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[2013] ZALCJHB 52
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National Union of Mineworkers v Commission for Conciliation Mediation and Arbitration and Others (JR 2729/2007) [2013] ZALCJHB 52; (2013) 34 ILJ 2913 (LC) (17 April 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 2729/2007
In the matter between:
NATIONAL UNION OF MINEWORKERS
.......................................................
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
.....................................................
First
Respondent
ANGLOGOLD LIMITED
(SOUTH AFRICAN DIVISION)
......................................................
Second
Respondent
SOMAN N.O
......................................................................................
Third
Respondent
Heard: 18 January 2013
Delivered: 17 April 2013
Summary: Undue delay in prosecuting
an application for review – Need to apply for condonation in
the event of an undue delay
– Review of an award wherein a
collective agreement was interpreted.
JUDGMENT
PRINSLOO AJ
Introduction
The Applicant is seeking to review
and set aside an arbitration award issued on 14 September 2007. The
issue in dispute was whether
the Second Respondent, AngloGold, acted
in breach of clause 2 of the ‘Interim Framework Agreement on
Remuneration of Machine
Operators’. The Applicant’s case
was dismissed at arbitration and not satisfied with that outcome,
the Applicant
filed an application for review on 9 November 2007.
Ad undue delay
The Second Respondent raised the
issue of undue delay in its opposing papers and heads of argument.
Before dealing with the merits
of the application, the delay in
bringing this matter before Court has to be considered.
The steps taken since the issuing
of the arbitration award
The Applicant filed a review
application on 9 November 2007 seeking to review and set aside the
arbitration award issued on 14
September 2007.
On 16 November 2007 the CCMA filed a
notice of compliance in terms of Rule 7A(3) of the Rules of the
Labour Court.
During 2008, the parties’
respective legal representatives liaised regarding the
reconstruction of the record and the Applicant’s
representative indicated that he would contact the attorneys
representing AngloGold to arrange a meeting to reconstruct the
record.
No further communication was received
from the Applicant’s attorneys and approximately three years
later, the Applicant’s
attorneys requested a meeting to
reconstruct the record.
In December 2011, the Applicant’s
attorneys indicated that they would not pursue reconstruction any
further and on 14 December
2011 the Applicant filed a notice in
terms of Rule 7A(8)(b).
The Second Respondent filed opposing
papers in January 2012 and has in the opposing affidavit raised the
issue of the delay and
indicated that the Applicant has to file an
application for condonation in respect of the delayed pursuance of
the review application.
The Applicant filed its heads of
argument on 8 August 2012 and the Second Respondent on 28 August
2012.
The matter was enrolled for hearing
on 18 January 2013.
The Second Respondent did not raise
the issue that the review application was filed outside the six-week
period, but that it was
not actively pursued subsequent to the
filing of the review application in November 2007.
The Applicant filed its Rule 7A(8)
notice only in December 2011, more than four years after the review
application was filed and
this matter came before this Court for
adjudication more than five years after filing of the review
application. Mr Cook, appearing
for the Second Respondent,
emphasised that the record the Applicant eventually filed in
December 2011, was the original record
without any reconstruction,
hence there was no reason for the delay.
Despite the fact that the Second
Respondent took issue with the delay in pursuing the matter and
raised in its opposing affidavit
and heads of argument, that the
Applicant did not bother to tender any explanation for the delay.
The Applicant’s representative,
Mr Manetsa, was unable to
tender any explanation to this Court at the hearing of the matter.
The submissions made
Mr Cook was seeking the dismissal of
the Applicant’s case on the basis that there is a delay of
more than four years during
which period the Applicant failed to
pursue its application for review. He submitted that the delay is
excessive and that the
Applicant’s failure to apply for
condonation, should dispose of the matter and there is nothing
further for this Court
to decide.
