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[2012] ZALCJHB 33
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South African Commercial Catering and Allied Workers Union (SACCAWU) v Southern Sun Hotel (Pty) Ltd (J573/2011) [2012] ZALCJHB 33 (15 March 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
reportable
case no: J573-2011
In the matter between:
SOUTH
AFRICAN COMMERCIAL CATERING
AND
ALLIED WORKERS UNION (SACCAWU)
…....................................................
Applicant
(in the application for leave to appeal)
And
SOUTHERN
SUN HOTEL INTERESTS
(PTY)
LTD
…..........................................................................................................
Respondent
(in the application for leave to appeal)
Decided :
In chambers
Delivered :
15 March 2012
Summary : Premature referral of a dispute to the CCMA in
contravention of the provisions of a recognition agreement. The Union
interdicted
from referring a dispute to CCMA. Application for leave
to appeal dismissed.
JUDGMENT: LEAVE TO APPEAL
AC BASSON, J
Introduction
This is an application for leave to
appeal against an order granted on 11 April 2011 in terms of which
this Court interdicted
the applicant (in the application for leave
to appeal - the South African Commercial Catering and Allied Workers
Union - hereinafter
referred to as ‘SACCAWU’ or ‘the
applicant’) from referring or pursuing a dispute in the
Commission for
Conciliation, Mediation and Arbitration (hereinafter
referred to as ‘the CCMA’) concerning the issues
referred to
by the applicant in its letter of 25 March 2011 to
Edward Nathan Sonnenbergs, until such time as the applicant has
complied with
the provisions of the recognition agreement concluded
on 3 November 1993.
The CCMA was also interdicted from
considering or in any manner dealing with the dispute referred to it
by the applicant on 25
March 2011 and from issuing any certificate
of outcome in terms of section 64(1)(a) of the Labour Relations Act.
66 of 1995 (hereinafter
referred to as ‘the LRA’).
The respondent Southern Sun Hotel
Interests (Pty) Ltd, operates a number of hotels throughout the
Republic of South Africa and
has an established relationship with
SACCAWU which dates back to 1993.
The application for leave to appeal
The
applicant filed an application for leave to appeal on 29 June 2011,
almost two months out of time. It was submitted that the
orders
interdicting SACCAWU from pursuing its referral of the dispute to
the CCMA and preventing the CCMA from conciliating the
dispute are
bad in law. In support of this argument SACCAWU solely relied upon
the principles established in
County
Fair Foods (Pty) Ltd v FAWU and Others
1
and argued that this decision is
‘decisive of the dispute’.
The
respondent opposed the application for leave to appeal on the basis
that SACCAWU’s total reliance on the
County
Fair
decision is misplaced
and not decisive. It was further argued that the
County
Fair
decision does not
bear on the determination of the dispute in this case. The
respondent, therefore, argued that SACCAWU has failed
to satisfy the
test that there is a reasonable prospect that the Labour Appeal
Court may come to a different conclusion to that
of the Labour
Court.
Application for condonation for the
late filing of the application for leave to appeal
Apart from opposing the application
for leave to appeal on the basis that SACCAWU has not made out a
proper case for leave to
appeal, the respondent further opposed the
application on the basis that the application for leave to appeal is
late and that
no proper case for condonation has been made out in
the application for condonation.
Rule 30 of the Labour Court Rules
provides that an application for leave to appeal against a judgment
or order must be brought
within 15 days of the date of judgment or
order. This Court delivered its judgment on 11 April 2011. The
application for leave
to appeal accordingly ought to have been
delivered on 6 May 2011. The application for leave was, however,
only delivered on 29
June 2011 and is therefore almost two months
out of time.
SACCAWU was represented by Mr. Baboyi
who is legally qualified and SACCAWU’s in-house legal
representative. He was also
present at the hearing of the urgent
application when the matter was argued. The order was granted
immediately after the hearing
of the matter in the presence of Mr.
