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[2017] ZALCJHB 91
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National Tertiary Education Union (NTEU) v Tshwane University of Technology and Another (J287/17) [2017] ZALCJHB 91 (23 March 2017)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
C
ase
no: j 287/17
In
the matter between:
NATIONAL
TERTIARY EDUCATION
UNION
(‘NTEU’)
Applicant
and
TSHWANE
UNIVERSITY OF
TECHNOLOGY
First
Respondent
NATIONAL
EDUCATION HEALTH &
ALLIED
WORKERS UNION
(‘NEHAWU’)
Second
Respondent
Heard
:
16 February 2017
Delivered
:
23 March 2017
Summary:
(Urgent – no clear or prima facie right –
freedom of association rights and rights to collective bargaining –
no right to restoration of collective bargaining status and
re-opening of negotiations on substantive agreement concluded during
interval when union had no recognised status or right to participate
in bargaining forum)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The applicant in this matter, an academic
and staff union (‘NTEU’), applied for urgent interim
relief suspending clause
5 of the collective agreement between
Tshwane University of Technology (‘TUT’) and NEHAWU
(‘the substantive
agreement’) pending the conclusion of a
recognition agreement between NTEU and TUT which recognises its
organisational rights,
the readmission of NTEU to the TUT Bargaining
Forum (‘TBF’) and the negotiation and consideration of
the applicant’s
submissions at a meeting of the TBF. Failing
the successful conclusion of such negotiations, NTEU seeks the
suspension of clause
5 of the collective agreement pending the
finalisation of a dispute concerning the interpretation and
application of clause 5 of
the collective agreement.
[2]
Clause 5 of the substantive agreement which
was dated 13 January 2017 stated:
“
5
Post Retirement Medical Aid Benefits
5.1 The
parties acknowledge the financial burden that this benefit places on
the University and agreed to terminate the benefit
is 30 days from
the signing for employees who fall within the bargaining unit (post
levels 5 to 17).
5.2 The
University would initiate appropriate processes with an intention of
terminating the benefit of the other beneficiaries
not falling within
the bargaining unit and ensure that such processes are completed
within 90 days of the date of signing of this
agreement.
5.3 The
parties agree that Council and or its appropriate committees/s
handled the termination of the benefit in relation to employees
on
post levels 1 to 4.”
Chronology
[3]
In June 2011, the TBF was established by a
collective agreement concluded between NTEU, NEHAWU and TUT. In terms
of clause 1.2 and
1.3 all other existing forums of collective
bargaining were dissolved, but existing recognition and procedural
agreements remained
in effect except to the extent they conflict with
the Constitution in terms of clause 3 of the agreement.
[4]
Clause 3.3 establishes the TBF as the sole
bargaining forum unless amended by negotiations. In terms of clause
4.1 of the TBF Constitution,
parties to the forum are unions
recognized on the basis of having at least 28% of employees within
“the bargaining unit”.
The same clause identifies two
sectors, namely academic and non-academic workforce sectors
comprising Peromnes levels 5-17, but
no further reference is made to
these categories in the TBF Constitution.
[5]
Clause 5 of the TBF Constitution deals with
the admission of a “newly recognised union”. To obtain
membership of the
forum, such a union must lodge a copy of its
recognition and procedural agreement between itself and TUT with the
Secretariat of
the bargaining forum, which must confirm its
membership of the forum. TUT is also required to verify the newly
recognised union’s
membership and disclose that to the
bargaining forum. It is unclear why it is necessary for a union to
conclude a recognition agreement
to become a member of the forum, but
whether that is a necessary pre-requisite for bargaining rights in
the forum in the light
of clause 4.1 is not something that requires
determination in this application.
[6]
In any event, on 21 February 2013, quite
separately from the TBF agreement, NTEU and TUT concluded a
recognition and procedural
agreement (‘the NTEU recognition
agreement’). Clause 3.1 of the NTEU recognition agreement
provided that the threshold
for recognition was 30% plus one and that
a majority union with a membership of 50% +1 shall have collective
bargaining rights
for its members employed in the University from
post levels 17 up to 5. Clause 3.2 of the same agreement provided
that the parties
agree to negotiate and consult at the “bargaining
and consultative forum”.
[7]
It is immediately apparent that the
threshold criteria under the NTEU recognition agreement and the TBF
Constitution are different.
NTEU admits that the different thresholds
in the recognition agreement and the bargaining forum Constitution
have created substantial
confusion for itself and the institution.
