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[2014] ZALCJHB 186
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Workforce Group v Hambridge and Others (JR1897/12) [2014] ZALCJHB 186 (27 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case no: JR 1897/12
In
the matter between:
THE
WORKFORCE
GROUP
................................................................................................
Applicant
and
COMMISSIONER:
ELEANOR HAMBRIGDE
M.D
..............................................
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
.....................................................................
Second
Respondent
NATIONAL
BARGAINING COUNCIL FOR THE
ROAD
FREIGHT
INDUSTRIES
.............................................................................
Third Respondent
Heard:
17 April 2014
Delivered:
27 May2014
Summary:
Review Application
JUDGMENT
SHAI
AJ
INTRODUCTION
[1]
This is an application
by the applicant in terms of which it seeks an order reviewing,
correcting or setting aside the arbitration
award of the First
Respondent dated 22 June 2012, and directing that any party that
opposes the application bear the costs of the
application.
[2]
In her award dated 22
June 2012, the First Respondent, in a matter relating to seven
combined referrals, dismissed each and every
one of the applicant’s
point in limine and directed the Second Respondent’s case
management to schedule the matter
for arbitration.
[3]
Only the Third
Respondent is opposing the application.
APPLICATION
FOR CONDONATION
[4]
The Applicant also seeks condonation for
the late delivery of its replying affidavit. The said application is
not opposed by the
Third Respondent. The factors that need to be
taken into account when determining whether there is sufficient cause
to grant condonation
were set out in
Melane
v Santam Insurance Co Ltd 1962 (4) SA at 532
and
involves weighing together the following factors; which are
interrelated: degree of lateness, explanation thereof, the prospects
of success and the importance of the case. The court went on and said
that although these factors are interrelated, are not individually
decisive, if there are prospects of success there would be no point
in granting condonation.
[5]
The said replying affidavit was delivered
outside of the five days provided in the Rules, and is 33 days late.
I am satisfied that
the period of delay is not unreasonably excessive
taking into account the administrative challenges that the applicant
faced viz
misfiling of the answering affidavit by its attorneys and
the fact that the deponent of the founding affidavit was taken ill
and
was booked off for some time and could not attend to the matter
timeously. I’m satisfied that on return to work of the deponent
the Applicant attended to the matter expeditiously. I’m further
satisfied that the Applicant has fair prospect of success
in that the
issues being raised against the Third Respondent viz Third
Respondent’s
locus standi
to enforce its agreement, Third Respondent’s none compliance
with Exemption and Dispute Resolution agreement, hereafter referred
as “EDRA” in respect of the investigation of a dispute
and THIRD Respondent’s failure to conciliate the dispute
(Section 24 versus Section 33A of the LRA) are important issues
between the parties and on the face of it the applicant has a fair
chance of success. In the premise I grant condonation of the late
filing of the replying affidavit.
GROUNDS
OF REVIEW
[6]
It was submitted on
behalf of the applicant that the First Respondent committed gross
irregularities in the conduct of the proceedings:
6.1 In so far as the
dismissal of the applicant’s point
in limine
relating to Third Respondent’s
locus standi
in
case number 6301LEV2 is concerned, the following submissions are
made:
6.1.1 The First
Respondent failed to have regard to Applicant’s submission that
within the context of
Section 28
of the
Labour Relations Act 66 of
1995
and Clause 2 of the Third Respondent’s constitution (or
indeed the provisions of the Main Agreement) no provision is made
for
the Third Respondent to step into the shoes of a union such as SATAWU
or to act as its representative.
6.1.2 Rather, the
clear intent of the legislature and the Third Respondent, when
framing its constitution, was for the Third Respondent
to resolve
dispute whilst acting in an objective and non-partisan manner.
6.1.3 This is
particularly so in circumstances where there was not even a referral
of a dispute by SATAWU in terms of the Third
Respondent’s
Exemption and Dispute Resolution Agreement (“EDRA”).
6.2. In so far as
the alleged non-compliance with the EDRA is concerned, the following
submissions are made.
