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[2014] ZALAC 33
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Concor Projects (Pty) Ltd t/a Concor Opencast Mining v Commission For Conciliation, Mediation And Arbitration and Others (JA35/2013) [2014] ZALAC 33; [2014] 6 BLLR 534 (LAC); (2014) 35 ILJ 1959 (LAC) (13 February 2014)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
Case no: JA35/2013
Reportable
In the matter between:
CONCOR PROJECTS (PTY) LTD t/a
CONCOR
OPENCAST
MINING
Appellant
and
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER COMFORT
MOKABANE
NO
Second
Respondent
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION
UNION (“AMCU”)
Third
Respondent
N
TITANA & FURTHER RESPONDENTS
Fourth
Respondent
Heard:
19 November 2013
Delivered:
13 February 2014
Summary: Binding effect of a
collective agreement to non-signatories trade unions - requirements
restated- respondent’s members
not identified in the collective
agreement- requirement not met- distinction between collective
agreement and sectoral determination
- sectoral determination not a
collective agreement- employees entitled to bargain higher wages than
those provided in the sectoral
determination. Appeal dismissed with
costs.
CORAM: WAGLAY JP, C J MUSI
et
MOKGOATLHENG AJJA
JUDGMENT
C J MUSI AJA
[1]
This appeal – which is brought with the leave of this Court –
is against
the judgment of the Labour Court (Lagrange J).
[2]
On 17 October 2012, the appellant sought and was granted interim
relief, on an urgent
basis, by Bhoola J to the following effect:
‘
2.
A rule
nisi
is issued calling upon the respondents to show cause, on the 15
th
November 2012 at 10:00 or soon thereafter, why a final order should
not be granted in the following terms:-
2.1
Reviewing and setting aside the certificate of outcome (LRA Form
7.12) issued by the second
respondent under the auspices of the first
respondent on 9 October 2012 under case number MP5994 – 12;
2.2
Declaring the strike which commenced at approximately 17h00 on 15
October 2012 to be unprotected
and unlawful;
2.3
Interdicting and restraining the fourth to further respondents who
are members of the third
respondent from
2.3.1
Participating in the strike referred to in paragraph 2.2 above;
2.3.2
Engaging in various acts of misconduct and violence whilst
participating in the said strike;
2.3.3
Preventing other employees of the Applicant from tendering their
services in terms of their contracts of
employment;
2.3.4
Intimidating, harassing or threatening the safety of and/or property
of the Applicant or any other person
in the Applicant’s employ
or furthering the Applicant’s business who is not participating
in the strike;
2.3.5
Victimising and/or inciting any non-striking employees to join the
said strike and/or to engage in acts
of misconduct and violence in
furtherance of the strike;
2.3.6
Damaging and/or destroying any Company property, including setting
fire to company and private vehicles;
2.3.7
Using insulting, inflammatory and defamatory language against members
of the Applicant’s management
through phone calls, strike
banners and placards;
2.3.8
Carrying dangerous weapons to intimidate and/or threaten and/or
incite any non-striking employees and members
of the Applicant whilst
protesting;
2.3.9
Being within a 5km radius or distance suitable determined by the
Honourable Court of the Vlakfontein site
of the Applicant and/or not
being allowed, within the context of this prayer, within any gate or
access route of the Applicant;
2.3.10
Obstructing vehicles and persons from entering and leaving the
Applicant’s Vlakfontein premises;’
[3]
On the return day, the matter was argued before Lagrange J, who made
the following
order:
‘
[31]
In the circumstances, I find that:
31.1
Neither the provisions of the National Negotiating Forum for the
Civil Engineering Industry, Substantive
Collective Agreement of 30
July 2012, nor the Sectorial Determination 2: Civil Engineering
Sector, South Africa, prohibit the third
and further respondents from
embarking on protected strike action, provided the provisions of s 64
of the LRA have been complied
with.
31.2
The settlement agreement concluded between the applicant and the
third respondent on 3 July 2013 was
concluded on the basis of a
common mistake between the parties on the effect of the Sectoral
Determination and in consequence is
invalid and unenforceable.
