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[2012] ZALCCT 14
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Seardel Group Trading (Pty) Ltd t/a Berg River Textiles v South African Clothing and Textile Workers Union (SACTWU) and Others (C592/2011) [2012] ZALCCT 14 (14 March 2012)
REPUBLIC OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no: C592/2011
Reportable
In the matter between:
SEARDEL GROUP TRADING (PTY) LTD
trading as BERG RIVER TEXTILES
…......................................................
Applicant
and
SOUTH AFRICAN CLOTHING AND TEXTILE
WORKERS UNION (SACTWU)
…..................................................
First
respondent
COMMISSIONER NATASHA ABRAHAMS N.O.
….................
Second
Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION (CCMA)
…...............................
Third
respondent
Heard: 28 February 2012
Delivered: 14 March 2012
Summary: Review of certificate of
outcome – mutual interest or rights dispute – LRA s 23 –
Bombardier Transportation
followed – certificate not
subject to review.
______________________________________________________________
JUDGMENT
STEENKAMP J
Introduction
[1] The applicant has applied to
review and set aside the certificate of outcome issued by second
respondent (the commissioner)
on 28 June 2011 following a
conciliation hearing held under the auspices of the third respondent
(the CCMA) on the same date.
[2] In its notice
of motion, the applicant referred to a “ruling” by the
commissioner. This is patently incorrect. Mr
Cronjé
,
for the applicant, confirmed in oral argument that he was referring
to the certificate of outcome issued by the commissioner on
that
date. The relevance of this fact is not insignificant, as I shall
explain shortly.
[3] The first
respondent (SACTWU) opposes the review application. Mr
Whyte
initially conceded
that this Court has the power in terms of section 158(1)(g) of the
Labour Relations Act 66 of 1995 (“the
LRA”) to consider
on review whether the certificate was issued in accordance with the
requirements of the LRA. He revised
his views somewhat after I had
debated the judgment of Van Niekerk J in
Bombardier
Transportation (Pty) Ltd v Mtiya N.O and Others
1
with the parties. I
shall return to this aspect.
Background
[4] On 11 November 2009, the applicant
and SACTWU entered into a collective agreement in order to regulate a
new shift pattern regime
at the applicant’s business, with a
view to reducing the applicant’s overall wage bill.
[5] It is common
cause that the agreement is a collective agreement as defined by
section 213 of the LRA
2
and regulated by
sections 23 and 24 of the LRA. SACTWU accepts that the agreement was,
but for its alleged termination, binding
upon it.
[6] On 18 January 2011, SACTWU wrote
to the applicant stating:
‘
In
terms of
section 23(4)
of the
Labour Relations Act 66 of 1995
we
hereby give you one month’s notice of the termination of the
agreement.’
[7]
Section 23(4)
of the LRA provides
that:
‘
(4)
Unless the collective agreement provides otherwise, any party to a
collective agreement that is concluded for an indefinite
period may
terminate the agreement by giving reasonable notice in writing to the
other parties.’
[8] SACTWU also invited the applicant
to negotiate a new shift pattern arrangement, failing which a dispute
would be declared and
dealt with in terms of the LRA – in other
words, through power play by strike action.
[9] On 7 February 2011, the applicant
wrote to SACTWU, rejecting its right to cancel the agreement.
[10] On 9 March 2011, SACTWU referred
a dispute to the CCMA on the prescribed form 7.11, from which the
following is apparent:
Under clause 3, ‘Nature of the
Dispute’, the box ‘Other’ is checked and
described as “Part B –
LRA
Section 23(4)
”;
Under
‘Summarise
the facts …’ it is stated:
‘
We
serving notice (sic) upon the employer party to terminate the
collective agreement reached in November 2009’;
and
Under clause 6, ‘Result of
Conciliation’, it is stated: ‘Collective agreement to
be terminated’.
[11] A conciliation hearing took place
on 28 June 2011, following which the commissioner issued the
certificate of outcome indicating
that the dispute concerning
“matters of mutual interest” was not resolved and could
be “referred” to a
strike or lock-out.
[12] The applicant
wishes to review this certificate. Its argument is that
the
dispute which was to be conciliated by the CCMA is not a dispute of
mutual interest, but is a dispute about the interpretation
and
application of the collective agreement which falls under the ambit
of
section 24(5).
That section states that, if a dispute about the
interpretation and application of a collective agreement remains
unresolved after
conciliation, any party to the dispute may request
that the dispute be resolved through arbitration
.
[13] The applicant submits that the
commissioner committed a gross irregularity and misdirected herself
by categorising the dispute
as a dispute of mutual interest.
