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[2017] ZALCCT 13
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NUM and Another v Sylco Plant Hire Association and Others (C390/2016) [2017] ZALCCT 13; (2017) 38 ILJ 2346 (LC) (25 April 2017)
REPUBLIC
OF SOUTH AFRICA
Reportable
Of
interest to other judges
the labour court of South
Africa, cape town
judgment
case
no: C 390/2016
In
the matter between:
NUM
BCCEI
First applicant
Second applicant
and
SYLCO
PLANT HIRE (PTY) LTD
First respondent
CONTRACTORS
PLANT HIRE ASSOCIATION
CCMA
D
I K WILSON N.O.
Second respondent
Third respondent
Fourth respondent
Heard
:
2 March 2017
Delivered:
25 April 2017
SUMMARY:
Demarcation dispute – review.
Commissioner found that company does not fall within jurisdiction of
Bargaining Council for
Civil Engineering Industry. NUM contended that
it does. LRA ss 62 and 145. Award not reviewable.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The applicant is the National Union of Mineworkers. It seeks to have
an arbitration award set aside in a demarcation dispute.
The
arbitrator, Mr D I K Wilson (the fourth respondent), found that the
first respondent, Sylco Plant Hire (Pty) Ltd, does not
fall within
the jurisdiction of the Bargaining Council for the Civil Engineering
Industry (the second applicant).
[2]
Sylco opposes the application. It agrees with the arbitrator’s
finding. The Bargaining Council and the Contractors Plant
Hire
Association (the second respondent) – both of which are legally
represented – abide the Court’s decision,
although the
Council had supported the application until a day before the hearing.
Background
facts
[3]
NUM has
members who work for Sylco. The union referred a dispute to the CCMA
(the third respondent) in terms of s 62(1) of the LRA
[1]
contending that the activities of Sylco fall within the jurisdiction
of the BCCEI and that it is obliged to comply with the collective
agreements concluded in that Bargaining Council. The Council
supported the union’s contention. Sylco and the Contractors
Plant Hire Association dispute it.
Arbitration
award
[4]
The Commissioner heard the evidence of three witnesses for NUM, one
for the CPA and on for Sylco. He concluded that Sylco’s
activities do not fall within the jurisdiction of the BCCEI. He
ordered NUM to pay Sylco’s costs in the amount of R10 000.
NEDLAC approved the award.
[5]
The Commissioner noted that NUM had limited its case to only the
plant hire operators employed by Sylco and hired out with equipment
to the civil engineering industry.
[6]
The 17 identified plant hire operators are employed by Sylco. Sylco
hires out equipment to other businesses. The plant operators
usually
operate the equipment on the other businesses’ premises, e.g.
bulldozers, excavators, front end loaders etc. Those
businesses are
involved in a variety of industries, including construction, civil
engineering, agriculture, mining and film.
[7]
The Commissioner identified the main issue as a demarcation dispute,
i.e. whether the employees and employer fall within the
jurisdiction
of the Bargaining Council. In order to make that determination he had
to consider the definition of the industry in
the Council’s
certificate of registration together with the activities of the
employer and employees. If those activities
fall mainly within the
definition of the industry, the employer and employees fall within
the jurisdiction of the Council.
[8]
The
Commissioner had regard to relevant case law. In
R
v Sidersky
[2]
the court held that the character of a business was determined not by
the occupation in which the employees were engaged but by
the nature
of the enterprise in which the employer and employees were associated
for a common purpose. Following this reasoning,
the Labour Court held
in
Coin
Security
[3]
:
“
Once
the character of the industry is determined, all employees are
engaged in that industry. The precise work that each person
does is
not significant”.
[9]
The
arbitrator also had regard to
Greatex
Knitwear
[4]
where it was held that an employer may be engaged in more than one
industry. Turning to the facts of this case, he noted that it
was
common cause that some of the activities performed by the plant
operators, while working for clients in the civil engineering
industry, fall within the definition of the industry (for example
excavation, earthworks etc. conducted in the process of work
of a
civil engineering character). But, he said, “the question in
this case is not so much whether the work performed falls
within the
definition, but rather whether the [company] and its employees are
associated for the purpose of carrying out such work”.
[10]
The arbitrator did not accept the argument of the Council and the NUM
that the digging of trenches, planting of fence poles
or bush
clearing on a farm falls within the definition of civil engineering.