31.3
The dispute over the refusal to negotiate should have been referred
to advisory arbitration under section
64(2) of the LRA as it concerns
a dispute over appropriate bargaining levels and, or alternatively,
bargaining units.
31.4
The strike which commenced on 15 October 2012 was unprotected because
the provisions of section 64(2)
of the LRA had not been complied
with.
[32]
Accordingly, the third and further respondents are interdicted from
participating in a strike
either in respect of the dispute referred
to the CCMA under case number MP4283-12 on 11 June 2012, or in
respect of the dispute
referred to the CCMA on 21 August 2012 under
case number MP3994-12, until and unless the provisions of section
64(2) of the LRA
have been complied with.
[33]
The applicant must pay half the respondent’s costs.’
[4]
The appeal is only against paragraphs 31.1, 31.2 and 33 of the above
order.
[5]
The appellant conducts the business of open cast mining in
Vlakfontein, Mpumalanga.
It is a member of the South African
Federation of Civil Engineering Contractors (SAFCEC), which is an
employers’ organisation.
SAFCEC on the one hand and the
Building, Construction and Allied Workers Union (BCAWU) and the
National Union of Mineworkers (NUM)
on the other hand entered into a
collective agreement in respect of conditions of service and wages.
The agreement was renegotiated
on an annual basis at the National
Negotiating Forum for the Civil Engineering Industry (NNF). The third
respondent (Association
of Mineworkers and Construction Union (AMCU))
is not a party to the collective agreement. It however has members
who are employed
by the appellant.
[6]
On 12 March 2012, AMCU addressed a letter to the appellant wherein it
set out its
wage proposals for 2012/2013. On 20 April 2012, AMCU
again submitted a proposal to the appellant to negotiate wages and
service
conditions with it.
[7]
By letter dated 26 April 2012, the appellant responded that it was
unable to consider
any of AMCU’s proposals because:
‘
Concor
Mining is an opencast contracting concern and forms part of the civil
engineering construction sector and as bulk earthmovers
we resort
under the wage determination for Civil Engineering and Construction
Industry. An agreement is in place for the said industry
and is
negotiated regularly on a national basis to cover wage increases and
changes in conditions of employment. The current Agreement
in the
industry runs until 31 August 2012 and the process of negotiating the
new agreement has commenced recently with the major
unions and the
civil engineering industry, of which Concor Opencast Mining, by
definition, forms part of.’
[8]
AMCU was not satisfied with the response and indicated, by letter
dated 7 June 2012,
that the agreement does not cover a substantial
number of its demands and hence its insistence to negotiate with the
appellant
on those issues.
[9]
On 11 June 2012, AMCU referred a mutual interest dispute under case
number MP4283/12
to the Commission of Conciliation Mediation and
Arbitration (CCMA). The matter was set down for conciliation on 3
July 2012. At
the conciliation proceedings, AMCU, represented by Mr
Mahlomuza, withdrew the dispute. The withdrawal was recorded on a pro
forma
settlement document used by the CCMA and reads as follows:
‘
The
applicant voluntarily withdraws the referral and abandons the dispute
against the respondent in settlement of his/her case at
the CCMA with
the full knowledge that he/she will not be able to proceed with this
dispute at a later stage.’
[10] Despite
the withdrawal, AMCU persisted with its attempts to negotiate with
the appellant. By letter
dated 27 July 2012, AMCU reiterated its
stance that the collective agreement does not cover all its demands
and it proposed dates
on which the negotiations, pertaining to its
demands, should take place.
[11] On 14
August 2012, the appellant reiterated its view that it was bound by
the Sectorial Determination
and could therefore not negotiate with
AMCU.
[12] On 21
August 2012, AMCU referred the same mutual interest dispute to the
CCMA. The matter was set down
for conciliation on 11 September 2012.
During the conciliation proceedings, Mr Swart, the Human Resources
Director of the appellant,
explained to Mr Nxumalo, AMCU’s
official, that the appellant is prepared to negotiate with AMCU on
issues that were not negotiated
between SAFCEC and the representative
unions on a national level. The parties agreed that Nxumalo would
submit a revised list of
demands with proposed dates for
negotiations. The parties agreed that the period of conciliation
should be extended for 14 days
in order to give them an opportunity
to resolve the dispute amicably.
