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[2015] ZALCJHB 121
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National Employers Association of South Africa and Others v Minister of Labour and Others (JS 860/13) [2015] ZALCJHB 121; JS 860/13 (13 April 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JS 860/13
DATE: 13 APRIL 2015
Not Reportable
In the matter between:
NATIONAL EMPLOYERS ASSOCIATION OF
SOUTH AFRICA
..............................
1st
Applicant
PLASTIC CONVERTERS ASSOCIATION OF
SOUTH AFRICA
.............................
2nd
Applicant
RIVERPARK CRANE HIRE
CC
.....................................................................................
3rd
Applicant
And
MINISTER OF
LABOUR
...............................................................................................
1st
Respondent
METAL AND ENGINEERING INDUSTRIES
BARGAINING COUNCIL
............
2nd
Respondent
PARTIES TO THE
AGREEMENT
................................................................
3rd
to 32nd Respondents
BOARDER INDUSTRIAL EMPLOYER’S
ASSOCIATION
..................................
33rd
Respondent
FEDERATED EMPLOYERS ORGANISATION OF
SOUTH AFRICA
................
34th
Respondent
CAESAR EMPLOYERS
ASSOCIATION
..................................................................
35th
Respondent
Decided in Chambers
Date delivered: 13 April 2015
LEAVE TO APPEAL
JUDGMENT
WATT-PRINGLE AJ
Introduction
[1] On 17 December 2014, my written
judgment dated 12 December 2014 was handed down in the Labour Court
(“the main judgment”).
In that judgment I granted an
order reviewing and setting aside the decision of the first
respondent (“the Minister”)
taken in April 2013 to extend
the terms of a collective agreement to non-parties that fell within
the registered scope of the second
respondent (“the Bargaining
Council”); declaring Government Notice R268 published in the
Government Gazette No. 36338
on 12 April 2013 invalid and of no force
or effect and ordering that the costs be paid by the Minister and the
Bargaining Council,
jointly and severally, the one paying the other
to be absolved, including the cost of two counsel.
[2] The Bargaining Council delivered a
notice of application for leave to appeal against the main judgment
on 23 December 2014;
the National Union of Metal Workers of South
Africa (“NUMSA”) delivered an application for leave to
appeal on 15 January
2015 and a condonation application on 20 January
2015 and on 2 February 2015 the Minister filed a notice of
application for leave
to appeal, well out of time. The Minister has
neither filed an application for condonation nor has the Minister
made written submissions
in accordance with Rule 30(3A) of the Labour
Court Rules.
[3] The first, second and third
applicants (NEASA et al) opposed the application for leave to appeal
and filed written submissions
in terms of Rule 30(3A) on 30 January
2015. Both the Bargaining Council and NUMSA have also filed their
written submissions in
terms of Rule 30(3A).
[4] I do not consider it necessary to
convene a hearing and have considered the applications for leave to
appeal and submissions
made pursuant thereto on the papers.
[5] The central findings of the
judgment can be summarised as follows:
[5.1] The Minister’s decision to
extend a collective bargaining agreement to non-parties and the
subsequent publication in
the Government Gazette in order to give
effect thereto was purportedly in relation to an agreement concluded
in the Bargaining
Council on 14 January 2013.
[5.2] No such agreement was ever
concluded in the Bargaining Council. The agreement submitted for
publication contained an “explanatory
note” which
amounted to a substantive amendment to the collective agreement which
was validly concluded on 11 July 2011,
in that the document submitted
to the Minister purported to rectify a lacuna in the July 2011
agreement by specifying the wage
spread between Grades A to H.
[5.3] There was furthermore no valid
decision by the Bargaining Council to request the extension of the
purported collective agreement
to non-parties pursuant to Section
32(5) of the Labour Relations Act 66 of 1995 (“the LRA”).
[5.4] Both the the Minister’s
decision and the publication of the purported agreement were
accordingly ultra vires Section
32 of the LRA.
[5.5] The invitation by some of the
respondents to suspend the effect of the declaration of invalidity
could not be countenanced
for the reasons given in the judgment.