Nonetheless, for the purposes of this application, those
contradictions do not required
to be resolved in light of NTEU’s
membership at the relevant junctures in this application.
[8]
On 17 August 2016, TUT advised NTEU that
its membership of the bargaining forum had automatically terminated
and that it did not
meet the required threshold for recognition of
30% +1 because in July 2016 it only represented 789 out of 3002
employees (approximately
26% of the workforce).
[9]
It
is immediately obvious that this figure also fell short of the 28%
required by clause 4.1 of the TBF Constitution. Accordingly,
the
letter also stated that the implication of clause 6.3 of the TBF
Constitution was that NTEU’s membership had lapsed and
automatically terminated.
[1]
It
further gave the union notice of its intention to terminate the
recognition agreement on three months’ notice in terms
of
clause 21 thereof because its membership had fallen below 50%.
[10]
On 6 October 2016 NTEU requested TUT to
revise the recognition agreement. There was no response from TUT and
on 24 October NTEU
followed up its initial letter with a request that
recognition be based on a numerical threshold of 600 members rather
than a percentage.
There was still no response to this proposal and
on 8 December 2016, the union wrota letter invoking section 21(8C)(b)
of the LRA
calling upon TUT to retain the union’s existing
rights on the basis that it represented significant interests or a
substantial
number of employees even though it did not meet the
thresholds of representativeness established in a collective
agreement.
[11]
S 21(8C) provides:
“
(8C)
Subject to the provisions
of subsection (8), a commissioner may in an arbitration
conducted in
terms of section 22(4) grant the rights referred to in sections 12,
13 or 15 to a registered trade union, or two or
more registered trade
unions acting jointly, that does not meet thresholds of
representativeness established by a collective agreement
in terms of
section 18, if—
(a)
all parties to the collective agreement have been given an
opportunity to participate in the arbitration proceedings; and
(b)
the trade union, or trade unions acting jointly, represent
a
significant interest, or a substantial number of employees, in the
workplace.”
[12]
In mid-December 2016, NTEU referred a
dispute to the CCMA claiming organisational rights under the
provisions of s 21(8C). The matter
was due to be conciliated on 24
January 2017 in terms of a notice of set down issued on 5 January.
[13]
However, on 13 January 2017 events took an
additional turn when NEHAWU and TUT concluded an agreement on
substantive issues. Amongst
other things, clause 5 of the substantive
agreement required TUT to terminate post retirement and medical aid
benefits and directly
affected the conditions of service of the
applicant’s members and retired members receiving the benefit.
The agreement was
extended to all employees in the bargaining unit
and purportedly to those who have left the service of the employer
already. The
agreement came to the attention of NTEU on 16 January
and on 18 January NTEU sent a letter of demand to TUT calling upon it
to
suspend the terms of the collective agreement. The letter claimed
that the terms and conditions were concluded under circumstances
where the union was not a party to the negotiations and where there
was a pending dispute concerning its admission to the bargaining
forum. The letter gave the University until 25 January to respond
failing which it would institute proceedings.
[14]
On
23 January, TUT responded that the substantive agreement complied
with section 23(1)(d)(1)(i) to (iii) of the LRA
[2]
and it could not be unilaterally suspended as it was valid and
binding. Further, it pointed out that NTEU’s organisational
rights dispute was currently pending at the CCMA.
[15]
NTEU claimed that it had achieved the
membership threshold of 30% plus one by 1 February 2017, and at a
meeting on 6 February TUT
confirmed receiving membership forms from
TUT on 3 February. NTEU also contended that its membership met the
threshold for admission
to the bargaining forum.
[16]
However, by 7 February, TUT refused to
admit the union to the bargaining forum until the membership forms
had been processed on
its system at the end of February and until the
union has lodged a copy of a new recognition agreement with the TUT
with the Secretariat
of the bargaining forum. Nonetheless, the same
letter did agree to afford NTEU all the rights available to it under
sections 12,
13 and 15 of the LRA, which would appear to potentially
settle the dispute under s 21(8C).
Urgency
[17]
NTEU launched its application the day after
TUT refused to admit it to the forum, giving TUT two days to file an
answering affidavit.
The union claims the matter is urgent because
the members’ post-retirement medical benefit was due to
terminate on 13 February
2017. It claimed its members who stood to
lose post-retirement medical benefits would suffer irreparable harm
if the new substantive
agreement is implemented in circumstances
where it has been deprived of the opportunity to represent its
members’ interests
on the issue in the substantive
negotiations.
