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[2016] ZALAC 39
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Plastic Converters Association of South Africa (PCASA) v National Union of Mineworkers Union of South Africa and Others (JA112/14) [2016] ZALAC 39; (2016) 37 ILJ 2815 (LAC) (6 July 2016)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA112/14
In
the matter between:
PLASTIC
CONVERTERS ASSOCIATION
OF
SOUTH AFRICA (PCASA) obo
MEMBERS Appellant
and
NATIONAL
UNION OF METALWORKERS
UNION
OF SOUTH
AFRICA First
Respondent
METAL
AND ELECTRICAL WORKERS
OF
SOUTH
AFRICA Second
Respondent
CHEMICAL
ENERGY PAPER PRINTING
WOOD
& ALLIED WORKERS UNION OF
SOUTH
AFRICA
(CEPPWAWU) Third
Respondent
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL Fourth
Respondent
Heard:
10 March 2016
Delivered:
06 July 2016
Summary:
Membership
of an employer’s organisation
to a bargaining council – union contending that employer’s
organisation not admitted
as a member of the bargaining council and
consequently does not have
locus
standi
to bring an application to
declare strike unprotected and associated relief – employer’s
organisation contending that
a negotiation forum for the plastic
sector (PNF) falling within the bargaining council (MEIBC) has been
established--—contending
that the PNF is an exclusive forum for
collective bargaining for the plastic sector within MEIBC..
On
the issue of membership Court finding that the overwhelming evidence
showed that employer’s organisation was admitted as
a member
and Secretary General of bargaining council confirming approval and
congratulating it – employer’s organisation
invited as
observer at various meetings of the bargaining council pending
determination and allocation of seats. Labour Court’s
finding that employer’s organisation not properly admitted as a
member of the bargaining council unsustainable.
Regarding
the PNF as the exclusive forum for collective bargaining for the
plastic industry within the MEIBC, Court finding that
the MANCO of
MEIBC had duly adopted the terms of reference to the effect that the
PNF was the sole forum to engage in respect of
any matter related to
the plastic sector – that the adoption shall stand until
rescinded or set aside in court – Labour
Court erring in
finding otherwise. Appeal upheld with costs.
Coram:
Tlaletsi DJP, Davis
et
Musi JJA
JUDGMENT
TLALETSI
DJP
[1]
This is an appeal against the whole
judgment and order of the Labour Court (per Lagrange J) in which it
dismissed an urgent application
brought by the appellant against the
respondents for interdictory and declaratory relief. What triggered
the dispute was the strike
action embarked upon by employees in the
broader metal and engineering industry within the Metal and
Engineering Industries Bargaining
Council (MEIBC). The core issue for
determination was the status of that strike action in relation to
employers in the plastic
industry, including the appellant’s
members. The appellant held the view that the aforesaid strike action
was unprotected
vis-à-vis
such employees because bargaining in that sector was required to take
place in the newly established Plastics Negotiating Forum
(‘the
PNF’). The first respondent, however, contended to the
contrary. The application in the court
a
quo
was opposed by the first and second
respondents. The fourth respondent elected to abide by the decision
of the court. However,
an affidavit was filed on its behalf by its
General Secretary with a view to clarify certain matters addressed in
the affidavit.
The appeal is opposed by the first respondent only.
[2]
Most
of the facts that led to the dispute are largely common cause or not
disputed. The first to third respondents are trade unions
duly
registered in terms of s95 of the Labour Relations Act
[1]
(“the Act”).The fourth respondent is the MEIBC, which is
duly registered in terms of s29 of the Act. Its registered
scope is
in respect of a number of industries, that includes the iron, steel,
engineering and metallurgical industries, the electrical
engineering
industry, the lift escalator industry and the plastics industry. The
unions referred to above are members of the MEIBC.
[3]
The
appellant is an employer’s organisation
[2]
representing employers who operate in the plastic industry within the
registered scope of the MEIBC. It is not disputed that for
years, the
appellant was not satisfied with the bargaining arrangement within
the MEIBC that affected it and its employees. Its
preference was for
the appellant and its employees not to be bungled up with other
industries for bargaining purposes, but to have
a separate
negotiating chamber within the MEIBC solely for the plastic industry.
It is fair to say that the appellant envied the
existing arrangement
relating to the lift and escalator industry, which though falling
under the MEIBC, had a separate negotiating
chamber where collective
agreements governing the terms and conditions of employment for
employers and employees in that industry
were negotiated and
concluded.
[4]
During June 2008, the parties to the
MEIBC concluded a collective agreement in terms of which it was
inter
alia
agreed, that the parties confirm their in –principle commitment
to the establishment of a Plastic Chamber under the auspices
of the
MEIBC and that the parties will further agree on the modalities for
the process and timeframe to complete the establishment
of the said
Plastic Chamber. However, according to the appellant, insufficient
efforts were being made to establish the aforesaid
separate chamber
by other parties to the collective agreement. In protest, the
appellant terminated its membership of the MEIBC
with effect from 1
February 2011.
