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[2018] ZALCJHB 281
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National Union of Public Service and Allied Workers (NUPSAW) and Others v General Secretary of the Public Health and Social Development Sectoral Bargaining Council and Another (J2217/18) [2018] ZALCJHB 281 (4 September 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case
no: J 2217/18
In the matter between:
THE NATIONAL UNION OF
PUBLIC
SERVICE AND ALLIED
WORKERS (“NUPSAW”)
First
Applicant
SOUTH AFRICAN
LIBERATED PUBLIC
SECTOR WORKERS UNION
(“SALIPSWU”)
Second
Applicant
SOUTH AFRICAN STATE
AND ALLIED
WORKERS UNION
(“SASAWU”)
Third Applicant
YOUNG NURSES INDABA
TRADE UNION (“NYITU”)
Fourth Applicant
SOUTH AFRICAN
CORRECTIONAL
SERVICES
UNION
(“SACOWSU”)
Fifth Applicant
and
THE
GENERAL SECRETARY OF THE
PUBLIC
HEALTH AND SOCIAL DEVELOPMENT
SECTORAL
BARGAINING COUNCIL,
MR.
MPUMELELO SIBIYA,
N.O
First Respondent
PUBLIC
HEALTH AND SOCIAL DEVELOPMENT
SECTORAL
BARGAINING COUNCIL (“PHSDSBC”)
Second
Respondent
Heard:
17 August
2018
Delivered:
4 September 2018
Summary:
Urgent application to interdict the general secretary of the
bargaining council from conducting a further verification
of trade
union membership. Point
in limine
on non-joinder upheld.
JUDGMENT
PRINSLOO,
J
Background
[1]
The
Applicants seek an order to interdict and restrain the First
Respondent (the General Secretary) from giving effect to a decision
of the Second Respondent (the Council) which resolved that a further
verification of trade union membership be done on the grounds
that
such resolution is unlawful and in breach of the bargaining council’s
constitution.
[2]
The
matter came before the urgent Court on 27 June 2018 when the parties
agreed to an order in the following terms:
Order
1.
By consent of the Respondents,
an interim order is granted that the First Applicant, the National
Union of Public Service and Allied
Workers (NUPSAW), shall be
regarded as a member of the Second Respondent, the Public Health and
Social Development Sectoral Bargaining
Council (PHSDSBC), which order
shall operate until the outcome of the verification process for the
determination of representivity
levels, which is the subject of the
resolution adopted by the PHSDSBC on 21 June 2018, or until any
further order which may be
issued by this Court after hearing
argument, whichever occurs earlier;
2.
The issuing of this order shall
not affect the rights of the Applicants to challenge the validity of
the PHSDSBC’s resolution
adopted on 21 June 2018 or the
verification process and its outcome in due course;
3.
The issuing of this order shall
not affect the rights of the Respondents to challenge the urgency of
this application and to raise
the issue of non-joinder of alleged
materially interested parties in due course;
4.
The application is postponed to
17 August 2018 (being a date that has been arranged with the
Registrar);
5.
The Respondents shall file
their answering affidavits by Friday 13 July 2018, and the Applicants
shall file their replying affidavits
by Friday 20 July 2018;
6.
The Applicants shall
file heads of argument by Tuesday 24 July 2018 and the Respondents
shall file heads of argument by Friday 27
July 2018;”
[3]
The
Respondents’ right to challenge the urgency of this application
and to raise the issue of non-joinder had been reserved.
This
application
[4]
The
Applicant provided a detailed background to the matter in respect of
the amendment of the Council’s constitution (the
constitution)
and the increase of the membership threshold requirement for
admission to the Bargaining Council from 10 000 to 30
000 members.
The Applicant instituted review proceedings under case number JR
2576/2017, which review is still pending.
[5]
The
Applicant made it clear that whilst it is challenging the decision to
increase the threshold for membership to the Council by
way of review
proceedings, it abides by the new constitutional construct, pending
the review application. For purposes of this
application, the
Applicant is not challenging the increase in the threshold, but seeks
compliance with the amended constitution.
The
constitution
[6]
The
amended and current constitution of the Council defines ‘threshold
requirements’ as the minimum membership requirements
that a
trade union must satisfy to be admitted as a party to the Council, or
to remain a party to the Council under the provisions
of the
constitution.
