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[2018] ZALCJHB 107
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Association of Mineworkers and Construction Union (AMCU) v Minister of Labour and Others (JR46/16) [2018] ZALCJHB 107; (2018) 39 ILJ 1549 (LC) (13 March 2018)
Reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD AT JOHANNESBURG
Case No: JR 46/16
In
the matter between:
ASSOCIATION OF
MINEWORKERS
AND CONSTRUCTION
UNIOIN
(“AMCU”)
Applicant
and
MINISTER OF LABOUR
First
Respondent
CHAMBER OF MINES OF
SOUTH
AFRICA
Second
Respondent
NATIONAL UNION OF
MINEWORKERS
(“NUM”)
Third
Respondent
UASA
Fourth
Respondent
SOLIDARITY
Fifth
Respondent
Heard
:
31 January 2018
Delivered
:
13 March 2018
Summary:
(Review – S77(2) of the BCEA and 158 (1) (g) of the LRA-review
based on legality-review of ministerial
determination falling under
PAJA - failure to invoke alternative remedy under section 50 (9) in
respect of ministerial determination
issued under s 50(8)(c) fatal –
review of extension of the agreement extended under section 23 (1)
(d) of the LRA - review
available only on narrow ground of legality –
review of s 23(1)(d) extension ought not to entail interrogation of
bargaining
process as if it were a hearing - merits of the
application and costs.)
JUDGMENT
LAGRANGE
J
Background
[1]
This review was brought under section 158 (1) (g) of the Labour
Relations Act, 66 of 1995 (‘the LRA’). It began
as a
multipronged attack on the extension of wage agreements concluded
between the Chamber of Mines (‘COM’ or ‘the
chamber’) and the respondent unions in this application namely,
NUM, UASA and Solidarity in the gold and coal mining sectors
for the
period 2015 to 2018, and on the Ministerial determinations under s
50(8) (c) of the Basic Conditions of Employment Act,
75 of 1997 (‘the
BCEA’). T
[2]
The scope of the application has gradually been narrowed down owing
to certain grounds of review falling away, either because
they have
become moot or because AMCU decided not to persist with certain
grounds of review. In particular the review of the extension
of the
agreement and the determination affecting coal mining was withdrawn.
The application was opposed by the Chamber, the Minister
of Labour
and NUM.
[3]
AMCU seeks the following relief:
3.1
Reviewing and setting aside the Ministerial variation of section 12
(2) (b), section 14, section
15 (1) (a) and s 17(1) under s 50 of the
BCEA, for the period 1 October 2015 to 30 September 2018 in respect
of.
3.2
Setting aside the extension of the collective agreement of 2 October
2015 in the gold sector to
employees who are not members of union
parties to the agreement.
Grounds
of Review
[4]
Initially, the principal grounds of review relating to the
determination were threefold:
4.1
Firstly the applicants advance the argument that the ministerial
determinations were erroneously
premised on Anglo Gold Ashanti and
Harmony Gold mining houses being treated as single workplaces in
terms of the LRA definition
of a workplace. This was subsequently
abandoned in the light of a Constitutional Court judgment in 2017
which is discussed below.
4.2
Secondly, AMCU argued that the determination published by the
Minister undermines the health and
safety of employees by increasing
the risk of employees contracting silicosis.
4.3
Thirdly, the income disparity in the collective agreement between
category 4-8 employees on the
one hand compared with officials,
miners and artisans on the other will grow at a rate which will be in
breach of section 27 of
the Employment Equity Act, 55 of 1998 (‘the
EEA’),which provides that:
“
27
Income differentials and discrimination
(1)
Every designated employer, when reporting in terms of section 21 (1),
must submit a statement, as prescribed, to the Employment
Conditions
Commission established by
section 59
of the
Basic Conditions of
Employment Act, on
the remuneration and benefits received in each
occupational level of that employer's workforce.
(2)
Where disproportionate income differentials, or unfair discrimination
by virtue of a difference in terms and conditions of employment
contemplated in
section 6
(4), are reflected in the statement
contemplated in subsection (1), a designated employer must take
measures to progressively reduce
such differentials subject to such
guidance as may be given by the Minister as contemplated in
subsection (4).
(3)
The measures referred to in subsection (2) may include-
(a)
collective bargaining;
(b)
compliance with sectoral determinations made by the Minister in terms
of
section 51
of the
Basic Conditions of Employment Act;
(c
)
applying the norms and benchmarks set by the Employment Conditions
Commission;
(d)
relevant measures contained in skills development legislation;
(e)
other measures that are appropriate in the circumstances.
(4)
The Employment Conditions Commission must research and investigate
norms and benchmarks for proportionate income differentials
and
advise the Minister on appropriate measures for reducing
disproportional differentials.
(5)
The Employment Conditions Commission may not disclose any information
pertaining to individual employees or employers.
(6)
Parties to a collective bargaining process may request the
information contained in the statement contemplated in subsection
(1)
for collective bargaining purposes subject to
section 16
(4) and (5)
of the
Labour Relations Act.”