[5]
Following the departure of the
appellant from the MEIBC, the Registrar of Labour Relations published
a notice in the Government
Gazette notifying interested parties that
he was commencing a process of varying the registered scope of the
MEIBC. The main reason
for such a process was that the Registrar had
formed a
prima facie
view
that the MEIBC was “
no longer
representative of the Plastic Industry in South Africa
”.
In due course, before making a final decision on his intention to
vary the registered scope of the MEIBC, the Registrar
initiated a
facilitation process aimed at reaching an agreement between the
appellant and the first respondent (NUMSA), which appeared
to be
opposed to the establishment of a separate chamber for the plastic
Industry.
[6]
On
23 May 2012, NEDLAC
[3]
also gave
its input, by expressing inter
alia
,
that a negotiated settlement should be further pursued. It further
observed that it was apparent that there was a mutual desire
by those
concerned to establish a separate chamber under the auspices of the
MEIBC and “
such
a Chamber should establish a separate wage schedule for the
sub-sector and commence negotiation on the content of such a schedule
in order to accommodate the particular economic conditions facing
employers and employees in the sub-sector”
.
NEDLAC recommended that the MEIBC be encouraged to give effect to the
agreement concluded by the parties to establish a separate
chamber
for the plastic industry at its earliest convenience.
[7]
It
is common cause that a mediation process involving the parties to the
MEIBC ensued. Such process culminated in the parties, on
16 August
2013, recording a unanimous written recommendation that was to be
tabled at the MEIBC’s MANCO
[4]
meeting on 10 September 2013. The recommendation was couched in the
following terms:
‘
1.
The PCA (SA) will submit its application to become a member of the
MEIBC by no later than 3 September 2013 for consideration
by the
MEIBC’s MANCO on 10 September 2013.
2. The status quo with
regards to the MEIBC’s jurisdiction over plastics remains.
3. The MEIBC’s
MANCO which will convene on 10 September 2013 will establish a
Plastics Negotiating Forum (PNF) which will
be accountable to the
MANCO.
The MANCO will authorize
the convening of the first PNF meeting within 3 weeks of the MANCO
meeting of 10 September 2013.
The first meeting of the
PNF will confine itself to establishing terms of reference,
participants and house-keeping rules.
The first meeting of the
PNF will be convened under the auspices of the MEIBC and will be
independently facilitated.
4. Collective Bargaining
between the parties within the Plastics Negotiating Forum will take
place within the constitutional requirements
and structure of the
MEIBC.
5. Any amendments to
terms and conditions of employment including matters relating to
future bargaining arrangements will be a product
of collective
bargaining.’
[8]
On 2 September 2013, the appellant,
in compliance with clause 1 of the recommendation submitted its
application for membership of
the MEIBC. In the said application, the
appellant inter
alia
expressed a view that the application for membership is brought on
the clear understanding that the “
forum
”
referred to in clause 3, 4, and 5 of the recommendation to the MANCO
is a dispensation for the Plastic Industry; that the
“
forum
”
will be operating no different to the type of arrangement the MEIBC
currently have in place across “
many
so-called House Agreement companies including the Lift Engineering
Industry Agreement
”; and that
such a “
Forum
”
should commence negotiation to accommodate the particular economic
conditions facing employers and employees in the Plastic
Industry.
[9]
It is common cause that MANCO met on
10 September 2013. The recommendation referred to above was among the
items for consideration.
The minutes of the meeting reflect that a
proposal was made by LEIA’s representative for the adoption of
the recommendation.
The proposal was supported by Solidarity’s
representative and the motion was agreed to. It is significant to
note that the
LEIA’s representative highlighted at the meeting
that:
‘
...there
were a number of steps which needed to take place as outlined in the
document, MEIBC/Parties and PCA(SA) recommendation
to the MANCO,
namely to convene the first Plastics Negotiating Forum (PNF) meeting
within 3 weeks of the MANCO meeting of 10 September
2013. The first
meeting of the PNF would establish the terms of the reference for the
PNF, participants and house-keeping rules.
The office accordingly
needed to schedule the first meeting.”
It was further recorded
that:
‘
The
LEIA representative proposed that from a MANCO point of view, both
applicants were in principle accepted and in terms of the
current
practice the office would verify their respective membership
[5]
The Solidarity
representative supported the proposal and the motion was agreed.
The NUMSA representative
referred to the conditions which the PCA (SA) had given in their
application and proposed that the conditions
be disregarded.”