[7]
The
constitution provides that any single trade union may apply for
admission to the Council if it meets the threshold requirement
of 30
000 members in good standing in the public health and social
development sector. If two or more trade unions act jointly,
and each
enjoys organisational rights with an employer and have a combined
membership of 30 000, the trade unions may be represented
in the
Council as a single party.
[8]
In
terms of clause 11 of the constitution, membership figures are to be
reviewed annually. Relevant for this application is clause
11.1 which
provides that:
“
The
General Secretary to the Council must review the annual membership
figures, as at 31 December of the previous year, of all trade
unions
admitted to the Council. This review must take place as soon as
reasonably possible after 1 April of each year. The General
Secretary
must report this decision to the Council by no later than 14 May of
each year, or such later date as the Council may
decide.”
[9]
Clause
11 further provides for the process of submitting audited membership
figures to the General Secretary of the Council by 31
March each year
for the purposes of the review as provided for in clause 11.1.
[10]
Clause
11.4 provides that the General Secretary may request an employer to
provide figures of the number of employees for whom it
deducts
membership fees for any trade union by means of stop orders and may
request a trade union to provide audited figures of
the members in
good standing in accordance with the guidelines on membership audits
and the Council shall be entitled to instruct
its auditors and or an
independent auditor to verify these figures.
[11]
Clause
13 of the constitution provides for the determination of voting
weights of the trade unions. The voting weight of each admitted
trade
union in the Council shall be equal to the number of members in good
standing of such trade union as on 31 December of the
previous year,
as determined with reference to the trade unions audited membership
figures. Membership figures are determined as
per the provisions of
clause 11 and is expressed as a percentage of the aggregate number of
trade union members of all trade union
parties to the Council, who
are employees within the scope of the Council as on 31 December of
the previous year.
[12]
The
General Secretary determines the voting of each admitted trade union
in accordance with clause 13 and such determination shall
apply from
one annual general meeting (AGM) to the next AGM.
[13]
Clause
13.3 provides that:
“
The
General Secretary shall, as soon as practicable after 31 March of
each year, but by no later than 14 May of each year, or such
later
date as the Council may decide, inform the Council and the admitted
trade unions in writing of the voting weights of the
admitted trade
unions in the Council.”
[14]
Clause 13.4
provides that:
“
Any
party that disputes the determination of voting weights by the
General Secretary in accordance with the provisions of clause
13, may
refer such a dispute for conciliation and, if the dispute remains
unresolved, for arbitration under clause 5 of the Dispute
Procedure.
If the dispute is referred to arbitration, the arbitrator’s
award shall replace the General Secretary’s
determination.”
[15]
It is
common cause that NUPSAW, acting jointly with other unions, submitted
their audited membership figures as at 31 December 2017.
The General
Secretary appointed an independent auditing firm, Sizwe Ntsaluba
Gobodo (SNG), to conduct a verification exercise and
on 18 May 2018
SNG submitted a report to the Council, setting out the determination
of voting weights for the various trade unions.
In terms of the said
report, NUPSAW, acting jointly with other unions, had 30 727 members
and had acquired a 8,35% voting weight.
[16]
It is
evident that NUPSAW, acting jointly with other unions, met the
threshold requirement of 30 000 members for admission to the
Council.
On 18 June 2018 the General Secretary confirmed in writing its
admission to the Council as a single party under the name
“NUPSAW”.
[17]
Pursuant
thereto and on 21 June 2018 at its AGM, the Council resolved that a
further verification exercise must be done.
[18]
This
resolution gave rise to the present urgent application.
The
Applicants’ case
[19]
The
Applicants’ case is that the resolution that a further
verification exercise be done on grounds that the figures presented
by the General Secretary were disputed, is based on the provisions of
clause 11.4 of the constitution. Clause 11.4 provides that
the
General Secretary may request employers to provide figures of
employees for whom membership fees are deducted and trade unions
to
provide audited figures of members in good standing.
[20]
It
was further resolved by the Council that when this further
verification is done, the trade unions’ membership will revert
to the figures prior to the SNG report, in which case NUPSAW will
fall below the 30 000 threshold.
[21]
The
Applicant submitted that clause 11 of the constitution deals with the
processes that the General Secretary can engage in to
ascertain
annual membership figures. Once the annual membership figures have
been collated, it is reported and the parties are
informed, as per
clause 13.3. The constitution does not make provision for the General
Secretary to revert to clause 11.4, when
a decision had already been
taken and the parties had already been informed of their voting
weights.