Mr Manetsa for the Applicant accepted
that the Second Respondent indeed raised the issue regarding the
need to apply for condonation
in its answering affidavit, but
submitted that AngloGold should have approached this Court to seek
dismissal of the review application.
He submitted that the Second
Respondent waived its right to have the matter dismissed as it was
inactive and took no steps to
seek dismissal of the review
application and this Court cannot assist the Second Respondent now
by dismissing the review.
The Applicant submitted that there is
no rule that the Applicant did not comply with and no rule that
requires of the Applicant
to apply for condonation.
In summary, the facts are: a review
application was filed in November 2007, a Rule 7A(8) notice was only
filed in December 2011,
the Second Respondent filed an opposing
affidavit in January 2012, raising the issue of the delay and stated
that it was under
the impression that the Applicant has abandoned
the matter and in August 2012 the parties filed heads of argument.
The Applicant
tendered no explanation for the delay. The Second
Respondent argued that the Applicant should have applied for
condonation and
the Applicant argued that the Second Respondent
should have applied for the dismissal of the review application.
The question is whether the Applicant
should have applied for condonation and whether this court could
dismiss the review application
on the ground that there is no
condonation application filed in respect of the delayed pursuance of
the matter.
In
Bezuidenhout v Johnston NO
and Others
1
the Court held that:
‘
...I
f
applicant parties have unduly delayed prosecuting their applications,
and fail to provide acceptable reasons for the delays, the
ultimate
penalty of dismissing such applications should be used in appropriate
cases. This will hopefully help creating a culture
of compliance and
ensure that disputes are expeditiously dealt with.
At
the same time, the respondent party must not sit by idly and bide his
time, waiting for a particular undefined moment in time
when the
applicant party's delay may enable him to apply to have the delaying
party barred from seeking further relief, or to have
the matter
dismissed, by reason of delays in pursuing it. I am of the view that,
if an applicant drags his feet, the respondent
party also bears a
responsibility to ensure that disputes are resolved expeditiously.
This obligation of a respondent party
is in my mind a primary
one in respect of ensuring that the applicant party complies with
time periods applicable to it.’
In
Autopax
Passenger Services (Pty) Ltd v Transnet Bargaining Council and
Others
,
2
it was held that:
‘
There
is nothing in the Act or in rules of this court that provides that
legal proceedings once instituted become superannuated
by the
effluxion
of
time for want of prosecution or that a litigant must apply for
condonation on account of a delay in the prosecution thereof.
That is
also the position in the High Court. There is also no general
time-limit under the common law within which legal proceedings
must
be concluded once instituted….
…
.
…
.
the rule that the court has the power to dismiss proceedings
due
to a delay in the prosecution thereof lies in the court's inherent
power to prevent an abuse of its own process. Despite these
differences, the reasoning underlying the principle that a delay may
be fatal to a review application must in my view equally apply
to
both
an applicant who delays in initiating review proceedings and one who
thereafter delays in the finalization of the matter. Except
for the
fact that the court should possibly also have regard to the
respondent's own conduct in the exercise of its discretion,
the same
considerations are relevant and should find application in the
exercise
of
the court's discretion...’
In
Karan
t/a Karan Beef Feedlot and Another v Randall
,
3
it was held
:
‘
In
summary: despite the fact that the rules of this court make no
specific provision for an application to dismiss a claim on account
of the delay in its prosecution, the court has a discretion to grant
an order to dismiss a claim on account of an unreasonable
delay in
pursuing it. In the exercise of its discretion, the court ought to
consider three factors:
the
length of the delay;
the
explanation for the delay; and
the
effect of the delay on the other party and the prejudice that that
party will suffer should the claim not be dismissed.
This
is subject to the consideration that an application to dismiss is a
drastic remedy, and should not be granted unless the dilatory
party
has been placed on terms, and when appropriate, after any further
steps as may have been available to the aggrieved party
to bring the
matter to finality have been taken.’