He relied, amongst other things, on the definition
of a “civil
engineer” in the Collins English Dictionary as “a person
qualified to design, construct and maintain
public works, such as
roads, bridges, harbours etc.”.
[11]
Much of the
arbitrator’s finding relied on the case in
Richards
Rentals.
[5]
In that case, the company hired out tipper trucks and drivers to the
construction and mining industries. The National Bargaining
Council
for the Road Freight Industry claimed that its business fell within
that industry’s definition, comprising “the
transportation of goods for hire or reward by means of motor
transport in the Republic of South Africa”. The “transportation
of goods” was further defined, somewhat circuitously, as
follows:
“
For
the purposes hereof the ‘transportation of goods’ means
the undertaking in which emplo00 The transportation
of goods by
means of motor transport;”.
[12]
The arbitrator in
Richards Rentals
compared the company’s
activities to the industry definition and found that it did not fall
within that definition. Its main
business was plant hire, not the
transportation of goods.
[13]
On review,
the Labour Court upheld the demarcation award. It found that the
commissioner had not applied an unduly restrictive approach
in
interpreting the industry definition. And that judgment was upheld on
appeal.
[6]
[14]
The arbitrator in this case found that the facts before him bore a
significant resemblance to those in
Richards Rentals
, with the
major difference being that the whole of that company’s
business comprised the hiring out of trucks, whereas in
this case
plant hire to the civil engineering industry comprises only a small
part of Sylco’s business. As in
Richards Rentals
, he was
satisfied that Sylco and its plant operators are not associated for
the purpose of conducting work of a civil engineering
character, but
only for the purpose of hiring out plant and equipment to a variety
of clients. It has no say in what the client
does with the equipment,
once delivered. It is not engaged in the civil engineering industry
and it does not fall within the jurisdiction
of the BCCEI.
[15]00
Given that he had specifically referred the parties to
Richards
Rentals
at an
in limine
hearing and ruling, and the NUM
still proceeded with the arbitration, the arbitrator ordered the NUM
to pay the costs of the arbitration.
Grounds
of review
[16]
Both the NUM and the BCCEI challenged the award on review. The BCCEI
withdrew shortly before the hearing of this application
but after all
the pleadings had closed.
[17]
The NUM raised the following grounds of review:
17.1
The commissioner limited the applicants’ case as regards the
nature of the enterprise (Sylco).
17.2
The commissioner held that civil engineering work is limited to
public works.
17.3
The commissioner found that ‘housing or supports for plant,
machinery or equipment’ in the definition
relates to
construction.
17.4
The commissioner found that paragraph (d) of the definition is not
applicable.
17.5
Whether
Richards Rentals
is on point.
17.6
The commissioner failed to give consideration to policy
considerations.
17.7
The activities of Sylco are covered by the industry definition.
17.8
The commissioner should have taken other relevant considerations into
account.
17.9
The commissioner should not have ordered NUM to pay costs.
[18]
In its supplementary heads of argument delivered a week before the
hearing, the union’s attorneys further submitted that
the
arbitrator committed a gross error of law by applying the incorrect
legal test to determine whether Sylco’s business
falls within
the sector and area of the Bargaining Council.
Evaluation
[19]
Before dealing with the specific review grounds, I will briefly
consider the legal framework.
[20]
The legal principles regarding demarcation awards have largely been
crystallised in the LRA and in case law. The starting point
is s 62
of the LRA:
“
Section
62 Disputes about demarcation between sectors and areas
(1)
Any registered trade union, employer, employee, registered employers’
organisation or council that has a direct or indirect
interest in the
application contemplated in this section may apply to the Commission
in the prescribed form and manner for a determination
as to—
(a)
whether any employee, employer, class of employees or class of
employers, is or was employed or engaged in a sector or area;
(b)
whether any provision in any arbitration award, collective agreement
or wage determination made in terms of the Wage Act is
or was binding
on any employee, employer, class of employees or class of employers.
(2)
If two or more councils settle a dispute about a question
contemplated in subsection (1)(a) or (b), the councils must inform
the Minister of the provisions of their agreement and the Minister
may publish a notice in the Government Gazette stating the
particulars of the agreement.
