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[2017] ZALCCT 3
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Irwin and Johnson Limited v National Certified Fishing and Allied Workers Union (NCFAWU) and Others (C514/2016) [2017] ZALCCT 3 (3 February 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C514/2016
Not
Reportable
In the
matter between:
IRWIN
& JOHNSON
LIMITED
Applicant
and
NATIONAL
CERTIFIED FISHING & ALLIED
WORKERS
UNION
(NCFAWU)
1st Respondent
THE
PERSONS LISTED IN ANNEXURE
“
A”
HERETO
2
nd
to Further
Respondents
Heard:
2 November 2016
Delivered:
3 February 2017
JUDGMENT
RABKIN-NAICKER,
J
[1] This
matter came before me for argument on costs. The parties had entered
into an agreement which was made an order of court
on the 16 of
August 2016 by Tlhotlhalemaje J. The order read in relevant part as
follows:
“
Pending
the outcome of the hearing of the dispute referred to arbitration by
Rabkin-Naicker J in her judgment of 22
April 2016 under
case no: C895/2015 finding that the dispute in question is a dispute
concerning the interpretation of a collective
agreement which the
Applicant has a right to refer to arbitration in terms of section
65(1) (c) as read with
section 24(2)
of the
Labour Relations
Act 66 of 1995
, the Respondents are interdicted and restrained from
participating in the current unprotected strike.”
[2]
Having found that the real issue in dispute between the parties was
the interpretation of a collective agreement in the judgment
referred
to, and should be arbitrated, the order that I gave was that the rule
issued on 15 October 2015 was discharged and that
there was no order
as to costs. I did not include a referral to arbitration in my order.
I note that the founding papers stated
that I referred the matter to
the CCMA in my order.
[3]
Section 24(2)
of the LRA provides that: “(2) If there is a
dispute about the interpretation or application of a collective
agreement, any
party to the dispute may refer the dispute in writing
to the Commission if-
(a)
the collective agreement does not provide for a procedure as required
by subsection (1);
(b)
the procedure provided for in the collective agreement is not
operative;
or
(c)
any party to the collective agreement has frustrated the resolution
of
the dispute in terms of the collective agreement.”
[4] It is
unclear to me why the order by consent makes reference only to the
applicant having a right to refer the matter to arbitration.
Be that
as it may, the dispute was only referred to arbitration by the
applicant on the 2 August 2016 and the matter set down for
arbitration on 19 August 2016. No explanation is provided by the
company as to why it took from May ( when a certificate recording
conciliation had failed was issued) until August 2016, to ask for the
matter to be arbitrated. One can only surmise that given
applicant’s
view that my judgment made it peremptory for the matter to be
arbitrated before a protected strike could take
place, it was in no
hurry to obtain an Award. On the day before the referral, the 1
st
of August 2016, the applicant had issued a lock-out notice in
response to the first respondent’s strike notice served on
the
company on Saturday 30 July 2016. The strike was to commence on 1
August 2016 at 13h00.
[5] The
founding papers contain detailed allegations as to acts of misconduct
by the respondents, including acts of assault and
intimidation on
employees, service providers and clients of the company. The
answering papers do not in my view raise genuine disputes
of fact in
relation to these allegations and it must be accepted that at least
those respondents named in the founding papers were
involved in
unlawful acts after the strike and lock out notices were issued.
[6]
The applicant has sought punitive costs in this application relying
on the judgment of Verulam Sawmills (Pty) Ltd v AMCU &
Others
[1]
.
In that matter which stands to be distinguished in which punitive
costs were awarded, the union was in breach of picketing rules.
As
Mybergh AJ stated:
“
[14]
Reverting to the position locally, while the precise legal basis
upon which a union may be held accountable for the unlawful
conduct of its members is not settled in all instances, where a
picketing rules agreement is in place, the union's legal obligations
and potential liability for a breach thereof arise from the agreement
itself. Notwithstanding the express terms of a picketing
rules
agreement, it seems to me that it is implicit in any such
agreement that a union is obliged 'to take all reasonable
steps' (to
borrow from the words of Van Niekerk J in Tsogo Sun) to ensure
compliance by its members with the terms of the agreement.”
[7]
The principles governing costs set out
in
National Union of Mineworkers v East Rand Gold and Uranium Co Ltd
[2]
per Goldstone JA as to the granting of costs bear repeating:
“
1.
The provision that 'the requirements of the law and fairness' are to
be
taken into account is consistent with the role of the industrial
court as one in which both law and fairness are to be applied.
2.
The general rule of our law that, in the absence of special
circumstances costs follow the event, is a relevant consideration.
However, it will yield where considerations of fairness
require it.
3.
Proceedings in the industrial court may not infrequently be
a part of
the conciliation process. That is a role which is designedly given to
it. Parties, and particularly individual employees,
should not be
discouraged from approaching the industrial court in such
circumstances. Orders for costs may have such a result
and
consideration should be given to avoiding it, especially where there
is a genuine dispute and the approach to the court was
not
unreasonable. With regard to unfair labour practices, the following
passage from the judgment in the Chamber of Mines case
supra at 77G-I
commends itself to me:
'In
this regard public policy demands that the industrial court
takes into account considerations such as the fact that justice
may
be denied to parties (especially individual applicant employees) who
cannot afford to run the risk of having to pay the other
side's
costs. The industrial court should be easily accessible to litigants
who suffer the effects of unfair labour practices,
after all, every
man or woman has the right to bring his or her complaints
or alleged wrongs before the court and should
not be penalised
unnecessarily even if the litigant is misguided in bringing his or
her application for relief, provided the litigant
is bona fide. . .
.'
4.
Frequently the parties before the industrial
court will have an
ongoing relationship that will survive after the dispute has been
resolved by the court. A costs order, especially
where the dispute
has been a bona fide one, may damage that relationship and thereby
detrimentally affect industrial peace and
the conciliation process.
5.
The conduct of the respective parties
is obviously relevant,
especially when considerations of fairness are concerned.
The
aforegoing considerations are in no way intended to be a numerus
clausus. A very wide discretion is given by the Act to the
three
courts with regard to the exercise of their powers and no less in
respect of orders for costs. Such a discretion must be
exercised with
proper regard to all of the facts and circumstances of each case.”
[8]
I accept the union’s submissions that the question of its right
to strike was important to its members. I further accept
that the
parties had different interpretations as to my judgment and order
when I discharged the rule nisi. On the facts before
me it is my view
that neither of the parties have embraced their rights to ensure
orderly collective bargaining. A swift referral
to arbitration of the
interpretation dispute may well have avoided the need for the
application launched on the 16 August 2016.
[9] The
order by agreement dated the 16
th
August 2016 stayed any
strike action pending the arbitration award to be issued arising from
the
section 24
dispute. By that stage, the parties had filed founding
and answering affidavits. As is stated in the replying affidavit, the
replying
affidavit was filed for purposes of arguing costs. The
replying affidavit plus its annexures runs to some 146 pages. I see
no reason why the respondents should pay for same.
[10]
Taking into account the facts and circumstances of this case, and
making clear the court’s displeasure at unlawful conduct
in
pursuance of collective bargaining, I find it just and equitable to
exercise my discretion as regards costs as follows:
Order
1.
The respondents are to pay the applicant’s costs, jointly and
severally, the one paying the other to be absolved, up until
and
including the 16 August 2016.
____________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
L.W. Ackermann instructed by Bowman Gifillan
First
Respondent: Union official
[1]
(2016) 37 ILJ 246
(LC)
[2]
[1991] ZASCA 168
;
1992 (1) SA 700
(A) at p.739