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[2015] ZALCJHB 257
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South African Local Government Bargaining Council v Ally NO and Another (JR2213/11) [2015] ZALCJHB 257; [2015] 12 BLLR 1243 (LC); (2016) 37 ILJ 223 (LC) (14 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: JR 2213 / 11
In the matter between:
SOUTH AFICAN LOCAL GOVERNMENT
BARGAINING COUNCIL
Applicant
and
MEHMOOD DAWOOD ALLY N.O.
First Respondent
CITY OF
JOHANNESBURG
Second Respondent
Heard
:
30 June 2015
Delivered
:
14 August 2015
Summary:
Bargaining
council arbitration proceedings – Review of proceedings,
decisions and awards of arbitrators – Test for review
–
Review concerning issue of jurisdiction – Test of rationally
and reasonableness does not apply – Issue considered
de
novo
as
to whether arbitrator right or wrong
Collective agreement – claims
for costs by bargaining council in terms of collective agreement –
consideration of provisions
– costs to be determined by
appointed arbitrators in dispute resolution proceedings
Jurisdiction – jurisdiction
of bargaining council to enforce costs awards in favour of council –
cannot be a separate
issue for determination – must be decided
by arbitrator in course of individual dispute resolution proceedings
Enforcement – process for
enforcement of award of costs in favour of bargaining council –
normal execution process applies
– cannot again be referred to
council for arbitration in terms of Section 33A
Section 33A of LRA – purpose
of provision – enforcement of terms and conditions of
employment in bargaining council
agreements – not intended for
separate enforcement of costs in favour of bargaining council
Jurisdiction – bargaining
council arbitrator does have jurisdiction to decide costs –
therefore not an issue of jurisdiction
– applicant’s
claim in this instance is a bad claim – cannot be decided again
Review of award – conclusion
of arbitrator correct – Arbitration award upheld
JUDGMENT
SNYMAN,
AJ
Introduction
[1]
This
matter concerns an application by the applicant to review and set
aside an arbitration award of the first respondent in his
capacity as
an arbitrator of the SALGBC, the latter ironically being the
applicant itself. This application has been brought
in terms of
Section 145 of the Labour Relations Act
[1]
(‘the LRA’).
[2]
This
matter is unique. Normally, dispute resolution processes
conducted under the auspices of bargaining councils involve
two
litigating parties, with the function of the bargaining council being
no more than to facilitate the dispute resolution process
and
appointing an arbitrator. However, and in this instance,
certain benefits, for the want of a better description, accrue
to the
bargaining council itself from this litigation process, because of
certain costs provisions in the bargaining council main
collective
agreement. The crisp questions then arise as to how would the
bargaining council firstly procure these benefits,
and how would it
enforce the same? These were the issues that were placed before
the first respondent as arbitrator.
[3]
The
applicant, as bargaining council, sought to enforce costs which it
contended was owing to it by the second respondent under
the
provisions of its main collective agreement. It did this by way
of the arbitration proceedings that came before the first
respondent. The first respondent however decided that he had no
jurisdiction to entertain the matter, concluding that these
costs
could not be enforced by the applicant using the normal bargaining
council collective agreement enforcement processes.
The first
respondent dismissed the matter, giving rise to these proceedings.
Background
facts
[4]
Fortunately
in this matter, most of the background facts are in fact common cause
or undisputed.
[5]
The
applicant is the bargaining council having jurisdiction in the local
government sector, duly registered under the LRA.
The applicant
is governed by a constitution and main collective agreement,
concluded between the representative trade unions in
the sector, on
the one hand, and the South African Local Government Association
(‘SALGA’) on the other. SALGA
has as its members
some 278 municipalities across the entire country, with the second
respondent being one of these.
[6]
The
powers and functions of the applicant are determined by clause 3 of
its constitution. Of relevance to the current matter,
these
include enforcement of its collective agreements
[2]
,
and the performing of dispute resolution functions as contemplated by
Section 51 of the LRA
[3]
.
The applicant then also has the jurisdiction, in terms of clause 11.2
of its constitution, to conciliate and arbitrate any
dispute arising
out of the provisions of its own collective agreements.
[7]
Pursuant
to the provisions of the applicant’s constitution, and the LRA,
the parties to the applicant as bargaining council
then concluded
what was termed the ‘Main Collective Agreement’, on 18
June 2007. I will refer to this collective
agreement in this
judgment as ‘the main agreement’. The main agreement has
several parts, being the following: (1)
part A – application of
the main agreement; (2) part B – substantive matters which are
in essence conditions of employment
of employees in the sector; (3)
part C – procedural matters which in essence relate to
collective bargaining rights and organizational
rights; (4) part D –
rules of the council which includes the applicant’s dispute
resolution process; (5) part E –
exemptions; (6) part F –
enforcement of the main agreement; (7) part G – disputes about
interpretation or application
of the main agreement; (8) part H –
amendment of the main agreement; (9) part I – repeal of
existing agreements; and
(10) part J – definitions.
[8]
Where
it comes to the enforcement of collective agreements concluded under
the auspices of the applicant, this is regulated both
in the
applicant’s constitution
[4]
and the main agreement
[5]
.
Save for inconsequential differences in wording between clause 19.2
of the constitution and clause 2 of part F of the main
agreement, the
enforcement provisions in these documents are identical and in effect
mirror Section 33A of the LRA.
[9]
Under
the applicant’s constitution and main agreement, the
enforcement proceedings entail a process to try and remedy the
default by way of a compliance order, or referring any unresolved
issue with regard to compliance to arbitration. As to the
arbitration process itself, it is the same as any other arbitration
conducted under the auspices of the applicant, and section
138 of the
LRA equally applies. The powers of the arbitrator include
ordering compliance with any collective agreement, imposing
a fine,
awarding costs, enforcing a compliance order and charging a party an
arbitration fee.
[10]
Turning
then to dispute resolution under the auspices of the applicant in
general, clause 11 of the applicant’s constitution
provides for
the referral of such disputes to the applicant for conciliation
[6]
and then, if unresolved, ultimately to arbitration. Clause 14 of the
constitution then provides for an arbitration procedure, applicable
to all arbitrations conducted under the auspices of the applicant.
Of importance to the current proceedings, any appointed
arbitrator
has the power to either award costs at the request of an actual party
to the dispute, or to award costs due to any conciliation
or
arbitration proceedings postponed or delayed unnecessarily.
[7]
Also of importance is clause 14.9, which reads: ‘
Unless
ordered otherwise by the arbitrator in terms of this clause 14, the
Council shall bear the costs of the arbitrator, the venue
and any
interpreter’
.
Finally, clause 14.18 of the constitution provides that dispute
resolution rules may be issued from time to time.
