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[2018] ZALCJHB 25
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Association of Mineworkers and Construction Union v Commission for Conciliation, Mediation and Arbitration and Others (JR2534/15) [2018] ZALCJHB 25; (2018) 39 ILJ 1303 (LC); [2018] 7 BLLR 656 (LC) (25 January 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR2534/15
In
the matter between
:
ASSOCIATION
OF MINEWORKERS AND
CONSTRUCTION
UNION OBO
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
NDUNA,
X
N.O.
Second Respondent
LEKGWATI,
E
N.O
Third Respondent
MURRAY
AND ROBERTS (PTY) LTD
Fourth Respondent
Heard:
24
October 2017
Delivered:
25 January 2018
Summary:
Section 158(1)(g) –review application –
threshold agreements do not bar minority unions
from re
questing organisational rights
–
a settlement agreement
concluded
on basis on a common mistake in relation to a legal position is
reviewable on common law grounds – the nature
and merits
of the case justify overlooking the delay.
JUDGMENT
Nkutha-Nkontwana
J
Introduction
[1]
The
applicant (AMCU) launched this application in terms of section
158(1)(g) of the Labour Relations Act (the LRA)
[1]
alternatively in terms of common law for the following orders:
1.1.
To review and set aside the conciliation
proceedings that took place before the third respondent (commissioner
Lekgwathi) on 21
May 2014, inclusive of the settlement agreement
entered into between AMCU and the fourth respondent (Murray &
Roberts) in terms
of section 158(1)(g) (conciliation and settlement
application).
1.2.
Alternatively, to review and set aside the
settlement agreement entered into between AMCU and Murray &
Roberts on 21 May 2014
consequent to the conciliation proceedings
before commissioner Lekgwathi in terms of common law on the basis
that it was concluded
as a result of a mistake, alternatively a
misrepresentation (common law application).
1.3.
To review and set aside the jurisdictional ruling
of the second respondent (commissioner Nduna) dated 27 May 2015 in
terms of section
158(1)(g), wherein it was found that the conclusion
of the settlement agreement rendered the organisational rights
dispute between
AMCU and Murray & Roberts
res
judicata
(jurisdiction ruling application).
[2]
The application is only opposed by Murray &
Roberts which raised three points
in limine
.
Firstly, the delay in launching this application, particularly in
relation to the conciliation and settlement application and
common
law application, which is about one year and six months. Secondly,
the issue on non-joinder. Thirdly, that the issue in
relation to the
off record discussion between an AMCU representative and commissioner
Lekgwathi during the conciliation be referred
to oral evidence.
Factual
background
[3]
Murray & Roberts is a construction company
and is one of many contractors and sub-contractors employed by Eskom
to build the
power station at the Kusile construction site (Kusile
Project). A collective agreement known as the Project Labour
Agreement (PLA)
was concluded in relation to the Kusile Project
between two employer organisations viz:
3.1.
the South African Federation of Civil
Engineering Contractors (SAFCEC); and
3.2.
the Construction Engineering Association of South
Africa (CEA (SA); and the following trade unions:
3.3.
the National Union of Mineworkers (NUM);
3.4.
Building Construction and Allied Workers Union
(BCAWU);
3.5.
MWU Solidarity (Solidarity);
3.6.
UASA – The Union (UASA);
3.7.
the National Union of Metalworkers of South
African (NUMSA);
3.8.
the South African Equity Workers Association
(SAEWA);
3.9.
The Metal Electrical Workers Union of South
Africa (MEWUSA).
[4]
In terms of clause 3 of the PLA:
‘
3.1 The
agreement applies to all the contractors, subcontractors and their
employees and employees of temporary
employment services (labour
brokers [-TES]) contracted to them, and trade unions and their
members, as well as to employees who
are non-members of a trade
union, for the duration of the project.
3.2 This
agreement does not apply to any employee of a contractor or
subcontractor who has been seconded
to the project for a period of
less than one calendar month.
3.3 Any other
registered trade union which is a party to the respective party
industry bargaining structures
may become a party to this agreement
by signing this agreement.’
