About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2017
>>
[2017] ZALAC 18
|
|
Lonmin Platinum Ltd v National Union of Mineworkers and Others (JA50/2015) [2017] ZALAC 18 (28 February 2017)
INTHE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 50/2015
In
the matter between:
LONMIN
PLATINUM
LTD
Appellant
and
NATIONAL
UNION OF MINEWORKERS
First Respondent
COMMISSION
FOR CONCILATION,
MEDIATION
AND ARBITRATION
Second Respondent
ROB
MACGREGOR N.O.
Third Respondent
Heard:
19 May 2016
Delivered:
28 February 2017
Summary:
Point in
limine
raised that dispute referred to CCMA already
adjudicated by the Labour Court – Labour Court ordered
cancellation of union
organisational rights upon failure by union to
prove representativity by certain date – employer cancelling
union organisational
right on the basis that the resolutive condition
in the court order had been met – Union referring a
collective agreement dispute
to
CCMA which upheld employer’s contention – commissioner
approaching the matter in the wrong footing – commissioner
not
bound by parties description of the nature of the dispute –
commissioner must determine the true issue in dispute in
light of the
facts of the case - issue
in
dispute is a factual one about whether in terms of the court order
and within the time stipulated therein union objectively proves
that
it had not lost its majority. Commissioner failing to determine the
true issue in dispute – Labour Court’s judgment
upheld –
appeal dismissed.
Coram:
Musi, Sutherland JJA
et
Murphy
AJA
JUDGMENT
SUTHERLAND
JA
Introduction
[1]
The
appeal is against an order of Lagrange J in the Labour Court
reviewing and setting aside a ruling by a commissioner of the
Commission for Conciliation, Mediation and Arbitration (CCMA) that a
dispute referred to the CCMA could not be adjudicated because
that
dispute had been disposed of by an earlier order of the Labour Court.
Lagrange J remitted the matter for adjudication.
[2]
The
controversy derives from these circumstances:
2.1.
The
appellant (Lonmin) has employed members of the first respondent (NUM)
for many years and continues to do so.
2.2.
For
many years, NUM enjoyed recognition as a collective bargaining
partner in terms of a recognition agreement. The recognition
of that
status was dependent upon NUM maintaining a membership of 50%+1 in
the relevant bargaining units. Failure to do so entitled
Lonmin to
terminate the agreement on notice.
2.3.
The
labour relations environment of the platinum mining industry
experienced considerable turmoil from 2012 onwards which included
the
advent of a rival trade union vying for the allegiance of the
workers.
2.4.
In
2013, Lonmin took up the stance that NUM had lost its majority
membership status. Notice was given to cancel the recognition
on that
premise. A question arose about whether Lonmin had properly complied
with the provisions of the recognition agreement relating
to a notice
of termination.
2.5.
NUM
responded to the notice by launching an urgent application to
interdict the cancellation. The underlying point of dispute was
whether the majority status of NUM had been lost. The papers filed in
that application are not before this Court, and ostensibly
were not
before the review court. The litigation was settled and a consent
order was composed by the parties which Basson J made
an order on 28
May 2013. The text of that order is the fount of the critical
controversy which arose in the subsequent arbitration
before the
third respondent, the review application that followed and ultimately
in this appeal.
2.6.
Time
passed. On the critical date, 16 July 2013, Lonmin, basing its stance
on the non-fulfilment of the terms of the order, regarded
the
recognition agreement as terminated, and acted accordingly.
2.7.
That
stance of Lonmin had been anticipated by NUM, who on 26 June 2013,
about three weeks before the termination date, did two things.
2.7.1.
First,
it referred a dispute to the CCMA. A copy of the standard referral
form contains a narrative of the engagement between the
parties. From
this narrative, the nature and substance of the dispute that was
referred has to be divined. That exercise is performed
hereafter.
2.7.2.
Second,
NUM launched another urgent application. Fortuitously, that
application (like the later review application, the subject
of this
appeal) was heard by Lagrange J. The relief sought was an interim
interdict to prevent de-recognition pending the resolution
of the
dispute referred to the CCMA. This urgent application was heard on 15
July 2015, the day before the termination date. The
application was
dismissed on the grounds of an absence of urgency. The judgment of
Lagrange J is included in the record before
this Court, which is
alluded to in the arbitrator’s ruling, which ruling was later
reviewed by Lagrange J.
2.8.
Bereft
of interim relief, NUM proceeded to exhaust its remedies before the
CCMA. However, when the arbitration was convened, Lonmin
argued that
the CCMA should not hear the matter. The premise advanced was
articulated as a lack of jurisdiction. The factual basis
was that, so
ran the contentions, the effect of the order granted by Basson J was
that NUM could not have the controversy about
the de-recognition,
effected on 16 July 2013,”re-visited”.
