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[2018] ZALCJHB 437
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National Union of Metalworkers of South Africa and Others v Anglo Gold Ashanti Limited and Another (J1968/18) [2018] ZALCJHB 437 (28 June 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: j 1968/18
In
the matter between:
NATIONAL
UNION OF METALWORKERS
OF
SOUTH AFRICA
First Applicant
LIST
OF NUMSA MEMBERS
IN
ANNEXURE FA1
Second to Further Applicants
and
ANGLO
GOLD ASHANTI LIMITED
First Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
Heard:
13 June 2018
Delivered:
28 June 2018
JUDGMENT
MAHOSI.J
Introduction
[1]
This
is an application
in
terms of section 189A (13) read with section 158(1)(b) of the Labour
relations Act
[1]
(LRA) for an
order in the following terms:
‘
1
Condoning the applicant’s failure to
comply with the time periods in terms of Rule 8 of the Rues of the
Labour Court and ordering
that the matter be heard as a matter of
urgency;
2.
Ordering the respondents to permit the first applicant to participate
fully in
the consultation process, as contemplated in
section
189(1)(b)(ii)
of the
Labour Relations Act 66 of 1995
as amended;
3.
Ordering the first respondent to pay the costs of the application
alternatively,
if the second respondent opposes this application
ordering both the first and the second respondents to pay the costs
jointly and
severally the one paying the other to be absolved;
4.
Granting any further and/or alternative relief.’
The parties
[2]
The first applicant is the Nation Union of Metalworkers of South
Africa (NUMSA), a registered
trade union in accordance with
section
96
of the LRA.
[3]
The second to further applicants are members of NUMSA identified in
annexure “FA1”.
These employees are employed by the
respondent within its South African Region, at its various
operations, departments and divisions.
[4]
The first respondent is AngloGold Ashanti Limited (AngloGold), a
listed company duly
incorporated in terms of Company Laws of South
Africa.
[5]
The second respondent is the Commission for Conciliation, Mediation
and Arbitration
(CCMA). No relief is sought directly against the CCMA
unless it opposes the relief sought in which case cost order will be
sought
against it.
Material background
facts
[6]
The facts in this matter are mainly common cause or not in dispute.
AngloGold operations
in the South African region, historically
consisted of Moab Khutsong Mine, Kopanong Mine, Great Noligwa Mine,
Mponeng Mine, Savuka
Mine, Tau Tona Mine, AngloGold Ashanti Health
Services Limited, Mine Waste Solutions, South African Regional
Services and South
African Regional Metallurgy Services.
[7]
During 2015 and 2016, NUMSA began recruiting at AngloGold. Despite
its efforts, NUMSA
has not secured recognition for the purpose of
collective bargaining nor has it secured organisational rights, apart
from stop
order facilities.
[8]
During the middle to late 2017, AngloGold sold the whole or part of
its Kopanong mine
to Village Main Reef Limited and the whole of Moab
Khutsong mine to Harmony Gold Mining Company. On 19 October 2017,
AngloGold
issued an internal brief that the sale of the Kopanong and
Moab Khutsong mines fell within the ambit of
section 197
of the LRA.
[9]
In an undated letter sent to NUMSA, AngloGold stated that during
January 2018 NUMSA
had 625 members, but following the sales of
Kopanong and Moab Khutsong mines, NUMSA only had 40 members at
Off-Mine Regional Services.
[10]
Following a retrenchment consultation process, on or about 14 March
2018, AngloGold dismissed
several employees including members of NUM,
Solidarity, AMCU, UASA and NUMSA. The retrenchment consultation was
conducted and AngloGold
consulted with NUM, Solidarity, AMCU and
UASA. NUMSA was not invited to the said consultation process.
[11]
On 9 April 2018, the NUMSA General Secretary, Mr Irvin Jim (Jim) sent
a letter to AngloGold imploring
it to recognise NUMSA and to engage
with it. On 24 April, AngloGold’s Vice President responded to
the letter by email indicating
that the Group Head of Employee
Relations would engage with NUMSA at a local level.
[12]
On 21 May 2018, AngloGold issued a notice in terms of
section 189(3)
of the LRA and the said notice was not sent to NUMSA.