[5]
A second collective agreement named the
Partnership Agreement (PA) was concluded between contractors and the
trade unions at the
Medupi and Kusile power stations on 7 June 2013.
Clauses 6.1 and 6.4 thereof read as follows:
'6.1 This agreement applied to
Eskom, all Contractors and Employees in the Bargaining Unit and
employees contracted to them
and Trade unions and their members as
well as to Employees who are non-members of the Trade unions, for the
duration of the Project.
6.4 Any other trade
union which is registered with the MEIBC or BCCEI and meets the
threshold specified in terms
of the policy on trade union recognition
under this agreement may become a party to this agreement by signing
it.’
[6]
While clause 11.3 regulates the trade union
rights and responsibilities and pertinently, clauses 11.3.3, 11.3.4
and 11.3.9 read
as follows:
‘
11.3.3
upon signature of this agreement, trade union recognition will be
accorded on the
basis of meeting a threshold of three hundred members
per site. Recognition at this threshold level will entitle a trade
union
to a full time shop steward as well as participation within the
partnership forums and collective bargaining structures.
11.3.4.
within four months after signature, the threshold will increase to
five hundred members per
site.
11.3.9.
should a trade union fall below the threshold necessary for
recognition at the
project site, the CIRC will notify it in writing
that it faces de-recognition should it not within the space of ninety
days brings
its membership level above the threshold.’
[7]
Murray & Robbers is a member of the Metal and
Engineering Industry Bargaining Council (the MEIBC) through the CEA
(SA). Membership
is regulated by clause 4 of the Constitution of the
MEIBC which reads as follows:
‘
(1)
the parties to the Council shall be registered employer’s
organizations and registered
trade unions as set out in annexure A
hereto and hereinafter referred to as employers or employer’s
organizations’
and/or ‘employees or trade unions’
respectively as the case may be, whose members are engaged or
employed in the Industry.
(2)
Any employer’s organization or trade union registered in terms
of Section 96 of the
Act and in respect of persons engaged or
employed in the Industry, may be admitted to membership of the
Council, on such conditions
as the Council may determine, and the
terms ‘the employers’ or ‘trade unions’ shall
thereupon be deemed
to include any employer’s organization or
trade union as the case may be, so admitted.
Provided that such trade union shall
have not less than 5000 members in the Industry. Membership figures
submitted in support of
the application to be party to the council
must be certified by auditors.
The Council shall advise ant trade
union whose membership has fallen below 5000, that unless the
situation is corrected within three
years of the date of
notification, the trade union will forfeit any seats it has on the
Council and cease to be a party to the
council.
(3)
Any party may withdraw from the Council on giving three months’
notice in writing
to the Council’s Secretary.’
[8]
On 26 February 2014, AMCU issued a notice to
Murray & Roberts indicating its intention to exercise
organisational rights at
the Kusile Project in terms of section 21(1)
of the LRA. When the 30 days required in terms of section 21(3) of
the LRA expired
without a response from Murray & Roberts, AMCU
referred the dispute to the Commission for Conciliation, Mediation
and Arbitration
CCMA. The matter was scheduled for conciliation on 21
May 2014 before commissioner Lakgwathi. Murray & Roberts raised a
point
in limine
to the
effect that AMCU was ineligible to exercise any organisational rights
at the Kusile Project without first complying with
the requirements
of the applicable collective agreements.
[9]
The parties concluded a settlement agreement
which is recorded on the CCMA template and on the following terms:
‘
The undersigned parties record
the settlement of their dispute in the following terms. By signing
this agreement, the parties acknowledge
that the agreement was read
to them and interpreted (where necessary) and that they understand
the content hereof. This agreement
is in full and final settlement of
the dispute referred to the CCMA…’
1.
to 4. …
5.
WITHDRAWAL OF A DISPUTE
The
applicant voluntarily withdraws the referral and abandons the dispute
against the respondent in settlement of his/her case at
the CCMA with
full knowledge that he/she will not be able to proceed with this
dispute at a later stage.
6.
