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[2018] ZALCJHB 209
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Makhunga and Another v SALGBC (JR430/11) [2018] ZALCJHB 209 (21 June 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR 430/11
In
the matter between:
B
MAKHUNGA &
ANOTHER
Applicant
and
SALGBC
First
Respondent
K
MAMBA
Second
Respondent
CITY
OF
JOHANNESBURG
Third
Respondent
Heard:
28 July 2011
Delivered:
21 June 2018
JUDGMENT
SELLO
AJ
Introduction
[1]
This
is an application for the review of an arbitration award in terms of
section 145 of the Labour Relations
[1]
(‘the LRA’) issued by the second respondent on 24 January
2011, sitting as an arbitrator in the South African Local
Government
Bargaining Council, the first respondent herein. The record indicates
that the matter was heard by the second respondent
on 26 November
2010. The matter is unopposed.
[2]
The background to the matters is as follows. The two applicants were
employed by the third respondent and were dismissed. The
applicants
contended that their dismissal was unlawful and instituted
proceedings before the first respondent to challenge same.
The
applicants had instituted separate cases, but these were subsequently
consolidated and were heard together on 26 November 2010.
The
proceedings before the second respondent
[3]
The papers seem to indicate that the matter may have been heard on
two days - 26 November 2010 and 18 January 2011. The transcript
of
proceedings filed however relates only to the first hearing. No
record was filed in regard to a hearing on 18 January 2011 and
no
reference was made thereto in the second respondent’s award.
[4]
From the transcript, the following arises. On the first day of
hearing the applicants were represented by a fellow employee
and the
employer by an employee responsible for labour relations. The
employer’s representative challenged the status of
the
employees’ representative, submitting that the representative
was not an employee of the third respondent and as such
is precluded
by representing the employee in the proceedings.
[5]
In response, the employees’ representative addressed the issue
and stated that she is an employee of the Johannesburg
Metro Police
Department, employed as a Metro Police Officer and stated her
employee number (the details of which are excluded from
this
judgment).
[6]
The employer’s representative raised a further challenge that
the employees’ representative was not a member of
the
employees’ Trade Union and as such did not have the right to
represent the applicants. He argued that an employee cannot
be
represented by another employee in proceedings before the first
respondent.
[7]
In response, the employees’ representative contended that in
terms of the LRA and the applicable collective agreement
the
applicants are entitled to representation by a fellow employee. The
second respondent made a ruling on this point and issued
an award. It
is this award that is subject to review in these proceedings.
[8]
The second respondent ruled that rule 25 of the South African Local
Government Bargaining Council (“SALGABC”) Rules
prescribes that a party in arbitration proceedings conducted under
the auspices of SALGA may be represented only by a legal
practitioner,
a director or employee of the party or any member,
office-bearer or official of that party’s registered trade
union or a
registered employer’s organization. He concluded
that as the employees’ representative does not fall within any
of
the stated categories, their representative therefore lacked the
requisite
locus standi
to represent the applicants.
The
review
[9]
The applicants advanced the following grounds of review:
9.1.
The arbitrator erred in invoking rule 25 as he did as the SALGABC
Rules does not have such a rule.
9.2.
The applicants’ representative provided evidence of her
employment with the third respondent and thus proved she has
the
necessary
locus standi.
[10]
I will consider these grounds in turn.
[11]
The first ground concerns the existence or otherwise of rule 25 which
the second respondent relied upon. The applicants contend
that such a
rule does not exist and assert that the applicable provision is
section 25(b)(3) of the Rules to Conciliations, Arbitrations
and
Con-Arbs which they state provides as follows:
“
In
any arbitration proceedings, a party to the dispute may appear in
person or be represented only by:
(3)
Any member
, office-bearer or official of that party’s
registered trade union or a registered employers’ organisation’
[underlying
provided by the applicants].
[12]
Part Five of the SALGBC Rules deals with rules that apply to
conciliation, arbitrations and con-arbs. In rule 25(2)(i) to (iii)
it
stipulates who may represent a party in any arbitration proceedings.
It states that only a legal practitioner, a director or
employee of
the party or any member, office-bearer or official of that party’s
registered trade union or a registered employer’s
organization
may represent a party in arbitration proceedings.
[13]
As the applicants’ representative is not ‘a legal
practitioner’ nor ‘a director’ or an employee
of
the applicants, the only basis she would have
locus standi
is
if she is ‘a member’ or ‘office-bearer’ or
‘official’ of their registered trade union’.
The
applicants do not contend that their representative was at all
relevant times a member of their trade union.
[14]
Section 27 of the LRA provides for the establishment of bargaining
councils. The first respondent is one such bargaining council.
The
bargaining council has issued the SALGBC Collective Agreement on
Rules For the Conduct of Proceedings Before the SALGBC.