2.9.
The
arbitrator held that he could not hear the matter. The rationale in
the arguments advanced to the arbitrator and the arbitrator’s
own rationale for his conclusions, as evidenced in the ruling, shall
be addressed hereafter.
2.10.
Aggrieved
by that outcome, NUM sought a review of the ruling. The matter came
again before Lagrange J, who upheld NUM’s view,
set aside the
ruling and ordered that the matter be remitted to the CCMA for a
fresh hearing.
2.11.
Lonmin
seeks to overturn that outcome in this appeal and, in effect, restore
the arbitrator’s ruling.
What
was the dispute resolved by the order of Basson J and what was the
dispute referred to the CCMA?
The
order of Basson J
[3]
The
order of Basson J reads thus:
‘
(1)
The 90-day period contemplated in terms of clause 12.1 of the
recognition agreement will run from 16 April
2013 until 16 July 2013.
(2)
If
the applicant [NUM} is unable to prove that it is sufficiently
representative in terms of the recognition agreement by 16 July
2013,
then the recognition agreement terminates on 16 July 2013.
(3)
The
applicant and any other interested party is entitled to inspect the
stop order revocation forms of its members and former members
from 1
May 2012 to 1 May 2013. The respondent [Lonmin] will place all copies
with an independent firm of attorneys in Rustenburg
where same may be
inspected. The parties will agree the identity of the independent
form of attorneys by Tuesday 30 May 2013 for
inspection by Friday 31
May 2013
.’
[4]
The
first task is to interpret the order of Basson J. What an order of
Court means is what it says, understood in the relevant context.
Orders, contracts and statutes all are subject to the same species of
scrutiny.
[5]
The
problem phrase is to be found in paragraph 2. The formulation is
deceptively straight forward: an exactly ascertainable event
shall
occur (ie termination of the agreement) unless another event occurs
(ie the inability of NUM to prove it is sufficiently
representative).
This is an example of a certain event occurring subject to a
resolutive condition.
[6]
However,
how does one detect that the resolutive condition has occurred? What
does ‘unable to prove” mean? To whom must
proof be
tendered? This language might spark a belief that some impartial
entity ought to examine the purported proof and pronounce
a verdict.
When one speaks of “proof”, the paradigm that is ideally
imagined is one that involves an arbiter. However,
it cannot be
seriously thought that a role for third party was contemplated.
Ordinarily, a union has to convince an employer that
it has the
requisite representativity to obtain the recognition in question.
That norm is evident from part A of chapter III of
the Labour
Relations Acts 66 of 1995 (LRA) which regulates the procuring of
organisational rights. Thus, when the order requires
the union to
“prove” representativity, it must, in this context, be
read to mean “satisfy the employer”.
The terms of the
recognition agreement and the provisions of the LRA support that
understanding. This understanding of the phrase
was accepted by both
parties in the hearing of the appeal.
[7]
The
upshot is that the resolutive condition required NUM to convince
Lonmin by 16 July that NUM still had the requisite numbers
of members
or suffer a termination of the agreement. But that arrangement is
pregnant with other questions. Section 21 of the LRA
provides for a
procedure to resolve disputes about whether a union may demand
certain organisational rights. As regards representativity,
an
arbitration may be embarked upon to determine the correctness of an
allegation of representativity. This suggests that the employer
is
not at large to accept or reject such a claim but ought to accord or
refuse rights based on an objective and, thus, accurate
assessment of
the facts. It is no part of Lonmin’s case that it was entitled
to regard the condition as having failed simply
at its whim.
[8]
It
follows, in my view, that when the order of Basson J directed NUM to
prove to Lonmin its representative status by a deadline,
it was
implied that Lonmin must address the facts objectively. However, what
ought to occur if Lonmin,
bona
fide
,
concludes the condition has failed, and NUM,
bona
fide
,
believes it has been satisfied?
[9]
The
importance of this point is that the order of Basson J could not be
understood to dispose of any dispute of fact about whether
the
resolutive condition had, objectively, been met. What it did do was
no more than order the cancellation of the agreement subject
to the
proof of NUM’s membership status satisfying the representation
threshold.
What
dispute was referred to the CCMA?
[10]
The
question upon which the arbitrator had to rule in the
in
limine
debate was whether the dispute referred to him was distinguishable
from the issue resolved by the order of Basson J. However, in
order
to address that question, it was essential to first decide what had
been resolved by the order of Basson J and what had been
referred to
the CCMA. In the absence of clarity about that, it would be,
axiomatically, impossible for him to deal effectively
with the
argument
in
limine
that the issue before the CCMA and the issue before the labour Court
were the same, or that the relief sought was the same.
