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[2016] ZALAC 32
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MacDonald's Transport Upington (Pty) Ltd v Association of Mineworkers and Construction Union (AMCU) and Others (JA10/2016) [2016] ZALAC 32; (2016) 37 (ILJ) 2593 (LAC); [2017] 2 BLLR 105 (LAC) (28 June 2016)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA10/2016
In
the matter between:
MACDONALD’S
TRANSPORT UPINGTON (PTY)
LTD
Appellant
and
ASSOCIATION
OF MINEWORKERS
AND
CONSTRUCTION UNION
(AMCU)
First Respondent
MEMBERS
OF AMCU LISTED
ON
ANNEXURE “A” TO NOTICE OF
Motion
Second Respondent
NATIONAL
BARGAINING COUNCIL
FOR
THE FREIGHT AND LOGISTICS
INDUSTRY
Third Respondent
SHAAM
FRIEDMAN
N.O.
Fourth Respondent
Heard:
24 May 2016
Delivered:
28 June 2016
Summary:
Right of dismissed employees to choose a union to represent them in
unfair dismissal arbitration–
employer contending that union
could not represent employees as they are not union members in good
standing, their membership having
lapsed for non-payment of
subscription fees – interpretation of union’s
constitution – constitution, properly
interpreted not
subjecting membership to a condition that fees be actually paid–
employees becoming union members in
terms of its constitution upon
submitting application form and acceptance thereof – employees
were members at all relevant
times
Employees’ right
to choose a representative in unfair dismissal proceedings
distinguished from union’s demand for organisational
rights -
in dismissal proceedings before the CCMA or a Bargaining Council
forum, the union is not usually the party, the employees
are the
parties – rule 25 of CCMA Rules. Employees having the right to
choose a union as their representative in dismissal
proceedings -
when a union demands to represent a member in dismissal proceedings
it usually asserts its members’ rights
not its own. Union also
entitled to represent members in dismissal proceedings –
section 200 of LRA
Review test for
interpretation of legal instruments, eg, a union constitution or
other agreement or statute – Quaere: is it
the
Sidumo
Reasonableness test or a correctness test?
Employer third party
not having an interest in internal affairs of a union and having no
locus standi to concern itself with such
affairs – whether
union enforces its rights against its members or chooses not to is
never the legitimate business of an
employer – employers
legitimate interest in membership dynamics of a union confined to a
unions demands in respect of organisational
rights and does extend to
union’s representative role in unfair dismissal proceedings
Labour Court correct
in setting aside arbitrator’s ruling refusing to allow a union
to represent workers - Appeal dismissed
with costs.
Coram:
Tlaletsi AJP and Ndlovu
et
Sutherland JJA
JUDGMENT
SUTHERLAND
JA
Introduction
[1]
The
controversy in this appeal concerns a ruling by the fourth
respondent, an arbitrator, denying the first respondent (AMCU) the
right to represent a number of individual workers in an unfair
dismissal dispute with their employer, the appellant, in arbitration
proceedings convened under the auspices of the third respondent, a
bargaining council. On review, the Labour Court set the ruling
aside
and issued a declarator that AMCU is entitled to represent the
individuals in the dismissal proceeding. The employer appeals
against
that order.
[2]
The
individual workers had been dismissed in the wake of a strike,
allegedly characterised by violence. The dismissed workers referred
an unfair dismissal dispute to the bargaining council. Why did the
workers strike? They did so in support of a demand that the
appellant
grant AMCU organisational rights in terms of sections 12 and 13 of
the Labour Relations 66 of 1995 (LRA).
[1]
The initial request for access and stop order deductions of the union
subscriptions was made on 1 August 2014. Thereafter haggling
over
proof of membership and degree of representation followed the
familiar dilatory pattern. The merits and demerits of each party’s
behaviour is unimportant for present purposes. Eventually, the
representivity issue was conciliated and a certificate of
non-resolution
was given on 15 April 2015, almost nine months later.
A strike notice followed on 21 May. The strike ensued and the
dismissal occurred
three weeks later on 18 June. Axiomatically, no
deductions of union subscriptions had been effected.
[3]
At
the dismissal hearing, the appellant raised,
in
limine,
the argument that the workers were not at that time members of AMCU,
because their membership had lapsed by reason of non-payment
of
subscriptions in excess of three months, and therefore AMCU could not
represent them. The foundation for that submission was
an
interpretation placed on several provisions of the constitution of
AMCU by the appellant, and the common cause fact that none
of the
individuals who had been dismissed had yet to pay any subscriptions
to AMCU.
[4]
The
arbitrator accepted the appellant’s contention about the union
constitution and also, that, as a fact, no subscriptions
had been
paid for that period.
Ergo
,
he held that the memberships of the individuals had lapsed. In his
view, the consequence was that AMCU could not represent them.
The
critical passage in the ruling reads:
‘
From the
commencement of the dispute for organisational rights it is clear
that the employer was unwilling to grant these rights.
The union is
bound by its constitution and should have made contingency plans to
secure membership through the period of the dispute
as the
constitution only allows for deductions to be made through remittance
by an employer. The right to automatic deductions
is earned if
parties are members of the council, the is no evidence that AMCU is
party to the council’
[5]
On
review, the Labour Court held that the arbitrator had not properly
grasped the provisions of the Union constitution and, thus,
the
ruling had to be set aside.
