THE LABOUR COURT OF SOUTH AFRICA,
IN JOHANNESBURG
Reportable
JR2052/13
In the matter between:
NATIONAL UNION OF MINEWORKERS Applicant
andAnd
COMMISSION FOR CONCILIATION MEDIATION,
AND ARBITRATION First Respondent
ROB MAC GREGOR N.O. Second Respondent
LONMIN PLATINUM Third Respondent
Heard: 16 April 2015
Delivered: 29 April 2015
Summary: (Jurisdiction - interpretation of recognition agreement - conditional court
order - CCMA determination of representativeness not in breach of res judicata
principle)
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JUDGMENT
___________________________________________________________________
LAGRANGE J
Background
[1] On 26 June 2013, the applicant union in this matter, NUM, referred an
interpretation and application dispute to the CCMA claiming that the empl oyer,
Lonmin, had transferred NUM members to AMCU in breach of the recognition
agreement between itself and Lonmin. This had the effect of reducing NUM’s
membership to the below 50% in the bargaining unit and Lonmin had relied on this
to terminate the agre ement on 90 days notice to NUM. On the same day, NUM
launched an urgent application to stay the termination of the agreement and to
reinstate the stop orders of transferred NUM members pending the outcome of the
dispute referred to the CCMA. Previously, on 28 May 2013, Lonmin and NUM had
agreed to a Court order in terms of which the 90 day notice period stipulated in
clause 12.1 of the recognition agreement would only expire on 16 July 2013. In
terms of the same order, the recognition agreement would terminate on that date if
NUM was unable to prove that it was sufficiently representative by that stage.
[2] The urgent application to stay the termination of the agreement beyond 16 July
2013 pendin g the outcome of the interpretation and application dispute was
dismissed for lack of urgency on 15 July 2013. In terms of the Court order of 28
May 2013, in the absence of any of them being unable to prove that it was
sufficiently representative, the recognition agreement would have terminated on 16
July 2013.
[3] The relief sought in the CCMA referral was for the employer to be compelled to
revoke the cancellation of the agreement because it was not entitled to do so on
the basis of the notices of NUM members hip resignations as the majority of those
purported resignations were invalid.
[4] At the CCMA arbitration proceedings, Lonmin raised an in limine objection that the
dispute over the cancellation of the recognition agreement was res judicata in view
of the Court order of 28 May 2013 in terms of which it terminated on 16 July 2013.
The arbitrator agreed that the Court order of 28 May 2013 had finalised the status
of the recognition agreement. He also agreed that remarks made by myself in the
course of dismissing the second application for want of urgency did not confer any
power on the CCMA to entertain the dispute, and were in any event obiter.
Consequently, the arbitrator found he did not have the power to consider the
dispute. It is this jurisdictional ruling that NUM seeks to set aside on review.
Grounds of review
[5] As the ruling is a jurisdictional one, the only question for the Court to determine is
whether, objectively speaking, the arbitrator was correct.1
[6] NUM’s grounds of review may be summarised as follows:
6.1 the disputes before the Labour Court and the CCMA were not the same;
6.2 the arbitrator failed to realise the conditional nature of the Court order of 28
May 2013 wherein it was ordered:
“If the applicant is unable to prove that it is sufficiently representative in
terms of the recognition agreement by 16 July 2013, then the recognition
agreement terminates on 16 July 2013.”
[7] Lonmin disputes the significance of the fact that, part of the order was phrased in a
conditional form. It submits that, effectively, that part of the order was only
provisional in the sense that it set out a resolutive condition. Consequently, if the
condition was not met, the effect of the order was to finally terminate the
agreement on 16 July 2013. Thus , by the time it came before t he CCMA to decide
if the recognition agreement could be validly terminated, that had already occurred
in terms of the Court order. It contends that the arbitrator was simply wrong to treat
the matter as res judicata . Implicit in Lonmin’s argument is that N UM failed to
prove its representativeness by 16 July 2013.
1 See SA Rugby Players Association & others v SA Rugby (Pty) Ltd (2008) 29 ILJ 2218 (LAC) at paras
[40]-[41].
