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[2012] ZALCJHB 162
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SAA Technical (Pty) Ltd v Sjolund NO and Others (JR2258/11) [2012] ZALCJHB 162 (18 December 2012)
Reportable
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Case
no: JR2258/11
In the matter between:
SAA TECHNICAL (PTY) LTD
Applicant
and
SJÖLUND, A N.O
First Respondent
CCMA
Second Respondent
SATAWU
Third Respondent
Heard
: 25 October 2012
Delivered
: 18 December 2012
Summary:
Review of declaratory order granted by commissionerin
section 24(2) referral of dispute re interpretation of collective
agreement
–tainted by gross latent and patent irregularities
resulting in denial of a fair trial – review granted.
JUDGMENT
BHOOLAJ
Introduction
This is an application in terms of section 145 (1) of the Labour
Relations Act, 66 of 1995 (“the Act”), to review
and set
aside the arbitration award of the first respondent (“the
commissioner”) issued under the auspices of the
second
respondent under case number GAEK2624/10 dated 25 July 2011. The
applicant further seeks an order substituting the award
with an
order dismissing the claim instituted by the third respondent
(“SATAWU”), alternatively remitting the dispute
to the
second respondent (“the CCMA”) to be determined afresh
by another commissioner.
SATAWU referred a dispute to the CCMA concerning the interpretation
or application of a collective agreement in terms of section
24(2)
of the Act. Conciliation was unsuccessful, and was followed by
private mediation following which the parties agreed that
the matter
should be referred to arbitration in terms of section 24(5) of the
Act. The parties elected not to lead any oral evidence
at the
arbitration and the matter proceeded on the basis of oral
submissions and heads of argument.The only other documents before
the commissioner were the collective agreements entered into between
the parties. The parties did not exchange heads of argument
but
agreed to file them and make submissions at the arbitration. No
further facts were placed before the commissioner.
The issue in dispute was whether the applicant was obliged to make
payment of a secondary salary in terms of a secondary agreement
or
addendum to a Wage Settlement Agreement (“wage agreement”)
entered into by the parties on 4 April 2002. The relevant
terms of
the wage agreement were as follows:
1. Scope of the agreement
This agreement will apply and be
of effect to all employees in the Ground Staff Bargaining Unit within
South African Technical (Pty)
Ltd.
2. Salary increase
The company offered and the
Union accepted an across the board pensionable salary increase of 6%
retrospective from 16
th
June 2001 to 15
th
June
2002.
The parties agreed to a further
pensionable salary increase of 6% effective from 16
th
June
2002 to 15
th
June 2003.
9. Car Allowance and
Secondary Retirement Fund
The parties have agreed that the
Union will come up with proposals to (sic) the viability of the
facility and once the company is
satisfied, the policy will be
drafted and implemented and aligned in accordance with the principles
of equity and fairness.
13. Duration of the agreement
This agreement will be of effect
and applicable for the period 16
th
June 2001 to 15th June
2003.
Thereafter, on 7 October 2004 the parties signed an agreement (which
reflects that it had also been reached on 4 April 2002),
entitled
“Addendum to wage agreement for the period June 2001 to 2003”
(“the secondary agreement”). The
secondary agreement was
as follows :
“
THIS
AGREEMENT concludes and relates to clause 9 of the above Wage
Agreement.
SATAWU SECONDARY RETIREMENT
FUND
WHEREAS the Company, South
African Airways Technical and South African Transport and Allied
Workers’ Union (representing its
constituency within its
Bargaining Unit) reached an Agreement on 4
th
April 2002 on
the following :-
“
1.
SECONDARY SALARY
The implementation of a
Secondary Salary equal to 33.33% of a member’s Basic Salary.
2. SCOPE OF THE AGREEMENT
The Agreement will apply and be
of effect to all eligible members of SATAWU in the SATAWU Bargaining
Unit within SAA Technical (Pty)
Ltd.
3. IMPLEMENTATION DATE
Parties agreed that the
implementation date will be 16
th
October 2002.
