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[2017] ZALCJHB 146
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Eskom Holdings SOC Limited v National Union of Mineworkers and Others (JR538/14) [2017] ZALCJHB 146 (9 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Reportable/Not
Reportable
Case
no: JR538/14
In
the matter between:
ESKOM
HOLDINGS SOC LIMITED
Applicant
and
NATIONAL
UNION OF MINEWORKERS
First Respondent
NATIONAL
UNION OF METAL WORKERS
OF
SOUTH
AFRICA
Second
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Third Respondent
JOHN
SHARDLOW
N.O
Fourth Respondent
SOLIDARITY
Fifth Respondent
Decided:
In Chambers
Delivered:
9 May 2017
JUDGMENT – LEAVE
TO APPEAL
BALOYI
AJ
Introduction
[1]
Eskom
Holdings SOC Limited (Eskom) seeks leave to appeal the judgment and
order delivered on 7 December 2016 in which I ordered
that: (i) the
ruling of the arbitrator that the Commission for Conciliation
Mediation and Arbitration (CCMA) lacks the jurisdiction
to determine
the dispute referred by the first and second respondents is reviewed
and set aside; (ii) the CCMA must enrol the dispute
referred by the
National Union of Metalworkers of South Africa (NUMSA) and the
National Union of Mineworkers (NUM) for arbitration
on the merits;
and (iii) Eskom pay the costs of the application. The application is
opposed by NUMSA and NUM (collectively referred
to as the “unions”).
[2]
Before me, the unions sought the review and setting aside of a
jurisdictional ruling of the fourth respondent that the CCMA
lacks
the jurisdiction to conciliate an interest dispute referred by the
unions, the dispute being:- (i) a demand that Eskom end
the use of
labour brokers; and (ii) a demand to extend the existing bargaining
unit to include an additional 3 bands of employees
(the M, P and S
bands who, according to Eskom, comprise,
inter alia
, managers,
professionals and consultants. It is not necessary that I repeat the
facts as they appear in he main judgment.
[3]
To succeed in an application for leave to appeal, an aplicant must
show that there is a prospect that another court may reasonably
arrive at a different decision from the court
a
quo
[1]
.
I proceed to consider whether Eskom meets this standard.
The demand for the
abolition of the use of labour brokers
[4]
Eskom asserts that the demand is not competent to be determined by
the CCMA for the following reasons:- (i) the ruling of Commissioner
Shear decided the issue and remains binding on the parties as it has
not been set aside – further, that a commissioner does
not have
the power to set aside an administrative act, namely, the decision of
commissioner Shear; (ii) the demand usurps the function
of the
legislature; (iii) the demand is unlawful; and (iv) the demand is not
a demand between an employer and its employees.
[5]
Eskom contends that my finding and order that the commissioner has
the jurisdiction to consider and determine the unions’
demand
amounts to effectively giving the CCMA the power to tell Eskom who it
can contract with, and places in the hands of a commissioner
the
power to ban labour brokers at Eskom. This, so it is contended by
Eskom, amounts to usurpation of the powers of the legislature
(which,
so it is contended, has authorised the use of labour brokers in
section 198 of the Labour Relations Act
[2]
(LRA)). I do not agree that the judgment has the effect or
consequence as contended by Eskom. As I understand section 198, it
seeks only to regulate the relationship of the parties (the labour
broker, the client of the labour broker – Eskom in this
case,
and the employees of the labour broker) where an employer has elected
to utilise the services of a labour broker. It does
not prescribe the
use of labour brokers by any employer, or indeed the continued use of
labour brokers where an employer elected
to use one. Nothing in
section 198 precludes a demand that an employer negotiate the use of
labour brokers, or indeed that an employer
desist from using a labour
broker. Equally, section 198 does not preclude an employer
negotiating or indeed agreeing with its employees
not to utilise the
services of labour brokers. It follows, in my view, that the decision
of a commissioner to award such a demand
does not amount to
legislating in the place of the legislature and contrary to what the
legislature has legislated by way of section
198, at the very least
for the reason that such a decision would have no application beyond
Eskom and its unions. Accordingly,
the contention of Eskom that a
demand such as is made in this case amounts to a demand to usurp the
power of the legislature cannot
be sustained.
[6]
With respect to the contention that an arbitrator does not have the
power to set aside administrative acts, the relevant administrative
act being the decision of commissioner Shear, I agree with Eskom in
its submission. However, this is frankly not an issue in this
matter.
I do not understand the unions to make such a proposition or demand,
namely, that commissioner Shardlow must set aside
the ruling of
commissioner Shear. I also do not accept that a ruling in favour of
the demand of the unions, in fact or effect,
sets aside the ruling of
commissioner Shear. In any event, the issue is whether, the demand as
defined and presented to commissioner
Shardlow, and the evidence in
support thereof, is a matter that was the subject of a ruling by
commissioner Shear. From the award
and the record that was before me,
I am unable to find that the issue that was before commissioner
Shear, and in respect of which
his ruling applies, is the same issue
that was before commissioner Shardlow. In the application for leave
to appeal, the applicant
does not point to any facts in the ruling or
record from which it is manifest, however obliquely, that the issue
was the same as
before commissioner Shardlow. The unions demand only
that the commissioner consider the demand and the facts in support
thereof
and that he makes a determination on the facts before him. An
exercise of this power by the commissioner does not, in fact or
effect,
set aside the award of Shear. I am therefore not persuaded
that another court will reasoanbly come to a different decision on
this
aspect of Eskom’s contention.