The
Court in
BP Southern Africa
(Pty) Ltd v National Bargaining Council for the Chemical Industry
and Others
4
found that:
‘…
.
the applicant is free to bring an application to dismiss the
application for review. The rules of this court make no specific
provision for an application to dismiss when a party fails diligently
to pursue a claim referred to the court for adjudication,
but the
court has recognized and adopted the rule based on the
maxim
vigilantibus non dormientibus lex subveniunt
,
in terms of which a party may in certain circumstances be debarred
from obtaining the relief to which that party would have been
entitled because of an unjustifiable delay in prosecuting their
claim.…
The
applicant ought to have availed itself of an application to dismiss
the review application, in terms of the principles to which
I have
referred. This is a remedy specifically designed to address an
alleged abuse of this court's process in the form of unjustifiable
delays occasioned
by
a litigant….’
In
Ferreira v Tyre
Manufacturers Bargaining Council and Others
5
it was held that:
‘…
the
Labour Court has deprived applicants of the right to pursue remedies
in circumstances where an applicant has unduly delayed
the
prosecution of a claim. It is now a common practice when an applicant
has delayed unduly in prosecuting a review application
for a
respondent to bring an application dismissing the review proceedings
under rule 11 of the Labour Court Rules. Similarly,
where an
applicant has been excessively slow in finalising the steps necessary
to have a matter set down for trial once pleadings
have closed,
the court will also entertain such applications.’
In my view, the position in respect
of undue delay is as follows:
The practice when an Applicant has
delayed unduly in prosecuting a review application is for a
Respondent to bring an application
dismissing the review
proceedings under rule 11 of the Labour Court Rules;
This Court
has a
discretion to grant an order to dismiss an application on account
of an unreasonable delay in pursuing it;
In the exercise of its discretion,
the Court ought to consider three factors:
the length of the delay;
ii. the explanation for the delay; and
iii. the effect of the delay on the
other party and the prejudice that that party will suffer should the
claim not be dismissed.
An application to dismiss is a
drastic remedy and should not be granted unless the dilatory party
has been placed on terms,
and when appropriate, after any further
steps as may have been available to the aggrieved party to bring
the matter to finality,
have been taken. This means that the
conduct of the aggrieved party is to be considered.
There is nothing in the Act or in
Rules of this Court that provides that a litigant must apply for
condonation on account of
a delay in the prosecution of any legal
proceedings.
The delay in pursuing the review
application is no doubt excessive and not compliant with the primary
objectives of the Labour
Relations Act 66 of 1995 (‘the Act’).
The delay is further not explained at all and there is not any
plausible reason
why this matter was not pursued and finalised much
earlier than August 2012, when heads of argument were filed and the
matter
was ready to be enrolled for hearing.
It is further a matter of grave
concern that attorneys and counsel represented the Applicant from
the onset. Even at the arbitration
proceedings, the Applicant was
represented and
is therefore in no position to
claim ignorance of the Rules of this Court or the objectives of the
Act. The Applicant and its
attorneys were resting on their laurels
and disregarded the Rules of this Court and ignored the object and
intention of the Act.
Be that as it may, the Second
Respondent stated in its opposing affidavit that it heard nothing
from the Applicant for a period
of three years and was under the
impression that the Applicant has abandoned the matter. When the
Second Respondent filed an
opposing affidavit, more than four years
after the review application was filed, it called upon the Applicant
to file a condonation
application in respect of the delayed
pursuance of the matter. The issue raised in respect of the
Applicant’s failure to
seek condonation for the extensive
delay, was persisted with in the Second Respondent’s heads of
argument and argument
before this Court.
The Second Respondent did not file an
application to dismiss the Applicant’s review.
I am of the view that the Second
Respondent should have filed an application to dismiss the
Applicant’s review based on
the dilatoriness of the Applicant
in pursuing it. The Second Respondent, however, never applied that
remedy, but merely raised
an issue in respect of the Applicant’s
failure to apply for condonation in respect of the delayed pursuance
of the matter.
