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[2011] ZALCJHB 85
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National Union of Mineworkers and Another v Eskom Holding SOC Ltd (J1934/11) [2011] ZALCJHB 85 (23 September 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case Number: J 1934/11
In the matter between:
NATIONAL UNION OF MINEWORKERS
…....................................................
First
Applicant
NATIONAL UNION OF METALWORKERS
OF SOUTH AFRICA
…...............................................................................
Second
Applicant
and
ESKOM HOLDINGS SOC
LIMITED
…................................................................
R
espondent
Date of hearing: 21 September 2011
Date of Judgment: 23 September 2011
JUDGMENT-LEAVE TO APPEAL
MOSHOANA AJ
Headnotes:
Application for leave to
appeal the judgment and order of this court.
Introduction
[1] On 19 September 2011, I handed
down a judgment dismissing the Applicants’ application to
interdict with no order as to
costs. After I read the order, Mr
Daniels, who appeared for the Applicants to note the judgment
informed the Court that he holds
instructions to apply for leave to
appeal. Since there were no grounds at the time to advance the
application for leave, an agreement
was reached that the application
will be moved on 21 September 2011 at 9h30. The Applicants will have
an opportunity to put together
grounds upon which the application
will be moved. On 20 September 2011, the Applicants’ filed a
notice of application for
leave to appeal setting out grounds upon
which leave is sought. The application was heard in an open court on
21 September 2011
and judgment was reserved until Friday 23 September
2011.
Grounds of appeal
[2] The Applicants hold a view that
another court may come to a different conclusion. The view is
premised on the following grounds:
There is a reasonable likelihood that
the appeal court will find that the
court a quo
erred in
finding that: (a) the applicants presented an entirely different
case in argument which was not pleaded, and (b) applicants’
case in their papers which they argued are diametrically opposed.
Among other things:
The appeal court may find that the
applicants’ abandonment of the remedy in section 64 (4) of
the LRA did not imply acceptance
that ESKOM’s unilateral
implementation of its final offer was not a unilateral change to
conditions of employment;
The appeal court may well find that
the applicants pleaded in their founding papers that:
The respondent was bound by virtue
of the Recognition Agreement to bargain in good faith and its
unilateral implementation
of its final offer was a breach of such
provision;
ESKOM’s unilateral
implementation of its final offer amounted to economic power and
this was not contemplated in the
Recognition Agreement or the LRA.
The appeal court may find that
failure to make specific reference in the papers to the preamble of
the Recognition Agreement,
where the parties explicitly record
their commitment to good faith bargaining, is, in the context and
circumstances, irrelevant.
The appeal court may find that this is
irrelevant, among other things, because it is a tacit or implied
term of the Recognition
Agreement that the bargaining will happen
in good faith and this was pleaded.
There is a reasonable likelihood that
the appeal court will find that the
court a quo
erred in
finding that ESKOM’s unilateral implementation of its final
offer does not amount to the exercise of economic
power because it
is not “disruptive of service”. The appeal court may
well find that:
The unilateral alteration of terms
and conditions of employment must be understood as a form of
economic power.
The court
a quo
failed to
adequately consider the fact that the LRA only makes mention of
unilateral implementation (i.e. unilateral changes
to conditions of
service) in section 64 (4) and 64 (5) of the LRA, tends to indicate
that an employer’s unilateral implementation
of its final
offer amounts to economic power.
The language used and purpose of
section 64 (4) of the LRA must be understood as follows: an
employer’s unilateral implementation
of its final offer is
“permitted” (though not lawful) only when the playing
fields are levelled and both parties
are in a position to exercise
economic power
simultaneously
;
The is a reasonable likelihood that
the appeal court will find that the
court a
quo
erred
in finding that there can never be
“lawful
unilateral
action” in the context of changing terms and conditions of
employment and contracts of employment. The appeal
court may well
find that:
The term “unilateral” in
section 64 (4) of the LRA must be interpreted as meaning without
consent.
Where employers unilaterally change
workers’ conditions of employment and their contracts of
employment, they will invariably
act unlawfully and the remedy
provided in section 64 (4) of the LRA does not alter the
fundamental principle. Section 64 (4)
of the LRA merely provides a
means of immediate retaliation through protected strike action.
The mere fact that the LRA permits
strike action in the context of an employer’s conduct in
affecting unilateral changes
to the terms and conditions of
employment does not mean that this is a “dispute of interest”
that cannot be challenged
as unfair or unlawful.