[10]
On 18 September 2013, the General
Secretary of the MEIBC wrote a letter to the appellant advising that
its application for membership
was approved at the MANCO meeting of
10 September 2013. In addition to congratulating the appellant, he
invited the appellant to
participate in all the Council activities
such as MANCO, Financial and Administration meetings, standing
committee meetings, Regional
Council meetings, Negotiations and any
other Council meetings or events. He concluded by stating that the
current employer parties
were involved in an arbitration regarding
the allocation of seats to a party on the various meetings and, as
such, he is unable
to advise on the number of seats the appellant is
entitled to at meetings. He mentioned further that the parties agreed
that appellant
could attend as an observer until the matter is
resolved.
[11]
The next development was the
Registrar of Labour Relations writing to the appellant on 20 October
2013 advising that the Department
[of Labour] had satisfied itself
that the appellant has a membership in the Plastic Sector of 403
employers who are employing 28
792 workers.
[12]
The first meeting of the PNF
convened in compliance with MANCO resolution by the General Secretary
and a Facilitator took place
on 4 October 2013. However, NUMSA,
MEWUSA and CEPPWAWU, who are first to third respondents respectively,
did not attend the meeting
and their apologies were noted. At the
beginning of the meeting, the General Secretary confirmed that the
quorum requirements of
the constitution of the council had been met
and that the meeting could proceed. It was agreed that all decisions
and agreements
reached at the PNF would be taken to MANCO for
ratification and for possible extension purposes to the Department of
Labour. The
Chairperson as well as the Deputy Chairperson of the PNF
were elected. The Facilitator presented a document containing the
Terms
of Reference for the PNF. The document was formally adopted
after some discussions which brought about amendments to the
document.
The document was also signed by those present. The meeting
agreed that the parties who were absent be included as signatories to
the document.
[13]
The terms of reference provided
inter
alia
,
that the PNF will be the sole forum to:
‘
Engage
in respect of any matter related to the Plastic Sector;
·
This will include but not limited to
a.
Substantive negotiations within the Sector
b.
Task team matters
c.
Scope of registration of MEIBC in respect
of the Sector
d.
All other matters that require a position
to be adopted in respect of the sector
·
All agreements reached within the PNF will
be submitted to MANCO for ratification and extension purposes
·
Any other recommendations and or decisions
in respect of other matters discussed within the PNF will be
processed in terms of the
Constitution of the MEIBC.’
[14]
On 9 October 2013, the appellant
formally initiated negotiations for the introduction of a new
collective agreement which was intended
to regulate the terms and
conditions of employment in the plastic sector. It further called on
the General Secretary of the Bargaining
Council to circulate a
proposed agreement and arrange a negotiating meeting of the PNF
within 45 days of the notice as required
by the constitution of the
Bargaining Council. It is common cause that although the General
Secretary circulated the proposed agreement,
he did not arrange or
convene a meeting within 45 days as required. He however, notified
the parties that the proposal would also
be included on the MANCO
Agenda of the 5
th
of November 2013.
[15]
The MEIBC held its MANCO meeting on
26 November 2013. The Terms of Reference adopted by the PNF were
tabled as part of the report
from the PNF. NUMSA representative
indicated that they were unable to attend the PNF meeting of 10
September 2013 due to the strike
action they were involved in and
appealed to the parties to allow NUMSA the opportunity to contribute
to the Term of Reference.
After lengthy discussions on the Terms of
Reference, with NUMSA indicating that it does not support the
adoption of the Terms of
Reference, the Terms of Reference were
adopted with NUMSA’s position being noted. As will be shown
later, the respondents’
view is that the Terms of Reference
were not adopted. The relevant extract of the minutes relied upon by
the respondents reads
thus:
‘
The
Chairperson confirmed that the parties note that the discussion has
taken place and that the Terms of Reference is adopted noting
the
objection that was raised by NUMSA stating that they do not adopt the
current Terms of Refence and that all parties will be
given the
opportunity at the next PNF meeting to raise any issues on the Terms
of Reference that would be discussed at point 1
of the agenda.’
[16]
According to the appellant, it made
several requests that a meeting of the PNF be convened without any
success. As a result, on
19 February 2014, the appellant gave written
notice of its intention to resign from the MEIBC on the requisite
three months’
notice, citing several reasons including failure
of the bargaining council to perform its functions as identified by
the Registrar
of Labour Relations.
[17]
On 15 January 2014, the Registrar of
Labour Relations wrote a letter to the MEIBC advising inter
alia
,
that he had been informed that the appellant had joined the council
as a full party, thereby improving the representative position
of the
bargaining council in the subsector to such an extent that the
Department sees no need to pursue its previous intention
of varying
the scope of registration of the MEIBC and that the matter had
formerly been closed.
