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[2018] ZALCJHB 303
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BIFAWU obo Members v Commission for Conciliation, Mediation and Arbitration and Others (JR306/13) [2018] ZALCJHB 303 (27 September 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 306/13
In
the matter between:
BIFAWU
obo
MEMBERS
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION AND
ARBITRATION
First
Respondent
COMMISSIONER
DM HILLIGENN
N.
O
Second
Respondent
SOUTH
AFRICAN FOOTBALL
ASSOCIATION
Third
Respondent
Delivered:
27 September 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
Introduction
and background:
[1]
The Banking Insurance Finance
and Assurance Workers Union (BIFAWU), representing its members, seeks
an order reviewing and setting
aside the arbitration award dated
14 December 2014 issued by the second respondent
(Commissioner) acting under the auspices
of the first respondent, the
Commission for Conciliation Mediation and Arbitration (CCMA). The
third respondent (SAFA), opposed
the application.
[2]
BIFAWU referred a dispute to
the CCMA in terms of section 24(2) and 24(5) of the Labour Relations
Act (LRA)
[1]
pertaining to the interpretation and/or application of a collective
agreement, and in particular, the parties’ Recognition
Agreement signed on 6 July 2012. The dispute was triggered
by a notice issued in terms of section 189(3) of the LRA by
SAFA
dated 20 July 2012. BIFAWU held the view that the
provisions of clause 4(b) of the Recognition Agreement were
applicable
in circumstances where SAFA had due to its operational
requirements, initiated a restructuring process at the workplace.
BIFAWU
further held the view that SAFA had acted in breach of clauses
6 (Collective Bargaining rights), 14 (Collective
forums/Union/Management
meetings) and 15 (Association Forums) of the
Recognition Agreement in initiating the restructuring process.
[3]
Clause 4(b) of the Recognition
Agreement (Recognition clause) provides that;
‘
Notwithstanding
anything to the contrary contained in this agreement, the Union
recognises that the Association has, and shall continue
to have the
right to conduct its normal managerial functions provided when
contemplating the introduction of major changes in the
Association as
set out in sections 84, 85 and 86 of the LRA, the Association will
negotiate with the Union, providing it with this
purpose, with
relevant information on the major changes and their effects’
[4]
Clause 19 of the Agreement
(Retrenchments Clause), which SAFA relied upon in initiating the
restructuring process, provides that;
‘
The
Association and the Union agree that there may be circumstances in
which the Association terminates Employees due to operational
requirements. Should such a situation arise, a Retrenchment
Collective Agreement shall come into force, in the absence of such
agreement, section 189 of the Labour relations Act and amendments
shall apply’
[5]
In the section 189(3) notice,
SAFA had also indicated an intention to approach the CCMA to appoint
a facilitator. A meeting was
held between the parties on 20 July 2012
with the Chief Executive Officer (CEO) of SAFA, and following that
meeting,
BIFAWU sent correspondence to SAFA, essentially disputing or
rejecting the appointment of a facilitator. Central to BIFAWU’s
contentions was that the provisions of clause 4(b) of the Recognition
Agreement should be applied insofar as SAFA sought to restructure
its
operations. A written response and plea to BIFAWU to join in
discussions surrounding the restructuring appeared to have yielded
no
positive response. BIFAWU was steadfast in its approach that the
provisions of the Collective Agreement were to be applied in
the
circumstances rather than those of the LRA. SAFA’s approach on
the other hand was that the section 189(3) notice was
issued because
of possible dismissal of a number of employees due to its operational
requirements. It had made reference to clause
19 of the Recognition
Agreement and pointed out that in the absence of a Retrenchment
Agreement, the provisions of section 189
of the LRA were to apply,
hence its stance that consultation meetings were to be conducted
under facilitation by the CCMA.