[11]
The
main agreement then provides for the rules applicable to dispute
resolution under the auspices of the applicant, which can be
found in
section 2 of part D of the main agreement. These rules are to a
large extent the same as the CCMA rules relating
to dispute
resolution, and include provisions relating to referral processes,
forms, completion and service of documents, applications,
calculation
of time limits, conciliation and arbitration processes, con/arb,
default proceedings, and pre-dismissal arbitrations.
Of some
relevance to the current matter is clause 2.23, which provides for
the process relating to postponement of arbitrations
which can take
place either by agreement or on proper application as prescribed, by
any party to the dispute.
[12]
Section
2 of part D concludes with what is headed a ‘General’
section, encompassing clauses 2.35 to 2.41. This
includes a
general power given to an arbitrator to condone non-compliance with
the rules, and provides for the recording of arbitration
proceedings,
subpoenas, witness fees, taxation, costs, certain fees payable to the
council, and certification of awards for execution.
Of
particular relevance in the current matter is clause 2.39(1), which
provides that the basis on which an arbitrator may make
a costs award
in an arbitration is regulated by Section 138(10) of the LRA.
[13]
Specific
reference must also be made to clause 2.41 in section 2 of part D of
the main agreement, which provides as follows:
‘
(1)
Any party or parties that fails or fail to request for a postponement
timeously, as stipulated in rule 2.23 above, shall be
liable for the
fees of the arbitration, including other incidental costs arising
from the convening of the arbitration.
(2)
The arbitrator is required to rule on frivolous or vexatious
postponements.
(3)
The Council shall pay for a maximum of three (3) days of arbitration
only. If the arbitration exceeds three (3) days,
the disputing
parties shall jointly/and equally be responsible for the arbitration
fees in excess of three (3) days, unless the
arbitrator determines
otherwise.
(4)
Any party to a conciliation or arbitration proceeding, who does not
comply with any rule in Part D, shall bear the costs of
the Council,
due to any postponement or delay of the conciliation or arbitration
hearing.
’
[14]
In
short, and pursuant to clause 2.41, fees may be payable to the
applicant by one or both of the litigating parties, in the instances
where a postponement is not requested timeously, the arbitration
exceeds three days, or where a postponement is occasioned because
a
party does not comply with a dispute resolution rule under Part D of
the main agreement.
[15]
The
current matter relates to various arbitration proceedings in which
the second respondent was involved, for the period from 2004
up to
and including 30 October 2010. None of these proceedings
related to instances where the applicant itself, as a party
to the
proceedings, sought to enforce compliance of any of its collective
agreements, as against the second respondent. All
these
proceedings were between the second respondent, as employer party,
and either the unions IMATU or SAMWU acting on behalf
of individual
members, or individual employees themselves.
[16]
The
applicant filed a bundle of documents containing various awards and
rulings made in the course of the dispute resolution proceedings
referred to above which, according to the applicant, entitles it to
the payment of costs / fees by the second respondent to it.
The bulk
of these awards / rulings relate to postponements, being some 21
individual instances where in the course of these disputes
the second
respondent was directed by an arbitrator to pay costs / fees to the
applicant as a result of these postponements.
Two further
instances where arbitrators directed that the second respondent pay
costs to the applicant are an award issued on 1
December 2004 where
an arbitrator directed that the second respondent pay an arbitration
fee to the applicant in terms of section
140(2) of the LRA, and an
award issued on 29 May 2009 where the arbitrator directed that the
second respondent pay the applicant’s
costs relating to a delay
in the arbitration resulting from a dismissed objection
in
limine
[17]
Then
there are also seven individual instances where the applicant was
claiming costs from the second respondent where arbitration
proceedings exceeded three days, but I could find no actual award by
an arbitrator to this effect. Similarly, the applicant
claimed
postponement costs from the second respondent in the matters of SAMWU
obo MIYA and SAMWU obo C OLIPHANT, when there was
no award/ruling to
this effect by an arbitrator.
[18]
The
total amount claimed by the applicant from the respondent amounted to
R116 021.00. The applicant contended this amount
was
payable by virtue of the provisions of clause 2.41 of section 2 of
part D of the main agreement, referred to above.
[19]
The
second respondent however failed to settle any of these fees/costs
forming the subject matter of these proceedings. The
applicant
contended that such failure to pay, by the second respondent, was in
effect non-compliance with the provisions of clause
2.41 in section 2
of part D of the main agreement. The applicant’s case was
that it was accordingly entitled to enforce
compliance with these
provisions of the main agreement, in terms of clause 19 of the
constitution, as read with section 33A(4)(a)
of the LRA. The
applicant did not refer to part F of the main agreement itself, but
as said, this is virtually identical
to clause 19 of the
constitution.
[20]
Accordingly,
the applicant squarely founded its case on the contention that by
failing to pay the amounts due to the applicant in
terms of the
various awards, rulings and proceedings referred to above, the second
respondent is in contravention of the main agreement
which the
applicant is then entitled to enforce in terms of the enforcement
proceedings under its constitution, as read with Section
33A of the
LRA. The importance of properly defining the applicant’s
case will be discussed later in this judgment.
[21]
The
applicant then in fact applied the process as set out in clause 19 of
the constitution. It issued the second respondent
on 6 December
2010 with a compliance order as contemplated by clause 19.2, and
demanded payment of R116 021.00. The
second respondent did
not comply with this compliance order.
[22]
The
applicant then referred the dispute to arbitration, citing in its
arbitration referral that the dispute was being brought in
terms of
section 33A(4)(a) of the LRA as read with clause 19 of the
applicant’s constitution. It is these proceedings
that
came before the first respondent for arbitration on 19 July 2011.
[23]
At
the arbitration proceedings, the second respondent raised an
objection
in
limine
as to the jurisdiction of the first respondent to entertain the
dispute, contending the first respondent did not have such
jurisdiction.
The first respondent upheld this contention of
the second respondent, finding that that enforcement proceedings
under section 33A
could not be brought in this instance and he thus
did not have jurisdiction. The first respondent then dismissed the
matter.
It is this determination that then gave rise to this
review application.
The
test for review
[24]
As
stated above, the first respondent disposed of the matter on the
basis of a jurisdictional determination, being that he did not
have
jurisdiction to entertain the enforcement proceedings brought by the
applicant. This being the case, and on review,
the review test
as enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[8]
would
not apply. As was said in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[9]
:
‘….
If
the CCMA had no jurisdiction in a matter, the question of the
reasonableness of its decision would not arise. Also, if the CCMA
made a decision that exceeds its powers in the sense that it is ultra
vires its powers, the reasonableness or otherwise of its
decision
cannot arise.’
