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[2018] ZALAC 5
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SBV Services (Pty) Ltd v National Bargaining Council for the Road Freight and Logistics Industry and Others (JA6/16) [2018] ZALAC 5; (2018) 39 ILJ 1290 (LAC); [2018] 8 BLLR 778 (LAC) (1 March 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA6/16
SBV SERVICES (PTY) LTD
Appellant
and
NATIONAL BARGAINING
COUNCIL FOR THE ROAD
FREIGHT AND LOGISTICS
INDUSTRY
First Respondent
THE COMMISSIONER FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Second Respondent
FLOORS BRAND
NO
Third Respondent
SASBO- THE FINANCE
UNION
Fourth Respondent
PROTEA COIN GROUP
(ASSETS IN TRANSIT AND
ARMED REACTION) (PTY)
LTD
Fifth
Respondent
Heard:
01 November 2016
Delivered:
01 March 2018
Summary:
Demarcation-- of the National Bargaining Council for the Road Freight
and Logistic Industry (Council) – At the heart
of this appeal
is the question whether the cash-in- transit component of SBV should
be construed as goods falling within the scope
and operation of the
Council. Whether the cash in-transit falls within the scope and
operation of the Council is a matter of interpretation
and the
correct test in assessing a commissioner’s interpretation is
either correctness or reasonableness – the court
holding the
view that in interpreting the words goods in the council’s
certificate of registration – court should favour
an approach
that takes into account the historical development of the context
which ensures that proper meanings are ascribed to
words, a meaning
that is neither wide or narrow but appropriate within the confines of
its context and application. Court finding
that transporting cash in
boxes, containers and sealed bags does not convert cash into goods
because cash remains cash regardless
of its mode of transportation.
Held that the cash-in-transit is a recognised component within the
Council’s scope of registration
as it forms part of the
Council’s constitution which was adopted prior to the
certificate of registration being issued. Appeal
dismissed.
Coram:
Waglay JP,
Tlaletsi
DJP and Phatshoane AJA
JUDGMENT
WAGLAY
JP
[1]
The
first respondent, the National Bargaining Council for the Road
Freight and Logistic Industry (hereafter the “Council”),
in terms of its certificate of registration operates in an industry
which is involved in “the transportation of goods for
hire or
reward by means of road transport in the Republic of South Africa…”
[2]
The
Council thus sets employment standards that must be complied with by
those who operate within the scope of its operational sector.
The
Council holds the view that the appellant falls within its scope of
operation and is bound by the terms of its main agreement.
SBV
Services (Pty) Ltd, the appellant, disputes that either it or its
employees are engaged in the industry for which the Council
is
registered.
[3]
This
dispute has been ongoing for a considerable period. The present
appeal deals with the point
in
limine
raised by the appellant. The appellant contends that having regard to
the Council’s certificate of registration its activities
fall
outside the definition of the industry for which the Council is
registered, in that the Council’s scope of registration
is
limited to the “transportation of goods by means of motor
transport” and that the appellant’s activities do
not
involve the transportation of “goods”.
[4]
The
appellant argues that its main activity is related to the provision
of banking and financial services rather than the transportation
of
cash – the transportation of cash it says is merely an
“ancillary activity” to its banking services. Its
alternative argument is that in transporting cash, it was not
transporting “goods” as cash does not constitute goods.
This matter, however, revolves only around whether the meaning of
goods in the Council’s certificate of registration includes
cash.
[5]
The
Council’s certificate of registration defines “transportation
of goods” as follows:
‘
The
undertaking in which employers and their employees are associated for
the carrying out of one or more of the following activities
for hire
or reward:
(i)
The
transportation of goods by means of motor transport;
(ii)
The
storage of goods, including the receiving, opening, unpacking,
packing, despatching and carrying of, or accounting for goods
where
these activities are ancillary or incidental to paragraph (i) above;
and
(iii)
The
hiring out by labour brokers of employees for activities or
operations which ordinarily or naturally fall within the
transportation
of goods irrespective of the class of undertaking,
industry, trade or occupation in which the client is engaged as an
employer.’
[6]
The
appellant has referred to a host of authorities which state that
while words can have more than one meaning, each meaning must
be
considered with reference to the context of the document being
interpreted to decide which meaning is to be attributed to that
specific word. The appellant then goes on to provide various
dictionary meanings to the word “good” and its plural
form “goods”:
‘
Black’s
Law Dictionary defines “goods” as being “tangible
or movable personal property other than money;
especially articles of
trade or items of merchandise.
The
Cassell Paperback Dictionary defines “goods” as meaning,
in the plural, “movable property, chattels, effects,
wares,
merchandise”.
