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[2012] ZALCJHB 190
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Concor Projects (Pty) Ltd t/a Concor Opencast Mining v Commission for Conciliation, Mediation and Arbitration and Others (J2773/12) [2012] ZALCJHB 190; (2013) 34 ILJ 2217 (LC) (5 February 2012)
THE LABOUR COURT
OF SOUTH AFRICA,
REPUBLIC OF SOUTH
AFRICA
IN JOHANNESBURG
JUDGMENT
Reportable
Case
no: J 2773/12
DATE:
05 FEBRUARY 2012
In the matter
between:
CONCOR PROJECTS
(PTY) LTD
T/A
.......................................................
Applicant
CONCOR OPENCAST
MINING
And
THE COMMISSION
FOR CONCILIATION,
..................................
First
Respondent
MEDIATION AND
ARBITRATION
COMMISSIONER C
MOKABANE (N.O.)
..................................
Second
Respondent
ASSOCIATION OF
MINEWORKERS AND
...................................
Third
Respondent
CONSTRUCTION
UNION (“AMCU’)
N TITANA AND
FURTHER
............................................................
Fourth
to further
RESPONDENTS (AS
PER
ANNEXURE
..................................................
respondents
“
A”
TO THE FOUNDING AFFIDAVIT
Heard: 24 January
2012 Delivered: 05 February 2012
Summary: (Strike
interdict - final - refusal to bargain - settlement agreement void in
view of common mistake between parties -
sectoral determination does
not bar strike
action - union not a party to collective agreement on substantive
conditions - no bargaining council established
at time of dispute - s
64(2) not complied - strike unprotected until then).
JUDGMENT
LAGRANGE. J
Introduction
[1] The applicant in
this matter, Concor projects (Pty) Ltd, brought an application to
interdict a strike due to commence on 18
October 2012, which the
third respondent union, the Association of Mineworkers and
Construction Union (‘AMCU’) and
its members, who
constitute a majority of the applicants employees at its Vlakfontein
opencast mining site, were embarking on.
[2] An interim
interdict was granted on 17 October 2012 which was extended again by
agreement on 15 November 2012 to 24 January
2013. On the return day,
the applicant sought the confirmation of the rule which had been
issued previously.
Material facts
[3] Briefly, in
March 2012 AMCU submitted wage demands for the 2012/2013. The company
response on 26 April 2012 was that the proposals
could not be
entertained because:
“Concor Mining
is an opencast contracting concern and forms part of the civil
engineering construction sector and as bulk
earthmovers, we resort
under the Wage Determination for the Civil Engineering and
Construction Industry.
An agreement is in
place for the said industry and is negotiated regularly on a national
basis to cover wage increases and changes
in conditions of
employment.
The current
agreement in the industry runs until 31 August 2012 in the process of
negotiating new agreement has commenced recently
with the major
unions in the civil engineering industry, of which Concor Opencast
Mining, by definition forms part of"
[4] The Company
however undertook to forward AMCU's proposals to the employers’
organisation for the sector, the South African
Federation of Civil
Engineering Contractors (‘SAFCEC’). The Sectoral
determination in question, entitled Sectoral Determination
2: Civil
Engineering Sector, South Africa, was promulgated by the Minister of
Labour in terms of section 56 (1) of the basic conditions
of
employment act, 75 of 1997. The determination consists of 29 detailed
provisions governing minimum wages and other conditions
of
employment. The terms of the sectoral determination did not emanate
from the Department of Labour, but from the substantive
agreement
negotiated by the parties to the National Negotiating Forum for the
Civil Engineering Industry (‘the NNF’),
which the
Minister then promulgated as a sectoral determination.
[5] The agreement
which the applicant was referring to was a substantive collective
agreement (‘the NNF agreement’)
concluded between SAFCEC,
Building Construction and Allied Workers Union (‘BCAWU’)
and the National Union of Mineworkers
(‘NUM’), under the
auspices of the NNF. The third respondent was not a party to the
substantive agreement. The substantive
agreement set out agreement on
certain issues such as minimum wage rates, provident fund
contributions, leave provisions and the
National Skills Accord. It
was concluded on 30 July 2012 and is due to continue for at least a
year, or until amended once the
year has expired.