There is no requirement that the Applicant had to
apply for condonation for failing to pursue the review application
expeditiously
and dismissing the review on this basis seems
inappropriate.
Background facts
The brief history of this matter is
as follows: during November 1999 the Applicant and AngloGold
concluded the ‘Interim
Framework Agreement on the Remuneration
of the Machine Operators at Anglo’s Mines’ (the
agreement’) and it
was implemented until 31 August 2007.
The disputed clause of the agreement
is clause 2, the relevant part of which reads as follows:
‘
For
the employee who has recorded shifts in the machine operator
function, a payout of R 40,00 per quality-drilling shift is
guaranteed.
The
payout specified in this agreement, is a guaranteed payout over and
above existing productivity linked bonus schemes. This payout
is
subject to a quality-drilling shift being completed (i.e. a shift
that results in a blast)’
Clause 2 should be read together with
clause 3.1 which reads as follows:
‘
For
purposes of payout, in terms of this agreement, the machine operator
function will include all drilling functions performed
in stoping and
/ or development operations.’
During November 2006, a small number
of the machine operators refused to assist in ‘charging up’,
which is part of
the process of preparing the rock face for blasting
by drilling a hole into the rock face and fitting the hole with an
electric
charge and explosive which is then denoted to cause a
blast. AngloGold, subsequently and as a result of the refusal to
assist
in charging up, declined to pay the R40,00 bonus to the
machine operators who did not assist in charging up, regardless of
whether
a blast resulted or not.
On 17 January 2007, the Applicant
referred a dispute to the First Respondent and the nature of the
dispute was the interpretation
or application of a collective
agreement. The dispute concerned the interpretation of the agreement
and more specifically the
obligation to make payment of bonuses to
machine operators who had participated in drilling shifts but who
had refused to assist
in charging up the rock face prior to the
blast.
The Applicant alleged that AngloGold
has not complied with the agreement and was seeking retrospective
payment of the R40,00 payout
for the machine operators. The
Applicant’s case was that the reference in the agreement to a
‘quality drilling shift’
did not include the duty to
charge up. AngloGold on the other hand submitted that machine
operators, who refused to charge up,
were not entitled to the
payout, as they did not perform all the duties required of them
during a shift that would qualify such
a shift as a ‘quality
drilling shift’.
The arbitration award
The arbitrator, the Third Respondent
in this application, considered whether AngloGold was in breach of
the agreement, and more
specifically clause 2 thereof. The Applicant
sought compliance with the agreement as from December 2006 until 31
August 2007
and sought payment of the bonus to all machine operators
who worked on a shift resulting in a blast during the same period,
regardless
of whether those operators assisted in charging up or
not.
The Applicant’s case was that
machine operators were not breaching the agreement by refusing to
charge up and were entitled
to the payout as per clause 2 of the
agreement. AngloGold’s case was that charging up was part of
the machine operator’s
job and that they were expected to
drill holes, de-sludge these holes and to charge up the holes to
enable a blast to take place
and when they refused to do that, they
were not entitled to the payout.
The arbitrator, in her analysis of
the dispute, found that the dispute centred around the question
whether ‘charging up’
is a machine operator function.
The arbitrator found that it was
clear from the agreement that payouts were made to machine operators
who participate in quality
drilling shifts, which result in a blast.
The agreement stipulated that for purpose of payout the machine
operator function would
include all drilling functions. ‘All
drilling functions’ had not been defined in the agreement, but
the arbitrator
considered that the evidence adduced was that it in
fact included drilling of holes, de-sludging these holes and
charging up
the holes to enable a blast to take place. A blast
cannot take place without the holes being charged up.
The Applicant conceded that prior to
November 2006 the machine operators had been performing the function
of charging up for many
years and whilst they performed this
function, they received their payouts.