[6]
On 3 September 2012,
SAFA advised BIFAWU that it had agreed to engage in consultations
directly with it without facilitation
of the CCMA, and that the
invitation to the CCMA for facilitation would be withdrawn. It
appears that the proposal was not favourably
received by BIFAWU,
resulting in further correspondence from SAFA on 7 September 2012,
in terms of which it was suggested
that the parties should
approach the CCMA on an urgent basis to request the appointment of a
Senior Commissioner to make
a ruling on whether clauses 4 or 19 of
the Recognition Agreement applied to the consultation process
initiated by SAFA in terms
of section 189(3) of the LRA.
[7]
On 11 September 2012,
SAFA being of the view that BIFAWU refused to consult with it,
requested a facilitation by the CCMA.
On or about the same date,
BIFAWU referred a dispute to the CCMA. It incorrectly referred the
dispute as pertaining to alleged
unilateral change to terms and
conditions of employment when in fact it related to the
interpretation and/or application of the
agreement. The matter was
set-down for conciliation on 11 October 2012.
[8]
Despite extensive attempts at
conciliation, the dispute could not be resolved. It was then properly
referred as a section 24(2)
and section 24(5) of the LRA for
arbitration. The CCMA set-down the dispute for arbitration on
22 November 2012, and
the Commissioner had directed the
parties to file written heads of argument.
[9]
SAFA in the meanwhile had
briefed its employees on 9 and 30 October 2012, and had
proceeded to implement its new structure
with effect from
1 December 2012. An urgent application brought by BIFAWU to
this Court to interdict SAFA from implementing
restructuring at the
workplace was struck off the roll on 13 November 2012.
The
submissions before the Commissioner:
[10]
BIFAWU’s submissions in
its written heads of argument before the Commissioner were
essentially as summarised above. In a nutshell,
its contention was
that the section 189(3) notice as issued by SAFA amounted to a
change in terms and conditions of employment;
that SAFA was bound to
negotiate with it directly in terms of clause 4(b) of the Agreement,
and that section 84(1) of the LRA found
application since SAFA had
agreed to negotiate with it on all matters of mutual interest
[11]
SAFA’s arguments before
the Commissioner were that sections 84, 85, and 86 of the LRA as
referred to in clause 4(b) of the
Agreement were not applicable as
there was no workplace forum in existence at the workplace, nor had
BIFAWU requested for one to
be established as contemplated in section
80(2) of the LRA. Since the parties had concluded a Recognition
Agreement, and further
since SAFA was contemplating a dismissal of
employees based on its operational requirements, it was obliged to
issue a notice in
terms of section 189(3) of the LRA. To that end, it
was submitted that clause 4(b) of the Agreement would only find
application
where SAFA wished to restructure its workplace, but did
not contemplate a retrenchment of any of its employees, and clause 19
would
thus find application. Thus the section189 of the LRA route
should be followed in the absence of a retrenchment agreement.
The
award:
[12]
The Commissioner’s
starting point was that an approach disregarding the meaning parties
intended to convey by words they had
used in agreements was
inappropriate, and that when the meaning was clear and unambiguous,
additional evidence could not be given
to alter that meaning, and
further that it was not for the Commission to inquire into the
inherent fairness of provisions of agreements
which were products of
collective bargaining.
[13]
Based on SAFA’s notice in
terms of section 189(3) of the LRA, it was apparent that it had
contemplated a loss of employment,
and thus clause 4(b) of the
agreement, and Sections 84, 85 and 86 of the LRA found no
application. Clause 19 of the agreement according
to the Commissioner
was unambiguous and couched in simple grammar, and the fairness
thereof could not be inquired into. The Commissioner
concluded that
these provisions could not be divorced from section 189(3) of the
LRA, which found application in the matter.
Grounds
of review:
[14]
BIFAWU contends that the award
is reviewable on the basis that the Commissioner committed misconduct
in relation to his duties as
an arbitrator; committed a gross
irregularity in the conduct of proceedings; did not apply his mind to
the documentary evidence
and the applicable law, thus making his
conclusions irrational and therefore unreasonable; was biased and had
ignored documentary
evidence; committed a serious mistake in
interpreting and applying the law; that he ignored the fact that the
Agreement imposed
a legal obligation on SAFA to consult, and was thus
forbidden from implementing proposals regarding restructuring of the
workplace.