[6] AMCU's initial
response to its rebuff by Concor, was to state that a number of its
demands did not appear to be “covered
by SEFCAC”, and
proposed negotiations with Concor should commence. On 11 June 2012
under case number MP 4 to 83/12 AMCU referred
a “mutual
interest” dispute to the CCMA. The matter was set down for
conciliation on 3 July 2012 and at the conciliation
the settlement
agreement was concluded although the settlement agreement does not
mention the names of the parties or the
CCMA case number
neither party disputes the conclusion of the document. The agreement
was recorded and the pro forma settlement
agreement document used by
the CCMA. The substance of the agreement set out in paragraph 5 of
the form under the heading "withdrawal
of dispute" stated:
"The applicant
voluntarily withdraws the referral and abandons the dispute against
the respondent in settlement of his/hers
case at the CCMA with the
full knowledge that he/she will not be able to proceed with this
dispute at a later stage."
[7] Concor regarded
this as the end of the matter, but on 27 July 2012 AMCU addressed
another letter to Concor headed "Wages
Negotiations". The
letter proposed dates for wage negotiations prefaced by the following
introduction:
“Subsequent to
our demands sent to the company and the meeting held at SAFCEC
offices and crew would like to maintain its
position of representing
its members on all issues including those of mutual interest. We
therefore like to inform the company
that SAFCEC does not cater for
our members in terms of wages negotiations as neither the represent
the mining sector nor the interests
of our members at Concor Mining
in Vlakfontein where we ensure a the majority of membership. “
[8] Concor's
response was to repeat its view that it resorted under the sectoral
determination and that substantive negotiations
are dealt with on a
national basis. It asked AMCU to advise the basis of its request.
This led to the second dispute referral dated
21 August 2012 in which
it described the dispute as: "Company is refusing to bargain for
wage its negotiation period 2012/2013".
The date of the dispute
was identified as 27 July 2012 which was the date it resubmitted its
previous demands. The applicant's
human resource director Mr J Swart
stated in the founding affidavit that, at the conciliation on 11
September 2012, he explained
to the union official Mr V Nxumalo:
“45.1 That
since the applicant is essentially a bulk earthmoving business, the
applicant is bound by sexual determination
to;
45.2 That the
applicant was willing to negotiate with AMCU in respect of issues
that did not form part of sectoral determination
to; and
45.3 That AMCU would
revise their list of demands in accordance with the sectoral
determination."
[9] The Conciliation
was extended and correspondence was also exchanged in which AMCU
recorded its view that there was no law compelling
AMCU to accept
what Concor and the other unions had negotiated through SAFCEC, which
was not a Bargaining Council. Concor conceded
this but insisted that
it was bound by the substantive agreement, and would only negotiate
on issues not set out in that document.
By 3 October 2012 the parties
were deadlocked and AMCU had indicated its intention to ask the
commission to issue a certificate
of outcome. Concor pointed out that
since the dispute concerned a refusal to bargain, the matter should
be referred to advisory
arbitration if AMCU did not withdraw the
dispute.
[10] On 9 October
2012 a certificate of outcome was issued and on the same day AMCU
issued notice of its intention to embark on
strike action. Despite
the certificate of outcome been issued a further meeting was convened
under the auspices of the CCMA. According
to the company it was
agreed that the union would not take any steps to embark on strike
action until the Commissioner had issued
a ruling on a jurisdictional
question and the refusal to bargain. A ruling was issued on 16
October 2012 in terms of which the
arbitrator found that the CCMA did
have jurisdiction to entertain the dispute and directed the parties
to reconvene at the CCMA
on the 17th October. The arbitrator's ruling
did not deal with the dispute over the refusal to bargain, but only
addressed the
question of whether or not the CCMA or a bargaining
Council had jurisdiction over the dispute. Concor had contended that
a bargaining
Council for the sector had jurisdiction, but the
arbitrator correctly found that it was merely in the process of being
established
and therefore the CCMA had jurisdiction over the dispute.
[11] By the time the
return day arrived the Bargaining Council for the Civil Engineering
Industry (‘the BCCEI’) had
been registered on 7 December
2012. This was set out in a supplementary affidavit filed by the
applicant. The applicant also referred
in the supplementary
affidavits to a memorandum of understanding entered into in September
2010 by the same parties to the substantive
agreement. In terms of
clause 4.2 of that memorandum, issues tabled for collective
bargaining which were not reflected in the sectoral
determination or
on which no agreement had been reached would be transferred for
negotiation at the level of the bargaining Council
(at that stage yet
to be established).