[6]
The
Labour court decided the review application on the basis that the
arbitrator approached the enquiry in “the wrong manner”
citing the passage at [21] in the judgment of
Heroldt
v Nedbank (Congress of SA Trade Unions as amicus curiae) (Heroldt)
[2]
for
that proposition
,
a
point addressed more fully hereafter. That decision is one of several
which make up a suite of judgments regurgitating, explaining
and
extrapolating the decision in
Sidumo
and Another v Rustenburg Platinum Mines and Others (Sidumo)
[3]
which laid down the review test: “Is the decision reached by
the commissioner one that a reasonable decision maker could
not
reach“ (The reasonableness test) Whether “reasonableness”
is the appropriate test to be applied to reviewing
the ruling about
interpreting the union constitution is challenged by the appellant
who contends that “correctness”
is the appropriate test
in relation to interpreting such an instrument.
[7]
Both
the arbitrator and the Labour Court articulated the rationale for the
outcome in terms of the
right
of the union
to represent persons. Neither articulated the point that the issue
was also about the
individuals’
rights to choose a union
to represent them.
[8]
Neither
the arbitrator nor the Labour Court addressed the question of whether
an employer has any
locus
standi
to challenge the membership credentials of persons who desire a union
to represent them in disciplinary proceedings before a statutory
arbitration forum; (ie the CCMA or a Bargaining Council forum) The
point was nevertheless argued in the appeal hearing and is addressed
hereafter.
[9]
Accordingly,
four questions arise for consideration, which for convenience are
dealt with in this order:
9.1.
Upon
a proper interpretation of the union constitution, were individual
workers members of AMCU at the relevant time?
9.2.
What
is the review test by which to review a ruling by an arbitrator on
the interpretation of a union constitution?
9.3.
Whose
rights are at issue?
9.4.
What
right, if any, does any employer have to concern itself with the
membership status of individuals who wish to be represented
by a
particular union?
Had membership lapsed?
[10]
In
terms of the constitution of AMCU, a person becomes a member by
lodging an “application for membership” with a branch
secretary which the branch executive accepts. (Clause 7.2) It is
common cause that the putative members cleared this hurdle and
it is
accepted, moreover, no such putative member resigned.
[11]
A
“member” is defined in Clause 37.1 thus:
‘
member -
mean a person prescribed in clause 16.1 of this constitution and/or
any person/employee who have completed the application
for membership
stop order irrespective of whether the membership subscription has
commenced or not.'
The reference to
paragraph 16.1 relates to full-time office-bearers of AMCU and is
irrelevant to this enquiry. Plainly, as to all
other persons, it is
not contemplated that the new member is obliged to pay before the
stop order regime is activated. Nor is it
contemplated that when it
is activated, there might be a sum owing for the interim period
between signing up and the first stop
order deduction. How long that
interim period might be is not restricted.
[12]
Such
a member is subject to the termination of such membership in certain
circumstances. The first circumstances are those contemplated
in
Clause 7.4.2:
‘
Any member
whose contract of employment has been terminated by his employer
his/her membership will not be terminated for one (1)
full year. Such
a member will be exempted from paying subscription to the trade union
until he/she is re-employed.
This text provides for
two happenings. First, a year of subscription-free membership
post-dismissal. Second, post-dismissal, subscription
free membership
until re-employment. Is one or other happening qualified by the reach
of the other? If reemployment occurs two
years later has membership
been preserved? That seems inconsistent with the first happening. The
preferred way to interpret the
text is to reconcile any apparent
anomaly. This can be done by subordinating the second happening to
the first. The upshot would
be that membership is preserved
subscription-free for a maximum of one year, and if the worker is
reemployed earlier, the exemption
to pay then ceases earlier, before
the end of the year. Implicit in these provisions is that payment is
due only whilst employed.
Read thus, businesslike sense is made of
the provisions.
[13]
The
second circumstance which contemplates termination of membership is
in Clause 7.4.3 which provides that :
‘
Membership
shall lapse if a member is in arrears with subscription for three
months’
[14]
The
concept of arrears means simply a failure to pay what is due on time.
Self-evidently, as already seen, an obligation to pay
subscriptions
is linked to employment, and axiomatically the receipt of wages from
which to disburse the sum. Any doubt about that
evaporates when
clause 9.2 is read:
‘
Subscription
fees shall be 1% of the member’s monthly basic salary.’
Significantly, there is
no fixed sum. If unemployed, the member’s subscriptions are 1%
of nought.
[15]
Clause
9.3 provides that:
‘
Stop order
facility will be entered into with all the employers whose employees
have joined AMCU for the purpose of deducting fees.’
This seems to be the only
provision dealing with the regulation of the collection of
subscriptions. Again, it is apparent that payment
is dependent upon
being in receipt of wages.
[16]
Clause
8.2 provides:
‘
Members who
are three months in arrears with their subscription fees forfeit
their membership, any benefit they received from the
trade union will
cease. The member may re-apply for membership by completing new stop
order form, such application will be treated
as new.’
How does this provision
tie in with those already cited? In the first part, it simply
re-articulates the substance of paragraph
7.4.3. The second part
provides an opportunity
to de facto “
resume”
membership without suffering any disability from the lapse, such as,
perhaps, having to pay up the arrears. Of course,
an application
could be refused, subject to a right of appeal. (Clauses 7.2.2 and
7.3)
[17]
Reading
these provisions together points in the direction that AMCU
undertakes to collect the subscriptions and the members’
signing of the authorisation to collect the sum by a stop order is a
full discharge of the member’s obligation to tender
payment.
Were the risk of non-collection through the mechanism of a stop order
not one which the union wished to run, it is astonishing
that no
alternative collection means is provided for.
[18]
These
provisions must be understood in the context of the provisions of the
LRA about the procuring of organisational rights and
in the context
of labour relations dynamics, in which unions recruit members and
have to engage with every employer to establish
a right to enjoy a
stop order facility. Section 13 regulates the procedure to obtain
stop orders; it is elaborate and only commences
once the majority
representative status required by section 14 is shown to the
satisfaction of the employer and if that is not
forthcoming, the
procedure provided in section 21 leading on to conciliation and
maybe, to arbitration, if not a strike. Axiomatically
that may take
time; sometimes a long time, as this very case illustrates.