[25]
When
deciding a review where the issue concerns the jurisdiction of the
bargaining council to determine a dispute, the proper review
test
where the existence of the requisite jurisdictional fact is
objectively justiciable in court, would be whether the determination
of the arbitrator was right or wrong. This was so held in
Zeuna-Starker
Bop (Pty) Ltd v National Union of Metalworkers of SA
[10]
where the Court said:
‘…
The
commissioner could not finally decide whether he had jurisdiction
because if he made a wrong decision, his decision could be
reviewed
by the Labour Court on objectively justiciable grounds...’
[26]
I
have had the opportunity to deal with this kind of review test in
Trio
Glass t/a The Glass Group v Molapo NO and Others
[11]
and said:
‘
The
Labour Court thus, in what can be labelled a 'jurisdictional' review
of CCMA proceedings, is in fact entitled, if not obliged,
to
determine the issue of jurisdiction of its own accord. In doing so,
the Labour Court is not limited only to the accepted test
of review,
but can in fact determine the issue de novo in order to decide
whether the determination by the commissioner is
right or
wrong.’
[27]
This
‘right or wrong’ review approach has been consistently
applied in instances where the issue for determination on
review
concerned the jurisdiction
[12]
of the CCMA, as is apparent from the judgments in
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and
Others
[13]
,
Asara
Wine Estate and Hotel (Pty) Ltd v Van Rooyen and Others
[14]
,
Hickman
v Tsatsimpe NO and Others,
[15]
Protect
a Partner (Pty) Ltd v Machaba-Abiodun and Others,
[16]
Gubevu
Security Group (Pty) Ltd v Ruggiero NO and Others,
[17]
Workforce Group
(Pty) Ltd v CCMA and Others
[18]
and
Stars
Away International Airlines (Pty) Ltd t/a Stars Away Aviation v Thee
NO and Others.
[19]
[28]
There
is no reason why this same approach cannot be applied to bargaining
council arbitrations, and where the issue on review concerns
the
jurisdiction of a bargaining council arbitrator to have entertained a
particular dispute. I will therefore decide whether
the
determination of the first respondent was right or wrong, by way of a
de
novo
consideration of the justiciable facts on record, being the
applicable review test.
The
applicant’s review case
[29]
I do
not intend to set out all of the applicant’s individual review
grounds, but will only summarize what I believe to lie
at the heart
of the applicant’s case on review.
[30]
The
applicant contends that the first respondent misconstrued the nature
of the applicant’s claim, and failed to properly
interpret and
apply the provisions of the applicant’s constitution and main
agreement, as read with the relevant sections
of the LRA.
[31]
The
applicant contends that the costs / fees payable to it by the second
respondent are payable in terms of clause 2.41 of the main
agreement,
as it stands. This liability exists irrespective of any awards
or rulings made by arbitrators in the course of
dispute resolution
proceedings. The applicant is thus entitled to enforce these
provisions in its main agreement in the same
manner as it would be
entitled to enforce any other provisions of its main agreement.
In short, the applicant says it claims
are not founded upon awards or
rulings of arbitrators.
[32]
The
applicant further contends that in any event, the awards / rulings
made by the arbitrators on the issue of costs / fees are
not
arbitration awards as contemplated by sections 143 or 158(1)(c) of
the LRA, and these provisions could thus not find application
because
of this. The applicant stated that what the arbitrators may
have said about costs were just ‘observations’
by the
arbitrators of ‘contractual liability’ of the second
respondent in terms of the main agreement, and thus not
a
determination of the issue.
[33]
The
applicant also took issue with the first respondent’s reasoning
that clause 19 of its constitution as read with section
33A of the
LRA only applied to collective agreements relating to terms and
conditions of employment of employees, contending that
this unduly
narrowed the construction of the definition of a collective
agreement. According to the applicant, clause 19
and section
33A would apply to any collective agreement, and this included the
provisions of clause 2.41 of the main agreement,
which was intended
to protect the finances of the applicant from undue dissipation.
[34]
The
applicant contended that it was unable to use the provisions of
sections 143 and 158(1)(c) to enforce the costs / fees payable
to it
in any event, as it was not a party to the dispute resolution
proceedings, and the machinery under these provisions was only
available to litigant parties.
The
issue of jurisdiction
[35]
I
will start with the issue of jurisdiction of the first respondent, as
this was the basis for the first respondent’s dismissal
of the
matter. I am compelled to say that I have my doubts as to
whether the first respondent’s finding that he did
not have
jurisdiction to entertain the matter is indeed correct. What
the first respondent was doing, in simple terms, was
confusing the
issue of jurisdiction with what may or may not have been a bad case
brought by the applicant. The issues are
not the same.
The first respondent held that he could not entertain the applicant’s
dispute because the applicant could
not bring its enforcement
proceedings under section 33A of the LRA. This is not an issue
of jurisdiction. It is an
issue pertaining to a determination
whether the applicant’s claim has substance in law.
[36]
Van
Der Westhuizen J in
Gcaba
v Minister for Safety and Security and Others
[20]
considered the very meaning of jurisdiction and jurisdictional
challenges, and held:
‘
The
specific term 'jurisdiction', which has resulted in some controversy,
has been defined as the 'power or competence of a court
to hear and
determine an issue between parties'. ….
’
The
learned Judge further said:
[21]
‘
Jurisdiction
is determined on the basis of the pleadings, as Langa CJ held in
Chirwa
,
and not the substantive merits of the case. …. In the event of
the court's jurisdiction being challenged at the outset
(in limine),
the applicant's pleadings are the determining factor. They contain
the legal basis of the claim under which the applicant
has chosen to
invoke the court's competence. While the pleadings - including
in motion proceedings, not only the formal terminology
of the notice
of motion, but also the contents of the supporting affidavits - must
be interpreted to establish what the legal basis
of the applicant's
claim is, it is not for the court to say that the facts asserted by
the applicant would also sustain another
claim ….
’
[37]
In
Mbatha
v University of Zululand
[22]
,
Jafta J again had the opportunity to consider the issue of
jurisdiction, and said:
‘
Ordinarily
the question of jurisdiction is determined with reference to the
allegations made in the plaintiff's or applicant's pleadings.
….
In assessing whether this procedural requirement has been met, the
proper approach is to take the allegations in the
particulars of
claim (summons) or the founding affidavit at face value. Usually
those allegations are taken to be true for purposes of
determining jurisdiction. The question whether a court has
jurisdiction does not depend on the substantive merits of the case.
The allegations which, if established, would prove jurisdiction are
sufficient.
’
The
learned Judge then referred with approval to the
dictum
of Van der Westhuizen J in
Gcaba
referred to above, and held:
[23]
‘
What
emerges from
Gcaba
is
that in determining whether this court, and for that matter any
court, has jurisdiction, one must examine the pleadings with
a view
to finding 'the legal basis of the claim under which the applicant
has chosen to invoke the court's competence'. The caution
that
applies to this enquiry, as was observed in
Gcaba
,
is that one must consider whether the facts pleaded sustain the
pleaded cause of action. Whether the facts also support another
cause
of action, not pleaded, is immaterial. It follows that the facts, as
pleaded, play a crucial role in determining jurisdiction.
