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[2008] ZALCJHB 81
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Mathosi and Others v Kintetsu World Express (Pty) Ltd and Another (J1357/07) [2008] ZALCJHB 81 (31 March 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no: J1357/07
In
the matter between:
EDDIE
MATHOSI & 33 OTHERS
Applicants
and
KINTETSU
WORLD EXPRESS (PTY) LTD
First Respondent
SOUTH
AFRICAN AIRWAYS
TECHNIKON
(PTY)
LTD
Second
Respondent
J
UDGMENT
MOSHOANA
AJ
Introduction
[1]
This as an application brought in terms of the provisions of Section
158 of the Labour Relations Act. In particular the applicants
are
seeking the following order:-
1.
The settlement agreement entered into between the parties at the CCMA
on the 10
th
February 2006 is made an order of this Court.
2.
It is declared that, in order for the parties to comply with
paragraph B of the agreement, it is necessary
for the parties to
either determine the rationale and scope of application of the job
evaluation exercise conducted by South African
Airways Technical
(Pty) Ltd by agreement or, failing agreement, to appoint an
independent third party to conduct a
fact finding
exercise in order to make such determination.
3.
That such determination be made within
three (3) months from the date of this order.
4.
The respondents to make payment of
the costs of this application jointly and severally, the one paying
the other to be absolved.
5.
Further or alternative relief.
The
application was opposed by the first respondent.
Background
facts
[2]
The applicants are employees of the first respondent, having been
transferred to the first respondent in terms of the provisions
of
Section 197 of the Labour Relations Act. On or about 10 February 2006
a dispute which had been referred by the
applicants to
the Commission for Conciliation Mediation and
Arbitration was settled and an agreement was produced
and signed by
both parties. It is apposite at this stage to quote in this judgement
the entire agreement which read as follows:-
“
1.
The applicants referred a dispute to the CCMA
GA42792/04.
2.
The parties agree
to settle the matter on the following basis:-
2.1
Disclosure of information
2.1.1
The parties will meet on a day to be agreed but by no later than 30
days from the day hereof to:-
(a)
Make available all relevant information pertaining to the job
evaluation and related issues conducted by SAA.
(b)
Conduct a fact finding exercise to determine the rationale and scope
of application of the job evaluation
exercise conducted by the SAA.
3.
The applicants withdraw the dispute lodged under case number
GA42792/04. The parties agreed:-
3.1
This is in full and final settlement of the said dispute without
further recourse.
3.2.1
No variation of this agreement will
be legally binding unless reduced to writing and signed by both
parties.
3.2.2
In the event of the respondent
failing to comply with its obligation in terms of this agreement,
respondent consents to this agreement
be made an order of court in
terms of
Section 143
of the
Labour Relations Act 66 of 1995
.
Signed
at Johannesburg on this 10
th
day of February 2006 in the presence of the undersigned witnesses
applicants signed, respondent signed and SAAT.”
[3]
On or about 27 March 2006, following the settlement agreement, the
parties met and some discussions were held. In the applicant’s
view the meeting was not in compliance with paragraph B of the
agreement in that there was no fact finding exercise and there was
no
determination of the rationale and scope of the application of the
job evaluation exercise conducted by South African Airways
Technical
(Pty) Ltd. The first respondent contend that paragraph B of the
settlement agreement had been fully complied with and
there is no
basis for the application before court. It does appear that the
applicants sought and demanded a fact finding exercise
and the
determination of the rationale and scope of the job evaluation
exercise. It is also apparent that the first respondent
held to its
contention and did not agree to the demand of the fact finding
exercise and a determination. According to the applicants,
as a
result of the inactivity on the part of the respondent and despite
the settlement agreement, they then referred a further
dispute to the
CCMA in June 2006 under case number GAJB12946/06. In respect of that
referral, the CCMA held that it did not have
jurisdiction to
entertain the dispute. On the 13
th
September 2006, the applicants referred yet another dispute to the
CCMA under case number GAJB21801/06, which was, as set out in
the
applicants’ papers, in an attempt to obtain compliance with the
settlement agreement. That dispute was withdrawn on the
5
th
April 2007. Prior to its withdrawal, on the 6
th
February 2007, a letter was addressed by the applicants’
Attorneys of record Ruth Edmonds inquiring whether the fact finding
meeting ever took place and what its outcome was. It does appear that
for a period of time the applicants did not receive response
to the
question. As a result a further letter was addressed on the 12
th
March 2007 wherein the applicants indicated their displeasure at the
matter being ignored and indicated that it may be necessary
for them
to approach the court for the enforcement of the settlement
agreement. It does appear that further correspondence were
exchanged
wherein opposing views were placed on record. Ultimately on the 18
th
October 2007, the Applicants lodged an application under
consideration.