(3)
In any proceedings in terms of this Act before the Labour Court, if a
question contemplated in subsection (1)(a) or (b) is raised,
the
Labour Court must adjourn those proceedings and refer the question to
the Commission for determination if the Court is satisfied
that—
(a)
the question raised—
(i)
has not previously been determined by arbitration in terms of this
section; and
(ii)
is not the subject of an agreement in terms of subsection (2); and
(b)
the determination of the question raised is necessary for the
purposes of the proceedings.
(3A)
In any proceedings before an arbitrator about the interpretation or
application of a collective agreement, if a question contemplated
in
subsection (1)(a) or (b) is raised, the arbitrator must adjourn those
proceedings and refer the question to the Commission if
the
arbitrator is satisfied that—
(a)
the question raised—
(i)
has not previously been determined by arbitration in terms of this
section; and
(ii)
is not the subject of an agreement in terms of subsection (2); and
(b)
the determination of the question raised is necessary for the
purposes of the proceedings.
(4)
When the Commission receives an application in terms of subsection
(1) or a referral in terms of subsection (3), it must appoint
a
commissioner to hear the application or determine the question, and
the provisions of section 138 apply, read with the changes
required
by the context.
(5)
In any proceedings in terms of this Act before a commissioner, if a
question contemplated in subsection (1)(a) or (b) is raised,
the
commissioner must adjourn the proceedings and consult the director,
if the commissioner is satisfied that—
(a)
the question raised—
(i)
has not previously been determined by arbitration in terms of this
section; and
(ii)
is not the subject of an agreement in terms of subsection (2); and
(b)
the determination of the question raised is necessary for the
purposes of the proceedings.
(6)
The director must either order the commissioner concerned to
determine the question or appoint another commissioner to do so,
and
the provisions of section 138 apply, read with the changes required
by the context.
(7)
If the Commission believes that the question is of substantial
importance, the Commission must publish a notice in the Government
Gazette stating the particulars of the application or referral and
stating the period within which written representations may
be made
and the address to which they must be directed.
(8)
If a notice contemplated in subsection (7) has been published, the
commissioner may not commence the arbitration until the period
stated
in the notice has expired.
(9)
Before making an award, the commissioner must consider any written
representations that are made, and must consult NEDLAC.
(10)
The commissioner must send the award, together with brief reasons, to
the Labour Court and to the Commission.
(11)
If the Commission believes that the nature of the award is
substantially important, it may publish notice of the award in the
Government Gazette.
(12)
The registrar must amend the certificate of registration of a council
in so far as is necessary in light of the award.”
[21]
In this case, the award was sent to NEDLAC in terms of s 62(9) and
NEDLAC approved it.
[22]
In
NBCRFI
v Marcus NO
[7]
it was held that due deference ought to be paid to a commissioner
making a demarcation award. In demarcation disputes there
will be,
more often than not, no single correct judgment and a wide range of
approaches and outcomes is inevitable. A reviewing
court should
therefore interfere only in cases where the boundary of
reasonableness is crossed. Furthermore, a demarcation is provisional
since section 62(9) of the LRA requires a commissioner to consult
with NEDLAC before making an award. The case for judicial deference
is all the more compelling in these circumstances.
[8]
[23]
And in
Coin
Security (Pty) Ltd v CCMA
[9]
it was noted that the character of an industry (or sector) is
determined not by the occupation of the employees engaged in
the
employer’s business but by the nature of the enterprise in
which the employer and employees are engaged. Once the character
of
the industry is determined, all employees are deemed to be engaged in
that industry. However, it is possible for the same employer
to be
engaged in two or more industries at the same time.
[24]
The
dicta
in
these cases were endorsed by the LAC in
SAMWU
v Syntell (Pty) Ltd
[10]
.
[25]
It is
against those legal principles that the grounds of review must be
considered, as well as the test for review in
Sidumo
[11]
and
Herholdt
[12]
.
Commissioner
limited applicants’ case
[26]
NUM complains that the Commissioner limited its case to the 17
operators working on the plant and equipment that Sylco hires
out,
instead of all Sylco’s employees.
[27]
But that limitation was not unreasonable. The Commissioner explains
it in some detail:
“
At
the
in limine
hearing prior to arbitration, Mr Luzipo, a union
official representing the [NUM] at that time, conceded that its case
related only
to the plant operators hired out with equipment to the
civil engineering industry. This concession was in line with the
BCCEI’s
communications with the respondent in which it noted
that it sought registration only in respect of operators accompanying
the
equipment hired out. I am satisfied that the applicant is bound
by this concession, which was made at a hearing specifically held
to
deal with preliminary issues and to clarify the issues in dispute.