There is a reasonable likelihood that
the appeal court will find that the
court a quo
erred in
finding that ESKOM’s unilateral implementation of its final
offer, after deadlock has been reached, is not bad
faith bargaining;
There is a reasonable likelihood that
the appeal court will find that the
court a quo
erred in
finding that interest arbitration, in the context of essential
services, is not an extension of collective bargaining;
There is a reasonable likelihood that
the appeal court will find that, in the present circumstances, the
applicants and their
members have a right to proceed to arbitration
without the prior exercise of economic power by the employer;
There is a reasonable likelihood that
the appeal court will find that permitting an employer to
unilaterally implement its final
offer before interest arbitration,
conducted in terms of section 74 of the LRA, could or would impact
on the outcome of the arbitration
or the credibility of the arbitral
process is paramount.
There is a reasonable likelihood that
the appeal court will find that permitting an employer to
unilaterally implement its final
offer before an interest
arbitration, conducted in terms of section 74 of the LRA, could or
would impact on the outcome of the
arbitration or the credibility of
the arbitration process;
There is a reasonable likelihood that
the appeal court will find that ESKOM’s unilateral
implementation of its final offer
in the present circumstances (i.e.
before interest arbitration and where there is no minimum service
agreement) amounts to an
exercise of economic power that is not
contemplated by the LRA or the Recognition Agreement.
There is a reasonable likelihood that
the appeal court will find that ESKOM’s unilateral
implementation of its final offer,
pending interest arbitration,
undermines the applicants as collective bargaining agents and is in
breach of workers’ right
under the Recognition Agreement and
LRA.
[3] Regard being had to the grounds
set out above, it is clear that a number of grounds were repeated.
However, the Applicants’
grounds can be summarised to be that
implementation of final offer amounts to exercise of economic power
and another court may
come to a conclusion that such is not
permissible having regard to the LRA and the Recognition Agreement.
The applicable test
[4] The traditional test will always
be that of a reasonable possibility of another court coming to a
different conclusion. It ought
to be emphasised at this stage that
the appeal court would ordinarily be guided by the same facts and or
legal arguments at the
court a quo
. I n very limited
circumstances, which do not arise in this matter a court of appeal
may receive further evidence. All that the
appeal court will be
required to do if leave is granted is to on the same facts decide
that the appellant is entitled to the relief
sought, in this case an
interdict. Leave to appeal will be granted only when, there is
reasonable prospects of success, the matter
is of substantial
importance and not trifling and practical effect or results can be
achieved by the appeal.
Argument
[5] When the application was moved,
Bruinders SC placed too much emphasis on the point that there is no
judgment of this Court and
or any other court that has answered the
question-can an employer be allowed to implement its final offer
whilst interest arbitration
is pending? On that basis alone, this
Court should readily grant leave to appeal. In addition, and relying
on what he termed an
obiter
dictum
of
the Constitutional Court in
In
re Certification of the Constitution of the Republic of South Africa,
1996,
1
he submitted that exercise of economic
power includes unilateral implementation of final offer and another
court may come to the
conclusion that this Court erred when it found
that it does not amount to exercise of economic power. He further
referred the Court
to
Rex v
Milne and Erleigh (3)
2
and Machele OT v Mailula
3
all of which held that if the matter
is complex and raises novel issues leave should be readily granted.
This matter is one such
in his submission.
[6] Sutherland SC handed up concise
heads, which the Court found helpful, in preparing this judgment at a
short space of time. In
short he submits that the test as espoused
above is not met and leave should be refused.
Analysis
[7] The first question to be answered
is has the test being met? If the answer is in the affirmative, then
leave should be granted.
If in the negative, leave should be refused.
I am very much concerned with the following important factor-are
there reasonable
prospects of success on appeal? I am not persuaded
otherwise. In the absence of a clear right, I do not see how another
court can
grant the relief of an interdict. It is trite law that one
of the important elements of an interdict is a clear right or a
prima
facie
one if interim interdict is sought. The interdict sought in
this matter is of a final nature although is pending the arbitration.