’
[38]
I
shall apply the above
dicta
to the current proceedings, despite the fact that there are no
pleadings as such in bargaining council arbitration proceedings.
The pleaded facts, by the applicant, can however be gathered from the
arbitration referral, the submissions to the arbitrator,
as well as
the case articulated in the applicant’s founding affidavit in
the review application. For the purposes of
deciding
jurisdiction, this pleaded case of the applicant must then be
accepted, as it stands. This means that the case before
the
first respondent, as brought by the applicant, was that the second
respondent breached clause 2.41 of section 2 of Part D of
the main
agreement and the applicant was consequently seeking to enforce it
against the second respondent using the enforcement
provisions of
clause 19 of its constitution as read with section 33A of the LRA.
[39]
There
can be no doubt that the first respondent would have jurisdiction to
decide such a case. The applicant is specifically
tasked by its
constitution and the LRA to enforce any of the provisions of any
collective agreements concluded under its auspices.
The main
agreement is clearly such an agreement. Where the issue of
compliance with a collective agreement remains unresolved,
it
proceeds to arbitration. There is no difference between
enforcement arbitration proceedings and any other dispute resolution
arbitration proceedings conducted under the auspices of the
applicant. This is apparent from clause 14.1, as read with
clause
19.7, of the applicant’s constitution itself. The
first respondent was an arbitrator appointed in terms of this
arbitration
process, tasked by the applicant with deciding the issue
of enforcement of the main agreement. This task resorted
squarely
within his jurisdiction as arbitrator under the arbitration
dispute resolution process convened in terms of the applicant’s
constitution and main agreement.
[40]
What
the first respondent did was to decide whether he had jurisdiction on
the basis of the merits of the applicant’s case.
The
first respondent in effect adopted the view that the enforcement
proceedings and section 33A could not be applied in this case,
and
that the applicant had alternative remedies under sections 143 and
158(1)(c) of the LRA. In simple terms, the first respondent
declined jurisdiction because he held the view that the applicant’s
case was a bad case. This is clearly a decision
on jurisdiction
based on the outcome or the merits of the applicant’s case.
This is a flawed approach, and clearly
wrong. The simple point
is that the first respondent had the jurisdiction to entertain the
enforcement case as articulated
by the applicant and brought by the
applicant.
[41]
In
Makhanya
v University of Zululand
[24]
,
Nugent JA specifically dealt with the issue of the difference between
an issue of jurisdiction and a bad claim in law. The
learned
Judge held:
[25]
‘…
.
Judicial power is the power both to uphold and to dismiss a
claim. It is sometimes overlooked that the dismissal of a claim
is as
much an exercise of judicial power as is the upholding of a claim. A
court that has no power to consider a claim has no power
to do either
(other than to dismiss the claim for want of jurisdiction)
.’
The
learned Judge further said:
[26]
‘
I
have pointed out that the term 'jurisdiction', as it has been used in
this case, and in the related cases that I have mentioned,
describes
the power of a court to consider and to either uphold or dismiss a
claim. And I have also pointed out that it is sometimes
overlooked
that to dismiss a claim (other than for lack of jurisdiction) calls
for the exercise of judicial power as much
as it does to uphold
the claim. ….
…
.
the power of a court to answer a question (the question whether a
claim is good or bad) cannot be dependent upon the answer to
the
question. To express it another way, its power to consider a claim
cannot be dependent upon whether the claim is a good claim
or a bad
claim.
’
Nugent
JA then concluded:
[27]
‘…
.
The
first is that the claim that is before a court is a matter of fact.
When a claimant says that the claim arises from the infringement
of
the common-law right to enforce a contract, then that is the claim,
as a fact, and the court must deal with it accordingly.
When a
claimant says that the claim is to enforce a right that is created by
the LRA, then that is the claim that the court has
before it, as
a fact. When he or she says that the claim is to enforce a right
derived from the Constitution then, as a fact
that is the claim. That
the claim might be a bad claim is beside the point.’
[42]
The
applicant’s claim was, as said, for enforcement of the main
agreement against the second respondent. It does not
matter,
for the purposes of deciding jurisdiction, whether this claim had
substance in law. Neither does it matter whether
the applicant
had other options available to it. The first respondent always
had the power to answer the question whether
to enforce the main
agreement, or not. The first respondent decided his
jurisdiction on the basis of the outcome of the substance
of the
applicant’s claim, even though it is on a question of law,
which in the light of the clear
ratio
in
Makhanya
,
is inappropriate and thus wrong.
[43]
Recently,
and in
SA
Municipal Workers Union on behalf of Jacobs v City of Cape Town and
Others
[28]
the Labour Court had the opportunity to specifically deal with the
enforcement provisions in terms of clause
19.1
of the SALGBC (the current applicant) constitution in an instance
where the arbitrator declined jurisdiction. Steenkamp
J
specifically referred to section 33A of the LRA and held:
[29]
‘
It
seems clear from these provisions that an arbitrator acting under the
auspices of the bargaining council does have the power
to determine
whether the city had complied with its obligations under clause 6 of
the collective agreement. And if it hasn't, that
the arbitrator has
the power to issue a declaratory order that the city is in breach of
the collective agreement. ….
’
[44]
Based
on the above, I am satisfied that the first respondent was wrong in
deciding that he did not have jurisdiction to entertain
this matter.
The first respondent always had the power to decide the issue of
enforcement of the main agreement, which is
the case the applicant
asked the first respondent to consider. The fact that the first
respondent believed the applicant’s
claim was a bad claim in
law did not detract from his jurisdiction. The point is that if
the applicant was right that the
second respondent was indeed in
breach of the clause 2.41 of the main agreement and was entitled to
enforce it against the second
respondent, it certainly cannot be said
the first respondent would have no jurisdiction to do this.
The first respondent’s
determination that he did not have
jurisdiction thus falls to be reviewed and set aside, as he clearly
had jurisdiction.
The
enforcement provisions
[45]
Since
I have concluded that the first respondent’s finding on
jurisdiction is wrong and must be set aside, where to now?
I
must now decide whether to refer the matter back to the bargaining
council for arbitration
de
novo
,
or myself decide the merits of the applicant’s case. In
terms of section 145
(4)(a)
of the LRA, the Labour Court, having set aside an award of an
arbitrator, may determine the dispute in the manner it considers
appropriate, which includes making its own finding, in place of the
arbitrator, as to the merits of the matter.
[30]
In
Rustenburg
Platinum Mines Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[31]
the Court said:
‘…
.