Argument
[4]
Edmonds appearing for the applicants contended that there has been
non-compliance with the agreement hence the application to
make the
settlement agreement an order of court. She submitted that the term
“fact finding exercise and determination”
has acquired
legal meaning to the extent that it means, quoting from the
Engen
Petroleum Ltd v Commission for Conciliation Mediation and Arbitration
and Others 2007 28 ILJ 1507
(LAC),
that parties or a third party must pass moral or value judgement when
deciding the rationale and scope of application of the job
evaluation
exercise conducted by South African Airways Technical. She made
reference to the provisions of
Section 135
(3) of the
Labour
Relations Act which
enables a commissioner at the CCMA to conduct a
fact finding exercise which in her submission necessitates an agreed
or objectively
ascertainable findings of fact. In her submissions
there was no such findings of fact ever been made either by the
parties or a
third party.
[5]
In view of the refusal to have a determination, which she understood
in the context of the
Engen
judgement, the applicants held an unshakable belief that the
settlement agreement had not been complied with. On the other hand
Van Zyl appearing for the first respondent, submitted that there has
been no non-compliance with the agreement and as such the
court
should refuse to make the settlement agreement its order. He referred
to various portions of the minutes of the meeting of
the 27
th
March 2006, which the court shall refer to later in this judgment. He
also submitted that the case for the applicants is one of
interpretation of the settlement agreement. He made reference
to authorities where the concept of implied terms of an agreement
was
considered at length. In view of the approach I take in this matter,
it is not necessary to consider at length the submissions
in that
line. Suffice to mention that the court found those authorities and
submissions to be helpful but not in the context of
this judgment in
view of the approach taken. Both parties submitted that costs should
follow the result.
Analysis
[6]
It does appear that the first prayer is one that the court can refer
to as a 158 (1) (c) relief.
[7]
Section 158
(1) (c)
provides as follows:-
“
The
Labour Court may make any arbitration award or any settlement
agreement an order of the court.”
[8] It should be
undeniable that the court has a discretion in applications of this
nature. In my view the court would make arbitration
awards and or
settlement agreements order of this court simply to comply with the
doctrine of effectiveness. It is so that the
orders of this court may
be executed as if it were decision, judgement or order of the High
Court.
See:
PSA v National Health Laboratory Science
(2007) 6 BLLR 559
(LC)
and
Norkie v Diskom Discount
(2001) 6 BLLR
652
(LC)
[9] A bit of history
would help, particularly for the purpose of considering whether it is
appropriate for the court to exercise
its discretion in favour of
making the settlement agreement its order. Prior to the 2002
amendments, arbitration awards and settlement
agreements reached at
the CCMA could not be enforced unless they are made an order of court
in terms of the provisions of
Section 158
(1) (c). At that time it
perfectly made sense why the court would wish to exercise its
discretion in favour of making awards and
settlement agreements its
order.
The
sense being that it renders the settlement agreement and or the
arbitration award executable in terms of the provisions of the
section 163
of the
Labour Relations Act. As
a result this court was
flooded with applications in terms of
Section 158
(1) (c), which at
times were coupled with review applications. This court had indicated
that it would exercise its discretion to
make an arbitration award an
order of court in instances where the other party bound by the award
failed to comply with the arbitration
award.
(See
City of Tshwane Metropolitan
Municipality v Kampanela NO & Others
(2004) 1 BLLR 1
LAC)
[10]
Of course in 2002, the position changed slightly in the sense that
the provisions of 158 (1) (c) were not completely
repealed but the
provision of
Section 142
(A) was introduced which provided that the
commission may by agreement between the parties or on application by
a party make a
settlement agreement in respect of any dispute that
has been referred to the commission an arbitration award. For the
purpose of
that subsection a settlement agreement being a written
agreement in settlement of a dispute that a party had a right to
refer to
arbitration in terms of the
Labour Relations Act. Section
143 provides that an arbitration award issued by a commissioner is
final and binding and it may be enforced as if it were an order
of
court unless it is an advisory arbitration award. The provisions of
section 143
(3) made a proviso that the arbitration award may only be
enforced in terms of subsection one if the Director has certified
that
the arbitration award is an award contemplated in Subsection
one. As a result of that there has been a decline in the 158 (1) (c)
applications except in the context of it being a counter-application
in a review application.
