances rely on the agreement. According to the
respondent, the dispute relating to compliance with the agreement is

one that ought to have been referred to the CCMA in terms ofs41 of
the Basic Conditions of Employment Act.
3
The respondent further contends, that
since the appellant had referred that dispute to the CCMA she could
not, at the same time,
also ventilate it in the Labour Court.
[16] The court
a
quo
, in essence, refused to
make the settlement agreement an order of court, because no prior
dispute relating to the settlement had
been referred to the Labour
Court for adjudication. In
Molaba,
the court interpreted s158(1)(c)of the
LRA with reference to s142A of that Act and preferred a narrow
interpretation of s158(1)(c),the
effect of which was to limit the
application of that section to those instances where a party had
validly referred a dispute to
the Labour Court for adjudication and
where the dispute had become settled at any time after such
referral.In terms of
Molaba,
‘
an interpretation to this
effect would preserve the integrity of section 142A.It would also
avoid all of the difficulties, conceptual
and practical, that the
broad interpretation presents.’
4
According to the learned judge, a
broad interpretation was one in terms of which s158(1)(c) would be
read in isolation and literally
and would mean that the Labour Court
was empowered to makeany employment related settlement agreement,
including a collective agreement,
an order of court.In terms of
Molaba
this
would blur ‘the line between a constitutive and a judicial act,
a line section 142A clearly draws and that the broad
architecture of
the LRA preserves’.Further, according to
Molaba
‘
a
broad interpretation would also suggest that the limitation
established by section 142A could be entirely undermined – none

