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[2001] ZALCJHB 11
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Bader (Bop) (Pty) and Another v National Bargaining Council and Others (JR197/2001) [2001] ZALCJHB 11 (22 August 2001)
REVISED
AND REPORTABLE
IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR197/2001
Delivered
on 2001-07-27
Revised
on 2001-08-22
In
the matter between
BADER
(BOP) (PTY) LIMITED AND ANOTHER
Applicant
and
THE
NATIONAL BARGAINING COUNCIL
First
Respondent
THE
NATIONAL UNION OF LEATHER AND
ALLIED
WORKERS UNION (NULAW)
Second
Respondent
JACOB
RAMATHLO & 426 OTHERS
Third
and Further Respondents
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Fourth
Respondent
J
U D G M E N T
PILLAY,
J
:
The
fourth and further respondents were dismissed on 30 January 2001.
On 5 February 2001 the second respondent, The National
Union of
Leather and Allied Workers Union (NULAW), referred their dismissal as
a dispute to the first respondent, The National
Bargaining Council or
The Leather Industry of South Africa. The Bargaining Council
notified the parties on 7 February 2001
that the conciliation was
scheduled for 8 February 2001.
The
applicants informed the Bargaining Council that they were not able to
attend the conciliation at such short notice and proposed
alternative
dates a week later. They also expressed reservations about the
jurisdiction of the Bargaining Council to conciliate
the dispute.
Although none of the parties attended the conciliation on 8 February
2001, the Bargaining Council issued a certificate
confirming that the
dispute remained unresolved.
This
is an application to set aside the certificate issued by the
Bargaining Council and certain other relief. There is also
a
counter application which I will deal with later.
While
there is a duty on all parties to process labour disputes
expeditiously, an application for time to prepare for a conciliation
involving 408 employees, should not be refused unreasonably. By
issuing the certificate the Bargaining Council effectively
refused
the applicants' request for a rescheduling of the conciliation
without further consideration. This was unreasonable.
On
its own it is not a basis to set aside a certificate. Parties
who seriously desire an opportunity to conciliate a dispute
will find
the means to do so. They will not allow the formality of a
certificate to stand in their way. It may well
be that the
Bargaining Council was
fuctus officio
after the certificate
was issued. However, nothing prevented the parties from
approaching this court for an order by consent
to set aside the
certificate. If the applicants valued the opportunity to
conciliate the dispute, as they would have the
court to believe, it
is surprising that they did not follow this course of action.
It
was submitted that when the Labour Appeal Court in
NUMSA
v Driveline
2000
(1) (LAC) BLLR 20 at pages 23-24 paragraph 7 to 9, accepted
jurisdiction despite the flaws in the conciliation
process, it did
not cover the situation where a party was willing to attend
conciliation. I do not agree for the reason discussed
above.
Furthermore, the Labour Appeal Court distinguished between a court's
jurisdiction and the right of a party to be heard.
(Paragraph 8
of the
Driveline
decision). The Labour Court would not be deprived of
jurisdiction as it always retains the discretion to hear matters
despite
defects in the conciliation process.
However,
it was common cause that the Bargaining Council was not registered at
the time for the area in which the dispute arose,
that is the former
Republic of Bophuthatswana. Its registration was extended to
that area only on 9 February 2001.
That being the case the
Bargaining Council had no jurisdiction over the dispute prior to 9
February 2001.
It
was common cause that before 9 February 2001 the dispute should have
been referred to the Commission for Conciliation Mediation
and
Arbitration (CCMA). The correct course of action that should
have been followed by the Bargaining Council was to refer
the dispute
to the CCMA in terms of section 51(4) of the Labour Relations Act No
66 of 1995 (the LRA).
Today,
the CCMA no longer has jurisdiction to conciliate the dispute as the
Bargaining Council has such jurisdiction. By assuming
jurisdiction when it had none over the dispute on 8 February 2001 the
Bargaining Council acted
ultra vires
. The certificate
falls to be set aside. But, this is not the end of the matter.
The
second and third respondents have lodged a counter application for a
declarator as to the validity of the referral for conciliation
and
certain other relief that might lead to the dispute being addressed
substantively. Irrespective of the counter application
the
court is bound in terms of section 1(d) read with sections
158(1)(a)(iii)(b) and (j) of the LRA to channel the dispute in a
way
that it avoids a spiralling of the dispute in an abyss of
technicalities.
In
making the order that I do, and without denying the parties such
rights as they may have in law, the court prevails on the parties,
including the Bargaining Council, to address the dispute effectively
and substantively. It is common cause that the proper
forum to
have conciliated the dispute a day later was the Bargaining Council.
The Bargaining Council is not entirely blameless
in the way it
conducted this process. A bargaining council is required to
exercise its discretion fairly, impartially and
independently.
To say that it acted under pressure when issuing the certificate, is
no excuse to acting
ultra vires
.
The
second and third respondents made a fresh application for
conciliation. Insofar as such application may be late an
application
for condonation can be and is dispensed with in these
proceedings. The reasons for the delay are obviously connected
with
this application. The Bargaining Council would not have
been able to act on the fresh referral until this application was
finalised. Furthermore, for reasons discussed above, the
Bargaining Council has been co-responsible for triggering this
application.
In
considering the costs of both applications the court also takes into
account the following. The second and third respondents
find
themselves in this predicament partly because of their unreasonable
insistence on the certificate being issued on 8 February
2001.
They also persisted in opposing the application when it was clear
that the Bargaining Council had no jurisdiction.
The
applicants on the other hand ought to have consented to obtaining an
order from this court to set aside the certificate as it
would have
recreated an opportunity to conciliate the dispute. It is not
necessary for me to deal with all the relief claimed
by the
applicants and second and third respondents in their respective
applications in view of the order that I am about to make.
1.
The certificate issued by the first respondent on 8 February 2001
purporting to certify that
the dispute between the applicant and the
second and third respondents had been conciliated and remained
unresolved is invalid
and of no force and effect and is accordingly
set aside.
2.
The Bargaining Council is directed to conciliate the dispute on the
basis of the fresh referral
for conciliation within 30 days.
3.
The applicants are awarded costs of their application on an unopposed
basis.
4.
There is no order as to costs in regard to the counter application.
PILLAY,
J