The
American Heritage Dictionary, under the heading of “goods”,
refers at item 4, to “goods”, which are
defined as
meaning “a. commodities; wares’ b. portable personal
property…fabric; material.”
The
Collins English Dictionary refers to “goods” as being “1.
possessions and personal property” and 3.
Articles of commerce;
merchandise.”
Webster’s
Third New International Dictionary refers to “goods” as
meaning “tangible movable personal property
having intrinsic
value usu. excluding money and other choses in action but sometimes
including all personal property …chattels,
wares,
merchandise…”
The
Oxford English Dictionary refers to “goods” as including
“3. property or possessions esp, movable property
…saleable
commodities; merchandise, wares.’
[7]
Following
upon the dictionary meaning, the appellant contends correctly, that
the common thread which runs through the dictionary
meanings is that
the word good(s) refers to merchandise or commodities which can be
traded and ordinarily excludes money, as money
is a means of exchange
and not a commodity to be traded.
[8]
Relying
on the above, the appellant’s argument is that there is nothing
in the Council’s certificate of registration
to indicate that
the word “goods’ should be given a meaning beyond the
accepted ordinary meaning which is supported
by the dictionary
definitions, particularly since it does no violence to the effect of
the document being interpreted.
[9]
The
Council disagrees. Relying on
Commander
v Collector of Customs,
[1]
it states that the meaning attributed to the word “goods”
in the certificate must be tested against the context that
it is
used. In the present context of the certificate of registration, it
says that it is obvious that the word “goods”
must be
given the widest possible meaning to include “cash”.
[10]
There
are judgments which support the interpretation that each of the
parties seeks to ascribe to the word “goods”
[2]
however, the crucial aspect here relates to the context in which the
word good(s) is interpreted.
[11]
Importantly,
in ascertaining the context within which meaning should be ascribed
to particular words, it may, in my view, not be
improper to consider
the historical development of the context to ensure that proper
meanings are ascribed to words, a meaning
that is neither wide or
narrow but appropriate within the confines of its context and
application.
[12]
As
a general rule, a bargaining council regulates the industry for which
it is registered and polices that industry. All its members
are bound
to the agreements it has negotiated and which set the minimum
standards that are binding within its scope of operation.
These
agreements are extended by legislative fiat to non-parties who
operate within the Council’s registered scope. The purpose
of a
Council and the binding character of the agreements is to set a
minimum standard, within its scope of registration, thus protecting
employees from exploitation and protecting employers from an unstable
environment as wages and conditions of services are largely
standardised.
[13]
The
dispute before this Court is limited to the cash-in-transit component
of the appellant’s business. This business was developed
and
funded largely by commercial banks to improve the security of its
cash-in-transit operation in the wake of severe losses it
incurred as
a result of theft and robberies. Unlike transportation of goods, the
vehicle used for the transport of cash is modified,
it is armoured,
the personnel involved in the transport are specially trained, armed
and uniformed. Transportation of cash takes
on vastly different form
than the transportation of goods other than cash.
[14]
In
a demarcation dispute application brought in 1998 by Fidelity Guards,
a company providing similar services to that of the appellant,
the
employer argued that its operation fell outside the scope of the
Council. The Commission
[3]
issued a demarcation award under section 62 of the Labour Relations
Act 66 of 1995 (LRA) in terms of which it determined that
cash-in-transit activities engaged by Fidelity Guards were within the
scope of the Council (
Fidelity
Guards Holding (Pty) Ltd Springbok Patrols (Pty) Ltd
case no: GA369)
[15]
A
further demarcation dispute in 2002 between
TGWU
and
Coin Security similarly resulted in the Commission issuing a
demarcation award to the effect that the cash-in-transit activities
engaged by these companies fell within the scope of the Council (
TGWU
v Coin Security Group and Others
[2002] 8 BALR 896 (CCMA).
[16]
The
appellant has also by its past actions recognised that its
cash-in-transit activities fell within the Council’s scope
as
it has repeatedly applied for and, prior to 2004 was granted
exemption from the collective agreement applying to some of its
cash-in-transit operations. Over 50% of the appellant’s staff
are involved in its cash-in-transit operation. Its fleet which
transports cash travels over 32 million kilometres per annum. The
cash, money deposits cheques and other monetary instruments
transported by the appellant are placed in containers or sealed bags.
[17]
The
meaning ascribed to “goods” when considered against all
the above factors raises the issue of whether in transporting
cash
should the appellant not fall within the security industry as opposed
to the road freight industry under the Council.
[18]
The
Council’s argument is that when cash is being transported it is
not being used as legal tender or as a mean of exchange.
According to
it while in transit it is no more than a commodity like any other to
be delivered to its destination where it will
serve the purpose it
normally serves. This argument, in my view, is totally contrived. If
it was so simplistic, why the need for
armoured vehicles, armed
personnel and such high security need? Transporting cash is not like
transporting any other commodity
very special and specific
considerations apply.
