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[2017] ZALCCT 1
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IMATU v CCMA and Others (C344/2016) [2017] ZALCCT 1; [2017] 6 BLLR 613 (LC); (2017) 38 ILJ 2027 (LC) (31 January 2017)

Reportable
Of interest to
other judges
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C
ase
no: C 344/2016
In the
matter between:
IMATU
Applicant
and
CCMA
First Respondent
JOSEPH WILLIAMS N.O.
Second Respondent
MATUSA
Third Respondent
SAMWU
Fourth Respondent
SALGA

Fifth Respondent
STELLENBOSCH
LOCAL MUNICIPALITY

Sixth Respondent
Heard
:
18 November 2016
Delivered
:
31 January 2017
Summary:
Review – organisational rights – LRA
ss 145 and 21(8C) – misconceiving nature of inquiry –
arbitration award
reviewed and remitted.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The
Independent Municipal and Allied Trade Union (IMATU) seeks to have an
arbitration award reviewed and set aside in terms of s
145 of the
LRA.
[1]
In terms of the award, Stellenbosch Local Municipality
[2]
was ordered to grant organisational rights to a rival trade union,
MATUSA.
[3]
[2]
MATUSA
was formed as a breakaway union from the South African Municipal
Workers’ Union (SAMWU). The Registrar of Labour Relations

initially refused to register it after an objection by IMATU. MATUSA
appealed to this Court in terms of s 111(3) of the LRA. The
appeal
was successful. In terms of a judgment handed down on 1 September
2015
[4]
,
the decision of the registrar refusing to register MATUSA was set
aside. The registrar was ordered to register MATUSA as a trade
union
in terms of section 96 of the Labour Relations Act and to issue a
certificate of registration in its name within 14 days
of the order.
He did so.
[3]
IMATU
was granted leave to appeal to the Labour Appeal Court. The appeal
[5]
was argued on 10 November 2016, one week before this matter. The
parties to this dispute agreed that it would be prudent to hold
over
this judgment until the beginning of the 2017 term, as it would be
rendered moot if the LAC upheld the further appeal and
ruled that
MATUSA should be deregistered. However, at the start of the 2017 term
the LAC judgment had not yet been handed down
and I deemed it in the
interests of justice and expeditious dispute resolution to hand down
this judgment in its absence.
Background
facts
[4]
MATUSA sought to obtain organisational
rights at the Stellenbosch Local Municipality (the sixth respondent).
[5]
The
parties could not reach agreement. MATUSA referred a dispute to the
CCMA in terms of s 21(8C) of the LRA. That subsection
[6]
reads:
‘
Subject
to the provisions of subsection (8), a commissioner may in an
arbitration conducted in terms of subsection (7) 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.’
The
arbitration award
[6]
The arbitrator correctly identified the
dispute. Quite simply, he had to decide whether to grant MATUSA
organisational rights at
the Municipality.
[7]
The parties had conducted a verification
exercise. The various unions have the following membership
percentages at the municipality:
7.1
IMATU 29%
7.2
SAMWU 25%
7.3
MATUSA 15%.
[8]
It was common cause that the municipality
had entered into a collective agreement with IMATU and SAMWU. The
South African Local
Government Association (SALGA) has also entered
into a national agreement establishing a 15% membership threshold for
registered
trade unions seeking organisational rights in the local
government sector. That agreement was entered into after this Court
had
ruled that MATUSA should be registered as a trade union in terms
of sections 95 and 96 of the LRA.
[9]
MATUSA now wanted to obtain organisational
rights at Stellenbosch Municipality. It did so by relying on s
21(8C).
[10]
The arbitrator considered the new provision
in s 21(8C) in the following context:
“
The
rationale for the new amendments of section 21 of the LRA is an
attempt to adopt a more holistic approach by broadening/adjusting
the
scope to grant organisational rights to unions that do not enjoy a
majority at the workplace. The amendments give effect to
the
principles of freedom of association in that employees have the right
to choose their representation and that minority unions
can approach
the CCMA where they have not been granted organisational rights. The
amendments are also an attempt to provide for
the recruitment and
protection of workers in atypical forms of employment taking
cognisant of the ideal of decent work.”