[11]
Therefore in view of what has been stated above this court would only
exercise its discretion to make an arbitration
award an order if
there is sufficient evidence of non-compliance. The parties to the
settlement agreement made a provision that
in the event of
non-compliance either of the parties may approach the court to make
the settlement agreement an order of the court,
although reference is
made to
section 143
of the
Labour Relations Act as
opposed to
section
158
(1) (c) of the
Labour Relations Act. So
in effect for the
applicant to persuade the court that it should exercise its
discretion in favour of making this settlement agreement
an order of
the court, it ought to show that there has been non-compliance.
[12]
The basis thereof is clear in that, it will superfluous for the court
to make an arbitration award or a settlement agreement
an order of
this court when it cannot be executed and no evidence exist
that a party has refused to comply.
[13] In this
matter, the contention of the applicants is that there has been
non-compliance, in that, in its view the fact
finding and the
determination had not occurred. As appointed out earlier the
respondent is of the view that it had complied. It
therefore means
that there is a material dispute of fact and if it is to be resolved
on the papers it has to be resolved on a basis
of admitted facts and
what the respondents contend.
(
See
Plascon- Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 3 SA
623
(A)
)
[14]
From the agreement, applying the ordinary principles of
interpretation, it is apparent that the parties sought to consider
paragraph A and paragraph B of the agreement in a meeting. Therefore,
it follows that the first step of compliance would be to
have a
meeting, which meeting as it is common cause was held on the 27
th
March 2006. Most importantly and in relation to the complain that
Part B of the agreement had not been complied with, the minutes
of
the meeting of the 27
th
March 2006 reveals the following:-
“
In
terms of the settlement agreement, and I’m just going to record
this settlement agreement:-
The
parties agreed to settle the matter on the following:-
1.
Disclosure of information. The
parties will meet on a day to be agreed, but no later than 30 days
from the date hereof:-
2
Make available all relevant information pertaining to the job
evaluation and related issues conducted by SAA, conduct a
fact
finding exercise to determine the rationale and scope of application
of the job evaluation exercise conducted
by SAA.
3. Withdrawal of
action.
U:
Johan you must tell us what you need from us and how you want us to
do this.
JC:
We are here, you have your meeting, thank you. Thank you for this
opportunity, can I use the board also. According
to my understanding
and documents in our possession, it was recorded in August; wait let
me just …August 2000. There is
documentation that in August
2002 a right to our view to job evaluation. (Johan, just press it at
the back like a ball point).
This one…Job evaluation, right to
a job evaluation was established. But the relevant recording at what
was said at the meetings
reads something to the following that after
restructuring a job evaluation would occur. Now relative to the first
one, we want
info…Here are the vice words…info, the
first agreement, the second one is make available…job
evaluations,
yes
an info relative to that …job evaluation, the third one in the
fact finding about rationale and scope. Yes…fact
find to the
rationale in the scope. Obviously is important for us to establish
that is why we need the info it is important for
the dispute group to
establish what the scope of this job evaluation was. And what the
outcome was… for that … another
thing that
I
need info on in order for me to really be geared because, that is our
case the reason for signing that document even though my
client is
not very happy about that, because I need info.”
Further the said minutes
reveal the following:-
“
JC:
Ja the job evaluation exercise …
U:
The reason behind the whole job description and
job evaluation doing one the same job, but being paid differently.
Which was …
JC:
But can you give me something more…
U:
This is what I’m indicating to you…
Based on that exercise of submission of their job description
and the
evolution thereof, they were all alive, the once of similar grade,
similar functions, they were aligned and they were paid
accordingly
that’s the rationale…
JC:
I would …
U:
And then the scope be the entire as a Technical. I don’t know
as to what…
JC:
This maybe the answer let’s argue for a second
that there were twenty employees.