[13]
On 30 May 2018, AngloGold issued a brief to non-union members
advising that the 60-day retrenchment
consultation process would
commence on 4 June 2018. The brief further advised that recognised
trade unions would be actively involved
in the consultation process
and non-union members were invited to nominate one representative for
management employees and one
representative for non-management staff.
[14]
On 1 June 2018, NUMSA’s attorneys of record sent a letter of
demand to AngloGold. In the
letter, NUMSA’s attorneys sought an
undertaking that NUMSA would be included in the retrenchment
consultation process. In
the said letter, NUMSA’s attorneys
stated that AngloGold was required to consult with any registered
trade union whose members
are likely to be affected because there was
no workplace forum and no collective agreement contemplated by
section 189(1)(a)
of the LRA.
[15]
On 2 June 2018, AngloGold responded by email indicating that it
intends opposing any action instituted
by NUMSA. On 4 June 2018,
NUMSA’s attorneys requested for a more detailed response from
AngloGold. On the same day, AngloGold’s
attorneys sent a letter
in terms of which they stated, amongst others, that several
collective agreements contemplated by
section 189(1)
had been
concluded with each of the recognized trade unions namely, NUM,
Solidarity, UASA and AMCU. AngloGold disputes that it
has not
complied with a fair procedure as it alleges that it is not obliged
in terms
section 189(1)(a)
to consult with NUMSA.
Preliminary
Issues
[16]
In its answering affidavit, AngloGold raised a number of preliminary
issues relating to the application.
Before dealing with the merits of
the application itself, it is necessary to deal with each of them.
Locus
Standi
[17]
The first point raised was that the deponent to the founding
affidavit did not have the necessary
locus standi
to depose to
the affidavit as he was no longer an employee of AngloGold. However,
NUMSA delivered to AngloGold a Power of Attorney
for the deponent on
12 June 2018. As a result, AngloGold no longer persists with this
point.
Applicants
before the Court
[18]
In its founding affidavit, NUMSA submitted that the
second
to further applicants
were its members who are employed by
AngloGold. NUMSA contended that there were 646 of its members within
AngloGold’s employ.
[19]
AngloGold disputed this and submitted that only four of its employees
are members of NUMSA, namely
IA Mamutle, NE Ntaopane, JL Garekoe and
SS Roberts. According to AngloGold, only JL Garekoe and SS Roberts
are employed in areas
of its operations where employees are
potentially affected by possible dismissals based on operational
requirement.
[20]
In this regard, NUMSA conceded that for the purpose of the final
relief sought, AngloGold’s
version must be accepted.
Mootness
[21]
AngloGold submitted that JL Garekoe and SS Roberts are employed as
grade 2 security officers
at its metallurgical operations. It is
common cause that there are 63 grade 2 officers in total. Of this
number, AngloGold proposes
reducing the headcount by 2 employees.
Anglo Gold has further proposed that the principle of
last-in-first-out (LIFO) will serve
as a selection criterion in the
retrenchment process.
[22]
It is common cause that JL Garekoe has 34 years’ service and SS
Roberts has 12 years’
service with AngloGold. It is also common
cause that there are a number of grade 2 security officers with
lesser service than JL
Garekoe and SS Roberts. As such, AngloGold
submitted that the relief sought by NUMSA is only academic. In the
circumstances, AngloGold
argued that the entire application is moot
and ought to be dismissed.
[23]
In this regard, NUMSA submitted that it made a without prejudice
settlement proposal that the
parties on the basis that AngloGold give
an undertaking that no NUMSA member will be retrenched in the current
exercise. AngloGold’s
view was that it could not give the
unconditional undertaking sought as this would compromise the entire
section 189
process. This is a fair proposition. I do not intend
making a determination on the mootness or not of this matter for
reasons that
will become obvious in this judgment.