[11]
What
was referred to the arbitrator in the standard form 7.11, was a
rambling narrative. An arbitrator is not bound by a party’s
description of the supposed dispute and is required to enquire into
it and ascertain objectively the nature of and substance of
the
dispute.
[1]
In the ruling, no
reference is made to the referral
per
se
,
which is a pity, as shall be demonstrated below.
[12]
The
record before the arbitrator consists of the referral, a notice by
Lonmin that it would raise the point
in
limine
,
and related affidavits by the parties focussed on the
in
limine
debate. What the arbitrator does is offer a narrative of the
arguments presented in the
in
limine
debate. In the ruling, the arbitrator records that Lonmin argued that
the sole “dispute” (ie the “same”
dispute in
both proceedings) was “about a cancellation of a recognition
agreement”. This description is correct, but
in my view,
because it is so broad, it is unhelpful. It is tantamount in civil
litigation to saying two disputes are the same because
they involve a
breach of the same contract; perhaps a beginning, but plainly
insufficient to conclude the enquiry because self
–evidently,
that labelling does not inform a court of what is the forensic issue
at stake.
[13]
NUM
fared little better. Its stance was that the dispute was about the
interpretation and application of a collective agreement;
ie a
dispute regulated by section 24 of the LRA. NUM amplified its
contention by stating it was about “non-compliance”
with
the recognition agreement; this can be fairly understood to mean that
the terms of the recognition agreement permitting cancellation
were
not met. If this was what NUM really referred to the CCMA, it would
be in deep trouble, because, plainly, the consent order
overtook that
point; ie, the relationship as regards compliance with the
recognition agreement about cancellation for the reason
of loss of a
majority was novated and thereafter regulated exclusively by the
terms of the consent order.
[14]
The
arbitrator concluded that the dispute before him was about an
interpretation and application of a collective agreement. He held
the
issue before Basson J was that same issue. In his words, he could not
“go behind that judgment”. It seems to me
that the
arbitrator took NUM at its word as to the argument advanced on its
behalf. If this premise was indeed the correct understanding
of the
dispute referred; ie, about a breach of the recognition agreement,
then
res
judicata
is indeed a proper defence and the arbitrator is wholly correct.
[15]
However,
it seems to me, despite what was argued on behalf of NUM at the
arbitration, that the true dispute referred is not about
the
collective agreement at all. What is in dispute is a factual dispute
about whether NUM met the terms of the court order; ie
did it,
objectively, within the time stipulated, prove that it had not lost
its majority.
This
is the proper interpretation of the referral, which, as I have
mentioned, was not alluded to at all in the ruling: the text
in
paragraph 9 of the referral reads:
‘
Lonmin has
persistently claimed that thousands of employees who were previously
members have revoked such membership and have joined
AMCU. NUM was
informed, although not by written notice, that the 90 day period for
the purposes of de-recognition in terms of clauses
5.1.4, 6.1.5 and
12 of the recognition agreement would commence on 18 April 2013.
During the running of the 90 day period….Lonmin
purported to
bring forward the date for the derecognition from 16 July 2013 to 31
May 2013. In the circumstances and on 28 May
2013 NUM launched an
urgent application in this court and sought an order interdicting
Lonmin from cancelling or terminating the
recognition agreement and
ordering Lonmin to make available to NUM copies of all stop orders
and notices of revocation given by
NUM’s members in terms of
clause 5.3.1 of the recognition agreement for the period 1 May 2012
to 1May 2013.on the date of
the hearing and at court NUM and Lonmin
agreed on an appropriate order which was made an order of court. In
response to this court
order dated 28 May 2013, Lonmin provided
copies of the notices to CTH. On 3 June 2013, approximately 13,000
notices (provide in
boxes and in no particular order) were delivered
to the offices of CTH. Only 12,097 of those notices pertained to the
period 1
May 2012 to 1May 2013 in respect of the issues relevant to
this application. The balance of the notices were in respect
membership
sought in respect of other trade unions. After having
obtained the notices we have been able to peruse them. We have come
across
serious defects on the vast majority of the notices. We submit
that Lonmin is not entitled to terminate the recognition agreement
in
these circumstances.’
[16]
What
does this amount to? A lot of background is given to contextualise
the exercise undertaken to verify the validity or invalidity
of the
revocation notices. The critical point is made that the basis upon
which Lonmin thinks NUM has lost its majority is wrong.
Therefore,
the referral “submits”
Lonmin
cannot terminate the agreement. One can quibble about this
terminology, but it is plain that what is put up as the dispute
is
the fulfilment or non-fulfilment of the terms of the court order.