The parties’
submissions
Concor's case
[12] When Concor
applied for interim relief it did so on the basis that the strike
should be interdicted pending the outcome of
a review of the second
certificate of outcome issued by the second respondent on 9 October
2012. The grounds of review relied upon
may be summarised as follows:
12.1 Concor and its
employees were bound by the sectoral determination and the
Commissioner should have ruled that it was not required
or permitted
to bargain with AMCU because the sector made use of centralised
bargaining. Concor submits that because it is bound
by a bargaining
arrangement at sectoral level, it cannot be compelled to bargain on a
second level with AMCU. It points out that
section 1 (d)
(ii) of the LRA
identifies one of the purposes of the LRA to be the promotion of
collective bargaining at sectoral level. If it
succumbed to AMCU’s
demands that would undermine this purpose of the act and would be
destructive of industrial peace which
it identifies as the very
purpose of collective bargaining. It identified AMCU's approach as
reckless and opportunistic.
12.2 Secondly,
Concor argued that the Commissioner should have investigated whether
he had jurisdiction in view of the previous
settlement agreement, as
the dispute before him was essentially the same dispute which had
been settled on 3 July 2012.
AMCU's case
[13] AMCU argued
that it was not prevented from calling a strike under section 65 (3)
(a) read with section 23 (1)(a) and (d) of
the Labour Relations Act
66 of 1995 (‘the
LRA’). It was not a party to the substantive agreement and its
members were not identified nor expressly
bound by the agreement,
which are the only grounds on which AMCU and, or alternatively, its
members could be bound under the act.
[14] AMCU further
pointed out that there was no statutory mechanism for extending the
substantive agreement to non-parties in the
absence of a bargaining
or statutory Council in the sector.
[15] On the question
of the settlement agreement, it contended that either the settlement
agreement had merely constituted a withdrawal
of the dispute referral
and that is what the organizer who signed the agreement thought he
was confirming or, alternatively, he
had no authority to enter into
the settlement agreement, or because he accepted the representations
made by Concor in its letter
of 26 April 2012 that referring the
dispute to the CCMA would serve no purpose because of the sectoral
determination, and because
the parties had agreed that the union
would meet with SAFCEC to explore Concor’s contentions about
the sectoral determination.
[16] Concor did not
deny that it had made the representations mentioned. Even though
Concor disputed AMCU’s claim that the
organiser lacked
authority, it did concur that he had signed the document because the
parties had agreed to meet for the reason
stated by AMCU. Concor
reaffirmed that Concor's position "...was clear at the time of
the conclusion of the settlement agreement,
namely that AMCU and the
applicant was {sic) bound by the provisions of the collective
agreement and the sectoral determination."
Evaluation The
binding nature of the sectoral determination and substantive
agreement
[17] The LRA
provides three mechanisms by which agreements may be imposed on
non-party employees and, or alternatively, non-party
unions.
[18] The first
mechanism is set out in section 23 which describes the legal effect
of collective agreements. Broadly speaking, in
terms of section 23
(1)(a),(b) and (c), parties to a collective agreement including
employer organisations and trade unions are
bound by virtue of being
parties to the agreement either in so far as the provisions apply to
them or in so far as the agreement
regulates the terms and conditions
of employment or the conduct of employers towards their employees or
vice versa. Further, in
terms of section 23(1 )(d), employees who are
not members of registered unions which are party to the agreement can
still be bound
provided they are identified in the agreement, it
expressly binds them and the registered trade unions in question
enjoy a majority
membership of the employer’s workforce in the
workplace. The substantive agreement makes no mention of non-members
of the
union parties to that agreement nor is there any provision in
that document which can be interpreted to expressly bind them.
AMCU was also not a
party to the agreement. Consequently none of the provisions of
section 23 can be relied on to establish that
AMCU or its members
employed by Concor are bound by the substantive agreement.
[19] The second
mechanism is provided by section 32 of the act which permits a
bargaining Council to request the Minister of Labour
to extend its
collective agreement to non-parties falling within the registered
scope of the Council if, within the extended scope
of the agreement,
the majority of employees are employed by members of employer
organisations which are party to the council, and
the majority of
employees are members of union parties to the council. Even though a
Bargaining Council was established after the
parties could not
resolve this dispute, no agreement of the Council has been extended
yet. Accordingly, the provisions of section
32 are inapplicable to
the facts of this matter.