[6] It is in my view unnecessary to
deal with every ground of appeal advanced by the Bargaining Council
and by NUMSA. I have had
regard to the Minister’s notice of
application for leave to appeal but strictly speaking, in the absence
of an application
for condonation, that application is not properly
before me.
[7] The Bargaining Council on the one
hand contends that since the main application was heard shortly after
the agreement had expired
by effluxion of time, the matter was mute
and the application should, for those reasons alone have been
dismissed. On the other
hand, the Bargaining Council without having
made out any case to that effect on the papers, contends that any
decision by the Court
in its discretion not to ameliorate the order
of invalidity will have dire consequences for those to whom the
purported agreement
was intended to apply and could result in
industrial strife.
[8] The Bargaining Council cannot have
it both ways.
[9] I will return to that aspect later
in this judgment.
[10] My reasoning in relation to the
finding that no collective agreement was concluded on 14 January 2013
is simply this. There
was a lacuna in the July 2011 collective
agreement which at the time the Bargaining Council attempted to
correct by means of an
explanatory note as to what was intended in
relation to the “missing grades”. NEASA objected thereto
and this precipitated
an application for rectification. The
application for rectification was opposed by the Minister who had by
that stage already extended
the agreement to non-parties and the
Minister correctly took the view that rectification could not take
place after such extension.
The Minister’s decision to extend
that agreement to non-parties and the extension thereof was reviewed
and set aside by this
Court on 20 December 2012, thus opening the way
for the Bargaining Council to persist in its application for
rectification, but
this apparently did not occur.
[11] Instead, the Bargaining Council
simply purported to make a decision at a meeting on 14 January 2013
to amend the July 2011
agreement in circumstances which, as the main
judgment spells out, did not remotely comply with any notion of the
conclusion of
a collective agreement either as contemplated at common
law, or according to the definition of a collective agreement in the
LRA
or indeed as contemplated in the Constitution of the Bargaining
Council.
[12] The “collective agreement”
which was submitted by the Bargaining Council to the Minister for
extension and publication
was in terms referred to as a collective
agreement concluded on 14 January 2013.
[13] The Bargaining Council has failed
to make any submissions which deal with the substance of the
abovementioned finding, namely
that the document submitted to the
Minister, purporting to be an agreement concluded on 14 January 2013,
was not what it purported
to be in that there was no agreement
concluded on 14 January 2013.
[14] In its written submissions, NUMSA
has accepted that no collective agreement was concluded on 14 January
2013, but contends
that the document submitted to the Minister was in
truth a collective agreement concluded in July 2011 which contained
an obvious
error, which was simply “corrected”. There are
two obvious difficulties with this approach. The first is that
although
there was an obvious error in the July 2011 agreement, its
correction was not of the order of the correction of a patent error
(such as an error in calculation) in that it is not possible as a
matter of interpretation to “fill in” the missing
grades.
This much was recognised by the Bargaining Council itself when it
launched the substantive application for rectification
of that
agreement.
[15] A second difficulty with NUMSA’s
submission is that the Minister was clearly mislead into believing
that the parties
to the Bargaining Council had concluded an amended
agreement which corrected the error in the July 2011 agreement, when
in fact
this had not occurred.
[16] As for the absence of any valid
decision by the Bargaining Council to request the extension of the
collective agreement to
non-parties, the Minister relied upon a
“postal vote” hastily undertaken after the Minister had
published her possible
intention to extend the “agreement”
to non-parties and invited submissions in response thereto. Assuming
that I need
make nothing of that anomaly, the Bargaining Council’s
contention that an email invitation to those entitled to vote on the
issue which gave them no more than a few hours to do so constituted a
“postal vote” is deplorable, but in keeping with
the
generally slip shod manner in which the entire matter of the July
2011 collective agreement has been handled by the Bargaining
Council.
[17] In my view there is no reasonable
prospect that the Labour Appeal Court will give its imprimatur to
such a sham.
[18] In various submissions made in
this application it was urged upon me that the decision not to
suspend the declaration of invalidity
would defeat the primary
objects of the LRA relating to collective bargaining.