Section 145(4)
(a)
gives the court the widest possible powers necessary to determine
disputes. Such powers given to the court in this section are
those
powers given to the arbitrator. Put differently, when the court
exercises its discretion in terms of s 145(4)
(a)
it sits as an arbitrator in the arbitration hearing. ….’
[46]
This
matter dates back to 2010. This in itself strongly motivates a
situation of it being brought to an end now, once and
for all.
[32]
Furthermore, the evidentiary material placed before the first
respondent and now before me is unlikely to change in any material
way in any subsequent arbitration proceedings.
The
merits of the matter was fully canvassed by the parties. The
facts in this matter are either common cause or not disputed,
fully
ventilated in the affidavits, and the outcome in this matter in
essence turns on a point of law. As the Court said
in
SA
Bank of Athens Ltd v Cellier NO and Others
[33]
:
‘…
.
The material presented before me is sufficient to enable me to
determine the dispute in accordance with s 145(4)
(a)
of the Labour Relations Act, so as to bring this matter to finality
….
’
[47]
I
accordingly see no need to refer this matter back to the bargaining
council for determination
de
novo
,
and shall decide the merits of the applicant’s case of
enforcement of the main agreement against the second respondent,
for
myself.
[48]
As
reflected in the summary of facts set out above, this matter in
essence revolves around costs awards made in favour of the applicant
as bargaining council, in various disputes before arbitrators
appointed by the applicant to conduct dispute resolution between
the
second respondent as employer party on the one hand, and a variety of
different employee parties on the other. The applicant
itself,
other than facilitating the dispute resolution process under its
constitution and main agreement, was never actually a
party to these
proceedings.
[49]
It is
clear that in terms of the main agreement of the applicant, there are
instances where, even in the case of dispute resolution
between
employer and employee parties, costs would or may be payable to the
applicant as bargaining council. The question
is how the
applicant is supposed to go about recovering these costs, where the
party in the dispute resolution process liable to
pay the same has
failed to do so.
In
casu
,
the total amount so payable, as claimed by the applicant, was
R116 021.00. as indeed liable to pay the same to the
applicant in terms of various rulings, awards and tenders.
[49]
The
second respondent did not pay, and the applicant wants to enforce
payment.
[50]
In a
nutshell, the case of the applicant is simply that by failing to pay
the above amount, the second respondent is in breach of
the
provisions in the main agreement, and in particular clause 2.41 in
section 2 of part D. The applicant’s then contends
that
because the second respondent is so in breach of the main agreement,
the applicant is then entitled to enforce this part of
the main
agreement against the second respondent, using the enforcement
provisions as contained in clause 19 of its constitution
and section
33A of the LRA. It must now be decided whether this approach is
competent in law.
[51]
In
order the decide this matter, it is necessary to interpret the
constitution and main agreement of the applicant, as a whole,
with
particular consideration of the dispute resolution functions of the
applicant in terms thereof, as well as the dispute resolution
processes prescribed therein. With the constitution and main
agreement being written agreements, the proper approach to be
followed in interpreting the same is found in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[34]
where the Court said:
‘…
.
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar
and syntax; the context in which the provision
appears; the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more
than one meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective, not
subjective. A sensible meaning
is to be preferred to one that leads to insensible or
unbusinesslike results or undermines
the apparent purpose of the
document. Judges must be alert to, and guard against, the temptation
to substitute what they regard
as reasonable, sensible or
businesslike for the words actually used. To do so in regard to a
statute or statutory instrument is
to cross the divide between
interpretation and legislation; in a contractual context it is to
make a contract for the parties other
than the one they in fact
made. The "inevitable point of departure is the language of the
provision itself", read in
context and having regard to the
purpose of the provision and the background to the preparation and
production of the document.
'
[52]
In
actually considering the main agreement of a bargaining council, the
Court in
Commercial
Workers Union of
SA v Tao Ying Metal Industries and Others
[35]
said:
‘
The
proper approach to the construction of a legal instrument
requires consideration of the document taken as a whole.
Effect must be given to every clause in the instrument and, if two
clauses appear to be contradictory, the proper approach is to
reconcile them so as to do justice to the intention of the framers of
the document. It is not necessary to resort to extrinsic
evidence if
the meaning of the document can be gathered from the contents of the
document.
’
[53]
As a
point of departure in considering the constitution and main agreement
of the applicant, it is pointed out that the applicant
as bargaining
council is empowered by the LRA to conduct dispute resolution by way
of conciliation and arbitration, in section
51(9)
[36]
.
In
National
Bargaining Council for the Road Freight Industry and Another v
Carlbank Mining Contracts (Pty) Ltd and Another
[37]
the Court held:
‘
Section
51(9) provides that a bargaining council may, by collective
agreement, establish procedures to resolve any dispute contemplated
in the section.
’
[54]
The
constitution of the applicant, in clause 3.1.4, provides that part of
the powers and functions of the applicant shall be the
conducting of
dispute resolution as contemplated by section 51 of the LRA. In
the constitution itself a dispute resolution
process is prescribed,
in the form of conciliation and arbitration. The arbitration
procedure is found in clause 14, and
clause 14.1 provides that the
procedure in this clause shall apply to all arbitrations conducted
under the auspices of the applicant.
Of importance in the
current matter, is that the arbitrator appointed by the applicant in
terms of this procedure is given the
power to make any appropriate
costs award, in two instances.
[38]
The first is where a party to the proceedings asks for it, and the
second is where the arbitration proceedings have been ‘unnecessarily’
delayed or postponed. In the latter instance, it is not
necessary for a party to request the costs order, and it is clearly
left up to the arbitrator to decide. The crisp point is however
that the award of costs is left up to the arbitrator to determine,
in
any instance.
[55]
Also
of importance is clause 14.9, which reads: ‘
Unless
ordered otherwise by the arbitrator in terms of this clause 14, the
Council shall bear the costs of the arbitrator, the venue
and any
interpreter’
.
Clearly, this can only mean that where an arbitrator does not make a
determination as to costs in terms of clause 14.2.4,
the council
(applicant) shall bear the costs of the arbitration. This
surely cements the interpretation that all issues with
regard to
costs in the arbitration proceedings are left up to the arbitrator in
that particular dispute.
[56]
Of
final relevance
in
casu
,
and where it comes to the constitution of the applicant, is that
provision is made for dispute resolution rules being made, and
save
where specifically otherwise provided, the provisions of the LRA with
regard to dispute resolution will remain applicable.
[39]
There being no provision to the contrary, section 138(10) of the LRA
thus remains applicable, which provides that: ‘
The
commissioner may make an order for the payment of costs according to
the requirements of law and fairness in accordance with
rules made by
the Commission ….
’
.
Of course, reference to ‘commissioner’ must just be
construed as being the bargaining council arbitrator.