Baboyi. It is therefore reasonable to accept that Mr. Baboyi
understood the nature of the
proceedings as well as the order
granted by the Court. Despite the fact that Mr. Baboyi was present
when the order was granted
and despite the fact that the respondent
has also sent the order to the applicant on 11 April 2011, no steps
were taken to timeously
deliver the application for leave to appeal.
It is relevant to refer to some of
the facts that preceded the application for the interdict as it has
a bearing on the merits
pertaining to the application for
condonation. I will also refer to the events that took place after
the order was granted in
so far as those events are relevant in
deciding the application for condonation.
Prior to launching the urgent
application for an interdict, the respondent had referred a dispute
in terms of section 24 of the
LRA relating to the interpretation and
application of the recognition agreement entered into between the
applicant and the respondent
to the CCMA. (I will refer to this
agreement in more detail hereinbelow.) In terms of this referral the
respondent sought a determination
from the CCMA that its
interpretation of clause 6.1 of the recognition agreement was
correct namely that any dispute about matters
of mutual interest
should be heard separately from the annual negotiations on the terms
and conditions of employment as provided
for in clause 6.1 of the
recognition agreement. The interpretation dispute was set down by
the CCMA for hearing on 23 June 2011
and was to continue on 4 August
2011 when the proceedings could not be finalised. The application
for leave to appeal was filed
on 29 June 2011.
Subsequent
to the granting of this Court’s order (on 11 April 2011),
SACCAWU again declared a dispute with the respondent
on 13 April
2011 (hereinafter referred to as ‘the second dispute’).
2
The second referral to the CCMA was
in all material respects the same as the dispute that was
interdicted by this Court. The second
dispute was set down for
conciliation by the CCMA. The respondent brought a second urgent
application to the Labour Court (hereinafter
referred to as ‘the
second application’) to interdict and restrain the applicant
from pursuing the second referral
until such a time that the
applicant has complied with the provisions of the recognition
agreement. The second application was
duly served by hand on the
applicant.
The
second application was not opposed by SACCAWU and an interim order
was granted by my learned brother Van Voore, AJ with the
return date
30 June 2011. In terms of the order, SACCAWU was interdicted from
referring or pursuing a dispute relating to terms
and conditions of
employment concerning bargaining unit employees in terms of the
recognition agreement until such time as the
CCMA has finally
determined the interpretation dispute. The CCMA was directed to take
such steps as may be reasonably available
to it to expedite the
arbitration hearing in respect of the interpretation dispute. The
interim order was served immediately
after the hearing of the second
application on 31 May 2011. The respondent contended in the second
application that it was seeking
a second interdict on the basis that
the second dispute was the same as the first and that SACCAWU was
bound by the first order
(issued by this Court 11 April 2011.)
SACCAWU did not oppose the second application and more importantly
did not indicate that
it was the SACCAWU’s understanding that
the first judgment was not of binding effect or that it was interim
in nature.
The Rule Nisi issued by Van Voore, AJ
was discharged on the return date by agreement between the parties
on the basis that the
applicant had agreed to accept the
respondent’s position and to refer two separate disputes to
the CCMA in accordance with
the respondent’s characterisation
of such disputes without prejudice to its right to appear in this
appeal and its rights
to argue its interpretation of the relevant
provisions of the recognition agreement in terms of the
interpretation dispute.
In respect of the application for
condonation, the respondent argued that the delay in bringing the
application for leave to appeal
is excessive and that there is no
reasonable explanation for the excessive delay.
The deponent (Mr. Molefe) to the
founding affidavit states that he and Mr. Baboyi belaboured under
the impression that this Court’s
order (dated 11 April 2011)
was not final and that it was merely an interim order. There is no
merit in this submission. It is
clear from the order that the order
is final in nature and that it does not provide for a return date
nor does the order provide
that the order is made pending any later
event.
