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[2018] ZALCJHB 105
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NUMSA obo Members v Hitachi Construction Machinery SA (Pty) Ltd (J390/16) [2018] ZALCJHB 105 (12 March 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
C
ase
no:
J390/16
In
the matter between:
NUMSA
OBO MEMBERS
Applicant
and
HITACHI
CONSTRUCTION MACHINERY SA (PTY) LTD
Respondent
Heard
:
19 October 2017
Delivered
:
19 October 2017
Edited:
12 March 2018
EX TEMPORE JUDGMENT
MOSHOANA,
J
: This is an application in terms of section 158(1)(c), in
terms of which the applicants seek to have an arbitration award
issued on 2 May 2014 made an order of this court. The
application is opposed by the respondent. The background facts are
as
follows:
During
November 1995 a proposal was made with regard to the equalisation of
the wage rates. On 28 November 1995, the Board
of Directors of
the respondent approved the proposal to be implemented at the
beginning of January 1996. The applicants contended
that the
respondent company failed to implement the terms of the collective
agreement as approved in November 1995.
Around
August/September 2012 the applicants referred a dispute in terms of
section 16 of the LRA to the CCMA. On or about
18 September
2012, the parties reached a settlement at the CCMA in Benoni.
Effectively the parties agreed that the CCMA should
conduct a
fact-finding investigation pertaining to the wage equalisation
dispute referred to by the applicants. On 23 November
2012
the CCMA issued an advisory award. The Commissioner advised
thus:
1.
That the employer, the respondent before me, must rectify a situation
which undermines the 1995 agreement.
2.
The parties to make an attempt to agree on how to deal with the
discrepancies,
which discrepancies, if not corrected, would amount to
breach of the 1995 agreement.
The
parties indeed met on 11 February and 25 February respectively, but
could not reach an agreement. The applicants then
resolved to
refer a section 24 dispute to the Bargaining Council. On 2 May
2014 the arbitrator issued an award in terms
of which the respondent
was found to have failed to implement clause 5 of the collective
agreement. She then directed the
respondent to implement the
equalisation of rates in terms of clause 5 of the collective
agreement.
The
respondent was aggrieved thereby and launched a review application in
this court. The review application was dismissed
on 26 August
2015. On 6 November 2015 the applicants through its attorneys
demanded compliance since the review was
dismissed. In
response, the respondent in a rather disrespectful manner, in my
view, simply stated that it has implemented
the equalisation rate in
accordance with clause 5 of the collective agreement. As
expected, and rightly so, the applicants
demanded proof of such
compliance. The applicants wilfully ignored this request.
Resultantly, the applicants launched
the present proceedings.
When
hearing the matter, arguments were submitted on behalf of both
parties. In court Mr Whittenton for the respondent presented
some arguments which the court found to be very disrespectful in a
sense. On the one hand he submitted that the award was
complied
with, albeit that it was ambiguous. This argument is senseless
and at the very least disrespectful of this court.
I was
shocked to hear such an argument from counsel, but nonetheless, that
was the submission.
Section
158(1)(c) gives this court discretion to make an arbitration award an
order of court. In order to exercise the discretion,
the court
must be satisfied that there is a valid and enforceable award and
that the said award has not been complied with.
At paragraph 30
of the Founding Affidavit the applicant stated the following:
“
I
submit that the first respondent has failed to comply with the
arbitration award attached hereto, marked as annexure ‘X”,
by failing to implement the collective agreement reached in 1995 by
failing to equalise the wages of the applicants’ members.
The applicant has no other recourse of enforcing the award other than
it being made an order of court.”
In
response to the evidence as contained in the Founding Affidavit, the
respondent had the following to say:
“
The
contents of this paragraph is emphatically denied and it is
reiterated that the first respondent exercised its discretion when
implementing the equalisation of the wage rate as per the third
respondent’s arbitration award, and as per the Honourable
Justice Brassey’s judgment.”
These
which I have just quoted amount to a bare denial and actually a
meaningless answer to paragraph 30 of the Founding Affidavit.