of the conditions attached to having a settlement agreement made an
arbitration award in terms of that section would apply if aparty
were
simply permitted to approach the Labour Court to have any
employment-related agreement made an order. Finally, a broad
interpretation
would blur the line between what are properly
contractual claims to be enforced either by the civil courts, or by
this Court under
section 77(3) of the BCEA.’
5
[17] In my view, the court in
Molaba,
while
it correctly held that in
Harrisawak
vLaFarge(SA
),
6
the
court was interpreting s158(1)(c)as it read before the 2002
amendments to the LRA, in particular before the introduction of
s142A
and the amendment of s158(1)
(
c),
erred. The court, in
Molaba,
did not refer to the decision in
Bramley
and,
seemingly, overlooked s158(1A)
7
of the LRA
.
Its interpretation of
s158(1)(c), without taking into account s158(1A), but with reference
to, in particular s142A(1), the equivalent
of which is deliberately
excluded from s158, was, with respect, wrong. In
Bramley,
the parties seemed to have approached
the matter on the basis that, because proceedings had been instituted
before the 2002 amendments,
the matter had to be decided on the basis
of s158(1)(c) as it read before those amendments. But the court,
per
Farber AJ, considered the matter on
the basis of the section as it read before the amendment and ‘
ex
abundant cautela
’
as
it read after the amendment and, particularly, in light of s158(1A),
which was introduced by the amendment. In
Bramley,
the
courtpropounded an interpretation which was not as broad as that said
to have been applied in
Harrisawak
and
concluded that the words ‘any settlement’ in s158(1)(c),
as it stood before the 2002 amendment, refer to ‘a
settlement
concluded in respect of a dispute which is justiciable in terms of
the Act, irrespective whether such dispute is settled
prior to the
need to invoke the dispute resolution machinery of the Act or at some
point in time thereafter’and that the
amendments did not alter
the position.
[18] The wording of s158(1A), but for
the reference to an additional section of the LRA, is in its
materialaspectsthe same as the
wording of s142A(2)of the LRA
8
.Section
158(1A) provides, with reference to s158(1)(c) of the LRA, as
follows: ‘for the purposes of subsection (1)
(c)
,
the settlement agreement is a written agreement in settlement of an
dispute the party has the right to refer to arbitration or
to the
Labour Court, excluding a dispute that a party is only entitled to
refer to arbitration in terms of section 22(4), 74(4)
or 75(7)’.
[19] It is thus clear from a reading
of s158(1A) that s158 (1)(c)must be read with and subject to
s158(1A).
9
Even
though s158(1)(c) refers to ‘any settlement agreement’
this cannot be taken to mean, literally, ‘any’
settlement
agreement.Section 158(1A) describes what settlement agreements are
being referred to in s158(1)(c).
10
So properly interpreted, in terms of
s158(1)(c), read with s158(1A), the Labour Court may make any
arbitration award an order of
court and may only make settlement
agreements, which comply with the criteria stated in s158(1A), orders
of court.A settlement
agreement that may be made an order of court by
the Labour Court in terms of s158(1)(c), must (i) be in writing,
(ii)be in settlement
of a dispute (i.e. it must have as its genesis a
dispute); (iii) the dispute must be one that the party has a right to
refer to
arbitration, or to the Labour Court for adjudication, in
terms of the LRA; and (iv)the dispute must not be of the kind that a
party
is only entitled to refer to arbitration in terms of s22(4), or
s74(4) or s75(7).Those kinds of dispute are excluded.
[20] It is noteworthy that
s158(1)(c)does not provide that the Labour Court is obliged to make a
settlement agreementan order of
court.So that even if a settlement
agreement complies with the criteria’s stated in s158(1A), the
courtmay, nevertheless,
in the exercise of its overarching discretion
decide not to make it an order of court.Section 158(1)(c) provides
that the Labour
Court ‘may’ make it an order of court.
This means that the Labour Court has adiscretion in that regard,
which it would
have to exercise in a judicial manner, taking into
account all the relevant facts and circumstances.
[21] Accordingly, in deciding whether
to make a particular settlement agreement an order of court, it would
first have to be established
whether the settlement agreement
satisfies the criteria stated in s158(1A). If it does not, then the
court does not even have a
discretion. It cannot make such an
agreement an order of court. On the other hand, if the agreement does
satisfy the criteria,
the court, nevertheless, would have to consider
all the relevant facts and circumstances and in the exercise of its
discretion,
decide whether to make the agreement an order of court.
There may be facts or circumstances that militate against making a
settlement
agreement, which otherwise meets all the criteriastated in
s158(1A), an order of court.
[22] Conciliation is a jurisdictional
pre-requisite before a dispute,of the kind referred to in s191 of the
LRA,may be referred
to a council or the CCMA for arbitration, or to
the Labour Court for adjudication.The question that prominently
arises in this
regard is whether an employee can be said to have ‘a
right to refer’ the matter to arbitration by the CCMA or
council,
or to the Labour Court for adjudication, in terms of s191,
where there has been no referral of the dispute to the CCMA, or the
council (as the case may be), or 30 days have not elapsed since the
dispute was referred to the council or CCMA and those bodies
have not
certified that the dispute remains unresolved? The majority in
NUMSA
v Driveline Technologies (Pty) Ltd andanother
11
held
that the employee did not have a right of referral in those
circumstances. However the court there was not interpreting the
word
‘right’ or the phrase ‘right to refer’ in
s158(1A) and was clearly referring to an employee’s
entitlement
to refer the dispute, as contemplated in s191(5) of the LRA and
construed that entitlement in the strictest sense as
‘a legal
right’ open to immediate exercise. Does the word ‘right’
as it is used in s158(1A) have the same
strict meaning?
[23] In
Bramley
,Faber AJ dealt
with this issue, although
obiter,
andcame to following
conclusion:
‘
In
short I am of a persuasion that the words “the right to refer”
in section 158(1A) are not to be construed in a narrow,
literal sense
so as to equate to a right which is open to immediate exercise. In my
judgment, it connotes a far wider concept,
such as an entitlement
which may only fall to be exercised once the prerequisites for doing
so have been satisfied.Thus, provided
only that the dispute is of a
kind which is amenable to adjudication by the Commission or the court
in terms of the structure of
the Act, albeit not as a matter of
immediacy, but once the prerequisites for such adjudication have been
satisfied, a settlement
in relation thereto maybe made an order in
terms of section 158(1)(c),irrespective of the date of
itsconclusion.This construction
does no violence to the wording of
section 158(1A).As previously indicated, it has been recognised that
the word “right”
in the language of the law may be used
in a wider and laxer sense and not in the sense that it is synonymous
with the concept of
a “legal right”, correlating to a
duty or obligation.It is in this wider sense that the word “right”
is
in my judgment used in section 158(1A) of the Act. It follows,in
my view, that the character of the right referred to in section

