About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 11
|
|
National Union of Mineworkers v Sibanye Gold (Pty) Ltd and Another (J2796/16) [2017] ZALCJHB 11 (19 January 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGEMENT
Not
Reportable
C
ase
no: J2796/16
In the
matter between:
NATIONAL
UNION OF MINEWORKERS
Applicant
and
SIBANYE
GOLD (PTY) LTD
First Respondent
ASSOCIATION
OF MINEWORKERS
AND
CONSTRUCTION UNION
Second Respondent
Heard
:
7 December 2016
Delivered
:19
January2017
JUDGMENT
RABKIN-NAICKER
J
[1] The
NUM seeks a final interdict prohibiting the first respondent (Rand
Uranium) from granting the second respondent (AMCU) organisational
rights at its Cooke 1, 2, and 3 operations. It also prays for an
order declaring the recognition granted by Rand Uranium to AMCU
to be
contrary to a verification ruling issued by the CCMA.
[2] In
and around 2011, Rand Uranium and NUM concluded a recognition and
procedural agreement which included
inter alia
a “threshold
of representativeness agreement” (the Threshold Agreement).
[3] In
terms of the Threshold Agreement, once a union is able to prove that
it has recruited 25% plus 1 of eligible employees in
the workplace as
its members, Rand Uranium will grant a union organisational rights in
the form of deductions of union membership
dues and access to the
premises for the purpose of holding meetings.
[4]
During August 2016, AMCU submitted a notice in terms of section 21 of
the Labour Relations Act
[1]
to Rand Uranium in which it requested certain organisational rights.
In the wake of this letter an agreement was concluded between
Rand
Uranium Proprietary Limited, the NUM and AMCU. The agreement was
headed “Verification of AMCU members employed at Cooke
1, 2 and
3 (Rand Uranium)”. It sets out a detailed method for the
verification exercise to take place. The material part
of the
agreement for the purposes of this application are the following:
“
VERIFICATION
REPORT
4.10
The CCMA Commissioner shall issue his AWARD/RULING within 14 days of
the conclusion of the verification
process.
4.11
The CCMA AWARD/RULING shall be final and binding on the parties to
this Agreement. Parties however reserve the right to exercise
its
rights as provided for in terms of the LRA.
4.12
Management will upon receipt of the CCMA AWARD/ RULING implement its
recommendation notwithstanding
any pending reviews.”
[5] The
CCMA verification report was issued on 19 October 2016 stating that
AMCU membership stood at 21.9% and did not meet the
threshold of 25%
plus one. On 2 November 2016 Rand Uranium granted permission to AMCU
to hold a meeting on 8 November in writing
stating as follows:
“
Please
note the Mass Meeting request for 8 November 2016 have been approved
for the purposes of giving employees feedback relating
to only the
verification process. The meeting does not imply that AMCU has been
granted rights at Rand Uranium.”
[6] The
founding papers reveal that on 8 November 2016, before the meeting
took place, NUM met with the employer. NUM was informed
that the
company had received additional forms from AMCU (approximately 120)
which had now increased its membership above 25% and
that AMCU would
thus be recognised.
[7] Rand
Uranium avers in answer that when it received the further membership
forms it approached the CCMA and enquired if the outcome
of the
verification exercise could be reconsidered in light of the increased
membership of the Second Respondent. The CCMA advised
that once a
verification exercise is undertaken and a ruling is issued, the
matter is considered as having been completed, and
the parties had to
make a new application if they wanted another verification exercise
to be undertaken.
[8] Rand
Uranium then conducted its own verification exercise which it submits
it was fully entitled to do. The objective of this
was to find out
whether the documentation given to it by AMCU correctly reflected
that the 126 persons were in fact its employees
and members of AMCU.
It also sought to determine whether these persons had been part of
the earlier verification exercise.
[9] NUM’s
founding affidavit makes out the following case in paragraphs 17 and
18 as follows:
“
17.
We objected with this stance adopted by the employer outright and
stated that the employer cannot give recognition to AMCU as
the
verification process was completed by the
CCMA
and furthermore that AMCU could either take the verification report
on review or could launch a new application in terms of
section 21 of
the LRA.
Further,
we indicated to the employer that it cannot also recognise on the
face of a final and binding CCMA report/award…”
[10]
The first verification exercise was undertaken in terms of a
collective agreement between the parties. Having considered
the
papers in this matter, and the submissions of the parties, it is the
Court’s view that the meaning of clause 4 referred
to in
paragraph 4 of this judgment, is the true issue in dispute in these
proceedings.
[11] The
clause falls to be interpreted in terms of section 24 of the LRA. The
CCMA has the requisite jurisdiction to perform this
task. In the
premises, I make the following order:
Order
1. The
application is dismissed for want of jurisdiction.
2. There
is no order as to costs.
__________________
H.
Rabkin-Naicker
Judge of the Labour
Court of South Africa
APPEARANCES:
Applicant:
GJ Rautenbach SC
Instructed
by:
CTH Inc.
First
Respondent:
PM Pillay
Instructed
by:
ENSafrica
[1]
66 of 1995.
(LRA)