[8] Both parties rely on the well established principles of res judicata most recently
reaffirmed in t he SCA judgment in Prinsloo NO an d Others V Goldex 15 (Pty)
Ltd and Another 2, where the court stated:
“[23] In our common law the requirements f or res iudicata are threefold:
(a) same parties, (b) same cause of action, (c) same relief. The
recognition of what has become known as issue estoppel did not dispense
with this threefold requirement. But our courts have come to realise that
rigid adherence to the requirements referred to in (b) and (c) may result in
defeating the whole purpose of res iudicata. That purpose, so it has been
stated, is to prevent the repetition of lawsuits between the same parties,
the harassment of a defendant by a multiplicity of actions and the
possibility of conflicting decisions by different courts on the same issue
(see eg Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 835G).
Issue estoppel therefore allows a court to dispense with the two
requirements of same cause of action a nd same relief, where the
same issue has been finally decided in previous litigation between the
same parties.”3
[9] Lonmin obviously concurred with the arbitrator’s ruling and reasoning. It submitted
that if NUM was correct, the outcom e of an arbitration would entail revisiting the
Court’s conclusion that the agreement would terminate on 16 July 2013 in the
absence of NUM demonstrating it was sufficiently representative before that date.
Furthermore, a finding by an arbitrator that NUM was sufficiently representative in
terms of the recognition agreement immediately before 16 July 2013 c ould not
undo the fact that NUM failed to demonstrate its representativity before the
deadline it had agreed with Lonmin, which had been encapsulated in the Court’s
order. There was no longer a recognition agreement to interpret after that date.
2 2014 (5) SA 297 (SCA)
3 At 305
[10] Lonmin argued that NUM cannot circumvent the termination of the recognition
agreement in the Court order by revisiting the issues under the auspices of an
interpretation and application dispute. The only way in which the union could have
avoided the termination on 16 July 2013 would have been if it had met the
condition by proving the sufficiency of its membership prior to that date. If Lonmin
had refused to accept such proof, the union could have pressed its claim through
contempt proceedings.
[11] NUM argues that it was not asking the CCMA commissioner to determine the
same issue that Basson J decided. The Court merely set out the preconditions for
the termination of th e agreement, it did not have to decide if the precondition of
proving representativeness was actual ly met. Proof that the pre -condition was
indeed satisfied could only have been proof of an event that occurred subsequent
to Basson J’s decision. That question is quintessentially a matter of confirming if
the threshold of representativeness was met in terms of the collective agreement,
the application of which Basson J’s decision had confirmed.
[12] The collective agreement provides no internal disput e resolution mechanism for
disputes over its interpretation and application, and accordingly either party was
entitled to refer the dispute to the CCMA for arbitration under s 24 (2)(a) of the
Labour Relations Act, 66 of 1995 (‘the LRA’).
[13] If the CCMA were to interrogate the validity of the termination, and if the arbitrator
concludes that NUM had in fact established its representativeness before the
deadline imposed by the Court, then it would mean it had met the pre -condition
and the resolutive event had not occurred and , consequently, the agreement
remained in place. In my view, this would not amount to revisiting anything decided
by Basson J, or amount to arriving at a decision in conflict with the Court order.
[14] Practically speaking, the value of the CCMA making such a determination two
years after the time that representativeness had to be determined for the purposes
of deciding if the agreement was validly terminated in 2013 is obviously debatable,
given that it is the current status of NUM’s membership that will matter going
forward. Nonetheless, I am persuaded that the issue before the arbitrator was not
the same issue before the Court and that in determining if the union had satisfied
the membership requirement for retaining recognition, he would not h ave been
deciding the same issue decided by the Court, but would be deciding if the union
had failed to satisfy the Court’s requirement for non-cancellation of the agreement.
Order
[15] The second respondent’s ruling to the effect that he had no jurisdiction to
determine the dispute before him in CCMA case no HO 2492 -13 dated 07 August
2013 is reviewed and set aside.
[16] It is declared that the CCMA does have jurisdiction to determine whether or not the
applicant had established by 16 July 2013 that it was sufficiently representative in
terms of the recognition agreement to prevent the valid terminatio n of the
recognition agreement by that date.
[17] The matter is remitted back to the first respondent to be set down before a senior
commissioner other than the second respondent for hearing.
[18] No order is made as to costs.
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R LAGRANGE
Judge of the Labour Court
Appearance
For the Applicant: A Redding, SC
Instructed by: Cheadle, Thomson & Haysom Inc.
For the third Respondent: M Van As
Instructed by: Cliffe Dekker Hofmeyr Inc.