[57]
The
dispute resolution rules as contemplated by clause 4.18 of the
constitution are then found in section 2 of part D of the main
agreement. As stated above, these are very similar to the CCMA
Rules and in fact mirrors the same in most material respects.
As such, the entire section 2 of part D must be read as a whole, and
in the context of it seeking to establish the rules that would
be
applicable to the dispute resolution functions of the applicant under
clauses 12, 13 and 14 of its constitution. Whilst
it is so that
the CCMA Rules do not contain a provision similar to clause 2.41, it
must be said that it being part of section 2
of part D of the main
agreement, clause 2.41 must still be considered in the context of
being part of the rules regulating dispute
resolution between
litigating parties under the auspices of the applicant, as a whole.
[58]
The
applicant has in effect argued that clause 2.41 must be considered on
its own, as establishing a right and benefit in favour
of the
applicant itself under the main agreement. The applicant argued
that as it is not a party to the dispute resolution
process, it would
be entitled to institute separate proceedings in its own name to
secure these benefits. Mr Lawrence, representing
the applicant,
illustrated the applicant’s argument by way of an example,
being that what if the arbitrator, in the case
where there was a
postponement contrary to rule 2.23, does not direct that the
responsible party pay the fee of the arbitration?
He argued
that surely in terms of clause 2.41, the applicant is entitled to
that fee and should be able to institute proceedings
in its own name
to recover it. For the reasons I will now set out, I however
cannot agree with Mr Lawrence’s contentions.
[59]
From
the outset, it must be considered that the provisions of clause 14 of
the constitution and section 2 of part D of the main
agreement relate
to, and apply to, dispute resolution proceedings conducted between
two litigating parties under the auspices of
the applicant.
Where it comes to the issue of costs, it is the arbitrator in this
dispute resolution process that decides
which of the litigating
parties must pay costs, to what extent, and to whom. Provision
is then made in this context, in terms
of clause 2.41 of the main
agreement, which must be read with clause 14.2.4 of the constitution,
that the arbitrator has the power
to order such a party to pay costs
to the applicant in certain instances. But this power does not
detract from the fact that
it is still a costs order in the course of
the conducting of arbitration dispute resolution between two
litigating parties.
[60]
The
point is that even if the applicant is the beneficiary, so to speak,
of clause 2.41 costs orders, these costs orders do not
have
independent existence outside the ambit of the arbitration dispute
resolution process between the litigating parties.
It has to
be, and can only be, the arbitrator in such proceedings that must
decide if any of the litigating parties pays costs
to the council.
The applicant cannot institute separate proceedings, in its own name
as a party itself, purely on the basis
of clause 2.41, simply to
claim costs it contends would be due to it in terms of this clause.
If the arbitrator in the dispute
resolution process between the two
litigating parties does not determine it, then no costs accrue to the
applicant. This
is the only interpretation that is consistent
with the power afforded to the arbitrator in clause 14.2.4,
especially if read with
clause 14.9, which provides that if the
arbitrator does not decide this issue, then the applicants remains
liable for the costs
of the arbitration proceedings.
[61]
In my
view, clause 2.41 is thus nothing else but the rule in the dispute
resolution process seeking to give effect to the power
of the
arbitrator in terms of clause 14.2.4 of the constitution. It
serves to provide guidance to the arbitrator as to when
he or she
should make a costs award as contemplated by this clause in the
constitution. This is actually evident from the
provisions of
clause 2.41 itself, which still requires the arbitrator to rule on
vexatious and frivolous postponements, decide
on costs payable to the
applicant for arbitrations longer than three days, and decide on
costs of the applicant where an arbitration
is postponed due to
non-compliance with a rule.
[40]
Always, the decision on costs remains that of the arbitrator, and if
he or she does not make such a decision, then
the costs of the
arbitration proceedings remain the responsibility of the applicant,
in
toto
,
and the applicant cannot after the fact seek to hold a litigating
party liable for the same by instituting new enforcement proceedings
against such party.
[62]
It
would be up to the applicant to properly train and instruct any
arbitrator appointed by it to conduct dispute resolution, as
to the
powers the arbitrator has where it comes to costs, and in particular
that in certain instances, costs may be payable to
the applicant.
Arbitrators should be informed by the applicant that they can make
these kind of costs awards, even
if it not asked for by a party.
The applicant should brief its arbitrators to make proper provision
for this, in awards
or rulings issued by such arbitrators. Of
course, it would still be up to and in the discretion of the
arbitrator to decide
whether to make such an award, considering the
requirements of law and fairness.
[63]
So,
in short, the applicant can only recover those costs awarded to it by
arbitrators in the course of the dispute resolution proceedings
conducted by the two litigating parties, under the auspices of the
applicant. These costs can be awarded in an arbitration
award,
or ruling, issued by the arbitrator, which then records that costs
are payable to the applicant. If the arbitrator
makes no such
determination in the course of such proceedings, then the council
remains liable for all costs of the arbitration
proceedings, meaning
the costs of the arbitrator, venue, interpreter and any related
costs. The applicant cannot institute
separate
proceedings after the fact, in its own name as a litigating party, to
claim costs in terms of clause 2.41.
[64]
Accordingly,
it follows that the applicant cannot institute enforcement
proceedings as contemplated by clause 19 of its constitution,
part F
of its main agreement, or section 33A of the LRA, to claim costs not
specifically awarded to it by an arbitrator conducting
dispute
resolution between the two litigating parties in arbitration
proceedings conducted under the auspices of the applicant.
Such
proceedings for such purpose will be incompetent, and at odds with
the clear terms of the applicant’s constitution and
main
agreement.
[65]
In
this case, however, the applicant in most instances was indeed
awarded costs in several rulings and/or awards made by various
arbitrators in the course of the conduct of arbitration proceedings
under the auspices of the applicant as bargaining council,
conducted
between the second respondent as employer party and various employee
parties. The next consideration then is what
can the applicant
do to execute these costs awarded, in the case of a litigating party
failing to pay the same? Would enforcement
proceedings as
contemplated by Section 19 of the constitution and section 33A of the
LRA then be competent? In my view, this
latter question must be
answered in the negative, for the reasons I will now set out.
[66]
Firstly,
the purpose of enforcement proceedings under section 19 of the
constitution and section 33A of the LRA is to determine
liability in
the first place. In other words, these enforcement proceedings
establish the liability of the errant party,
and direct it to
comply. In the matter of costs awards made to the applicant
under the circumstances discussed above, liability
has already been
determined and a party has already been directed to pay. There
is no need to enforce that which has already
been determined, and in
effect enforced. The point can be illustrated by a simple
example. Assume the applicant is
awarded R3 000.00 in
costs, by an arbitrator in the dispute resolution process, because of
a postponement sought by the employer
party, and the employer is
directed to pay these costs to the applicant. The employer
party then does not pay. Assuming
then the applicant institutes
enforcement proceedings in terms of clause 19 of the constitution and
section 33A of the LRA to enforce
payment of the sum of R3 000.00.