[4]
[19]
The
notion that members of AMCU, recruited on, say, 1 January, and AMCU
has not by 2 April secured stop order activations from their
employer, forfeit their membership is preposterous. Were it so, an
employer, by the simple tactic of delay, could undermine the
recruitment efforts repeatedly, and “legitimately” claim
that membership is unproven. The union constitution cannot
be
understood in a way that renders recruitment of members by a union to
be susceptible to such a ruse.
[20]
Lastly,
the observations of Lagrange J in
General
Industries workers Union of SA v Maseko and Others
(2015)
38 ILJ 2874 (LC) at [23] which affirmed long standing authority that
the approach to interpreting a constitution of a voluntary
organisation is benevolence, rather than of nit-picking, and ought,
rather, to be aimed at the promotion of convenience and the
preservation of rights, should in my view, be unreservedly endorsed.
[21]
In
my view, the argument that membership had lapsed under the
circumstances addressed, must fail. It is common cause that the union
had recruited workers. That was sufficient for the union to assert
membership. That was sufficient for the workers to assert membership.
The lapse of time brought about by the prevarications of the
appellant, whether meritorious or not, cannot undo the fact of
membership.
What is the test by
which to review a ruling by an arbitrator on the interpretation of
the union constitution?
[22]
The
decisions of arbitrators in the CCMA or Bargaining Council fora, are
usually reviewable by reference to the reasonableness test
derived
from
Sidumo.
This
test, given its very formulation, seems obviously appropriate in
relation to credibility and factual findings, and the value
choices
inherent in determining fairness. However, is it necessarily the
appropriate test to be applied when reviewing a statutory
arbitrator
who is required to interpret a statute, a contract, or, indeed, a
union constitution, all questions of law? The appellant’s
contention is that the test ought to be whether the conclusions
reached were “correct”, rather than “reasonable”.
[23]
Davis
JA, in
DENOSA
v WC MEC Health (DENOSA)
[5]
,
in dealing with a review of an arbitrator’s interpretation of a
public service regulation, had occasion to remark on this
very
aspect, noting the significance of the considerations for reviews
involving errors of law, as distinct from considerations
for reviews
on other grounds, and the appropriateness to the latter category,
rather than to the former, of
Sidumo’s
reasonableness
test. It was unnecessary in
DENOSA
to
make a definitive finding, but on this troublesome question, Davis JA
stated at [20] – [21]:
[20] Since the advent of the
Constitution of the Republic of South Africa Act 108 of 1996 (‘the
Constitution’), the
concept of review is sourced in the
justifications provided for in the Constitution and, in particular,
that courts are given the
power to review every error of law provided
that it is material; that is that the error affects the outcome. See
in particular
City of Johannesburg Metropolitan Municipality v
Gauteng development Tribunal
and Others
2010 (6) SA 182
(CC) at para 91; see also the remarks of Malan J (as he then was)
with regard to the implications of
Hira, supra
in the
constitutional dispensation in
South African Jewish Board of
Deputies v Sutherland N.O and Others
2004 (4) SA 368
(W) at para
27.
[21] To recap, Navsa AJ said in
Sidumo,
at para 105, that the review powers in terms of s 145
‘
must be read to ensure that administrative action by the
CCMA is lawful, reasonable and procedurally fair’.
Given that the section must be interpreted to be in compliance with
the Constitution, it would appear that the concept of
the error of
law is relevant to the review of an arbitrator’s decision
within the context of the factual matrix as presented
in the present
dispute; that
is a material error of law committed by an
arbitrator may, on its own without having to apply the exact
formulation set out in Sidumo,
justify a review
and setting aside
of the award depending on the facts as established in the particular
case. (emphasis supplied)
[24]
The
Labour Court’s remark about the arbitrator deciding the matter
in the wrong way, derives from
Heroldt
where, in the course of distinguishing the different views about
irregularities, or defects as contemplated by section 145 of the
LRA,
[6]
expressed in the
judgments of the majority and the minority in
Sidumo
,
it was stated that:
‘
[21] That
does not mean that a latent irregularity, as Schreiner J originally
used that term in the
Goldfield
Investments
case, is not a gross irregularity within the meaning of s
145(2)
(a)
(ii
).
It is, but only in the limited sense mentioned earlier, where the
decision maker has undertaken the wrong enquiry or undertaken
the
enquiry in the wrong manner
.
That is well illustrated by the facts of that case. A magistrate
seized with a valuation appeal was required under the relevant
legislation to conduct a fresh enquiry into the question of the
proper value of the property. Instead he refused to consider the
evidence of value tendered by the appellant and approached the matter
on the basis that he could only amend the valuation
if it was clearly
erroneous. In the circumstances he did not enter upon the correct
enquiry and his decision was set aside.’(emphasis
supplied)
[25]
Picking
up on that dictum, the Labour Court held that the ruling was
reviewable because the arbitrator failed to apply his mind
to the
relevant issues and thus acted in the wrong way: ie, he did not
enquire into what was the proper interpretation of the document
in
the context of the LRA and labour relations practice, in the manner
stipulated in the judgment of Wallis JA in
Natal
joint Municipal Pension Fund v Endumeni Municipality
[7]
The
thrust of the Labour Court’s judgment is that upon a proper
construction of the AMCU constitution, a person who signs
the member
application form is and remains a member. The provision for automatic
lapse of membership, if three months in arrears
with subscriptions,
is triggered only after a stop order facility is put into operation
and the non-payment occurs thereafter,
because the sole method of
collecting subscriptions is by stop order. Noteworthy is the finding
by the arbitrator, himself that
the only mechanism provided for in
the constitution to collect subscriptions was
via
stop orders, but notwithstanding that finding, he reached a
conclusion about arrears plainly at odds with it.