[18]
On 24 March 2014, the appellant
withdrew its notice of withdrawal from MEIBC after being persuaded by
the General Secretary to do
so. The appellant’s retraction of
its withdrawal from the Council was accepted by the General Secretary
who notified all
the member parties within MANCO by circular. The
retraction of appellant’s withdrawal of its resignation was
further reported
by the General Secretary at the Bargaining Council’s
Annual General Meeting held on 26 March 2014.
[19]
It is signified to note that the
MEIBC issued invitations to attend all negotiation meetings of the
PNF to all parties to the Bargaining
council, including the
appellant. Meetings of the PNF conducted under the auspices of a
facilitator appointed by the Bargaining
Council were held on 16, 19,
and 21 May and 3, 23, and 30 June 2014. Furthermore, updates on the
negotiations were issued per industry
circular by the MEIBC. On 30
June 2014, a written collective agreement intended to regulate terms
and conditions of employment
in the plastics sector was concluded
between the participating parties in the PNF.
[20]
What triggered the current dispute
is the strike by the three respondent unions in support of their
demand for the conclusion of
a new main collective agreement within
the MEIBC on 17 July 2014. The strike was also pursued within the
plastic sector. The appellant
considered the strike within the
plastic sector to be unprotected and unlawful because in its view,
the plastic sector had its
own bargaining chamber, being the PNF
wherein a collective agreement had been concluded. It was of the view
that the plastic sector
as was the case with the lift industry had to
be excluded from the said strike action.
[21]
The appellant approached the Labour
Court on urgent basis on 11 July 2014 seeking relief on the following
terms:
‘
1.
That the Honourable Court dispenses with the form and times for
service and filing as required by the Rules and hear this application
as a matter of urgency.
2.
Declaring that the plastics negotiating
forum (“forum”) constitutes a duly established and
separate negotiation chamber
within the MEIBC.
3.
Declaring that the strike conducted by the
first, second and third respondents and their members in respect of
the employers who
are members of the applicant is unlawful and/ or
unprotected.
4.
Interdicting and restraining the first,
second and third respondents and their members from taking part or
being associated with
the strike action referred to above.
5.
Directing the first, second and third
respondent’s members employed by the applicant’s members
to report for duty within
6 hours from being notified of the granting
of this order.
6.
Interdicting and restraining the first,
second, and third respondents and their members from unlawfully
interfering in any way with
the conduct of the applicant’s
members business operations.
7.
Interdicting and restraining the first,
second and third respondents and their members from damaging or
threatening to damage the
applicant’s members premises,
blockading points of access to and egress from the applicant’s
members’ premises,
interfering with the access or access
control to any of the premises.
8.
An order to the first, Second and Third
Respondents to instruct their members to desist from-
8.1.
assaulting, threatening to assault or harm,
intimidating any staff member, non-striking employee, customer,
supplier or visitor
to the applicant’s members’ premises;
and
8.2.
damaging, threatening to damage the
applicant’s members’ premises, blockading points of
access to and egress from the
applicant’s members’
premises, interfering with the access or access control to any of the
applicant’s members’
premises, interfering with proper
working of the applicant’s members property or property under
their control.
9.
An order that, should the first, second and
third respondents and their members fail to comply with the terms of
this order or any
part thereof, within 6 hours of same having been
served upon all parties, the SAPS and/or Public Order Policing unit
are directed
to take any steps or measures to ensure compliance with
this order;
10.
This order should be served on the
respondents by serving it on the first, second and third respondents
(or their attorneys) by
fax or hand, and reading it out to those
present at the applicant’s members respective entrances and by
displaying it prominently
at all entrances of the applicant’s
members premises;
11.
The first, second and third respondents are
ordered to publicly call upon their respective members, to abide by
the provisions of
this order by announcement via loud hailer to the
striking employees who are present at such time at the applicant’s
members’
premises, in such languages which are commonly used
for communication by them within 6 hours of receipt of this order;
12.
Granting the applicant further and/or
alternative relief.
13.
Costs against those respondents who oppose
the relief sought.’
[22]
The Labour Court recorded the
primary question to be determined in the application before it as
whether the respondent unions were
entitled to invoke the strike
action against the members of the appellant on the basis that the
main agreement, if agreed to, would
apply to them because collective
bargaining for the plastic industry still took place under the ambit
of the negotiations for the
main agreement, or whether collective
bargaining for the plastic industry had been relocated by agreement
and in terms of the bargaining
council’s constitution to the
PNF, which now constituted the agreed forum within which conditions
in that sector would be
negotiated. The court
a
quo
recorded further that if the
appellant is correct, it followed that until such time as the
respondent unions engage with the employers
in that forum and follow
the dispute resolution processes in s64 of the Act, they may not
embark on protected strike action.