In my view, the passage quoted from the
Certification
judgment
does not support the proposition that implementation of final offer
is an exercise of economic power to be equated to
a strike and
lockout. All the court was alluding to was what is in the power of an
employer as compared to an employee. Most importantly,
the Court
added lockout amongst the list-
exclusion of workers from the
workplace
. The fact that the Court mentioned amongst others the
power to unilaterally implement new terms and conditions of
employment does
not in any manner whatsoever suggest that such a
power is tantamount to economic power as the parties to the
collective agreement
in this matter understood it or as section 65
reads with 74 understood strikes and lockouts. Ironically, section 64
(4) and (5)
provides a perfect remedy for that power. The Applicants
chose to abandon or not use that remedy at all. Accordingly, another
court
cannot reasonably come to a conclusion different to the one
this Court arrived at.
[8] Does this matter raise a novel
point of law? In my view, this matter only raises an interesting
question which no one thought
of raising at any point before this
matter. Broadly, the principle underlying that question has been
raised before and decided.
One example that comes to mind is that of
derecognising a union whilst the issue of representivity is still to
be decided upon.
Similarly, this Court, in the judgments quoted in
the earlier judgment found that a derecognition can go ahead
nonetheless. Burdening
an appeal court with a matter that is
interesting but is unlikely to produce a different result is
inappropriate (
See Goodwin
Stable Trust v Duohex (Pty) Ltd and Another.
4
[9] In
Rex v Milne supra
, the
court granted leave on the basis that the matter raises novel points
of law. This matter does not raise novel points of law;
therefore the
rule does not apply. All in all a court of appeal in answering the
interesting question would still need to fall
back to the established
principles of the granting of an interdict. The court of appeal would
still be required to ask and answer
a further question of the duty to
bargain in good faith, which question has been authoritatively
answered by this Court and the
Constitutional Court. In the
Machele
matter, the passage relied on was when the Constitutional Court
was quoting the High Court. The Constitutional Court granted leave
to
appeal on a different basis.
[10] I am also concerned that the
appeal even if upheld would not achieve practical results for the
Applicants. The Applicants are
seeking to achieve a temporary relief
as it were pending the outcome of interest arbitration. I n terms of
Section 139 of the LRA,
interest arbitrations should be finalised
within 30 days of conciliation. It must follow that by the time this
matter is considered
by in the appeal court, the arbitration would
have taken place and the order would be of no practical effect to any
of the parties.
An appeal against an interim interdict is
inappropriate unless is final in effect (
See
International Trade Administration Commission v SCAW South Africa
(Pty) Ltd).
5
Even if the appeal court finds that an
interdict should have issued, such an outcome would have no practical
effect to the Applicants
once the arbitration process has completed.
Of course coupled with the practicality rule is the fact that there
is nothing that
prevents the Applicants to request the respondent not
to pay the 7% increase to their members pending the outcome of the
arbitration.
I am sure that the respondent can only be too happy to
oblige. Such would not require a court order. The mootness rule is
such
that a court of appeal should not be used by parties to answer
abstract questions (See
Multichoice
(Pty) Ltd v Bemawu).
6
[11] Interestingly, in the
Bemawu
judgment, there were very interesting questions of law, which the
appeal court refused to deal with owing to the mootness rule.
By the
time the appeal, if granted, is to be heard, there will be no live
dispute. Therefore, if leave to appeal is granted, it
would not lead
to a just and reasonably prompt solution to the real issues between
the parties. The real issue between the parties
is the
quantum
of the offer and nothing else. Much as Bruinders SC seeks to elevate
the dispute to this important matter, the issue clearly about
power
play which the LRA clearly, by not legislating the duty to bargain,
kept the courts away from.
[12] In light of the above, I do not
deem it appropriate to deal with each of the grounds set out in the
notice of application.
There is sufficient basis to refuse the
application as alluded to above.
Conclusion
[27] In my view, the test for leave to
appeal has not been met and accordingly, I make the following order:-
The application for leave to appeal
is refused, with no order as to costs.
____________________________
G. N MOSHOANA
Acting Judge of the Labour Court
Appearances:
For the Applicants:
ADV T BRUINDERS
SC
Instructed by Cheadle, Thompson andHaysom Braamfontein.
For the Respondent:
ADV R
SUTHERLAND SC
Instructed by Cliffe Dekker Hofmeyr Sandton.
1
[1996]
10 BCLR 1253
(CC).
2
1950
(4) SA 599
(W).
3
2010
(2) SA 257
(CC).
4
1999
(3) SA 353
(C).
5
2010
(5) BCLR 457
(CC).
6
Case
Number JA 6/2010 (LAC) delivered on 25 August 2011.