4. SATAWU SECONDARY RETIREMENT
FUND
4.1 All eligible employees shall
contribute 7.5% of their Secondary Salary referred to in clause 1 as
per the rules of the “
Astuence Pension Fund”, and the
Company shall also contribute 7,5% on behalf of all eligible
employees to the Fund as on
the implementation date.
4.2 All the “non-eligible”
employees within the SATAWU Bargaining Unit that have been promoted
or transferred into the
AUSA Bargaining Unit will be paid out right
on a pro-rata basis”.
On or about 21September 2010
1
,
some six years after the conclusion of the secondary agreement,
SATAWU referred a dispute concerning the interpretation and
application of the wage agreement and the secondary agreement (“the
collective agreements”) to the CCMA. In its 7.11
referral form
it describes the nature of the dispute as being that “SAAT is
failing to act in terms of the agreement, saying
its interpretation
is different to SATAWU”. The outcome sought wasa declarator
that the applicant should complywith the
collective agreements.
The arbitration
The commissioner summarised the defences or points
in limine
raised by the applicant at the arbitration as follows:
Firstly, the referral should be dismissed on the ground of
“unreasonable delay” in that SATAWU took six years,
a
period which is unexplained, in referring the dispute to the CCMA.
This is contrary to the primary purpose of the Act being
the
effective resolution of labour disputes.
Secondly, that in terms of clause 13 of the wage agreement it
applied from 16 July
2
2001 to 15 June 2003, and the secondary agreement was consequently
also only in effect for this period. The applicant was thus
only
obliged to pay the secondary salary for the period 16 October 2002
(the agreed implementation date) to 15 June 2003 when
the wage
agreement lapsed.
Thirdly, declaratory relief was not competent as the “debt”
in the secondary agreement became due on 15 June 2003
and therefore
prescribed on 14 June 2006 in terms of the
Prescription Act 68 of
1969
.
Fourthly, the secondary agreement relates to a method of
calculation of the pension fund contribution rather than actual
increase in remuneration, and the wage agreement only applied to
employees who were “members of SAT” (sic) on 4 April
2002.
The commissioner notes that the relief sought by SATAWU was an order
compelling the applicant to comply with secondary agreement
from its
implementation date, i.e. 16 October 2002, alternatively from 17
October 2007 (the date three years before the referral
to the CCMA
on 17 September 2010 if the
Prescription Act was
considered to
apply).
SATAWU’s submissions to the commissioner were in summary as
follows:
The unreasonable delay rule does not apply if the
Prescription Act
68 of 1969
applies, and even if it does the applicant is unable to
show that it was prejudiced by the delay in these circumstances;
The wage agreement lapsed on 2003 but the secondary agreement did
not. The wage agreement would been replaced by a new wage
agreement
in 2003 and this would have continued indefinitely. The secondary
agreement was a separate collective agreement concluded
well after
15 June 2003, and was not a term of it or contingent on it and
clearly had an indefinite duration. Its duration
wasclearly not
dependant on clause 13 of the wage agreement. The applicant’s
obligations in terms of the secondary agreement
were therefore of
an on-going nature and would continue until the secondary agreement
itself was terminated by the parties.
No such termination had
occurred and the secondary agreement remained valid. After 2003 the
applicant’s obligations to
pay a secondary salary continued
in terms of the secondary agreement and in addition, through the
operation of section 23 (3)
of the Act, the secondary salary also
became a contractual term of the members’ individual
contracts of employment. It
could therefore be enforceable either
by way of the declaratory or in a contractual dispute and SATAWU
had elected the former
approach.
The commissioner did not have jurisdiction to determine the
prescription plea, although prescription did not affect the outcome
of the arbitration. The dispute was an on-going one and the
applicant’s plea that the claim had prescribed on account
of
the application of the
Prescription Act should
be dismissed in that
the Labour Appeal Court had held that where the unreasonable delay
rule applies the
Prescription Act was
not applicable:
Solidarity
and Others v Eskom Holdings
[2008] 29
ILJ
1450
(LAC)
(“Eskom”).