I am therefore in agreement with the
submission that this is not only improbable but also a disingenuous
attempt by SACCAWU to
rely on the alleged ignorance of Mr. Molefe
and Mr. Baboyi as a basis for justifying their failure to timeously
deliver the application
for leave to appeal. It is furthermore
instructive to note that Mr. Baboyi, who was in Court on the day of
the hearing did not
even file a confirmatory affidavit to the
application for condonation. Mr. Baboyi therefore does not even
attempt to offer any
explanation to this Court as to why he
belaboured under this impression.
Lastly, if regard is had to the
notice of motion, it is clear that the respondent was seeking a
declaratory order and two interdicts
in final terms. As already
pointed out, the order is clearly final and not made pending any
later event. The fact that SACCAWU
almost immediately issued a new
notice of dispute and referred virtually the same dispute to the
CCMA for a second time is also
inconsistent with their own
understanding of the order namely that they thought that the order
only had an interim effect. Clearly
if this was the case they would
not have referred a second dispute.
I am therefore not persuaded that the
applicant has offered a reasonable explanation for the delay. In
fact, the explanation is
wholly unreasonable and highly improbable.
It is in light of this finding that I find that it is therefore not
necessary to consider
the prospects of success in the application
for leave to appeal.
Lastly,
even if it was so that Mr. Molefe and Mr. Baboyi did not appreciate
the nature of the order granted by this Court, they
must have been
aware of the final nature of the order at the very latest after the
order was granted by Van Voore, AJ on 31 May
2011. No proper
explanation for not having filed the application for leave to appeal
soon after the second order is tendered.
Moreover, there is no
explanation why the persons involved in the on-going dispute with
the respondent did not receive or consider
the second application
which was duly and properly served on SACCAWU.
In
the event, I am of the view that the application for condonation
should fail. See in general
Melane
v Santam Insurance Co Ltd
3
where the Court pointed out that in
considering the application for condonation, the Court will have
regard to the degree of lateness;
the explanation therefore; the
prospects of success on the merits; the importance of the case and
other considerations. The explanation
for the delay should be
reasonable and where the applicant for condonation does not offer a
reasonable explanation for the delay,
the Court will not consider
the prospects of success. See in this regard
NUM
and Others v Western Holdings Gold Mine
4
and
Waverley
Blankets Ltd v Ndima and Others;
Waverley
Blankets Ltd v Sithukuza and Others.
5
The fact
that
there are strong prospects of success on the merits is therefore
irrelevant where no proper explanation for the delay has
been
offered.
In the event I am wrong in refusing
the application for condonation, I will now briefly turn to the
merits of the application
for leave to appeal.
Brief background facts
The matter came before this Court on
11 April 2011 on the basis of urgency. This Court granted an order
interdicting SACCAWU from
pursuing the dispute at the CCMA on the
basis that the referral to the CCMA was premature because SACCAWU
had not complied with
the requirements of clause 9.1 of the
recognition agreement.
SACCAWU and the respondent are bound
by a recognition agreement regulating collective bargaining between
the two parties and the
resolution of disputes. The agreement deals
with organisational rights and sets out the basis on which the
applicant and the
respondent will negotiate wages and other
substantive terms and conditions of employment applicable to the
parties within the
bargaining unit defined in the agreement. The
applicant represents the majority of the employees.
Clause 6 of the recognition agreement
deals with the process to be employed when negotiating wages and
other terms and conditions
of employment. Clause 9 of the agreement
deals with the process to be followed if a dispute arises between
the parties in respect
of the issues dealt with in terms of the
recognition agreement. Clause 6 (6.1) reads as follows:
‘
The
Company and the Union will meet annually to negotiate terms and
conditions of employment of all employees falling within the
bargaining unit. Negotiations may also take place outside these
annual negotiations on other matters of mutual interest, should
both
parties agree that it is necessary to do so.’