OTHER
The
applicant, Amcu obo Members, agree to submit membership figures to
MEIBC certified by Amcu auditors. The applicant further agree[s]
to
engage Luyanda Manyango, CIRLE, with regards to PLA …In the
event Luyanda does not co-operate, the applicant may escalate
this
matter with Sean Isaacs for possible solution. The employer
undertakes that there will be no victimization against any of
the
employees who join Amcu.’
[10]
On or about 20 March 2016, AMCU issued a second
notice dated 16 March 2015 to Murray & Roberts. On 20 April 2015,
AMCU referred
another organisational rights dispute to the CCMA (the
second dispute). Commissioner Nduna was appointed to conciliate the
dispute.
Murray & Roberts raised a point
in
limine
to the effect that the matter was
res
judicata
in the light of the settlement
agreement between the parties. Commissioner Nduna upheld the
jurisdictional point and dismissed
AMCU’s application. AMCU
sought to rescind the jurisdictional ruling with no success.
[11]
In these proceedings, AMCU seeks to review and
set aside both the settlement agreement and the jurisdictional
ruling.
AMCU’s
submissions
[12]
AMCU argued that it is neither a party to the PLA
nor a member of either the MEIBC and accordingly not bound by the PLA
based on
the following interpretation:
12.1.
The PLA applies to those unions that are
signatories to it and all the employees employed at Kusile Project,
having been extended
to apply in terms of section 23(1)(d) of the
LRA; and
12.2.
The PLA does not apply to non-signatory trade
unions, and in order for them to ‘opt in’ and become
bound by the PLA,
non-signatory trade unions such as AMCU must be
party to the MEIBC and signatory to the PLA.
[13]
AMCU has not ‘opted in’ to be bound
by the PLA. The PLA does not contain any provisions that purport to
regulate or
exclude organisational rights of minority trade unions
that are non-parties, it regulates the organisational rights of
parties
that elect to ‘opt in’ and become bound by the
PLA. Accordingly, the PLA does not regulate or affect AMCU’s
organisational
rights under the LRA.
[14]
AMCU, as a majority representative trade union in
the workplace qualifies for the organisational rights in terms of
sections 12,
13, 14, 15 and 16 of the LRA. Alternatively, as a
sufficiently representative trade union, it qualifies for the
organisational
rights in terms of sections 12, 13 and 15 of the LRA.
[15]
AMCU is not bound by the PA as it is only
extended to employees who are not members of a trade union and does
not deal with organisational
rights.
[16]
Commissioner Lekgwathi, seized with the first
dispute, instead of ruling on the point
in
limine
raised by Murray & Roberts,
mero
mutu
raised, on record, prospects of
providing advice regarding the procedure to be followed by AMCU with
reference to becoming a party
to the MEIBC and the PLA. However,
during the off record discussion with AMCU’s representative, Mr
Mazibuko, commissioner
Lekgwathi allegedly expressed a view that he
agreed with Murray & Roberts’ contention and advised that a
settlement agreement
should be concluded.
[17]
Mr Mazibuko, a lay person and who is not legally
trained, erroneously accepted on good faith that commissioner
Legwathi and Murray
& Roberts' representative were correct in
respect of the contention that AMCU was required to be a party to the
MEIBC, PLA
and PA in order to become entitled to the organisational
rights sought to be exercised at the Kusile Project. Accordingly,
when
Mr Mazibuko was concluding the settlement agreement, he was
labouring under a misapprehension based on what commissioner
Lekgwathi
and the representative of Murray & Roberts had
intimated to him.
[18]
Therefore, the settlement agreement was
erroneously concluded. Firstly, as a result of unilateral mistake on
the part of AMCU, alternatively
mutual and/or common mistake between
AMCU and Murray & Roberts. Secondly, and alternatively, a
material misrepresentation by
the representative of Murray &
Roberts (echoes by what commissioner Lekgwathi had expressed).
Murray
& Roberts’ submissions
[19]
AMCU approached the Court to ultimately avoid the
settlement agreement which does no more than to put it on level
pegging with other
trade unions, so far as the exercise of the
organisational rights is concerned.
[20]
In terms of section 18 of the LRA, employers and
the trade unions are allowed to set thresholds for the exercise of
organisational
rights by other trade unions. The PLA and PA regulate
or exclude organisational rights of minority trade unions and as such
AMCU
cannot rely on the provisions of the LRA for the exercise of
organisational rights.