[18]
I am satisfied that NTEU only could have
known of the imminent harm posed to its members’
post-retirement medical benefits
on 16 January 2017. The contention
by TUT that the union could have foreseen this because NEHAWU had
tabled such a demand in August
2016, is absurd. The mere tabling of a
demand does not mean that demand will necessarily form part of a
concluded agreement. It
was only on 23 January that TUT responded to
NTEU’s demand to suspend the implementation of clause 5.
Arguably, NTEU should
have launched the application within a week of
receiving this response to beat the deadline of 13 February when the
cessation of
medical benefits was due to take effect.
[19]
As it is, NTEU still hoped that if it could
secure its readmission as a bargaining forum party, it might be able
to salvage the
situation and it was only when a quick resolution of
its admission was thwarted that it launched these proceedings. I am
satisfied
NTEU took reasonable steps to find alternative solutions
and acted with sufficient alacrity in bring the application even
though
the matter was heard a day or two after the post-retirement
medical benefits were due to be withdrawn. In any event, the
withdrawal
of the benefits is obviously not an irreversible one once
implemented, but obviously the negative implications for
beneficiaries
are serious and of immediate consequence. However, the
rights NTEU seeks to assert here are not any possible contractual
rights
its members or retired members might have to such benefits.
Existence
of a right
[20]
The
prima
facie
right asserted by NTEU is its
“right to represent its members’ interests” which
are “constitutionally entrenched
by virtue of an employee’s
right to freedom of association.” The union also contends that
because it had recognition
previously and was a party to the TBF, it
has a stronger basis for its claim compared to a union that was not
previously recognised
especially as it now met the membership
threshold required for admission to the TBF.
[21]
In essence, NTEU is asserting a right to
resume its seat at the bargaining table established under the
auspices of the TBF and to
temporarily stay the effect of the
substantive agreement concluded in its absence in order to be given
an opportunity to renegotiate
it on terms not unfavourable to its
members. It asserts that it has a right to regain its former status
on the basis of its
current
membership strength and re-open negotiations as if its membership of
the TBF was uninterrupted.
[22]
In
National
Union of Metalworkers of SA & others v Bader Bop (Pty) Ltd &
another
[3]
the constitutional court summarised freedom of association rights in
the following terms:
[34] Of
importance to this case in the ILO jurisprudence described is firstly
the principle that freedom of association is ordinarily
interpreted
to afford unions the right to recruit members and to represent those
members at least in individual workplace grievances;
and secondly,
the principle that unions should have the right to strike to enforce
collective bargaining demands. The first principle
is closely related
to the principle of freedom of association entrenched in s 18 of our
Constitution, which is given specific content
in the right to form
and join a trade union entrenched in s 23(2)(a), and the right of
trade unions to organize in s 23(4)(b) .
These rights will be
impaired where workers are not permitted to have their union
represent them in workplace disciplinary and
grievance matters, but
are required to be represented by a rival union that they have chosen
not to join.
[23]
NTEU asserts that it had a right to
represent its members’ interests which is entrenched by virtue
of their rights to freedom
of association. Moreover, it currently is
entitled to participate in the bargaining forum and was previously
recognised. The first
point to make is that, the right of employees
to freedom of association is not the same as the right of unions to
engage in collective
bargaining. The organisational rights which
inter alia
promote
the exercise of the right to freedom of association are: the right to
have access to the workplace, which includes communication
with
members and the holding of meetings with employees; the right to the
deduction of membership fees from wages, and the right
to be
represented in disciplinary and grievance proceedings by a shop
steward. The rights of employees to participate in union
activities
are expressly protected by s 4 of the LRA and reinforced by
prohibitions against victimisation in s 5.
[24]
However, the right of a union to engage in
collective bargaining is not an incident of the right of freedom of
association even
if the latter right is a necessary pre-condition for
genuine collective bargaining. The right to engage in collective
bargaining
has been framed thus:
“
[4]
Section 23(5) of the Constitution of the Republic of South
Africa
D
1996
enshrines the right to collective bargaining. It provides:
'Every
trade union, employers' organisation and employer has the right to
engage in collective bargaining. National legislation
may be enacted
to regulate collective bargaining. To the extent that the legislation
may limit a right in this Chapter, the limitation
must comply with
section 36(1).'
[5] The
national legislation contemplated in s 23(5) of the Constitution is
the Labour Relations
Act
66 of 1995
(LRA).
Section 36(1) of the Constitution is the provision allowing for the
limitation of the rights in the Bill of Rights
by measures which are
reasonable and justifiable in an open and democratic
society.”