The
in limine
ruling issued, setting out the issues in
dispute, is akin to the minute of a pre-arbitration conference and is
binding on the parties.
Respondent would have prepared for
arbitration accordingly. I am therefore limiting my enquiry to the
question of whether the plant
operators (agreed to be 17 in number)
fall within the jurisdiction of the BCCEI.”
[28]
The Council also limited its allegation that employees fell within
his jurisdiction to plant operators. In an email to Sylco
on 29 May
2015, its General Secretary summarised its position as follows:
“
It
was brought to the council’s attention that Sylco Plant Hire,
hire plant with operators
, to construction companies in the
civil engineering industry and this made registration compulsory.
However, if Sylco hired plant
or equipment to companies in the civil
industry
without an operator
, they will not be liable for
registration. Registration is therefore only with regard to the
employees that operate the plant which
was supplied to the client.”
[29]
In a letter dated 9 June 2015, the General Secretary reiterated that:
“
The
registration is only with regards to machinery hired to the civil
engineering industry with an operator. (The Council’s
agreement’s [
sic
] will therefore only apply to the
machine operators and not to other staff and only to those hired to
the civil engineering industry.)”
[30]
The union’s referral form to the CCMA is similarly limited. It
alleges that:
“
The
company is operating in the hiring of plants, though subcontracting
in other companies in the engineering sector.”
[31]
It is against that background that the union expressly limited the
ambit of its dispute at the
in limine
hearing on 13 October
2015, resulting in the commissioner’s ruling.
[32]
It was not
unreasonable of the Commissioner to hold the union to that ruling. As
Mr
Leslie
(for Sylco) pointed out in his argument, the decision of this court
in
Solomon
v CCMA
[13]
is on point. In that matter, the Commissioner conducted an exercise
at the commencement of the arbitration hearing in order to
clarify
and narrow the issues in dispute between the parties. On review, the
Labour court held that the Commissioner should have
confined himself
to those issues:
[14]
“
I
am not satisfied that the process of reasoning adopted by the
arbitrator is rationally justifiable or that, having so narrowed
the
issues, he stuck to the issues as limited, either in regard to the
evidence which he allowed or in regard to the issues on
which he
pronounced.”
[33]
The
arbitrator also acted reasonably by finding that the ruling is akin
to the minute of a pre-arbitration conference and is binding
on the
parties. In
Fila-Matrix
(Pty) Ltd v Freudenberg
[15]
the company sought to resile from a limitation of issues reached at a
pre-trial conference. Harms JA rejected it:
“
To
allow a party, without special circumstances, to resile from an
agreement deliberately reached at a pre-trial conference would
be to
negate the object of rule 37 which is to limit issues and to curtail
the scope of the litigation. If a party elects to limit
the ambit of
his case, the election is usually binding. No reason exists why the
principal should not apply in this case.”
[34]
Although a demarcation hearing should not be equated to a hearing in
the High Court, it was not unreasonable of the arbitrator
to hold
that similar principles apply in this case. There were no special
circumstances to find that the union should not be held
to its own
limitation of its case.
[35]
The dictum
in
Fila-Matrix
was cited with approval by Zondo JP in
Driveline
Technologies
[16]
when he confirmed the ordinary principal that limitation of a party’s
case in pre-trial proceedings is binding, unless exceptional
circumstances exist. In that case, the court held that the union had
not, through the conclusion of a pre-trial minute dealing
with one
cause of action, abandoned its right to rely on another, distinct
cause of action in future. But in this case, when the
union limited
the issues in dispute before the Commissioner, its representative was
fully aware of Sylco’s different business
activities. With that
knowledge, the union limited its case to the position of the plant
operators.
[36]
This ground of review fails.
Civil
engineering confined to public works?
[37]
The Commissioner noted that it was common cause that some of the
activities performed by the plant operators, while working
for
clients in the civil engineering industry, fall within the definition
of the industry. But he did not accept the argument that
excavation,
earthworks et cetera carried out on farms or where ever else also
comprised work of a civil engineering nature. It
is in that context
that he commented that “work of a civil engineering character”
is not defined in industry definition,
but is “limited to
public works”, referring to the definition of “civil
engineer” in the Collins English
Dictionary as “a person
qualified to design, construct and maintain public works, such as
roads, bridges, harbours etc.”