[19]
The
Council’s further argument which was upheld by the Commission
was that in interpreting the word “goods” within
the
context and purpose of the Council regard must be had to the
objective of promoting orderly collective bargaining at sectoral
level. I do not share this view. While it may be correct that certain
categories of employees within the cash-in-transit operation
may not
fall to be protected under any bargaining council, other than the
Council, I do not share the view that this can lend credence
to
demarcating the scope of a Council’s operation. Likewise, the
fact that cash-in-transit is more likely the largest user
of
transport for delivery cannot be reason to use its operation to
define the meaning of the word “goods” in the Council’s
certificate of registration.
[20]
Also
while one may bemoan the fact that security personnel are doing far
riskier tasks and often victims of abuse in terms of hours
of work,
benefits and levels of pay, in the absence of being included within
the Council scope of interpretation, this cannot again
serve as a
tool of interpretation for present purposes.
[21]
Finally,
transporting cash in boxes, containers and sealed bags does not
convert cash into goods. Cash remains cash no matter how
transported
or by who. The issue is whether the word goods incorporates cash in
the Council’s certificate of registration.
[22]
While
I accept all the facts that militate against cash being included in
the definition of goods in the Council’s certificate
of
registration when regards is had to the fact that the certificate of
registration sought to deal with the transport of everything
other
than people and beast
[4]
then
there is a clear indication that goods must, within the context,
include cash.
[23]
Additionally,
when the Council changed its name in 2010 and registered a new
constitution, its scope of registration remained principally
the
same. Its new Constitution specifically provides for a
cash-in-transit sectoral chamber within the Council and defines it
as:
‘…
the
provision of transport by a registered security service provider who
protects and/or safeguards in connection with the collection,
transportation or delivery
of
cash
and/or valuables; related to the supply of vehicles and security
guards and/or security officers; or full spectrum of automated
teller
or dispensing machine services’ or all aspects of cash or
valuables handling or storage or processing; or pay or pension
packing or pay-out services for, and/or on behalf of, and/or between
any business, financial institution or parastatal.’
[24]
For
all intents and purposes, the cash-in-transit is a recognised
component within the Council’s scope of registration as
it
forms part of the Council’s constitution which was adopted
prior to the certificate of registration being issued.
[25]
In
the circumstances I am satisfied that the word good(s) in the
Council’s certificate of registration includes cash.
[26]
The
other issue raised by the parties is the test that should apply in
reviewing a demarcation dispute particularly when the dispute
is
about the interpretation of words or phrases in a certificate of
registration or similar instruments. This issue was finally
resolved
in the matter of
NUMSA
v ASSIGN Services
,
[5]
where this Court held that:
‘
An incorrect
interpretation of the law by a commissioner is, logically, a material
error of law which will result in both an incorrect
and unreasonable
award. Such an award can either be attacked on the basic of its
correctness or for being unreasonable
.’
[6]
[27]
In
matters such as the present, the test that is of application is that
of correctness or reasonableness. In the circumstances,
this appeal
must fail. With regard to costs, I believe that in terms of law and
equity each party should bear its own costs.
[28]
In
the result, the appeal is dismissed.
____________________
Waglay
JP
I
agree
____________________
Tlaletsi
DJP
I
agree
_____________________
Phatshoane
AJA
APPEARANCES:
FOR
THE APPELLANT:
Adv A Redding SC
Instructed
by Webber Wentzel Attorneys
FOR
THE FIRST RESPONDENT:
Adv A Myburgh SC
Instructed
by Bowman
Gilfillan
Inc
[1]
1920
AD 510
at 511.
[2]
Padyachi
v Rex
1919
NPD;
S
v Ganyu
1977 (4) SA 810
(RA); and
R
v Behm
(1970) 12 DLR (3
rd
)
260.
[3]
Commission for
Conciliation, Mediation and Arbitration.
[4]
‘
Road
Freight and Logistics Industry or “Industry” means the
industry in which employers and employees are associated
for
carrying on one or more of the following activities for hire or
reward:
(i)
The
transportation of goods by means of motor transport;
(ii)
The
storage of goods, including the receiving, opening, unpacking,
packing, despatching and carrying of, or accounting for goods
where
these activities are ancillary or incidental to paragraph (i) above;
and
(iii)
The
hiring out by labour brokers of employees for activities or
operations which ordinarily or naturally fall within the
transportation
of goods irrespective of the class of undertaking,
industry, trade or occupation in which the client is engaged as an
employer.’
[5]
[2017]
10 BLLR 1008 (LAC).
[6]
At
para 32. See also the authorities cited therein.