158(1A) is such that it need not be open to immediate exercise, but
may be invoked at sometime in the future when the pre-requisites

therefore have been fulfilled.It nonetheless is something which is
extant in the sense that, bar a subsequent resolution of the
matter,
the machinery of referral may be resorted to.’
12
[24] Making settlement agreements
orders of court may be regarded as important for the protection of
the rights of the parties to
the settlement. It not only facilitates
and enables execution through court processes, but would enable an
aggrieved party to institute
contempt proceedings if the order of
court is not complied with. If the word ‘right’ in
s158(1A) were to be given a
strict meaning, consequences would ensue
that cannot be said to be consistent with the aims and objects of the
LRA. With regard
to the kinds of dispute envisaged in s191 of the LRA
– the power of the Labour Court to make settlements orders of
court
would be limited to those settlements entered into after failed
conciliation and a certificate has been issued to that effect, or
in
respect of which 30 days elapsed from the date the dispute was
referred to the council or CCMA, but which remained unresolved.

Parties would be reluctant to enter into settlement agreements before
the aforementioned events have occurred, because they would
not be
able to make their agreements orders of court.Since the identical
phrase, ‘right to refer’, is also found in
s142A(2), the
same would apply in respect of settlements which parties wish to make
awards in terms of s142A of the LRA. The only
settlement agreements
that the CCMA would be empowered to make awards would be those
concluded after failed conciliation and a
certificate has been issued
to that effect, or 30 days elapsed since the dispute had been
referred to the CCMA and the dispute
remains unresolved. Giving a
strict meaning to the word ‘right’ in s158(1A)would have
the effect of differentiating
between those settlements concluded
before and those concluded after the statutory events pertaining to
conciliation had occurred.
Other than purporting to limit the
potential number of applications to make settlements orders of court,
there appears to be no
rational basis for such differentiation.
Moreover, any retardation, or discouragement of the early settlement
of disputes is not
consistent with the objects of the LRA, namely,
the resolution of disputes as speedily as possible, in an efficient
and cost effective
manner. Lingering, unsettled disputes are not
conducive to stability in the workplace and militate against the
principle aims of
the LRA in that respect.
13
[25] Accordingly, I am in agreement
with theconclusion of the court in
Bramley
regarding the
meaning of the phrase ‘right to refer’ in s158(1A). It
needs only to be established, for the purposes
of compliance with
that section, thatthe dispute is of a kind, if unresolved and once
all the procedural requirements have been
met, which may be referred
to arbitration, or to the Labour Court for adjudication. It does not
have to be established that there
is a ‘right of referral’,
in the strict sense of a legal right capable of immediate exercise.
[26] Turning to the facts of the
present case.The letter of 8 October 2010 contains a written
settlement agreement of the kind that
is envisaged in s158(1A), read
with s158(1)(c) of the LRA, and meets the stated criteria.It is not
in issue that it was in settlement
of a dispute relating to the
appellant’s retrenchment from her employment with the
respondent. It is the kind of dispute
that the appellant would have
been entitled to refer to arbitration, or to the Labour Court if it
was unresolved and once all the
procedural steps had been taken. In
my view, the only issue which ought to have detained the court
a
quo
was whether it should, in the exercise of its discretion,
make the settlement an order of court, given the facts and
circumstances
described in the papers.
[27] The court
a quo,
seemingly, conflated the enquiry whether the settlement was of the
kind envisaged in s158(1)(c), with the next step in the adjudication

process, in terms of which the court decides whether to make a
settlement agreement, which complies with the criteria in s158(1A),