[13] The
parties met on 3 October 2012 but deadlocked because the appellant
only wanted to negotiate on
issues falling outside the ambit of the
Sectorial Determination and agreements reached at NNF level. AMCU on
the other hand indicated
that the appellant’s business fell
within the mining sector and not the civil engineering sector.
[14] The
conciliation proceedings were held on 9 October 2012. The dispute
remained unresolved and the commissioner
issued a certificate to that
effect. The appellant contended that the certificate was erroneously
issued because the matter was
supposed to be referred to advisory
arbitration as it was a dispute concerning a refusal to bargain.
[15] On 9
October 2012, AMCU issued a purported strike notice to the effect
that its members will commence
with the purported strike as of 12
October 2012 at 06H00.
[16] The
purported strike did not commence on 12 October 2012. The parties met
under the auspices of the
CCMA on 15 October 2012. The appellant
argued that the CCMA does not have jurisdiction because the
Bargaining Council for the Civil
engineering Industry has
jurisdiction over the matter. According to the appellant, the parties
agreed on 15 October 2012 that the
CCMA would render a jurisdiction
and refusal to bargain ruling on 18 or 19 October 2012 and that AMCU
would not call upon its members
to embark on any action pending the
ruling. The CCMA issued its ruling on 16 October 2012 to the effect
that it had jurisdiction
to entertain the matter and it further
directed the parties to reconvene on 17 October 2012 in order to
attempt to resolve the
dispute.
[17] AMCU
members commenced with the purported strike on 16 October 2012, which
resulted in the appellant
approaching the Labour Court on an urgent
basis for the declaratory and interdictory relief.
[18]
The court a
quo
comprehensively examined the mechanisms in the Labour Relations Act
66 of 1995 (“The LRA”) by which agreements may
be imposed
on non-party unions. He concluded that none of them are applicable in
this matter.
[1]
It further found that the Minister of Labour promulgated the
substantive agreement as a determination within the perimeters of
the
Basic Conditions of Employment Act 75 of 1997 (BCEA), as such those
determinations establish the minima below which employer
and employee
parties cannot contract.
[19] The court
a
quo
also found that the settlement agreement was founded
upon a common mistake and AMCU could therefore disregard it.
[20] Mr
Pretorius, on behalf of the appellant, argued that the collective
agreement as set out in the sectoral
determination is binding on AMCU
in terms of section 23(1)(d) of the LRA alternatively that there is a
longstanding practice in
the sector of extending collective
agreements by way of sectoral determinations. He submitted that it
would be in the interest
of orderly collective bargaining at sectoral
level if such agreements should be made binding on non-parties
provided that it makes
it clear that it does so and that the unions
who are party to the agreement are the majority at the workplace. He
further argued
that there was no common mistake because that was not
the union’s case. In respect of the costs, he argued that there
was
no rational reason to order the appellant to pay half of AMCU’s
costs. According to him, the worst case scenario for the appellant
should have been no order as to costs.
[21] Mr
Cassim, on behalf of the third and fourth to further respondents,
argued that section 23(1)(d) of
the LRA is of no assistance to the
appellant. He supported the court
a quo
’s finding in
this regard. He submitted that reliance on the “settlement
agreement” and the principle of
res judicata
is
misplaced because it was signed based on a common mistake. He
submitted that the appellant was successful on a narrow ground
and
was unsuccessful on two separate and distinct grounds on which it
sought relief. He pointed out that the appellant did not
make out a
case for the interdictory relief that it sought in paragraphs 2.3.1
to 2.3.10 of the notice of motion.
[22]
The right to strike and the right to engage in collective bargaining
are constitutionally entrenched
rights.
[2]
Collective bargaining implies a right on the part of those who engage
in it to exercise economic power against their adversaries.
[3]
The right to strike and the right to engage in collective bargaining
are interrelated. In
SATAWU
v Moloto
the importance of the right to strike is set out as follows:
‘
The
right to strike is protected as a fundamental right in the
Constitution without any express limitation. Constitutional
rights conferred without express limitation should not be cut down by
reading explicit limitations into them, and when legislative
provisions limit or intrude upon those rights restrictive of the
right if the text is reasonably capable of hearing that meaning.
