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[2011] ZALCJHB 57
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Workforce Group (Pty) Ltd v National Textile Bargaining Council and Another (J1186/11) [2011] ZALCJHB 57; [2011] 11 BLLR 1136 (LC); (2011) 32 ILJ 3042 (LC) (7 July 2011)
REPUBLIC OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO: J 1186 / 11
In the matter between:
WORKFORCE
GROUP (PTY) LTD
…...........................................
APPLICANT
AND
NATIONAL
TEXTILE BARGAINING COUNCIL
…........
FIRST
RESPONDENT
CCMA
…....................................................................
SECOND
RESPONDENT
Heard
:
6 July 2011
Delivered
:
7 July 2011
judgment
STEENKAMP J
Introduction
This is an urgent application brought during the July court recess
to stay arbitration proceedings under the auspices of the
CCMA (the
second respondent) due to continue on 13 July 2011.
Background
The first respondent, the National Textile Bargaining Council,
applied to the CCMA in terms of s 62 of the Labour Relations Act
1
on 9 February 2011 to determine a demarcation dispute. It sought a
demarcation that the whole or part of the Workforce Group
(Pty) Ltd
falls within the textile sector; and, to the extent that it does,
that it is obliged to give effect to the Main Collective
Agreement
governing that sector.
The Workforce Group (the applicant in these proceedings) is a
temporary employment service as defined in s 198 of the LRA. It
supplies labour to a number of entities in the textile sector.
The matter was set down for arbitration in Ladysmith, KwaZulu-Natal
on 9 May 2011. The applicant raised two points in limine:
one
pertaining to the CCMA’s jurisdiction to hear the dispute; and
the other raising an exception, alleging that the application
for
demarcation was vague and embarrassing. The jurisdictional point was
based on an argument that the dispute first had to be
conciliated
and that the CCMA did not have jurisdiction to arbitrate absent
conciliation.
Although he did not give written reasons for his ruling, the
arbitrator dismissed both points in limine on the same day, ie 9
May
2011.
The deponent to the founding affidavit, Rian Ferreira (the
applicant’s Group Legal Director) says, somewhat coyly, that
“subsequent to the proceedings in Ladysmith on 9 May 2011,”
the applicant launched an application in this Court to
review and
set aside the arbitrator’s ruling. What he does not say, is
that the review application was only launched on
15 June 2011; and
that this application to stay the continuation of the arbitration
proceedings, pending the review application,
was only delivered on
29 June 2011.
Urgency
The ruling that forms the subject matter of the review application
was made on 9 May 2011. It is now almost two months later.
Yet the
applicant wishes this application to be dealt with on an urgent
basis outside of the court term.
The applicant submits that the matter is urgent because it advised
the Council’s attorneys on 1 June 2011 that it was “in
the process of applying for review” and that, if no agreement
could be reached, it would apply for the arbitration to be
stayed
pending the outcome of the review application. In the same letter of
1 June 2011, though, the applicant says that it and
its counsel are
available from 13-15 July 2011, should the CCMA “...still wish
to have the matter set down for arbitration.”
The applicant did nothing further, other than delivering the review
application on 15 June 2011 – ie two days short of
the
prescribed six-week time limit – until 23 June 2011. On that
day, its attorneys sent a letter marked “urgent”
to the
Council’s attorneys, asking them to advise it by the next day
“...whether your client would be amenable to
postpone the
arbitration set down at the National Textile Bargaining Council,
Durban, on 13 July 2011, pending the outcome of
our client’s
review application.”
The council’s attorneys responded the next day, declining an
agreement to postpone; alleging that the applicant was merely
seeking to delay the demarcation proceedings, and bringing the
applicant’s attention to the fact that this Court is opposed
to Bargaining Council and CCMA rulings being challenged
in media
res,
as set out in
Goldfields Mining SA (Pty) Ltd (Kloof Gold
Mine) v CCMA & others.
2
On 29 June 2011 the applicant delivered this urgent application.