[11]
The arbitrator accepted that MATUSA is a
registered trade union and that its representivity at the workplace –
being the municipality,
rather than its representivity nationally –
was 15%.
[12]
In this context, the arbitrator held:
‘
I
have considered [SAMWU’s and IMATU’s] submissions and
whilst I respect that they are bound by the collective agreement

concluded in the Bargaining Council as parties to the council, I’m
not persuaded that I do not have the powers in granting
section 12,
13 and 15 rights to [MATUSA]. I am I have persuaded that section 21
of the LRA and in particular section 21(8A) empowers
commissioners to
grant organisational rights at the workplace when applicant does not
meet the threshold as per the collective
agreement. I’m further
persuaded that Stellenbosch Municipality is an independent entity and
that it constitutes the workplace
and that [SAMWU and IMATU] are not
the majority at the workplace, and thus as per section 21(8A) grant
organisational rights to
[MATUSA] in this matter. I’m further
not persuaded by [SAMWU’s and IMATU’s] submissions that
if section 12, 13
and 15 rights are granted to [MATUSA], that it
would undermine the collective bargaining system at the council
level. [MATUSA]
has not applied for bargaining rights and has applied
for organisational rights which are in line with section 21 of the
LRA, including
giving effect to the principles of freedom of
association in allowing members of a trade union to exercise their
rights as provided
for in the LRA.
I
have considered the submissions by [MATUSA] including those of [SAMWU
and IMATU] and decided that as per section 21(8A-C), that
despite the
threshold agreement that was concluded in the Bargaining Council and
that the new amendments make provision for a Commissioner
to granting
organisational rights to a minority union who has a significant
interest in the workplace [
sic
]. I do find that [MATUSA] has a
significant interest in the workplace with a 15% membership at the
Stellenbosch Municipality and
that it would be prudent to granting
[MATUSA] organisational rights in terms of section 12, 13 and 15.
And, in addition, these
rights will also be subject to the
submissions that [the three trade unions] made to me in the
arbitration hearing. The [Municipality]
shall deduct and pay over
union levies to [MATUSA] commencing from 15
th
day of the
new month together with a schedule of deductions made to the union as
per section 13 of the Act.’
Review
grounds
[13]
Mr
Myburgh
argued that the Commissioner had
misconceived the nature of the enquiry. He was tasked with having to
decide whether MATUSA should
be granted organisational rights,
despite not having met the threshold of representivity established in
the national threshold
agreement. He also failed to recognise that
the operation of section 21(8C) is “subject to the provisions
of subsection (8)”,
and thus did not undertake the enquiry
envisaged by that subsection.
Evaluation
/ Analysis
[14]
MATUSA’s quest for organisational
rights must be considered in the context of the LRA and of the
collective bargaining regime
in the local government sector.
[15]
The current parties to the South African
Local Government Bargaining Council (SALGBC) are SALGA (representing
the employers); and
IMATU and SAMWU. They have agreed in the
Council’s constitution that another registered trade union –
such as MATUSA
– may be admitted as an additional party to the
Bargaining Council “provided… that such trade union has
a membership
equivalent to not less than 15%… of the total
number of employees within the scope of the Council”.
[16]
On 9 September 2015 the parties to the
Bargaining Council concluded a main collective agreement for the
period 1 July 2015 to 30
June 2020. The main agreement includes a
threshold agreement for the purpose of organisational rights,
confirming that threshold
as 15%. It concludes that any registered
trade union with fewer members than the threshold of 15% “will
not qualify for any
rights set out in sections 12, 13 and 15 of the
Act”.