[19] In making these submissions, the
applicants for leave to appeal appear to view this question only from
one perspective, namely
that the extension of collective agreements
to non-parties per se gives effect to one of the primary objects of
the LRA. These
submissions ignore the fact that Section 32 of the LRA
poses strict requirements which must be fulfilled in order for the
Minister
validly to make a decision to extent collective agreements
to non-parties which, as I found, fundamentally failed in at least
two
respects.
[20] The decision by van Niekerk J on
20 December 2013 to suspend the effect of his orders reviewing and
setting aside the earlier
extension of the July 2011 agreement was
with respect perfectly understandable in that the Bargaining Council
was given an opportunity
to put its house in order and the Minister
an opportunity to exercise her discretion on the matter of sufficient
representivity
in terms of Section 32(5), if appropriate.
[21] Had the Bargaining Council
properly put its house in order and the Minister been presented with
a valid agreement, a valid
request to extend the agreement and
sufficient representivity, the agreement may validly have been
extended, but this did not occur.
[22] The parties have not spelt out the
form or effect of an order which this Court may have made in the main
judgment ameliorating
the declaration of invalidity, nor was it
suggested how the Bargaining Council could retrospectively rectify
the deficiencies in
the process which led to that order being
granted.
[23] In essence, an order suspending or
ameliorating the declaration of invalidity would only have been of
any assistance to the
Bargaining Council if the effect thereof was
that both the “14 January 2013” collective agreement and
the extension
thereof would stand and the Bargaining Council could
proceed to enforce compliance to the extent that this has not already
occurred.
[24] In my view, in the absence of a
validly concluded agreement amending the July 2011 agreement in order
to fill in the missing
grades, or an order for rectification which
may have the same effect, it would constitute a substantial deviation
from the principles
on which collective bargaining is based if this
Court nevertheless gave an order which give effect to the “agreement”
and its purported extension, and would do more to defeat the primary
objects of the LRA than the order as it stands is likely to
do.
[25] Put otherwise, the objects of the
LRA concerning collective bargaining are best served by insisting at
least on substantial
compliance with the statutory requirements and
safeguards set forth inter alia in Section 32 of the LRA.
[26] It has also been urged upon me
that there was substantial compliance with Section 32. It is trite
law that substantial compliance
does not mean lack of compliance. It
means compliance in substance if not exactly in form. Absent
rectification of the July 2011
agreement for which no case is made
out and no relief claimed in the main application, there is simply no
basis on which to conclude
that the missing wage grades were agreed
upon as a matter of substance if not as a matter of form. It follows
that when the Bargaining
Council submitted a document which purported
to be an agreement concluded on 14 January 2013 and which catered for
the missing
grades, this was neither an agreement in substance nor in
form and there was no substantial compliance with the requirements of
Section 32.
[27] The decision not to suspend the
order of invalidity is discretionary in nature and the parties have
not in my view pointed
to any basis in which an appeal court would be
entitled to interfere in that decision, if so minded.
[28] It follows that in my view there
are no reasonable prospects of another Court reaching a different
conclusion.
[29] NUMSA’s application for
condonation was not opposed by NEASA et al.
[30] I make the following orders:
1. NUMSA’s application for
condonation is granted.
2. The applications for leave to appeal
to the Labour Appeal Court against the judgment dated 12 December
2014 are dismissed;
3. The cost of this application,
including the costs occasioned by the employment of two counsel, are
to be paid by the Bargaining
Council and NUMSA, jointly and
severally, the one paying the other to be absolved.
CE Watt-Pringle, AJ
Acting Judge of the Labour Court of
South Africa
APPEARANCES
For the Applicants: AIS Redding SC
and GA Fourie
Instructed by: Attorneys Anton
Bakker Inc
For the First Respondent: P Kennedy
SC and MJ Ramaepadi
Instructed by: Attorneys State
Attorneys
For the Second Respondent: N Cassim
SC, F Boda, V September
Instructed by: Attorneys
Patelia-Cachalia Attorneys
For NUMSA: Messrs A Roskam and L
Davis
Instructed by: Attorneys Haffegee
Roskam Savage Attorneys