[38]
I agree with the union that it may well be that civil engineering
cannot be confined to public works, but occurs in respect
of both
private and public works. Does that make the award reviewable? I
think not.
[39]
The award must be viewed holistically. The finding that Sylco and its
employees could not be said to be “associated for
the purposes
of carrying out work of a civil engineering character”, is not
unreasonable, given the evidence before the Commissioner.
The
overriding nature of its plant hire business is to provide a rental
service to clients across a range of industries. And only
a small
part of that business falls within the civil engineering industry
when the operators do that type of work for a client
to whom Sylco
had rented its equipment.
Definition
relating to construction
[40]
The Commissioner rejected the union’s contention that Sylco’s
activities were included in the
industry definition of “housing
or supports for plant, machinery or equipment”. On review, the
union argues that that
was unreasonable.
[41]
In his evaluation of that argument, the Commissioner found that, on a
proper reading of section (a) of the definition, it related
to
the
construction of
housing or supports etc. Sylco is not involved in
construction activities. That does not appear to me to be an
unreasonable reading
of the definition. Sylco and its employees are
not engaged in “work of civil engineering character normally
associated with
the civil engineering sector”.
Is
paragraph (f) of definition applicable?
[42]
The industry definition defines it as “the civil engineering
industry in which employers… and employees are associated
for
the purposes of carrying out work of civil engineering character
normally associated with the civil engineering sector and
includes
such work in connection with any one or more of the following
activities: “and then set out various examples in
paragraphs
(a) – (d). It further includes, in paragraph (f):
“
The
making, repairing, checking or overhauling of tools, vehicles, plant,
machinery or equipment in workshops which are conducted
by employers
engaged in any of the activities referred to in subclauses (a) to (f)
inclusive.”
[43]
The activities in clause (f) must therefore take place within the
civil engineering industry. The union argued that Sylco has
two
workshops on its premises and that it derived most of its income from
the sale of used equipment. It argued that, because equipment
is
repaired and maintained in its workshops before it could be hired or
sold, it fell within the definition in clause (f).
[44]
The Commissioner reasonably argued that, having found that Sylco is
not involved in civil engineering activities as defined
in subclauses
(a) to (f), it would be nonsensical to consider clause (f) on its own
and it was not applicable. That finding is
not so unreasonable that
no other arbitrator could have come to a similar finding.
Richards
Rentals on point?
[45]
The bulk of
the arbitrator’s award was based on
Richards
Rentals
[17]
,
which
he considered to be on point. The union argues on review that it
constitutes a material error of fact and law.
[46]
I disagree.
In that case, the company hired out tipper trucks and drivers to
clients in the mining and construction industry:
[18]
“
The
trucks are hired out, with a qualified driver, at a flat rate, for an
agreed period, with the cost of the driver included in
the flat rate
charged.… The [company’s) employees, the drivers,
transport the goods, on the instructions of the client.
…
“…
It
was the clients who engaged in the activity of transporting the
material, making use of the truck and driver supplied by [ Richards
Rentals]. The fact that [the company] supplied a driver was not
relevant – it was an arrangement derived solely from the
requirement that the tipper trucks had necessarily to be driven by
specially trained drivers with special permits and certification.”
[47]
In this
case, Sylco also hires out specialist equipment (along with an
operator) for hire at a flat rate. The fact that the operator
is
supplied by Sylco is purely incidental to its primary business, i.e.
hiring art plant and machinery. Sylco and its employees
are not
associated for the purpose of the civil engineering industry. The
correct enquiry in a demarcation dispute focuses on the
purpose of
the association between the employer and employees in question, and
not the alleged association between the employer’s
employees
and the employer’s clients. It was entirely reasonable of the
Commissioner to consider himself bound to the authority
of the LAC in
Richards
Rentals
in this regard. He was satisfied that Sylco and its plant operators
“are not associated for the purpose of conducting work
of a
civil engineering character, but rather for the purpose of hiring art
plant and equipment to a variety of clients.”