The arbitrator found that in terms of
the agreement, if the machine operators failed to perform all
drilling functions, they would
not be entitled to payout as per
clause 2, regardless of whether a blast took place or not. The
machine operators failed to perform
all the drilling functions,
which could result in a ‘quality drilling shift’, and
they were therefore not entitled
to a payout. The Applicant’s
case was dismissed.
The test on review
The
test that this Court must apply in deciding whether the arbitrator's
decision is reviewable has been rehashed innumerable
times since
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others;
6
‘
whether the conclusion reached
by the arbitrator was so unreasonable that no other arbitrator could
have come to the same conclusion.’
The Constitutional Court
very clearly held that the arbitrator's conclusion must fall within
a range of decisions that a reasonable
decision maker could make.
In
SA Municipal Workers Union
v SA Local Government Bargaining Council and Others
7
the Labour Appeal Court dealt with a
review application concerning the interpretation or application of a
collective agreement
and noted that the question to be answered was
not whether the award in issue was correct but whether the
arbitrator had acted
fairly, and considered and applied his mind to
the issues before him. It is accepted that the reasonableness test
is applicable
in a review concerning the interpretation or
application of a collective agreement.
In
S A Breweries Ltd v
Commission for Conciliation, Mediation and Arbitration and Others
8
the Court considered the test on
review and held that:
‘
In
Fidelity
Cash Management Service v CCMA and Others
9
Zondo
JP
applied
the
Sidumo
test
thus:
“
It
will often happen that, in assessing the reasonableness or otherwise
of an
arbitration
award or other decision of a CCMA commissioner, the court feels that
it would have arrived at a different decision or
finding to that
reached by the commissioner. When that happens, the court will need
to remind itself that the task of determining
the fairness or
otherwise of such a dismissal is in terms of the Act primarily given
to the commissioner and that the system would
never work if the court
would interfere with every decision or arbitration award of the CCMA
simply because it, that is the court,
would have dealt with the
matter differently.”
And:
“
The
test enunciated by the Constitutional Court in
Sidumo
for
determining whether a decision or arbitration award of a CCMA
commissioner is reasonable is a stringent test that will ensure
that
such awards are not lightly interfered with. It will ensure that,
more than
before,
and in line with the objectives of the Act and particularly the
primary objective of the effective resolution of disputes,
awards of
the CCMA will be final and binding as long as it cannot be said that
such a decision or award is one that a reasonable
decision maker
could not have made in the circumstances of the case. It will not be
often that an
arbitration
award is found to be one which a reasonable decision maker could not
have made but I also do not think that it will
be rare that an
arbitration award of the CCMA is found to be one that a reasonable
decision maker could not, in all the circumstances,
have reached.”
It is against this background that the
Applicant's grounds of review must be assessed.’
Grounds for review
The Applicant raised one main ground
of review in its founding affidavit, namely that the arbitrator
based her award on evidence
that was not placed before her. The
Applicant’s case is that the arbitrator’s findings that
the Second Respondent
was not in breach of the agreement and that
the evidence adduced was that drilling functions included drilling,
de-sludging and
charging up, were based on the provisions of
paragraph 3.1 of the agreement, whilst no such evidence was led.
None of the witnesses
referred to paragraph 3.1 or the drilling
functions. The arbitrator based her award on evidence not placed
before her and she
denied the Applicant a fair hearing and her award
is unreasonable and therefore reviewable. Alternatively, she
committed an irregularity
in the conduct of the proceedings.
What
the alleged irregularity in the conduct of proceedings was, the
Applicant failed to state. The Applicant failed to provide
any
factual basis for the alternative ground for review and it is not
necessary for this Court to consider the merits of the
alternative
ground. This approach was confirmed in
Moraka
v National Bargaining Council for the Chemical Industry and Others
,
10
where the Court held that:
‘…
In
setting out the grounds of review in his founding affidavit, the
applicant did not set out any factual basis for those grounds,
but
merely set them out in the form of conclusions. Examples of this are
the first two grounds of review he mentions, namely:
“
2.1
The commissioner committed misconduct by making findings not
justified on the evidence;
2.2
gravely misunderstood evidence presented before her....'