[21]
A contract should be interpreted to give effect
to its purpose. The purpose of the PLA is to provide consistent
approach with regard
to collective bargaining matters, including the
organisational rights of trade unions. That purpose cannot be
achieved if AMCU
is allowed to ‘opt out’ of the PLA and
PA and follow the provisions of the LRA. That would result in a
chaotic situation
where a different set of requirements for the
exercise of organisational rights would ensue. As a result, trade
unions like AMCU
with fewer members would enjoy greater
organisational rights simply because they choose to ‘opt out’
of the PLA and
PA.
[22]
The threshold provisions of the PLA and PA would
be rendered nugatory if a non-party union is allowed to obtain
organisational rights
solely because they comply with the less
onerous requirements of the LRA. A collective agreement must not be
interpreted in a manner
that renders its provisions superfluous and
pointless.
[23]
The only avenue to the exercise of the
organisational rights is compliance with the provisions of the
collective agreements in line
with the guiding principles of the LRA.
The LRA aims to avoid the proliferation of trade unions in one
workplace. The primary purpose
of section 18 is to promote a system
which a single trade union or group of trade unions enjoy exclusive
rights or representation
within a workplace. Collective agreements
must be interpreted in accordance with the purposes of the LRA.
[24]
AMCU has not made out a case for setting aside of
the settlement agreement on the basis of mistake or
misrepresentation. Commissioner
Lekgwathi was not a party to the
settlement agreement. Misrepresentation by third parties to a
contract cannot found a basis for
the review of the settlement
agreement. Also there was no common mistake as the parties never
agreed tacitly or impliedly that
the validity of the settlement
agreement is subject to the proposition of law put forward by Murray
& Roberts was indeed correct.
[25]
There could not have been a mistake as the
settlement agreements are peculiar in the area of the law contract
and the parties voluntarily
agree to a compromise.
Delay
[26]
Before I deal with the substantive issues raised
in the application, I deem it appropriate to deal with the first
point
in limine
, the
delay in instituting these proceedings.
[27]
Section 158(1)(g) empowers this Court, subject to
section 145, to review the performance or purported performance of
any function
provided for in this Act on any grounds that are
permissible in law. Unlike in section 145, there is no prescribed
time limit for
launching a review under section 158(1)(g) and even
the Court’s Rules prescribe no time limits for bringing review
applications.
Notwithstanding, it is generally understood that
proceedings under section 158(1)(g) must be launched within a
reasonable time.
[28]
In
Weder
v MEC for the Department of Health, Western Cape,
[2]
dealing with the question of what constitutes ‘reasonable
time’, the Court proposed that anything more than six weeks
should at least trigger an application for condonation simply because
the processes in section 158 are closely aligned to the process
set
out in section 145 of the and Rule 7A.
[29]
In
Gqwetha
v Transkei Development Corporation Ltd and others,
[3]
the Supreme Court of Appeal (SCA) in its majority judgment, held that
an assessment of a plea of undue delay involves examining,
firstly,
whether the delay is unreasonable or undue, a factual enquiry upon
which a value judgment is made in the light of “all
the
relevant circumstances”; and if so, secondly, whether the
court’s discretion should be exercised to overlook the
delay
and nevertheless entertain the application.
[4]
[30]
I do not
think that I should spend much time on this issue. The nature of the
application and merits justify that the application
be entertained.
Even though the delay is about one year and six months, it is not
atypical in applications of this nature that
a respite of about a
year be undertaken before the next step could be taken.
[5]
[31]
Also, the delay is explained and the fact that
the misapprehension in relation to the status of the settlement
agreement persists
and has barred AMCU’s endeavours to re-enrol
the matter necessitates the Court's determination of the merits of
this dispute.
Commissioner Nduna premised his jurisdictional ruling
on the settlement agreement.
[32]
In short, the circumstances of this case warrant
that condonation for the delay be granted.