In doing so, he
applied the correct test as set out by the LAC in
Richards
Rentals
[19]
:
“
The
court
a quo
correctly found that the appellant, by arguing
that it was sufficient if the third respondent’s employees were
merely associated
with the activities of transportation, was
attempting to incorporate the third respondent into the jurisdiction
of the Council
by focusing on the association between the employees
and the clients of the third respondent instead of correctly looking
at the
third respondent and its employees and thus whether it’s
employees were associated with the transportation of goods. The court
a quo correctly found that since the activity of hiring art plant and
vehicles for rental is not contemplated by the industry definition,
the third respondent’s business activities fell outside the
ambit of that definition.”
[48]
The
Commissioner’s conclusion in this regard is entirely
reasonable. This was not a case where the employer and its employees
are involved in more than one industry, such as was the case in
KWV
[20]
or
Golden
Arrow.
[21]
Policy
considerations
[49]
The
Commissioner had regard to the reasoning in
Coin
Security
[22]
that additional considerations need to be borne in mind by the person
making a demarcation award in light of the socio economic
objectives
of the LRA and its objectives in establishing and promoting a
centralised system of orderly collective bargaining at
sectoral
level. That requires the arbitrator to extend the enquiry, where
appropriate, beyond mechanistic comparison of jobs and
industry
activities to a second phase involving a consideration of collective
bargaining practices and structures and socio-economic
considerations. In this case he was satisfied that Sylco does not
fall under the jurisdiction of the BCCEI and considered that
there
was no purpose in taking the investigation further.
[50]
That approach does not appear to me to be unreasonable. Having found
that, on the facts, Sylco’s activities do not fall
under the
jurisdiction of the council, it would serve little purpose to
consider the social economic factors implicated if it had.
Those
factors could not, on the facts of this case, play a decisive role
like it would in a case where it might sway the decision
maker one
way or the other.
Sylco’s
activities covered by industry definition?
[51]
The Commissioner’s finding that the balance of Sylco’s
business activities did not fall within the jurisdiction
of the
Bargaining Council cannot be said to be unreasonable.
[52]
The evidence was that the majority of its transport activities
involve transporting aggregate (sand, stone and ration dust)
from
quarries to concrete batching plants for one customer, Megamix. This
comprises 90% of Sylco’s transport income. Those
truck drivers
are in no way engaged in the civil engineering industry. The only
truck driver called testified by the union confirmed
that he never
carried loads to a civil engineering site.
[53]
The balance of Sylco’s transport work involves moving plant and
shipping containers to and from clients across a range
of industries.
This comprises about 3% of its total income. On the fact, it was not
unreasonable to hold that its transport activities
do not fall within
the Council’s registered scope.
[54]
The sale of second-hand plant and equipment had become Sylco’s
primary source of income (43% of its total income) and
its core
business. That is self-evidently not with in the civil engineering
industry.
[55]
It also hires out shipping containers used as storage and for offices
as well as spaza shops. There is no evidence to suggest
that this
falls within the civil engineering industry.
[56]
On the evidence as a whole, Sylco and its employees could not be said
to be “associated for the purposes of carrying
out work of
civil engineering character” as required by the industry
definition. In fact they are associated for the purpose
of carrying
out a service, namely, a hiring or rental service to clients across a
range of industries. The conclusion reached by
the Commissioner is
not is not so unreasonable that no other Commissioner could have come
to the same conclusion. And in demarcation
disputes this court should
defer to the decision maker, more so than in other reviews.
Other
relevant considerations
[57]
The union finally argued that, “although not decisive”,
the fact that other companies engaged in plant hire voluntarily
registered with the BCCEI ought to have been taken into account. But
the Commissioner reasonably found that there was no evidence
as to
the business activities of those businesses and that he could not
draw any inference from the registration of those businesses.
[58]
The fact that the NUM had organised that Sylco without resistance
could similarly not turn the company’s factual activities
into
activities that fell within the jurisdiction of the Council. Neither
could the fact that there was no other bargaining council
contending
that Sylco’s activities fell within its jurisdiction.
Arbitration
costs
[59]
The award of costs fell within the Commissioner’s
discretion. In deciding that the union had to pay Sylco’s costs
–
limited to R6000 for the first day and R4000 rate for the
second day of arbitration – the Commissioner reasonably
exercised
that discretion. He took into account that he had
specifically referred the parties to
Richards Rentals
in the
in limine
ruling. Despite that, it chose to proceed to
arbitration despite its limited prospects, putting the company to
considerable cost
in defending the matter. That is not an
unreasonable exercise of his discretion.
