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[2017] ZALCJHB 33
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Plastics Convertors Association of South Africa (PCASA) and Others v Metal and Engineering Industries Bargaining Council (MEIBC) and Others (JR2282/2016) [2017] ZALCJHB 33 (1 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not reportable
Case no: JR 2282 /2016
In
the matter between:
PLASTICS
CONVERTORS ASSOCIATION OF
SOUTH
AFRICA (PCASA)
First Applicant
NATIONAL
EMPLOYERS’ ASSOCIATION OF
SOUTH
AFRICA (NEASA)
Second
Applicant
and
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL (MEIBC)
First Respondent
GENERAL
SECRETARY OF THE
MIBCO
N.O
Second Respondent
THE
MINISTER OF LABOUR
Third Respondent
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH AFRICA (NUMSA)
Thirty fourth Respondent
Heard:
24 January 2017
Delivered:
24 January 2017
Reasons
given: 3 February 2017
JUDGMENT
PRINSLOO J
Introduction
[1]
This application concerns a
collective agreement (the Registration and Administration Expenses
Collective Agreement, referred to
as ‘the Agreement’),
concluded under the auspices of the First Respondent (MEIBC) and a
request by the MEIBC directed
to the Third Respondent (the Minister)
to extend the agreement in terms of section 32 of the LRA. The
decision by the MEIBC to
request the Minister to extend the agreement
is the subject of a pending review application, filed under case
number JR 2282/16.
[2]
On 6 January 2017 the
Applicants filed an urgent application wherein they sought an order
directing that the review application
be argued forthwith on 9
January 2017, and that the Minister be interdicted from acceding to
the MEIBC’s request to extend
the Agreement pending judgment in
the review application. In the alternative, the Applicants sought a
preferential date for the
hearing of the review application, and an
order interdicting the Minister from extending the agreement pending
judgment in that
application.
[3]
On 24 January 2017 I made the
following order in the urgent application:
1.
The
review application under case number JR 2282/16 is enrolled for
hearing on 10 February 2017:
2.
The
Respondents are directed to file opposing affidavits or supplementary
affidavits by close of business on 31 January 2017;
3.
The
Applicants are to file a replying affidavit, if any, by no later than
close of business on 3 February 2017;
4.
All
parties are directed to file heads of argument by close of business
on 3 February 2017;
5.
The
Third Respondent is not to take any decision on the request for
extension pending the finalization of the review application.
[4]
On 25 January 2017 the
thirty-fourth respondent’s (NUMSA) attorneys of record
requested reasons for the above order. These
are my reasons.
Background
[5]
In the review application, the
Applicants seek to review and set aside any and all decisions taken
by the MEIBC pertaining to a
request to the Minister to extend the
Agreement.
[6]
In these circumstances, the
Applicants sought an undertaking from the Department of Labour and
the Minister that a decision regarding
the extension of the Agreement
would not be taken pending the outcome of the review application.
When no undertaking was given,
the Applicants filed the present
application.
[7]
The Applicants contend that the
request by the MEIBC to extend the Agreement is unlawful and the
MEIBC had no right in terms of
section 32(1)(b) of the LRA to make
the request.
[8]
The Applicants submit that the
Respondents will not be inconvenienced by arguing the matter sooner
as pleadings in the review application
have closed, and it was
largely on this basis that they sought an urgent hearing of the
review before intervening circumstances
may render the review moot
and cause them irreparable harm.
[9]
As I have indicated, the urgent
application was enrolled for urgent hearing on 9 January 2017. The
application was postponed to
24 January 2017 to afford the
Respondents an opportunity to file answering affidavits by 17 January
2017 and the Applicants to
file a reply by 20 January 2017. It was
also recorded that the Department of Labour should not make its
recommendation to the Minister
before 25 January 2017.
[10]
In the supplementary heads of
argument filed on behalf of the Applicants, they submit that the
effect of a successful review will
be that the MEIBC’s request
to the Minister would be invalid. In those circumstances, the
Minister would not have powers
to take any further steps to extend
the Agreement in terms of section 32 of the LRA and the MEIBC would
be obliged to prepare and
submit another (valid) request to the
Minister. If the Minister extends the Agreement, it would simply give
rise to a further review
application.
[11]
In the heads of argument filed
by NUMSA, NUMSA submitted that the urgent application should be
dismissed. The first submission was
that the application was not
urgent. Secondly, NUMSA submits that the relief sought against the
Minister would violate the principle
of separation of powers;
thirdly, that the requirements for interim relief have not been met
and lastly, that the review application
is without merit.