The applicant is wrong in submitting that it was not obliged to
make payment of the secondary salary because the Astuence Pension
Fund had not been established. It was still under an obligation to
establish it or an equivalent fund
3
and make the contributions as well as pay the secondary salary in
terms of the collective agreements.
SATAWU conceded in its heads of argument in the arbitration that the
applicant’s obligations (to pay the secondary salary
and to
contribute 7.5% to the pension fund) which it sought to enforce are
“debts” within the meaning of the
Prescription Act.
However
, it submitted that the entire claim had not prescribed, but
only, at best for the applicant, its obligation to pay had
prescribed
three years prior to the referral of the dispute.
4
This rendered the applicant liable to pay the secondary salary and
contribution to the pension fund from 17 September 2007 to
17
September 2010 (the date of the referral to the CCMA).
The commissioner reached the following conclusion on the
unreasonable delay rule :
“
In
dealing with the first issue and the respondent’s first defense
(sic), the excessive delay in bringing the matter to the
CCMA; I will
apply the parole (sic) evidence rule. The parties stated that the
matter was unsuccessfully mediated by the Senior
Commissioner and
Mediator John Brand. It is the applicant’s submission that the
dispute is “on-going”. The respondent’s
first
defence is that the matter had prescribed and the CCMA would
therefore not have jurisdiction to deal with the matter. It
is the
intention of the LRA that the matter should be brought within a
reasonable period of time. No provisions are made in terms
of the LRA
for the party to comply with any prescribed time limit when referring
a dispute of mutual interest to the CCMA. The
respondent directed me
to various cases dealing with “excessive delay” and where
matters had “prescribed”.
I am of the humble opinion that
this would not apply in this matter. The respondent could at all
time’s(sic) invoked (sic)
section 23(4)
of the LRA by giving
the applicant notice to terminate the agreement, but they had failed
to do so. Further, the respondent did
not dispute the submission of
the respondent (sic) that the matter was on-going. It would appear
that the applicant at all times
intended pursuing the matter. I will
deal further with this issue below.”
On the duration of the wage agreement, the commissioner found as
follows :
“
The
respondent’s second defense (sic) is in terms of Clause 13 of
the wage agreement. The wage agreement was signed on 4 April
2002 and
clause 13 states that the agreement will be for the period 16 July
(sic) 2001 to 15 June 2003. I should therefore only
consider this
period for the intension (sic) of the addendum to the agreement being
in effect. It is unlikely that the respondent’s
argument would
be valid. The addendum to the wage agreement was signed on 07 October
2004. It is unlikely that the parties would
sign an agreement on 07
October 2004, backdated to 04 April 2002 and agree that it will only
be in effect from 16 July (sic) 2001
to 15 June 2003. The agreement
further relates to contributions to the Astuence Pension Fund. This
would, as indicated in the preceding
paragraph, be an ‘on-going’
process.”
In relation to the prescription point the commissioner concluded:
“
The
respondent’s third defense (sic) is that the Commissioner not
grant declaratory relief due to the “debt” becoming
due
on 15 June 2003 and therefore prescribed on 14 June 2006. As
indicated in the preceding paragraphs I am of the humble opinion
that
the meeting of the minds intended the agreement to be in effect for
an indefinite period. As mentioned above, the respondent
could have,
but failed to invoke
section 23(4)
of the LRA. This would suggest
that the respondent had no intension (sic) of abandoning the
responsibilities agreed to in terms
of the agreement.”
The commissioner’s conclusion in relation to the terms of the
secondary agreement was that : “
[t]he
respondent’s fourth defense (sic) states that the agreement
only relates to “methods” of calculation rather
than an
actual increase of remuneration. It is further contended that only
employees who were members of SAAT on 04 April 2002
are covered by
the agreement. This argument does not make sense as the agreement
was signed on7 October 2004 and was backdated
to 16 October 2002.
