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[2014] ZALAC 96
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CONCOR PROJECTS (PTY) LTD ta CONCOR OPENCAST MINING v CCCMA (JA35/2013) [2014] ZALAC 96 (13 February 2014)
REPUBLIC
OF SOUTH AFRICA
Reportable
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JA35/2013
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).