The applicant indicated to the Council’s attorneys on 27 May
2011 that it was “in the process of applying for review”;
yet the review application was delivered in the nick of time,
despite the generous six week period allowed for in s 145(1) of
the
LRA; and the urgent application to stay the arbitration proceedings
was delivered more than seven weeks after the arbitrator
made his
ruling, and almost a month after the applicant indicated its and its
counsel’s availability to continue with the
arbitration on 13
July 2011.
This is a prime example of self-created urgency. The applicant did
not act with any expedition – in fact, even the review
application which underlies the basis of bringing this application
was dealt with in a fairly leisurely fashion, and the application
–
comprising an affidavit of nine pages – was barely delivered
in time. The applicant then sought to have this matter
heard out of
term time on an urgent basis. It has not established sufficient
grounds for urgency.
3
The matter should be struck off the roll for this reason alone.
But aside from my view on urgency, I would not have been inclined to
grant the relief sought on the merits. I will provide brief
reasons
for my views in this regard as well.
The merits
In order to obtain the relief sought, the applicant has to fulfil
the requirements for interim relief, i.e. a prima facie right;
the
absence of an adequate alternative remedy; the apprehension of
irreparable harm; and an indication that the balance of convenience
favours it.
Alternative remedy
The applicant has a clear alternative remedy, namely to apply for a
postponement at the CCMA pending the finalisation of the
review
application. In terms of CCMA rule 23, an arbitration may be
postponed by agreement between the parties; or by application
and on
notice to the other parties. In this case, the applicant has made no
effort to apply for a postponement at the CCMA. There
is nothing in
the CCMA rules preventing the arbitrator from postponing the
continuation of the arbitration pending the finalisation
of the
review application.
I have recently expressed the opinion that, in uncompleted
proceedings, such as the current one, the applicant should have
attended the part heard arbitration in order to finalise the matter.
Had it still being dissatisfied, it could have taken the arbitration
award on review. Alternatively, it could have applied to the
arbitrator already hearing the matter to postpone the hearing
pending the outcome of the review application of his jurisdictional
ruling. Had the arbitrator refused, the CCMA would have been
functus
officio.
The applicant could then have applied to the Labour
Court to review and set aside the arbitrator's refusal to postpone.
4
Prospects of success on review.
In order to establish a prima facie right for the urgent interim
relief sought, the applicant has to show that this is one of
those
exceptional circumstances where the court should intervene in
uncompleted arbitration proceedings. The numerous cases dealing
with
the stay of a writ of execution pending the review proceedings to
which Mr
Jackson
, for the applicant referred, are not helpful
in cases such as these were the applicant seeks to stay the
continuation of arbitration
proceedings.
Mr
Jackson
referred me in his oral argument to the case of
EOH Abantu (Pty) Ltd v CCMA & another.
5
He did so in order to show that this court has jurisdiction to
review a jurisdictional ruling; and that, in that case, the court
granted an urgent application to stay a further arbitration
proceedings before the CCMA pending the outcome of a review
application.
What he did not refer me to, is the subsequent
judgement of Cele J involving the same parties where the earlier
judgement was
not followed.
6
In the 2010 judgment, Cele J had the following to say
7
,
and I agree with him:
“
[E]ven
if the court finds that the decision of the [CCMA] is one which could
be reviewed, the appropriate remedy is to discharge
the interdict
against the [CCMA], because:
The
expeditious resolution of labour disputes is not served by a
piecemeal approach such as the one adopted by the applicant
in
this matter. Had the issue of jurisdiction properly been
considered by the arbitrator after the benefit of hearing oral
evidence on both the merits and the jurisdictional issue, then
the Labour Court would have been saved [
sic
] on two
occasions...
The
applicant will suffer no prejudice should the matter proceed to
arbitration. It will be able to raise the jurisdictional
issues.
It would like to, and the Commissioner will be able to weigh
evidence on the issue (after hearing all the evidence
as this is
an issue which is linked to the merits) and give a binding award.