6.2.1 The First
Respondent was wrong in failing to have regard to the peremptory
provision contained in clause 5(1)(c) of EDRA to
the effect that a
designated agent of the Third Respondent “
must investigate a
dispute that comes to his attention in the course of performing his
duties.”
6.2.2 Moreover, no
reasons are given as to why the First Respondent comes to the
conclusion that an investigation in the above regard
should not be of
a formal nature.
6.2.3 In the Lev 3
matters numbered 3508 and 3841, no reasons are given how First
Respondent came to the finding that a genuine
attempt to investigate
was made by the Third Respondent when there was no evidence on which
she could have based such a finding.
6.2.4 Moreover,
there was no evidence to suggest that such alleged attempts were
frustrated by the respondent.
6.2.5 Such unfounded
conclusion by the First Respondent could only have been arrived as a
result of bias against the applicant.
6.2.6 There was no
evidence at the arbitration hearing to the effect that there was even
an investigation of this matter by the
Third Respondent’s
designated agent, whether formal or informal.
6.2.7 The First
Respondent moreover failed with regard to clause 5(1)(d) of EDRA
which provides that conciliation may only take
place “
in the
course of or after investigation.”
6.2.8 Accordingly
the drafters of EDRA clearly contemplated a process in terms of which
there would first be a compulsory investigation
of a dispute followed
by (or simultaneously held with) a conciliation and culminating
finally in an arbitration.
[7]
The third ground of
review relating to failure to conciliate
(section 24
versus
section
33A)
was abandoned by the Applicant on the basis that my sister, her
Ladyship Bhoola J has already made a determination thereon. The
court
will therefore confine itself to the two remaining grounds as
properly captured above.
[8]
The application for
review therefore relates to two points
in
limine
raised
during enforcement proceeding which were taking place in terms of
Section 33A
of the
Labour Relations Act 66 of 1995
. The points
in
limine
relates to
locus standi
of the Third Respondent to bring such proceedings against the
applicant and secondly, to the alleged non-compliance by Third
Respondent
with paragraph 5 of the Third Respondent’s Exemption
and Dispute Resolution Agreement.
LEGAL
EXPOSITION
[9]
The applicable test in
jurisdictional reviews was stated in the case of SA Rugby Players’
Association (SARPA) and others v
SA Rugby (PTY) LTD and Others’,
SA Rugby PTY LTD SARPA and another
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC) as
follows:
“
The
issue that was before the commission was whether there had been a
dismissal or not. It is an issue that goes to the jurisdiction
of the
CCMA. The significance of establishing whether there was a dismissal
or not is to determine whether the CCMA had jurisdiction
to entertain
the dispute. It follows that if there was no dismissal, then the CCMA
had no jurisdiction to entertain the dispute
in terms of
Section 191
of the Act.”
[10]
This approach was also
followed in the case of
Sanlam
Life Insurance LTD v CCMA
[2009] 301 LJ 2903 LAC. The court cited with approval the following
paragraph from the
SA
Rugby Players Association
(SARPA) at paragraph 7:
“
The
CCMA is a creature of statute and not a court of law. As a general
rule, it cannot decide its own jurisdiction. It can only
make a
ruling for convenience. Whether it has a jurisdiction or not in a
particular matter is a matter to be decided by the labour
court. In
Benicon Earthworks and Services (Edms) v. Jacobs No. and others
(1994) 15 ILJ 801 LAC C-D, the old Labour Appeal Court
considered the
position in relation to the Industrial Court established in terms of
the predecessor or current Act. The court held
that the validity of
the proceedings before the Industrial Court is not dependent upon any
finding which the Industrial Court may
make with regard to
jurisdiction facts but upon their objective existence. The court
further held that any conclusion to which
the Industrial court
arrived on the issue has no legal significance. This means that, in
the context of this case, the CCMA may
not grant itself jurisdiction
which it does not have……”
The
court therefore held that the test for review of jurisdictional
rulings is simply whether or not the ruling was correct or not.
The
rational or reasonable test does not apply.