AMCU
’s
complaint related to the minister’s alleged failure to consider
this provision and whether the determination might
result in unfair
discriminatory income outcomes because of a widening of pay gaps. The
day before the matter was due to be argued,
AMCU advised that it was
not pursuing the last-mentioned ground, which is apparently the
subject matter of another case under case
no JS 611/16
[5]
Other grounds of review were raised in respect of the extension of
the agreement itself under
s 23(1)(d).
To some extent there is an
overlap between the grounds raised under reviews of the determination
and the parties’ extension
of the agreement, but the two
reviews are considered separately because of the preliminary issues
impacting on the review of the
determination.
[6]
What AMCU is persisting with are the following:
6.1
Whether the extension of the 2015 – 2018 gold mining sector
wage agreement to employees
of non-parties under
section 23(1)(d)
can
be set aside on review on the basis that the employer did not have
due regard to health and safety considerations in terms
of
section
7(b)
of the BCEA when agreeing to regulate hours of work in terms of
that agreement and the variation of overtime averaging provided
for
under
s 12(2)(b)
of the BCEA.
6.2
Whether the determination issued by the Minister of Labour (‘the
Minister’) on 15
December 2015 under
section 50
(1) of the BCEA
varying certain provisions of the BCEA relating to working hours of
employees in the gold mining sector falling
within the scope of the
collective agreement, should be reviewed and set aside because the
Minister allegedly failed to have regard
to health and safety
considerations, or alternatively in so far as she did, irrationally
agreed to the variations.
Background
[7]
On 2 October 2015, the Chamber and the respondent unions concluded a
collective wage agreement for the 2015-2018 period (‘the
collective agreement’). Clause 17 of that agreement expressly
bound all other employees employed by the employer parties
to the
agreement in terms of
section 23(1)
(d) of the LRA. Although AMCU had
participated in the negotiations, it was not a signatory to the
agreement and consequently its
members were bound by this extension.
[8]
On 16 October 2015, and pursuant to the collective agreement, the
Chamber applied to the Minister to issue a determination varying
the
application of certain provisions of the BCEA for the period 1
October 2015 to 30 September 2018, as follows:
8.1
Section 12
(2) (b) - Variation to permit overtime of up to 10 hours
per week where ordinary hours are averaged.
8.2
Section 14
- Exclusion to the effect that employees in the Miners and
Artisans & Officials recognition units who work underground and
in processing plants dispense with a meal interval on the basis that
informal rest arrangements and opportunities to take sustenance
made
and existing meal arrangements with regards to employees in
processing plants remain in place.
8.3
Section 15
(1) (a) - Variation to permit periodic daily rest periods
of less than 12 hours but not less than eight hours for the purpose
of
rapid shift changeovers; and
8.4
Section 17
(1) - Variation to the effect that shifts commencing at or
after 04H00 not regarded as night work.
[9]
A copy of the variation application had been sent to AMCU on 15
October 2015 advising the union that any representations in
regard to
the application should be made to the Minister. However, AMCU did not
make any representations before the Minister issued
the determination
on 10 December 2015. The pertinent part of the determination issued
in terms of
section 50
(8) (c) of the BCEA reads:
“
1.
The following sections of the act are replaced or excluded:
Section
12
(2) (b),
14
(1),
15
(1) (a) and
17
(1).
1
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2.
Extent of the variation:
(a)
To average hours of work over the agreed period with an average of 10
hours’ overtime per week;
(b)
To dispense with a formal meal interval for Miners, Artisans and
Officials recognition units who work underground and in processing
plants;
(c)
To reduce the daily rest period to not less than eight hours, for the
purpose of rapid shift changeovers; and
(d)
That shifts commencing at or after 04:00 not regarded as night work.”
It
was only on 17 December 2015, a week after the determination was
issued, that AMCU wrote to the Minister advising her that it
was
opposed to the application to vary the provisions in the BCEA. The
letter concludes with a request that “For all of these
reasons
it is respectfully submitted that the
sought
variation of
overtime is not in accordance with the purpose of the BCEA, and
should not be granted
by the Minister.” (emphasis
added). Subsequent to that, AMCU made no further representation to
the Minister to withdraw the
determination which had already been
issued.
[10]
It was not the first time that such a determination had been sought
and granted. On 12 February 2014, an identical determination
relating
to the same provisions of the BCEA had been issued at the request of
the negotiating parties, for the period 1 October
2013 to 30
September 2015. Accordingly, the determination issued following the
2015 collective agreement did not introduce any
new deviations from
the BCEA.
[11]
On 18 February 2015, AMCU launched this review application.
The
relevant statutory provisions
[12]
The provisions of the BCEA relevant to this application are :
“
7
Regulation of working time
Every
employer must regulate the working time of each employee-
(a)
in accordance with the provisions of any Act governing occupational
health and safety;
(b)
with due regard to the health and safety of employees;
(c)
with due regard to the Code of Good Practice on the Regulation of
Working Time issued under section 87 (1) (a);
and
(d)
with due regard to the family responsibilities of employees.”