Evaluation:
[15]
In accordance with the
provisions of section 23 of the LRA, collective agreements are
binding on the parties. The purpose of section
24 of the LRA is to
resolve disputes where a party to an agreement is alleged to have
been in breach of the provisions of that
agreement by failing to
interpret or apply its terms either correctly or at all
[2]
.
The principles applicable to the resolution of such disputes are
trite as restated in
Western
Cape Department of Health v Van Wyk and Others
[3]
.
These are that;
i.
When interpreting a collective
agreement, the arbitrator is enjoined to bear in mind that a
collective agreement is not like an
ordinary contract, and he/she is
therefore required to consider the aim, purpose and all the terms of
the collective agreement;
ii.
The primary objects of the LRA
are better served by an approach which is practical to the
interpretation of such agreements, namely
to promote the effective,
fair and speedy resolution of labour disputes. In
addition,
it is expected of the arbitrator to adopt an interpretation and
application that is fair to the parties.
iii.
A collective agreement is a
written memorandum which is meant to reflect the terms and conditions
to which the parties have agreed
at the time that they concluded the
agreement.
iv.
The courts and arbitrators must
therefore strive to give effect to that intention, and when tasked
with an interpretation of an
agreement, must give to the words used
by the parties their plain, ordinary and popular meaning if there is
no ambiguity. This
approach must take into account that it is not for
the Courts or arbitrators to make a contract for the parties, other
than the
one they in fact made
[4]
;
v.
The “parole evidence”
rule when interpreting collective agreements is generally not
permissible when the words of the
memorandum are clear.
vi.
Collective agreements are
generally concluded following upon protracted negotiations, and it is
expected of the parties to those
agreements to remain bound by their
provisions. It therefore follows that such agreements cannot be
amended unilaterally.
[16]
The test on review is
well-established, and for an applicant to be successful, the Court
must be persuaded that the award or the
decision arrived at by the
Commissioner is one that a reasonable decision maker would not have
made in the light of the material
presented to him or her. The
enquiry is not whether the decision is correct or not, but whether
the Commissioner properly applied
her mind to the issues before her,
considered all the material before, and adopted an approach that gave
effect to the purpose
of the provisions of the agreement. As it was
stated in
Ekurhuleni
Metropolitan Municipality v South African Municipal Workers Union and
Others
[5]
,
‘…
The
test is concerned with outcomes, not the process by which the
outcomes are achieved. Only when the outcome is one which no
reasonable arbitrator, with the material that was to hand, could
produce, is an award liable to be set aside. The frailties of an
arbitrator’s reasoning, or inattention to mentioning every
facet of relevance, or clumsiness in articulation are unimportant,
unless they are causally connected to an unfair outcome.’
[6]
[17]
Central to this review
application is the allegation that the Commissioner in coming to his
decision, acted unfairly, and failed
to consider and apply his mind
to the issues before him, or failed to take into account certain
material evidence. Having perused
the pleadings and written heads of
arguments, what is clear is that sadly, BIFAWU tended to conflate
issues, completely missed
the point, and advanced arguments that not
only lacked logic but also went contrary to the spirit and purpose of
the Recognition
Agreement. The mere fact that a collective agreement
is binding, or that the parties had agreed to consult on all matters
of mutual
interests as relied upon by BIFAWU, cannot be factors that
should be viewed in isolation from all other provisions of the
Agreement.
[18]
The starting point as correctly
pointed out by the Commissioner was the section 189(3) notice of the
LRA. From that notice, SAFA’s
intentions in respect of the
restructuring it had contemplated could be gleaned. It was thus in
line with that notice that it had
to be determined as to which
provisions of the Recognition Agreement were to be applicable.