[23]
Before dealing with the primary
question identified above, the Labour Court had to consider the
appellant’s
locus standi
to bring the application as challenged by the respondent unions. The
challenge, which raised a factual dispute, was that the appellant
was
still not a fully-fledged party to the MEIBC because its admission as
a member was still provisional and subject to certain
membership
details to be verified. As a result, it was contended, the appellant
as a non-party to MEIBC had no
locus
standi
to bring the application. The
second basis for the challenge to the
locus
standi
was on the contention that the
PNF had not been properly established as a sectional bargaining forum
within the MEIBC and therefore
negotiations for the plastic sector
were still part and parcel of a new main agreement which would be
binding on the employers
in the plastic sector. This would according
to NUMSA, be the case irrespective of what transpired in the NPF.
[24]
In deciding the membership issue,
the Labour Court held that the available evidence tend to suggest on
a balance of probabilities,
that the appellant was not properly
admitted as a member of the council and that its own complaint when
it announced its withdrawal
seemed to confirm that fact; that even if
it was not expressly refused membership the failure to admit it
unconditionally by 2
December 2013 means its application was declared
to have been refused from that date, notwithstanding its
participation in the
MANCO and the PNF; that it could not as such
participate in the deliberations of the PNF nor be a party to any
agreement concluded
in that forum. The Labour Court concluded that as
a non-party to the council, appellant has no
locus
standi
to enforce any purported
agreement of the parties to the council or a decision of the council
about the designated forum for negotiations
in the plastic industry.
[25]
With regard to the establishment of
the PNF as the sole bargaining chamber for the plastic sector within
the MEIBC, the Labour Court
was not satisfied that the appellant had
demonstrated with sufficient certainty on the facts that the PNF was
properly constituted
as an exclusive bargaining forum or that the
MEIBC and the parties to it had agreed to establish an exclusive
bargaining forum
for the plastics industry as envisaged by the
appellant. The Court concluded thus:
‘
consequently,
it cannot be said that there exists a properly constituted forum in
terms of which the parties and their members are
obliged to negotiate
on wages and conditions in the plastic industry falling under the
council and in no other forum. Accordingly,
nothing precluded the
main negotiations from covering the plastics industry within the
MEIBC scope and the strike by members of
the respondent unions
employed by the [appellants] members was not unprotected”
[26]
The application was consequently
dismissed with costs.
The appeal
[27]
The grounds upon which the judgment
of the court
a quo
is
challenged are that the court
a quo
erred in finding that the appellant had not been admitted as a party
to the MEIBC and further erred in finding that the PNF had
not been
duly established as a separate forum for collective bargaining in the
plastic industry under the auspices of MEIBC.
[28]
On behalf of the first respondent,
it was contended that the appeal is entirely academic because the
strike came to an end on 29
July 2014 and can no longer be
interdicted. As regards the merits of the appeal, it was contended
that the court
a quo
correctly found that the appellant had not established that the
bargaining arrangement in the council had been changed before the
industry strike had started on 1 July 2014.
[29]
It is opportune to dispose of the
moot issue at this stage. Mr Freund SC who appeared on behalf of the
appellant conceded that the
prayers relating to the lawfulness of and
the interdict against the strike are moot and that the appellant does
not persists in
orders being made in that regard. However, there is a
live dispute between the parties regarding what he termed the
“establishment”
issue and the “exclusivity”
issue. Under the establishment issue, the question is whether the
appellant was entitled
to an order in terms of prayer 2 of the Notice
of Motion which required a declaration that the PNF had been duly
established and
as a separate negotiation chamber within the MEIBC.
Under the “exclusivity” issue, the question is whether
the PNF
was established with exclusive powers.
[30]
Mr Van der Riet SC who appeared on
behalf of the first respondent extended his argument on mootness
beyond what is contained in
the respondent’s Heads of Argument.
He contended that the court
a quo
only made a factual finding as to whether as at 17 July 2014, there
was an exclusive separate chamber established in so far as
one has to
decide the question whether the strike was unprotected or not. Put
differently, he submitted that the court
a
quo
had to decide whether on the facts
before it, it had been established that the PNF was given exclusive
powers as a separate negotiating
chamber for the plastic industry
within the MEIBC, and that a finding against the appellant did not
create a live issue but an
opportunity to revert to the MEIBC to
renegotiate the establishment of the PNF.
[31]
The first respondent’s
contention in this regard is simply without merit. It suggests that
all decisions of the Labour Court
should not be appealed against
since they are invariably based on a factual situation existing at
the time of the judgment. Generally,
an appellate court is required
to decide a case that had been decided by the court
a
quo
, on
the facts that served before that court. In this case, the court
a
quo
made a
definite finding to the effect that the appellant had failed to
demonstrate that the PNF
was
properly constituted
as an exclusive bargaining forum for the plastics industry within the
scope of the MEIBC. It further found that appellant had failed
to
establish that the MEIBC and the parties to it had agreed to
establish
an
exclusive bargaining forum
for the plastics industry
as
envisaged by the appellant
.