[4]
[25]
The
LRA provides support for the institution of collective bargaining and
avails unions of the right to strike to allow them to
bring economic
power to bear on the bargaining process, but the LRA does not bestow
a legal entitlement on a union, to a
seat at the bargaining
table unless it has attained bargaining rights by agreement with the
employer or unless it is entitled to
be granted such rights in terms
of an existing collective agreement, which affords collective
bargaining rights to any union satisfying
stipulated membership
thresholds. In certain instances, the LRA will also permit a minority
union to strike in support of the demand
to bargain collectively
[5]
,
but the right to engage in collective bargaining with a particular
employer is ultimately something that is attained as a result
of one
of the mechanisms mentioned.
[26]
The difficulty NTEU faces is that
at
the time
the prejudicial substantive
agreement was concluded, it was not entitled to exercise collective
bargaining rights it had formerly
attained under the TBF, because it
fell below the thresholds for bargaining representation which it had
accepted. The fact that
it subsequently recovered its membership
status and would now appear to be eligible to re-join the TBF does
not mean the court
can rewind the negotiations so that they can
recommence. What matters was NTEU’s collective bargaining
status at the time
the agreement was concluded.
[27]
Consequently, I am not satisfied NTEU has
demonstrated a
prima facie
right to interim relief.
[28]
Moreover, the real harm the union seeks to
prevent is the prejudicial effect of clause 5 on its members’
interests and presumably
those who are no longer employees but have
already retired. As mentioned, whether there is another basis for
disputing the enforceability
of that provision especially in respect
of former employees, that is not before the court. The reason
for seeking the kind
of relief NTEU has sought in this application is
that, it will provide an opportunity to achieve an alternative deal.
But even
if the applicant had been a party to the bargaining forum,
the only right it could have exercised in the event of not agreeing
to the termination of the medical benefits as part of the
negotiations is to invoke the dispute resolution provisions of clause
14 of the TBF constitution. That in turn might, in the absence of
reaching an agreement, have led to industrial action or to interest
arbitration, provided of course the parties agreed to that process.
[29]
There is no basis for thinking the
applicant(s) could have exercised an absolute veto over the terms of
the substantive agreement
but they may have lost the opportunity to
embark on strike action on that occasion. I mention this only to
emphasise that the relief
sought in this application, even if
granted, would not necessarily prevent the real harm the union wants
to avoid, namely the prejudice
to its members’ post-retirement
medical benefits. Thus, to the extent the applicant fears irreparable
harm in the form of
never recovering that benefit might occur, the
relief sought could not by itself have averted it.
Conclusion
[30]
In the absence of NTEU being able to
demonstrate the existence of a
prima
facie
right, I am satisfied the
application must fail on that ground alone and consequently it is not
necessary to decide if any other
preconditions for urgent relief have
been met.
Order
[31]
The application is heard as one of urgency
and non-compliance with Labour Court rules pertaining to time periods
and service are
condoned to the extent necessary.
[32]
The application is dismissed.
[33]
No order is made as to costs.
_______________________
Lagrange J
Judge of
the Labour Court of South Africa
APPEARANCES
APPLICANT:
E van As instructed by Len Dekker Attorneys Inc.
FIRST
RESPONDENT:
F Malan of ENS Africa Inc.
SECOND
RESPONDENT:
N Thaanyane of Thaanyane Attorneys
[1]
Clause 6.3 and 6.4 of the TBF Constitution reads:
"6.
TERMINATION
The
membership of a trade union to the Bargaining Forum will be
terminated:
…
6.3
if the union's membership of the bargaining unit as per clause 4.1.1
and clause 4.1 .2 read along with as 3.3 is less than
the prescribed
thresholds depending on the recognition basis, the recognition
agreement shall lapse of ceased to be of any force
or effect and
terminated, resulting in the automatic termination of its TUTBF
membership.
6.4
If the recognition agreement is terminated in terms of the
recognition and procedural agreement
[2]
The
section provides:
“
23
(1) A collective agreement binds-
....
(d) employees
who are not members of the registered trade union or trade unions
party to the agreement if-
(i) the
employees are identified in the agreement;
(ii)
the agreement expressly binds the employees; and
(iii)
that trade union or those trade unions have as their members the
majority of employees employed by the employer in the workplace.”
[3]
[2002] ZACC 30
;
2003
(3) SA 513
(CC); (2003) 24
ILJ
305 (CC) at 324.
[4]
Free
Market Foundation v Minister of Labour & others
(2016) 37
ILJ
1638 (GP) at 1643
[5]
See e.g
Bader
Bop