This is also not specifically stated in the agreement. Clause 4.2 of
the agreement states that “all
the non-eligible employees
within the SATAWU Bargaining Unit that have been promoted or
transferred into AUSA Bargaining Unit
will be paid out right on a
pro rata basis”. It would appear that the respondent embarked
on a “fishing exercise”
in terms of defending their case
in not honouring their responsibilities in terms of the agreement.”
Therefore in his “humble opinion” and taking into
account the case law submitted by the parties, the commissioner
concluded that the secondary agreement was a valid signed agreement,
and the parties had agreed in good faith that it would be
implemented but for “some unknown reason the respondent never
implemented the agreement on 7 October 2004, backdated to
16 October
2002”.
A declarator was then issued in the following terms:
“
6.1
The respondent, SAA Technical (Pty) Ltd is ordered to comply with the
agreement referred to as the ‘SATAWU Secondary Retirement
Fund’.
6.2 The respondent must
implement the Secondary Salary equal to 33.33% of member basic salary
as per clause 1 of the mentioned agreement.
6.3 The parties must comply with
clause 2 in that all eligible employees shall contribute 7,5% of
their Secondary Salary referred
to in clause 1 as per the rules of
the Astuence Pension Fund and the company shall also contribute 7,5%
on behalf of all eligible
employees to the fund as on the
implementation date.
6.4 The implementation date of
the agreement is interpreted to be in effect from 16 October 2002 as
per clause 3 of the agreement.
6.5 The agreement applies to all
eligible members of SATAWU Bargaining Unit within SAA Technical (Pty)
Ltd.
6.6 No argument has been placed
before me in terms of clause 4.2 of the agreement.
6.6 No order as to cost (sic) is
made.”
Grounds of review
Jurisdiction
In this regard Mr Myburgh submitted that where a commissioner issues
an arbitration award in the absence of jurisdiction, this
constitutes an excess of power and a nullity.
5
Therefore,
when a jurisdictional issue is raised the commissioner must satisfy
himself or herself that they have jurisdiction.
Failure to apply his
mind to the existence of jurisdictional facts results in the award
being reviewable on this ground alone.
6
On SATAWU’s own version two jurisdictional issues arose for
determination and the commissioner failed to apply his mind
to
either of these. Firstly, SATAWU submitted that the commissioner had
no jurisdiction to determine the prescription issue.
Secondly, on
SATAWU’S ownsubmission the obligation to pay the secondary
salary after 2003 arose from individual contracts
of employment, and
in this regard it is trite that the commissioner had no jurisdiction
to enforce such contracts.The commissioner’s
failure to apply
his mind to these jurisdictional issues renders the award reviewable
on the grounds of latent gross irregularity.
I am in agreement however with the submission made by Mr Van Der
Riet that what the applicant takes issue with is not whether
the
commissioner failed to decide whether he had jurisdiction to
determine the dispute, but that he failed to determine the
jurisdictional facts before him. In any event as Mr Van Der Riet
submitted, the issue of jurisdiction was never raised at the
arbitration and it is for the Labour Court on review to determine as
an objective fact whether the commissioner made a reviewable
error
in assuming jurisdiction should this be challenged.
Unreasonable delayand prescription
Mr Myburgh submitted that it is clear that the commissioner had
regard to irrelevant facts and issues (the parol evidence rule,
SATAWU’s intention, the fact that the dispute was on-going,
the applicant’s failure to terminate the agreement, and
the
absence of a time period in the LRA) in rejecting the applicant’s
submission that the unreasonable delay rule applied.