These findings have consequences and will forever be live issues
between the parties. The judgment of the court
a
quo
will
always be in the
way of the
appellant should it try and assert its rights about bargaining within
the MEIBC. The matter is therefore not moot.
[32]
I now proceed to deal with the
membership of the appellant at the MEIBC. The Labour Court found that
the evidence tendered tends
to suggest on a balance of probabilities
that the appellant was not properly admitted as a member of the
council. The appellant,
the Labour Court continued, as a non-party to
the MEIBC, lacked
locus standi
to enforce any purported agreement of the parties to the council or a
decision of the council about the designated forum for negotiations
in the plastic industry.
[33]
On
this aspect, Mr Van der Riet submitted that it was not necessary for
a finding to be made as to whether the appellant was ever
properly
admitted as a member of the MEIBC. He however, supported the finding
of the Labour Court that there was no evidence that
the in-principle
decision to admit the appellant was ever confirmed before the 90 day
period stipulated in s56(3) of the Act
[6]
had expired.
[34]
In my view, it is significant to
determine the membership of the appellant to the MEIBC because as the
court
a quo
correctly pointed out, it may lack
locus
standi
to enforce any purported
agreement between the parties to the council about the establishment
of the PNF.
[35]
The undisputed facts are that the
appellant had been a long standing member of the MEIBC and had
resigned in protest against its
inability to realise its ambition to
have a separate negotiating chamber for the plastic industry
established within the MEIBC.
Its membership up to its resignation
from 1 February 2011 was not at all questioned. The dispute about its
membership relate to
the appellant’s readmission pursuant to a
recommendation to MANCO dated 16 August 2013. It is not in dispute
that the appellant
complied with the formal requirements for
membership. What seems to be controversial is the meaning or
interpretation of the MEIBC
resolution in accepting the appellant’s
membership to the council. The controversy finds its origin in the
minutes of the
MANCO meeting of 10 September 2013, where a
recommendation dealing among others, with the application for
membership of the appellant
to the MEIBC. The proposal made by LEIA’s
representative
which
was supported by solidarity’s representative and the motion
carried was that “from a MANCO point of view both
applications
were in principle accepted and in terms of the current practice the
office would verify their respective membership.”
The letter
from the General Secretary of MEIBC dated 18 September 2013 clears
any doubt as to the acceptance of the appellant’s
membership to
the council. It categorically states that the application for
membership was approved, and in addition to congratulating
the
appellant, he was looking forward to a long and rewarding
relationship with it. Appellant was further invited to participate
at
various structures of the MEIBC.
[36]
The finding by
the Court
a
quo
that
the appellant was not properly admitted as a member of the MEIBC or
that its membership was dependant on the council conducting
a
verification exercise and or was admitted only as an observer is not
supported by the facts. In
this
regard, the court
a quo
seems to have
conflated
the issue of the appellant’s membership of the council with the
question of the appellant’s entitlement to
representative seats
on the council’s various structures by virtue of its
membership. The appellant, being an employer’s
organisation was
duly admitted as a full member of the MEIBC in compliance with clause
4 of its Constitution once a party has met
a threshold of membership;
the al
location of seats to a newly
admitted member is a matter to be undertaken by the administrative
structure of the MEIBC. What the
Secretary General conveyed to the
appellant was that seats allocation could not be determined at that
stage due to a pending arbitration
dispute involving the current
employer parties to the council regarding employer’s allocation
of seats to the parties on
the various meetings.
[37]
Membership verification in the
circumstances was not a form of a suspensive condition to admission
as a member, but that allocation
of seats could not be determined at
that stage due to a pending dispute which was a subject of
arbitration. Similarly, being accorded
observer status at some of the
meetings did not detract from the fact that the appellant had been
accepted as a member; it had
to do with its participation based on
the allotted seats. It would in any case make no sense to refuse to
admit a party as a member
and at the same time establish a
negotiating chamber for such a party to participate in. Subsequent
conduct of the General Secretary
of inviting the appellant to
meetings is indicative of acceptance that appellant had been admitted
as a member. It is significant
to note that there are no facts placed
on record that could have barred the appellant from becoming a member
of the bargaining
council. Neither is an indication that the parties
to the bargaining council did not want the applicant to become a
member.
[38]
It is also safe to state that it was
in the interests of all parties as well as the Registrar of Labour
Relations and NEDLAC at
the time for the appellant to be readmitted
as a member of the MEIBC. The parties to the MEIBC also wanted the
appellant to be
a member and the only concern, particularly to the
respondents, was the role and powers of the separate bargaining forum
which
had been suggested. The acceptance of the appellant to MEIBC as
a party is also confirmed by the concession by the General Secretary
at paragraph 17 of his Answering Affidavit on behalf of the MEIBC.