The
Labour Appeal Court has made it clear in the unreported case of
A
Comtech (Pty) Ltd v Commissioner Shaun Molony NO and Others
(case
no DA12/05 dated 21 December 2007) that it is not sufficient for a
party simply to relate conclusions of law in the founding
papers for
a review application. A party must set out the factual grounds on
which it seeks to base its review. While it may be
excusable in a
founding affidavit to state limited grounds of review and in less
detail, by the time an applicant has the record
of proceedings it
must then make up for the deficiencies in the founding affidavit and
set out the factual basis for its grounds
of review in full. When it
came to his supplementary affidavit, the applicant did not supplement
or amend the grounds of review
set out in the founding affidavit, nor
did he lay a factual foundation for the grounds set out in the
founding affidavit. On the
approach of the LAC in the
Comtech
case, no factual basis was provided for the review application. It
was only in his heads of argument that the applicant for the
first
time set out a factual basis for his claim.
I
am bound to follow the approach of the LAC in regard to the
assessment of the prospects of success and conclude that the
applicant
failed to provide any factual basis for his grounds of
review in his founding papers. Accordingly, it is not necessary, on
the
basis of the
Comtech
approach, to consider the merits of
the case set out later, and for the first time, in the applicant's
heads of argument. Even so,
I am satisfied that a reading of the
commissioner's award and the record shows that the commissioner did
not act unreasonably in
concluding that the applicant's dismissal was
substantively and procedurally unfair.’
There remains thus one ground for
review to be considered and that is whether the arbitrator based her
award on evidence not placed
before her.
The Applicant’s submissions as
contained in the heads of argument could be summarised as follows:
in coming to her decision,
the arbitrator failed to take material
evidence into account and had regard to irrelevant evidence. The
evidence she failed to
consider was that of Sandlane that the
withholding of payments was not based on the terms of the agreement.
The evidence the
arbitrator considered relating to the work practice
of machine operators was irrelevant and none of the witnesses
suggested that
the term ‘drilling functions’ as
contained in paragraph 3.1 of the agreement included charging up, as
found by the
arbitrator.
The Applicant’s case is that
the relevant evidence the arbitrator ignored, was that none of the
witnesses testified that
‘charging up’ was indeed a
drilling function as contemplated in the agreement, none of the
witnesses suggested that
the machine operators were in breach of the
agreement and Sandlane testified that the decision to withhold the
bonus was based
upon work practices and not on the agreement.
In his argument before this Court, Mr
Manetsa submitted that the arbitrator looked outside the terms of
the agreement and in doing
so, she reached a conclusion she should
not have reached. He further submitted that the arbitrator should
not have placed any
reliance on the evidence adduced by AngloGold’s
witnesses as they were not party to the agreement and could not in
any
way have assisted to interpret the agreement.
AngloGold submitted that in terms of
the agreement ‘machine operator function’ would ‘include
all drilling functions’
and what had to be determined was
whether charging up was encapsulated within the machine operator’s
function. Since the
agreement itself provided no clarity on this
aspect, it was appropriate to have regard to the surrounding and
background circumstances
in order to give meaning to this phrase.
The witnesses did not seek to give meaning to the words used in the
agreement, but they
were all employed by AngloGold for many years
and were all familiar with the mining operations. They were in a
position to provide
evidence regarding the context and application
of the agreement. The evidence so presented was that there had been
a practice
for many years for machine operators to perform the
charge up functions, it was part of their ordinary functions and was
necessary
to achieve a quality blast. The arbitrator correctly
applied the principles relating to the interpretation of contracts
and she
was entitled to have regard to the evidence of witnesses to
arrive at a meaning of the proper functions of mining operators.