Merits
of the case
[24]
The issue is whether NUMSA should be included in the facilitated
consultation process that is already
underway between AngloGold and
NUM, Solidarity, UASA as well as AMCU. AngloGold contends that it is
under no obligation to consult
with NUMSA by virtue of the
hierarchical consultation process as set out in
sections 189(1)(a)
of
the LRA. It is common cause that AngloGold concluded with each of the
recognised trade unions namely, NUM, Solidarity, UASA
and AMCU an
identical Labour Relations Recognition and Procedural Framework
Agreement (Framework Agreement). As a result, it argued
that NUMSA,
not being a consulting party, has no
locus standi
to bring
this application.
[25]
Section 189
provides as follows:
‘
(1)
When an employer contemplates dismissing one or more
employees
for reasons based on the employer's
operational
requirements
, the employer must
consult-
(a)
any person whom the employer is required to
consult in terms of a
collective
agreement
;
(b)
if there is no
collective
agreement
that requires consultation-
(i)
a
workplace forum
, if the
employees
likely to be
affected by the proposed
dismissals
are employed in a
workplace
in respect of which there is a
workplace forum
;
and
(ii)
any registered
trade union
whose members are likely to be
affected by the proposed
dismissals
;
(c)
if there is no
workplace
forum
in the
workplace
in which the
employees
likely to be affected by the proposed
dismissals
are employed, any registered
trade union
whose members are likely to be affected by the proposed
dismissals
;
or
(d)
if there is no such
trade
union
, the
employees
likely to be affected by the proposed
dismissals
or their representatives nominated for that purpose.’
[26]
NUMSA accepts the general principle that
section 189(1)
envisages a
hierarchical consultation process and further that the Framework
Agreements are collective agreements. However, NUMSA
disputes that
the collective agreements are those envisaged by
section 189(1)(a)
of
the LRA. As such, NUMSA contends that AngloGold is required in terms
of
section 198(1)(c)
to consult with it as it is the registered trade
union whose members are likely to be affected by the proposed
dismissals.
[27]
Reference to some of the provisions of the collective agreements
AngloGold sought to rely on
that are relevant to this application is
necessary. The parties agreed as follows:
‘
2.3
The Agreement will apply to the Parties and provide for mechanisms
and infrastructure to enhance
consultation, communication and
negotiations between the parties on matters of mutual interest,
subject to the confines as outlined
in clauses 6.5 and 8.4.1.5. The
purpose of this agreement is to create an inclusive Labour Relations
Recognition and procedural
framework for South Africa.’
[28]
Clause 13 provides for the formation of the South African Regional
Steering Committee (SARSC)
composed of management and NUM, AMCU, UASA
and Solidarity. Clause 14 sets out the term of reference of SARSC and
it provides as
follows:
’
14.1
The South African Regional Steering Committee (SARSC)
will provide a mechanism for management and unions to interact
in a
structured manner about matters that affect management and the union
relations.
…
14.5
It will act as a consultative and advisory forum for the matters
within the scope and mandate of management
of South Africa.
14.6
It will seek to achieve consensus through joint problem solving,
common goals and shared values.’
[29]
Clause 20 provides for the retrenchment procedure and states as
follows:
‘
The
Company undertakes to follow procedure applicable in terms of the
relevant sections of the Act should dismissals on account
of
Operational Requirements become necessary.’
[30]
NUMSA referred this Court to
Aunde
South Africa (Pty) Ltd v NUMSA
[2]
in which the LAC dealt with the hierarchy of consultation and stated
as follows:
‘
[32]
Where an employer consults in terms of agreed procedures with the
recognised representative trade union in terms of a collective
agreement which requires the employer to consult with it over
retrenchment, such an employer has no obligation in law to consult
with any other union or any individual employee over the
retrenchment. If such a consultation exercise culminated in a
collective
agreement that complies with the requirements of a valid
collective agreement, all employees including those who are not
members
of the representative trade union that consulted with the
employer are bound by the terms of such collective agreement
irrespective
of whether they were party to the consultation process
or not.
[31]
Thus,
where an employer consults
with the recognized representative trade union(s) in terms of a
collective agreement over the agreed
retrenchment procedure, such an
employer is
not obligated
in law to consult with any other union or any individual employee
over the retrenchment.
[32]
It
is apparent that the current matter is distinguishable from
Aunde
[3]
on facts.
In
Aunde,
the
appellant excluded the respondent, NUMSA, from consultations on the
basis that NUMSA was
no longer a union whose members formed the majority of the employees.
