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[2014] ZALCJHB 98
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NUMSA v CCI Turnkey Projects (Pty) Ltd (J641/14) [2014] ZALCJHB 98 (2 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
JUDGMENT
Not
reportable
Case
no: J641/14
In
the matter between:
NUMSA
obo ITS MEMBERS AS PER THE LIST OF MEMBERS ANNEXED TO THE NOTICE
OF MOTION MARKED “A”
Applicant
and
CCI
TURNKEY PROJECTS (PTY) LTD
Respondent
Heard:
27 March 2014
Delivered:
01 April 2014
Reasons
filed:
02 April 2014
Summary:
Urgent interdict to compel payment of arrear fund contributions
and to suspend retrenchment consultations, pending such payment –
alternative remedy exists for recovery of contributions –
further retrenchment consultations not prevented by non payment
of
arrears.
JUDGMENT
LAGRANGE,
J
[1]
On 01 April, I dismissed this application
with no order as to costs. My brief reasons are set out below.
[2]
The applicant in this matter brought an
urgent application to compel the respondent to pay arrear employer
and employee contributions
to retirement benefit funds administered
by the Metal and Engineering Industries Bargaining Council, and to
compel it to comply
with the provisions of section 189 A of the
Labour Relations Act 66 of 1995 ('the LRA'). Although they also
sought other associated
relief the central thrust of the application
concerned these two issues.
[3]
Although the respondent has deducted
contributions for retirement funds from the applicants, it is common
cause that it is in serious
arrears in the payment of the
contributions deducted and its own contributions to the funds in
question. From the papers, it is
apparent that it has been seeking to
agree on terms of repayment with the bargaining Council without
success and enforcement proceedings
initiated by the council are in
the offing. In passing, it seems strange that such action is only
being contemplated now when the
arrears apparently dates back to the
second half of 2012.
[4]
From the minutes of meetings between the
union representatives and the company during the period January to
October 2013, it appears
that the arrears were one of the issues
discussed at those meetings. Although the minutes do not provide much
detail, it would
appear that the union representatives ought at least
to have been aware that the last confirmed reports of arrear payments
was
that, contributions back to June 2012 had been paid in August
that year, but that by October 2013, a payment plan was still under
discussion. On the papers, it appears that it may be so that the
union representatives would not have known the exact extent of
arrear
payments outstanding, but it seems improbable they could have
reasonably believed that all payments were up to date at the
time the
respondent issued its notice of intended retrenchments in January
2014.
[5]
Accordingly, it is hard to accept that it
was only on 5 March 2014 at the facilitation meeting that the union
became aware that
no arrears had been paid over since September 2012,
and for this reason the applicants could not accept the
bona
fides
of the respondent in the
retrenchment consultations, until it had made good the outstanding
payments.
[6]
I can understand that the applicants would
have understandably been upset if they had only learnt at that point
that payouts from
the retirement funds would be based on
contributions actually received and not on contributions deducted and
due. However,
it does not follow in my view that consultations
over the retrenchment could not continue because the ultimate amounts
due from
the benefit funds are contingent on the arrear payments
being made. What ought to have been capable of determination was what
was
owed on the present balances in the funds.
[7]
The uncertainty would have concerned the
balance of arrears and that uncertainty would have related more to
the risk of non-payment
than uncertainty about the amount of
additional value that the unpaid arrears would add to the fund
payouts. That uncertainty did
not prevent consultations taking place.
What it meant was that there was no guarantee that the moneys in
question would be recovered
and therefore the applicants could not
factor that amount in when consulting on ways of ameliorating any
retrenchment. Similarly,
the respondent could not hold out in the
consultations that the arrears would ultimately form part of the
benefits due from the
funds to retrenched employees.
[8]
Consequently, I am not satisfied that the
uncertainty about the payment of arrear contributions, or the fact
that the arrears remain
outstanding, would have prevented
consultations in accordance with the provisions of s 189A on the
issues which s 189 of the LRA
envisages parties must deal with.
[9]
On the issue of compelling the employer by
means of this application to pay the arrear contributions to the
retirement funds, which
apparently amount to about R 9m, I accept
that there are certain contractual obligations flowing from the
Consolidated Benefit
Funds Agreement that members of the fund may
enforce. However, the primary enforcement mechanism to enforce
contractual obligations
arising from a collective agreement are the
proceedings which can be initiated by the bargaining council under
its enforcement
mechanisms. If the bargaining council has been
tardy in utilising those mechanisms, nothing prevents the applicants
from
taking steps to compel it to do so.
[10]
In the circumstances, I am satisfied that
the applicants have not established a
prima
facie
right to stay the retrenchment
consultations, and a suitable alternative remedy exists for the
enforcement of the respondent’s
obligations relating to the
payment of arrear contributions.
_______________________
R
LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
R Edmonds of Ruth Edmonds Attorneys
RESPONDENT:
P Kirstein instructed by Serfontein, Viljoen & Swart