[20] The third
mechanism is provided by sections 43 and 44 of the LRA. Section 43
(3) provides for the extension of a collective
agreement concluded in
a statutory Council on the same basis as section 32. Section 44 (1)
allows a collective agreement concluded
in a statutory Council to be
treated as if it were a recommendation made by the Employment
Conditions Commission under section
54 (4) of the BCEA. The Minister
may then promulgate the agreement as a determination under the BCEA
subject to certain conditions.
It must be emphasised however that in
terms of section 43 (1), the subject matter of such agreements does
not include agreements
on general terms and conditions of employment
but only a limited range of subject matter relating to dispute
resolution functions,
training and education schemes and the
establishment of various benefits schemes. Turning to the facts of
this case, there was
no statutory Council in existence before the
establishment of the Bargaining Council, so this provision can have
no application.
In any event, the terms of the substantive agreement
would appear to fall outside the subject matter of agreements which
can be
extended in terms of either section 43 (3) or 44 (1).
[21] In this
instance, when the minister promulgated the substantive agreement as
a determination, he did so within the parameters
of the BCEA and not
the LRA. Section 55 (4) (a) and (b) of the BCEA read:
"(4) a sectoral
determination may in respect of the sector and area concerned-vy
(a) set minimum
terms and conditions of employment, including minimum rates of
remuneration;
(b) provide for the
adjustment of minimum rates of remuneration;...”
[22] Section 51 (1)
of the BCA provides that the Minister may "...make a sectoral
determination establishing basic conditions
of employment for
employees in a sector and area." In interpreting s 51(1), It is
important to bear in mind that a ‘basic
condition of
employment’ as defined in section 1 of the BCEA means "a
provision of this act or sectoral determination
that stipulates a
minimum term or condition of employment" (emphasis added).
It is patently clear
from the above that in so far as sectoral determinations are binding,
they are binding in the sense that they
establish minima below which
employer and employee parties cannot contract.
[23] It was argued
that because the approach of AMCU would be inimical to the promotion
of sectoral bargaining, Concor was entitled
to be protected from
industrial action seeking to compel it to bargain at a lower level,
and this would amount to an infringement
of its rights to fair labour
practices in terms of section 23(1) of the Constitution of the
Republic of South Africa, 1996.
[24] Concor is
undoubtedly in a difficult position, but if its sectoral bargaining
position is complicated by AMCU’s organisation
of its Vlakplaas
site, and if that undermines its aim of negotiating only at sectoral
level, is that sufficient justification in
law to impose a strike ban
on AMCU and its members? If one has regard to the provisions in the
LRA which permit the extension of
agreements, it is clear that it
does envisage situations in which parties to centralised bargaining
at sectoral level can effectively
prevent protected strike action,
which is aimed at establishing plant or site level bargaining. But
those situations are confined
to the ones outlined above. The
difficulty Concor has is that it is asking the court to recognise as
inviolate a bargaining arrangement
which does not fall under any of
the provisions mentioned. It was made clear in the decision of the
LAC in Chemical Workers Industrial
Union v Plascon Decorative
(Inland) (Pty) Ltd (1999) 20 ILJ 321 (LAC) that any attempt to infer
impli
ed restrictions on
the right to strike indirectly is likely to fail:
"...[T]here is
no justification for importing into the LRA, without any visible
textual support, limitations on the right to
strike which are
additional to those the legislature has chosen clearly to express. ”
1
[25] I am of the
view that Concor is asking the court simply on the basis of general
provisions of the LRA which reflect a policy
bias in facour of
sectoral bargaining, to impose a restriction on collective bargaining
and the right to strike which is not provided
for in the LRA, and any
attempt to read this into the LRA would fall foul of the principle
mentioned in Plascon Decorative.
The settlement
agreement
[26] Before the
conciliation meeting on 3 July 2012, Concor clearly articulated the
view that the existence of the sectoral determination
and the
substantive agreement precluded it from negotiating with AMCU unless
AMCU became a party to the sectoral bargaining arrangements.
The
organiser who signed the settlement agreement also signed it in the
belief that the sectoral determination rendered the referral
to the
CCMA pointless. It is difficult to escape the conclusion that he and
the applicant laboured under the same common mistake
about the
applicability of the sectoral determination and its effect on AMCU’s
dispute. In Dickenson Motors (Pty) Ltd v Oberholzer
1952 (1) SA 443
(AD)
“The £291
was paid under a common mistake in regard to a matter which was vital
to the transaction and if either of
them had been aware of the true
position the transaction would not have gone through. In Huddersfield
Banking Company Ltd. v. Henry
Lister & Son Ltd.,
1895 (2) Ch.
