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[2015] ZALCJHB 407
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Association of Mineworkers and Construction Union and Others v National Bargaining Council for the Road Freight and Logistics Industry and Others (J2217/15) [2015] ZALCJHB 407 (18 November 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
case
no: J2217/15
In the matter between:
THE
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION
UNION
First
Applicant
THE
AMCU MEMBERS WHOSE NAMES
APPEAR
ON ANNEXURE ‘A’
Second
to further Applicants
and
THE
NATIONAL BARGAINING COUNCIL FOR THE
ROAD
FREIGHT AND LOGISTICS INDUSTRY
First
Respondent
COMMISSIONER
SHAAM FRIEDMAN
N.O
.
Second
Respondent
MACDONALDS
TRANSPORT UPINGTON (PTY) LTD
Third
Respondent
Heard:
10 November 2015
Delivered
:
18 November 2015
JUDGMENT
RABKIN-NAICKER
J
[1]
This matter came before me in urgent court. The first applicant
(AMCU) sought the following relief:
“
Reviewing,
setting aside and correcting, on an urgent basis, the ruling dated 20
October 2015 issued by the Second Respondent under
the auspices of
the Bargaining Council and under case number GPRFBC36944 (the
Ruling); and
Substituting
the Ruling with one that reads that AMCU is entitled to represent the
individual applicants in their unfair dismissal
dispute referred to
the first respondent under case number GPRFBC36944 and the
condonation application in respect thereof.”
[2]
The Ruling arose from a point
in limine
raised by the third
respondent (the company) at the outset of a condonation hearing. It
was issued on 20 October 2015 and is brief.
It reads as follows:
“
Details
of the hearing and representation
1.
The matter was set down for 12 October 2015
as an in limine hearing. The employer party raised a point in limine
that the membership
of the employees that are party to the dispute,
has lapsed. Therefore AMCU cannot represent the employees as they are
no longer
members.
Background
to the dispute
2.
The Parties have been in dispute since on
or about 5 September when AMCU had referred a matter seeking
organisational rights. Several
attempts to meet to discuss the
granting of organisational rights, has failed. Stop order forms had
been submitted to the employer
and the employer confirmed that
through the process of verification on 12 November 2014, a handful of
forms were found to be legitimate.
Submissions
by employer
3.
The employer submitted that the parties
cannot read into the Constitution of the union. The membership of the
employees has lapsed.
The employer submitted that the Constitution
clearly reflects that if members are in arrears for three months,
then membership
lapses. The Union, therefore cannot represent the
employees. Rights have to be exercised within the framework of the
law. The employer
submitted that the employees could have paid
subscriptions individually.
Submissions
by employee party
4.
The employee party submitted that the
dispute arose after organisational rights were not granted and this
had resulted in a strike.
The employee party submitted that Union
membership is a fundamental right and at no point during the
continuation of the dispute,
did the employer raise that the
employees were not members of AMCU.
Ruling
5.
From the commencement of the dispute for
organisational rights, it is clear that the employer was unwilling to
grant these rights.
The Union is bound by its Constitution and should
have made contingency plans to secure membership through the period
of the dispute
as the Constitution only allows for deductions to be
made through remittance by an employer. The right to automatic
deductions
is earned if parties are members to the Council. There is
no evidence before me that AMCU is party to the Council.
6.
As much as the members require the
assistance of the Union during the processes following their
dismissal, the Union is bound by
its own Constitution. I therefore
find that the employees are not members in good standing and AMCU
cannot represent them.”
[3]
AMCU’s Constitution, as well as the pleadings in the
condonation application were before the second respondent. The
company
submitted in its opposing papers in the condonation
application, that AMCU was not able or authorised in law to refer the
dispute
on behalf of the list of individuals and averred:
“
In
terms of the Constitution of the Applicant, particularly paragraphs
7.4 and 8.2 thereof, the membership of the individuals to
the
Applicant lapsed at the latest during January 2015 as the individuals
have never paid subscription fees to the Applicant.”
[4]
The company attached a list of names to their answering papers in the
condonation application with included the dates of the
respective
application forms, indicating when the employees’ applications
for membership were submitted. It is noteworthy
that there was a long
standing organisational rights dispute between the parties. From
April 2014 to May 2015 AMCU was not granted
organisational rights
including the right to deduct trade union subscription fees. There
followed a strike and the subsequent dismissals.
[5]
The AMCU constitution provides in clause 7.4 as follows:
“
7.4
Termination of Membership
7.4.1
Any member may resign from the Trade Union by writing a letter to the
Branch Secretary, giving one (1) months’
notice to the Trade
Union.
7.4.2
Any member whose contract of employment has been terminated by the
employer, his/her membership will not
be terminated for one (1) full
year. Such member will be exempted from paying subscription to the
trade union until he/she is re-employed.
7.4.3
Membership shall lapse if a member is in arrears with subscription
for three (3) months.
7.4.4
A member shall not be disciplined or expelled from the trade union if
he/she did not participate on the
strike action, if no ballot was
held or the majority of members voted against it.”
[6]
The company sought to rely on clause 7.4.3 read with clause 8.2 of
the constitution. Clause 8 of the constitution reads as follows:
“
SUBSCRIPTIONS
8.1
All subscription fees are payable to
the national account of the trade union or to a person authorized
by
the National Executive Committee of the trade union to collect such
fees.
8.2
Members who are three (3) months in arrears with their subscription
fees forfeit their membership,
any benefits they received from the
Trade Union will cease. The member may re-apply for membership by
completing new stop order
form; such application will be treated as
new.”