Clause 9.1 and 9.2 of the agreement
read as follows:
‘
9.1
In the event of the parties being unable to resolve any issue which
has already been dealt with in terms of this agreement,
either party
may declare itself in dispute with the other party by submitting a
written statement of the issues giving rise to
the dispute together
with the required settlement. Such written statement must be
acknowledged by the receiving party within seven
days of receipt and
any remedies and/or alternatives suggested.
9.2
In the event of deadlock persisting between the parties, it is agreed
that the following procedure be followed:
9.2.1
In a dispute where referral to more than one Industrial Council
and/or Department of Manpower is necessary, the applicant
in the
dispute shall refer the dispute to the Department of Manpower,
Johannesburg, in terms of the provisions of the Labour Relations
Act.
Where the dispute does not arise in any of the Johannesburg units of
the Company, it is agreed that the dispute be referred
to any other
Industrial Council or Department of Manpower which has jurisdiction.
In so doing the parties agree that they will
consider all legal
requirements as well as procedural requirements to have been
fulfilled in the referral of the dispute.
9.2.2
In the event of any other Industrial Council having jurisdiction in a
particular dispute at the units within the Company,
the parties shall
jointly advise the said Council/s that they have been unable to
resolve the dispute and, having met in terms
of Clause 9.2.1, request
the Secretary of the Industrial Council to report immediately to the
Director General that the Industrial
Council was unable to succeed in
settling the dispute in terms of the provisions of the Labour
Relations Act.
In
addition the parties shall jointly notify the Industrial Council that
they do not intend appearing before the said Council.
According to the respondent, the
parties must meet after the declaration of a dispute by one of the
parties and after the other
party has within seven days acknowledged
receipt of the written statement of the dispute in terms of clause
9.1 of the recognition
agreement as it is only through such meeting
that the parties could reach deadlock (as contemplated by clause 9.2
of the recognition
agreement). Only once the parties have reached
deadlock, can the dispute, according to the respondent, be referred
to the CCMA
in terms of clause 9.2 of the recognition agreement.
The respondent conceded that clause 9
of the recognition agreement does not expressly provide for a
dispute meeting between the
parties after the declaration of a
dispute but submitted that this dispute meeting is implied by the
conduct and past practice
of the parties in that the parties have
always convened a dispute meeting to discuss and attempt to resolve
the issues in dispute
following the declaration of a dispute by one
of the parties in terms of section 9 of the recognition agreement.
SACCAWU
did not dispute the fact that it was the past conduct and practise
that the parties have always convened a dispute meeting
to discuss
and attempt to resolve the issues in dispute following the
declaration of a dispute by one of the parties in terms
of clause 9
of the recognition agreement. However, SACCAWU averred that this
only happened if one of the parties have acknowledged
receipt of the
declaration of the dispute within seven days and have agreed to a
meeting as contemplated in clause 9 of the recognition
agreement.
6
It is common cause that the parties
commenced negotiations on 15 February 2011 in respect of wages and
other conditions of employment.
According to the respondent, SACCAWU
also made other demands during the negotiations that did not refer
to wages and substantive
terms and conditions of employment of
employees within the bargaining unit as defined in terms of the
recognition agreement.
According to the respondent, these other
demands cannot constitute part of a dispute that was being declared
in terms of clause
9 of the recognition agreement. SACCAWU disputed
this and argued that negotiations may also take place outside these
annual negotiations
on other matters of mutual interest should both
parties agree that it is necessary to do so. According to SACCAWU
the exclusion
of other matters of mutual interest from these annual
negotiations is not automatic. These ‘other mutual interest
demands’
include that the respondent stop with immediate
effect after 2011 to use labour brokers; that the amendment of the
recognition
agreement be finalised before the end of April 2011 and
that the respondent commit itself to centralised bargaining once
approached
by SACCAWU. These demands further lack, according to the
respondent clarity. Moreover, it was contended that certain of the
demands
do not relate to employees employed in the bargaining unit
as defined in the recognition agreement and therefore do not relate
to the terms and conditions of employment of employees to whom the
recognition agreement applies. SACCAWU disputed this.
