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[2009] ZALCJHB 78
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Tawusa and Alliance Comprising of Stemcwu v Anglo Platinum Ltd (J109/09) [2009] ZALCJHB 78 (23 January 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
NOT
REPORTABLE
CASE
NO: J109/09
2009-01-23
In
the matter between
TAWUSA
& ALLIANCE COMPRISING OF
STEMCWU
Applicant
And
ANGLO
PLATINUM
LIMITED
Respondent
J
U D G M E N T
VAN
NIEKERK J
This
is an application brought as a matter of urgency in which the
applicant seek an order to interdict the respondent from cancelling
the current ER policy, a collective agreement, pending the
finalisation of disputes declared about the interpretation and
application
of the same ER policy in relation to the cancellation and
withdrawal of organisational rights.
The
applicants are the Togetherness Amalgamated Workers Union of South
Africa (TAWUSA) and an alliance comprising various trade
unions that
have members in the employ of the respondent.
In
2002, the respondent concluded a recognition agreement with the
applicants. In November 2006 the respondent took a decision
to
review the terms of that agreement
inter alia
to revisit the
question of thresholds that would apply in relation to recognition
for bargaining and other associated purposes.
On
1 November 2008, the respondent gave written notice terminating the
collective agreement. The agreement would terminate
in
accordance with that notice the following week, on 31 January
2009.
In
September 2008, the applicants referred a dispute to the CCMA.
The dispute was categorised as one concerning the interpretation
and
application of a collective agreement. In essence, the relief
sought by the applicants was to prevent the respondent
from
terminating the agreement on the basis that the agreement itself
contained no cancellation clause.
During
the hearing of this application, an arbitration award by
Commissioner Shear was made available to the court.
Commissioner Shear dismissed the applicant’s case on the
basis, it would seem, that what was requested by the applicants
in
those proceedings was not an interpretation of the collective
agreement at issue rather than a ruling that would prevent the
respondent from cancelling it.
Further
disputes were declared by the applicants during the course of January
2009. These appear to concern primarily the
consequences of any
termination of the collective agreement, and remain pending in the
CCMA.
In
order to succeed in these proceedings, the applicants must establish
that the application is urgent, that they have a clear right
to the
relief they seek, that no other alternative remedy is available to
them and that they will suffer irreparable harm if the
relief sought
is not granted.
I
turn first to the matter of a clear right. Section 23(4) of the
Labour Relations Act provides that a party to a collective
agreement
that is concluded for an indefinite period may terminate that
agreement by giving reasonable notice. The respondent
is, in
terms of that provision, entitled to invoke the right to give
reasonable notice which, in my view, it did; three months
notice is
not unreasonable to terminate the collective
agreement, that
is the subject of these proceedings.
The
applicants’ contentions before the CCMA do not concern the
unreasonableness of the notice of termination given; rather,
they
contend that the respondent is not entitled to cancel the agreement
at all and that certain consequences that will flow from
that
cancellation will have the effect of prejudicing their members’
rights.
At
this point, I mention that the applicants are minority unions who, it
would appear from the papers, will not meet the new thresholds
fixed
by the respondent. Two majority unions, the NUM and UWUSA
(neither of which was cited as a respondent in these proceedings)
will be unaffected by the new terms that the respondent seeks to
implement and, it would appear, will continue to be recognised
and
enjoy the rights that flow from recognition.
The
respondent alleges (and this is not denied by the applicants) that
the majority unions have agreed to the new terms and that
a formal
collective agreement will be concluded with them in due course.
The
relief that the applicants seek, as I have indicated, is in effect an
interdict preventing the respondent from cancelling the
collective
agreement, pending the outcome of the remaining disputes before the
CCMA. To grant this relief would, in my view,
amount to
compelling the respondent to continue in a collective bargaining
relationship to which it no longer wishes to be a party.
The
applicants have, in these circumstances no right to the relief that
they seek, nor is it competent for this court to grant it.
In
this regard I would refer to a judgment of this court,
National
Police Services Union & Others v National Negotiating Forum &
Others
, (1999) 20 ILJ 1081 (LC) in which the court was similarly
faced with an application by a minority union challenging the
introduction
of thresholds into a collective bargaining relationship
that would have the effect of derecognising the applicant and
terminating
rights to check off that it previously enjoyed.
In
that matter the court said the following:
“
All
of these submissions [concerning the consequences of a withdrawal of
check off facility] overlook an important policy consideration
that
underlies the LRA. The LRA adopts an unashamedly voluntrist
approach – it does not prescribe to parties who they
should
bargain with, what they should bargain about or whether they should
bargain at all. In this regime the courts have
no right to
intervene and influence collectively bargained outcomes.
Those
outcomes must depend on the relative power of each party to the
bargaining process. That power is underpinned by the
organisational rights conferred by Part A of Chapter 3 of the Act and
the right to collective action confirmed by Chapter 5.
To
set aside the derecognition of a union and to grant an order, even on
an interim basis, that the union remains recognised in
terms of the
collective agreement constituted by the regulations, would be an
unwarranted interference in a collective bargaining
relationship”.
The
principle upheld in that case is particularly apposite in the present
instance. The applicants have rights under Chapter
5 of the
Act, and they have rights under the organisational rights provisions
contained in Chapter 2 of the LRA which they are
entitled to claim in
the absence of an agreement with the respondent.
In
any event, in these proceedings, the applicants’ failure to
join the NUM and UWUSA is, in my view, fatal. Those unions
obviously are interested parties to these proceedings, since they too
would continue to be bound by collective agreement, the life
of which
would extend beyond 31 January 2009, pending the final
resolution of the disputes that the applicants have referred
to the
CCMA.
Finally,
the applicants have an alternative remedy, one that they have already
invoked i.e. a referral to the CCMA, and there is
no reason in law
for the status quo to be maintained pending the outcome of those
proceedings.
For
all of those reasons, I make the following order:
The
application is dismissed with costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of hearing: 23 January 2009
Date
of Judgment: 23 January 2009
Appearances:
For
the applicants S S Morwane (Union Official)
For
the respondent Mr F Malan from Edward Nathan Sonnenbergs Inc