273
, LINDLEY, L.J., states the proposition,
“that an
agreement founded upon a common mistake, which mistake is impliedly
treated as a condition which must exist in order
to bring the
agreement into operation, can be set aside, formally if necessary, or
treated as set aside and as invalid without
any process or
proceedings to do so. ”
2
[27] On the common
cause facts, there can be little doubt on that if the AMCU organiser
who signed the settlement agreement had
been aware of the real
significance of the sectoral determination, he would not have
withdrawn the dispute, and that the withdrawal
was prompted by the
representations made by the applicant about the determination’s
effect on AMCU’s attempt to bargain
at a site level.
Consequently, I think the respondents were entitled to disregard the
settlement agreement.
The effect of s
64(2) of the LRA
[28] When the second
respondent handed down his jurisdictional ruling made by the second
respondent, he should have issued an advisory
award on Concor’s
refusal to negotiate with AMCU in terms of s 64(2). To date he has
not done so and is still seized with
the matter. Compliance with the
subsection is a pre-requisite step that must be completed before
either party can embark on protected
industrial action. For this
reason the strike embarked on by AMCU and its members is not
protected until such time as the second
respondent has discharged his
function and issued the advisory award.
Constitutional
claim
[29] This also
indirectly raises the somewhat faintly argued point raised by Concor
that its right to fair labour practices would
be infringed if AMCU
was permitted to strike to compel it to bargain at two levels. In
formulating the LRA, the legislature deliberately
avoided
perpetuating an adjudicated remedy for bargaining rights disputes.
Such a remedy had evolved, albeit precariously and with
a great deal
of unpredictability, under the pre-1996 unfair labour practice
regime. To try and enforce an unfair labour practice
claim on the
basis that it is unfair to require Concor to negotiate other than at
sectoral level, would require an attack on the
constitutionality of
the unfair labour practice provisions of the LRA itself, for failing
to provide such a remedy. A constitutional
challenge based on the
assertion of a right to unfair labour practice, which is not provided
for in s 186 of the LRA, would have
to proceed by way of a challenge
to the statute’s supposed limitation of the right to fair
labour practices.
3
Concor has not attacked the statute, which it ought to have done if
it wished to seriously pursue its constitutional claim.
Costs
[30] On the matter
of costs, the applicant has only succeeded on one of its grounds and
accordingly, I think it is only just and
equitable for it to pay some
of the respondents’ costs.
Order
[31] In the
circumstances, I find that:
31.1 Neither the
provisions of the National Negotiating Forum for the Civil
Engineering Industry, Substantive Collective Agreement
of 30 July
2012, nor the Sectoral Determination 2: Civil Engineering Sector,
South Africa, prohibit the third and further respondents
from
embarking on protected strike action, provided the provisions of s 64
of the LRA have been complied with.
31.2 The settlement
agreement concluded between the applicant and the third respondent on
3 July 2012 was concluded on the basis
of a common mistake between
the parties on the effect of the Sectoral Determination and in
consequence is invalid and unenforceable.
31.3 The dispute
over the refusal to negotiate should have been referred to advisory
arbitration under section 64(2) of the LRA
as it concerns a dispute
over appropriate bargaining levels and, or alternatively, bargaining
units.
31.4 The strike
which commenced on 15 October 2012 was unprotected because the
provisions of section 64(2) of the LRA had not been
complied with.
[32] Accordingly,
the third and further respondents are interdicted from participating
in a strike either in respect of dispute
referred to the CCMA under
case number MP4283-12 on 11 June 2012, or in respect of the dispute
referred to the CCMA on 21 August
2012 under case number MP3994-12,
until and unless the provisions of section 64(2) of the LRA have been
complied with.
[33] The applicant
must pay half the respondents’ costs.
R LAGRANGE, J
Judge of the
Labour Court of South Africa APPEARANCES
APPLICANT: GC
Pretorius, SC assisted by F Venter instructed
by Cowan Harper
Attorneys
THIRD AND FURTHER
RESPONDENTS: N
Cassim, SC assisted by S Collet instructed by
Larry Dave
Attorneys
Cr V
1
at
329, [28]
2
At
450C-E
3
See
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs & Others
[2004] ZACC 15
;
2004 (4) SA
490
(CC) at
[22]
-
[26]
and
Zondi
v MEC for Traditional and Local Government Affairs &
Others
(2005)
(3) SA 589
(CC) at [99],