Merits
[33]
Recently
the Labour Appeal Court (LAC) in
South
African Correctional Services Workers Union (SACOSWU) v Police and
Prisons Civil Rights Union (POPCRU) and Others (POPCRU),
[6]
overturned
the judgment of this Court, per Snyman J upon which Murray &
Roberts’ defence is hinged. In that case POPCRU
referred a
dispute to the General Public Service Sectoral Bargaining Council
(the GPSSBC), claiming that SACOSWU could not be granted
organisational rights because that union had not attained the
threshold set for membership of any bargaining council and by an
agreement concluded between the Department of Correctional Services
(the DCS) and majority trade unions, which set thresholds for
the
acquisition of organisational rights, and requested an order to
declare the collective agreement “null and void”.
[34]
The
Arbitrator, applying the principles in
NUMSA
and others v Bader Bop
(
Pty
)
Ltd and
another
(
Bader
Bop
),
[7]
found that nothing precluded a minority trade union from obtaining
organisational rights by negotiating directly with an employer,
and
ruled that the agreement between the DCS and SACOSWU was valid and
binding.
[35]
On review, Snyman J, upholding the review, found
that the DCS-SACOSWU agreement was “entirely incompatible”
with a threshold
agreement concluded between the DCS and POPCRU,
which had to take priority, and that SACOSWU could obtain the rights
it had been
granted only by gaining admission to the department’s
bargaining council, for which it did not qualify. The DCS-SACOSWU
agreement
was set aside and the Court declared that SACOSWU was not
entitled to any organisational rights until it had satisfied the
threshold
required for admission to the departmental bargaining
council.
[36]
The LAC,
referring to
Bader
Bop
[8]
and
Association of
Mineworkers and Construction Union and others v Chamber of Mines of
South Africa and others
(Chamber
of Mines)
,
[9]
with approval,
found that:
'[36] While section 23(1)
provides that a collective agreement is binding on the parties to it,
a threshold agreed by an
employer obliges the employer to confer
sections 12, 13 and s15 rights upon a union which had achieved the
threshold agreed in
the section 18(1) agreement
. It does not bar
the employer from bargaining collectively with a minority union which
seeks to have any organisational rights
conferred on it, nor does the
existence of a section 18(1) agreement oblige the employer to deprive
a minority union of any such
organisational rights
.
[37] That this is so is
starkly highlighted by the issue of representation of members of
minority unions in individual
disciplinary or grievance proceedings
.
Since a majoritarian system can only operate fairly where a minority
union is allowed to co-exist, including "…to
represent
members in relation to individual grievances", to deny an
employee a choice and impose on him or her representation
by a
majority union, of which that employee is not a member, is
conceivably contrary to and in breach of the employee's
constitutional
rights to freedom of association and to join a trade
union and the right in section 23(1) to fair labour practices
.
[38] An employer may
determine whether it wants to bargain with a minority union, the
extent to which it will do so
and whether it will conclude a
collective agreement with the minority union. This includes
bargaining collectively on the grant
of any organisational rights to
that union. The LRA does not prohibit the bargaining with a minority
union on such matters, nor
does the employer breach an existing
section 18(1) collective threshold agreement in doing so.
This is
so, in that, the effect of the section 18(1) threshold which has been
agreed to, is to oblige the employer to confer sections
12, 13 and 15
rights upon unions that had achieved that threshold, but not to
constrain the employer's entitlement to bargain with
those unions
that have not
.
[39] It is so that the
employer's election to bargain with the minority union in such
circumstances may have consequence
for the relationship with the
majority union, and that such consequence may play out either in the
course of the collective bargaining
relationship, or through the
exercise of other legal remedies. However, since the threshold
agreement does not provide a bar to
the conclusion of a section 20
collective agreement with the minority union regarding sections 12,
13 or 15 organisational rights,
the existence of the threshold does
not distinguish the matter from
Bader
Bop.
This is so given the
recognition that minority unions are entitled to co-exist, to
organise members, to represent members in relation
to individual
grievances and to seek to challenge majority unions
.
’
[10]
(Emphasis
added)
[37]
This Court is bound by the above authorities.
