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[2011] ZALCJHB 18
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National Union of Mineworkers v Commission for Conciliation Mediation and Arbitration and Others (JR 201/2011) [2011] ZALCJHB 18; [2011] 7 BLLR 713 (LC); (2011) 32 ILJ 1975 (LC) (22 February 2011)
Reportable
Delivered
220211
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT JOHANNESBURG
Case no: JR 201/2011
In
the matter between:
NATIONAL
UNION OF MINEWORKERS
…..................................................
Applicant
and
COMMISISON
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
…..................................................
First
respondent
MALAZA
N.O.
…............................................................................
Second
respondent
BHP
BILLITON ENERGY COAL SA LTD
….....................................
Third
respondent
UASA
…...........................................................................................
Fourth
respondent
ASSOCIATION
OF MINEWORKERS
AND CONSTRUCTION UNION
…......................................................
Fifth
respondent
JUDGMENT
___________________________________________________________________
VAN
NIEKERK J
Introduction
[1] This is an
application to review and set aside a ruling made by the second
respondent, to whom I shall refer as ‘the facilitator’.
The facilitator was appointed in terms of
section 189A
of the
Labour
Relations Act, 66 of 1995
, after the third respondent (the company)
issued a notice of retrenchment in terms of
s 189(3).
[2] On 3 February 2011,
this court made an order under case number J116/2011, an urgent
application to interdict the company from
proceedings with
retrenchment consultations. In terms of the order, the application
was postponed to 21 February 2011 for argument
on costs. The terms of
the order further recorded the parties’ agreement that the
present application, brought by the applicant
under case number
JR201/2011, would be heard on an expedited basis, on the same date.
Finally, by agreement, the consultation process
initiated by the
company in terms of its
s 189(3)
letter and the facilitation process
that had commenced was suspended, and the costs of the application
reserved.
Factual background
[3] On 1 November 2010,
as indicated above, the company gave notice in terms of
s189
(3) of
the LRA of the contemplated retrenchment of approximately 454
employees. In the same notice, the company recorded that it
had
requested the first respondent, the CCMA, to appoint a facilitator in
terms of
s 189A
(3) of the Act. In due course, the CCMA appointed the
facilitator for the purposes of a meeting held on 24 November 2010.
At the
meeting, the fifth respondent stated that it objected to the
facilitation covering all of the company's operations affected by the
contemplated retrenchments. The fifth respondent's position was that
it would prefer each operation to be allocated its own facilitation
process, on the basis that the operations were autonomous from the
company and that each constituted a separate workplace. This
view was
shared by the fourth respondent. The company informed the facilitator
that in its view, the consultation process should
cover all of the
affected operations. The record of the meeting records the company's
representative as having noted that the company
is the employer of
all of the affected employees, irrespective of the operation in which
they are engaged. He stated further that
the company preferred not to
conduct separate consultation processes at its various operations and
noted that
s 189
, which regulated the consultation process, referred
to ‘the employer’ and not to discrete business units. The
applicant
raised different issues of the meeting. It objected to the
facilitator, who was not the person whose name had appeared on the
notice
scheduling the meeting. It also recorded the view that the CCM
A's involvement was premature. The facilitator adjourned the meeting,
stating that he would prepare an outcome report.
[4] The facilitator's
report records
inter alia
the following:
The argument of AMCU
and UASA that they view every operation of BECSA to be autonomous and
that each should have its own consultation
separate from others seems
to me informed by
section 213
of the NRA regarding the definition of
workplace. The definition of workplace in terms of
section 213
of the
Act states that workplaces under the same employer will be regarded
as separate and if they are independent by virtue of
their size,
organisation and functions. It is therefore apparent that the
argument of AMCU and UASA that they understand BECSA
to be a holding
operation with autonomous operations will have to be given
consideration in making a ruling on this matter.
Without any further
analysis of the issue, the facilitator concludes the report as
follows:
Each operation of
BECSA that is affected by the purported operational requirements must
be consulted separately as an autonomous
operation as per the
definition of the workplace in terms of
section 213
of the Act.