In addressing this Court, Mr Cook
emphasised the fact that the Applicant called no witnesses to
testify at the arbitration proceedings,
but merely put versions to
the witnesses called by Anglogold. This was, however, not evidence
and the version as presented by
AngloGold was to be accepted. The
evidence on what drilling function were and that charging up was
part of drilling functions,
was uncontested.
It is evident from the record of
proceedings that the witness, Mr Sandlane, who is employed by
AngloGold since 1974, testified
that the quality shift bonus was
payable when the drillers drill a hole, charge it up and it results
in a quality blast for the
day. There must be a quality blast for
the quality bonus to be payable, so he testified. He further
testified that the drillers
are trained to charge up and they have
been doing that for many years. The arbitrator accepted that the
evidence of the witnesses
insofar as it referred to ‘drillers’,
was referring to ‘machine operators’ as stated in the
agreement.
Mr Hutton, the second witness called
by AngloGold, worked at the Mponeng mine for more than 21 years and
testified that a shift
that resulted in a quality blast is a shift
where all the machine operators did what they are required to do.
This includes the
drilling of holes, de-sludging the holes and
charging up. Without charging up there cannot be a quality blast. Mr
Hutton explained
that a quality blast entails a number of tasks that
have to be completed to ensure a quality blast and all those tasks
are not
specifically mentioned in the agreement, as it would be
extreme to list every single function, but those are included in all
the tasks that have to be performed in a quality blast.
The last witness for AngloGold, Mr
Lombard, was employed in the industry for 28 years and he testified
that a machine operator’s
functions included drilling,
de-sludging the holes and the charging of dynamite into the drilled
holes. A quality blast entails
many tasks and if those are not
performed, it affects productivity. He confirmed that charging up is
part of a machine operator’s
job description and it is also a
long established practice.
It was confirmed by the witnesses
that disciplinary action was not taken against the machine operators
who refused to charge up,
as the relationship was important, it
would have affected the business operations negatively, alternatives
to resolve the issues
were explored and it was anticipated that the
issue would be resolved in the near future.
The ground for review to be
determined is whether the arbitrator failed to take material
evidence into account and had regard
to irrelevant evidence. The
question then is: what evidence the arbitrator should have
considered and what she should have ignored
in interpreting the
agreement.
In
North East Cape Forests v
SA Agricultural Plantation and Allied Workers Union and Others
11
the Labour Appeal Court held that:
‘
If
the collective agreement is to be interpreted and applied purely by
reference to contractual principles, the strike would have
been
unprotected had the ballot taken place after 20 March 1997. But a
collective agreement in terms of the Act is not an ordinary
contract,
and the context within which a collective agreement operates under
the Act is vastly different from that of an ordinary
commercial
contract.
....
On
a purely contractual approach, therefore, there was no enforceable
right to strike prior to 20 March 1997. Such a course of action
would
frustrate the overall scheme of the Act, viz to promote effective,
fair and speedy resolutions of labour disputes.
On
the other hand, an approach based on the objectives of the Act
itself, seems better suited
to
overcome such difficulties.
…
.
The purpose of the Act itself is to advance economic development,
social justice, labour peace and the democratization of the
workplace
by giving effect to its primary objects (s 1)…
It
is, in my view, quite clear that these primary objects of the Act are
better served by the practical approach to the interpretation
and
application of the collective agreement as set out in
the
judgment of Myburgh JP, rather than by reference to purely
contractual principles...’
In
Food and Allied Workers
Union v Commission for Conciliation, Mediation and Arbitration and
Others
,
12
it was held that:
‘
What
is accordingly very clear is that, where a court, or a commissioner
of the CCMA for that matter, is tasked to interpret a written
contract, or as in the present case, a collective agreement, it must
give to the words used by the parties their plain, ordinary
and
popular
meaning
and if there is no ambiguity in the words of the contract, they must
be given their plain, ordinary and popular meaning.’