The exclusion of the appellant as member already carried a risk
of
the scope of the bargaining council being varied by the Registrar of
Labour Relations. This risk was abandoned when the Registrar
of
Labour Relations was satisfied that the appellant was back in the
MEIBC. I am therefore satisfied that it has been shown that
the
appellant was admitted as a member to MEIBC.
[39]
As regards the establishment of the
PNF, Mr Van der Riet conceded that at the 10 September 2013 meeting
of MANCO, a recommendation
that was accepted did in fact establish
the PNF. It had come into existence as a forum which is a
substructure to the main decision-making
body. His concern was
however, that the created forum had neither powers nor members and
that its role was not spelt out. It was
also not determined what it
could or could not do. Mr van der Riet contended that the Terms of
Reference for the PNF were not adopted
by MANCO. He referred to an
extract of the minutes of the MANCO meeting of 26 November 2013
quoted at paragraph [16] above referring
to NUMSA’s objection
to the Terms of Reference and that all parties will be given an
opportunity to raise their issues at
the next PNF.
[40]
This
contention is based on the deliberations in the course of the
meeting. What was ultimately resolved was that the Terms of Reference
document was adopted on motion for adoption proposed by LEIA’s
representative and seconded by Solidarity. The motion noted
the
position of NUMSA not being in favour of the Terms of Reference. What
counsel referred to was a suggestion that any party that
was not
happy with the Terms of Reference could still raise such concerns at
the PNF meeting. The adoption of the Terms of Reference
is also
confirmed by the General Secretary at paragraph [21] of his Answering
Affidavit that: “
The
Council had established the Plastics Negotiating Forum (PNF) in
compliance with the Manco resolution of 10 September 2013. These
terms of reference were adopted by all parties except for NUMSA.
”
The reasoning and finding by the court
a
quo
that the Terms of Reference were not adopted is therefore
unsustainable.
The
decision to adopt the Terms of Reference was taken by the majority of
members at the MANCO meeting and that decision stands
with legal
consequences until such time that it is properly and procedurally
rescinded by the MEIBC or through legal proceedings
[7]
.
[41]
This brings me to the exclusivity
issue. The question to be answered relates to prayer 2 of the notice
of motion being a declaration
that the PNF constitutes a duly
established and separate negotiation chamber within the MEIBC. The
court
a quo
framed the question thus: ‘The status of the PNF as properly
constituted exclusive forum for collective bargaining in the
plastics
Industry under the [MEIBC]. Mr Freund moved for an amendment of
prayer 2 by substitution of the word “separate”
with the
word “exclusive” and the addition of the words for the
plastic industry at the end of the prayer. In finding
that the PNF
was not properly constituted exclusive forum for collective
bargaining in the plastics industry under the MEIBC, the
court
a
quo
reasoned that: the unanimous
recommendation adopted by MANCO at its meeting of 10 September 2013
did not provide that the PNF would
be an exclusive forum for
collective bargaining in the plastics industry; the PNF could not
determine its terms of reference at
its first meeting of 4 October
2013 since it was not quorate; and that the adoption of the document
containing the Terms of Reference
was not properly adopted by MANCO
because of irregularities such the exclusion of NUMSA and those in
its support by the chairperson
of the meeting from deliberating the
determination of the terms of reference as well as the fact that the
terms of reference were
not voted on.
[42]
The terms of reference concluded by
the PNF at its first meeting on 4 October 2013 provided that
the
PNF will be the sole forum to,
inter
alia
,
engage in respect of any matter related to the plastic sector and all
other matters that require a position to be adopted in respect
of the
sector.
The terms further provided
that all agreements reached within the PNF will be submitted to MANCO
for ratification and extension
purposes. The terms of reference
themselves is an agreement reached at the PNF and were tabled at the
MANCO meeting of 26 November
2013 were they were adopted by the
majority members of MANCO. The Terms of Reference followed a process
which was the subject of
recommendation by the facilitation process
and adopted by MANCO on 10 September 2013. For all intends and
purposes the idea was
to create a separate chamber for the plastic
industry which was to be similar to the lift industry. That chamber
for the lift industry
has been established as an exclusive chamber
for bargaining for that industry. The conclusion that the terms of
reference does
not provide that the PNF is the exclusive chamber for
collective bargaining for the plastic sector is therefore
unsustainable.
The employment of the word “SOLE”
in the
document itself as well as the historical context within which the
resolution was adopted to support the view that the PNF
was intended
to an exclusive forum for collective bargaining within the plastic
sector subject to ratification by MANCO and MEIBC
constitution.
