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[2015] ZALCJHB 144
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Solidarity obo Members v South African Police Service and Others (J2145/14) [2015] ZALCJHB 144 (5 May 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: J 2145/14
DATE:
05 MAY 2015
Not
Reportable
SOLIDARITY Obo
MEMBERS
..............................................................................................
Applicant
And
THE
SOUTH AFRICAN POLICE
SERVICE
...........................................................
First
Respondent
THE
MINISTER OF POLICE
N.O
........................................................................
Second
Respondent
THE
NATIONAL COMMISSIONER OF THE
SOUTH
AFRICAN POLICE
SERVICE
..................................................................
Third
Respondent
THE
POLICE AND PRISONS CIVIL RIGHTS
UNION
.....................................
Fourth
Respondent
THE
SOUTH AFRICAN POLICE
UNION
...............................................................
Fifth
Respondent
Decided
in Chambers
Delivered:
5 May 2015
JUDGMENT –
LEAVE TO APPEAL
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This is an application for leave to appeal against the whole of the
judgment delivered by this Court on 26 November 2014. In
that
judgment, Solidarity’s application that it was entitled to be
consulted by the first respondent under section 16 of
the Employment
Equity Act
[1]
(‘The EEA’)
prior to the adoption of its successive employment equity plans was
dismissed with costs. The new Employment
Equity Plan was scheduled to
be implemented with effect from 1 January 2015.
[2]
The first to fourth respondents opposed the application for leave to
appeal, whilst the fifth respondent had filed a notice
to abide by
the Court’s decision.
The
grounds upon which leave to appeal is sought:
[3]
Most of the contentions relating to the grounds upon which Solidarity
seeks leave to appeal have been dealt with in the main
judgment, and
I do not intent to repeat same. These grounds are however summarised
as follows:
3.1
The Court ought to have concluded that section 16 (1) of the EEA
required an employer to
take reasonable steps to consult and reach
agreement on matters set out in section 17 of that statute, not only
with the ‘representative
trade union representing members at
the workplace’, but also with ‘its employees or
representatives nominated by them;
3.2
The Court ought to have found that section 16 (2) required, in
addition to consultation
with the representative trade union or
representative trade unions, consultation with employees, or their
representatives that
‘reflect the interest of employees from
all occupational levels of the workforce, employees from designated
groups, and employees
who are not from designated groups;
3.3
The Court should have considered that ‘representative trade
unions’ actuated
by the principles of majoritarianism and bound
to present the interests of the majority of their members are not
able to represent
and/or reflect the interests of all employees, and
particularly that such representatives cannot be considered capable
of representing
the interests of non-designated employees where such
employees constitute a minority group within the workplace and/or
minority
group within the representative trade union;
3.4
The Court ought to have come to the conclusion that ‘meaningful
consultations’
under the EEA, as amplified in the Code of Good
Practice: Integration of Employment Equity into Human Resource
Policies and Practices,
required broad consultation that went beyond
consultation with representative trade unions, in the interests of
fostering workplace
democracy and productivity;
3.5
The Court ought to have understood that the ordinary collective
bargaining framework in
existence within SAPS fails to give effect to
the intention under the EEA that a broad range of interests and
voices be represented
in the proceedings preparatory of employment
equity plans that serve the best interest of the employer and all
employees;
3.6
The Court ought to have declined to afford primacy to the ordinary
principles of ‘voluntarism
and majoritarianism’ that
apply in the context of the Labour Relations Act and which exists for
reasons distinct from the
principles of inclusion that are exhibited
in the EEA;
3.7
The Court ought to have appreciated that the undeniable need for
broader consultation than
consultation with representative trade
unions alone should axiomatically lead to the conclusion that a
representative representing
a significant number of employees,
particularly where such represented employees are from the
non-designated group, and must be
included in the consultation
process envisaged under section 16 and 17 of the EEA;
3.8
The Court ought to have held that SAPS was bound by the provisions of
the Code of Good Practice:
Integration of Employment Equity Into
Human Resource Policies and practices, which required adaptation to
the ordinary collective
bargaining process to ensure that
representatives from segments of the workforce whose interests are
not properly represented by
the representative trade unions are
included in the consultation process that are preparatory to the
adoption of an employment
equity plan;
3.9
The Court ought to have appreciated that the participation in the
process preparatory to
the adoption of employment equity plans by
employees whose interest are not represented by representative unions
would pose no
threat to the existing collective bargaining process,
in circumstances where the nature of consultations contemplated in
sections
16 and 17 of the EEA falls outside the ambit of matters
ordinarily considered to be within the ordinary collective bargaining
structures;
3.10
The Court ought not to have made a cost order against the applicant
when it sought to represent the interests
of its members in
consultations aimed at the development of a transformation programme
within SAPS.
The first,
second, third and fourth respondents’ opposition:
[4]
It was submitted that Solidarity’s application for leave to
appeal had no prospects of success and that it should be dismissed
on
the grounds that:
4.1 Section 16 of
the EEA can only be read in the context of other statutes, and there
is no basis in law for this provision to
be read in isolation. In
this regard, it was submitted that this provision should be read with
other provisions of Chapter 3 of
the EEA; sections 12, 16, and 21 of
the LRA.
4.2 Solidarity was
not a representative trade union, and was therefore not entitled to
be consulted unless it had been recognised.
It has further failed to
advance new argument or cogent criticism of the Court’s
findings.