[26]
Is
a “reasonable” arbitrator entitled to be wrong on the
law? In
Heroldt,
the
court held:
‘
[25] In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect
in the
proceedings falls within one of the grounds in s 145(2)
(a)
of the LRA. For a defect in the conduct of the proceedings to
amount to a gross irregularity as contemplated by s 145(2)
(a)
(ii),
the arbitrator must have misconceived the nature of the enquiry or
arrived at an unreasonable result.
A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the arbitrator
.
Material errors of fact, as well as the weight and relevance to be
attached to particular facts, are not in and of themselves
sufficient
for an award to be set aside, but are only of any consequence if
their effect is to render the outcome unreasonable.’
(Emphasis
supplied)
[27]
Part
of the “material” alluded to in
Heroldt
must
be the text of the constitution which, logically, must be properly
read and properly understood. Davis JA in
DENOSA
postulated that the “law” is a dimension of the factual
matrix (in the peculiar sense used to circumscribe what it
is to
which an arbitrator must apply his mind.) When the arbitrator read
the document, he misunderstood its objective meaning.
Can it be said
that such a finding caused a wrong, and axiomatically, therefore an
unreasonable,
result as contemplated by
Sidumo,
more
especially if proper weight is to be given to the requirement, among
others, that decisions be ‘lawful’ mentioned
by Navsa AJ
in
Sidumo
?
[28]
In
Telcordia
Technologies v Telkom,
[8]
the
court held that in a private arbitration, subject to the
Arbitration
Act 42 of 1965
, there was no room to complain that the arbitrator was
wrong on the interpretation of a contract, and provided the
arbitrator understood
the task presented to him, such an error was
irreparable on review. However, in
Hira
v Booysen (Hira),
[9]
Corbett
CJ famously held:
‘
To sum up,
the present-day position in our law in regard to common-law review
is, in my view, as follows:
(1)
Generally speaking, the non-performance or wrong performance of a
statutory duty or
power by the person or body entrusted with the duty
or power will entitle persons injured or aggrieved thereby to
approach the
Court for relief by way of common-law review. (See the
Johannesburg Consolidated Investment
case
supra
at
115.)
(2)
Where the duty/power is essentially a decision-making one and the
person or body concerned
(I shall call it 'the tribunal') has taken a
decision, the grounds upon which the Court may, in the exercise of
its common-law
review jurisdiction, interfere with the decision are
limited. These grounds are set forth in the
Johannesburg Stock
Exchange
case
supra
at 152A-E.
(3)
Where the complaint is that the tribunal has committed a material
error of law, then the reviewability of the decision will depend,
basically, upon whether or not the Legislature intended the tribunal
to have exclusive authority to decide the question of law
concerned.
This is a matter of construction of the statute conferring the power
of decision
.
(4)
Where the tribunal exercises powers or functions of a purely judicial
nature, as for
example where it is merely required to decide whether
or not a person's conduct falls within a defined and objectively
ascertainable
statutory criterion, then
the Court will be slow to
conclude that the tribunal is intended to have exclusive jurisdiction
to decide all questions, including
the meaning to be attached to the
statutory criterion, and that a misinterpretation of the statutory
criterion will not render
the decision assailable by way of
common-law review.
In a particular case it may appear that the
tribunal was intended to have such exclusive jurisdiction, but then
the legislative
intent must be clear.
(5)
Whether or not an erroneous interpretation of a statutory criterion,
such as is referred
to in the previous paragraph (ie where the
question of interpretation is not left to the exclusive jurisdiction
of the tribunal
concerned), renders the decision invalid depends upon
its materiality. If, for instance, the facts found by the tribunal
are such
as to justify its decision even on a correct interpretation
of the statutory criterion, then normally (ie in the absence of some
other review ground) there would be no ground for interference.
Aliter
, if applying the correct criterion, there are no facts
upon which the decision can reasonably be justified. In this latter
type
of case it may justifiably be said that, by reason of its error
of law, the tribunal 'asked itself the wrong question', or 'applied
the wrong test', or 'based its decision on some matter not prescribed
for its decision', or 'failed to apply its mind to the relevant
issues in accordance with the behests of the statute'; and that as a
result its decision should be set aside on review.
(6)
In cases where the decision of the tribunal is of a discretionary
(rather than purely
judicial) nature, as for example where it is
required to take into account considerations of policy or
desirability in the general
interest or where opinion or estimation
plays an important role, the general approach to ascertaining the
legislative intent may
be somewhat different, but it is not necessary
in this case to expand on this or to express a decisive view.’
[10]
(Emphasis supplied)
[29]
In
this case, it seems to me problematic to construe the conduct of
arbitrator as not applying his mind to the task at hand. He
knew he
had to interpret the constitution. He just got it wrong. This looks
more like the situation contemplated in the third point
made by
Corbett CJ in
Hira
.
Does the LRA contemplate that an arbitrator in the CCMA or in a
bargaining council forum, both statutory roles, has the last word
on
the proper interpretation of an instrument? If it is, the necessary
implication would have be that a patently wrong interpretation
would
have to be upheld on review. Such a result, in my view, would be
absurd.
[30]
In
my view, there is much to be said for the proposition that an
arbitrator in the CCMA or in a Bargaining Council Forum who wrongly
interprets an instrument commits a reviewable irregularity as
envisaged by
Section 145
of the LRA; ie, a reasonable arbitrator does
not get a legal point wrong. If so, the reasonableness test is
appropriate to both
value judgments and legal interpretations. If
not, ‘correctness’ as a distinct test is necessary to
address such matters.