[4]
[footnotes omitted]
[23] The LRA
contains substantive and procedural limitations on the right to
strike. This Court has made
plain that:
‘
There
is no justification for importing into the LRA, without any visible
textual support, limitations on the right to strike which
are
additional to those the legislature has chosen clearly to
express.’
[5]
It is through this prism that the
appellant’s attempt to limit the third, fourth and further
respondents’ right to strike
should be viewed.
[24] SAFCEC,
BCAWU and NUM entered into a substantive collective agreement on 30
July 2012. The previous
collective agreements were promulgated by the
Minister of Labour in terms of section 56 (1) of the Basic Conditions
of Employment
Act 75 of 1997 (BCEA) as Sectoral Determination 2:
Civil Engineering Sector, South Africa (the Sectoral Determination).
The sectoral
determination applies to every employer and employee in
the Civil Engineering Sector, excluding any employee who is employed
as
a manager or in a position more senior than that of a manager.
[25] Section
23(1)(d) of the LRA on which the appellant relies reads as follows:
‘
A
collective agreement binds employees who are not members of the
registered trade union or trade unions party to the agreement
if
(i)
the
employees are identified in the agreement;
(ii)
the
agreement expressly binds the employees and
(iii)
that
trade union or those trade unions have as their members the majority
of employees employed by the employer in the workplace.’
[26] It is
clear that all three conditions in section 23(1)(d) must be fulfilled
before the agreement can
be binding on employees who are not a party
to the agreement. This is so because the word “and” is
used at the end
of the second condition.
[27] Members
of AMCU are not identified in the agreement. The agreement does not
state that it binds employees
who are not members of the trade unions
that are signatories to the agreement. The reliance on section
23(1)(d) is therefore misplaced.
[28] Mr
Pretorius submitted that a practice has developed in the civil
engineering sector that the collective
agreement negotiated at
national level is extended to all employers and employees in the
sector by the promulgation of a sectoral
determination. The agreement
is therefore an amendment to the sectoral determination. Sectoral
Determination 2, so the argument
went, is therefore the collective
agreement. Sectoral Determination 2 identifies all the employees,
expressly binds them and the
majority of the employees at the
appellant are members of NUM.
[29] In my
judgment, this argument is without force. A sectoral determination is
not a collective agreement.
Collective agreements and sectoral
determinations are separate legal instruments governed by two
different Acts (the LRA and the
BCEA) and they have different
purposes.
[30]
A collective agreement is a written agreement concerning terms and
conditions of employment or any
other matter of mutual interest
concluded by one or more registered trade unions, on the one hand and
on the other hand, one or
more employers or one or more registered
employer’s organisations or one or more employers and one or
more registered employers’
organisations.
[6]
[31]
A sectorial determination is not an agreement between a trade union/s
and employer/s or employer organisations.
It is a determination that
is done by the Minister of Labour in terms of Chapter eight of the
BCEA. Before making a sectoral determination
for employees in an area
or sector the Minister must direct the Director-General: Labour to
investigate conditions of employment
in the sector and area
concerned.
[7]
The Director-General: Labour may question any person who may be able
to give relevant information or may require, in writing, that
any
person with relevant documents to produce same.
[8]
The Director-General must compile a report after the investigation
and submit a copy thereof to the Employment Conditions Commission.
The commission must then prepare a report containing recommendations
on the matters which should be included in a sectoral determination
for the sector and area.
[9]
The Minister then makes a sectoral determination after considering
the Commissioner’s report.
[10]
The sectoral determination may in respect of the sector and area
concerned set minimum terms and conditions of employment.
[32] It is
clear that a sectoral determination is not a collective agreement.
The LRA and the BCEA do not
provide for the extension of a collective
agreement to non-parties by way of promulgation of a sectoral
determination in terms
of the BCEA. The application of Sectoral
Determination 2 to all employees and employers in the civil
engineering sector is only
a determination of minimum wages and
conditions of service in the civil engineering sector. This does not
preclude employees from
bargaining for wages and conditions of
service that are higher than those stipulated in the sectoral
determination. This is so
because:
‘
Wage
determinations and sectoral determinations usually regulate only
minimum terms and conditions of employment and sectoral
determinations,
by their very nature, are concerned with basic
conditions of employment, this would mean that employees can still
embark on strike
action in support of actual or better terms and
conditions of employment
.’