LOCUS
STANDI
[11]
The enforcement dispute
before the Third Respondent related to attempts by the Council to
recover money owing to the Third Respondent
in terms of the Main
Collection Agreement for the industry, which agreement was extended
to non-parties. The money in question
is the union subscriptions due
to South African Transport and Allied Workers Union. It is in this
context that the applicant contended
that the Third Respondent was
doing so acting on behalf of SATAWU and had no
Locus
standi
to do
so.
[12]
Paragraph 31(1) (a) of
the Main Agreement provides as follows:
“
Every
employer shall each week deduct from the wages of its employees who
are members of a trade union that is a party to this Agreement
the
current union subscriptions referred to in paragraph (b) and payable
by such employees to such union and shall transmit the
total amount
so deducted, together with a monthly return (Annexure D) in the form
specified by the Council for this purpose, to
the Secretary of the
Council.’’
[13]
Section 28
of the
Labour Relations Act 66 of 1995
provides that:
“
(1)
The powers and functions of a bargaining council in relation to its
registered scope include the following-
(a)
to conclude collective agreements;
(b)
to enforce those collective
agreements.”
[14]
Further that,
Section
33
A (1) of the
Labour Relations Act provides
that:
“
(1)
Despite any other provision in this Act, a bargaining council may
monitor and enforce compliance with its collective agreements
in
terms this section or a collective agreement concluded by the parties
to the council.”
[15]
It was argued for the
applicant that the Third Respondent did not have the
locus
standi to enforce
the collective agreement and thereby acting on behalf of SATAWU or
individuals in case numbers PTA 34/3841/11; PTA 32/3841/11,
PTA
366/3508/10 and PTA 94/102/444/10. However, looking at paragraph
31(1)(a) of the Main Agreement read with
Sections 33
A(1) and
Section
28(1)
of the LRA it is my conclusion that criticism of the First
Respondent in this respect is without merit and must be rejected. It
is clear to me that the Third Respondent has locus standing to
enforce its collective agreement. The issue of jurisdiction has
got
nothing to do with the merits of the case but whether the Third
Respondent has in law such jurisdiction which I find it has.
The
First Respondent was correct in her conclusion that by enforcing the
collective agreement the Third Respondent was not acting
on behalf of
the union or individual members. The Third Respondent has the power
to enforce the said collective agreement although
in the end the
union or individuals may be the beneficiaries of such an action. In
my view there is no need for a referral by the
union. The Third
Respondent by virtue of its monitoring power as outlined in the
Section 28
may notice non-compliance, or may receive complains and an
investigation may reveal non-compliance. On noticing non-compliance
The Third respondent may invoke its powers as aforesaid to remedy the
situation by enforcing compliance. Having outlined the source
of the
powers of the Third Respondent as I did above I have no hesitation in
finding that the criticism of the finding of the First
Respondent on
this ground is without merit and unsustainable.
Third
respondent’s non-compliance with EDRA-in respect of failure to
investigate the dispute.
[16]
At the heart of this
complaint is that the enforcement dispute would not be arbitrated
until such time that a formal investigation
had been held into the
non- payment of the subscription fees.
[17]
Clause 5(1) (b) of the
EDRA provides that:
“
Any
person may refer a dispute about the interpretation, application or
enforcement of the council’s collective agreements
to the
council who may require an agent/designated agent to investigate the
dispute.”
[18]
Clause 5(1) (c) of EDRA
provides that:
“
Any
designated agent of the council must investigate a dispute that comes
to his attention in the course of performing his duties.”
[19]
Clause 5(1) (d) of the
EDRA stipulates that a dispute may be conciliated by:
“
(i)
a designated agent in the course of or after an investigation or
(ii) a duly appointed
conciliator.”
[20]
The First Respondent
dealt with the matter as follows:
“
Having
carefully perused the arguments, I am not persuaded that clause
5(1)(c) of the EDRA has not been complied with as my reading
of
clause 5(1)(c) does not require such an investigation to be of a
formal nature. It is also not stated in clause 5(1)(c) that
an
investigation is a pre-requisite to arbitrate and should an
investigation by a designated agent not have taken place, The
Responded
will be afforded an opportunity to prove compliance with
respective collective agreements during the course of the arbitration
hearing.”