On 14 March 2011, SACCAWU declared a
dispute with the respondent over the inability to reach agreement
over wages and conditions
of employment and the amendment of the
recognition agreement. It was proposed that the respondent meet on
15 March 2011 for a
dispute meeting. The respondent argued that
SACCAWU by declaring the dispute in the letter dated 14 March 2011,
was aware of
the fact that it was an implied term of clause 9 of the
recognition agreement that once a party has declared a dispute with
the
other party and the other party has acknowledged the dispute
within seven days as required in terms of clause 9.1 of the
recognition
agreement, the parties will meet for a dispute meeting
for the purposes of discussing and attempting to resolve the issues
in
dispute. It was further submitted on behalf of the respondent
that the declaration of the dispute in the letter dated 14 March
2011 was, in any event, defective. The respondent informed SACCAWU
of this view in a letter dated 21 March 2011. SACCAWU was,
inter
alia
, informed that because of SACCAWU’s non-compliance
with the recognition agreement, no proper dispute meeting can be
convened
as contemplated by the recognition agreement. SACCAWU was
further informed that any referral to the CCMA arising therefrom
will
be unlawful and defective consequent upon SACCAWU’s
failure to comply with the recognition agreement. SACCAWU was lastly
requested to remedy its non-compliance with the recognition
agreement
SACCAWU responded to this letter and
alleged that the respondent’s response to the letter dated 14
March 2011 which requires
a party to acknowledge a written statement
of dispute within seven days of receipt, was received outside of the
time periods
envisaged in terms of clause 9 of the recognition
agreement. SACCAWU therefore argued that, because the respondent had
not acknowledged
receipt of the declaration of a dispute within
seven days as required in terms of clause 9 of the recognition
agreement, it had
no alternative but to refer the dispute relating
to matters of mutual interest to the CCMA.
Notwithstanding the fact that SACCAWU
was of the view that the respondents did not acknowledge the dispute
within the required
seven days, SACCAWU nonetheless proceeded in a
letter dated 25 March 2011 to rectify the defects associated with
its failure
to set out the issues giving rise to the dispute
together with the required settlement as required in terms of clause
9 of the
recognition agreement in respect of the demands made in
terms of the recognition agreement. SACCAWU, however, also persisted
with the demands that do not, according to the respondent, relate to
wages and terms and conditions of employment. According to
the
respondent, these disputes do not fall within the ambit of the
recognition agreement and cannot constitute part of a dispute
that
is being declared in terms of clause 9 of the recognition agreement.
In a letter dated 30 March 2011, the
respondent’s attorneys accepted that in respect of those
demands which relate to terms
and contains of employment of
employees in the applicable bargaining unit, that the letter dated
25 March 2011 now contained
sufficient clarity with regards to the
issues giving rise to the dispute together with the required
settlement proposals as required
in terms of clause 9 of the
recognition agreement. It is further recorded that in respect of
those demands that do fall with
the ambit of the recognition
agreement, that the respondent now accepted that the letter dated 25
March 2011 rectified the defects
in the purported declaration of a
dispute dated 14 March 2011.
According to the respondent, the
letter dated 25 March 2011 now constituted a proper declaration of a
dispute which the respondent
acknowledged within the seven days of
receipt thereof as required by the recognition agreement. The letter
further states that
in light of the fact that the proper declaration
of the dispute in terms of clause 9 of the recognition agreement
only occurred
on 25 March 2011 (in terms of which the defects of the
declaration of a dispute dated 14 March was rectified), the referral
of
the dispute to the CCMA was therefore premature and unlawful in
that it was made before the dispute resolution procedures in terms
of the recognition agreement had been followed. The respondent
declared its willingness to meet with SACCAWU for purposes of
conducting a dispute meeting in relation to those disputes that fall
within the ambit of the recognition agreement. The respondent
requested SACCAWU to withdraw the dispute that was, according to the
respondent, prematurely referred to the CCMA failing which
the
respondent reserved the right to interdict and set aside such
premature and unlawful referral.