[11]
I agree.
[33]
There was no legal impediment against AMCU bargaining at plant level.
It therefore had the right to
use its strike weapon when faced with a
refusal to bargain. Because the dispute concerned a refusal to
bargain, AMCU had to have
an advisory award in terms of section
135(3)(c) before it issued its strike notice.
[12]
[34] Mr
Pretorius submitted that having regard to the purpose of the LRA, the
long standing practice in
the civil engineering and bargaining at
sectoral level there is no legal impediment to the collective
agreement binding non-parties
provided it makes it clear that it does
so and that the unions who are party thereto are the majority in the
workplace. In my view
the court
a quo
addressed this issue
correctly and trenchantly when it said:
‘
I
am of the view that Concor is asking the court simply on the basis of
general provisions of the LRA which reflect a policy bias
in favour
of sectoral bargaining, to impose a restriction on collective
bargaining and the right to strike which is not provided
for in the
LRA, and any attempt to read this into the LRA would fall foul of the
principle mentioned in Plascon Decorative.’
[35] The
appellant argued that the “settlement agreement” was not
concluded on the basis of
a common mistake. This was said because
AMCU raised the following defences in relation to the “settlement
agreement”.
Firstly it contended that Mahlomuza signed a
withdrawal of dispute and not a settlement agreement and secondly
that the said Mahlomuza
had no authority to enter into a settlement
agreement. The appellant submitted that if Mahlomuza never intended
to sign a settlement
agreement, there could never have been a common
mistake.
[36] That was
only part of AMCU’s case. It stated other reasons for the
withdrawal in its answering
affidavit. Firstly it stated that the
appellant created the impression by way of its letter dated 26 April
2012 that any referral
of a dispute to the CCMA would make no sense
because of the sectoral bargaining. Secondly that Mahlomuza appended
his signature
to the document because the parties agreed that AMCU
would meet with SAFCEC in order to discuss and explore the
appellant’s
contentions regarding the sectoral determination.
AMCU also stated that the appellant laboured under the wrong legal
impression
and conveyed its views to AMCU and it was never within the
contemplation of the parties that AMCU would not be entitled to refer
a fresh referral to the CCMA.
[37] The
appellant denied the aforegoing and contented that the terms of the
“settlement agreement”
are clear and unambiguous that the
dispute was settled and that AMCU could not refer it again.
[38] Whether
one calls the document a “settlement agreement” or a
withdrawal is of no moment.
The veritable question is whether both
parties laboured under a common mistake about the sectoral
determination and its effect
on AMCU’s demands.
[39] It is
undisputed that the appellant and its attorneys were of the view that
any industrial action would
be unprotected because of the collective
agreement that was part of the sectoral determination. The appellant
informed AMCU that
the sectoral determination constituted a binding
collective agreement. AMCU was convinced, before the signing of the
“settlement
agreement” that they may not negotiate with
the appellant on matters covered in the Sectoral Determination 2.
They wanted
to negotiate on demands not covered by the sectoral
determination.
[40] I am in
agreement with the court
a quo
that the inescapable conclusion
is that AMCU and the appellant laboured under the wrong impression
that the sectoral determination
prevented the parties from
negotiating at plant level on issues governed by the sectoral
determination when it signed the document.
In
Dickenson Motors
(Pty) Ltd v Oberholzer
it was said that:
‘
An
agreement founded upon a common mistake, which mistake is impliedly
treated as a condition which must exist in order to bring
the
agreement into operation can be set aside, formally if necessary or
treated as set aside and as invalid without any process
or
proceedings to do so
.’
[13]
I
agree with the court
a
quo
that Mahlomuza would not have withdrawn the dispute had he known that
the sectoral determination was no bar against negotiating
with the
appellant at plant level. I might as well add that the appellant
would not have taken the stance that it took had it known
what the
correct legal position was.