All the arbitrator in these enforcement proceedings can then do is to
again order the
employer to pay R3 000.00, which the first
arbitrator in the first mentioned proceedings has already ordered the
same employer
to pay. What, with respect, is the point in this?
[67]
Mr
Lawrence, for the applicant, sought to answer this by contending that
because the applicant was not a party to the dispute resolution
proceedings in which the costs award in favour of the applicant was
made, the applicant was unable to use the provisions of sections
143
or 158(1)(c) of the LRA to execute the award of costs in its favour,
and thus needed to become a ‘party’ by way
of the clause
19 and section 33A enforcement proceedings. However, this
contention is not correct. Considering section
143, it provides
for the enforcement of an arbitration award as if it was a Court
order. It does not provide that only a
party to the arbitration
award can enforce it, which in my view indicates that anyone entitled
to a benefit (relief) under such
arbitration award can utilize
section 143 to enforce it.
[68]
Further,
the applicant’s main agreement has its own provisions relating
to the execution of arbitration awards, as contained
in clause 2.40
in section 2 of part D of the main agreement. In terms of
section 51(8) of the LRA, these main agreement execution
provisions
have preference over section 143 of the LRA, in any event. In
terms of this clause 2.40, application can be made
in terms of form
7.18A
[41]
to certify the award, and once the arbitration award is certified, it
can be executed by a warrant of execution where it concerns
the
payment of a sum of money.
[42]
Critically, and in terms of clause 2.40(3), it is provided that
an arbitration award susceptible to execution under this
clause
includes an award of costs. There is equally no
prescription that only the actual litigating parties to the
dispute
resolution process can utilise these provisions.
[69]
In my
view, it is clear that clause 2.40 is intended to be used by anyone
who is entitled to a benefit in terms of an arbitration
award.
In the case of costs awarded by an arbitrator under the main
agreement, this would include the applicant as well,
even though it
is not actually a party to the proceedings. Once the
arbitrator orders a litigating party to pay costs,
whether such costs
are in favour of the other litigating party or the applicant as
bargaining council or both, such award can be
executed by either in
terms of clause 2.40 if not satisfied by the party liable to pay.
The applicant can thus execute costs
awards made in its favour, in
the course of dispute resolution proceedings conducted under its
auspices, by bringing application
in terms of form 7.18A for
certification of the award, in its own name. Then, and once
certified, the applicant can proceed
to have a warrant of execution
issued against the errant litigating party for the amount in costs
due to it under the award.
This is the only interpretation that
in my view makes common sense.
[70]
Therefore,
I cannot agree with Mr Lawrence’s contention that the applicant
cannot use section 143. Despite the fact
that the applicant in
my view can use this section, there is simply no need for the
applicant to do so in any event, as the applicant
can simply execute
under clause 2.40 in section 2 of part D of its own main agreement.
In
Motor
Industries Bargaining Council v Osborne and Others
[43]
the Court said:
‘
The
effect of s 51 (8) read with the subsections to which it refers is
that the procedure in s 143 would be available to enforce
an
award of a bargaining council without the need to make the award an
order of the Labour Court. Upon certification by the Director
of the
CCMA, an award is deemed to be an order of the Labour Court, for
purposes of enforcing it. This is intended to be a more
expeditious
and less expensive means for a successful patty to enforce an award.
…
.
However,
s 51(9) permits a bargaining council to exclude the operation of the
LRA in the circumstances contemplated in that
subsection, by
establishing its own procedures by means of a collective agreement’
The
applicant thus has proper recourse
in
casu
,
in terms of clause 2.40 in section 2 of part D of the main
agreement. This clause allows for the execution of costs
awards,
and this includes execution by the applicant of costs awards
in its favour. There is simply no reason to again pursue
enforcement
proceedings under section 33A of the LRA and clause 19 of
the applicant’s constitution.
[44]
[71]
The
matter has one final nuance. This lies in the real purpose and
context of section 33A of the LRA as read with clause 19
of the
applicant’s constitution. The real purpose of section 33A
was to enable bargaining councils to enforce, on behalf
of employees
under their jurisdictions, the provisions of the bargaining council
main agreements where it comes to employment conditions
and benefits
applicable to such employees under the collective agreements.
This is apparent from section 33A(2), which reads:
‘
For
the purposes of this section, a collective agreement is deemed to
include-
(a)
any
basic condition of employment which in terms of section 49 (1) of the
Basic Conditions of Employment Act constitutes a term
of employment
of any employee covered by the collective agreement; and
(b)
the
rules of any fund or scheme established by the bargaining council.’
Section
33A must also be read with the provisions of section 33, which
empowers bargaining council inspectors in a manner similar
to labour
inspectors under the BCEA, considering that such bargaining council
inspectors can issue compliance orders under section
33A(3)
[45]
.
Clause 19.2 of the applicant’s constitution makes provision for
the issue of such compliance orders. It is thus
all about
enforcement of employment conditions and benefits, applicable to
employees.
[72]
The
scheme that emerges from sections 33 and 33A of the LRA, as read with
clauses 19 of the applicant’s constitution and part
F of the
applicant’s main agreement, is clear. It is
designed to enforce employment conditions and benefits of
employees
in the sector, as regulated by the applicant’s collective
agreements. This would also include levies and contributions
payable
to the council in terms of the main agreement itself relating to the
funding and administration of the applicant as bargaining
council.
Where an errant employer does not comply with these employment
conditions and benefits, and does not pay the prescribed
levies
and/or contributions, compliance is then enforced using section 19 of
the constitution as read with section 33A of the LRA,
ultimately
culminating in arbitration proceedings, where an arbitrator
determines the errant employer’s liability in the
first
instance, and if found to be liable, directing compliance and even
dispense punishment. Steenkamp J dealt with similar considerations
in
the clothing sector in
National
Bargaining Council for the Clothing Manufacturing Industry v J 'n B
Sportswear CC and Another
[46]
and held as follows, with specific reference to the main agreement of
that bargaining council:
‘
Firstly,
the powers of designated agents derive from ss 33 and 33A of the LRA
read with schedule 10 thereof, as well as clause 15.6.2
of the
council's constitution. These provisions empower an agent,
after conducting an investigation of a specific complaint,
to
'issue a compliance order' directing the employer to comply with the
collective agreement to the extent of the deficit revealed
by the
investigation.
These
'orders' are not enforceable against the employer, and if contested,
must be arbitrated through the usual dispute-resolution
procedures of
the council concerned, in this case through referral to a member of
the relevant panel of arbitrators for adjudication
of the dispute in
terms of clause 15.6.3.5 of the council's constitution.’