Therefore, it says, the certificate should be reviewed and set aside.
The legal framework
[14] For present purposes,
section 213
of the LRA simply defines a collective agreement as a “written
agreement” between employer and trade union. At common
law,
such an agreement is binding in accordance with its express or
interpreted terms. At common law, and to the extent that the
agreement is silent on duration, a party may (assuming that breach or
non-performance is not a factor) resile from the agreement
on the
giving of written notice.
[15] SACTWU submitted that
sections 23
and
24
of the LRA largely remove the collective agreement from the
sphere of the common law. Thus where an agreement is concluded (in
writing) between employer and trade union, and such an agreement
regulates matters of mutual interest, the LRA becomes applicable.
[16]
Section 23(3)
of the LRA provides
that where a collective agreement varies any contract of employment
that
ipso facto
varies the individual contracts of employment
already in existence between an employee and his or her employer.
From this, it would
follow that the mere termination of the
collective agreement does not revert terms and conditions of
employment to the pre-agreement
status quo ante
, but rather
that the individual contracts continue in their amended form until
further agreement is reached.
[17] In the case of a collective
agreement concluded for an indefinite period, either party may
unilaterally resile from the agreement
simply by giving “reasonable
notice” as envisaged by
s 23(4).
If such notice is given, the
agreement comes to an end by operation of law.
[18] If a party to the agreement wants
to make a demand which would change the terms and conditions
regulated by that agreement
and thus the amended individual contracts
of employment, it would have to cancel the agreement. In the absence
of cancellation,
the trade union party would not be entitled to
resort to strike action by virtue of the provisions of
section
65(1)(a)
of the LRA.
[19]
Section 24
of the LRA provides
that where there is a dispute about “the interpretation or
application” of a collective agreement,
a party may have that
dispute resolved by conciliation and arbitration as a dispute of
“right”.
[20] The applicant submits that this
is such a dispute, and that the commissioner wrongly described it as
a matter of mutual interest.
[21] The applicant argues that the
dispute that was to be conciliated properly fell under
s 24(5)
of the
LRA. In describing it as a matter of mutual interest, it argues, the
commissioner committed a gross irregularity and exceeded
her powers.
On this basis it argued that the certificate of outcome should be
reviewed and set aside.
[22] Neither party referred to the
judgment in
Bombardier
3
in their heads of argument. When I
brought it to their attention in oral argument, neither Mr
Cronjé
nor Mr
Whyte
had considered it and they were not in
a position to address oral argument to me on its effect. I therefore
asked them both to submit
a supplementary note, which they did.
[23] In
Bombardier,
4
Van Niekerk J held:
‘
In
other words, a certificate of outcome is no more than a document
issued by a commissioner stating that on a particular date,
a dispute
referred to the CCMA for conciliation remained unresolved. It does
not confer jurisdiction on the CCMA to do anything
that the CCMA is
not empowered to do, nor does it preclude the CCMA from exercising
any of its statutory powers. In short, a certificate
of outcome has
nothing to do with jurisdiction. If a party wishes to challenge the
CCMA’s jurisdiction to deal with an unfair
dismissal dispute,
it may do so, whether or not a certificate of outcome has been
issued. Jurisdiction is not granted or afforded
by a CCMA
commissioner issuing a certificate of outcome. Jurisdiction either
exists as a fact or it does not.’
[24] I followed that approach in
Mickelet v Tray
International Services and Administration (Pty) Ltd.
5
I remain of the view that it is a
correct statement of the law.
[25] The following
principles were established
Bombardier
:
A certificate of outcome issued by
the CCMA in terms of
section 135(5)(a)
amounts to nothing more than
the fact that either:
An attempt has been made to
conciliate the dispute, but this attempt has failed; or
The 30-day time period has elapsed.
The certificate of outcome does not
confer jurisdiction on an arbitrator (or judge), nor does it
entitle the arbitrator (or
judge) to arbitrate (or adjudicate) the
dispute where he or she does nor have the power, in terms of the
LRA to do so.
The arbitrator (or judge) must
determine a jurisdictional complaint at any stage of the
proceedings.
It is not a reviewable irregularity
for a conciliating commissioner to ‘defer’ the
jurisdictional decision to an
arbitrator (or judge).
[26] The Court in
Bombardier
found, on the basis of the principles set out above, that the
certificate of outcome in that matter was properly issued and could
not be challenged on review. In essence, the Court found that because
the arbitrator had not made a ruling there was nothing to
which the
Court’s review powers could be applied.