[17]
As Mr
Myburgh
pointed out in his argument, the whole of section 21(8C) – in
terms of which MATUSA sought organisational rights at the
municipality – is “subject to the provisions of
subsection (8)”. Section 21(8C) empowers the commissioner to
grant organisational rights to a trade union that does not meet the
thresholds of representativeness established by the main agreement
if
the trade union represents “a significant interest, or a
substantial number of employees, in the workplace”. But
those
considerations are still “subject to” the provisions of
subsection (8) as a whole. And that subsection includes
the following
considerations:
“
(8)
If the unresolved dispute is about whether or not the registered
trade union is a representative trade union, the commissioner—
(a)
must seek—
(i)
to minimise the proliferation of trade
union representation in a single work-place and, where possible, to
encourage a system of
a representative trade union in a work-place;
and
(ii)
to minimise the financial and
administrative burden of requiring an employer to grant
organisational rights to more than one registered
trade union;
(b)
must consider—
(i)
the nature of the workplace;
(ii)
the nature of the one or more
organisational rights that the registered trade union seeks to
exercise;
(iii)
the nature of the sector in which the
workplace is situated;
(iv)
the organisational history at the
work-place or any other work-place of the employer; and
(v)
the composition of the work-force in the
workplace taking into account the extent to which there are employees
assigned to work
by temporary employment services, employees employed
on fixed term contracts, part-time employees or employees in other
categories
of non-standard employment.”
[18]
In this case, the arbitrator based his
decision to grant MATUSA organisational rights solely on his finding
that the union had a
“significant interest” in the
workplace, i.e. the Municipality. He had no regard to the other
considerations set out
in subsection (8).
[19]
I agree with Mr
Myburgh
that, properly interpreted, the
requirements of s 21(8C)(b) of “a significant interest or a
substantial number of employees”
serves as a basis for a
commissioner to override a threshold agreement; but it does not,
without more, serve as a basis to grant
a minority union
organisational rights. The commissioner may only grant those rights
(set out in ss 12, 13 and 15) if he or she
has considered the other
factors set out in s 21(8).
[20]
That means that the commissioner in this
case should, amongst other things have considered the following
factors:
20.1
He should have sought to minimise the
proliferation of trade union representation in a single workplace,
i.e. the Stellenbosch Municipality
[s 21(8)(a)(i)];
20.2
He should have sought to minimise the
financial and administrative burden on the Municipality to grant
organisational rights to
a third trade union [s 21(8)(a)(ii)];
20.3
He should have considered the nature of the
workplace, being a single municipality within the local government
sector;
20.4
He should have considered the nature of the
organisational rights that MATUSA seeks to exercise; for example, the
deduction of trade
union subscriptions in a workplace where there is
already an agency shop agreement in place;
20.5
He should have considered the nature of the
local government sector;
20.6
He should have considered the
organisational history at the workplace, e.g. the Municipality’s
and SALGA’s agreements
with IMATU and SAMWU; and
20.7
He should have considered the composition
of the workforce.
[21]
The arbitrator considered none of these
factors. He was compelled to do so by s 21(8) read with s 21(8C). His
failure to do so means
that he misconceived the nature of the
enquiry. That is a reviewable irregularity.
[22]
IMATU led evidence at the arbitration on
the factors that the commissioner had to consider in terms of s
21(8). It also addressed
those factors in its heads of argument. Yet
the arbitrator failed to consider those factors.
[23]
One of the issues that IMATU raised
pertinently is that MATUSA members would continue to be bound by the
agency shop agreement.
Yet the commissioner failed to consider that
factor at all.
[24]
In
Herholdt
[7]
the Supreme Court of Appeal found that a commissioner commits a gross
irregularity if he, through an error of fact or law, misconceived
the
whole nature of the enquiry, and thus undertook the enquiry in the
wrong manner. And where a commissioner misconceives the
nature of the
enquiry (and thus commits a gross irregularity) this, in itself, is a
basis for review, without having to consider
the reasonableness of
the outcome.