This is in
itself a latent gross irregularity. Furthermore, the commissioner
failed to consider that, even if the unreasonable
delay rule was not
applicable (in that it is trite that the unreasonable delay rule
does not apply where the
Prescription Act 68 of 1969
applies as was
held in
Eskom (supra)
)the commissioner nevertheless has a
discretion to refuse a declaratory order on the basis of the
egregious delay in referring
the dispute.In this regard he submitted
that the failure to recognise the existence of a discretion and to
exercise it,
7
and in addition the failure to recognise that a party seeking a
declarator must do so within a reasonable time,
8
particularly
in the context of a six year delay, implies that the commissioner
failed to apply his mind to the issues. Thisconstitutes
a latent
gross irregularity.It does not assist SATAWU that (as Mr Van Der
Riet submitted) at no stage did the applicant suggest
at the
arbitration that the commissioner should refuse the declarator, and
there is no indication that he was aware of his discretionary
powers
to refuse on the basis of unreasonable delay. It is moreover clear
from the applicant’s heads that this issue was
squarely placed
before the commissioner and in any event the submission that he may
not been aware of the full extent of his
authority simply reinforces
the applicant’s submission that he applied his mind to
irrelevant issues and failed to determine
the actual controversy
between the parties. In so doing he committed a grave error of law
which constitutes a latent gross irregularity.
Mr Myburgh submitted further that the commissioner dismissed the
prescription plea on spurious grounds when instead he should
have
had regard to the fact that the claim might have been good in law
for the three years preceding the referral in 2010. In
other words,
he failed to determine whether the claim had prescribed completely
or in part, instead applying his mind to irrelevant
facts including
that the secondary agreement was for an indefinite period; the
applicant failed to terminate it in terms of
section 23
(4); and
that the applicant had no intention of abandoning its
responsibilities in terms of the secondary agreement.
Mr Van Der Riet submitted that the applicant’s reliance on the
unreasonable delay rule was entirely misplaced since there
was no
allegation that the applicant had been prejudiced by the delay in
referring the dispute. Moreover, it was never placed
before the
commissioner as an issue to be determined but arose simply in the
context of whether the relief sought was academic.
In regard to
prescription he submitted that the parties are in agreement on the
fact that only part of the claim prescribed,
and that the applicant
had in any event not required the commissioner to determine the
issue but had simply reserved its rights.
However, hesubmitted
(without conceding the point) that the commissioner should have
determined an implementation date having
regard to the prescription
issue but that it was nevertheless appropriate for this court to
correct the award to clarity that
the claim was only enforceable
from 17 September 2007 since the claim prior thereto would have
prescribed.
In my view, although no such concession was made by Mr Van Der Riet,
this is tantamount to conceding that the review (at least
on this
ground) has merit in that it is trite that this court cannot simply
amend paragraph 6.4 of the award to this extent without
reviewing
and setting aside the award, or parts thereof, and determining the
merits or remitting the matter for determination
de novo
.
Duration of the secondary agreement
The applicant submits that in concluding that the secondary
agreement contained an on-going obligation the commissioner failed
to apply his mind to the following materially relevant facts and
issues :
That the duration of the wage agreement determines the duration of
the secondary agreement.While the secondary agreement was
signed on
7 October 2004 (after the lapse of the wage agreement), the face of
the agreement under the heading ‘SATAWU
secondary retirement’
fund reflects that the agreement was reached on 4 April 2002.The
secondary agreement in fact forms
part of clause 9 of the wage
agreement (it states expressly that ‘this agreement concludes
and relates to clause 9 of
the above wage agreement’), and as
a result clause 13 of the wage agreement ( the duration clause)
applied to it. The
duration of the secondary agreement would
therefore have been from 16 October 2002 (the implementation date
in the addendum)
to 15 June 2003 (the termination date of the wage
agreement). There is therefore no basis in law or fact for the
conclusionthat
the secondary agreement survives or that the
respondent’s obligation continues after the expiry of the
wage agreement.
In fact, as the commissioner states, this is simply
his “humble opinion.”
In these circumstances the commissioner exceeded his powers by
ordering the applicant to comply from 16 October 2002 “onwards”.
Mr Myburgh submitted that at most what he was able to do was to
order the applicant to comply for the period 16 October 2002
to 15
June 2003. Thereafter the claims would have arisen in contract and
the commissioner would have had no jurisdiction to
enforce them.