However, on either basis, the ruling in this
case must be set aside.
[31]
On
that premise, it is unnecessary to take a firm view on whether there
are two tests or one.
Whose rights are at
stake?
[32]
Both
the arbitrator and the Labour Court, on the premise of the parties’
presentation of their cases, treated the matter as
if the
representation issue was solely about the union’s
right
to “represent”
its members. However, it is also, and moreover, primarily, concerned
with the
rights
of the individual workers
who were parties to the dispute before the forum, to
choose
their representatives
.
[33]
The
rules of the CCMA regulate representation of parties in misconduct
proceedings before the CCMA. There is nothing before the
court to
suggest that the Bargaining Council did or could apply different
norms.
[34]
CCMA
Rule 25(1)(a)(ii)
, stipulates that a person who is a party to a
dispute, may be represented in conciliation by an office bearer,
official or
member of that person’s registered union.
Rule
25(1)(b)
ii extends that right that to arbitration proceedings. These
provisions say nothing about a unions’ right to represent their
members in such proceedings.
[35]
Certainly,
when a union demands organisational rights which accord to it a
particular status as a collective bargaining agent
vis
à vis
an employer, it asserts and must establish it, itself, has a right to
speak for workers by proving they are its members;
sections 11
-
22
of
the LRA regulate that right. But in dismissal proceedings (which,
plainly, are not about collective bargaining) before the CCMA
or a
Bargaining Council forum, the union is not (usually) the party, but
rather the worker is the party. It is the worker’s
right to
choose a representative, subject to restrictions on being represented
by a legal practitioner,
[11]
itself subject to a proper exercise of a discretion to allow such
representation. When an individual applicant wants a particular
union
to represent him in a dismissal proceeding, the only relevant
question is that
worker’s
right
to choose that union.
[36]
Typically,
when a union demands to represent a member in dismissal proceedings
it asserts its members’ rights not its own.
However, a union
can become a party to its member’s dispute if it chooses to do
so. This is optional.
Section 200
of the LRA regulates union rights
of “representation”. It provides:
‘
(1) A
registered trade union or registered employers' organisation may act
in any one or more of the following capacities in any
dispute to
which any of its members is a party-
(a) in its own
interest;
(b) on behalf
of any of its members;
(c) in the
interest of any of its members.
(2) A registered trade union or a
registered employers' organisation is entitled to be a party to any
proceedings in terms of this
Act if one or more of its members is a
party to those proceedings.’
However, none of the
three categories applies when a union official simply steps up to
represent a member when the
member is the relevant party
in
dismissal proceedings. Section 200 addresses the position when the
union itself becomes a party
to serve one or more of the three
types of issues. The union may in terms of section 200(1)(b), “enter
the dispute”
of an individual member, by becoming a party in
its own right, but it does not need to rely on section 200(1) (b) to
“represent”
individual parties; it can do so on the basis
of the individual’s rights as provided in CCMA rule 25. The
utility of section
200(1)(b) is to facilitate circumstances where
collective action is appropriate.
[37]
In
NUM (obo Mabote) v CCMA (Mabote),
[12]
the
Labour court (Steenkamp J) recognised that section 200 and CCMA Rule
25(1), found union rights and individual rights. On appeal,
in
Kalahari
Country Club v NUM (2015) 36 ILJ 1210 (LAC) at [1])
the
decision was upheld. The distinction between the distinct roles of a
union is, accidently, illustrated by the controversy that
arose in
County
Fair Foods (Pty) Ltd v CCMA
(2003)
24 ILJ 355 (LAC) (
County
Fair)
.
A worker was dismissed. The dispute was referred to the CCMA by union
A, in its name, as it could do in terms of section 200(1)(b).
Later
union A withdrew, but the worker presented himself with union B as
his representative, who sought to have itself substituted
for union
A. The employer argued that the dispute was only between it and union
A. The court held that substance had to prevail
over form: the
dispute was about the worker’s dismissal and it mattered not
which union “represented” him. Plainly,
what triumphed
was the worker’s choice of his representative.
[38]
In
this matter, AMCU had become a party in its own right, but its
presence could not have been limited to that role alone.
What is an employer’s
locus standi
to concern itself with the union membership
status of an employee?
[39]
Although
this matter can be decided on the interpretation issue alone, as did
the Labour Court, the conduct of the appellant is
so egregious that
it is appropriate to deal with the tactic adopted by it, ie to
challenge the right of its dismissed employees
to demand in dismissal
proceedings before an arbitration forum to be represented by a union
of their choice of which they claimed
to be members.
[40]
Bluntly,
what business is it of an employer, in such circumstances, to concern
itself with whether membership dues are up to date
or any other
aspect of the relationship between individual employees and their
union? In my view, there is no basis at all.
[41]
On
the facts of this case, the individuals claimed to be members and the
union claimed them as members. Assuming that the employer’s
challenge that the individuals were not in good standing were to be
true, surely the choice of the union to elect not to cancel
the
membership or enforce specific performance is one which it can make
without regard to any third party? No creditor is by law
obliged to
cancel a contract because the debtor fails to comply with the terms
of the contract. Moreover, it has been held by Basson
J in
Transport
and General Workers Union and Others v Coin Security Group (Pty) Ltd
(2001)
22 ILJ 968 (LC) at [160] – [161] that an employee who appears
before the Labour Court represented by a union pursuant
to Section
161(c) of the LRA, needs not have been a member at the time of that
employee’s dismissal. If that be so, the relationship
between
union and a purported member in such proceedings is not dependent, in
the least, on a history of membership, a point also
latent in the
decision in
County
Fair (Supra)
[42]
Moreover,
except as regards the need for a union to prove membership for
collective bargaining purposes, the relationship between
a union and
its members is a private matter. To interfere with the private
contractual relationship of other persons, a stranger
would have to
demonstrate some sort of delictual harm. None exists to justify the
appellant seeking to pierce the veil of AMCU’s
internal affairs
in relation to the dismissal dispute. If regard be had, for example,
to the requirements for an interdict, the
appellant, on these facts,
can demonstrate neither a right nor a harm. The appellant’s
legitimate interest in the validity
of membership for another
purpose, relating to it incurring an obligation to accord AMCU a
representative status, is quite distinct
from any legitimate concerns
it might conceivably have in relation to arbitration proceedings
about misconduct.