[7]
The second respondent was enjoined to interpret the provisions of the
constitution before her. It was common cause between the
parties that
at least those former employees contained in one of the lists to the
answering affidavit in the condonation application
had completed
membership application forms, (incorporating a stop order form), but
had not as yet paid any membership subscription
fees for a period in
excess of three months from the date of completing the forms.
[8]
It was submitted by Ms Collet for AMCU that the second respondent
failed to apply her mind to the AMCU constitution as a whole.
The
issue identified by her as the crux of the matter, is whether the
individual applicants were ‘in arrears’ with
their
subscriptions as contemplated in clauses 7.4 and 8.2 of the
constitution. The definition of “member” in the
constitution was highlighted i.e.:
“
member”
mean a person prescribed in clause 16.1 of this constitution
[1]
and/or
any person/ employee who have completed the application for
membership stop order irrespective of whether the membership
subscription has commenced or not
”
[9]
It was further pointed out that Clause 9.3 of the constitution
provides that: “Stop order facility will be entered into
with
all employers whose employees have joined AMCU for the purpose of
deducting the subscription fees.” This it was submitted
is the
method by which the constitution provides for the collection of
subscriptions.
[10]
The company, for its part, submitted on the papers before me that on
a proper reading of the constitution in its entirety,
the provisions
of the LRA, the prevailing jurisprudence and the Rules of the
Bargaining Council in respect of representation it
is clear that the
individual Applicants cannot lawfully be represented by AMCU.
[11]
Ms Lancaster for the company referred the court to
Equity Aviation
Services (Pty) Ltd v SA Transport & Allied Workers Union &
others
(2009) 30 ILJ 1997 (LAC) in which the court held that
where employees are relying on the existence of their membership of
union,
they bear onus of establishing that membership in terms of
that union’s constitution.
Evaluation
[12]
This matter concerns a large group of employees. The legal effect of
the Ruling should it stand, would be to prevent the individual
applicants from relying on the founding papers in the condonation
application (deposed to by an AMCU official) in the forthcoming
hearing under the auspices of the first respondent. I am thus
satisfied that the matter is urgent and that in terms of section
158(1B) of the LRA, it is just and equitable that I should entertain
the review application.
[2]
[13]
The matter therefore stands to be decided on an interpretation of the
constitution in question. In respect of its interpretation
the oft
quoted passage of Wallis JA in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[3]
is of guidance:
“
The
present state of the law can be expressed as follows: 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.”
[14]
The definition clause of “membership” in the constitution
brooks no ambiguity or confusion. Having filled in the
requisite
application an employee is considered a member of the union,
whether
subscriptions have begun to be paid or not
.
Clause 8.2. must be read in light of that definition. To be in
“arrears” is to be owing money that should have been
paid
already.
[4]
Given that the
method provided for paying membership dues in AMCUs’
constitution is by stop order facility entered into with
an employer,
the state of being in arrears can only occur once stop order
deductions have commenced.
[15]
Clause 9.2 of AMCU’s constitution in line with the LRA which
provides as follows in respect of representative trade unions:
“
13 Deduction
of trade union subscriptions or levies
(1)
Any employee who is a member of a representative
trade union may authorise the employer in writing to deduct
subscriptions or levies payable to that trade union from the
employee's wages.
(2)
An employer who receives an authorisation in terms
of subsection (1) must begin making the authorised deduction
as soon
as possible and must remit the amount deducted to the representative
trade union by not later than the 15th day of the
month first
following the date each deduction was made.
(3)
An employee may revoke an authorisation given in
terms of subsection (1) by giving the employer and the representative
trade union one month's written notice or, if the employee works in
the public service, three months' written notice.
(4)
An employer who receives a notice in terms of
subsection (3) must continue to make the authorised deduction
until
the notice period has expired and then must stop making the
deduction.”
(5)
With each monthly remittance, the employer must
give the representative trade union-
(a)
a list of the names of every member from whose wages the employer has
made the deductions that are included
in the remittance;
(b)
details of the amounts deducted and remitted and the period to which
the deductions relate; and
(c)
a copy of every notice of revocation in terms of subsection (3).”
[16]
In my judgment had the arbitrator applied her mind to the clauses of
AMCU’s constitution referred to above in context,
this would
have led her to find that the union had the right to represent its
members. She clearly did not do so and undertook
the enquiry in the
wrong way
[5]
, rendering the
decision she arrived at reviewable.
[17]
In the circumstances, I make the following order:
Order
1.
The ruling dated 20 October 2015 issued by
the Second respondent under case number GPRFBC36944 is hereby
reviewed and set aside and substituted with the following:
1.1
AMCU is entitled to represent the individual applicants
in their dispute under case number GPRFBC36944;
2.
Third Respondent is to pay the costs of this
application.
_________________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances:
For the Applicant:
Adv S. Collet
Instructed by:
Larry Dave Incorporated Attorneys
For the Third
Respondent: Ms S
Lancaster of Lancaster Kungoane Attorneys
[1]
16.1 is the
‘regional executive committee’
[2]
(1B) The
Labour Court may not review any decision or ruling made during
conciliation or arbitration proceedings conducted under
the auspices
of the Commission or any bargaining council in terms of the
provisions of this Act before the issue in dispute has
been finally
determined by the Commission or the bargaining council, as the case
may be, except if the Labour Court is of the
opinion that it is just
and equitable to review the decision or ruling made before the issue
in dispute has been finally determined.
[3]
2012 (4) SA
593 (SCA)
[4]
Dictionary.cambridge.org
[5]
Herholdt v
Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34
ILJ 2795 (SCA) at paragraph 21 deals with this
time of latent
defect.