[5] The application to
review and set aside facilitator’s ruling is brought in terms
of
section 158(1)
(g) of the LRA. That section empowers this court,
subject to
section 145
, to ‘review the performance or purported
performance of any function provided for in this act on any grounds
that are permissible
in law'. The applicant relies on the
Promotion
of Administrative Justice Act, 3 of 2000
, and contends
inter alia
that the facilitator’s ruling was
ultra vires
his
powers in that he was not authorised by the empowering provision,
namely
s189A
(6)(b) of the LRA read with the Regulations published in
Government Notice or 1445 on 10 October 2003, to make a ruling as to
the
level at which consultations should be conducted.
[6]
Section 189A(6)(b)
of
the LRA reads as follows:
“
The
Minister, after consulting NEDLAC and are the commission, may make
regulations relating to –
...
the powers and duties
of facilitators.
‘
[7] The relevant
regulations read as follows
4.
Powers
and duties of a facilitator
(1) Unless the parties
agreed otherwise, the facilitator may –
chair the meeting
between the parties;
deciding the issue of
procedure that arises in the course of meetings between the parties;
arrange for the
facilitation meetings after consultation the parties;
direct that the
parties engaging consultations out facilitated been present.
(2) A decision by a
facilitator in respect of any matter concerning the procedure for
conducting facilitation, including the date
and time meetings, is
final and binding.
(3) By agreement
between the parties, the facilitator may perform any other function.
5. Power to order
disclosure of information
(1) If there is a
dispute about the disclosure of information facilitator may, after
hearing representations from the parties, make
an order directing an
employer to produce documents that are relevant to the facilitation.
(2)
Sections 189
(4)(b) and
16
(5) and (10) to (14) of the Act, read with the changes
required by the context, applied to any dispute concerning the
disclosure
of information in terms of subregulation (1).
Facilitation
meetings
A facilitator must
conduct up to four facilitation meetings with the parties, unless
the dispute is settled in a lesser number
of meetings or the parties
agree to a lesser number of meetings.
The Director after
consulting the facilitator may increase the number of meetings that
a facilitator must conduct with the parties.
The number of
meetings specified in subregulation (1) does not include any
meetings convened for the purpose of the facilitator
arbitrating a
dispute over the disclosure of information.
[8] The fourth and fifth
respondents contend that having regard to the intended purpose of
facilitation, the powers and duties of
a facilitator should be
construed widely. In particular, they submit that the facilitator’s
powers to decide on any issue
of procedure in terms of
Regulation 4
(1)(b) should not be restricted to ‘housekeeping’
arrangements in respect of the facilitation process itself, but
should extend to the power to make decisions on the consultation
process, especially where the parties to the process are not
ad
idem
as to the process to be followed. In the present instance,
the parties to the facilitation process had failed to reach agreement
on the level that would consultation should be conducted. This issue
arose during the course of the facilitation meeting and the
facilitator was thus empowered to deal with the matter in terms of
Regulation 4
(1) (b). Alternatively, the fourth and fifth respondents
contend that to the extent that
Regulation 4(3)
contemplates the
facilitator performing functions by agreement between the parties,
there is no bar, in the absence of any formalities,
to the
facilitator acting in terms of a tacit agreement. On the basis of the
record of the facilitation meeting, the third and
fourth respondent
contended that it was at least tacitly agreed that the facilitator
would be entitled to make a decision concerning
the level at which
consultation should take place
[9] The process of
facilitation introduced by
s 189A
of the LRA is akin to the
conciliation process described in
s 135
of the Act. This much is
evident from the wording of
Regulation 7
, which provides that the
facilitation, in the absence of agreement, is conducted on a without
prejudice basis and that ordinarily,
the record of the facilitation
may not be disclosed in any court proceedings, nor may any person
call a facilitator to give any
evidence on any aspect of a
facilitation in any legal proceedings. In terms of
Regulation 8
, a
person placed on a panel of facilitators must have a proven knowledge
experience and expertise in conciliation, mediation or
facilitation
of labour relations disputes. In other words, the process is one
designed to encourage parties to reach their own
agreement, not one
in which a third party is appointed to make rulings on substantive
issues that may arise during the consultation
process. As Clive
Thompson has suggested
The facilitator’s
job is to act as a resource to the consultative process. Clearly the
first prize is to assist the parties
in arriving at a full agreement
in relation to the operational needs of the employer and the
employment implications for staff
(
see Thompson and Benjamin
South African Labour Law
, Juta, at AA 1- 519)
[10] This observation is
made subject, of course, to
Regulation 5
, which clearly envisages
that the facilitator may make orders in relation to the disclosure of
information. These, it would seem
to me, are akin to the rulings that
may be made an arbitrator acting in terms of
s 16
of the LRA; indeed,
Regulation 5(2)
cross-refers to
s 16.