[8]
[25]
In
Xstrata
[9]
the LAC applied
Herholdt
as follows:
“
In
Herholdt v Nedbank Ltd
,
the Supreme Court of Appeal held that a review of an award is
permissible in terms of section 145 of the LRA if the defect in
the
proceedings falls within one of the grounds in section 145(2)(a) of
the LRA, including the ground of “gross irregularity”
in
section 145(2)(a)(ii). For a defect in the conduct of the proceedings
to amount to such a gross irregularity, the arbitrator
must have
misconceived the nature of the enquiry or arrived at an unreasonable
result. In this case, the arbitrator failed to grasp
the meaning of
the term “not reasonably practicable”, took irrelevant
considerations into account and ignored relevant
factors. His
interpretation constituted a material error of law resulting in a
misconception of the enquiry which prevented a fair
and proper
determination of the issue of reasonable practicability.”
[26]
As appears from the commissioner’s
ratio decidendi
quoted in his award in para [12] above, he did not consider the
factors and considerations listed in sections 21(8)(a) and (b).
He
decided that the mere fact that the parties to the threshold
agreement had been given an opportunity to participate in the
arbitration proceedings and that MATUSA, in his view, represented a
“significant interest” in the workplace was in itself

sufficient basis to grant it organisational rights.
[27]
In doing so, the Commissioner misconceived
the nature of the enquiry and undertook the enquiry in the wrong
manner. He did not ask
himself the questions he ought to have asked
in order to decide the matter, taking into account the peremptory
factors set out
in subsection (8).
Conclusion
[28]
The Commissioner’s failure to take
into account the peremptory factors set out in s 21(8)(a) and (b)
makes the award reviewable.
[29]
The award should be set aside. However,
this court is not in a position to substitute its decision for that
of the Commissioner.
Another commissioner will have to consider
afresh the evidence and submissions of all three trade unions and the
Municipality before
applying his or her mind to all the factors set
out in s 21(8) and s 21 (8C).
[30]
A costs award is not appropriate in law or
fairness. The dispute has to be considered afresh and MATUSA merely
sought to defend
its rights arising from the arbitration award in
these proceedings.
Order
[31]
I therefore make the following order:
31.1
The arbitration award under case number
WECT 15859-15 dated 22 March 2016 is reviewed and set aside.
31.2
The dispute is remitted to the CCMA for a
new arbitration before a Commissioner other than the second
respondent.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
Anton Myburgh SC
instructed by Savage, Jooste &
Adams Inc.
THIRD RESPONDENT:
(MATUSA)
Adrian Montzinger
instructed by Hannes Pretorius
Bock & Bryant.
[1]
Labour Relations Act 66 of 1995
.
[2]
The sixth respondent.
[3]
The Municipal & Allied Trade Union of South Africa (the third
respondent). The South African Municipal Workers Union (SAMWU)
and
the South African Local Government Association (SALGA) were cited as
the third and fourth respondents respectively. Only
MATUSA opposes
the review application.
[4]
Municipal
and Allied Trade Union of South Africa (MATUSA) v Crouse N.O and
Another
[2015] ZALCCT 56;
[2015] 11 BLLR 1172
(LC); (2015) 36
ILJ
3122
(LC).
[5]
CA 20/15.
[6]
Inserted by Act 6 of 2014.
[7]
Herholdt v Nedbank Ltd
(2013) 34
ILJ
2795 (SCA) paras 10, 19 and 21.
[8]
Herholdt
para
25;
Head of Department of
Education v Mofokeng
(2015)
36
ILJ
2802 (LAC) para 33;
Toyota
SA Motors (Pty) Ltd v CCMA
(2016)
37
ILJ
313 (CC) para 118.
[9]
Xstrata South Africa (Pty)
Ltd (Lydenburg Alloy Works) v NUM obo Masha
[2016]
ZALAC 25
; (2016) 37
ILJ
2313 (LAC) para 12 [per Murphy AJA].