[15]
Section
23(1)
of
the LRA stipulates that a collective agreement is binding on those
who are parties to it as well as their respective members.
The
applicants are members of a trade union that is a party to this
collective agreement. They are thus bound by its terms.
[2]
In
terms of section 28 of the LRA, the powers and functions of a
bargaining council include the power to enforce those bargaining
agreements.
[16]
The bargaining agreement is therefore enforceable against the
applicants and rule 25(2) must be complied with, unless a basis
is
advanced why it should not be upheld in this case. None has been
advanced by the applicants and I have no basis to depart from
the
requirements of the rule.
[17]
In the review application, the applicants have submitted a copy of
the representative’s salary advice. From this salary
advice, a
deduction of R62.00 is reflected as an IMATU Union fee. Therfore, on
the face of it it would appear that the representative
is a member of
IMATU, a member of the SALGBC.
[18]
In the founding affidavit the applicants claim that the arbitration
was held on 18 January 2011 and the award received on 15
February
2011. No reference is made to the record of proceedings of 26
November 2010. In their heads of argument, the applicants
claim that
the salary advice as well as appointment certificate of their
representative was availed to the second respondent. It
is not clear
when. They argue that the second respondent had all the evidence that
their representative was a member of their trade
union. Consequently,
the argument goes, he erred in his finding that there was no proof
that such representative was ‘a member’
or
‘office-bearer’.
[19]
I point out that the second respondent’s award does not make
any reference to the salary advice as well as appointment
certificate
of the applicants’ representative. A reading of his award
suggests that he did not have these documents at hand.
[20]
It bears mentioning that the salary advice submitted and relied upon
by the applicants is dated 20 December 2010. This is clearly
a later
date than 26 November 2010 when the hearing was held. This is the
date, according to the transcript, when the issue of
the applicants’
representative’s
locus standi
was squarely raised.
[21]
The applicants were well aware that the issue for determination was
whether their representative at the time she purported
to represent
the applicants in the arbitration, including 26 November 2010, was a
member of IMATU. The salary advice provided clearly
does not answer
this question.
[22]
It is unclear why the applicants rely on a later salary advice when
they were well aware of the purpose it was intended to
serve. Their
representative was involved in these proceedings as early as 25
August 2010 when the request for conciliation was
submitted. In fact,
she made an application for consolidation of the two matters on 11
November 2010.
[23]
The inescapable conclusion is that until December 2010, and in
particular, as at 26 November 2010 the applicants’
representative
was not a member of IMATU.
[24]
The applicants’ reliance on the date of 18 January 2010 as the
hearing date is intended to convey a suggestion that the
locus
standi
of their representative was raised at such hearing and
that when this matter was heard, their representative was a member of
IMATU,
and thus fell within the provision of rule 25(2)(iii). There
is no evidence however that there was a hearing on this date. As I
have stated, the applicants have not produced any other record except
to those pertaining to the hearing of 26 November 2010. On
the papers
before me therefore, there is no evidence that the second
respondent’s award is based on a hearing other than
that of 26
November 2010.
[25]
I conclude that the applicants have failed to discharge the onus they
bore to prove that their representative was a member
of IMATU as at
26 November 2010 and thus had the requisite
locus standi
as
contemplated in rule 25(2)(iii).
[26]
I have not been able to locate section 25(b)(3) of the Rules that the
applicants assert apply to this matter. I take the reference
to be an
error as in the heads of argument the applicants refer to ‘Part
Five Sect 25(b)(3)’. I conclude that this
reference is to rule
25(2)(iii), which is indeed in Part Five of the SALGBC Rules. I am
fortified in my conclusion by the applicants’
own quotation of
the so-called section 25(b)(3) which is in exact terms as rule
25(2)(iii).
[27]
The second ground of review advanced is that the applicants’
representative provided evidence of her employment with
the third
respondent and thus proved she has the necessary
locus standi.
[28]
I am willing to accept that the applicants’ representative was
an employee of the third respondent at all material times.
As already
indicated, the representative was able to place her employee number
on record. There is no evidence that the employer’s
representative challenged this evidence. The evidence with regards to
the applicants’ representative’s employment cannot
be
gainsaid. This fact alone however would not entitle her to represent
the applicants as rule 25(2)(iii) requires membership to
the
applicants’ trade union, and not employment with the employer.
This ground is therefore without basis and falls to be
rejected.
[29]
Based on the evidence adduced before the second respondent, I find
that his award is unassailable and must stand.
Order
[30]
In the premises, I make the following order:
1.
The application is dismissed.
____________________________
M Sello
Acting
Judge of the Labour Court
Appearances
For
the Applicant: Ms V Mgcima
For
the Respondent: None
[1]
66 of 1995, as amended.
[2]
Kem-Lin
Fashions CC v Brunton
[2001]
1 BLLR 25
(LAC)