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[2010] ZALCCT 20
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Bobcrete (Pty) Ltd v Building Industry Bargaining Council and Another (C940/2009) [2010] ZALCCT 20 (4 May 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN CAPE TOWN
NOT
REPORTABLE
CASE
NO: C940/2009
IN
THE MATTER BETWEEN:
BOBCRETE
(PTY)
LTD APPLICANT
AND
BUILDING
INDUSTRY BARGAINING
COUNCIL 1
ST
RESPONDENT
COMMISSIONER
STEPHAN CLOETE NO 2
ND
RESPONDENT
JUDGEMENT
CHEADLE
AJ
[1]
The applicant manufactures concrete slabs
and similar components for use in the building industry. The first
respondent is the bargaining
council registered for the building
industry. The applicant contends that it does not fall within the
scope of the Council and
its collective agreements while the council
contends that it does.
[2]
The failure of the employer to comply with
the Council’s main agreement (GG No 30059 of 27 July 2007 as
amended by GG 30586
of 21 December 2007) was referred to arbitration
by the second respondent, the Commissioner.
[3]
It is common cause that the applicant
manufactures products for use in the building industry. Its principal
business consists of
structural design (approximately 40% of what the
company does), the manufacture of pre-stressed and pre-cast concrete
products
which are commonly referred to a ‘T-beams’
(approximately 20% of what the company does) and the manufacture of
concrete
beams and stairs (approximately 40% of what the company
does). The manufacture of the T-beams and the concrete beams and
stairs
is not done on site although about 20 employees out of 128
employees will periodically assist client builders in the
installation
of the beams and stairs without charge. In summary the
assistance in delivery and installation is a very small percentage of
what
the applicant does.
[4]
The Commissioner founded his authority to
determine whether the applicant fell within the scope of the main
agreement on clause
25 of the agreement, which gives the Council the
authority to determine a dispute arising from the interpretation and
application
of the agreement. It is trite that the authority to
determine such a dispute includes the authority to determine a
dispute over
the enforcement of a collective agreement. And in doing
so an arbitrator must satisfy herself that she has jurisdiction,
namely
whether or not the employer and employees subject to the
arbitration fall within the scope of the agreement.
[5]
However if in any proceedings before a
Commissioner about the interpretation or application of a collective
agreement, a question
is raised as to whether any employer or
employee is bound by any provision of a collective agreement, section
62(3A) requires the
Commissioner to adjourn the proceedings and refer
the question to the CCMA if she is satisfied that the three
conditions set out
in that subsection are met.
[6]
The three conditions are:
6.1
the question must not have been previously
determined by arbitration under the section;
6.2
the question is not the subject of an
agreement between two or more councils contemplated in subsection
(2);
6.3
the determination of the question is
necessary for the purposes of the proceedings.
[7]
It is quite clear from the record and the
second respondent’s award that the question of whether the
applicant was bound by
the provisions of the main agreement was
raised by the applicant. The second respondent ought then to have
considered whether the
three conditions were met and, if so, then
referred the question to the CCMA for determination under section
62(3A). The failure
to do so is a material irregularity vitiating the
award.
[8]
The question is then whether this Court
should refer the matter back to the second respondent in order for
him to satisfy himself
whether the three conditions referred to in
section 62(3A) have been met or to substitute his decision with a
decision by this
Court. A reviewing court only substitutes its
decision in place of an arbitrator’s in circumstances where the
decision of
the arbitrator is a foregone conclusion. In this case it
is evident from the award itself that there has been no determination
of the question – the council’s decision to decline
jurisdiction was merely an opinion not a determination (para 19
of
the Award at 56 of Bundle A). It is not the subject of an agreement
between two councils. The determination of the question
is clearly
necessary to determine whether the applicant is bound by the
provisions of the main agreement. It follows that it is
unnecessary
for me to refer the matter back to the second respondent and it is
permissible and in the interests of the expeditious
resolution of the
dispute to refer the question of whether the applicant is bound by
the provisions of the main agreement to the
CCMA for its
determination under section 62.
[9]
The applicant has sought to persuade me to
make a finding on the merits of the respective contentions and to
declare that the applicant
is not an employer engaged in the building
industry. But that would be requiring this Court to do what section
62 requires the
CCMA to do – it would be pre-empting what the
CCMA must decide.
[10]
There being no opposition, no order of
costs is sought against either of the respondents.
[11]
Accordingly the following order is made-
11.1
The award of the second respondent dated 9
October 2009 that the applicant is an employer engaged in the
building sector as defined
in the main agreement for the building
industry (GG No 30059 of 27 July 2007 as amended) is reviewed and set
aside;
11.2
The question of whether the applicant is
bound by the provisions of the main agreement for the building
industry (GG No 30059 of
27 July 2007 as amended) is referred to the
Commission for Conciliation, Mediation and Arbitration for
determination under
section 62
of the
Labour Relations Act, 66 of
1995
;
11.3
No order is made as to costs.
_______________
CHEADLE
AJ
Date
of Hearing :
15/04/2010
Date
of Judgment :
04/05/2010
Appearances
For
the Applicant
: Adv.
Rautenbach
Instructed by
: Maserumule Inc Attorneys