Coming back to the present case, based on the above authorities, it
is clear that
the PLA and PA, threshold agreements, do not proscribe
minority trade unions like AMCU from requesting to exercise sections
12,
13 or 15 organisational rights. Once AMCU can prove that it is
sufficiently representative at the Kusile Project, it is within its
right to request to exercise these organisational rights in terms of
section 21. It is, therefore, inescapable that the construction
Murray & Roberts accorded to section 18 is untenable as it is
inconsistent with the Constitutional imperatives.
[38]
That takes me to the issue of the settlement
agreement. AMCU argued that Mr Mazibuko was labouring under a
misapprehension based
on what commissioner Lekgwathi and the
representative of Murray & Roberts had intimated to him when he
was concluding the settlement
agreement. Therefore, the settlement
agreement was erroneously concluded as a result of unilateral mistake
on the part of AMCU,
alternatively mutual and/or common mistake
between AMCU and Murray & Roberts.
[39]
Murray& Roberts, conversely, argued that
there was no common mistake as the parties never agreed tacitly or
impliedly that the
validity of the settlement agreement is subject to
the proposition of law put forward by Murray & Roberts being
indeed correct.
There could not have been a mistake as the settlement
agreements are peculiar in the area of the law contract and the
parties voluntarily
agree to a compromise.
[40]
It is well
accepted that when parties reach an agreement based on a common
incorrect assumption of a present or past fact, the contract
is
void.
[11]
The party wishing to
rely on the voidness of the contract must allege and prove that:
firstly, the contract was based on a common
assumption; secondly, the
assumption was incorrect; and thirdly, the subject-matter of the
assumption was vital to the transaction,
put differently, had both
parties been aware of the true position the transaction would not
have been entered into.
[12]
[41]
These
tenets were endorsed by the LAC in
Concor
Projects (Pty) Ltd t/a Concor Opencast Mining v Commission for
Conciliation, Mediation and Arbitration and others,
[13]
another matter involving AMCU. The LAC stated that:
'[40] I am in
agreement with the court
a quo
that the inescapable conclusion
is that AMCU and the appellant laboured under the wrong impression
that the sectoral determination
prevented the parties from
negotiating at plant level on issues governed by the sectoral
determination when it signed the document.
In
Dickenson Motors
(Pty) Ltd v Oberholzer
it was said that:
"An
agreement founded upon a common mistake, which mistake is impliedly
treated as a condition which must exist in order to
bring the
agreement into operation can be set aside, formally if necessary or
treated as set aside and as invalid without any process
or
proceedings to do so."
I agree with the court
a quo
that Mahlomuza would not have withdrawn the dispute had he known that
the sectoral determination was no bar against negotiating
with the
appellant at plant level. I might as well add that the appellant
would not have taken the stance that it took had it known
what the
correct legal position was.
[41] In my view, it would be totally
unfair to hold AMCU to an "agreement" that was clearly
entered into based on a common
mistake and thereby denying it and its
members their constitutional right to strike. The court a quo was
correct in disregarding
the "settlement agreement'.
[42]
Even in the
present case, to the extent that the erroneous construction of
section 18 influenced the conclusion of the settlement
agreement, as
both parties held a mistaken view that AMCU’s eligibility for
organisational rights must be preceded by compliance
with the
thresholds in terms of the PLA and PA read with the Constitution of
the MEIBC, it was indeed concluded on the basis of
a common mistake.
It is clear that AMCU would not have agreed to settle the dispute on
the terms that deprived it of the organisational
rights that minority
trade unions are entitled to in order to organise and represent their
members; to deal with individual grievance
and disciplinary matters;
and to keep the majority trade unions on their toes .
[14]
Similarly, Murray & Roberts would not have taken the stance that
it took had it been apprised of the correct legal position.
[43]
For all the reasons alluded to above, in my view,
the settlement agreement entered into between AMCU and Murray &
Roberts on
21 May 2014 consequent to the conciliation proceedings
facilitated by commissioner Lekgwathi stands to be set aside as it
was concluded
on the basis of a common mistake.
[44]
Correspondingly, commissioner Nduna’s
jurisdictional ruling dated 27 May 2015 wherein it was found that the
conclusion of
the settlement agreement rendered the organisational
rights dispute between AMCU and Murray & Roberts
res
judicata
must suffer the same fate.