In
1998 a Code of Good Practice on the Arrangement of Working Time
[1]
was issued by the minister under section 87 (1) (a) of the BCEA, but
no specific reliance was placed on this Code by AMCU. The
remaining
BCEA provisions of relevance are:
“
9
Ordinary hours of work
(1)
Subject to this Chapter, an employer may not require or permit an
employee to work more than-
(a)
45 hours in any week; and
(b)
nine hours in any day if the employee works for five days or fewer in
a week; or
(c)
eight hours in any day if the employee works on more than five days
in a week.
…
.
10
Overtime
(1)
Subject to this Chapter, an employer may not require or permit an
employee to work-
(a)
overtime except in accordance with an agreement;
(b)
more than ten hours' overtime a week.
…
12
Averaging of hours of work
(1)
Despite sections 9 (1) and (2) and 10 (1) (b), the ordinary hours of
work and overtime of an employee may be averaged over a
period of up
to four months in terms of a collective agreement.
(2)
An employer may not require or permit an employee who is bound by a
collective agreement in terms of subsection (1) to work
more than-
(a)
an average of 45 ordinary hours of work in a week over the agreed
period;
(b)
an average of five hours' overtime in a week over the agreed period.
(3)
A collective agreement in terms of subsection (1) lapses after 12
months.
(4)
Subsection (3) only applies to the first two collective agreements
concluded in terms of subsection (1).
…
14
Meal intervals
(1)
An employer must give an employee who works continuously for more
than five hours a meal interval of at least one continuous
hour.
(2)
During a meal interval the employee may be required or permitted to
perform only duties that cannot be left unattended and cannot
be
performed by another employee.
(3)
An employee must be remunerated-
(a)
for a meal interval in which the employee is required to work or is
required to be available for work; and
(b)
for any portion of a meal interval that is in excess of 75 minutes,
unless the employee lives on the premises at
which the workplace is
situated.
(4)
For the purposes of subsection (1), work is continuous unless it is
interrupted by an interval of at least 60 minutes.
(5)
An agreement in writing may-
(a)
reduce the meal interval to not less than 30 minutes;
(b)
dispense with a meal interval for an employee who works fewer than
six hours on a day.
15
Daily and weekly rest period
(1)
An employer must allow an employee-
(a)
a daily rest period of at least twelve consecutive hours between
ending and recommencing work; and
(b)
a weekly rest period of at least 36 consecutive hours which, unless
otherwise agreed, must include Sunday.
(2)
A daily rest period in terms of subsection (1) (a) may, by written
agreement, be reduced to 10 hours for an employee-
(a)
who lives on the premises at which the workplace is situated; and
(b)
whose meal interval lasts for at least three hours.
(3)
Despite subsection (1) (b), an agreement in writing may provide for-
(a)
a rest period of at least 60 consecutive hours every two weeks; or
(b)
an employee's weekly rest period to be reduced by up to eight hours
in any week if the rest period in the following
week is extended
equivalently.
…
17
Night work
(1)
In this section, 'night work' means work performed after 18:00 and
before 06:00 the next day.
(2)13
An employer may only require or permit an employee to perform night
work, if so agreed, and if-
(a)
the employee is compensated by the payment of an allowance, which may
be a shift allowance, or by a reduction of
working hours; and
(b)
transportation is available between the employee's place of residence
and the workplace at the commencement and
conclusion of the
employee's shift.
(3)
An employer who requires an employee to perform work on a regular
basis after 23:00 and before 06:00 the next day must-
(a)
inform the employee in writing, or orally if the employee is not able
to understand a written communication, in
a language that the
employee understands-
(i)
of any health and safety hazards associated with the work that the
employee is required to perform; and
(ii)
of the employee's right to undergo a medical examination in terms of
paragraph (b);
(b)
at the request of the employee, enable the employee to undergo a
medical examination, for the account of the employer,
concerning
those hazards-
(i)
before the employee starts, or within a reasonable period of the
employee starting, such work; and
(ii)
at appropriate intervals while the employee continues to perform such
work; and
(c)
transfer the employee to suitable day work within a reasonable time
if-
(i)
the employee suffers from a health condition associated with the
performance of night work; and
(ii)
it is practicable for the employer to do so.
(4)
For the purposes of subsection (3), an employee works on a regular
basis if the employee works for a period of longer than one
hour
after 23:00 and before 06:00 at least five times per month or 50
times per year.
(5)
The Minister may, after consulting the Commission, make regulations
relating to the conduct of medical examinations for employees
who
perform night work.
[13]
Section 50 of the BCEA empowers the Minister to vary the same basic
conditions of employment. The relevant provisions read:
“
50
Variation by Minister
(1)
The Minister may, if it is consistent with the purpose of this Act,
make a determination to replace or exclude any basic condition
of
employment provided for in this Act in respect of-
(a)
any category of employees or category of employers; or
(b)
any employer or employee in respect of whom an application is made
by-
(i)
the employer;
(ii)
the registered employers' organisation;
(iii)
the employer and the registered employers' organisation.
(2)
A determination in terms of subsection (1)-
(a)
may not be made in respect of sections 7, 17 (3) and (4), 25, 43 (2),
44 or 48 or a regulation made in terms of
section 13; and
(b)
may only be made in respect of section 43 (1) to allow the employment
of children in the performance of advertising,
sports, artistic or
cultural activities.