an order of court in the light of the facts and circumstances of the
particular case. I am of the view that the court
a quo
erred in
its approach and in concluding that the agreement could not be made
an order of court, because the dispute had not been
referred to the
Labour Court for adjudication. There is no requirement in s158(1)(c),
read with s158(1A), that the dispute musthave
been referred for
adjudication to the Labour Court before the Court may make the
settlement of that dispute an order of court.
A section similar to
s142A(1) of the LRA seems to have been deliberately omitted from
s158(1)(c) and s158(1A). The latter sectionsmerely
require that it be
shown that a party has a right to refer the dispute for arbitration,
or to the Labour Court. Insofar as the
court in
Molaba
held,
orimplied, the contrary, it erred. The importation, in effect, into
s158(1)(c)of a requirement similar to the one to be found
in
s142A(1), was wrong.
[28] In my view the court
aquo
erred in dismissing the application for the reason(s) it did and
without exercising its discretion correctly and on the basis of
the
facts and circumstances of the case. The court
a quo
ought to
have found that the settlement met the criteria stipulated in
s158(1A) and should then have considered all the other facts
in order
to decide whether, in the exercise of its discretion, the settlement
agreement, which otherwise met all the criteria stipulated
in
s158(1A), should be made a court order.Even though the settlement
followed upon a dispute of the kind envisaged in s158(1A),
the court
a quo
could not, in the circumstances of the matter, make it
an order of court without having first resolved (in the appellant’s

favour) the substantial dispute of fact on the papers, namely,
whether the settlement agreement had been repudiated by the appellant

and had,subsequently, beenvalidly cancelled by the respondent. It
does not appear from the judgment of the court a
quo
that
these aspects were considered.
[29] In my view, the judgment and
order of the court
a quo
should be set aside and the matter
remitted to the Labour Court for rehearing and reconsideration in
light of this judgment. The
consequent delay is unfortunate, but
since this is a matter that requires a decision on facts that are in
dispute and in respect
of which oral evidence may, or may not be
allowed, the remittance is inevitable. There is no reason why costs
of the appeal should
not be awarded to the appellant.
[30] In the result, the following is
ordered:
i. The appeal is upheld;
ii. thejudgment and order of the court
a quo
is set aside;
iii. thematter is remitted to the
Labour Court, for rehearing and reconsideration in the light of this
judgment;
iv. the respondent is to pay the costs
of the appeal.
___________________
Coppin AJA
I agree__________________
Waglay JP
I agree.
Tlaletsi JA
APPEARANCES:
FOR THE APPELLANT: Mr.Stelzner S.C
Ms. Marks
Instructed by Fluxmans Inc.
FOR THE RESPONDENT: Mr.C. De Cock
Instructed byCarelse Khan Attorneys
1
Molaba
and others v Emfuleni Local Municipality
[
2009]
7 BLLR 679
(LC).
2
Bramley
v John Wilde t/a Ellis Alan Engineering and another
[2003] 4
BLLR 360
(LC).
3
Act
No. 75 of 1997.
4
See
para [10] at 683E.
5
At
683B-D para [9]
.
6
Harrisawak
v La Farge (SA)
(2001) 220 ILJ 1395 (LC);
[2001] 6 BLLR 614
(LC).
7
The
section was inserted into the LRA by
s 36
of the
Labour Relations
Amendment Act 12 of 2002
.
Section 142A
of the LRA was inserted by
s
31
of that Amendment Act.
8
Section
158(1A) refers to s22(4), in addition to sections74(4) and 75(7).
Section 142A only refers to the latter two sections.
Section 22(4)
deals with the resolution of disputes concerning organisational
rights. The section provides that if such a dispute
remains
unresolved after the CCMA has attempted to resolve it through
conciliation, any party to the dispute may request that
it be
resolved through arbitration as soon as possible. Section 74 deals
with the resolution of disputes in essential services
and s 75 with
the resolution of disputes in maintenance services. Section 74(4)
provides that if a dispute in essential services
remains unresolved
after a bargaining council, or the CCMA has attempted to resolve it
by conciliation, any party to the dispute
may request that be
resolved through arbitration by the council or the CCMA. Section
75(7) provides with regard to disputes in
maintenance services, that
if it is a direction from the Essential Services Committee that a
dispute in the maintenance services,
regarding the right to strike,
be referred to arbitration, the provisions of s74 of the LRA would
apply to the arbitration and
the arbitration award would be binding
on the employees engaged in the maintenance services and the
employer, unless its terms
are varied by a collective agreement.
9
See
Bramley
(above) at 363H.
10
See
Bramley
(above)at
360 I-J.
11
NUMSA
v Driveline Technologies (Pty) Ltd and another
[2007] ZALC 66
;
[2000] 1 BLLR 20
(LAC) para [74] at 38I-39A.
12
At
365 B-365F.
13
See
also
Bramley
(above) at 362 – 363.