[43]
Moreover,
a constitution is a no more than contract between an institution and
its members. Provisions of such a contract/constitution
relating to
the termination of membership by lapsing, are conditions for the
benefit of one party only, ie the union. The union
ought to be able,
at its election, to decide whether to invoke them or not. Excluding
the possibility of a union not enforcing
its rights for an extraneous
ulterior purpose, the union ought not to be obliged to invoke its
rights, least of all mechanically.
Even in such circumstances
involving ulterior motives, it would still be a complaint that only
fellow members would have the right
to raise, not a third party.
[44]
In
Mabote
,
Steenkamp J, in the course of addressing the admittedly
distinguishable situation where an employer had tried to block
workers
from being represented by a union on the grounds that the
union’s constitution’s limited it to organising in a
sector
other than that in which the employer operated, held at [26]
–[28]:
‘
[26] What,
then, to make of the restriction in s 4(1)
(b)
of the LRA that an employee may join a trade union 'subject to its
constitution'?
[27] That restriction appears to me to
regulate the relationship between the trade union and its members
inter se. It is for the
trade union to decide whether or not to
accept an application for membership and whether or not that member
is covered by
its constitution. It could not have been the intention
of the legislature unduly to restrict the right to representation by
a trade
union to the extent that it is up to a third party —
such as an employers' organization — to deny a worker that
right, based on the trade union's constitution.
[28] The NUM constitution makes it
clear that eligibility for membership is 'subject to the approval of
the branch committee which
has jurisdiction'. It is up to the union
and its branch committee to deal with any challenge to membership. It
is not for an employer
to interfere with the internal decisions
of a trade union as to whom to allow to become a member.’
[45]
I
concur wholly with the view that “it is not for an employer to
interfere with the internal decisions of a trade union as
to whom to
allow to become a member” and such dictum is equally applicable
to the circumstances of this case.
Costs
[46]
The
question of costs was contested. The Labour Court granted costs to
AMCU. It has been argued that no prayer for costs was made
by AMCU.
This should unsuit it, says the appellant.
[47]
In
my view, the discretion to order costs is not fettered by what the
parties seek.
[13]
Whether or
not to grant costs is a decision driven by the specific circumstances
of the case. The prospects of a continuing relationship
is a common
influential factor in not granting costs. However, that is not an
invariable, especially where one or other side had
conducted itself
inappropriately.
[48]
In
this matter, a patently flawed award was taken on review and set
aside. The appeal followed to defend that patently flawed award.
The
point taken by the appellant at the arbitration was, at most,
dilatory and calculated to protract litigation, harry AMCU and
drive
individual workers to litigate without assistance. Expeditious
dispute resolution of a dispute is not promoted by such conduct,
and
ought not to be tolerated. Whether the appellant was
bona
fide
in its belief in the point taken or not is unimportant; the substance
of the point and its effect is what must be weighed. A litigant
who
behaves like this and consumes the time of both the Labour Court and
of this Court cannot expect such conduct to go unremarked
upon. Had a
submission been made on behalf of AMCU for attorney and client costs,
such submission would have been seriously considered.
In my view, the
Labour Court’s award of costs should stand and the appellant
should bear the costs to the appeal too.
The Order
[49]
I
make this order:
49.1.
The
appeal is dismissed.
49.2.
The
order of the Labour Court is confirmed.
49.3.
The
appellant shall bear the costs of the appeal.
______________
Sutherland
JA
Tlaletsi AJP and Ndlovu
JA concur in the judgment of Sutherland JA
APPEARANCES:
FOR THE APPELLANT:
Adv G Van der Westhuizen,
Instructed by Lancaster
Kungoane Attorneys.
FOR THE FIRST AND SECOND
RESPONDENTS:
Adv S Collet
Instructed by Larry Dave
inc Attorneys.
[1]
LRA Sections:
12 Trade union access to
workplace
(1) Any office-bearer or official of
a representative trade union is entitled to enter the employer's
premises in order to recruit
members or communicate with members, or
otherwise serve members interests.
(2) A representative trade union is
entitled to hold meetings with employees outside their working hours
at the employer's premises.
(3) The members of a representative
trade union are entitled to vote at the employer's premises in any
election or ballot contemplated
in that trade union's constitution.
(4)
The rights conferred by this section are subject to any conditions
as to time and place that are reasonable and necessary
to safeguard
life or property or to prevent the undue disruption of work.
13 Deduction of trade union
subscriptions or levies
(1) Any employee who is a member of a
representative trade union may authorise the employer in writing to
deduct subscriptions
or levies payable to that trade union from the
employee's wages.
(2) An employer who receives an
authorisation in terms of subsection (1) must begin making the
authorised deduction as soon as
possible and must remit the amount
deducted to the representative trade union by not later than the
15th day of the month first
following the date each deduction was
made.
(3) An employee may revoke an
authorisation given in terms of subsection (1) by giving the
employer and the representative trade
union one month's written
notice or, if the employee works in the public service, three
months' written notice.