Conclusion
[60]
The award is not reviewable.
[61]
With regard to costs, I take into account that there is an ongoing
relationship between the parties.
[62]
Despite that, Mr
Leslie
urged me to award costs in favour of
Sylco. That request must also be considered in the context where the
union asked for costs
to be paid by “any respondent who opposes
the application”; and where the Bargaining Council (the second
applicant)
only withdrew on the day before the hearing.
[63]
As set out above, much of the demarcation award was based on the
binding authority of this Court and of the LAC in
Richards
Rentals
. The award was a reasonable one. The applicants were well
aware of that authority and their attempts to distinguish it were
unsuccessful.
The matter should have ended at arbitration. In those
circumstances, the applicants should pay the costs of the first
respondent,
who had little choice but to oppose the application for
review. The Bargaining Council opposed the application up until the
day
before the hearing. It should bear the costs necessitated by its
opposition up until that date.
Order
[64]
I therefore make the following order:
64.1
The application for review is dismissed.
64.2
The applicants are ordered to pay the first respondent’s costs,
jointly and severally.
64.3
The costs to be paid by the second applicant must exclude the costs
of the hearing on 2 March 2017.
_______________________
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
FIRST APPLICANT:
Reynaud Daniels and Tapiwa Ralehoko of
Cheadle Thompson &
Haysom.
SECOND
APPLICANT:
Hugo Pienaar
of Cliffe Dekker Hofmeyr.
FIRST
RESPONDENT: Graham Leslie
Instructed by Harmse
Kriel attorneys.
SECOND
RESPONDENT: Knowles Hussain Lindsay Inc.
[1]
Labour
Relations Act 66 of 1995.
[2]
(1928)
TPD 109.
[3]
Coin
Security (Pty) Ltd v CCMA
[2005]
7 BLLR 672 (LC).
[4]
Greatex
Knitwear (Pty) Ltd v Viljoen
1960
(3) SA 338 (T).
[5]
NBCRFI
v Marcus NO
[2011]
2 BLLR 169 (LC).
[6]
NBCRFI
v Marcus NO
(2013)
34
ILJ
1458
(LAC).
[7]
[2011] 2 BLLR 169
(LC), with reference to
Coin
Security (Pty) Ltd v CCMA
[2005] 7 BLLR 672
(LC), discussed in Du Toit et al,
Labour
Law through the Cases
[8]
Para
22.
[9]
[2005] 7 BLLR 672
(LC) at pars 54–55.
[10]
(2014)
35
ILJ
3059 (LAC) paras 23-24. See also
National
Textile Bargaining Council v
De
Kock NO
(2014) 35
ILJ
1017 (LC);
Henred
Fruehauf (Pty) Ltd and Another v Marcus N.O. and Others
(2014) 35
ILJ
3147 (LC);
[2016] 4 BLLR 401
(LAC);
SBV
Services (Pty) Ltd v NBCRFLI
(2016) 37
ILJ
708 (LC).
[11]
Sidumo
v Rustenburg Platinum Mines Ltd
[2007]
12 BLLR 1097
(CC).
[12]
Herholdt
v Nedbank Ltd
(2013)
34
ILJ
2795 (SCA).
[13]
(1999)
20
ILJ
2960
(LC).
[14]
at
2966 E-F.
[15]
[1997] ZASCA 110
;
1998
(1) SA 606
(SCA) at 614C.
[16]
NUMSA
v Driveline Technologies (Pty) Ltd
(2000)
4 SA 645
(LAC); (2000) 21
ILJ
142 (LAC).
[17]
NBCRFI
v Marcus NO
[2011]
2 BLLR 169
(LC); (2013) 34
ILJ
1458
(LAC).
[18]
Recorded
in paras 6 and 10 of the Labour court judgment.
[19]
Para
24.
[20]
KWV
v Industrial Council for the Building Industry
1949
(2) SA 600 (A).
[21]
Golden
Arrow Bus Services v CCMA
[2004]
ZALC 72.
[22]
Coin
Security (Pty) Ltd v CCMA
(2005)
26
ILJ
849
(LC).