As such it contended that it had no obligation to consult
NUMSA in
relation to the retrenchment exercise. In excluding NUMSA, the
appellant relied on clause 4.1 and
clause
16 which were summarised by the LAC as follows:
‘
[37]
Clause 4.1 that vaguely states that UASA is recognised as “the
sole bargaining representative of the employees in the
bargaining
unit for all other work related plant level issues, including any
need to consult as required by the LRA” should
not be
considered in isolation and out of context of the entire agreement.
Of importance is clause 16 of the agreement which specifically
refers
to a “Retrenchment Procedure”. Clause 16 states that a
retrenchment procedure “will be negotiated between
the parties
as soon as possible”. It is common cause that at the time of
the dismissal of the respondent’s members,
there was no
negotiated retrenchment procedure between the appellant and UASA in
existence. The appellant could therefore not have
acted in terms of
clause 16 of the agreement.’
[33]
In this regard,
the
LAC found as follows:
‘
[38]
Section 189(1)
of the Act that has been referred to above places a
duty on any employer to consult any person it is required to consult
in terms
of a collective agreement or other persons or structure
where there is no collective agreement. It would therefore be
unreasonable
to interpret clause 4.1 of the agreement in such a way
that it included consultation in terms of
section 189
(1) of the Act
when the procedure required to consult in terms of section189 (1) of
the Act had not been negotiated with UASA in
particular.’
[34]
In the current
matter, NUMSA took issue with the body that AngloGold is consulting
with over the current retrenchment as it includes
further nominees
and is facilitated by the CCMA. NUMSA further challenges AngloGold’s
suggestion that the facilitating commissioner
would have the power to
rule that a NUMSA representative can be included in the proceedings.
In this regard, NUMSA argued that
AngloGold can only rely on a
collective agreement in the hierarchy of consultation when such
collective agreement contains specific
negotiation procedure, the
consulting parties are identified and when the parties are complying
with those agreed procedures.
[35]
Clauses 2, 13, 14 and 20 of the collective agreement should be
considered in the context of the
whole agreement. It is apparent that
the collective agreements entered into between AngloGold and
NUM,
Solidarity, AMCU as well as UASA
provides
for SARSC to consult over matters of mutual interest and dismissals
for operational requirements are matters of mutual
interest. Thus,
this is an issue in respect of which SARSC must consult over.
[36]
It is further apparent that AngloGold undertook to follow the
procedure applicable in terms of
the relevant section of the LRA
should dismissals on account of operational requirements become
necessary. The relevant section
in this regard is
section 189
and
189A
of the LRA.
Section 189(1)(a)
requires AngloGold to consult
any
person whom the employer is required to consult in terms of a
collective agreement, which is
NUM, Solidarity, AMCU and UASA.
[37]
The fact that
the body that
AngloGold is consulting with over the current retrenchment includes
further nominees and is facilitated by the CCMA
is of no consequence.
Section 189A(3)
provides for the appointment of a CCMA
commissioner to facilitate the retrenchment process and although
AngloGold is not obligated
in law to consult with any other person,
it may do so. As such, AngloGold is under no obligation to consult
with NUMSA.
It
follows that NUMSA’s application to compel AngloGold to comply
with a fair procedure should be dismissed.
Costs
[38]
In terms of
section 162
of the LRA, the Court has a wide discretion
in awarding costs. The Constitutional Court has recently reiterated
in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[4]
,
that costs orders should be made in accordance with the requirements
of law and fairness. In this matter, there is no reason why
the costs
should not follow the cause.
[39]
In the circumstances, I make the following order.
Order
1.
This
application is dismissed with costs.
____________________
D
Mahosi
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
Advocate C. Orr
Instructed
by:
Cheadle Thompson and Haysom
Incorporated
For
the first respondent: Mr L Frahm-Arp
Instructed
by:
Fasken Martineau/Bell Dewar incorporated
[1]
Act
66 of 1995 as amended.
[2]
[2011]
10 BLLR 945
(LAC);(2011) 32 ILJ 2617 (LAC)
[3]
Supra
.
[4]
(2018)
39 ILJ 523 (CC).