The dispute was whether machine
operators who refused to charge up would be entitled to a payout, as
per clause 2 of the agreement,
when the shift resulted in a blast.
The arbitrator found that it was clear from the agreement that
payouts were made to machine
operators who participate in quality
drilling shifts, which result in a blast. The agreement stipulated
that for purpose of payout
the machine operator function would
include all drilling functions performed in stoping and or
development operations.
‘
All
drilling functions’ had not been defined in the agreement and
whether charging up was encapsulated within the machine
operator’s
function, was not clear from the agreement. The arbitrator
considered the evidence AngloGold adduced in this
respect. The
agreement was in place since 1999 and only in November 2006 the
dispute arose in respect of machine operators refusing
to charge up.
AngloGold employed the witnesses who testified for many years
preceding the date the agreement was implemented.
They all testified
about the practice existing in respect of payouts to machine
operators, what was included in machine operator
functions and what
was to be understood when reference was made to ‘all drilling
functions’.
The uncontested evidence was that a
quality drilling shift and machine operator functions included the
drilling of holes, de-sludging
these holes and charging up the holes
to enable a blast to take place. A blast cannot take place without
the holes being charged
up.
It was AngloGold’s case that on
the face of it, the agreement did not provide a definition for a
quality drilling shift
but that was not to say that the intention of
the parties could not have been gathered from the agreement itself,
coupled with
evidence regarding the practice relating to the
responsibilities of machine operators to charge up. The witnesses
were in a position
to provide evidence regarding the background
circumstances and the context of the agreement and the evidence
established that
the practice had been established for many years
that the machine operators would perform charge up functions.
The
arbitrator was required to give words their plain, ordinary and
popular
meaning. ‘Drilling
functions’ had not been described in the agreement and it was
appropriate to have regard to the
surrounding and background
circumstances in order to give meaning to the phrase. It was
therefore appropriate for the arbitrator
to hear evidence to assist
her to interpret the terms of the agreement and to give meaning to
words used in the agreement.
I am of the view that the ground for
review as raised by the Applicant is without merit and losing sight
of obvious points addressed
in the testimony of the witnesses.
Conclusion
In reviewing the arbitration award,
the ground for review as raised by the Applicant must be assessed
and this Court can only
decide whether the arbitrator’s
decision was so unreasonable that no other arbitrator could have
reached the same decision.
The test to be applied is a strict one.
Having considered the evidence
adduced at the arbitration proceedings, the findings made by the
arbitrator and the ground for
review raised by the Applicant, I
cannot find that the arbitrator's decision fell outside of the band
of decisions to which a
reasonable decision maker could come.
The
conclusion that the arbitrator reached is one that a reasonable
decision maker could have come to and it is not open to review.
Both parties submitted that costs
should follow the result. I can see no reason to disagree.
Order
[68] I therefore make the following
order:
The application for review is
dismissed with costs.
______________
Prinsloo AJ
Acting Judge of the Labour Court
Appearances:
Applicants: Advocate Manetsa
Instructed by: Cheadle Thompsom &
Haysom
Second Respondent: Advocate Cook
Instructed by: Brink Cohen Le Roux Inc
1
(2006)
27 ILJ 2337 (LC) at paras 31-32.
2
(2006)
27 ILJ 2574 (LC) at paras 7 and 14.
3
(2009)
30 ILJ 2937 (LC) at para 14.
4
(2010)
31 ILJ 1337 (LC) at paras 10-11.
5
(2013)
34 ILJ 364 (LC) at para 12.
6
(
2007)
28 ILJ 2405 (CC) at para
7
(2012)
33 ILJ 353 (LAC).
8
(2012)
33 ILJ 2945 (LC) at para 19.
9
[2008]
3 BLLR 197
(LAC)
10
(2011)
32 ILJ 667 (LC) at paras 21-23.
11
(1997)
18 ILJ 971 (LAC) at 979E-980H.
12
(2007)
28 ILJ 382 (LC) at para 35.