(2A)
A determination in terms of subsection (1) may only be made in
respect of section 9 if-
(a)
the employees' ordinary hours of work, rest periods and annual leave
are on the whole more favourable to the employees
than the basic
conditions of employment in terms of sections 9, 10, 14, 15 and 20;
and
(b)
the determination-
(i)
has been agreed to in a collective agreement;
(ii)
is necessitated by the operational circumstances of the sector in
respect of which the variation is sought and
the majority of
employees in the sector are not members of a registered trade union;
or
(iii)
applies to the agricultural sector or the private security sector.
(3)
…
(4)
…
(5)
…
(6)
…
(7)
(a) A determination in terms of subsection (1) (b) may be issued if
the application has the consent of every registered trade
union that
represents the employees in respect of whom the determination is to
apply.
(b)
If no consent contemplated in paragraph (a) is obtained, a
determination in terms of subsection (1) (b) may be issued if-
(i)
the employer or employers' organisation has served a copy of the
application, together with a notice stating that
representations may
be made to the Minister, on any registered trade union that
represents employees affected by the application;
and
(ii)
in the case where the majority of employees are not represented by a
registered trade union, the employer or employer's
organisation has
taken reasonable steps to bring the application and the fact that
representations may be made to the Minister,
to the attention of
those employees.
(8)
….
(9)
(a) The Minister may on application by any affected party and after
allowing other affected parties a reasonable opportunity
to make
representations, amend or withdraw a determination issued in terms of
subsection (1).
(b)
For the purposes of paragraph (a), an affected party is-
(i)
an employer or employer's organisation that is covered by the
determination;
(ii)
a registered trade union representing employees covered by the
determination, or an employee covered by the determination
who is not
a member of a registered trade union.
(10)
…”
[14]
Before considering the substantive merits of the attack on the
determinations and the s 23(1) (d) extension of the agreement
to
non-parties, a number of preliminary objections raised by the
respondents must be addressed.
Preliminary
issues
Review
of determination premised on wrong statute
[15]
The chamber and Minister contended that it is impermissible for AMCU
to rely on section 158(1) (g) of the LRA and that the
union should
have relied on section 77 (2) of the BCEA. Recognising the soundness
of this objection, AMCU intended to apply to
amend the notice of
motion accordingly. However, this was not done.
[16]
Nevertheless,
AMCU argued in the alternative that the structure of the relief
sought and the variations the minister approved fell
squarely within
the ambit of the LRA and this court’s specialist jurisdiction.
In support of this, the applicant cited the
case of
O’Thorpe
construction and others v the Minister of Labour and others
.
[2]
In that case, it was held that the extension of the collective
agreement to non-parties constituted the performance of a function
expressly provided for in the LRA. As the respondents correctly point
out, AMCU fails to mention that the extension in question
concerned a
ministerial extension of an agreement concluded in a bargaining
council to non-parties falling within the scope of
the Council under
s 32 of the LRA. While the review of the Minister’s
determination in this case is not dissimilar in some
respects, it is
a power exercised under the BCEA and not the LRA. Strictly speaking,
AMCU ought to have brought the application
under s 77A(d) of the BCEA
in terms of which the labour court is empowered to review the
performance of any function under the
act on any grounds permissible
in law.
[17]
In any event, the chamber and the Minister claim that since the
review of the determination is a review of administrative action,
AMCU should have exhausted internal remedies before launching the
review application. Sub-section 7(2) (a) of the Promotion of
Administrative Justice Act, 3 of 2000 (‘PAJA’) provides
that no court shall review administrative action …unless
any
internal remedy provided for in any other law has first been
exhausted”, except that under section 7(2) (c), in exceptional
circumstances and on application by the party affected, a court may
exempt such a party from complying with the requirement to
exhaust
internal remedies. The chamber and Minister claim that in terms of
section 50 (9) of the BCEA, AMCU could have applied
to have the
determination amended or withdrawn after it was issued, but failed to
utilise these remedies.
[18]
AMCU firstly argues that this provision is not applicable where the
review is not premised on PAJA but on the general principle
of
legality (which includes consideration of irrationality as a ground
of review) to which PAJA does not apply. In the alternative,
if s
7(2) (a) does apply, AMCU denies that the remedy provided in s 50(9)
is an internal one that can address the complaints. In
the further
alternative it also contends that it made representations to the
Minister within a week of the determinations being
made on 10
December 2015 setting out its opposition to the CRM’s
application to vary BCEA provisions in particular those
relating to
overtime work and averaging hours of work. It argues that these
representations effectively constituted an application
as envisaged
by section 50(9) calling on the Minister to withdraw the
determination.
[19]
The first
obvious point raised by the respondents in response is that the
common law power of review of
administrative
action
on
grounds of legality does not exist in some distinct parallel universe
of law separate from the right to fair administrative established
in
s 33 of the constitution and given effect to by PAJA. It is now
trite law that the common law right to fair administrative
action is
subsumed in the constitutional right which finds its detailed
expression in PAJA. In
Minister
of Health and Another v New Clicks SA (Pty) Ltd and Others (Treatment
Action Campaign and Innovative Medicines SA as Amici
Curiae)
,
[3]
the
Constitutional Court expressed it unequivocally :
“
[95]
PAJA is the national legislation that was passed to give effect to
the rights contained in section 33. It was clearly intended
to be,
and in substance is, a codification of these rights.80 It was
required to cover the field and purports to do so.