[12]
In the heads of argument filed
by the Minister, she made it clear that she was not opposing the
relief sought relating to the determination
of a preferential date on
which the pending review application could be argued. In other words,
the Minister agreed that the review
application under case number JR
2282/16 should be set down for hearing on an expedited basis.
[13]
It follows from the position
adopted by the Minister that should be urgent application proceed,
the Court would be faced with the
real likelihood of a duplication of
proceedings, and the consequent unnecessary waste of costs and
resources. On the other hand,
an order that the hearing of the
pending review application be expedited would obviously avoid a
duplication of proceedings and
would ensure an expeditious resolution
of the pending dispute concerning the lawfulness of the request by
the MEIBC to the Minister
to extend the Agreement.
[14]
Without any consideration of
the merits of the pending review application and in view of the
relief sought by the Applicants in
the urgent application, and having
regard further to the submissions made by the Respondents in their
heads of argument, I considered
that hearing the urgent application
in isolation of the review application (which was not ripe for
hearing on 24 January 2017)
would amount to dealing with the matter
on a piecemeal basis and would not dispose of the matter finally. I
considered that a preferable
approach would be to expedite the
hearing of the main matter (i.e. the review application) and dispose
of it and in so doing, in
effect, granted the Applicants’
alternative prayer.
[15]
The Registrar of this Court was
able to enroll the review application on an expedited basis, and
allocated 10 February 2017 as a
hearing date. I am grateful to the
Registrar, given that opposed reviews are currently being set down in
the third term of 2017.
[16]
I canvassed my views with the
parties, and proposed that the review application be enrolled on an
expedited basis on 10 February
2017. I further canvassed with Mr
Maenetje whether the Minister would be willing to give an undertaking
that she would not make
a decision on the extension request before 10
February 2017 when the matter would be argued.
[17]
Mr Maenetje took an instruction
and indicated that the Minister was not in a position to give the
undertaking sought, but that she
would not oppose an order by this
Court to the effect that she is not to make a decision pending the
finalization of the review
application.
[18]
Rule 11(3) and (4) of the Rules
of the Labour Court provide that this Court may adopt any procedure
it deems appropriate in the
circumstances and that this Court may act
in a manner that it considers expedient in the circumstances to
achieve the objects of
the Act. Section 1(d) (iv) of the Act sets out
the as part of the primary objectives of the Act the effective
resolution of labour
disputes.
[19]
The order that I granted is
consistent with the statutory imperatives of effective and speedy
resolution. In my view, no party has
been prejudiced by this approach
and if there was prejudice, it is minimal. I say so for the following
reasons: firstly, the review
application will be fully argued and
heard on its merits and all the parties will be afforded the
opportunity to fully present
their cases on 10 February 2017.
Secondly, the hearing of the review has been expedited and the
Minister will be afforded the certainty
that she no doubt seeks.
[20]
NUMSA did not consent to the
allocation of an expedited hearing date. This presents no bar to the
order given. Firstly, this Court
does not need the consent of parties
or practitioners to enroll matters for hearing; indeed, this is the
function of the Registrar.
In any event, this Court has the inherent
power to govern its own proceedings. Secondly, the enrollment
of the review application
on an expedited basis accommodates the
interests of all parties in certainty and finality. Thirdly, as I
have indicated, the Minister
as the party the Applicants primarily
sought relief against in the urgent application, did not object to
the order granted by this
Court. No relief is sought against NUMSA in
the urgent application and NUMSA will be afforded a full opportunity
to argue its case
on 10 February 2017. I fail to see how NUMSA can
object to an order where the primary party against whom relief was
sought, agrees
to the terms of the order. In view of the Minister’s
position and the arrangement for an expedited hearing date that was
acceptable to the Minister, I did not consider it necessary for the
urgent application to be argued. I already alluded to the fact
that I
took an approach that would avoid dealing with the matter on a
piecemeal basis.
[21]
I have made it clear to the
parties that I will deal with the review in an expedited manner and I
further undertook to expedite
the delivery of a judgment in the
matter.
[22]
The matter is enrolled for 10
February 2017 as the first available date, with due consideration of
the fact that the parties needed
time to file affidavits and heads of
argument.
[23]
For
these reasons, I made the order reflected above.
______________
Prinsloo J
Judge
of the Labour Court
Appearances:
Applicant:
Advocate A Redding SC
Instructed
by:
Anton Bakker Attorneys
Third
Respondent:
Advocate H Maenetje
SC with Advocate Nhlapo
Instructed
by:
State Attorney
Thirty
fourth Respondent: Advocate H Barnes with
Advocate M Maenetje
Instructed
by:
Haffegee Roskam Savage Attorneys