[17]
It
is true that NUM did not
argue
the case made out in the referral and, bizarrely, misled the
arbitrator, but the fact that the argument on behalf of NUM failed
to
grasp the true dispute referred is not
per
se
an insurmountable obstacle to divining the true dispute from the
factual matrix as presented, a critical duty of an arbitrator.
Had
the arbitrator first determined this aspect, he would have been in a
position to deal lucidly with the point
in
limine.
Instead,
it seems that the proceedings were propelled, prematurely, into the
debate over the point
in
limine
without performing the first task, and misled by the argument on
behalf of NUM, the arbitrator reached a mistaken conclusion. The
arbitrator must thus be held to have approached the matter in a
manner that diverted him from his core function: ie, to determine
the
true dispute.
[18]
The
upshot is this: the order of Basson J disposed of the controversy
about an alleged breach of the recognition agreement by Lonmin.
An
order ensued that cancelled the agreement subject to “proof”
of majority status by 16 July. The order axiomatically
could not
dispose of any factual dispute about whether “proof” had
been adduced and on time. The dispute referred to
the CCMA is exactly
that; ie a claim that proof was adduced but that Lonmin improperly
ignored it. It must be borne in mind that
what is being addressed
here are the allegations made by NUM, and the merits or demerits of
such allegations are irrelevant to
this judgment. In other words,
what is alleged is that Lonmin is in breach of the order. This is
what the referral means, and what,
on the factual allegations, the
arbitrator ought to have based his ruling.
The
Review
[19]
The
review was premised on the disputes not being the same and that the
order of Basson J did not dispose finally of any issue.
Lagrange J,
in para [11] of the judgment refers to NUM’s submission;
significantly, this submission correctly identifies
the real point:
‘
NUM argues
that it was not asking the CCMA commissioner to determine the same
issue that Basson J decided. The Court merely set
out the
preconditions for the termination of the agreement, it did not have
to decide if the precondition of proving representativeness
was
actually met. Proof that the precondition was indeed satisfied could
only have been proof of an event that occurred subsequent
to Basson
J’s decision. That question is quintessentially a matter of
confirming if the threshold of representativeness was
met in terms of
the collective agreement the application of which Basson J’s
decision had confirmed.’
Lagrange
J then concluded at [13]:
‘
If the CCMA
were to interrogate the validity of the termination and if the
arbitrator concludes that NUM had in fact established
its
representativeness before the deadline imposed by the court, then it
would mean it had met the precondition and the resolutive
event had
not occurred and consequently the agreement remained in place. In my
view this would not amount to revisiting anything
decided by Basson J
or amount to arriving at a decision in conflict with the court
order.’
[20]
The
view adopted by Lagrange J is wholly correct. Accordingly, the appeal
must be dismissed.
The
Remittal of the dispute and mootness
[21]
In
argument, allusions were made to the inevitable lapse of time between
16 July 2013 and the time this appeal was heard in May
2016
.
It was suggested that the probabilities were that, whatever the
accurate picture might have been of NUM presence almost three
years
ago, it was unlikely to be so now.
Implicit
in that contention is a realistic appreciation that once the
recognition agreement had been cancelled, irreparable harm
was done
to NUM’s erstwhile position. Upon this foundation it was hinted
that the 2013 controversy may now be moot. However,
these
circumstances are mere speculation without a proper factual basis
laid out on affidavit. This Court cannot address such concerns.
Nothing however inhibits such circumstances being ventilated upon a
proper basis, if one exists, in the arbitration about the dispute
referred, and in a debate about what appropriate relief ought to be
granted, if NUM has indeed suffered an injustice.
Costs
[22]
In
my view, given the contribution of the arguments to the arbitrator by
NUM constituting a major source of the confusion resulting
in the
ruling, and as the review court made no costs order, it is
appropriate for this court to follow suit.
The
Order
[23]
The
Appeal is dismissed.
[24]
The
order of the Labour court is confirmed.
___________
Sutherland JA
Musi
JA and Murphy AJA Concurring
APPEARANCES:
FOR
THE APPELLANT: Adv Michael Van As
Instructed by Cliffe
Dekker Hofmeyr
FOR
THE RESPONDENT: Adv Andrew Redding SC,
Instructed by Cheadle
Thompson and Haysom
[1]
See:
Wardlaw
v Supreme Mouldings (Pty) Ltd
(2007) 28 ILJ 1042 (LAC
);
CUSA v Tao Ying Industries
(2008) 29 ILJ 2461 (CC) at para 66;
NUMSA
(Sinuko) v Powertech Transformers (DFM) and Others
(2014) 35 ILJ 954 (LAC) at paras 16 –21.