A
party alleging compliance must present all the necessary evidence to
prove compliance. It is not the duty of the applicant,
as
submitted by Mr Whittenton, to prove the manner how compliance should
have happened. All what is required is the party
who is
resisting an application like this one before me to show that indeed
it had complied.
During
argument I requested Mr Whittenton to point out to me where in the
affidavit is it indicated that there was compliance.
He
directed me to the paragraph that I had just read into this
judgment. I am therefore not convinced that there is compliance
with the award. It occurred to me that during argument, when Mr
Whittenton realised that the argument of compliance is thinning
out,
he attempted another argument of ambiguity of the award.
He
submitted that paragraphs 18 and 19 of the Award were ambiguous.
This argument, of course, was self-defeating. How
does one
comply with an ambiguous award, as he earlier submitted? He
sought to place reliance on the LAC judgment of
South African
Post Office
Ltd
v
CWU
, [
2013
]
12
BLLR
1203
(LAC).
The LAC in that judgment stated as one of the factors to be satisfied
in a section 158(1)(c) to be that:
“
The
award is sufficiently clear to have enabled the defaulting party to
know exactly what it is required to do in order to comply
with the
award.”
To my
mind, the award is clear, the respondent is to comply with clause 5
by implementing the equalisation rates in terms of clause
5.
How much clearer does the award need to be? The fact that at
some point it was contended that the respondent has
complied suggests
that the award is clear. During argument at the review
application one of the submissions made is recorded
in the judgment
of the court, which is:
“
Mr
Soldatis, who appears for the applicants, says that there is
compliance with clause 5 of the agreement, and he says therefore
that
he has no objection to the award that has been made if it is
scrupulously construed upon its terms.”
Now,
clearly that is the problem. The problem of the respondent is
that it wants the award to be interpreted on its own terms
when it is
much clearer, however, as I have pointed out, it is difficult for me
to understand why the award is found to be ambiguous,
and at the same
time the respondent states that it has complied with it. It
does not make sense at all.
I agree
with Mr Ngako that a party cannot raise the defence of ambiguity and
compliance at the same time. One cannot reprobate
and approbate
at the same time. I therefore conclude that the award is clear
and understandable. Having rejected all
the defences of the
respondent, there is nothing that prevents this court to make the
award an order of court, particularly in
an instance where as I have
concluded that the respondent has failed to provide evidence of
compliance with the award.
I now
turn to the issue of cost. I find the opposition by the
respondent to be wholly unreasonable. As I have pointed
out, at
the review proceedings Mr Soldatis, who appeared for the respondent,
raised the issue of compliance and not the issue of
the ambiguity of
the award, as it is now attempted in this matter before me. He
had no objection to the award.
The
volte-face
that is being made in relation to the ambiguity of
the award suggests that the conduct by the respondent and its
representatives
in defending what appears to have been a clear
application of section 158 suggests that this court must express some
discontent
and actually frown upon that conduct with an appropriate
order as to costs. In the result, I make the following order:
-
- - - - - - - - - -
ORDER
1.
The award issued on 2 May 2014 is hereby made an order of court.
2.
The respondent is to pay the costs.
-
- - - - - - - - - - -
___________________________
MOSHOANA
J
JUDGE
OF THE LABOUR COURT
TRANSCRIBER’S
CERTIFICATE
This is
to certify that,
insofar as it is audible
, the aforegoing is a
true and correct transcript of the proceedings recorded by means of a
mechanical recorder in the matter of:
NUMSA obo
MEMBERS
Applicants
and
HITACHI
CONSTRUCTION MACHINERY SA (PTY) LTD
Respondent
CASE
NUMBER:
J390/16
RECORDED
AT:
JOHANNESBURG
DATE
HELD:
19 OCTOBER 2017
TRANSCRIBER:
AG VAN STADEN
DATE
COMPLETED:
14 NOVEMBER 2017
NUMBER OF
CD/audio files:
1
NUMBER OF
PAGES:
7
REPORT ON
RECORDING
1.
Court digital recording equipment not utilised to its full
potential i.e. 1.1
2.
Where no clear annotations are furnished, names are transcribed
phonetically.
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AUDIO
RECORDING
TRANSCRIPTIONS
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