4.3
Flowing from the decision by the Labour Appeal Court in
South
African Police Services obo Barnard
[2]
,
which decision was upheld by the Constitutional Court in the same
matter
[3]
, Solidarity was not
sufficiently representative in the workplace.
4.4 Solidarity’s
arguments as to the reason it should be consulted ignored the
principles of majoritarianism, and erroneously
assumes that the SAPS’
consultation process excluded other employees.
4.5 Solidarity
cannot be an effective player in the consultation process and it will
merely place a disproportionate burden on SAPS
and encourage
proliferation of trade unions. It did not have sufficient members to
justify recognition at the workplace and participation
at the level
of the SSSBC.
4.6 SAPS’s
consultation process was sufficiently broad-ranging, and to the
extent that Solidarity had never applied to be
a recognized union,
its members were consulted under the umbrella of “All Employees
of SAPS”.
4.7 Solidarity has
never been consulted in relation to the preparation and
implementation of any SAPS’ employment equity plan
since 2001,
and after three such plans have been prepared and implemented,
Solidarity has not stated what it had done between 2000
and 2010 to
be consulted in relation to the three plans.
4.8 If Solidarity
wishes to be recognized as a representative trade union, it ought to
challenge the threshold set at the level
of the SSSBC.
The
legal framework in regards to applications for leave to appeal:
[5]
To a large extent, in view of the new Employment Equity Plan having
been adopted and implemented in January 2015, the application
and the
leave to appeal may be regarded as being moot. Be that as it may, the
Court will nevertheless deal with the application
before it.
[6]
It is trite that in considering such applications, the Court
a
quo
,
other than a consideration of the importance of the matter, should
also take into account whether there are reasonable prospects
that
another Court (on appeal) may come to a different conclusion as
reached by it. This test was described by Corbett CJ in
National
Union of Metal Workers of South Africa v Jumbo Products CC
[4]
in the following terms:
“
In
such a case the enquiry is whether there are reasonable prospects of
success, ie whether there is a reasonable prospect that
the Court of
appeal may take a different view and hold the trial Judge to have
been wrong (see S v Ackerman en 'n ander
1973 (1) SA 765
(A); Botes
and Another v Nedbank Ltd
1983 (3) SA 27
(A), at 28 D)”
[7]
The test was also amplified by Petse, ADJP (as he then was) in
Minister
of Safety and Security and Another v Madyibi
[5]
,
who
had held that:
“
In
giving consideration to the issues at hand I am enjoined by judicial
authority to take due cognisance of the test which is of
application
in matters of this nature. Judicial authority requires of a Judge
considering an application for leave to appeal to
reflect
dispassionately upon the decision sought to be appealed against and
decide whether or not there is a reasonable prospect
that the Appeal
Court may come to a different conclusion. This necessarily requires
of me to disabuse my mind of the fact that
I was of the view when I
delivered my judgment that it was supportable both on the facts of
the case and the law applicable thereto’.
[8]
Having had regard to the submissions made by Solidarity in support of
this application, I am not convinced that a basis have
been laid for
a conclusion to be reached that the Labour Appeal Court may take a
different view and conclude that Solidarity is
sufficiently
representative for the purposes of consultation in respect of the
Employment Equity Plan in section 16 of the EEA.
[9]
Solidarity contends that the Court ought to have understood that the
ordinary collective bargaining framework in existence within
SAPS
fails to give effect to the intention under the EEA, that a broad
range of interests and voices be represented in the proceedings
preparatory of employment equity plans that serve the best interest
of the employer and all employees, yet it has not challenged
the very
same collective bargaining framework as it exists. There is no basis
upon which this Court can decline to afford primacy
to the ordinary
principles of ‘voluntarism and majoritarianism’ that
apply in the context of the Labour Relations Act
and I fail to
appreciate the persistent contention that the provisions of the EEA
should be treated as distinct and divorced from
those of the LRA.
[10]
It is appreciated that the judgment is of significance consequence
and importance. There is however no basis for a conclusion
to be made
that the judgment handed down concerned complex issues of the law,
and even if this was the case, and as correctly pointed
out on behalf
of the first to fourth respondents, most of the issues raised in
Solidarity’s submissions in this application
or in the main
application before the Court
a quo
have either been dealt with
by the Labour Appeal Court or the Constitutional Court in the
Barnard
matters.
[11]
Having dispassionately assessed Solidarity’s submissions in
this application, and further having had regard to those
made on
behalf of the first, second, third and fourth respondents, I am not
convinced that there are reasonable prospects that
another Court may
come to a different conclusion on the issues raised. I have also had
regard to the submissions made in regards
to the cost order made in
the main judgment, and I am satisfied that such an order was
appropriate in the circumstances. Accordingly,
the application for
leave to appeal should be dismissed. The respondents who opposed this
application sought a cost order in the
event that the application was
not granted. Having had regard to considerations of law and fairness
however, I am of the view that
a cost order should not follow the
results.
Order:
i.
The application for leave to appeal is
dismissed.
ii.
There is no order as to costs.
Tlhotlhalemaje,
AJ
Acting Judge of
the Labour Court of South Africa
[1]
Act No 55 of 1998
[2]
(2013) 34 ILJ 590 (LAC) at para [33]
[3]
South
African Police Services v Solidarity obo Barnard
[2014] ZACC 23 (CC)
[4]
[1996] ZASCA 87
;
1996 (4) SA 735
(A) at 742B
[5]
(1034/2004)
[2008] ZAECHC 180
(30 October 2008) at para 20