[34] In brief, it was therefore the
respondent’s case that the declaration of the dispute on 14
March 2011 was defective and
that it was therefore not required to
acknowledge receipt of the dispute within seven days as required in
terms of clause 9.1 of
the recognition agreement. The defects were,
however, cured by SACCAWU in the letter dated 25 March 2011. The
respondent acknowledged
receipt of the declaration of the dispute
within seven days of receipt of the letter dated 25 March 2011.
Because the respondent
regarded the letter dated 25 March as a proper
declaration of the dispute, it requested a dispute meeting with
SACCAWU. This dispute
meeting must be held according to the
respondent as the parties can only reach deadlock during this meeting
as required in terms
of clause 9.2 of the recognition agreement. It
is only once deadlock has been reached that the parties may refer a
dispute to the
CCMA. Although the respondent acknowledged that
SACCAWU properly declared a dispute on 25 March 2011 in relation to
the demands
in terms of the recognition agreement, it persisted with
its contention that that certain demands did not properly related to
the
terms and conditions of employment of employees in the applicable
bargaining unit and hence they do not fall within the scope and
ambit
of the recognition agreement.
[35] The applicant however declared a
dispute with the respondent on 14 March 2011 and referred the dispute
to the CCMA on 25 March
2011.
[36] It was therefore submitted that,
prior to any dispute resolution meeting, firstly, that the referral
of the dispute to the
CCMA was in contravention of the dispute
resolution process provided for in the agreement. It was argued that
Clause 6.1 of the
agreement obliged the parties to meet and negotiate
matters of mutual interest relating to terms and conditions of
employment of
employees falling within the bargaining unit. Matters
of mutual interest which do not concern terms and conditions of
employment
were to take place outside the annual wage negotiations.
Secondly, the applicant had failed to declare a dispute, negotiate
and
reach deadlock with the respondent in respect of the dispute in
accordance with the provisions of clause 9 of the agreement prior
to
referring the dispute to the CCMA for conciliation.
[37] It is common cause that SACCAWU
referred a dispute to the CCMA on the same day of the second
declaration namely 25 March 2011.
In light of the aforegoing, the
respondent submitted that the wage dispute that was referred to the
CCMA was in contravention with
the recognition agreement and
therefore premature and unlawful: Firstly, the respondent was not
afforded an opportunity to acknowledge
the written statement of the
dispute with the required seven days of receipt thereof. Secondly,
the parties have not met in accordance
with past practice in an
attempt to discuss and resolve the dispute as contemplated by clause
9.2 of the recognition agreement.
Thirdly, clause 9.2 requires that
the parties reach a deadlock (which deadlock can only be reached
during the dispute meeting)
before a dispute is referred to the CCMA.
[38] SACCAWU denied that such a
meeting was necessary and stated in a letter dated 4 April 2011 that
‘there is nowhere this
clause speaks of meeting’. (
sic
)
[39] As a result of SACCAWU’s
refusal to withdraw the referral, the respondent declared a dispute
with SACCAWU in terms of
clause 9 of the recognition agreement in
relation to the interpretation and application of the recognition
agreement. This dispute
was referred to the CCMA on 5 April 2011.
Evaluation of the arguments
[40] It is clear from the provisions
of the recognition agreement that it is required that the steps set
out in clause 9 of this
agreement be followed prior to referring any
dispute in accordance with the statutory conciliation mechanisms and
prior to industrial
action being embarked upon by either party.
Because SACCAWU did not follow these procedures, it is in breach of
the agreement.
It is clear from the papers that a proper dispute (in
respect of those matters that do fall within the ambit of the
recognition
agreement) was only declared on 25 March 2011. The
respondent acknowledged the written statement of the dispute within
seven days
of receipt. In terms of past practice, the parties
therefore had to meet and discuss the issues in dispute and attempt
to resolve
the dispute. In the present case, the applicant denied the
respondent the opportunity to acknowledge the written statement
within
seven days of receipt by referring the dispute to the CCMA on
the same day (25 March 2011) the dispute was declared. As a result
no
dispute meeting was held as impliedly required in terms of Clause 9.2
of the recognition agreement and in accordance with past
practice.