[22]
The
decision to revert to clause 11.4 is premised upon dissatisfaction
with or a dispute about the voting weights attributed to
NUPSAW.
[23]
The
Applicant’s argument is that the constitution does not have a
procedure for challenging voting thresholds, other than
clause 13.4,
which provides specifically that any party that disputes the
determination of voting weights by the General Secretary,
may refer
such dispute for conciliation and if that fails, arbitration under
clause 5 of the dispute procedure.
[24]
The
conducting of a further verification exercise after the General
Secretary has informed the parties of the voting weights, is
unlawful
and unconstitutional and prejudices the Applicants in material
respects.
[25]
The
Applicants seek relief on the basis that NUPSAW’s (including
the unions acting jointly) right to be a member of the Council
is
founded upon the fact that they meet the threshold requirements for
membership of the Council.
[26]
The
Applicants seeking an order to interdict and restrain the General
Secretary from giving effect to a decision of the Council
which
resolved that a further verification of trade union membership be
done on the grounds that such resolution is unlawful and
in breach of
the bargaining council’s constitution.
The
opposition
[27]
The
Respondents opposed the application and raised two points
in
limine
namely
the urgency of this application and the issue of non-joinder.
Urgency
[28]
The
Respondents submitted a number of arguments to show that the
application is not urgent and should not be dealt with on an urgent
basis. The Applicants on the other hand submitted arguments as to why
the matter is urgent.
[29]
On
27 June 2018 the parties agreed to the filing of further affidavits
and heads of argument and the Registrar enrolled the matter
for
hearing on 17 August 2018.
[30]
Notwithstanding
the
Respondents’ challenge in respect of urgency, I am inclined to
deal with this matter without making a finding on the issue
of
urgency. This is so for a number of reasons. This matter was enrolled
for hearing in Court on 27 June 2018, when an order was
issued by
consent of the parties and the matter was enrolled for hearing on 17
August 2018. Judicial resources are scarce and limited
and no matter
should be afforded the luxury of numerous Court days being allocated
to it. Therefore, it is in the interest of the
parties that when a
second Court day is allocated to the same matter, it be dealt with.
[31]
This is
more so where there is before me a complete set of papers, with heads
of argument drafted by senior and junior counsel and
where the matter
was fully ventilated and argued in Court.
[32]
I therefore
proceed to consider the second point
in
limine.
Non-joinder
[33]
The
second point
in
limine
raised
by the Respondents is that there has been a non-joinder of parties
that have a material interest in the relief sought by
the Applicants.
[34]
The
General Secretary explained that in terms of clause 11 of the
constitution he is required to review the annual membership figures
of all trade unions admitted to the Council as at 31 December of the
previous year, or as soon as possible after 1 April each year
and
report to the Council by no later than 14 May of each year. The
requirement of a review of membership figures as at 31 December
2017
was conducted and the report was tabled on 14 May 2018 at a meeting
of the Council’s EXCO. The report revealed membership
figures
which differed considerably from the previous year and concerns were
raised by the trade union parties that the membership
figures did not
correspond with the trade unions’ membership contribution
information. A proposal was put forward that a
verification of trade
union membership be conducted and the EXCO resolved that the
verification of trade union membership be dealt
with at a meeting of
the Council. The issue was tabled at a Council meeting and it was
determined that it be dealt with at the
AGM.
[35]
The
verification issue was raised at the Council’s AGM on 21 June
2018 and it was resolved that a verification exercise of
trade union
membership should be conducted. The General Secretary stated that
resolutions of the Council are collective agreements
concluded
between the members of the Council and are not decisions taken by the
executive leadership of the Council. On 21 June
2018 the employer and
trade union parties to the Council resolved that the General
Secretary should conduct the verification exercise.
[36]
The
General Secretary subsequently commissioned the Council’s
auditors to conduct a verification as aforesaid.
[37]
The
decision that the Applicants challenge in this matter is a resolution
taken by the parties to the Council, namely the State
as employer and
the majority of the unions which are the other parties to the
Council. They raised concerns about the General Secretary’s
figures when he reported them to the Council members and they debated
them at the AGM and as a result, they took a resolution that
a
verification process should be undertaken.