[27] In this matter, on SACTWU’s
version, the certificate issued by the second respondent purports to
be one issued in terms
of
section 64(1)(a)(i)
of the LRA which
provides that:
‘
Every
employee has the right to strike … if the issue in dispute has
been referred to … the Commission … and
a certificate
stating that the dispute remains unresolved has been issued’.
[28] The certificate issued in terms
of
section 64
is thus similar to one issued under
section 135
, in
that both only purport to confirm that the dispute is unresolved. The
certificate does not “confer jurisdiction”
to the
employees to take strike action or, put simply, does not make an
unprotected strike protected.
[29] The
commissioner did not make a ruling which is capable of being
challenged in review proceedings under
section 158(1)(g)
of the LRA.
She merely confirmed that she was unable to resolve a dispute between
the parties which had come before her as conciliating
commissioner.
Her
characterisation
of the review is not a
ruling that is subject to review. In my view, there is no basis in
law for a distinction to be drawn between
the scenario presented by
this matter and that in
Bombardier
.
[30] The only point
of distinction is one of practicalities. Whilst, in
Bombardier,
the employer party had the right to challenge the
arbitrator’s jurisdiction during the arbitration proceedings,
the applicant
here of course has no similar recourse. Mr
Whyte
submitted in his supplementary note that the
answer would appear to be that the employer’s true recourse
would be to attempt
to interdict the strike on the basis that it is
one not complying with the requirements of the LRA, i.e. because it
is underpinned
by a dispute of right. I express no view on the proper
course that the applicant should follow.
[31] Mr Cronjé submitted
that
this case can be distinguished from the
Bombardier
case, for the following reasons:
The
Bombardier
case involved
a jurisdictional dispute, i.e. whether the CCMA had jurisdiction to
even conciliate the dispute, let alone arbitrate
it.
In the
Bombardier
case, the
jurisdictional issue could still be decided at arbitration,
irrespective of what was stated in the Certificate of
Outcome.
In the instant case, there is no
dispute as to the jurisdiction of the CCMA to conciliate. The
categorisation of the dispute,
however, determines the way in which
the dispute is ultimately to be resolved, i.e. through arbitration,
or strike action.
Once categorised as a “mutual interest
dispute”, the certificate of outcome bestows at least a
prima
facie
right on the first respondent to embark on strike action
in terms of
Section 64
of the LRA. The CCMA therefore becomes
functus officio
with respect to the dispute.
If a dispute is wrongly categorised
as a dispute of mutual interest, there is no recourse for the
applicant, to prevent strike
action, other than interdict
proceedings in this court.
[32] That may be so; but the fact
remains that, in law, the certificate of outcome has no legal
significance other than to state
that, on the date it was issued, the
dispute referred to the CCMA remained unresolved. It is not a ruling
that is open to review.
And as I have stated above, I express no view
on the proper avenue for the applicant to follow.
[33] Mr
Cronjé
also referred to
Zeuna
– Stärker Bop (Pty) Ltd v NUMSA,
6
the earlier
decision where the Labour Appeal Court held that:
‘
[T]he
commissioner was
obliged
to examine all the facts in order to ascertain the real dispute
between the parties … and having done so, to determine
the
actual dispute and the date that the dispute arose
’.
But that dispute
dealt with the question of jurisdiction, and the commissioner had
made a ruling on jurisdiction – one that
could thus be
reviewed. The court held that the commissioner’s decision that
the CCMA did not have jurisdiction was wrong
and that it could be
reviewed by the Labour Court. The same applies to the recent decision
of
Parliament
of the Republic of South Africa v NEHAWU obo Members and Others.
7
Conclusion
[34] The certificate of outcome is not
subject to review. The application must, therefore, fail.
[35] Given that the application of the
Bombardier
decision was raised by the Court
mero motu
,
Mr
Whyte
quite properly conceded that there should be no order
as to costs.
Ruling
[37] The application is dismissed.
There is no order as to costs.
________________________
ANTON STEENKAMP
JUDGE OF THE LABOUR COURT
APPEARANCES
Applicant: F Cronjé attorney.
First respondent: J Whyte of Cheadle
Thompson & Haysom Inc.
1
[2010]
8 BLLR 840 (LC).
2
Labour
Relations Act 66 of 1995
.
3
Supra
4
Supra
at
para 15.
5
Unreported,
case no C717/10 (Labour Court, Cape Town, 6 September 2011).
6
(1999)
20 ILJ 108 (LAC);
[1998] 11 BLLR 1110
(LC) at para 6.
7
[2011]
9 BLLR 905
(LC).