U:
No, Johan, what I’m saying is …the
scope would be the SAA Technical as a whole, so I’m
not sure
…as to what is it that within the scope that you would want.
Do you want us specifically to …our controllers
and
supervisors.
JC:
Yes…the two groups.
U:
So … in terms of the scope you would get the same information
that of job evaluation and job description
that would be your scope…
JC:
Ok for those two grades what are those grades.
U:
That is supervisors and stock controllers, so your
scope will be the same as the supervisors and nothing or
nothing less
because we do not want to involve the entire …otherwise it
will be a tedious exercise. So it will be supervisors
and stock
controllers, that is your scope and that is what you want from us.
JC:
Yes, but now just have a look at this and follow the
logic, I think in my argument… this past August 2002,
when
this meeting took place where this was mentioned let’s argue
there were twenty employees, and from this twenty were
supervisors
and some were stock controllers… I need to establish, that I
can do. What has happened there, after this extraction,
no see this
moving picture please…
U:
Johan, there was no restructuring… I should
we think that we did said that a number of times at SAA
there was no
restructuring …and there is still no restructuring up to now.
What we did was the exercise we did discuss…
JC:
Outsourcing…only.
U:
The outsourcing was before the exercise.”
[15]
It is therefore clear from the exchange that had been referred to,
being an extract of the minutes which Mr.Krause, who
was representing
the applicants at the time confirmed to be a true reflection, that
parties were engaging in the issues relating
to rationale and the
scope of the job evaluation as set out in the settlement agreement.
[16] In the same
letter, confirming the correctness of the minutes, dated 25 May 2006,
the representative of the applicants
went on record to say the
following:-
“
We
therefore see that the objectives in the agreement at the CCMA led to
the discovery that the job evaluation result in the benefits
accruing
to SAAT employees (by virtue of the Mark Antrobus award). Indeed
following the finalisation of the 2000 job evaluation.
SAAT cannot
provide, or at least did not provide any proof of any other
evaluation or anything similar to the Mark Antrobus award
at our
agreed meeting. Kindly indicate the current KWE attitude relating to
the dispute as the employees indicated that they are
desirous for a
re-referral of the case as the objectives in the CCMA agreement led
to a re-enforcement of the grounds in which
they referred initially
and also because the statements made by SAAT were proved to be
without any substance and indeed, which
leads to the possible
conclusion of bad faith from role players”.
[17]
Again it is clear from the letter that the objectives of the
agreement were met after the discussion held in the meeting
of the
27
th
March 2006. It therefore appear that what the applicants were seeking
was to re-refer in order to re-enforce the grounds of the
initial
referral.
[18]
In the circumstances and applying the
Plascon-Evans
test, I do not see how I should find that there has been
non-compliance with a settlement agreement to the extent that this
court
should exercise its discretion in favour of making the
settlement agreement its order. If the court were to make this
settlement
agreement an order, given the views held by the applicants
that there has been non-compliance, it would be opening up the
respondents
to committal to imprisonment, in that if they do not do
what the applicants suggests emanates from the agreement, which in
their
view they have done, they shall be considered to be in
contempt. Although in such circumstances, committal to imprisonment
could
not be decreed, the applicants may attempt to bring such an
application to the inconvenience of the respondent.
[19]
The second and third prayers are more of a declarator, which seem to
suggest that there was a breach of the agreement,
hence there is a
quest for what appears to be specific performance. Obviously the
court in considering declarators it takes the
same approach as it
does in interdicts. The version of the applicants has been
strenuously disputed by the respondents. In the
circumstances it is
inappropriate for the court to issue a declarator in such
circumstances.
[20]
It does appear that the course open for the Applicants is that
submitted by the respondent, which as I have pointed out
earlier in
this judgement I shall not dwell much on, being the one of breach of
the agreement. Such would call up issues like the
proper
interpretation of the clauses and where necessary issues of
rectification would come in to play.
Order
[21]
For reasons set out above I make the following order:
1.
The application is dismissed with costs.
_____________________
Moshoana
AJ
Acting
Judge of the Labour Court
Johannesburg
Appearances
For
the applicant : Ruth
Edmonds
For
the respondent : Adv Brian van Zyl
Instructed
by
: Francois Le Roux Attorneys
Date
of hearing
: 19 March 2008
Date
of Judgment : 31 March 2008