[19]
To the extent that BIFAWU
relied on the provisions of clause 4(b) of the Agreement, the issue
is whether SAFA had contemplated the
introduction of major changes as
set out in sections 84, 85 and 86 of the LRA, for it to be compelled
to consult and negotiate
with it. What is crucial however, and which
point BIFAWU has consistently missed or deliberately misunderstood is
that the provisions
of sections 84, 85 and 86 fall under the general
rubric of workplace forums as established under Chapter V of the LRA.
Section
84
of the LRA provides for specific matters for consultation, which a
workplace
forum
is entitled to be consulted by the employer.
Section
85 of the
LRA
inter
alia
makes provision for the
workplace
forum
to be consulted before an employer may implement a proposals in
relation to any matter referred to in section 84(1), whilst Section
86 of the LRA makes provision for joint decision-making, and for
matters the employer must consult and reach consensus with a
workplace
forum
before implementing any proposal concerning.
[20]
It is therefore apparent that
BIFAWU’s reliance on the provisions of clause 4 (b) of the
Agreement in contending that SAFA
was obliged to consult with it is
clearly misplaced, as the parties had not established a
workplace
forum
in terms of the
provisions of sections 80 or 81 of the LRA, nor had BIFAWU requested
the establishment of a workplace forum.
[21]
In the absence of a workplace
forum or a retrenchment agreement as contemplated in clause 19 of the
Recognition Agreement, it follows
that the only applicable provisions
would have been those of section 189 of the LRA as correctly
concluded by the Commissioner.
It further follows that there is no
merit in BIFAWU’s contentions that the Commissioner committed a
mistake when interpreting
and applying the law or the provisions of
the Agreement, or committed any other irregularity in the conduct of
proceedings. The
contention that the Commissioner was biased or had
ignored documentary evidence is equally a red herring, and I fail to
appreciate
what was expected of the Commissioner when the provisions
of clauses 4(b) and 19 of the Agreement were clear and unambiguous.
[22]
The interpretation adopted by
the Commissioner,
albeit
in inelegant terms, was fair to the parties, as it gave to the words
used by the parties their plain, ordinary and popular meaning
in the
absence of ambiguity. In the end, and having considered all the
factors pertinent to this case, I am satisfied that the
Commissioner
properly applied his mind to the issues before him, considered all
the material before him, and adopted an approach
that gave effect to
the purpose of the provisions of the Recognition Agreement, and those
of the LRA. Thus, the conclusions reached
by the Commissioner are
unassailable, as they fall within a band of reasonableness.
[23]
I have further had regard to
the question of costs insofar as the requirements of law and fairness
are to be taken into account.
It is my view that this application was
clearly ill-considered as it had no merit. It was further submitted
on behalf of SAFA that
the application was frivolous and academic
since the retrenchments had long been effected. To this end, I see no
reason why BIFAWU
should not be burdened with the costs of this
application. The fact that there may be a relationship between the
parties is irrelevant
for the purposes of awarding costs, especially
in circumstances where a party ought to have reflected long and hard
prior to approaching
the court.
[24]
Accordingly, the following
order is made;
Order:
1.
The application to review and
set aside the award issued by the second respondent is dismissed with
costs.
____________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicants: M Nhlapo, BIFAWU Official
For
the Third Respondent: PM Mosebo of Werksmans
[1]
Act 66 of 1995 (as amended)
[2]
See
PSA
obo Liebenberg v Department of Defence and Others
(2013)
34 ILJ 1769 (LC) at para [2]
[3]
(2014) 35 ILJ 3078
(LAC) at para 22. See also
North
East Cape Forests v SAAPAWU and Others
[1997]
6 BLLR 711
(LAC);
Food
and Allied Workers Union v Commission for Conciliation, Mediation
and Arbitration and Others
(2007)
28 ILJ 382 (LC) at para 35.
[4]
See
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012] 2 All SA 262 (SCA)
[5]
[2018] 3 BLLR 246
(LAC); (2018) 39
ILJ 546 (LAC)
[6]
At para 18