[41] In my
view, it would be totally unfair to hold AMCU to an “agreement”
that was clearly
entered into based on a common mistake and thereby
denying it and its members their constitutional right to strike. The
court a
quo
was correct in disregarding the “settlement
agreement”.
[42] The court
a quo
said the following with regard to costs:
‘
On
the matter of costs, the applicant has only succeeded on one of its
grounds and accordingly I think it is only just and equitable
for it
to pay some of the respondent’s costs.
’
[43]
A costs order is pre-eminently a decision that is in the discretion
of the court
a
quo
.
This Court will not easily interfere with such discretion.
[14]
It is clear that the court
a
quo
considered that the appellant was successful on only one of its
grounds and conversely that the third and fourth and further
respondents
were substantially successful in defending the matter.
The appellant did not make out a case for the relief sought in
prayers 2.3.2
to 2.3.10 of notice of motion.
[44] In my
judgment the court
a quo
exercised its discretion judicially
and upon considering the correct principles. It considered the
requirements of the law and
equity. There is no reason to interfere
with the costs order.
[45] The costs
of this appeal should be borne by the appellant. Such costs should
include the costs occasioned
by the employ of two counsel. This
matter was complex and the appellant also employed senior counsel.
[46] The court
a quo
did not expressly discharge the rule
nisi
,
although the implication of its order has that effect. Part of the
rule
nisi
should be discharged and only paragraphs 2.2 and
2.3.1 thereof should be confirmed. The court a
quo”s
order
should be amended for the sake of clarity.
[47] I
accordingly make the following order:
47.1 The appeal is
dismissed with costs, such costs to include the costs occasioned by
the employment of two counsel.
47.2 The order of
the court
a quo
is amended by inserting the following sentence
at the end of paragraph 32 of its judgment “Therefore only
paragraphs 2.2
and 2.3.1 of the rule
nisi
are confirmed, the
rest of the paragraphs are discharged.”
_______________
C.
J. Musi AJA
I
agree.
_______________
Waglay JP
I
agree.
_________________
Mokgoatlheng,
AJA
APPEARANCES:
FOR
THE APPELLANT:
Adv G C Pretorius SC
Instructed
by Cowan-Harper Attorneys
Sandton
FOR
THE THIRD, FOURTH AND
FURTHER
RESPONDENTS:
Adv N
Cassim SC
Together
with Adv Sian Rochecouste Collet
Instructed
by Carry Dave Attorneys
Illovo
[1]
La
Grange J discussed sections 23, 32 and 43 and 44 of the LRA. It is
not necessary to reproduce or discuss any of those sections
in this
judgment because the appellant relies on section 23(1)(d) only in
this appeal. That section will be discussed later in
this judgment.
[2]
See
Sections 23(2)(c) and 23(5) of the Constitution of the Republic of
South Africa, 1996.
[3]
See
In re
:
Certification of the Constitution of the Republic of South Africa
1996 (3) SA 744
(CC) at para [64].
[4]
SATAWU
and Others v Moloto
2012 (6) SA 249
(CC) at para 43.
[5]
Chemical
Workers Industrial Union v Plascon Decorative (Inland) (Pty) Ltd
(1999) 20 ILJ 321 (LAC) at para [28].
[6]
See section 213 of
the LRA.
[7]
Section
52 of the BCEA.
[8]
Section
53 of the BCEA.
[9]
See
Section 55 of the BCEA.
[10]
See Section
54 of the BCEA.
[11]
See Basson
et
al
Essential Labour Law 4
th
Edition at page 295 para 17.5.6.
[12]
See section
64(2) of the LRA which read “If the issue in dispute concerns
a refusal to bargain, an advisory award must have
been made in terms
of section 135 (3) (c) before notice is given in terms of subsection
(1) (b) or (c). A refusal to bargain
includes a refusal to recognise
a trade union as a collective bargain agent. In terms of section
135(3)(c) the commissioner must
determine a process to attempt to
resolve the dispute which may include making a recommendation to the
parties, which may be
in the form of an advisory arbitration award.
[13]
1952 (1) SA
443
(AD) at 450C-E.
[14]
Caxton
and Others v Reeva Forman (Pty) Ltd and Another
[1990] ZASCA 47
;
1990
(3) SA 547
(A).