This
is the proper context and purpose of the enforcement proceedings in
terms of clause 19 of the applicant’s constitution
and section
33A of the LRA, and not what the applicant now intends to use these
proceedings for
in
casu
.
Therefore, and for the applicant to seek to use enforcement
proceedings under clause 19 of its constitution as read with
section
33A of the LRA, to claim costs in terms of clause 2.41, is entirely
inappropriate.
[73]
The
applicant’s claim under clause 19 of its constitution, as read
with section 33A of the LRA, is thus a bad claim.
It was not
appropriate for the applicant to have instituted enforcement
proceedings under these provisions against the second respondent.
The applicant should have proceeded to execute the various
awards and rulings in its favour, with regard to costs awarded
against the second respondent, in favour of the applicant, by way of
clause 2.40 of the main agreement as read with section 143
of the
LRA.
[74]
The
ultimate conclusion of the first respondent is thus correct. It
was not an issue of jurisdiction, which I have already
dealt with,
but it was simply a bad claim. In finding that the applicant
could not bring its claim under section 33A and
that the applicant
needed to use section 143 to execute the costs awards, the first
respondent correctly decided the merits of
the matter. The only
mistake he made is classifying this determination as a jurisdictional
finding. As the Court said
in
Tao
Ying Metal Industries
[47]
:
‘
Whatever
the commissioner sought to convey by her statement, this does not
detract from the key findings of the commissioner ….’
[75]
The
first respondent’s award must thus be sustained, not on the
basis of a want of jurisdiction, but on the basis that the
applicant’s claim was a bad claim, and it was not competent in
law in terms of clause 19 of its constitution as read with
section
33A of the LRA. Consequently, the applicant’s
review application falls to be dismissed.
Concluding
remarks
[76]
Nothing
in this judgment can be construed to detract from the fact that the
second respondent may owe the applicant amounts awarded
to it in
costs, as appears from the record, in terms of the various awards and
rulings referred to. The applicant should
just have enforced
this debt owed to it in terms of clause 2.40 in section 2 of part D
of its main agreement.
[77]
I can
find no reason on the record to indicate why the second respondent
did not pay these amounts actually awarded. This
kind of
behaviour by the second respondent is unacceptable, and indicates an
attitude of non-compliance, which is to be discouraged.
In my
view, this is a relevant consideration where it comes to the issue of
costs. In terms of section 162 of the LRA, I have a
wide discretion
where it comes to the issue of costs. Therefore, and even
though the second respondent was ultimately successful
in its
opposition of the review, I intend to make no order as to costs.
Order
[78]
In
the premises, I make the following order:
1.
The
applicant’s review application is dismissed.
2.
There
is no order as to costs.
_____________________
S.Snyman
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
Mr I Lawrence
of Edward Nathan Sonnenbergs
For
the Second Respondent: Advocate T
Ngckaitobi
Instructed
by:
Werksmans Attorneys
[1]
No 66 of 1995.
[2]
Clause 3.1.3.
[3]
Clause 3.1.4.
[4]
Clause 19.
[5]
Part F.
[6]
Clause 12.
[7]
See clauses 14.2.3
and 14.2.4.
[8]
(2007) 28
ILJ
2405 (CC).
[9]
(2008) 29
ILJ
964 (LAC) at para 101.
[10]
(1999)
20
ILJ
108 (LAC) at para 6. See also
SA
Commercial Catering and Allied Workers Union v Speciality Stores Ltd
(1998) 19
ILJ
557 (LAC) at para 24.
[11]
(2013) 34
ILJ
2662 (LC) at para 22.
[12]
Mostly in the
instance as to whether or not a dismissal exists.
[13]
(2008)
29
ILJ
2218
(LAC) at paras 39 –
40.
[14]
(2012) 33
ILJ
363 (LC) at para 23.
[15]
(2012) 33
ILJ
1179 (LC) at para 10.
[16]
(2013) 34
ILJ
392 (LC) at paras 5–6.
[17]
(2012) 33
ILJ
1171 (LC) at para 14.
[18]
(2012)
33
ILJ
738
(LC) at para 2.
[19]
(2013) 34
ILJ
1272 (LC) at para 21.
[20]
(2010) 31 ILJ 296 (CC) at para 74.
[21]
Id at para 75.
[22]
(2014) 35 ILJ 349 (CC) at para 157.
[23]
Id at paras 159
and 160.
[24]
(2009) 30 ILJ 1539 (SCA). See
also
SA Maritime Safety
Authority v McKenzie
(2010) 31 ILJ 529 (SCA) at para 8.
[25]
Id at para 23.
[26]
Id at paras 52 and
54.
[27]
Id at para 71.
[28]
(2015) 36 ILJ 484 (LC).
[29]
Id at para 13.
[30]
See
SA
Police Service v Safety and Security Sectoral Bargaining Council and
Others
(2012) 33 ILJ 1933
(LC) at paras 138 – 139;
Qavile
v Commission for Conciliation, Mediation and Arbitration and Others
(2003) 24 ILJ 153 (LAC) at
para 7.
[31]
(2007) 28 ILJ 417 (LC) at para 14.
[32]
See
Billiton
Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others
(2010) 31
ILJ
273 (CC) at para 46;
Strategic
Liquor Services v Mvumbi NO and Others
(2009)
30
ILJ
1526 (CC) at paras 12–13.
[33]
(2009) 30 ILJ 197 (LC) at para 38.
[34]
2012 (4) SA 593
(SCA) at para 18.
See also
Bothma-Batho
Transport (Edms) Bpk v S Bothma en Seun Transport (Edms) Bpk
2014
(2) SA 494
(SCA) at para 12.
[35]
(2008) 29 ILJ 2461 (CC) at para 90.
[36]
The
section provides: ‘
A
bargaining council may, by collective agreement- (a) establish
procedures to resolve any dispute contemplated in this section;
(b) provide for payment of a dispute resolution levy; and
(c) provide for the payment of a fee in relation to any
conciliation or arbitration proceedings in respect of matters for
which the Commission may charge a fee in terms of section 115
(2A)
(l)….’.
[37]
(2012) 33 ILJ 1808 (LAC) at para 8
[38]
See clauses 14.2.3
and 14.2.4.
[39]
Clauses 14.18 and
14.19.
[40]
Clause 2.41(2),
(3) and (4).
[41]
The prescribed form is published
under the
Labour Relations Regulations under
GN R1442 in GG 25515 of
10 October 2003.
[42]
See clause 2.40(2)
[43]
(2003) 24 ILJ 1700 (LC) at 1703.
[44]
Or in terms of
part F of the main agreement itself.
[45]
The section reads:
‘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.’
[46]
(2011) 32 ILJ 1950 (LC) at paras 34 –
35.
[47]
(
supra
)
at para 86.