(4) An employer who receives a notice
in terms of subsection (3) must continue to make the authorised
deduction until the notice
period has expired and then must stop
making the deduction.
(5) With each monthly remittance, the
employer must give the representative trade union-
(a)
a list of the names of every member from whose wages the employer
has made the deductions
that are included in the remittance;
(b)
details of the amounts deducted and remitted and the period to which
the deductions
relate; and
(c)
a copy of every notice of revocation in terms of subsection (3).
[2]
(2013) 34 ILJ 2795
(SCA).
[3]
Ltd (2007) 28 ILJ
2405 (CC),
Sidumo
,
per Navsa AJ, at [110]: ‘To summarize,
Carephone
held that s 145 of the LRA was suffused by the then constitutional
standard that the outcome of an administrative decision should
be
justifiable in relation to the reasons given for it. The better
approach is that s 145 is now suffused by the constitutional
standard of reasonableness. That standard is the one explained in
Bato
Star
:
Is the decision reached by the commissioner one that a reasonable
decision maker could not reach? Applying it will give effect
not
only to the constitutional right to fair labour practices, but also
to the right to administrative action which is lawful,
reasonable
and procedurally fair.’
[4]
A reading of the
relevant provisions is all that is necessary to illustrate the
burdensomeness of the process:
Section
13 is cited above.
Section14:
trade union representatives
(1) In this section, 'representative
trade union' means a registered trade union, or two or more
registered trade unions acting
jointly, that have as members the
majority of the employees employed by an employer in a workplace.
(2) In any workplace in which at
least 10 members of a representative trade union are employed, those
members are entitled to
elect from among themselves-
(a)
if there are 10 members of the trade union employed in the
workplace, one trade
union representative;
(b)
if there are more than 10 members of the trade union employed in the
workplace,
two trade union representatives;
(c)
if there are more than 50 members of the trade union employed in the
workplace,
two trade union representatives for the first 50 members,
plus a further one trade union representative for every additional
50 members up to a maximum of seven trade union representatives;
(d)
if there are more than 300 members of the trade union employed in
the workplace,
seven trade union representatives for the first 300
members, plus one additional trade union representative for every
100 additional
members up to a maximum of 10 trade union
representatives;
(e)
if there are more than 600 members of the trade union employed in
the workplace,
10 trade union representatives for the first 600
members, plus one additional trade union representative for every
200 additional
members up to a maximum of 12 trade union
representatives; and
(f)
if there are more than 1 000 members of the trade union employed in
the workplace,
12 trade union representatives for the first 1 000
members, plus one additional trade union representative for every
500 additional
members up to a maximum of 20 trade union
representatives.
(3) The constitution of the
representative trade union governs the nomination, election, term of
office and removal from office
of a trade union representative.
(4) A trade union representative has
the right to perform the following functions-
(a)
at the request of an employee in the workplace, to assist and
represent the employee
in grievance and disciplinary proceedings;
(b)
to monitor the employer's compliance with the workplace-related
provisions of this
Act, any law regulating terms and conditions of
employment and any collective agreement binding on the employer;
(c)
to report any alleged contravention of the workplace-related
provisions of this
Act, any law regulating terms and conditions of
employment and any collective agreement binding on the employer to-
(i)
the employer;
(ii)
the representative trade union; and
(iii)
any responsible authority or agency; and
(d)
to perform any other function agreed to between the representative
trade union and
the employer.
(5) Subject to reasonable conditions,
a trade union representative is entitled to take reasonable time off
with pay during working
hours-
(a)
to perform the functions of a trade union representative; and
(b)
to be trained in any subject relevant to the performance of the
functions of a trade
union representative
Section 21: Exercise of rights
conferred by this Part 3
(1) Any registered trade union may
notify an employer in writing that it seeks to exercise one or more
of the rights conferred
by this Part in a workplace.
(2) The notice referred to in
subsection (1) must be accompanied by a certified copy of the trade
union's certificate of registration
and must specify-
(a)
the workplace in respect of which the trade union seeks to exercise
the rights;
(b)
the representativeness of the trade union in that workplace, and the
facts relied
upon to demonstrate that it is a representative trade
union; and
(c)
the rights that the trade union seeks to exercise and the manner in
which it seeks
to exercise those rights.
(3) Within 30 days of receiving the
notice, the employer must meet the registered trade union and
endeavour to conclude a collective
agreement as to the manner in
which the trade union will exercise the rights in respect of that
workplace.
(4) If a collective agreement is not
concluded, either the registered trade union or the employer may
refer the dispute in writing
to the Commission.
(5) The party who refers the dispute
to the Commission must satisfy it that a copy of the referral has
been served on the other
party to the dispute.
(6) The Commission must appoint a
commissioner to attempt to resolve the dispute through conciliation.
(7) If the dispute remains
unresolved, either party to the dispute may request that the dispute
be resolved through arbitration.
(8) If the unresolved dispute is
about whether or not the registered trade union is a representative
trade union, the commissioner-
(a)
must seek-
(i)
to minimise the proliferation of trade union representation in a
single workplace and,
where possible, to encourage a system of a
representative trade union in a workplace; and
(ii)
to minimise the financial and administrative burden of requiring an
employer to
grant organisational rights to more than one registered
trade union;
(b)
must consider-
(i)
the nature of the workplace;
(ii)
the nature of the one or more organisational rights that the
registered trade union
seeks to exercise;
(iii)
the nature of the sector in which the workplace is situated;
(iv)
the organisational history at the workplace or any other workplace
of the employer;
and
(v)
the composition of the work-force in the workplace taking into
account the extent
to which there are employees assigned to work by
temporary employment services, employees employed on fixed-term
contracts, part-time
employees or employees in other categories of
non-standard employment; and
[Sub-para. (v) added by s. 2 (a) of
Act 6 of 2014.]