Consequently, a deadlock has not been declared as required in terms
of Clause 9.2 of the recognition agreement. As this
was not done, the
referral to the CCMA was premature and in breach of the recognition
agreement. The respondent has therefore made
out a case for the
relief sought in the notice of motion, namely, that the applicant
must be interdicted and restrained from referring
or pursuing a
dispute in the CCMA concerning the issues referred to by the
applicant in its letter dated 25 March 2011 to Edward
Nathan
Sonnenbergs until such time as the applicant has complied with the
provisions of the recognition agreement.
Interpretation of the recognition
agreement
[41] It is accepted that this Court does not have the necessary
jurisdiction to interpret a collective agreement as this is a matter
that falls witin the ambit of the CCMA’s powers. See in this
regard
Denel Informatics Staff Association
and Another v Denel Informatics (Pty) Ltd
,
7
where it was held:
‘
[14]
Once again, it is clear that the Labour Court does not acquire
jurisdiction in terms of the Act to adjudicate a dispute concerning
the interpretation or the application of a collective agreement as
such dispute must be resolved by way of arbitration. It is thus
not a
matter to be determined by the Labour Court.’
…
.
‘
. . .
the Labour Court has no jurisdiction to entertain the alleged dispute
about the application or the interpretation
of the recognition
agreement and such dispute must be dealt with in terms of the
provisions contained
in
s
24
of
the Act. . .’.
[42]
In so far as it was necessary to interpret the recognition agreement,
I have, however, done so in light of the fact that the
interpretation
of the collective (recognition) agreement is ancillary to the main
issue falling within the jurisdiction of this
Court. As already
pointed out, the dispute about the interpretation of the recognition
agreement has been referred to the CCMA.
The Labour Court accordingly
has the power to interpret collective agreements in motion
proceedings where such an interpretation
is incidental to the issue
falling within its jurisdiction. The issue before this Court was
whether SACCAWU has complied with the
provisions of the recognition
agreement and in deciding this issue, the Court was required to
interpret the recognition agreement.
See in this regard:
Metro
Bus (Pty) Ltd v SAMWUobo Members
8
where
the
Court similarly pointed out that the Labour Court cannot exercise its
inherent jurisdiction to interpret a collective agreement
as this
power is assigned to the CCMA in terms of the LRA. The Court,
however, confirmed that the Labour Court may interpret collective
agreements when the determination of their meaning is incidental to
disputes falling within its jurisdiction. See also
Johannesburg
City Parks v Mphahlani NO and Others
9
where the Court followed a similar
approach:
‘
There
are a number of areas in the LRA with references to disputes or
proceedings that are about the interpretation or application
of
collective agreements, particularly, in provisions that deal with
dispute resolutions. Some of the sections of the LRA which
contain
such references are, 22 and 24. In all of those sections, the
references to disputes about the interpretation or application
of a
collective agreement are references to the main disputes sought to be
resolved and not to issues that need to or may need
to be answered in
order to resolve the main dispute. Let me make an example to
illustrate the distinction I seek to draw between
a dispute and an
issue in a dispute. One may have a situation where an employee is
dismissed for operational requirements and that
dismissal is
challenged as unfair because it is said that in terms of a certain
collective agreement the employer was supposed
to follow a certain
procedure before dismissing the employee but did not follow such
procedure. In such a case, in determining
whether the dismissal was
fair or unfair, the Labour Court would have to determine whether the
relevant provisions of the collective
agreement were applicable to
that particular dismissal. The employer may argue that, although the
collective agreement is binding
on the parties, the particular clause
did not apply to a particular dismissal. This means that the Labour
Court has to interpret
and apply the collective agreement in order to
resolve the dispute concerning the fairness or otherwise of the
dismissal for operational
requirements. So, the real dispute is about
the fairness or otherwise of the dismissal and the issue of whether
certain clauses
of the collective agreement are applicable to the
dismissal dispute is an issue necessary to be decided in order to
resolve the
real dispute.’