Unlike Regulation 5(1),
Regulation 4(1) (b) does not empower the facilitator to make orders.
He or she may make a final and binding
decision on any issue of
procedure that arises in the course of meetings convened by the
facilitator. The limited scope and nature
of those decisions is
reflected by the provisions of Regulation 4 (2) which makes specific
reference to decisions concerning the
procedure for conducting
facilitation, "including the date and time of meetings".
Included in this category no doubt
might be decisions about speaking
rights, the adjournment of facilitation meetings, and the like. In
other words, but for issues
of disclosure of information, the
Regulations do not contemplate that a facilitator is empowered to
make substantive decisions
about the rights of the consulting
parties, or the universe within which those criteria must be applied.
In the absence of agreement
between the consulting parties, these are
matters for the employer to determine, in the discharge of the
statutory obligation to
conduct a fair procedure, and at the risk of
a challenge based on the fairness of its conduct.
[11] In short, in my
view, the facilitator was not empowered to make a binding ruling as
to the level at which consultations in
terms of s 189 should be held.
For that reason, the ruling stands to be reviewed and set aside. To
the extent that the fourth and
fifth respondents rely on a tacit
agreement to the effect that the facilitator be empowered to make a
binding ruling as to the
level at which the consultation meetings
would e held, this is not a case that can be sustained on the papers.
I need not in these
circumstances consider the applicant’s
further submissions, but I would observe in passing that the basis of
the facilitator’s
ruling, which amounted to an application of
the concept of a ‘workplace’ as defined by s 213 of the
Act, is relevant
only to the acquisition of organisational rights and
the constitution of workplace forums.
[12] I turn now to the
question of the costs of the urgent application brought in terms of
section 189A (13). The fourth and fifth
respondents contend that an
application in terms of that section is competent only once it has
been shown that the procedure followed
by the employer concerning is
manifestly unfair. (See
National Union of Metalworkers of South
Africa v Greenfields Labour Hire
(2004) 25
ILJ
558 (LC),
and
Retail and Associated Workers Union of SA v Schuurman Metal
Pressing (Pty) Ltd
(2004) 25
ILJ
2376 (LC). In particular,
the fourth and the respondent contended that the applicant failed to
establish that the consultation
process followed by the third
respondent in accordance with the second respondent's ruling was
unfair, to the extent that intervention
was warranted. Further, it is
contended that the applicant should in the first instance have
applied to have the review application
heard on an expedited basis.
[13] Section 162 of the
LRA confers a discretion on this court to make orders for the payment
of costs, according to the requirements
of the law and fairness. In
National Union of Mineworkers v East Rand Gold and Uranium Ltd
[1991] ZASCA 168
;
1992 (1) SA 700
(A), what was then the Appellate Division of the
Supreme Court held that in the exercise of its discretion, the court
should take
into account the existence of any collective bargaining
relationship, and the potential prejudice that an order for costs may
present
to the parties. In the present instance, I am particularly
mindful that a consultation process is underway, and that the parties
are statutorily obliged to engage in a process of meaningful
consensus-seeking. I am fully aware of the subtext of the tension
(if
not rivalry) that exists between the applicant and the fourth and
fifth respondents. It is clear to me that an order for costs
in the
present circumstances will serve only to add to the tension that
already exists, and would potentially frustrate the prospect
of
agreement on the terms of any retrenchment that may result. For this
reason, in my view, no constructive purpose would be achieved
by
making an order for costs in respect of either these proceedings or
the urgent application.
I accordingly make the
following order:
The ruling issued by the
second respondent under case number in the 7755 – 10 on 24
November 2010 is reviewed and set aside.
There is no order as to
costs in respect of the proceedings under case number JR 201/2011.
There is no order as to
costs in the application brought under case number JR 116\2011
ANDRE VAN NIEKERK
JUDGE OF THE LABOUR
COURT
Date of application: 21
February 2011
Date of judgment: 22
February 2011
Appearances
For the applicant: Adv JG
van der Riet SC, instructed by Cheadle Thompson and Haysom Inc
For the third respondent:
Adv R Beaton SC, instructed by Brink Cohen Le Roux Inc
For the fourth and fifth
respondents: Adv Grundlingh, instructed by Bester and Rhoodie