(c)
may withdraw any of the organisational rights conferred by this Part
and which are
exercised by any other registered trade union in
respect of that workplace, if that other trade union has ceased to
be a representative
trade union.
(8A) Subject to the provisions of
subsection (8), a commissioner may in an arbitration conducted in
terms of subsection (7) grant
a registered trade union that does not
have as members the majority of employees employed by an employer in
a workplace-
(a)
the rights referred to in section 14, despite any provision to the
contrary in that
section, if-
(i)
the trade union is entitled to all of the rights referred to in
sections 12, 13 and 15
in that workplace; and
(ii)
no other trade union has been granted the rights referred to in
section 14 in that
workplace.
(b)
the rights referred to in section 16, despite any provision to the
contrary in that
section, if-
(i)
the trade union is entitled to all of the rights referred to in
sections 12, 13, 14 and
15 in that workplace; and
(ii)
no other trade union has been granted the rights referred to in
section 16 in that
workplace.
[Sub-s. (8A) inserted by s. 2 (b) of
Act 6 of 2014.]
(8B) A right granted in terms of
subsection (8A) lapses if the trade union concerned is no longer the
most representative trade
union in the workplace.
[Sub-s. (8B) inserted by s. 2 (b) of
Act 6 of 2014.]
(8C) Subject to the provisions of
subsection (8), a commissioner may in an arbitration conducted in
terms of subsection (7) grant
the rights referred to in sections 12,
13 or 15 to a registered trade union, or two or more registered
trade unions acting jointly,
that does not meet thresholds of
representativeness established by a collective agreement in terms of
section 18, if-
(a)
all parties to the collective agreement have been given an
opportunity to participate
in the arbitration proceedings; and
(b)
the trade union, or trade unions acting jointly, represent a
significant interest,
or a substantial number of employees, in the
workplace.
[Sub-s. (8C) inserted by s. 2 (b) of
Act 6 of 2014.]
(8D) Subsection (8C) applies to any
dispute which is referred to the Commission after the commencement
of the Labour Relations
Amendment Act, 2014, irrespective of whether
the collective agreement contemplated in subsection (8C) was
concluded prior to
such commencement date.
[Sub-s. (8D) inserted by s. 2 (b) of
Act 6 of 2014.]
(9) In order to determine the
membership or support of the registered trade union, the
commissioner may-
(a)
make any necessary inquiries;
(b)
where appropriate, conduct a ballot of the relevant employees; and
(c)
take into account any other relevant information.
(10) The employer must co-operate
with the commissioner when the commissioner acts in terms of
subsection (9), and must make available
to the commissioner any
information and facilities that are reasonably necessary for the
purposes of that subsection.
(11) An employer who alleges that a
trade union is no longer a representative trade union may apply to
the Commission to withdraw
any of the organisational rights
conferred by this Part, in which case the provisions of subsections
(5) to (10) apply, read
with the changes required by the context.
(12) If a trade union seeks to
exercise the rights conferred by Part A in respect of employees of a
temporary employment service,
it may seek to exercise those rights
in a workplace of either the temporary employment service or one or
more clients of the
temporary employment service, and if it
exercises rights in a workplace of a client of the temporary
employment service, any
reference in Chapter III to the employer's
premises must be read as including the client's premises.
[5]
Unreported, 12 May
2016 CA 17/2014.
[6]
LRA section
145(2): A defect referred to in subsection (1), means-
(a)
that the commissioner-
(i)
committed misconduct in relation to the duties of the commissioner
as an arbitrator;
(ii)
committed a gross irregularity in the conduct of the arbitration
proceedings;
or
(iii)
exceeded the commissioner's powers; or
(b)
that an award has been improperly obtained.
[7]
2012 (4) SA 593
(SCA) at para 18.
Endumeni
At para 18 ‘…. The present state of the law can be
expressed as follows: Interpretation is the process of attributing
meaning to the words used in a document, be it legislation, some
other statutory instrument, or contract, having regard to the
context provided by reading the particular provision or provisions
in the light of the document as a whole and the circumstances
attendant upon its coming into existence. Whatever the nature of the
document, consideration must be given to the language used
in the
light of the ordinary rules of grammar and syntax; the context in
which the provision appears; the apparent purpose to
which it is
directed and the material known to those responsible for its
production. Where more than one meaning is possible
each possibility
must be weighed in the light of all these factors. The process is
objective, not subjective. A sensible meaning
is to be preferred to
one that leads to insensible or unbusinesslike results or undermines
the apparent purpose of the document.
Judges must be alert to, and
guard against, the temptation to substitute what they regard as
reasonable, sensible or businesslike
for the words actually used. To
do so in regard to a statute or statutory instrument is to cross the
divide between interpretation
and legislation; in a contractual
context it is to make a contract for the parties other than the one
they in fact made. The
'inevitable point of departure is the
language of the provision itself', read in context and having regard
to the purpose of
the provision and the background to the
preparation and production of the document.’
[8]
2007(3) SA 266
(SCA).
[9]
1992 (4) SA 69
(A).
[10]
At 93A-94A.
[11]
CCMA Rule 25
(1)(c).
[12]
(2013) 34 ILJ 3296
(LC
)
at para 30.
[13]
See: Clifford
Harris (Pty) Ltd v SG Building Equipment (Pty) Ltd
1980 (2) SA 141
(T) at 152, where Nicholas J, relying on the venerable authority of
Curlewis J writing for the Full Bench in Sing v Sing
1911 TPD 1034
at 1038-1039 held that the absence of a payer for costs did not mean
a successful party could not be awarded costs.