[96]
A litigant cannot avoid the provisions of PAJA by going behind it,
and seeking to rely on section 33(1) of the Constitution
or the
common law. That would defeat the purpose of the Constitution in
requiring the rights contained in section 33 to be given
effect by
means of national legislation.
[97]
Professor Hoexter sums up the relationship between PAJA, the
Constitution and the common law, as follows:
"The
principle of legality clearly provides a much-needed safety net when
the PAJA does not apply. However, the Act cannot
simply be
circumvented by resorting directly to the constitutional rights in
section 33. This follows logically from the fact that
the PAJA gives
effect to the constitutional rights. (The PAJA itself can of course
be measured against the constitutional rights,
but that is not the
same thing.) Nor is it possible to sidestep the Act by resorting to
the common law. This, too, is logical,
since statutes inevitably
displace the common law. The common law may be used to inform the
meaning of the constitutional rights
and of the Act, but it cannot be
regarded as an alternative to the Act."81 (Footnotes and
emphasis omitted.)
I
agree.”
[20]
I accept
that there is scope for arguing when dealing with action which is not
administrative and therefore not capable of review
under PAJA, a
review based on legality and the rule of law can still be
entertained, as exemplified in the discussion of this remedy
in
Public
Servants Association of South Africa and another v Minister of Labour
and another
.
[4]
That matter concerned the Minister’s withdrawal of an
employee’s designation as the Registrar of Labour. In that case
the minister had raised a defence that her decision did not amount to
administrative action and therefore could not be reviewed.
Although
the court found that her action did constitute administrative action,
it nonetheless found that even if it was wrong about
the
administrative nature of the action, the decision was still
reviewable on the less stringent standard of legality, which requires
that the action must satisfy the requirements of being
intra
vires
,
rationally related to the purpose for which the power was given,
exercised for the purpose the power was granted and not for some
extraneous reason, and that it must be procedurally fair. A further
requirement is that the functionary must give reasons for their
decision.
[5]
[21]
However, in
this instance, AMCU did not make any serious attempt to explain why
the Minister’s action in making the determinations
did not
constitute administrative action and why a review relying purely on
the principle of legality founded on the rule of law,
without
invoking PAJA, was available to it as a remedy. For the sake of
clarity, I will nonetheless consider if the Minister’s
decision
amounted to administrative action susceptible to review under PAJA or
if it was simply the exercise of public power subject
only to review
under the principles of legality. In
Minister
of Defence and Military Veterans v Motau and others
[6]
,
the Constitutional Court summarised the defining characteristics of
administrative action based on existing jurisprudence :
“
[33]
The concept of "administrative action", as defined in
section 1(i) of PAJA, is the threshold for engaging in
administrative-law
review. The rather unwieldy definition can be
distilled into seven elements: there must be (a) a decision of an
administrative
nature; (b) by an organ of State or a natural or
juristic person; (c) exercising a public power or performing a
public
function; (d) in terms of any legislation or an
empowering provision; (e) that adversely affects rights;
(f) that
has a direct, external legal effect; and (g) that does
not fall under any of the listed exclusions.”
[22]
Clearly,
the decision of the Minister to make the determination satisfied all
of the characteristics in paragraphs (b) to (f) above
and none of the
listed exclusions in the definition of ‘administrative action’
in section 1 of PAJA apply. In relation
to whether the decision was
administrative in nature, the SCA in
Greys
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
[7]
set out typical identifying characteristics of administrative action:
“
[24]
Whether particular conduct constitutes administrative action depends
primarily on the nature of the power that is being exercised
rather
than upon the identity of the person who does so. Features of
administrative action (conduct of “an administrative
nature”)
that have emerged from the construction that has been placed on
section 33 of the Constitution are that it does
not extend to the
exercise of legislative powers by deliberative elected legislative
bodies, nor to the ordinary exercise
of judicial powers,
nor to the formulation of policy or the initiation of legislation by
the executive, nor to the
exercise of original powers conferred
upon the President as head of state.
Administrative action
is rather, in general terms, the conduct of the bureaucracy (whoever
the bureaucratic functionary might be)
in carrying out the daily
functions of the State which necessarily involves the application of
policy, usually after its translation
into law, with direct and
immediate consequences for individuals or groups of individuals.
[25]
The law reports are replete with examples of conduct of that kind.
But the exercise of public power generally occurs as a continuum
with
no bright line marking the transition from one form to another and it
is in that transitional area in particular that:
“
[d]ifficult
boundaries may have to be drawn in deciding what should and what
should not be characterised as administrative action
for the purposes
of section 33”.
In
making that determination:
“
[a]
series of considerations may be relevant to deciding on which side of
the line a particular action falls. The source of the
power, though
not necessarily decisive, is a relevant factor. So, too, is the
nature of the power, its subject matter, whether
it involves the
exercise of a public duty and how closely it is related on the one
hand to policy matters, which are not administrative,
and on the
other to the implementation of legislation, which is. While the
subject-matter of a power is not relevant to determine
whether
constitutional review is appropriate, it is relevant to determine
whether the exercise of the power constitutes administrative
action
for the purposes of section 33.”