Conclusion
[45]
The delay in instituting these proceedings stands
to be condoned.
[46]
The settlement agreement dated 21 May 2014
concluded on the basis of a common mistake stands to be set aside.
[47]
The jurisdictional ruling dated 27 May 2015 that
found the settlement agreement to have rendered the organisational
rights dispute
between AMCU and Murray & Roberts
res
judicata
stands to be set aside.
[48]
I note that AMCU did not request that the matter
be remitted back to the CCMA. Accordingly, I leave it to the parties,
particularly
AMCU, to decide the path this matter should follow
henceforth. AMCU is, however, not striped of its right to request the
CCMA re-enrol
the matter with without having to issue a new notice in
terms of section 21(1).
Costs
[49]
In my view, it is equitable that each party pays
its own costs given the nature of the application and the prospects
of a collective
bargaining relationship.
[50]
In the premises, I make the following order:
Order
1.
The delay in instituting these proceedings is
condoned.
2.
The settlement agreement under case number
MP3038-14 dated 21 May 2014 is set aside.
3.
The jurisdictional ruling under case number
MP3385-14 dated 27 May 2015 is set aside.
4.
There is no order as to costs.
__________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicants:
Advocate R Itzkin
Instructed
by:
Larry Dave Incorporated
For
the second respondent:
Advocate H van der Merwe
Instructed
by:
Fluxmans Incorporated
[1]
Act 66 of 1995 as amended.
[2]
[2013] 1 BLLR 94
(LC) at para 8.
[3]
[2005] ZASCA 51; 2006 (2) SA 603 (SCA).
[4]
Supra
at para 24 and 31..
[5]
Section 65(2) states that:
(a) Despite
section 65(1)(c), a person may take part in a strike or a lock-out
or in any conduct in contemplation
or in furtherance of a strike or
lock-out if the issue in dispute is about any matter dealt with in
sections 12 to 15. 14.
(b) If the
registered trade union has given notice of the proposed strike in
terms of section 64(1) in
respect of an issue in dispute referred to
in paragraph (a), it may not exercise the right to refer the dispute
to arbitration
in terms of section 21 for a period of 12 months from
the date of the notice.
[6]
[2017] 9 BLLR 905
(LAC).
[7]
[2003] 2 BLLR 103 (CC).
[8]
Supra
at para 41.
[9]
(2017) 38 ILJ 831 (CC) [also reported at
[2017] 7 BLLR 641
(CC) at
para 43. This case coincidently involves AMCU and ‘the
Constitutional Court recognised majoritarianism as both
a premise of
and recurrent theme throughout the LRA. Reference was made to
Kem-Lin Fashions CC v
Brunton and another
[(2001) 22 ILJ 109 (LAC) [also reported at
[2001] 1 BLLR 25
(LAC)].
[10]
Referring to
Chambers of
Mines
, the LAC stated that
Constitutional Court ‘recognised that while the extension of
collective agreements to non-parties
under section 23(1)(d) gives
enhanced power within a workplace to a majority union for powerful
reasons that enhance employees'
bargaining power through a single
representative bargaining agent, majoritarianism is not "an
implement of oppression"
and:
"…does not entirely
suppress minority unions. Its provisions give ample scope for
minority unions to organise within
the workforce - and to canvass
support to challenge the hegemony of established unions.”
[11]
Osman v Standard Bank
National Credit Corp Ltd
[1985] 1 All SA 585
(C),
1985 (2) SA 378
(C) p. 386; Van Reenen
Steel (Pty) Ltd v Smith NO
[2002] ZASCA 12
,
2002 (4) SA 264
(SCA);
Transnet Ltd v Rubenstein
[2005] 3 All SA 425
(SCA),
2006 (1) SA 591
(SCA); see also Amlers Precedents of Pleadings 8th Edition (Harms) P
257.
[12]
Dickinson Motors (Pty) Ltd
v Oberholzer
[1952] 1 All
SA 421 (A), 1952 (1) SA 443 (A)
[13]
[2014] 6 BLLR 534
(LAC) at para 40 to 41.
[14]
Supra
n
6 at para 39.