[38]
The
relief sought by the Applicants would effectively interfere with the
Council’s fulfilment of its responsibilities and
performing its
duties in circumstances where it has been mandated to verify
membership levels of the trade union members. The Applicant
seeks to
prevent the Council from carrying out a verification of membership,
which is a lawful and legitimate function.
[39]
Mr
Kennedy for the Respondents submitted that the other unions have a
direct and material interest in the relief sought in this
application. The Applicants are themselves parties to the Council and
they are in dispute with other parties to the Council, wherefore
it
is not only the Council that should have been joined. The other
parties have a material and direct interest in the outcome of
this
matter and should have been joined.
[40]
As
such, there is a material non-joinder of the employer and other trade
union parties to the Council.
[41]
The
Respondents submitted that on this basis alone the matter should be
struck from the roll.
[42]
In reply,
the Applicants denied that citing the Bargaining Council as a
respondent renders the application defective. The Applicants’
case is that the employer party and trade unions acting together make
up the Bargaining Council and the decision taken by the Bargaining
Council, was not derived on account of the individual trade unions or
the employer in their individual capacities, but that it
was made by
the collective which forms the Bargaining Council. It is illogical
for a party to site the constituent parties of the
Bargaining Council
when a dispute lies against a decision taken by the Bargaining
Council.
[43]
In my view
this argument is without merit because
the
Applicants are themselves parties to the Council and they are in
dispute with other parties to the Council.
[44]
Mr Hulley
for the Applicants submitted that there is no merit in the
non-joinder point as the Applicant applied to this Court to
interdict
the General Secretary from giving effect to a decision taken in the
Council on the ground that the decision is unlawful
and runs counter
the Council’s constitution.
[45]
The
Applicants’ argument is that it is the decision of the General
Secretary that is attacked, wherefore it is difficult to
understand
why the other unions and employer have an interest in the matter. Mr
Hulley however submitted that an order of this
Court will render
their resolution nugatory, but the attack is not directed at their
resolution, but is directed at the General
Secretary and his powers.
[46]
In
the Applicant’s founding affidavit, it is stated that the
conducting of a further verification exercise, after the General
Secretary has informed the parties in terms of clause 13.3 of the
constitution, is unlawful and unconstitutional and that there
are no
lawful grounds for the General Secretary to heed an unconstitutional
resolution to conduct a further verification exercise.
[47]
Mr Hulley
submitted that the General Secretary’s decision is unlawful in
that it runs counter to the constitution.
[48]
In my view
there is no merit in this argument. Firstly, there is no case made
out that the General Secretary has taken any decision
and secondly,
this argument does not accord with the Applicants’ version on
affidavit and the relief they seek, namely to
interdict the General
Secretary from giving effect to a decision of the Bargaining Council.
[49]
The
objection of non-joinder may be raised where the point is taken that
a party who should be before Court, has not been joined
or given
judicial notice of the proceedings. The substantial test is whether
the party that is alleged to be a necessary party
for joinder, has a
legal interest in the subject matter of the litigation, which may be
affected prejudicially by the judgment
of the court in the
proceedings concerned
[1]
.
[50]
In
casu
the
Applicants seek an order to interdict the effecting of a Council
resolution and if the relief is granted, it would render the
resolution nugatory. The other parties to the Bargaining Council have
a direct and substantial interest in the outcome of this
application
and as such they should have been joined.
[51]
There
is merit in the Respondents’ non-joinder argument and the point
in
limine
is
upheld.
[52]
This Court
has a broad discretion in terms of section 162 of the Labour
Relations Act
[2]
to make orders
for costs according to the requirements of the law and fairness.
Considering that the parties are in a collective
bargaining
relationship and that a cost order may have an adverse effect on such
a relationship, the interest of justice and fairness
will be best
served by making no order as to costs.
[53]
In the premises, I make the following order:
Order
1.
The
application is struck from the roll;
2.
There is no
order as to costs.
Connie
Prinsloo
Judge of the Labour Court
of South Africa
Appearances:
Applicants:
Advocate G Hulley SC with Advocate
B Ford
Instructed by:
Ndumiso Voyi Inc
Respondents:
Advocate P Kennedy SC
Instructed by:
Bowman Gilfillan Attorneys
[1]
Herbstein &
Van Winsen, “The Civil Practice of the High Courts of South
Africa’, Volume 1.
[2]
Act 66 of 1995 as amended.