[23]
In making the determination in this matter, the Minister was
exercising a specific power allocated to her under s 50 of the
BCEA,
and it obviously had direct consequences for AMCU members employed by
the employer parties to the collective agreements,
to which AMCU was
not a party. The power exercised by the Minister is incidental to
giving effect to the legislation and the policies
it embodies and
does not entail creating new policy. Consequently, I am
satisfied that the Minister’s conduct in issuing
the
determination is quintessentially administrative in nature. Therefore
it follows that AMCU had first to exhaust any available
internal
remedies before bringing this application, unless it can be
excused its failure to do so because of exceptional
circumstances as
provided for under section 7(2)(c) of PAJA, which states:
“
A
court or tribunal may, in that exceptional circumstances and on
application by the person concerned, exempt such person from the
obligation to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.”
[24]
To warrant
exceptional treatment, AMCU needed first to apply to court to be
exempt from any internal remedies it had not used and
secondly to
justify why the requirements of exhausting internal remedies should
be waived for it. Firstly, it made no such application.
Secondly, it
did not expressly advance reasons why it should be exempted, except
perhaps in the most oblique way by suggesting
that the submissions it
had made after the determination should have been construed as an
attempt to request the withdrawal of
the determination. I will deal
below with whether the submissions could conceivably be construed in
that way. The question of whether
exceptional circumstances existed
is also closely tied up with the type of internal remedies that were
available to AMCU. In
Koyabe
and Others v Minister for Home Affairs and Others (Lawyers for Human
Rights as Amicus Curiae)
[8]
the Constitutional Court had the following to say about the
considerations which might make a failure to exhaust internal
remedies
exceptional:
“
[39]
What constitutes exceptional circumstances depends on the facts and
circumstances of the case and the nature of the administrative
action
at issue. Thus, where an internal remedy would not be effective
and/or where its pursuit would be futile, a court may permit
a
litigant to approach the court directly. So too where an internal
appellate tribunal has developed a rigid policy which renders
exhaustion futile.”
[25]
In relation to AMCU’s argument that no internal remedy was
available to it to address the complaints it had, this is
difficult
to understand. Firstly, It had every opportunity under s 50(7)(b)(i)
to intervene before the determination was made by
making any of the
representations on the issues it now claims the Minister failed to
consider. Secondly, even after the determination
was made it had
another opportunity to make representations requesting the withdrawal
or amendment of the determination under s
50(9). It failed to use
these readily available and simple mechanisms at its peril, instead
choosing the more indirect and difficult
path that it has. Moreover,
there is no substantial reason advanced why those remedies in
principle could not have yielded relief
equivalent to the remedy it
seeks now.
[26]
AMCU’s last fall back position is that its representations
should have been construed as a request to withdraw the
determination.
Firstly, this submission suffers from the logical
difficulty that the submissions were plainly made on the assumption
that the
decision was still pending. There is no reason why the
Minister should have understood them to be anything other than a late
submission.
Once AMCU realised that the proverbial horse had bolted,
nothing prevented it from invoking the remedy provided by s 50(9). In
short, quite apart from failing to specifically apply to be exempt
from the requirement of invoking internal remedies, I am satisfied
that AMCU has failed to demonstrate exceptional circumstances which
might excuse it from not doing so before it embarked on this
application. As such, its non-compliance with s 7(2) is fatal to the
review application of the Minister’s determination,
irrespective of any substantive merits it might have.
The
review of the extension of the agreements under s 23(1) (d) of the
LRA.
[27]
AMCU had
originally also contended that the extension of the agreement under s
23(1) (d) of the LRA was susceptible to review as
administrative
action and that the agreements could not be extended because for the
purposes of satisfying the majoritarian requirement
of s
23(1)(d)(iii) the parties could not treat whole companies as
workplaces instead of individual mines. However, subsequent
to
launching the review the Constitutional Court decision in
Association
of Mineworkers and Construction Union and Others v Chamber of Mines
of South Africa and Others
[9]
,
clarified that while the extension of a collective agreement to a
non-party union’s members in a workplace under s s23 (1)
(d) is
an exercise of public power it was not an exercise of administrative
power and therefore not susceptible to the full gamut
of
administrative review remedies.
[10]
An extension of an agreement is capable of review only on the much
narrower test of legality measured by the “minimum standards
of
lawfulness and non-arbitrariness” which the Constitutional
Court described by reference to its own judgment in
Pharmaceutical
Manufacturers Association of SA: In re Ex parte President of the
Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC) as follows:
“
It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of the standards
demanded by our
Constitution for such action.”
[11]
[28]
The review grounds originally advanced by AMCU in respect of the
extension of the agreement under s 23(1)(d) were that :
28.1
The agreement did not address AMCU’s demand for a basic salary
of R 12 500, per month.
28.2
The agreement did not address severe income disparities between
employees and this breached s 27 of the EEA.
28.3
The variation of overtime worked was not fully detailed or explained
in terms of BCEA guidelines.