[7]
The contention that the demand is unlawful is premised on the
following contentions - (i) the demand seeks to restrict Eskom’s
rights as contained in section 22 of the Bill of Rights; (ii) the
demand is illegal for seeking to prohibit the use of labour brokers
which is allowed by law, and which therefore cannot be the subject
matter of interest arbitration; (iii) the demand seeks to prescribe
to employees of labour brokers whom they should be employed by; and
(iv) the demand seeks to force or induce Eskom to breach its
contractual obligations with contracted labour brokers. Suffice to
say there is no merit in any of these contentions. Neither the
common
law, section 22 of the Constitution
[3]
(or any provision of the Bill of Rights for that matter), nor section
198 of the LRA preclude the unions and employers negotiating
the use
of labour brokers.
[8]
Eskom further contends that the demand is not a demand between an
employer and its employees. It is incomprehensible to me how
it could
be contended that the demand is not a matter between an employer and
its employees. I do not understand that the unions
make the demand on
behalf of employees of labour brokers, an issue a commissioner will
have to determine if indeed the unions make
such a demand as appear
to be understood by Eskom. On the review papers, there is no
contention that the persons represented by
the unions are not
employees of Eskom or that the demand is not made on behalf of such
members. It seems to me that it is not difficult
to see the interest
or benefit to the members of the unions employed by Eskom should
Eskom agree to the demand, one such example
being that there will be
no different conditions of employment between employees solely on the
basis that they are employed by
a labour broker or by Eskom directly,
while both perform their services at Eskom. I find that there is no
merit in this contention.
It follows that I am not satisfied that
that another court may reasonably arrive at a different conclusion in
this regard.
The demand for
extension of the bargaining unit
[9]
Eskom contends that:- (i) the demand is incompetent in the face of
the present collective agreements; and (ii) the demand is
unlawful.
[10]
Eskom contends that:- (i) the Recognition Agreement concluded by the
parties in May 2000 which applies to employees in the
“T.A.S.K
grades of T04 to T13”; and (ii) the Conditions of Service for
“T.A.S.K grades T04 to T13/P13”,
preclude the demand of
the unions for the following reasons - (i) the limits of the
bargaining unit are prescribed in the collective
agreement and
therefore falls outside the ambit of issues that may be negotiated;
and (ii) the demand is unlawful as it seeks to
compel third parties
to join and bargain under a Bargaining Unit and is an impermissible
intrusion into employees right of freedom
of association.
[11]
The Collective Agreement referred to sets the terms that govern the
re-negotiation or amendment of the agreement. It contains
no
qualification that a party may not demand an amendment of the
definition of the Bargaining Unit or indeed that a party seeking
an
amendment must first cancel the agreement (which in my view would be
inconsistent with the amendment clause). It seems to me
that it
follows therefore that the Collective Agreement, on its terms, does
not preclude negotiation of the amendment of the Bargaining
Unit,
provided that the demand for re-negotiation is made in accordance
with the provisions of the agreement. Eskom has not contended
that
the unions did not comply with the prescribed procedure.
[12]
Eskom’s submission that I found that the award of Fine SC is
not binding on the parties is incorrect. On the contrary,
I concluded
that the award of Fine SC was based on the facts that were before
him
[4]
, and by implication, if
not expressly, if the relevant facts in the present matter are
different from what they were before Fine
SC, this may or may not
result in a different decision. These are matters that the
commissioner must consider in his determination
of the demand. This
the commissioner did not do and his decision therefore cannot stand.
Eskom has not shown that another court
may reasonably find otherwise.
[13]
Eskom further contends that the demand is unlawful because it seeks
to compel employees to be part of a Bargaining Unit and
thereby
intrudes upon the right to freedom of association and that there is
no evidence that the implicated employees have consented
to
bargaining collectively. I do not agree that the demand is unlawful
for the reason contended by Eskom. In any event, the question
whether
the unions meet the required threshold to succeed in their demand for
a re-definition of the Bargaining Unit is a matter
that the CCMA must
determine on the facts properly placed before it. This has not been
done, quite understandably, in the light
of the approach adopted by
the commissioner. Eskom has not shown that another court may
reasonably arrive as a different decision
on this aspect.
[15]
In the result, I make the following order:
Order
1.
The application for leave to appeal is dismissed.
_____________________
MS
Baloyi
Acting Judge
of the Labour Court of South Africa
[1]
See
Seatlholo and Others v CEPPWAWU and Others
[2016]
ZALCJHB 39 (9 February 2016)
[2]
Act 66 of 1995
[3]
Section 22
provides that “22 Every citizen has the right to choose their
trade, occupation or profession freely. The practice
of a trade,
occupation or profession may be regulated by law.”
[4]
Judgment at
paras
20 and 22-23