[43]
In
my view, reference in clause 5 of the recommendation to the MEIBC of
10 September 2013 that “Any amendments to terms and
conditions
of employment including matters relating to future bargaining
arrangements will be a product of collective bargaining”
can
only refer to the PNF as the bargaining forum. It would not make
sense to establish the PNF and not cloth it with the function
of
collective bargaining. The sole purpose of the negotiations exercise
was to establish the PNF as demanded by the appellant.
That would
constitute a sensible interpretation of clause 5. Holding otherwise
would lead to a situation where collective bargaining
for the plastic
industry is taken outside the body established for that purpose,
which would be absurd.
[8]
[44]
The meeting of 4 October 2013 was
convened by MANCO for the sole purpose of formally constituting the
PNF and determining its terms
of reference in line with MANCO’s
resolution. It can therefore not be contended that the meeting was
not properly constituted
because the PNF did not have any defined
membership criteria at that point in terms of which a quorum could be
determined resulting
in whatever agreement reached not possible of
being construed as a decision of a duly constituted meeting. I have
already found
that the meeting of 26 November 2013 was duly
constituted and properly adopted the terms of reference of the PNF.
[45]
In conclusion, I am of the view that
the appeal should succeed and that the appellant is entitled to the
amendment of prayer 2 as
requested. The matter was considered by the
court
a quo
and dismissed the application on the basis that,
inter
alia
, the PNF is not a forum properly
constituted as an exclusive collective bargaining forum for the
plastic sector within the MEIBC.
Furthermore, no prejudice will be
suffered by the respondents since they had an opportunity to make
their submissions on the issue
and the court
a
quo
and the First Respondent in this
Court.
[46]
What remains is the issue of costs.
Both counsel agree that costs should follow the result. In the Heads
of Argument, the appellant
prayed for costs on an attorney and own
client scale against the respondents jointly and severally, the one
paying the others to
be absolved, in the event of it being
successful. The motivation for such a special award is based on the
submission that by pushing
the appellant to re-join the bargaining
council and later obstructing the promised establishment of the
PNF as an exclusive
collective bargaining forum for the plastic
industry, the respondents acted in bad faith that falls a little
short of an industrial
fraud. I am not convinced that a special award
of costs is warranted. The scale of attorney and client is an
extra-ordinary one
which should be reserved for cases where it can be
found that a litigant conducted itself in a clear and indubitably
vexatious
and reprehensible conduct. Such an award is exceptional and
is intended to be very punitive and indicative of extreme opprobrium.
[47]
I am of the view that it would be in
accordance with the requirements of the law and fairness that costs
should follow the result
in the court
a
quo
and in this Court. Costs in the
court
a quo
should only be against the respondents who opposed the application.
Costs on appeal should include costs of employment of two counsel
and
should only be limited to the First Respondent who opposed the
appeal.
[48]
In the result, the following order
is made:
1.
The Appeal succeeds and the order of the
Labour Court is set aside and replaced with the following:
a.
It is declared that the Plastics
Negotiating Forum (PNF) constitutes a duly established and exclusive
negotiating chamber within
the MEIBC for the plastic sector.
b.
The respondents are to pay the applicant’s
costs on party and party scale jointly and severally the one paying
the other to
be absolve.
2.
The First Respondent is to pay the
appellant’s costs inclusive of costs for the employment of two
counsel.
__________________
Tlaletsi DJP
Davis
et
Musi JJA
concur in the judgment of Tlaletsi DJP.
APPEARANCES:
FOR THE APPELLANT:
A J Freund SC and Adv G A Leslie
Instructed by Anton
Bakker Attorneys.
FOR THE FIRST RESPONDENT:
J G Van
der Riet SC
Instructed by Ruth
Edmonds Attorneys
[1]
Labour Relations Act 66 of 1995
.
[2]
Established under Chapter 11 of the Act.
[3]
National Economic Development and Labour Council established by s2
of the National Development and Labour Council Act 35 of 1994.
[4]
MANCO refers to the Management Committee of the MEIBC.
[5]
The application for membership by South African United Employers
Organisation (SAUEO) was considered simultaneously with that
of the
appellant, hence reference to verification of respective membership.
[6]
A council, within 90 days of receiving an application for admission,
must decide whether to grant or refuse an applicant’s
admission, and must advise the applicant of its decision, failing
which the council is deemed to have refused the applicant’s
admission
.
[7]
Oudekraal
Estates (Pty) Ltd v City of Cape Town
2004 (6) SA 222
(SCA) at 242A-C
;
Metal & Electrical Workers Union of South Africa v National
Panasonic Co (Parrow Factory)
1991 (2) SA 527
(C) at 530C-D and 531 F-532B.
[8]
See:
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) at para 18.