28.4
The overtime hours would impact adversely on underground employees’
health by placing them underground for
longer periods of time in
conditions contributing to silicosis.
[29]
One objection raised by the respondents to these grounds was that
these issues were not raised by AMCU during the negotiations
and
accordingly the parties in concluding the agreement could not be said
to have failed to to take factors brought to their attention
into
account, nor could they be held to have acted irrationally in not
considering them. This led to a dispute of fact and an application
by
AMCU to request an opportunity to lead oral evidence on AMCU’s
presentation during the course of the negotiations to resolve
the
dispute of fact.
[30]
Assuming, without deciding, that AMCU had made representations on
these issues during the collective bargaining
process
would that mean a failure by the other bargaining parties to take
them on board and include them in the agreement, or to
provide
reasons for rejecting them would make the extension of the agreement
reviewable under the principle of legality ? It
is important in
considering this question not to lose sight of the fact that the
exercise of public power at issue here relates
to decision to extend
the agreement to all employees, not the conclusion of the agreement
itself.
[31]
The agreement is the result of a bargaining process of give and take
in which concessions are made to arrive at a deal the
parties can
jointly live with. AMCU was part of that process but because it was
not the majority union its consent was not necessary
for concluding
the deal. The collective bargaining process, is self-evidently not an
adjudicative process in which the respective
demands of the parties
are weighed and evaluated by a third party for their soundness,
quality and weight to arrive at a considered
outcome, which the
third party can be called upon to justify. The outcome of
collective bargaining is a settlement
of conflicting bargaining
positions not a ruling. It is reasonable to assume that most unions
or employers would struggle to motivate
their reasons for arriving at
a particular collective agreement on substantive issues other than in
terms of why they had decided
to make certain concessions and not
others in order to achieve the settlement. An interrogation of the
substantive outcome of the
negotiations against a yardstick used to
evaluate decisions which are not the result of negotiation but
deliberation is very difficult
to conceive of. A legality based
review which treats what transpired in the preceding bargaining
process as if it were the
evidence before an enquiry on the basis of
which a decision was made to extend the agreement, risks artificially
judicialising
the bargaining process.
[32]
The issue on review of the extension of the agreement is only about
whether the power exercised in extending the outcome of
collective
bargaining was related to the purpose for which it was granted or
exercised for some ulterior motive. On this question,
AMCU advanced
no direct arguments and there is nothing to suggest that the
agreement was extended for any other reason than to
ensure uniformity
of conditions for all employees for the duration of the agreement and
that was premised on the agreement having
been concluded with the
most representative union in the workplace. That appears to be
consonant with the purpose of granting such
a power. No conditions
were imposed on AMCU members by the agreement which were more
unfavourable than those imposed on NUM members.
AMCU does not claim
the decision to extend the agreement was
mala fide,
capricious
or arbitrary. AMCU’s main complaint was about the effect of the
outcome of the bargain itself.
[33]
However, a residual argument remains, which I understand to be the
following: the extension of an agreement which included
the
variations of working hours could not be rationally related to the
purpose of that power if it effectively permits, subject
to
confirmation by a determination, a deterioration in the health and
safety standards of employees, which is a factor an employer
is
required to consider when determining working hours under s 7(b) of
the BCEA. That argument presupposes that such a deterioration
ought
to have been plainly evident from the terms of the variation
provisions or that the bargaining parties should have deliberated
and
assessed the inherent merits of the motivation for respective
bargaining positions in an adjudicative fashion and bear those
assessments in mind when extending the agreement as well.
[34]
The principle contention of AMCU on this issue is that, by allowing
the deviations on working time, employees will suffer more
prolonged
exposure to mine dust and therefore will be exposed to a
proportionately greater risk of contracting silicosis, which
is
contrary to the requirement that employers must regulate working
hours with due regard to health and safety and it could never
be a
rational exercise of the power to extend an agreement to allow that.
For the reasons mentioned about the nature of the collective
bargaining process, I do not think there is an obligation on parties
deciding to extend an agreement to review the merits of points
made
during the process. For that reason, I also do not think it would be
appropriate to admit oral evidence to clear up disputes
of fact about
what was said in the bargaining process. This challenge is far more
appropriate to apply to the distinct evaluative
and deliberative
process of making the determination, without which the agreement on
the variation of BCEA terms contained in the
collective agreement
cannot be implemented anyway.
[35]
The remaining issue is whether it should have been nonetheless
inescapably evident that if the agreement was extended it would
in
all probability have had an unacceptable impact on employee’s
health.
Prima facie,
it seems a plausible contention that
longer hours spent underground and thereby longer hours exposed to
mine dust will increase
the risk of silicosis. I accept there was a
quibble about the fact that the period of averaging working hours was
not expressed
in the agreement on variation, but it is not in dispute
that the applicable averaging period is a fortnight on the affected
mines.