However, although the applicant accepts that it would have had an
obligation to pay the secondary salary for the period 16
October
2002 to 15 June 2003this was contingent on the pension fund coming
into existence, since this was a condition precedent
to the
obligation to pay the secondary salary and the contributions. The
fund was never established and accordingly this obligation
never
arose. In fact Mr Myburgh submitted that was the critical issue for
the review and that the failure of the commissioner
to determine
the issue of the existence of the fund, by way of evidence or
further submissions, reflected a failure to determine
the material
facts and was a latent gross irregularity. I agree with this
submission and return to it below.
Interpretation of the secondary agreement
Mr Myburgh submitted that it is implicit in the commissioner’s
conclusions, although it is not clarified or reasoned, that
the
secondary agreement envisages, in addition to a 6% salary increase
year on year for 2002 and 2003, an additional increase
of 33.33%.
Instead, it is clear from the agreement that this is a proposed
method of structuring the wage given the proposed
implementation of
a secondary retirement fund.The award also implies that this
additional salary is due to
all employees
who were members of
SATAWUand within the bargaining unit at the time and continues as an
on-going obligation from 16 October
2002 to date. I agree that this
is an absurd conclusion to say the very least and the reasons given
by the commissioner are incomprehensible
and at best reflect a
manifest failure to apply hismind to the complexity of the dispute
and the facts andissues before him.
The terms of the award
The applicant submits that in failing to define the terms
“implement” and “eligible members” the
commissioner
demonstrably failed to apply his mind to material
issues. In addition, the Astuence Pension Fund does not exist and it
is unclear
what the effective implementation date is. Mr Van Der
Riet submitted however that the meaning of the terms is clear but
that
in any event this does not have any effect on the validity of
the award. In regard to the Astuence Pension Fund Mr van Der Riet
submitted that it had not been proven that the fund does not exist,
and even if this were correct it was self-evident that there
was an
obligation on the parties to establish the fund and ensure that it
can operate on the basis that contributions will be
made backdated
to 16 October 2002 as awarded.
In my view given that the submission was made to the commissioner in
the applicant’s heads that the fund did not exist,this
should
have at the very least have alerted him to the material dispute of
fact on this issue and prompted him to call for evidenceor
further
submissions. MrVan Der Riet is correct insofar as the facts relating
to the existence of the fund may not have been clearly
conveyed to
the commissioner (although it is clearly referred to in the
applicant’s heads submitted to the arbitration),
but insofar
as SATAWU isseeking an order that the applicant should contribute to
the fund it is incumbent upon it to present
documentary evidence in
the form of the rules of the fund or other indications that it had
sought to initiate the establishment
thereof. The existence of the
fund was clearly a condition precedent, as Mr Myburgh submitted, to
the coming into operation of
the secondary agreement, and the
failure to consider this reflects a failure by the commissioner to
apply his mind to the crux
of the dispute. Even if the commissioner
did not commit misconduct or a latent gross irregularity in failing
to have regard to
the applicant’s submission in its heads of
argument that the Astuence Pension Fund does not and did not exist,
Mr Myburgh
submitted that the award nevertheless falls to be set
aside on the grounds that he committed a material mistake of fact
and this
constitutes an administrative ground of review : see
Pepcor
Retirement Fund & Another v Financial Services Board &
another
2003 (6) SA 38
(SCA) at para [47].Therefore even if one
accepts the submission of Mr Van Der Riet that the fact that the
fund did not exist
was not before the commissioner and he cannot be
faulted for failing to have regard to facts that that are not placed
before
him, where a fact is material to the resolution of a dispute
there is a duty to determine the correct facts prior to making a
decision, particularly one that has a significant financial impact
on the applicant.In this regard the applicant submits that
the
potential costs of satisfying the award amounts to approximately R26
million.
A third submission on this ground was that the commissioner
committed a patent gross irregularity in not affording the applicant
an opportunity to lead evidence on its interpretation of the
secondary agreement given that it is clearly ambiguous on the face
of it and the context in which it was negotiated was important. The
commissioner should have reconvened the arbitration for the
purposes
of leading evidence on the interpretation point. In failing to do so
and in his apparent disregard of the applicant’s
heads of
argument the commissioner deprived the applicant of a fair hearing.