[43]
The Labour Appeal Court, in
Minister
of Safety and Security v Safety and Security Sectoral Bargaining
Council and Others,
10
also
confirmed the approach that a Court may interpret a collective
agreement if such
interpretation
of the agreement is ancillary to the resolution of that dispute.
The application for leave to appeal
[44]
The application for leave to appeal relies upon the principles
established in
County Fair
Foods
.
11
As already
pointed
out, the applicant is of the view that this decision is
‘
decisive
of the dispute’
.
The respondent is of the view that the
applicant’s total reliance on the
County
Fair
decision is misplaced
in that it is not decisive and does not, in any event, bear on the
determination of the dispute in this case.
[45]
In
County Fair
,
the employer launched an urgent application to interdict a
contemplated strike and contended that the strike was unprotected in
terms of the provisions of section 65(1)(a) of the LRA. The employer
contended that it and the union were parties to a recognition
agreement which constituted a collective agreement which prohibited a
strike in respect of the issue in dispute. The employer argued
that
there was a procedural prohibition against striking until certain
provisions of the recognition agreement had been met and
that this
prohibition was in substance no different from a substantive
prohibition in a collective agreement against an issue in
dispute
being the subject matter of a strike. This argument was rejected by
the Labour Appeal Court.
[46]
I am in agreement with the submission that this judgment is not
decisive of the matter. In the present matter, the issue was
not
whether SACCAWU could be interdicted from striking because its
intended strike was in breach of the provisions of section 65
of the
LRA. The application that served before this Court did not concern an
application to interdict a strike. The respondent
sought an order
requiring SACCAWU to comply with the provisions of the recognition
agreement which requires that, before the dispute
may be referred to
conciliation by the CCMA, certain steps must be taken in an effort to
resolve the underlying dispute. The sole
issue for determination
before the Court was whether the referral of the dispute to the CCMA
was premature or not. As pointed out,
the respondent was of the view
that such referral was premature and that the provisions of the
recognition agreement had to be
observed. This Court was not (as it
was in the
County Fair
case) asked for an order interdicting
the strike. The Court was likewise not asked to consider the
provisions of section 65 of the
LRA. I am therefore in agreement that
the
ratio
of
the
County Fair
case therefore has no bearing on the
present matter at all. There is accordingly no prospect that the
Labour Appeal Court will find
in favour of the applicant.
[47] The application for leave to
appeal is therefore dismissed. I can find no reason why costs should
not follow the result.
_____________
A.C Basson, J
Judge of the Labour Court
Appearances:
For the Applicant : Adv FA Boda
Instructed by : Docrat Attorneys
For
the Respondent :
Advocate AIS
REDDING SC
Instructed by : Edward Nathan
Sonnenbergs Attorneys
1
(2001)
22 ILJ 1103 (LAC);
[2001] 5 BLLR 494
(LAC).
2
The
facts pertaining to the second application appears from the founding
and answering affidavits in the application for condonation
for the
late filing of the application for leave to appeal. These facts are
relevant in respect of the application for condonation.
3
1962
(4) SA 531
(A) at 532C-D.
4
(1994)
15 ILJ 610 (LAC) at 613E.
5
(1999)
20 ILJ 2564 (LAC) at para 11.
6
SACCAWU’s
stance on this matter was conveyed to the respondent in a letter
dated 4 April 2011.
7
(1999)
20 ILJ 137 (LC) at para 14.
8
[2009]
9 BLLR 905
(LC) at paras 15 - 19.
9
[2010]
6 BLLR 585
(LAC) at para 14.
10
[2010]
6 BLLR 594
(LAC) at paras 10 - 11.
11
Above
n 2.