[21]
It was argued for the
Respondent that the First Respondent was correct in dealing with the
matter as aforesaid because:
21.1. The
enforcement proceedings were not brought in terms of EDRA but in
terms of
Section 33A
of the LRA.
21.2. The
investigation contemplated in terms of EDRA cannot possibly be a
formal investigation and evidence existed that the clause
had been
subject to some investigation.
[22]
The enquiry here is
whether the Third Respondent had the jurisdiction to entertain the
dispute at the arbitration level or not.
In other words were there
objective facts conferring jurisdiction or not?
[23]
It is common cause
between the parties that the matter was instituted in terms of
Section 33A
of the LRA.
Section 33A
of the LRA provides that:
“
(1)
Despite any other provision in this Act, a bargaining council may
monitor and enforce compliance with its collective agreements
in
terms of this Section or a collective agreement concluded by the
parties to the council.”
Section 33A
(2) provides that:
“
A
collective agreement in terms of this Section may authorise a
designated agent appointed in terms of
Section 33
to issue a
compliance order requiring any person bound by that collective
agreement to comply with the collective agreement within
a specified
period.
(4)(a) The Council may refer
any unresolved dispute concerning compliance with any provision of a
collective agreement to arbitration
by an arbitrator appointed by the
council.”
[24]
What are the
requirements that must be satisfied for the Third Respondent to have
jurisdiction to entertain the matter at arbitration
embedded within
Section 33A
of the LRA? It is clear to me that such requirements are
the issuance of a compliance order, and that the dispute must remain
unresolved.
Was the compliance order issued? The answer is in the
affirmative. Was the dispute unresolved? The answer is also in the
affirmative.
It is therefore clear to me that the Third Respondent
had jurisdiction to entertain the dispute regardless of whether there
was
or no investigation thereof.
[25]
I agree with The Third
Respondent’s argument that an investigation in a claim
instituted in terms of
Section 33A
is not a prerequisite before
arbitration can be held. I have pointed out the requirements that
must be satisfied to confer jurisdiction
to the Third Respondent to
arbitrate such dispute above. An investigation is not one of them.
True, if the Third Respondent opted
to approach the dispute from the
EDRA angle, then the requirements as outlined in EDRA will have to
apply.
[26]
In a similar case of
The Workforce Group
(Pty) Ltd v National Bargaining Council For The Road Freight Industry
P/128/11 my sister Bhoola J said the following at paragraph 8:
“
In
casu the arbitrator found that the arbitration as envisaged in
Section 33A
was valid dispute resolution mechanism for the dispute
involving non-compliance with a collective agreement. This is akin to
finding
that the First Respondent was by law entitled to convene
arbitration in respect of the unresolved dispute, and that the second
respondent was correct in assuming jurisdiction in the matter.”
[27]
At paragraph 9 she went
on to say:
“
I
agree with the submission made by Mr. Orr and I’m persuaded
that the review has no merit and falls to be dismissed given
that the
applicant is afforded an opportunity to raise its substantive defence
at arbitration and
it is not
entitled in fact and in law to seek enforcement of a procedure not
envisaged in
Section 33A
,
there
is no reason why the costs should not follow the result”
(my
emphasis).
[28]
In this case too, the
applicant seeks to enforce a procedure not embedded in
Section 33A
and that can’t be. It is for this reason that I find the
criticism of the First Respondent on this ground of review without
merit.
[29]
Having concluded that
section 33A
does not require an investigation to be conducted before
arbitration is held I see no reason to deal with whether an
investigation
was conducted or not as it will serve no purpose.
[30]
In the premise I make
the following order:
(a) That the
application for review, correcting and setting aside the decision of
the First Respondent in respect of her arbitration
award dated 22
June 2012 is dismissed.
(b) The applicant
is ordered to pay the costs.
______________
Shai
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
:
Adv.
BM Jackson : Instructed by Hunts (Inc Borkums) Attorneys
Adv.
Chris Orr : Instructed by Moodie & Robertson Attorneys