At that stage, would any party be dissatisfied,
it will be able
to seek to review the award in accordance with the LRA. This will
mean the Labour Court will have the benefit
of the CCMA's
decision and will not become involved prematurely in matters.
This will prevent a flood of similar applications."
In the
Southern Sun
case
8
,
I aligned myself with the sentiments expressed by Van Niekerk J in
Trustees for the time being of the National Bioinformatics
Network Trust v Jacobson and Others
9
regarding the practice of seeking the court to intervene in part
heard CCMA proceedings by way of interdict:
"There are at least two
reasons why the limited basis for intervention in criminal and civil
proceedings ought to extend to
uncompleted arbitration proceedings
conducted under the auspices of the CCMA, and why this court ought to
be slow to intervene
in those proceedings. The first is a policy
related reason – for this court routinely to intervene in
uncompleted arbitration
proceedings would undermine the informal
nature of the system of dispute resolution established by the Act.
The second (related)
reason is that to permit applications for review
on a piecemeal basis would frustrate expeditious resolution of labour
disputes.
In other words, in general terms, justice would be advanced
rather than frustrated by permitting CCMA arbitration proceedings to
run the course without intervention by this court.”
As the court pointed out in
Bioinformatics,
this conclusion
was recently underscored by the Constitutional Court in
Commercial
Workers Union of SA v Tao Ying Metal Industries and Others.
10
Similarly, in
Jiba v Minister of Justice and Constitutional
Development
11
,
this Court stated:
“
Exceptional
circumstances aside, it is undesirable for this court to entertain
applications to review and set aside rulings made
in uncompleted
proceedings.”
For this reason also, I would have dismissed the application for
interim relief pending the review application.
Furthermore, the allegation that the applicant did not know what
case to meet appears to be baseless. The demarcation dispute
is
clearly set out in the application to determine the dispute in the
prescribed form LR 3.23. On this ground also, the applicant’s
prospects of success are slim and it has not made out a prima facie
right.
Costs
Mr
Euijen
, for the Council, submitted that this application
was brought merely to delay the demarcation dispute further; that it
was part
of a pattern of delaying tactics; and that costs should be
awarded on a punitive scale.
Although the application is, in my view, without merit and did not
warrant an urgent application during the recess, there is
not enough
evidence on the papers before me to bear out the contention that the
application forms part of a pattern of delaying
tactics. In law and
fairness, costs should follow the result; however, I do not agree
that it warrants a punitive costs order.
Ruling.
The application is struck from the roll due to lack of urgency. The
applicant is ordered to pay the first respondent's costs.
_______________________
Anton Steenkamp
Judge
APPEARANCES
APPLICANT: Bruce Jackson
Instructed by Hunts (inc Borkums), Parktown.
FIRST RESPONDENT: Mark Euijen
Instructed by Cheadle Thompson & Haysom, Johannesburg.
1
Act
66 of 1995 (“the LRA”)
2
(2010)
31
ILJ
371
(LC) at 380.
3
For
this court’s approach to urgency, see, for example,
Chiloane
v Nhluvuto Agricultural Project & others
[2000]
4 BLLR 392
(LC).
4
See
Southern Sun Hotel Interests (Pty) Ltd
i.r.o. Southern Sun Waterfront Hotel v CCMA & others
(C255/09;
C 362/09; unreported, 21 June 2011).
5
(2008)
29
ILJ
2588
(LC).
6
EOH
Abantu (Pty) Ltd v CCMA & others
(2010)
31
ILJ
937
(LC).
7
At
942H – 943C in para [16].
8
Supra
footnote 4.
9
(2009)
30
ILJ
2513
(LC) at paras 3 and4.
10
(2008)
29 ILJ
2461 (CC) at paras 62-5 (per Ngcobo
J).
11
[2005] ZALC 15
;
[2009]
10 BLLR 989
(LC) para [11].