In my view both parties are responsible for this
since it should
have been clear to them that the issue was incapable of
determination on the basis of submissions and that evidence
was
unavoidable. In this regard I agree with Mr Van Der Riet that the
applicant at no stage applied to lead oral evidence or
attempted to
re-open its case once it had filed its heads of argument. Although
the commissioner was constrained by the paucity
of facts that were
established and was forced to rely on assertions in heads of
argument, it should in my view have been apparent
to him not only
that he had a discretion in regard to the relief sought but also
that the matter was incapable of determination
in the absence of
evidence.
In any event irrespective of whether or not the commissioner
committed a latent and / or patent gross irregularity in other
respects, in my view the failure to determine the factual issue of
whether in fact the Astuence Pension Fund exists is a latent
gross
irregularity of the sort that is fatal to the award. This dispenses
with the need in my view to determine whether the award
is also
reviewable on the other grounds submitted. Mr Van Der Riet however
submitted that this is immaterial in that it is common
cause that
the fund does not exist, but that the obligation of the applicant is
to establish a fund and pay the contributions
agreed in terms of the
secondary agreement as well as the secondary salary. This submission
however ignores the express terms
of the agreement, and while there
may be some doubt as to whether it relates to a continuing
obligation, there can be no doubt
that the existence of the Astuence
Pension Fund was agreed as a condition precedent to making the
contributions and paying a
secondary salary. It is clear therefore
that the commissioner committed a series of reviewable defects
inter
alia
, in issuing a declarator in circumstances where the
Astuence Pension Fund does not exist and has never existed; in
failing to
require evidence on this issue and in applying his mind
to immaterial facts and issues; and in committing errors of lawwhich
constitute latent gross irregularities, as a result of which the
applicant was denied a fair trial: see
Herholdt v Nedbank Ltd
.
9
In regard to the relief sought it is clear that the absence of
evidence does not lend itself to a determination of the disputeby
this court and remittal for re-determination is therefore
appropriate.
Order
In the premises, I make the following order :
The arbitration award issued by the first respondent under case
number GAEK2624/10 dated 25 July 2011 is reviewed and set aside.
The matter is remitted to the second respondent to be determined
afresh by a commissioner other than the first respondent.
There is no order as to costs.
_______________________
Bhoola J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT:
A.T. MYBURGH SC (with
him F. BODA)
Instructed by Cliffe
Dekker Hofmeyr,Johannesburg.
THIRD RESPONDENT:
J G VAN DER RIET SC
Instructed byRuth
Edmonds Attorneys, Johannesburg.
1
The
referral was filed on 17 September 2010 but only served on the
applicant on 21 September 2010.
2
This
is an error made by the commissioner in the award and should have
referred to June.
3
In
his answering affidavit Itani Sewadawada, deputy chairperson of
Satawu states that the only inference to be drawn from the
collective agreements is that when the secondary agreement was
signed on 7 October 2004, the fund was already in existence. The
parties therefore knew that the rules of the fund would come into
effect on the implementation date, i.e. 16 October 2002.
4
As
provided in
section 11(d)
read with
section 15(1)
of the
Prescription Act.
5
SA
Rugby Players’ Association (SARPA) & Others v SA Rugby
(Pty) Ltd & others
;
SA Rugby Pty Ltd v SARPU &
another
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC) at para
[40]
.
6
See
Francis J,
South African Airways v Commissioner C De Kock N.O,
CCMA & SATAWU obo Msekeli Mgwatyu
(case no. C635/2010 dated
3/6/2011)
7
Littlewood
& others v Minister of Home Affairs & another
2006 (3)
SA 474
(SCA) at para 17.
8
Hattingh
& Another v SA Airways
(2010) 31
ILJ
2407 (LC) at
paras 7-8.
9
[2012]
9 BLLR 857
(LAC).