[36]
In terms of sections 9 and 10 of the BCEA, ordinary hours of work are
limited to 45 hours per week and weekly overtime hours
cannot exceed
10 hours per week. This means that ordinarily, total working time
could amount to 60 hours per week in the absence
of an averaging
arrangement. Without a variation of s 12(2) (b) overtime hours are
limited to an average of 5 hours per week if
an averaging system is
in place. Therefore it is true that by raising that to 10 hours the
time underground could be 5 hours longer
than it could be if s
12(2)(b) was not varied. Even so, on average and therefore
accumulatively, the total hours worked
during any cycle of averaging
would still not exceed the total normal working hours and overtime
hours that can be worked in the
same period if an employer simply
complied with the 45 hours per week and 10 hours overtime limits
respectively determined by sections
9(1) (a) and 10(1)(b).
Consequently, for any period of averaged working hours, in accordance
with the variation of 12(2) (b) allowing
up to 10 hours overtime per
week on average, the total hours underground could never exceed the
total hours an employee could work
underground under the ordinary
maxima permitted by the BCEA.
[37]
If the total hours that can be worked under the relaxation of s
12(2)(b) are still restricted to what the BCEA ordinarily permits
where working hours are not averaged, it is difficult to see
how the variation sought cannot pass the restricted standard
of
rationality, bearing in mind that the nature of AMCU’s
objection on health grounds is to the total time exposed to mine
dust
over time and not the length of individual shifts. To put it
differently, in order to hold the decision to extend the agreement
irrational, in particular those terms permitting an averaging of
working hours to include an average of 10 hours overtime a week,
the
court would have to find that permitting a work regime under which
the total ordinary and overtime hours over a two week averaging
period cannot exceed the total hours that can ordinarily be worked
anyway under the BCEA would imply an irrational disregard
of
employee health in the regulation of working hours. In my view, the
effect of the agreement to vary s 12(2) (b) is insufficient
to
warrant such an inference being drawn and therefore does not render
the extension reviewable as an unlawful or irrational exercise
of
public power.
[38]
In any event, this probably overstates what AMCU can legitimately
raise under the rubric of a legality review. There is nothing
that
suggests that the decision to extend the agreement to all employees
was not a rational exercise of the power afforded parties
under s
12(2)(b) of the LRA. It was not unrelated to the purpose for which it
was granted. The fact that the variation regime agreed
to was one
that had in place for several years and was the product of a
collective bargaining process with a majority union in
the workplace,
and that it was still subject to the checks and balances of the s 50
BCEA process because the variations could not
be implemented unless
that process was followed and concluded, are ample reasons to
recognise the extension as a lawful one and
one that was lacking in
arbitrariness.
Costs
[39]
AMCU’s case has been progressively reduced in scope with the
passage of time, in part due to the effect of the 2017
AMCU v COM
judgment of the Constitutional Court and in part because it abandoned
other grounds of review. The respondents raised fundamental
objections to AMCU’s ability to proceed with a review of the
determination which should have been obvious by the time it
had
considered the opposing affidavits of the respondents. Further, what
could be salvaged of the case in respect of the s 12(2)(b)
extension
was extremely tenuous after the judgment in
AMCU v COM
removed
the strongest ground of review based on the definition of a workplace
and confined that review to one based on legality
alone. In the
circumstances, at the very least AMCU ought not to have pursued the
case after receiving the opposing papers
and I believe in law and
fairness, it is appropriate that it pay the respondents costs after
that point.
Order
[1]
The review application of the extension the collective agreement for
the gold mining sector concluded on 2 October 2015 between
the
Chamber, NUM , UASA and Solidarity under s 23(1) (d) of the LRA
to all employees employed in the workplaces of the employers
listed
in Annexure A to the agreement is dismissed.
[2]
The review application of the Ministerial Determination issued on 10
December 2015 under s 50(8) (c) of the BCEA attached as
Annexure
“JM3” to the founding affidavit is dismissed.
[3]
The applicant must pay the first, second and third respondents costs
of opposing the application incurred from the date the
applicant
received the last answering affidavit’, including the costs of
senior and junior counsel.
_____________________
Lagrange
J
Judge
of the Labour Court of SouthAfrica
APPEARANCES
APPLICANT:
FA
Boda SC and Z Navsa
instructed
by Larry Dave
Attorneys
Inc.
FIRST
RESPONDENT:
PG
Seleka SC and E Tolmay
instructed
by the State
Attorney
SECOND
RESPONDENT:
A
Myburgh SC instructed by
Edward
Nathan Sonnenberg
Inc.
THIRD
RESPONDENT:
J
G Van der Riet SC instructed
by
Cheadle, Thompson &
Haysom
Attorneys
[1]
(GenN 1440 in GG 19453 of 13 November 1998)
[2]
(2015) 36
ILJ
935 (WCC)
[3]
2006 (1) BCLR 1
(CC) at 37-38. In the labour context this principle
was affirmed in
Building
Industry
Bargaining
Council
(Southern
and
Eastern
Cape)
v
CCMA
[2011]
4
BLLR
330
(LC)
at 337, para [16].
[4]
[2016] 1 BLLR 68 (LC)
[5]
At 85-6, paras [54] to [56].
[6]
2014 (8) BCLR 930
(CC) at 941
[7]
2005 (10) BCLR 931 (SCA)
[8]
2009 (12) BCLR 1192
(CC) at 1204.
[9]
(2017) 38
ILJ
831 (CC)
[10]
At paragraphs [83] to [87].
[11]
At paragraph [84] footnote 90.